1 00:00:03,200 --> 00:00:10,760 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:12,520 --> 00:00:15,680 Speaker 2: Our nation's commitment to the rule of law sets an 3 00:00:15,680 --> 00:00:19,400 Speaker 2: example for the world. We have one set of laws 4 00:00:19,400 --> 00:00:24,520 Speaker 2: in this country, and the apply to everyone applying those laws, 5 00:00:24,880 --> 00:00:28,960 Speaker 2: collecting facts. That's what determines the outcome of an investigation. 6 00:00:30,400 --> 00:00:33,000 Speaker 2: Nothing more, nothing less. 7 00:00:33,600 --> 00:00:36,880 Speaker 3: Special counsel Jack Smith took only two and a half 8 00:00:36,960 --> 00:00:41,040 Speaker 3: minutes to comment on the first federal criminal charges against 9 00:00:41,080 --> 00:00:45,200 Speaker 3: a former president in US history. Smith let the indictment 10 00:00:45,200 --> 00:00:49,080 Speaker 3: against former President Donald Trump speak for him. Trump is 11 00:00:49,200 --> 00:00:53,200 Speaker 3: charged with thirty seven counts over his handling of classified information, 12 00:00:53,680 --> 00:00:59,480 Speaker 3: including willful retention of national defense information, corruptly concealing documents, 13 00:01:00,000 --> 00:01:04,960 Speaker 3: conspiracy to obstruct justice, and making false statements. He declared 14 00:01:05,000 --> 00:01:08,959 Speaker 3: his innocence in a video response on truth Social calling 15 00:01:09,000 --> 00:01:12,520 Speaker 3: the investigation the Boxes hoax, just. 16 00:01:12,480 --> 00:01:15,720 Speaker 4: Like the Russia Russian Russia hoax and all of the others. 17 00:01:15,800 --> 00:01:16,800 Speaker 4: It has been going on. 18 00:01:16,800 --> 00:01:20,520 Speaker 3: For seven years that they can't stop because its election 19 00:01:20,720 --> 00:01:22,320 Speaker 3: interference at the highest level. 20 00:01:22,319 --> 00:01:24,240 Speaker 1: There's never been anything like what's happened. 21 00:01:24,600 --> 00:01:27,840 Speaker 3: I'm an innocent man, I'm an innocent person. A longtime 22 00:01:27,880 --> 00:01:31,840 Speaker 3: Trump baide was also indicted on six charges. Joining me 23 00:01:31,959 --> 00:01:35,119 Speaker 3: is Joshua Castenberg, a professor at the University of New 24 00:01:35,160 --> 00:01:38,920 Speaker 3: Mexico Law School and a former prosecutor and judge in 25 00:01:38,959 --> 00:01:43,120 Speaker 3: the US Air Forces. This is what's called a talking indictment, 26 00:01:43,400 --> 00:01:47,360 Speaker 3: and the story it tells in words, texts, photographs, and 27 00:01:47,480 --> 00:01:53,240 Speaker 3: transcribed conversations, is of Trump's relentless efforts to hide classified 28 00:01:53,320 --> 00:01:58,000 Speaker 3: documents related to the national defense from federal prosecutors and 29 00:01:58,080 --> 00:02:01,440 Speaker 3: his own attorneys. What's your asessment of how the indictment 30 00:02:01,480 --> 00:02:02,440 Speaker 3: presents the case? 31 00:02:03,760 --> 00:02:07,640 Speaker 1: So it brings a picture of clarity that the government's 32 00:02:07,840 --> 00:02:12,560 Speaker 1: proof is pretty solid, particularly in regard to the recorded 33 00:02:12,639 --> 00:02:17,160 Speaker 1: conversation he had where he admitted that the document he 34 00:02:17,240 --> 00:02:21,280 Speaker 1: waived around the military attack plan was mark secret or 35 00:02:21,360 --> 00:02:25,520 Speaker 1: top secret. He boasted about it basically to a non 36 00:02:25,680 --> 00:02:29,400 Speaker 1: law enforcement official. This was a journalist or a writer 37 00:02:29,480 --> 00:02:31,760 Speaker 1: who was going to write a book. And so my 38 00:02:32,040 --> 00:02:35,679 Speaker 1: first thought is, well, the government has some pretty compelling evidence. 39 00:02:35,800 --> 00:02:39,360 Speaker 1: I can't imagine why it would be ruled inadmissible because 40 00:02:39,400 --> 00:02:42,040 Speaker 1: it goes to the heart of the offense and there's 41 00:02:42,080 --> 00:02:46,920 Speaker 1: no like suppression motion or law enforcement misconduct type motion 42 00:02:47,120 --> 00:02:50,600 Speaker 1: involved here. It's a private citizen that made a recording 43 00:02:50,720 --> 00:02:52,079 Speaker 1: with Trump's permissions. 44 00:02:52,360 --> 00:02:54,760 Speaker 3: How do you fight that kind of evidence as a 45 00:02:54,800 --> 00:02:55,679 Speaker 3: defense attorney. 46 00:02:56,000 --> 00:03:00,880 Speaker 5: You know, for criminal defense attorneys, that type of evidence 47 00:03:01,240 --> 00:03:05,160 Speaker 5: is usually what they might consider nightmare evidence that their 48 00:03:05,200 --> 00:03:08,760 Speaker 5: client does because it shows wrongdoing and it shows knowledge 49 00:03:08,760 --> 00:03:12,880 Speaker 5: of wrongdoing, and you know, absinute confession, you don't get 50 00:03:12,919 --> 00:03:16,200 Speaker 5: better evidence than that. As a prosecutor in a case 51 00:03:16,360 --> 00:03:20,040 Speaker 5: that doesn't involve DNA, you know, the defense is likely 52 00:03:20,080 --> 00:03:23,440 Speaker 5: to argue something unique, like while he's the former president 53 00:03:23,480 --> 00:03:26,480 Speaker 5: of the United States, he had the authority to do that. 54 00:03:26,639 --> 00:03:30,320 Speaker 5: They'll probably argue something known as mistake of law. And 55 00:03:30,320 --> 00:03:32,920 Speaker 5: that's when someone acts because they believe they had the 56 00:03:33,000 --> 00:03:35,840 Speaker 5: legal authority to do something when they didn't. And you know, 57 00:03:35,840 --> 00:03:38,520 Speaker 5: there are all sorts of famous cases on mistake of law, 58 00:03:38,600 --> 00:03:41,520 Speaker 5: including a Supreme Court case that involves someone who didn't 59 00:03:41,560 --> 00:03:44,400 Speaker 5: pay their taxes. They made the argument that they had 60 00:03:44,480 --> 00:03:47,800 Speaker 5: been advised by attorneys and the government that they didn't 61 00:03:47,840 --> 00:03:50,480 Speaker 5: need to pay their taxes. You know, his lawyers they're 62 00:03:50,480 --> 00:03:52,600 Speaker 5: going to throw a lot of spaghetti against the wall 63 00:03:52,680 --> 00:03:54,520 Speaker 5: and see what six this is what they should do. 64 00:03:54,800 --> 00:03:58,240 Speaker 5: But right now I would say it's the mistake of law. Defense, 65 00:03:58,280 --> 00:04:01,320 Speaker 5: where he makes the argument, I'm not a lawyer, I'm 66 00:04:01,360 --> 00:04:04,320 Speaker 5: a business mana turned president of the United States. I 67 00:04:04,400 --> 00:04:07,120 Speaker 5: rely on the advice of lawyers. This was the advice 68 00:04:07,200 --> 00:04:09,000 Speaker 5: I got. I thought it was okay to do. 69 00:04:09,520 --> 00:04:14,440 Speaker 3: And does the indictment convey the seriousness and the danger 70 00:04:14,520 --> 00:04:17,160 Speaker 3: to national security from his actions? 71 00:04:17,680 --> 00:04:21,559 Speaker 1: Well, absolutely. Look if you had a person who worked 72 00:04:21,560 --> 00:04:25,360 Speaker 1: at Department of Defense, whether they were military or civilian, 73 00:04:25,640 --> 00:04:29,960 Speaker 1: or CIA or National Security Agency, waving around a document 74 00:04:30,040 --> 00:04:32,919 Speaker 1: the way he did with that boast, my thought is 75 00:04:33,240 --> 00:04:37,360 Speaker 1: absent somebody who is not guilty by reason of mental defect, 76 00:04:37,480 --> 00:04:40,000 Speaker 1: that that individual would likely go to jail for a 77 00:04:40,080 --> 00:04:43,880 Speaker 1: long long time. Now, this isn't quite a case of spying, 78 00:04:44,240 --> 00:04:47,320 Speaker 1: but let's remember Robert Hansen just died in prison for 79 00:04:47,440 --> 00:04:51,280 Speaker 1: spying for the Soviet Union. Jonathan Pollard spied for our 80 00:04:51,320 --> 00:04:54,719 Speaker 1: ally Israel. He's spending life without parol. You know, in 81 00:04:54,800 --> 00:04:57,880 Speaker 1: a jail he is take a step one step removed 82 00:04:57,880 --> 00:05:01,760 Speaker 1: from that is someone who intentionally disregards the law and 83 00:05:01,839 --> 00:05:05,479 Speaker 1: puts national security at rest. Usually those people go to 84 00:05:05,560 --> 00:05:06,799 Speaker 1: jail in the decades. 85 00:05:07,040 --> 00:05:11,719 Speaker 3: These allegations are very very serious, but it's almost comical 86 00:05:11,800 --> 00:05:15,840 Speaker 3: the way Trump had those boxes moved around mar A Lago, 87 00:05:16,320 --> 00:05:19,479 Speaker 3: from the ballroom to a bathroom, to a storeage room 88 00:05:19,520 --> 00:05:22,560 Speaker 3: in his office, and then on a plane to Bedminster, 89 00:05:22,760 --> 00:05:26,760 Speaker 3: New Jersey. And there are pictures documenting it all, even 90 00:05:26,800 --> 00:05:29,159 Speaker 3: when some of the documents spilled out of a box 91 00:05:29,200 --> 00:05:30,719 Speaker 3: and were scattered on the floor. 92 00:05:31,120 --> 00:05:33,880 Speaker 1: It shows a certain degree of knowledge that you shouldn't 93 00:05:33,920 --> 00:05:37,040 Speaker 1: have the documents if you do that, and also paranoia 94 00:05:37,120 --> 00:05:39,840 Speaker 1: that you'll get caught. Now, there's a movie based on 95 00:05:39,839 --> 00:05:42,640 Speaker 1: one of the John Grisham books where the lawyer tells 96 00:05:42,680 --> 00:05:46,400 Speaker 1: his mafia client, I have documents on you that are 97 00:05:46,480 --> 00:05:49,240 Speaker 1: at sea, and as long as nothing happens to me, 98 00:05:49,360 --> 00:05:52,400 Speaker 1: those documents will never be back at port. And I 99 00:05:52,480 --> 00:05:55,240 Speaker 1: get the feeling that this is kind of the mentality 100 00:05:55,440 --> 00:05:59,080 Speaker 1: that's gone on here, about shifting boxes from a bedroom 101 00:05:59,120 --> 00:06:03,320 Speaker 1: to a bathroom to Bedminster, keeping them on the go constantly, 102 00:06:03,440 --> 00:06:04,640 Speaker 1: never getting into port. 103 00:06:05,279 --> 00:06:08,400 Speaker 3: There's a lot of information in here that appears to 104 00:06:08,480 --> 00:06:13,480 Speaker 3: be coming from Trump's lawyer, Evan Corkran, who's identified as 105 00:06:13,720 --> 00:06:18,280 Speaker 3: lawyer number one. The Special Council has notes from Torcrene 106 00:06:18,520 --> 00:06:22,720 Speaker 3: and a detailed voice memo from a key period in 107 00:06:22,760 --> 00:06:27,039 Speaker 3: which he was recounting the team's private deliberations, and it's 108 00:06:27,080 --> 00:06:30,520 Speaker 3: evidence that the prosecutor got because the judge pierced the 109 00:06:30,560 --> 00:06:34,680 Speaker 3: attorney client privilege due to the crime fraud exception. And 110 00:06:34,720 --> 00:06:37,520 Speaker 3: I believe that some of Trump's lawyers have referenced that 111 00:06:37,760 --> 00:06:40,760 Speaker 3: piercing of attorney client privilege in interviews. 112 00:06:41,240 --> 00:06:44,159 Speaker 5: Of all the issues out there, that's the one to 113 00:06:44,160 --> 00:06:47,400 Speaker 5: pay attention to with the most focused at the beginning. 114 00:06:47,800 --> 00:06:51,159 Speaker 5: So the crime fraud exception has been an exception created 115 00:06:51,200 --> 00:06:54,880 Speaker 5: by the court and written into the roles of attorney ethics. 116 00:06:55,120 --> 00:06:58,039 Speaker 5: That all fifty states have different ethics rules, but they 117 00:06:58,080 --> 00:07:00,880 Speaker 5: basically all say the same thing, which is, there is 118 00:07:00,920 --> 00:07:04,280 Speaker 5: an exception to the attorney client privilege when the attorney 119 00:07:04,360 --> 00:07:07,120 Speaker 5: is part of an ongoing crime or a member of 120 00:07:07,160 --> 00:07:11,840 Speaker 5: a conspiracy, then the privilege does not exist. That The 121 00:07:11,960 --> 00:07:15,960 Speaker 5: issue that percolates up in cases that involve the crime 122 00:07:16,000 --> 00:07:20,520 Speaker 5: fraud exception is is that the government sometimes makes mistakes 123 00:07:20,640 --> 00:07:24,240 Speaker 5: in assessing what the degree of culpability of the attorney is. 124 00:07:25,080 --> 00:07:28,120 Speaker 5: In a mafia case, when an attorney allows his office 125 00:07:28,240 --> 00:07:31,400 Speaker 5: or her office to be used expressly for the purpose 126 00:07:31,440 --> 00:07:34,720 Speaker 5: of illegal conduct, that's easy to prove. But when an 127 00:07:34,720 --> 00:07:38,200 Speaker 5: attorney is simply giving a client advice on how to 128 00:07:38,280 --> 00:07:41,720 Speaker 5: deal with charges against them or their criminal activity that 129 00:07:41,760 --> 00:07:45,560 Speaker 5: the government doesn't yet know about. It gets somewhat dice these. 130 00:07:45,800 --> 00:07:48,480 Speaker 5: Of all the issues, that's the one to pay attention, 131 00:07:48,760 --> 00:07:51,840 Speaker 5: because if the criminal charges get dismissed, it'll be dismissed 132 00:07:51,880 --> 00:07:54,760 Speaker 5: on that basis. If they don't get dismissed, it'll be 133 00:07:54,760 --> 00:07:58,760 Speaker 5: an ongoing issue for appeal. I don't think it'll happen, 134 00:07:58,920 --> 00:08:02,080 Speaker 5: but I wouldn't rule out the possibility. And the reason 135 00:08:02,080 --> 00:08:04,440 Speaker 5: why I don't think it'll happen is because I think 136 00:08:04,480 --> 00:08:09,320 Speaker 5: this particular special Council was very cautious and how they 137 00:08:09,360 --> 00:08:13,160 Speaker 5: approached this issue and every other issue that's been involved 138 00:08:13,360 --> 00:08:17,160 Speaker 5: in both grand juries. Nonetheless, you never know what all 139 00:08:17,200 --> 00:08:19,760 Speaker 5: the facts are at this point that we're talking about, 140 00:08:19,880 --> 00:08:22,840 Speaker 5: so I leave the door open to it being a possibility. 141 00:08:23,800 --> 00:08:29,040 Speaker 3: Now, Trump's allies and Trump himself has floated this defense 142 00:08:29,120 --> 00:08:33,920 Speaker 3: that he had already used his presidential powers to declassify documents. 143 00:08:34,040 --> 00:08:36,600 Speaker 3: And you know, some of the things he said about 144 00:08:36,760 --> 00:08:41,320 Speaker 3: declassifying documents seem ludicrous. But could that be part of 145 00:08:41,320 --> 00:08:42,520 Speaker 3: his defense anyway? 146 00:08:43,040 --> 00:08:46,800 Speaker 5: Well, you know, I think because the uniqueness of this case. 147 00:08:46,840 --> 00:08:50,120 Speaker 5: They could try to advance it as a defense, but 148 00:08:50,280 --> 00:08:52,800 Speaker 5: to me, the biggest barrier to get that defense to 149 00:08:52,840 --> 00:08:56,360 Speaker 5: even be considered by a jury. To paraphrase an old 150 00:08:56,440 --> 00:08:59,400 Speaker 5: movie with Tom Cruise, show me the money, because if 151 00:08:59,440 --> 00:09:03,119 Speaker 5: you're in a through that defense then produced a document 152 00:09:03,400 --> 00:09:07,160 Speaker 5: that was filed in official channels that shows that you 153 00:09:07,200 --> 00:09:10,800 Speaker 5: gave a blanket declassification. And you can't just do that 154 00:09:10,920 --> 00:09:13,920 Speaker 5: with you the word of mouth, Hey I declassified this. 155 00:09:14,120 --> 00:09:16,520 Speaker 5: There has to be a process that was followed or 156 00:09:16,559 --> 00:09:19,160 Speaker 5: a memorandum out there somewhere, and none of that has 157 00:09:19,240 --> 00:09:20,200 Speaker 5: yet been produced. 158 00:09:20,520 --> 00:09:23,720 Speaker 3: What do you think about the Special Council's decision to 159 00:09:23,760 --> 00:09:27,960 Speaker 3: bring this indictment before a Florida grand jury rather than 160 00:09:28,000 --> 00:09:29,320 Speaker 3: a DC grand jury. 161 00:09:29,679 --> 00:09:32,920 Speaker 5: What the Special Council has done, in the best educated 162 00:09:32,960 --> 00:09:35,240 Speaker 5: guess I can give, is that they determined that when 163 00:09:35,280 --> 00:09:39,480 Speaker 5: the documents were transported to Florida that occurred when Donald 164 00:09:39,480 --> 00:09:42,559 Speaker 5: Trump was still President of the United States, holding those 165 00:09:42,600 --> 00:09:46,200 Speaker 5: documents in his possession after he left office is the 166 00:09:46,240 --> 00:09:50,080 Speaker 5: centerpiece of the crime that's charged, and the only trial 167 00:09:50,240 --> 00:09:53,720 Speaker 5: venue under the US Constitution that would be available would 168 00:09:53,760 --> 00:09:56,480 Speaker 5: be the United States District courts in the state of 169 00:09:56,480 --> 00:10:00,120 Speaker 5: Florida and not in Washington, d C. So I think 170 00:10:00,400 --> 00:10:04,000 Speaker 5: what the Special Council did by creating a second grand 171 00:10:04,120 --> 00:10:08,240 Speaker 5: jury in Florida was to safeguard a criminal trial against 172 00:10:08,400 --> 00:10:11,760 Speaker 5: unnecessary appellate issues that would otherwise arise. 173 00:10:11,920 --> 00:10:14,640 Speaker 3: Do you think it'll be harder for the Special Council 174 00:10:14,960 --> 00:10:18,840 Speaker 3: to select a jury in Florida, a state that Trump won. 175 00:10:19,280 --> 00:10:24,440 Speaker 1: I don't really like to presuppose that you can't find 176 00:10:24,480 --> 00:10:27,600 Speaker 1: a fair jury in a state simply because there's a 177 00:10:27,679 --> 00:10:31,800 Speaker 1: popular person on trial. Let's remember that there were people 178 00:10:31,840 --> 00:10:34,840 Speaker 1: on the jury of Paul Manifort that voted for Trump. 179 00:10:35,000 --> 00:10:39,400 Speaker 1: That will be a lifelong Republicans who convicted Paul Manifort. Now, 180 00:10:39,480 --> 00:10:42,800 Speaker 1: Manafort wasn't a popular person in the way of the president, 181 00:10:42,880 --> 00:10:46,599 Speaker 1: but certainly the political pressures were out there to support Manifort. 182 00:10:46,679 --> 00:10:49,280 Speaker 1: I would hope that you find twelve jurors in an 183 00:10:49,280 --> 00:10:52,160 Speaker 1: equal number of alternatives that truly will look at the 184 00:10:52,400 --> 00:10:54,920 Speaker 1: evidence in a fair and impartial manner and follow the 185 00:10:55,000 --> 00:10:57,600 Speaker 1: judge's instructions on the law. But it may be more 186 00:10:57,640 --> 00:11:00,240 Speaker 1: difficult to get to those twelves. But that's what the war. 187 00:11:00,400 --> 00:11:04,520 Speaker 3: Your processes for federal Judge Eileen Cannon is going to 188 00:11:04,559 --> 00:11:08,199 Speaker 3: be assigned the case. And she was the judge who 189 00:11:08,240 --> 00:11:12,080 Speaker 3: was appointed as a Special Master to review the material 190 00:11:12,240 --> 00:11:16,920 Speaker 3: seized last year, and she gave some odd, if not 191 00:11:17,240 --> 00:11:20,520 Speaker 3: bizarre rulings and one was thrown out in entirety by 192 00:11:20,520 --> 00:11:23,240 Speaker 3: the Eleventh Circuit. This seems like it's just bad luck 193 00:11:23,320 --> 00:11:27,280 Speaker 3: for the Special Council. But could they somehow get her recused. 194 00:11:27,440 --> 00:11:29,880 Speaker 5: They could move to try to get her recused, but 195 00:11:29,960 --> 00:11:32,880 Speaker 5: I'm not sure they'll do that because the law presumes 196 00:11:32,960 --> 00:11:35,920 Speaker 5: that judges do not act in a political manner, whether 197 00:11:35,960 --> 00:11:38,839 Speaker 5: you agree with their rulings or not. I know that 198 00:11:38,880 --> 00:11:42,440 Speaker 5: the media and the general public has come to believe 199 00:11:42,720 --> 00:11:46,160 Speaker 5: that that's not an accurate statement. And look, in some cases, 200 00:11:46,200 --> 00:11:48,880 Speaker 5: it's not an accurate statement. And part of that is 201 00:11:48,880 --> 00:11:51,880 Speaker 5: the fault of the judges themselves, who engage in public, 202 00:11:52,160 --> 00:11:55,880 Speaker 5: you know, and well known activities, giving speeches, buying closed doors, 203 00:11:56,120 --> 00:12:01,119 Speaker 5: making accusations against others, and you know, having bizarre financial 204 00:12:01,120 --> 00:12:04,880 Speaker 5: and friendly relationships. But simply because a judge had rulings 205 00:12:04,920 --> 00:12:08,960 Speaker 5: that were overturned in the past, isn't a basis for recusal. 206 00:12:09,040 --> 00:12:13,080 Speaker 5: You'd have to find a tie between the judge and 207 00:12:13,320 --> 00:12:16,880 Speaker 5: the defendant some kind of significant nature to even be 208 00:12:16,960 --> 00:12:20,560 Speaker 5: able to convince the judge to recuse themselves, because under 209 00:12:20,600 --> 00:12:22,559 Speaker 5: the law, judge has a duty to serve. 210 00:12:23,280 --> 00:12:27,080 Speaker 3: Is it a problem for the prosecutors if she remains 211 00:12:27,120 --> 00:12:30,200 Speaker 3: on the case, because that Eleventh Circuit panel was really 212 00:12:30,240 --> 00:12:33,120 Speaker 3: critical of her and said she overstepped her bounds in 213 00:12:33,240 --> 00:12:35,520 Speaker 3: exercising jurisdiction. 214 00:12:35,920 --> 00:12:39,040 Speaker 5: It could be a problem for the prosecution. It certainly 215 00:12:39,080 --> 00:12:41,640 Speaker 5: could be. I don't know enough about her for me 216 00:12:41,720 --> 00:12:44,720 Speaker 5: to make a valuation judgment. What I'm going to assume 217 00:12:44,880 --> 00:12:47,280 Speaker 5: happened if she had a defined view of the law 218 00:12:47,760 --> 00:12:52,280 Speaker 5: when she made those rulings, and she issued her decisions 219 00:12:52,360 --> 00:12:55,640 Speaker 5: based on her best efforts as to the defined view 220 00:12:55,679 --> 00:12:59,080 Speaker 5: of the law. You know, she was overturned rather quickly 221 00:12:59,160 --> 00:13:02,600 Speaker 5: and critically by circuit judges, some of whom are known 222 00:13:02,679 --> 00:13:06,080 Speaker 5: for being conservative, and they had at least appointments arising 223 00:13:06,080 --> 00:13:09,559 Speaker 5: out of the Bush administration and even the Trump administration 224 00:13:09,920 --> 00:13:13,200 Speaker 5: on that point. On the other hand, that decision, which 225 00:13:13,240 --> 00:13:16,040 Speaker 5: was highly critical of her, might actually cause her to 226 00:13:16,120 --> 00:13:20,040 Speaker 5: use more circumspection and openness in this particular case. I 227 00:13:20,120 --> 00:13:23,040 Speaker 5: can't really give a comment beyond that at this point. 228 00:13:23,440 --> 00:13:26,840 Speaker 3: So now the timing of the trial. So everyone's wondering, 229 00:13:27,080 --> 00:13:30,400 Speaker 3: could this happen before the presidential election. 230 00:13:31,320 --> 00:13:34,480 Speaker 5: Well, if it doesn't happen before the presidential election, and 231 00:13:34,520 --> 00:13:37,480 Speaker 5: if the next president happens to be Donald Trump, who 232 00:13:37,760 --> 00:13:41,400 Speaker 5: has followed in the tradition of Grover Cleveland with a 233 00:13:41,559 --> 00:13:44,640 Speaker 5: second but non consecutive term, then there won't be a 234 00:13:44,720 --> 00:13:47,360 Speaker 5: trial when he's sitting as president. So I'm not sure 235 00:13:47,360 --> 00:13:49,760 Speaker 5: it'll happen at all. But the earliest that could occur 236 00:13:49,840 --> 00:13:52,679 Speaker 5: then is sometime in twenty twenty nine. You know. Having 237 00:13:52,720 --> 00:13:55,520 Speaker 5: said that, people asked all the time, can someone run 238 00:13:55,640 --> 00:13:58,000 Speaker 5: for president from jail? And the answer is yes. In 239 00:13:58,080 --> 00:14:01,120 Speaker 5: point of fact, Eugene Deb's, a lay leader, did ran 240 00:14:01,160 --> 00:14:04,280 Speaker 5: on the Socialist Party ticket in nineteen twenty when he 241 00:14:04,400 --> 00:14:07,440 Speaker 5: was behind bars after being convicted of violations of the 242 00:14:07,800 --> 00:14:11,920 Speaker 5: Espionage Act. The Constitution only has a standard based on 243 00:14:12,160 --> 00:14:15,640 Speaker 5: age and the fact that you're born in the United States, 244 00:14:15,679 --> 00:14:19,240 Speaker 5: which and regardless of whether Trump's indicted or in jail, 245 00:14:19,400 --> 00:14:22,320 Speaker 5: the Constitution doesn't prevent him from running for office or 246 00:14:22,360 --> 00:14:23,440 Speaker 5: serving an office. 247 00:14:23,640 --> 00:14:27,160 Speaker 3: Jack Smith mentioned a speedy trial. How fast do you 248 00:14:27,200 --> 00:14:28,440 Speaker 3: think they could get to trial? 249 00:14:28,880 --> 00:14:32,520 Speaker 5: You know, if the defense council asked for a speedy trial, 250 00:14:32,720 --> 00:14:34,920 Speaker 5: you could have a trial within a period of a 251 00:14:35,000 --> 00:14:38,280 Speaker 5: month or so in theory. But typically, and I have 252 00:14:38,360 --> 00:14:41,520 Speaker 5: no idea what Trump's defense council would be, but typically 253 00:14:41,880 --> 00:14:44,360 Speaker 5: these kind of cases are dragged out for a while 254 00:14:44,480 --> 00:14:46,880 Speaker 5: and there's not a lot the government can do about that. 255 00:14:47,640 --> 00:14:50,080 Speaker 3: How likely do you think it is that Jack Smith 256 00:14:50,280 --> 00:14:51,480 Speaker 3: would offer Trump a. 257 00:14:51,480 --> 00:14:55,000 Speaker 5: Deal if we weren't talking about a former president in 258 00:14:55,040 --> 00:14:57,120 Speaker 5: a case like this, it would be ripe for a 259 00:14:57,200 --> 00:15:01,320 Speaker 5: deal to be made mishandling classified evidence. In my prior 260 00:15:01,440 --> 00:15:04,080 Speaker 5: time as a trial judge, I can't recall a case 261 00:15:04,160 --> 00:15:07,320 Speaker 5: that actually went the full litigation. I said as a 262 00:15:07,400 --> 00:15:10,000 Speaker 5: judge on four cases that ended up being a deal 263 00:15:10,200 --> 00:15:13,040 Speaker 5: at the end of the day. So the unlikelihood of 264 00:15:13,080 --> 00:15:16,960 Speaker 5: a deal actually going forward is that Donald Trump doesn't 265 00:15:17,000 --> 00:15:20,400 Speaker 5: seem to be the kind of defendant who wants to 266 00:15:20,480 --> 00:15:23,920 Speaker 5: concede that he committed a crime or have done any wrongdoing, 267 00:15:24,400 --> 00:15:28,760 Speaker 5: even if there's no jail time involved. And given his 268 00:15:28,960 --> 00:15:31,960 Speaker 5: public statements and the fact that he's running for president 269 00:15:32,080 --> 00:15:35,120 Speaker 5: and has claimed I never did anything wrong, I think 270 00:15:35,160 --> 00:15:38,080 Speaker 5: that it's really unlikely that the defense would enter into 271 00:15:38,080 --> 00:15:39,400 Speaker 5: plean negotiations. 272 00:15:39,680 --> 00:15:42,120 Speaker 3: What about Trump's aid? Do you think they'll offer him 273 00:15:42,160 --> 00:15:42,520 Speaker 3: a deal? 274 00:15:42,800 --> 00:15:46,840 Speaker 1: Oh? Yes, you know, the case is probably very strong 275 00:15:46,920 --> 00:15:49,920 Speaker 1: on some of the charges, maybe not strong on all 276 00:15:49,960 --> 00:15:53,280 Speaker 1: of those. But a case always becomes stronger when a 277 00:15:53,320 --> 00:15:57,720 Speaker 1: co conspirator splits off from the conspiracy, leads guilty, and 278 00:15:57,800 --> 00:16:00,680 Speaker 1: agrees to testify against the remains members. 279 00:16:00,960 --> 00:16:03,040 Speaker 3: So I think there will be And do you think 280 00:16:03,040 --> 00:16:06,600 Speaker 3: we'll learn anything more when Trump goes to court on Tuesday? 281 00:16:06,960 --> 00:16:10,120 Speaker 5: Most importantly to me, we don't know what the status 282 00:16:10,200 --> 00:16:12,880 Speaker 5: of the grand jury meeting in Washington, d C. Is 283 00:16:12,920 --> 00:16:16,320 Speaker 5: with the January sixth type charges. And I think we'll 284 00:16:16,320 --> 00:16:20,720 Speaker 5: get a better picture of the January sixth grand jury 285 00:16:20,840 --> 00:16:24,120 Speaker 5: on Tuesday because I have this suspicion in my mind 286 00:16:24,240 --> 00:16:27,760 Speaker 5: that the trial judge, when they start talking about scheduling, 287 00:16:27,800 --> 00:16:31,480 Speaker 5: will ask the question, well, what about the grand jury 288 00:16:31,520 --> 00:16:34,880 Speaker 5: in Washington, d C. And the prosecutors will probably feel 289 00:16:34,920 --> 00:16:37,480 Speaker 5: compelled to answer and give some timeline to that. 290 00:16:38,000 --> 00:16:42,000 Speaker 3: Finally, you know, Jack Smith's statement in just about two 291 00:16:42,040 --> 00:16:45,320 Speaker 3: and a half minutes hit on a lot of important points, 292 00:16:45,600 --> 00:16:48,680 Speaker 3: one being that he said, we have one set of 293 00:16:48,760 --> 00:16:52,040 Speaker 3: laws in this country and they apply to everyone. In 294 00:16:52,120 --> 00:16:53,960 Speaker 3: other words, no one's above the law. 295 00:16:54,600 --> 00:16:56,800 Speaker 5: Yeah, you know, some members of the House and the 296 00:16:56,840 --> 00:17:00,560 Speaker 5: Senate and other Republicans who are allied with Donald Trump 297 00:17:00,560 --> 00:17:02,680 Speaker 5: has said this kind of thing doesn't go to trial. 298 00:17:02,760 --> 00:17:06,240 Speaker 5: This is, you know, targeting the former president. But earlier 299 00:17:06,320 --> 00:17:10,119 Speaker 5: this week, a retired Air Force lieutenant colonel went to 300 00:17:10,280 --> 00:17:13,439 Speaker 5: US district court and was sentenced to three years for 301 00:17:13,560 --> 00:17:17,760 Speaker 5: the mishandling of classified data data that he kept past 302 00:17:17,880 --> 00:17:21,320 Speaker 5: his retirement in his possession. This was not a case 303 00:17:21,520 --> 00:17:23,680 Speaker 5: that we know of where he was trying to sell 304 00:17:23,760 --> 00:17:27,200 Speaker 5: classified data to the Chinese. He just collected a lot 305 00:17:27,200 --> 00:17:30,159 Speaker 5: of it and safeguarded it for whatever reason in his 306 00:17:30,240 --> 00:17:33,040 Speaker 5: own possessions. And he's not allowed to do that under 307 00:17:33,080 --> 00:17:34,920 Speaker 5: the law. And he ended up getting three years in 308 00:17:35,040 --> 00:17:38,160 Speaker 5: jail for breaking that laws. So I think when I hear, 309 00:17:38,760 --> 00:17:41,840 Speaker 5: you know, from Trump's allies, this is targeting the president. 310 00:17:41,920 --> 00:17:45,720 Speaker 5: This hasn't happened before. Yes, it has to ordinary citizens. 311 00:17:45,720 --> 00:17:48,200 Speaker 5: And I think the most important point to take away 312 00:17:48,240 --> 00:17:51,000 Speaker 5: from a retired Air Force lieutenant colonel is, here's a 313 00:17:51,040 --> 00:17:53,879 Speaker 5: member of the United States government who fell under the 314 00:17:53,920 --> 00:17:57,280 Speaker 5: command of a commander in chief at one point, who's 315 00:17:57,320 --> 00:17:59,760 Speaker 5: going to jail for three years. And if you don't 316 00:17:59,800 --> 00:18:04,199 Speaker 5: take Donald Trump to trial for this, you're excusing a 317 00:18:04,320 --> 00:18:07,280 Speaker 5: senior commander in this case, the commander in chief, from 318 00:18:07,359 --> 00:18:12,520 Speaker 5: criminal liability and prosecuting junior individuals who fell under his 319 00:18:12,640 --> 00:18:16,680 Speaker 5: command for an identical crime. And that plays into the narrative. 320 00:18:16,760 --> 00:18:19,359 Speaker 5: I hear over and over again from my students and 321 00:18:19,400 --> 00:18:22,000 Speaker 5: see from the general public that we have two kinds 322 00:18:22,000 --> 00:18:24,640 Speaker 5: of criminal law in this country, one for the wealthy 323 00:18:24,680 --> 00:18:26,760 Speaker 5: and powerful and one for everyone else. 324 00:18:27,080 --> 00:18:30,800 Speaker 3: That's such a compelling comparison. Thanks so much, josh That's 325 00:18:30,840 --> 00:18:34,679 Speaker 3: Professor Joshua Castenberg of the University of New Mexico Law School. 326 00:18:36,320 --> 00:18:39,760 Speaker 3: If it seems like Supreme Court arguments are going longer 327 00:18:39,800 --> 00:18:43,280 Speaker 3: than usual, it's because they are. Eighty percent of Supreme 328 00:18:43,280 --> 00:18:46,480 Speaker 3: Court arguments went over there a lot of time. This term. 329 00:18:46,720 --> 00:18:50,040 Speaker 3: Gone are the days of Chief Justice William Renquist, who 330 00:18:50,040 --> 00:18:53,520 Speaker 3: would cut off people mid syllable the very millisecond the 331 00:18:53,680 --> 00:18:56,840 Speaker 3: argument was over. That's according to Haines and Boone partner 332 00:18:56,960 --> 00:19:00,440 Speaker 3: Daniel Geyser. Joining me is Bloomberg Law. Supreme Court reporter 333 00:19:00,600 --> 00:19:05,800 Speaker 3: Kimberly Strawbridge Robinson, who's studied and written about this extended 334 00:19:06,040 --> 00:19:09,760 Speaker 3: argument time. Some of these arguments seem to go on 335 00:19:10,000 --> 00:19:13,760 Speaker 3: and on and on. What's the average time these days 336 00:19:13,800 --> 00:19:16,040 Speaker 3: compared to what the allotted time is. 337 00:19:17,080 --> 00:19:20,520 Speaker 4: Well, you know, back in the day, particularly when Chief 338 00:19:20,600 --> 00:19:23,400 Speaker 4: Justice Rinquist was in charge, but also the early years 339 00:19:23,440 --> 00:19:27,240 Speaker 4: of Chief Justice John Roberts, you know, cases would average 340 00:19:27,359 --> 00:19:30,080 Speaker 4: about sixty minutes. There were some that would go a 341 00:19:30,119 --> 00:19:34,080 Speaker 4: little bit longer they were scheduled to go over. Now though, 342 00:19:34,200 --> 00:19:38,400 Speaker 4: you know, we have cases that are going over about 343 00:19:38,440 --> 00:19:42,399 Speaker 4: thirty minutes on average, and that has led to over 344 00:19:42,440 --> 00:19:45,879 Speaker 4: twenty eight hours of extra argument time on top of 345 00:19:45,920 --> 00:19:48,080 Speaker 4: the sixty three that they've justice to the plans, a 346 00:19:48,119 --> 00:19:51,560 Speaker 4: really significant amount of time that they're spending on these arguments. 347 00:19:51,640 --> 00:19:53,920 Speaker 3: Do they have little lights that remind them when their 348 00:19:53,960 --> 00:19:54,560 Speaker 3: time is up? 349 00:19:54,600 --> 00:19:57,880 Speaker 4: Still, they do have lights that will tell the advocate 350 00:19:58,040 --> 00:20:00,840 Speaker 4: you have, you know, five minutes left, you have one 351 00:20:00,880 --> 00:20:03,760 Speaker 4: minute left. But then the court has added on this 352 00:20:03,920 --> 00:20:07,200 Speaker 4: extra round of questioning where each justice gets to ask, 353 00:20:07,359 --> 00:20:10,080 Speaker 4: you know, any questions that they still have lingering, and 354 00:20:10,160 --> 00:20:12,240 Speaker 4: that is not timed and that's where we see a 355 00:20:12,240 --> 00:20:16,000 Speaker 4: lot of this extra time happening is after the advocate 356 00:20:16,040 --> 00:20:18,440 Speaker 4: has sort of gotten there as thirty minutes or so, 357 00:20:18,840 --> 00:20:21,440 Speaker 4: and then you know, you throw on an extra nine 358 00:20:21,520 --> 00:20:23,679 Speaker 4: rounds of questioning can get pretty timely. 359 00:20:24,160 --> 00:20:28,119 Speaker 3: And you talk to a lawyer who said that Chief 360 00:20:28,240 --> 00:20:31,960 Speaker 3: Justice Renquist would actually cut people off mid syllable. 361 00:20:32,840 --> 00:20:35,359 Speaker 4: That's right. I mean, when that red light went on, 362 00:20:35,880 --> 00:20:38,120 Speaker 4: you were done. You could ask for some extra time 363 00:20:38,160 --> 00:20:40,840 Speaker 4: if you wanted to finish your sentence, but three words 364 00:20:40,880 --> 00:20:43,640 Speaker 4: maybe you would get out. Otherwise you were not being 365 00:20:43,800 --> 00:20:46,800 Speaker 4: in the good graces of the justices. But that's really 366 00:20:46,880 --> 00:20:47,639 Speaker 4: changed a lot. 367 00:20:47,920 --> 00:20:48,160 Speaker 2: Now. 368 00:20:48,280 --> 00:20:52,600 Speaker 4: Now you'll see advocates go on for sentences, which doesn't 369 00:20:52,600 --> 00:20:55,119 Speaker 4: sound like a lot, but in the Supreme Court, in 370 00:20:55,119 --> 00:20:56,320 Speaker 4: that court room, it is. 371 00:20:56,600 --> 00:20:59,320 Speaker 3: So explain why this change came about. 372 00:21:00,000 --> 00:21:03,040 Speaker 4: Well, it really is an effect of the pandemic. So 373 00:21:03,800 --> 00:21:06,720 Speaker 4: when March twenty twenty year olled around, the court had 374 00:21:06,760 --> 00:21:10,960 Speaker 4: some more arguments scheduled, but they canceled them and pretty 375 00:21:11,040 --> 00:21:15,359 Speaker 4: quickly switched to hearing arguments over the phone. And it 376 00:21:15,440 --> 00:21:19,080 Speaker 4: was pretty clear that just you know, having nine people 377 00:21:19,280 --> 00:21:21,879 Speaker 4: free for all over the phone was not going to 378 00:21:21,920 --> 00:21:24,679 Speaker 4: be a workable way to conduct these arguments. And so 379 00:21:24,840 --> 00:21:27,920 Speaker 4: it started going in order of seniority, starting with the 380 00:21:27,960 --> 00:21:31,040 Speaker 4: Chief Justice, and then sort of going on through the 381 00:21:31,080 --> 00:21:35,200 Speaker 4: associate justices, and when the court came back, I guess 382 00:21:35,200 --> 00:21:37,640 Speaker 4: they found something that they liked about it, because they 383 00:21:37,800 --> 00:21:40,840 Speaker 4: sort of tacked it on to what they had been 384 00:21:40,880 --> 00:21:43,560 Speaker 4: doing before. And so now the attorneys that I spoke 385 00:21:43,600 --> 00:21:46,480 Speaker 4: to that it's sort of a hybrid system now where 386 00:21:46,520 --> 00:21:49,520 Speaker 4: there's this you know, free for all, any justice can 387 00:21:49,600 --> 00:21:52,159 Speaker 4: jump in, and then there's this extra question and you know, 388 00:21:52,240 --> 00:21:55,119 Speaker 4: that's what's been leading to these really long arguments. 389 00:21:55,160 --> 00:21:59,320 Speaker 3: And it was a pandemic that led to that moment 390 00:21:59,440 --> 00:22:03,119 Speaker 3: where Justice Clarence Thomas spoke. All of a sudden, it 391 00:22:03,280 --> 00:22:07,800 Speaker 3: seemed like everyone stopped to listen, right, And you. 392 00:22:07,760 --> 00:22:10,840 Speaker 4: Know, again I spoke with some advocates who said, it's 393 00:22:10,920 --> 00:22:15,440 Speaker 4: not trivial to hear from Justice Thomas. He has been 394 00:22:15,520 --> 00:22:18,560 Speaker 4: on the course the longest of any justice currently serving, 395 00:22:19,080 --> 00:22:23,359 Speaker 4: and he asked a lot of really intelligent and probing questions. 396 00:22:23,400 --> 00:22:25,560 Speaker 4: And what we saw during the pandemic, and what we 397 00:22:25,800 --> 00:22:28,919 Speaker 4: continued to see is that now he's participating in a 398 00:22:28,920 --> 00:22:31,560 Speaker 4: lot of the questions that the other justices asked are 399 00:22:31,600 --> 00:22:35,040 Speaker 4: building off of questions from Justice Thomas. So you know, 400 00:22:35,200 --> 00:22:38,640 Speaker 4: adding in an additional justice proved to be beneficial for 401 00:22:38,680 --> 00:22:41,600 Speaker 4: the advocates and I guess for the justice themselves. 402 00:22:41,840 --> 00:22:45,320 Speaker 3: So do the advocates like it? I mean, it's more 403 00:22:45,359 --> 00:22:48,959 Speaker 3: time for the justices to ask far ranging questions. Do 404 00:22:49,040 --> 00:22:51,280 Speaker 3: they like that or is it just exhausting? 405 00:22:52,640 --> 00:22:55,879 Speaker 4: Nearly unanimously, all of the advocates that I've spoken to 406 00:22:56,160 --> 00:23:00,040 Speaker 4: really really like the extra time. They say that the 407 00:23:00,040 --> 00:23:02,800 Speaker 4: whole point of oral arguments is to answer the questions 408 00:23:02,840 --> 00:23:06,040 Speaker 4: from the justices, So being able to have more time 409 00:23:06,160 --> 00:23:09,920 Speaker 4: to answer their question is helpful and also is led 410 00:23:09,960 --> 00:23:13,760 Speaker 4: to less interruptions. You know, the justices don't feel like 411 00:23:13,800 --> 00:23:16,640 Speaker 4: they have to interrupt advocates have to cut them off 412 00:23:16,640 --> 00:23:18,679 Speaker 4: in their answer to that other justices or they run 413 00:23:18,720 --> 00:23:20,920 Speaker 4: out of time. Now they can sort of wait. If 414 00:23:20,920 --> 00:23:23,200 Speaker 4: time runs out, they can always ask the question in 415 00:23:23,240 --> 00:23:25,960 Speaker 4: their follow up. So from the advocates point of view, 416 00:23:25,960 --> 00:23:29,480 Speaker 4: it's led to a more substance of conversation. But really 417 00:23:29,560 --> 00:23:31,560 Speaker 4: how that plays out is sort of yet to be 418 00:23:31,640 --> 00:23:34,240 Speaker 4: seen in the opinions themselves. 419 00:23:34,000 --> 00:23:36,840 Speaker 3: And some advocates told you they believe it's led to 420 00:23:37,119 --> 00:23:41,120 Speaker 3: more concurring and dissenting opinions. 421 00:23:41,440 --> 00:23:44,480 Speaker 4: Yeah, just that the idea that you know, now a 422 00:23:44,680 --> 00:23:48,080 Speaker 4: justice can really probe an issue even if no other 423 00:23:48,240 --> 00:23:50,560 Speaker 4: justice seems really interested in it. You know, if you 424 00:23:50,640 --> 00:23:53,280 Speaker 4: have an idiosyncratic view of the of the law or 425 00:23:53,359 --> 00:23:56,000 Speaker 4: the issues of the fact, you can ask them. And 426 00:23:56,119 --> 00:23:59,000 Speaker 4: being able to flush that in the arguments has presumably 427 00:23:59,080 --> 00:24:01,800 Speaker 4: led to more of the concurring opinions where you know, 428 00:24:02,240 --> 00:24:04,920 Speaker 4: a justice can rank for themselves or one other justice 429 00:24:05,160 --> 00:24:07,480 Speaker 4: on a pretty small issue. 430 00:24:07,720 --> 00:24:12,120 Speaker 3: The arguments are about the justices asking questions, but while 431 00:24:12,160 --> 00:24:16,960 Speaker 3: they're asking questions, they're presenting their opinions and you know, 432 00:24:17,160 --> 00:24:19,800 Speaker 3: perhaps trying to persuade other justices. 433 00:24:20,240 --> 00:24:23,920 Speaker 4: Right, So listeners may not know, but the oral arguments 434 00:24:23,960 --> 00:24:26,960 Speaker 4: are the first opportunities that the justices get to talk 435 00:24:27,000 --> 00:24:30,120 Speaker 4: about the case since they granted it and they've read 436 00:24:30,160 --> 00:24:32,240 Speaker 4: all the briefs. This is they're you know, the first 437 00:24:32,240 --> 00:24:34,560 Speaker 4: time to interact and really see the way that their 438 00:24:34,560 --> 00:24:37,000 Speaker 4: colleagues are thinking about it. So we see a lot 439 00:24:37,040 --> 00:24:40,280 Speaker 4: of times, you know, other justices are not really just 440 00:24:40,400 --> 00:24:43,560 Speaker 4: asking the advocated question, but they're sort of testing out 441 00:24:43,600 --> 00:24:46,160 Speaker 4: the waters, you know, of the other justices to see 442 00:24:46,200 --> 00:24:48,480 Speaker 4: is this is this something that you're thinking about too? 443 00:24:48,600 --> 00:24:52,320 Speaker 4: And you know, Justice Bryer was in particular a person 444 00:24:52,359 --> 00:24:54,760 Speaker 4: who would ask a question and then sort of lean 445 00:24:54,840 --> 00:24:56,959 Speaker 4: forward on the bench and look around to see if 446 00:24:56,960 --> 00:24:59,840 Speaker 4: it was well received by his other justices. But the 447 00:25:00,119 --> 00:25:02,040 Speaker 4: other members of the court do that as well to 448 00:25:02,119 --> 00:25:02,639 Speaker 4: some extent. 449 00:25:03,359 --> 00:25:05,840 Speaker 3: You talked about this in your in your column, But 450 00:25:05,880 --> 00:25:08,200 Speaker 3: I already knew who was the longest talker, because it's 451 00:25:08,200 --> 00:25:12,800 Speaker 3: pretty obvious that it's Justice Katanji Brown Jackson. But by 452 00:25:12,840 --> 00:25:13,359 Speaker 3: how much? 453 00:25:14,720 --> 00:25:18,640 Speaker 4: By a lot? And so you know, Adam Feldman over 454 00:25:18,680 --> 00:25:22,560 Speaker 4: at Empirical Gotus really broke down the numbers and said 455 00:25:22,600 --> 00:25:26,560 Speaker 4: that Justice Jackson spoke hundreds of wards more than the 456 00:25:26,600 --> 00:25:30,480 Speaker 4: next closest justice. And that's really unique, not just because 457 00:25:30,680 --> 00:25:33,040 Speaker 4: you know she's a justice who's speaking a lot, but 458 00:25:33,200 --> 00:25:36,480 Speaker 4: because she's a junior justice, and typically we just don't 459 00:25:36,480 --> 00:25:39,080 Speaker 4: see that. We see and junior justice sort of step 460 00:25:39,160 --> 00:25:40,840 Speaker 4: back and kind of get a lay of the land 461 00:25:41,160 --> 00:25:44,040 Speaker 4: before they feel more comfortable talking. But that has not 462 00:25:44,160 --> 00:25:48,879 Speaker 4: been herm at all. She's she's very vocal in oral arguments. 463 00:25:49,080 --> 00:25:51,439 Speaker 3: And I think we spoke about this when she first 464 00:25:51,560 --> 00:25:55,640 Speaker 3: came on the bench that she started asking questions at 465 00:25:55,640 --> 00:26:00,199 Speaker 3: the very end which the Chief didn't approve of a right. 466 00:26:00,280 --> 00:26:02,639 Speaker 4: I mean, the justices is sort of tinkered with or 467 00:26:02,920 --> 00:26:05,960 Speaker 4: arguments here and there, you know, over the last decade 468 00:26:06,040 --> 00:26:08,800 Speaker 4: or so. And one of the sort of informal rules 469 00:26:08,840 --> 00:26:10,520 Speaker 4: that they seem to have said is that they're not 470 00:26:10,560 --> 00:26:13,720 Speaker 4: going to ask advocates questions during rebuttal time. So that's 471 00:26:13,800 --> 00:26:17,640 Speaker 4: after the other side has gotten up and the petitioner 472 00:26:17,680 --> 00:26:19,480 Speaker 4: gets to sort of give us the maation of the 473 00:26:19,520 --> 00:26:22,560 Speaker 4: case a very brief time. And you know, we noticed 474 00:26:22,560 --> 00:26:25,760 Speaker 4: that the justices weren't asking questions. But early on, you know, 475 00:26:26,000 --> 00:26:29,199 Speaker 4: Justice Jackson did start asking questions and I was in 476 00:26:29,200 --> 00:26:31,040 Speaker 4: the courtroom and you could really see all the other 477 00:26:31,200 --> 00:26:34,800 Speaker 4: justices kind of taken aback, and you know, who knows 478 00:26:34,840 --> 00:26:37,320 Speaker 4: what happened after that, But we did not get any 479 00:26:37,359 --> 00:26:38,800 Speaker 4: more questions during rebuttal. 480 00:26:39,640 --> 00:26:42,919 Speaker 3: And did Adam Feldman find that the liberal justices in 481 00:26:43,040 --> 00:26:46,240 Speaker 3: general talked more than the conservatives? 482 00:26:46,359 --> 00:26:49,719 Speaker 4: Yes, And so you know, Justice sonya such who we are, 483 00:26:49,760 --> 00:26:53,000 Speaker 4: and Alega Kagan, the three liberal justices were in the 484 00:26:53,840 --> 00:26:57,160 Speaker 4: second and third spots. So you know, it's an interesting 485 00:26:57,240 --> 00:27:00,399 Speaker 4: data point. It's hard to see with the casees that 486 00:27:00,440 --> 00:27:04,040 Speaker 4: are remaining that that's going to wind up with there 487 00:27:04,080 --> 00:27:07,800 Speaker 4: being more liberal results. But again, it could be that 488 00:27:07,840 --> 00:27:11,520 Speaker 4: we see them writing concurring and dissenting opinions that you know, 489 00:27:11,560 --> 00:27:14,119 Speaker 4: are really detailed and really examine a lot of different 490 00:27:14,160 --> 00:27:15,000 Speaker 4: areas to law. 491 00:27:15,640 --> 00:27:17,359 Speaker 3: I like it when we hear about, you know, the 492 00:27:17,440 --> 00:27:20,480 Speaker 3: personal lives of the advocates and how this affects them. 493 00:27:20,760 --> 00:27:24,440 Speaker 3: Tell us what happened with these those two big affirmative 494 00:27:24,440 --> 00:27:27,760 Speaker 3: action cases that seem to go on forever. Tell us 495 00:27:27,760 --> 00:27:30,000 Speaker 3: about that, and what happened with the solicitor general. 496 00:27:31,040 --> 00:27:36,360 Speaker 4: Right, So the Solicitor General, Elizabeth free Lagger, she's pretty young. 497 00:27:36,440 --> 00:27:39,320 Speaker 4: She has young kids who you know, are still in school, 498 00:27:39,960 --> 00:27:42,280 Speaker 4: and these are big arguments. It was one of her 499 00:27:42,440 --> 00:27:47,240 Speaker 4: first representing the federal government as the US Solicitor General, 500 00:27:47,640 --> 00:27:51,240 Speaker 4: and so her husband and their mother came to watch 501 00:27:51,280 --> 00:27:55,720 Speaker 4: the argument. But the arguments that day went on very long. 502 00:27:55,760 --> 00:27:58,040 Speaker 4: They were already scheduled to go over, but you know, 503 00:27:58,080 --> 00:28:01,679 Speaker 4: they didn't end until three, which is about three hours 504 00:28:01,760 --> 00:28:05,760 Speaker 4: later than then arguments typically do. And they sort of 505 00:28:05,760 --> 00:28:07,680 Speaker 4: had to scramble to figure out, well, it's going to 506 00:28:07,720 --> 00:28:15,000 Speaker 4: go pick up the kids. So every everyone's just like just. 507 00:28:15,040 --> 00:28:18,760 Speaker 3: Like us, dud uh huh, so except mine is so big. Now, 508 00:28:18,840 --> 00:28:23,159 Speaker 3: I mean, I'll be picking kids soon. Okay, so you know, 509 00:28:23,680 --> 00:28:26,720 Speaker 3: the justices have read the briefs, they know the law. 510 00:28:27,560 --> 00:28:32,199 Speaker 3: Do the people you talk to think that arguments really 511 00:28:32,480 --> 00:28:33,840 Speaker 3: can change their minds? 512 00:28:35,480 --> 00:28:38,160 Speaker 4: I think it really depends on the issue, and it 513 00:28:38,320 --> 00:28:41,200 Speaker 4: depends a lot on sort of the facts of the case. 514 00:28:41,480 --> 00:28:43,240 Speaker 4: You know, there there are going to be some issues 515 00:28:43,400 --> 00:28:46,200 Speaker 4: that justices have thought about so much. I'm thinking about 516 00:28:46,240 --> 00:28:49,200 Speaker 4: the affirmative action cases. It's hard for me to think 517 00:28:49,240 --> 00:28:52,760 Speaker 4: that the justices learned anything in that argument or hurt 518 00:28:52,800 --> 00:28:55,800 Speaker 4: anything in the argument that's gonna, you know, cause them 519 00:28:55,800 --> 00:28:58,680 Speaker 4: to vote to a whole's affirmative action programs when they 520 00:28:58,680 --> 00:29:00,760 Speaker 4: would have voted the other way. But you know, on 521 00:29:00,840 --> 00:29:03,560 Speaker 4: the margins, it can make a difference, sort of. I 522 00:29:03,600 --> 00:29:06,040 Speaker 4: talked to one advocate who talked about sort of a 523 00:29:06,200 --> 00:29:11,000 Speaker 4: soft landing. If you can see that you're not really 524 00:29:11,200 --> 00:29:13,800 Speaker 4: making a winning argument to the justices, they're not really 525 00:29:13,840 --> 00:29:16,440 Speaker 4: receiving it, you can do something to kind of temper 526 00:29:16,640 --> 00:29:19,960 Speaker 4: the kind of loss that you might have. So there 527 00:29:20,000 --> 00:29:23,040 Speaker 4: can be these sort of impacts on the margin. But 528 00:29:23,440 --> 00:29:25,600 Speaker 4: on the whole, you know, most of these justices have 529 00:29:25,680 --> 00:29:29,080 Speaker 4: got a lot about the really consequential issues, a lot 530 00:29:29,160 --> 00:29:31,360 Speaker 4: and probably not to sway their bottom line. 531 00:29:31,600 --> 00:29:34,640 Speaker 3: It's a terrific story. Kimberly, thanks so much for joining me. 532 00:29:35,240 --> 00:29:39,640 Speaker 3: That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and 533 00:29:39,680 --> 00:29:41,880 Speaker 3: that's it for this edition of the Bloomberg Law Show. 534 00:29:42,280 --> 00:29:44,560 Speaker 3: Remember you can always get the latest legal news by 535 00:29:44,600 --> 00:29:48,360 Speaker 3: subscribing to the Bloomberg Law Podcast or downloading this show 536 00:29:48,400 --> 00:29:52,680 Speaker 3: at Bloomberg dot com. Slash podcast, Slash Law and attorneys 537 00:29:52,760 --> 00:29:56,800 Speaker 3: get the latest in AI powered legal analytics, business insights 538 00:29:56,840 --> 00:30:00,840 Speaker 3: and workfload tools at Bloomberg Law dot com. 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