Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Our nation's commitment to the rule of law sets an
Speaker 2: example for the world. We have one set of laws
Speaker 2: in this country, and the apply to everyone applying those laws,
Speaker 2: collecting facts. That's what determines the outcome of an investigation.
Speaker 2: Nothing more, nothing less.
Speaker 3: Special counsel Jack Smith took only two and a half
Speaker 3: minutes to comment on the first federal criminal charges against
Speaker 3: a former president in US history. Smith let the indictment
Speaker 3: against former President Donald Trump speak for him. Trump is
Speaker 3: charged with thirty seven counts over his handling of classified information,
Speaker 3: including willful retention of national defense information, corruptly concealing documents,
Speaker 3: conspiracy to obstruct justice, and making false statements. He declared
Speaker 3: his innocence in a video response on truth Social calling
Speaker 3: the investigation the Boxes hoax, just.
Speaker 4: Like the Russia Russian Russia hoax and all of the others.
Speaker 4: It has been going on.
Speaker 3: For seven years that they can't stop because its election
Speaker 3: interference at the highest level.
Speaker 1: There's never been anything like what's happened.
Speaker 3: I'm an innocent man, I'm an innocent person. A longtime
Speaker 3: Trump baide was also indicted on six charges. Joining me
Speaker 3: is Joshua Castenberg, a professor at the University of New
Speaker 3: Mexico Law School and a former prosecutor and judge in
Speaker 3: the US Air Forces. This is what's called a talking indictment,
Speaker 3: and the story it tells in words, texts, photographs, and
Speaker 3: transcribed conversations, is of Trump's relentless efforts to hide classified
Speaker 3: documents related to the national defense from federal prosecutors and
Speaker 3: his own attorneys. What's your asessment of how the indictment
Speaker 3: presents the case?
Speaker 1: So it brings a picture of clarity that the government's
Speaker 1: proof is pretty solid, particularly in regard to the recorded
Speaker 1: conversation he had where he admitted that the document he
Speaker 1: waived around the military attack plan was mark secret or
Speaker 1: top secret. He boasted about it basically to a non
Speaker 1: law enforcement official. This was a journalist or a writer
Speaker 1: who was going to write a book. And so my
Speaker 1: first thought is, well, the government has some pretty compelling evidence.
Speaker 1: I can't imagine why it would be ruled inadmissible because
Speaker 1: it goes to the heart of the offense and there's
Speaker 1: no like suppression motion or law enforcement misconduct type motion
Speaker 1: involved here. It's a private citizen that made a recording
Speaker 1: with Trump's permissions.
Speaker 3: How do you fight that kind of evidence as a
Speaker 3: defense attorney.
Speaker 5: You know, for criminal defense attorneys, that type of evidence
Speaker 5: is usually what they might consider nightmare evidence that their
Speaker 5: client does because it shows wrongdoing and it shows knowledge
Speaker 5: of wrongdoing, and you know, absinute confession, you don't get
Speaker 5: better evidence than that. As a prosecutor in a case
Speaker 5: that doesn't involve DNA, you know, the defense is likely
Speaker 5: to argue something unique, like while he's the former president
Speaker 5: of the United States, he had the authority to do that.
Speaker 5: They'll probably argue something known as mistake of law. And
Speaker 5: that's when someone acts because they believe they had the
Speaker 5: legal authority to do something when they didn't. And you know,
Speaker 5: there are all sorts of famous cases on mistake of law,
Speaker 5: including a Supreme Court case that involves someone who didn't
Speaker 5: pay their taxes. They made the argument that they had
Speaker 5: been advised by attorneys and the government that they didn't
Speaker 5: need to pay their taxes. You know, his lawyers they're
Speaker 5: going to throw a lot of spaghetti against the wall
Speaker 5: and see what six this is what they should do.
Speaker 5: But right now I would say it's the mistake of law. Defense,
Speaker 5: where he makes the argument, I'm not a lawyer, I'm
Speaker 5: a business mana turned president of the United States. I
Speaker 5: rely on the advice of lawyers. This was the advice
Speaker 5: I got. I thought it was okay to do.
Speaker 3: And does the indictment convey the seriousness and the danger
Speaker 3: to national security from his actions?
Speaker 1: Well, absolutely. Look if you had a person who worked
Speaker 1: at Department of Defense, whether they were military or civilian,
Speaker 1: or CIA or National Security Agency, waving around a document
Speaker 1: the way he did with that boast, my thought is
Speaker 1: absent somebody who is not guilty by reason of mental defect,
Speaker 1: that that individual would likely go to jail for a
Speaker 1: long long time. Now, this isn't quite a case of spying,
Speaker 1: but let's remember Robert Hansen just died in prison for
Speaker 1: spying for the Soviet Union. Jonathan Pollard spied for our
Speaker 1: ally Israel. He's spending life without parol. You know, in
Speaker 1: a jail he is take a step one step removed
Speaker 1: from that is someone who intentionally disregards the law and
Speaker 1: puts national security at rest. Usually those people go to
Speaker 1: jail in the decades.
Speaker 3: These allegations are very very serious, but it's almost comical
Speaker 3: the way Trump had those boxes moved around mar A Lago,
Speaker 3: from the ballroom to a bathroom, to a storeage room
Speaker 3: in his office, and then on a plane to Bedminster,
Speaker 3: New Jersey. And there are pictures documenting it all, even
Speaker 3: when some of the documents spilled out of a box
Speaker 3: and were scattered on the floor.
Speaker 1: It shows a certain degree of knowledge that you shouldn't
Speaker 1: have the documents if you do that, and also paranoia
Speaker 1: that you'll get caught. Now, there's a movie based on
Speaker 1: one of the John Grisham books where the lawyer tells
Speaker 1: his mafia client, I have documents on you that are
Speaker 1: at sea, and as long as nothing happens to me,
Speaker 1: those documents will never be back at port. And I
Speaker 1: get the feeling that this is kind of the mentality
Speaker 1: that's gone on here, about shifting boxes from a bedroom
Speaker 1: to a bathroom to Bedminster, keeping them on the go constantly,
Speaker 1: never getting into port.
Speaker 3: There's a lot of information in here that appears to
Speaker 3: be coming from Trump's lawyer, Evan Corkran, who's identified as
Speaker 3: lawyer number one. The Special Council has notes from Torcrene
Speaker 3: and a detailed voice memo from a key period in
Speaker 3: which he was recounting the team's private deliberations, and it's
Speaker 3: evidence that the prosecutor got because the judge pierced the
Speaker 3: attorney client privilege due to the crime fraud exception. And
Speaker 3: I believe that some of Trump's lawyers have referenced that
Speaker 3: piercing of attorney client privilege in interviews.
Speaker 5: Of all the issues out there, that's the one to
Speaker 5: pay attention to with the most focused at the beginning.
Speaker 5: So the crime fraud exception has been an exception created
Speaker 5: by the court and written into the roles of attorney ethics.
Speaker 5: That all fifty states have different ethics rules, but they
Speaker 5: basically all say the same thing, which is, there is
Speaker 5: an exception to the attorney client privilege when the attorney
Speaker 5: is part of an ongoing crime or a member of
Speaker 5: a conspiracy, then the privilege does not exist. That The
Speaker 5: issue that percolates up in cases that involve the crime
Speaker 5: fraud exception is is that the government sometimes makes mistakes
Speaker 5: in assessing what the degree of culpability of the attorney is.
Speaker 5: In a mafia case, when an attorney allows his office
Speaker 5: or her office to be used expressly for the purpose
Speaker 5: of illegal conduct, that's easy to prove. But when an
Speaker 5: attorney is simply giving a client advice on how to
Speaker 5: deal with charges against them or their criminal activity that
Speaker 5: the government doesn't yet know about. It gets somewhat dice these.
Speaker 5: Of all the issues, that's the one to pay attention,
Speaker 5: because if the criminal charges get dismissed, it'll be dismissed
Speaker 5: on that basis. If they don't get dismissed, it'll be
Speaker 5: an ongoing issue for appeal. I don't think it'll happen,
Speaker 5: but I wouldn't rule out the possibility. And the reason
Speaker 5: why I don't think it'll happen is because I think
Speaker 5: this particular special Council was very cautious and how they
Speaker 5: approached this issue and every other issue that's been involved
Speaker 5: in both grand juries. Nonetheless, you never know what all
Speaker 5: the facts are at this point that we're talking about,
Speaker 5: so I leave the door open to it being a possibility.
Speaker 3: Now, Trump's allies and Trump himself has floated this defense
Speaker 3: that he had already used his presidential powers to declassify documents.
Speaker 3: And you know, some of the things he said about
Speaker 3: declassifying documents seem ludicrous. But could that be part of
Speaker 3: his defense anyway?
Speaker 5: Well, you know, I think because the uniqueness of this case.
Speaker 5: They could try to advance it as a defense, but
Speaker 5: to me, the biggest barrier to get that defense to
Speaker 5: even be considered by a jury. To paraphrase an old
Speaker 5: movie with Tom Cruise, show me the money, because if
Speaker 5: you're in a through that defense then produced a document
Speaker 5: that was filed in official channels that shows that you
Speaker 5: gave a blanket declassification. And you can't just do that
Speaker 5: with you the word of mouth, Hey I declassified this.
Speaker 5: There has to be a process that was followed or
Speaker 5: a memorandum out there somewhere, and none of that has
Speaker 5: yet been produced.
Speaker 3: What do you think about the Special Council's decision to
Speaker 3: bring this indictment before a Florida grand jury rather than
Speaker 3: a DC grand jury.
Speaker 5: What the Special Council has done, in the best educated
Speaker 5: guess I can give, is that they determined that when
Speaker 5: the documents were transported to Florida that occurred when Donald
Speaker 5: Trump was still President of the United States, holding those
Speaker 5: documents in his possession after he left office is the
Speaker 5: centerpiece of the crime that's charged, and the only trial
Speaker 5: venue under the US Constitution that would be available would
Speaker 5: be the United States District courts in the state of
Speaker 5: Florida and not in Washington, d C. So I think
Speaker 5: what the Special Council did by creating a second grand
Speaker 5: jury in Florida was to safeguard a criminal trial against
Speaker 5: unnecessary appellate issues that would otherwise arise.
Speaker 3: Do you think it'll be harder for the Special Council
Speaker 3: to select a jury in Florida, a state that Trump won.
Speaker 1: I don't really like to presuppose that you can't find
Speaker 1: a fair jury in a state simply because there's a
Speaker 1: popular person on trial. Let's remember that there were people
Speaker 1: on the jury of Paul Manifort that voted for Trump.
Speaker 1: That will be a lifelong Republicans who convicted Paul Manifort. Now,
Speaker 1: Manafort wasn't a popular person in the way of the president,
Speaker 1: but certainly the political pressures were out there to support Manifort.
Speaker 1: I would hope that you find twelve jurors in an
Speaker 1: equal number of alternatives that truly will look at the
Speaker 1: evidence in a fair and impartial manner and follow the
Speaker 1: judge's instructions on the law. But it may be more
Speaker 1: difficult to get to those twelves. But that's what the war.
Speaker 3: Your processes for federal Judge Eileen Cannon is going to
Speaker 3: be assigned the case. And she was the judge who
Speaker 3: was appointed as a Special Master to review the material
Speaker 3: seized last year, and she gave some odd, if not
Speaker 3: bizarre rulings and one was thrown out in entirety by
Speaker 3: the Eleventh Circuit. This seems like it's just bad luck
Speaker 3: for the Special Council. But could they somehow get her recused.
Speaker 5: They could move to try to get her recused, but
Speaker 5: I'm not sure they'll do that because the law presumes
Speaker 5: that judges do not act in a political manner, whether
Speaker 5: you agree with their rulings or not. I know that
Speaker 5: the media and the general public has come to believe
Speaker 5: that that's not an accurate statement. And look, in some cases,
Speaker 5: it's not an accurate statement. And part of that is
Speaker 5: the fault of the judges themselves, who engage in public,
Speaker 5: you know, and well known activities, giving speeches, buying closed doors,
Speaker 5: making accusations against others, and you know, having bizarre financial
Speaker 5: and friendly relationships. But simply because a judge had rulings
Speaker 5: that were overturned in the past, isn't a basis for recusal.
Speaker 5: You'd have to find a tie between the judge and
Speaker 5: the defendant some kind of significant nature to even be
Speaker 5: able to convince the judge to recuse themselves, because under
Speaker 5: the law, judge has a duty to serve.
Speaker 3: Is it a problem for the prosecutors if she remains
Speaker 3: on the case, because that Eleventh Circuit panel was really
Speaker 3: critical of her and said she overstepped her bounds in
Speaker 3: exercising jurisdiction.
Speaker 5: It could be a problem for the prosecution. It certainly
Speaker 5: could be. I don't know enough about her for me
Speaker 5: to make a valuation judgment. What I'm going to assume
Speaker 5: happened if she had a defined view of the law
Speaker 5: when she made those rulings, and she issued her decisions
Speaker 5: based on her best efforts as to the defined view
Speaker 5: of the law. You know, she was overturned rather quickly
Speaker 5: and critically by circuit judges, some of whom are known
Speaker 5: for being conservative, and they had at least appointments arising
Speaker 5: out of the Bush administration and even the Trump administration
Speaker 5: on that point. On the other hand, that decision, which
Speaker 5: was highly critical of her, might actually cause her to
Speaker 5: use more circumspection and openness in this particular case. I
Speaker 5: can't really give a comment beyond that at this point.
Speaker 3: So now the timing of the trial. So everyone's wondering,
Speaker 3: could this happen before the presidential election.
Speaker 5: Well, if it doesn't happen before the presidential election, and
Speaker 5: if the next president happens to be Donald Trump, who
Speaker 5: has followed in the tradition of Grover Cleveland with a
Speaker 5: second but non consecutive term, then there won't be a
Speaker 5: trial when he's sitting as president. So I'm not sure
Speaker 5: it'll happen at all. But the earliest that could occur
Speaker 5: then is sometime in twenty twenty nine. You know. Having
Speaker 5: said that, people asked all the time, can someone run
Speaker 5: for president from jail? And the answer is yes. In
Speaker 5: point of fact, Eugene Deb's, a lay leader, did ran
Speaker 5: on the Socialist Party ticket in nineteen twenty when he
Speaker 5: was behind bars after being convicted of violations of the
Speaker 5: Espionage Act. The Constitution only has a standard based on
Speaker 5: age and the fact that you're born in the United States,
Speaker 5: which and regardless of whether Trump's indicted or in jail,
Speaker 5: the Constitution doesn't prevent him from running for office or
Speaker 5: serving an office.
Speaker 3: Jack Smith mentioned a speedy trial. How fast do you
Speaker 3: think they could get to trial?
Speaker 5: You know, if the defense council asked for a speedy trial,
Speaker 5: you could have a trial within a period of a
Speaker 5: month or so in theory. But typically, and I have
Speaker 5: no idea what Trump's defense council would be, but typically
Speaker 5: these kind of cases are dragged out for a while
Speaker 5: and there's not a lot the government can do about that.
Speaker 3: How likely do you think it is that Jack Smith
Speaker 3: would offer Trump a.
Speaker 5: Deal if we weren't talking about a former president in
Speaker 5: a case like this, it would be ripe for a
Speaker 5: deal to be made mishandling classified evidence. In my prior
Speaker 5: time as a trial judge, I can't recall a case
Speaker 5: that actually went the full litigation. I said as a
Speaker 5: judge on four cases that ended up being a deal
Speaker 5: at the end of the day. So the unlikelihood of
Speaker 5: a deal actually going forward is that Donald Trump doesn't
Speaker 5: seem to be the kind of defendant who wants to
Speaker 5: concede that he committed a crime or have done any wrongdoing,
Speaker 5: even if there's no jail time involved. And given his
Speaker 5: public statements and the fact that he's running for president
Speaker 5: and has claimed I never did anything wrong, I think
Speaker 5: that it's really unlikely that the defense would enter into
Speaker 5: plean negotiations.
Speaker 3: What about Trump's aid? Do you think they'll offer him
Speaker 3: a deal?
Speaker 1: Oh? Yes, you know, the case is probably very strong
Speaker 1: on some of the charges, maybe not strong on all
Speaker 1: of those. But a case always becomes stronger when a
Speaker 1: co conspirator splits off from the conspiracy, leads guilty, and
Speaker 1: agrees to testify against the remains members.
Speaker 3: So I think there will be And do you think
Speaker 3: we'll learn anything more when Trump goes to court on Tuesday?
Speaker 5: Most importantly to me, we don't know what the status
Speaker 5: of the grand jury meeting in Washington, d C. Is
Speaker 5: with the January sixth type charges. And I think we'll
Speaker 5: get a better picture of the January sixth grand jury
Speaker 5: on Tuesday because I have this suspicion in my mind
Speaker 5: that the trial judge, when they start talking about scheduling,
Speaker 5: will ask the question, well, what about the grand jury
Speaker 5: in Washington, d C. And the prosecutors will probably feel
Speaker 5: compelled to answer and give some timeline to that.
Speaker 3: Finally, you know, Jack Smith's statement in just about two
Speaker 3: and a half minutes hit on a lot of important points,
Speaker 3: one being that he said, we have one set of
Speaker 3: laws in this country and they apply to everyone. In
Speaker 3: other words, no one's above the law.
Speaker 5: Yeah, you know, some members of the House and the
Speaker 5: Senate and other Republicans who are allied with Donald Trump
Speaker 5: has said this kind of thing doesn't go to trial.
Speaker 5: This is, you know, targeting the former president. But earlier
Speaker 5: this week, a retired Air Force lieutenant colonel went to
Speaker 5: US district court and was sentenced to three years for
Speaker 5: the mishandling of classified data data that he kept past
Speaker 5: his retirement in his possession. This was not a case
Speaker 5: that we know of where he was trying to sell
Speaker 5: classified data to the Chinese. He just collected a lot
Speaker 5: of it and safeguarded it for whatever reason in his
Speaker 5: own possessions. And he's not allowed to do that under
Speaker 5: the law. And he ended up getting three years in
Speaker 5: jail for breaking that laws. So I think when I hear,
Speaker 5: you know, from Trump's allies, this is targeting the president.
Speaker 5: This hasn't happened before. Yes, it has to ordinary citizens.
Speaker 5: And I think the most important point to take away
Speaker 5: from a retired Air Force lieutenant colonel is, here's a
Speaker 5: member of the United States government who fell under the
Speaker 5: command of a commander in chief at one point, who's
Speaker 5: going to jail for three years. And if you don't
Speaker 5: take Donald Trump to trial for this, you're excusing a
Speaker 5: senior commander in this case, the commander in chief, from
Speaker 5: criminal liability and prosecuting junior individuals who fell under his
Speaker 5: command for an identical crime. And that plays into the narrative.
Speaker 5: I hear over and over again from my students and
Speaker 5: see from the general public that we have two kinds
Speaker 5: of criminal law in this country, one for the wealthy
Speaker 5: and powerful and one for everyone else.
Speaker 3: That's such a compelling comparison. Thanks so much, josh That's
Speaker 3: Professor Joshua Castenberg of the University of New Mexico Law School.
Speaker 3: If it seems like Supreme Court arguments are going longer
Speaker 3: than usual, it's because they are. Eighty percent of Supreme
Speaker 3: Court arguments went over there a lot of time. This term.
Speaker 3: Gone are the days of Chief Justice William Renquist, who
Speaker 3: would cut off people mid syllable the very millisecond the
Speaker 3: argument was over. That's according to Haines and Boone partner
Speaker 3: Daniel Geyser. Joining me is Bloomberg Law. Supreme Court reporter
Speaker 3: Kimberly Strawbridge Robinson, who's studied and written about this extended
Speaker 3: argument time. Some of these arguments seem to go on
Speaker 3: and on and on. What's the average time these days
Speaker 3: compared to what the allotted time is.
Speaker 4: Well, you know, back in the day, particularly when Chief
Speaker 4: Justice Rinquist was in charge, but also the early years
Speaker 4: of Chief Justice John Roberts, you know, cases would average
Speaker 4: about sixty minutes. There were some that would go a
Speaker 4: little bit longer they were scheduled to go over. Now though,
Speaker 4: you know, we have cases that are going over about
Speaker 4: thirty minutes on average, and that has led to over
Speaker 4: twenty eight hours of extra argument time on top of
Speaker 4: the sixty three that they've justice to the plans, a
Speaker 4: really significant amount of time that they're spending on these arguments.
Speaker 3: Do they have little lights that remind them when their
Speaker 3: time is up?
Speaker 4: Still, they do have lights that will tell the advocate
Speaker 4: you have, you know, five minutes left, you have one
Speaker 4: minute left. But then the court has added on this
Speaker 4: extra round of questioning where each justice gets to ask,
Speaker 4: you know, any questions that they still have lingering, and
Speaker 4: that is not timed and that's where we see a
Speaker 4: lot of this extra time happening is after the advocate
Speaker 4: has sort of gotten there as thirty minutes or so,
Speaker 4: and then you know, you throw on an extra nine
Speaker 4: rounds of questioning can get pretty timely.
Speaker 3: And you talk to a lawyer who said that Chief
Speaker 3: Justice Renquist would actually cut people off mid syllable.
Speaker 4: That's right. I mean, when that red light went on,
Speaker 4: you were done. You could ask for some extra time
Speaker 4: if you wanted to finish your sentence, but three words
Speaker 4: maybe you would get out. Otherwise you were not being
Speaker 4: in the good graces of the justices. But that's really
Speaker 4: changed a lot.
Speaker 2: Now.
Speaker 4: Now you'll see advocates go on for sentences, which doesn't
Speaker 4: sound like a lot, but in the Supreme Court, in
Speaker 4: that court room, it is.
Speaker 3: So explain why this change came about.
Speaker 4: Well, it really is an effect of the pandemic. So
Speaker 4: when March twenty twenty year olled around, the court had
Speaker 4: some more arguments scheduled, but they canceled them and pretty
Speaker 4: quickly switched to hearing arguments over the phone. And it
Speaker 4: was pretty clear that just you know, having nine people
Speaker 4: free for all over the phone was not going to
Speaker 4: be a workable way to conduct these arguments. And so
Speaker 4: it started going in order of seniority, starting with the
Speaker 4: Chief Justice, and then sort of going on through the
Speaker 4: associate justices, and when the court came back, I guess
Speaker 4: they found something that they liked about it, because they
Speaker 4: sort of tacked it on to what they had been
Speaker 4: doing before. And so now the attorneys that I spoke
Speaker 4: to that it's sort of a hybrid system now where
Speaker 4: there's this you know, free for all, any justice can
Speaker 4: jump in, and then there's this extra question and you know,
Speaker 4: that's what's been leading to these really long arguments.
Speaker 3: And it was a pandemic that led to that moment
Speaker 3: where Justice Clarence Thomas spoke. All of a sudden, it
Speaker 3: seemed like everyone stopped to listen, right, And you.
Speaker 4: Know, again I spoke with some advocates who said, it's
Speaker 4: not trivial to hear from Justice Thomas. He has been
Speaker 4: on the course the longest of any justice currently serving,
Speaker 4: and he asked a lot of really intelligent and probing questions.
Speaker 4: And what we saw during the pandemic, and what we
Speaker 4: continued to see is that now he's participating in a
Speaker 4: lot of the questions that the other justices asked are
Speaker 4: building off of questions from Justice Thomas. So you know,
Speaker 4: adding in an additional justice proved to be beneficial for
Speaker 4: the advocates and I guess for the justice themselves.
Speaker 3: So do the advocates like it? I mean, it's more
Speaker 3: time for the justices to ask far ranging questions. Do
Speaker 3: they like that or is it just exhausting?
Speaker 4: Nearly unanimously, all of the advocates that I've spoken to
Speaker 4: really really like the extra time. They say that the
Speaker 4: whole point of oral arguments is to answer the questions
Speaker 4: from the justices, So being able to have more time
Speaker 4: to answer their question is helpful and also is led
Speaker 4: to less interruptions. You know, the justices don't feel like
Speaker 4: they have to interrupt advocates have to cut them off
Speaker 4: in their answer to that other justices or they run
Speaker 4: out of time. Now they can sort of wait. If
Speaker 4: time runs out, they can always ask the question in
Speaker 4: their follow up. So from the advocates point of view,
Speaker 4: it's led to a more substance of conversation. But really
Speaker 4: how that plays out is sort of yet to be
Speaker 4: seen in the opinions themselves.
Speaker 3: And some advocates told you they believe it's led to
Speaker 3: more concurring and dissenting opinions.
Speaker 4: Yeah, just that the idea that you know, now a
Speaker 4: justice can really probe an issue even if no other
Speaker 4: justice seems really interested in it. You know, if you
Speaker 4: have an idiosyncratic view of the of the law or
Speaker 4: the issues of the fact, you can ask them. And
Speaker 4: being able to flush that in the arguments has presumably
Speaker 4: led to more of the concurring opinions where you know,
Speaker 4: a justice can rank for themselves or one other justice
Speaker 4: on a pretty small issue.
Speaker 3: The arguments are about the justices asking questions, but while
Speaker 3: they're asking questions, they're presenting their opinions and you know,
Speaker 3: perhaps trying to persuade other justices.
Speaker 4: Right, So listeners may not know, but the oral arguments
Speaker 4: are the first opportunities that the justices get to talk
Speaker 4: about the case since they granted it and they've read
Speaker 4: all the briefs. This is they're you know, the first
Speaker 4: time to interact and really see the way that their
Speaker 4: colleagues are thinking about it. So we see a lot
Speaker 4: of times, you know, other justices are not really just
Speaker 4: asking the advocated question, but they're sort of testing out
Speaker 4: the waters, you know, of the other justices to see
Speaker 4: is this is this something that you're thinking about too?
Speaker 4: And you know, Justice Bryer was in particular a person
Speaker 4: who would ask a question and then sort of lean
Speaker 4: forward on the bench and look around to see if
Speaker 4: it was well received by his other justices. But the
Speaker 4: other members of the court do that as well to
Speaker 4: some extent.
Speaker 3: You talked about this in your in your column, But
Speaker 3: I already knew who was the longest talker, because it's
Speaker 3: pretty obvious that it's Justice Katanji Brown Jackson. But by
Speaker 3: how much?
Speaker 4: By a lot? And so you know, Adam Feldman over
Speaker 4: at Empirical Gotus really broke down the numbers and said
Speaker 4: that Justice Jackson spoke hundreds of wards more than the
Speaker 4: next closest justice. And that's really unique, not just because
Speaker 4: you know she's a justice who's speaking a lot, but
Speaker 4: because she's a junior justice, and typically we just don't
Speaker 4: see that. We see and junior justice sort of step
Speaker 4: back and kind of get a lay of the land
Speaker 4: before they feel more comfortable talking. But that has not
Speaker 4: been herm at all. She's she's very vocal in oral arguments.
Speaker 3: And I think we spoke about this when she first
Speaker 3: came on the bench that she started asking questions at
Speaker 3: the very end which the Chief didn't approve of a right.
Speaker 4: I mean, the justices is sort of tinkered with or
Speaker 4: arguments here and there, you know, over the last decade
Speaker 4: or so. And one of the sort of informal rules
Speaker 4: that they seem to have said is that they're not
Speaker 4: going to ask advocates questions during rebuttal time. So that's
Speaker 4: after the other side has gotten up and the petitioner
Speaker 4: gets to sort of give us the maation of the
Speaker 4: case a very brief time. And you know, we noticed
Speaker 4: that the justices weren't asking questions. But early on, you know,
Speaker 4: Justice Jackson did start asking questions and I was in
Speaker 4: the courtroom and you could really see all the other
Speaker 4: justices kind of taken aback, and you know, who knows
Speaker 4: what happened after that, But we did not get any
Speaker 4: more questions during rebuttal.
Speaker 3: And did Adam Feldman find that the liberal justices in
Speaker 3: general talked more than the conservatives?
Speaker 4: Yes, And so you know, Justice sonya such who we are,
Speaker 4: and Alega Kagan, the three liberal justices were in the
Speaker 4: second and third spots. So you know, it's an interesting
Speaker 4: data point. It's hard to see with the casees that
Speaker 4: are remaining that that's going to wind up with there
Speaker 4: being more liberal results. But again, it could be that
Speaker 4: we see them writing concurring and dissenting opinions that you know,
Speaker 4: are really detailed and really examine a lot of different
Speaker 4: areas to law.
Speaker 3: I like it when we hear about, you know, the
Speaker 3: personal lives of the advocates and how this affects them.
Speaker 3: Tell us what happened with these those two big affirmative
Speaker 3: action cases that seem to go on forever. Tell us
Speaker 3: about that, and what happened with the solicitor general.
Speaker 4: Right, So the Solicitor General, Elizabeth free Lagger, she's pretty young.
Speaker 4: She has young kids who you know, are still in school,
Speaker 4: and these are big arguments. It was one of her
Speaker 4: first representing the federal government as the US Solicitor General,
Speaker 4: and so her husband and their mother came to watch
Speaker 4: the argument. But the arguments that day went on very long.
Speaker 4: They were already scheduled to go over, but you know,
Speaker 4: they didn't end until three, which is about three hours
Speaker 4: later than then arguments typically do. And they sort of
Speaker 4: had to scramble to figure out, well, it's going to
Speaker 4: go pick up the kids. So every everyone's just like just.
Speaker 3: Like us, dud uh huh, so except mine is so big. Now,
Speaker 3: I mean, I'll be picking kids soon. Okay, so you know,
Speaker 3: the justices have read the briefs, they know the law.
Speaker 3: Do the people you talk to think that arguments really
Speaker 3: can change their minds?
Speaker 4: I think it really depends on the issue, and it
Speaker 4: depends a lot on sort of the facts of the case.
Speaker 4: You know, there there are going to be some issues
Speaker 4: that justices have thought about so much. I'm thinking about
Speaker 4: the affirmative action cases. It's hard for me to think
Speaker 4: that the justices learned anything in that argument or hurt
Speaker 4: anything in the argument that's gonna, you know, cause them
Speaker 4: to vote to a whole's affirmative action programs when they
Speaker 4: would have voted the other way. But you know, on
Speaker 4: the margins, it can make a difference, sort of. I
Speaker 4: talked to one advocate who talked about sort of a
Speaker 4: soft landing. If you can see that you're not really
Speaker 4: making a winning argument to the justices, they're not really
Speaker 4: receiving it, you can do something to kind of temper
Speaker 4: the kind of loss that you might have. So there
Speaker 4: can be these sort of impacts on the margin. But
Speaker 4: on the whole, you know, most of these justices have
Speaker 4: got a lot about the really consequential issues, a lot
Speaker 4: and probably not to sway their bottom line.
Speaker 3: It's a terrific story. Kimberly, thanks so much for joining me.
Speaker 3: That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and
Speaker 3: that's it for this edition of the Bloomberg Law Show.
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