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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Today, one of

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Speaker 1: the most significant developments in the Muller Russia investigation, President

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Speaker 1: Donald Trump's former lawyer, Michael Cohen, pleaded guilty to a

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Speaker 1: new federal charge, admitting that he lied to Congress about

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Speaker 1: Trump's pans to build a Trump Tower in Russia in

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Speaker 1: order to be consistent with the countet. Trump's representative. Trump

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Speaker 1: dismissed the importance of Cohen's plea to reporters, He's lying

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Speaker 1: about a project that everybody knew about it. I mean,

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Speaker 1: we were very open with it. We were thinking about

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Speaker 1: building a building. I guess we had an inform. It

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Speaker 1: was an option. I don't know what you'd call it.

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Speaker 1: We decided I decided ultimately not to do it. There

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Speaker 1: would have been nothing wrong if I did do it.

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Speaker 1: Joining me to discuss the plea is Bradley Moss apartment

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Speaker 1: Mark said, so, Brad, how significant is the latest Cone

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Speaker 1: plea and cooperation deal. Well, this is absolutely huge. You know,

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Speaker 1: there's not a good day for President of Trump, or

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Speaker 1: his legal team or his family. This is the president's

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Speaker 1: former personal lawyer, one of his most inner circle allies

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Speaker 1: and associates, pleading guilty and admitting that he knowingly lied

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Speaker 1: to Congress about the nature of the president's financial investment

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Speaker 1: or interest in Russia during the campaign, when there was

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Speaker 1: a Russian disinformation campaign going on that was supporting the president,

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Speaker 1: when there were when there was concerns about whether or

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Speaker 1: not the president's financial exposures was a national security risk,

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Speaker 1: when there was all these issues tied to meetings with

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Speaker 1: Russians and Trump Tower and everything else. All this, all

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Speaker 1: this time, we've been told nothing happened with this deal,

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Speaker 1: nothing would happen with this deal. And now Michael Cohen

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Speaker 1: has come out and admitted, under penalty of perjury before

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Speaker 1: the judge in a signed document that he lied to

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Speaker 1: Congress about it, that this deal was going on into

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Speaker 1: the summer of and that the president was being repeatedly

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Speaker 1: briefed and the president's family was being repeatedly briefed on

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Speaker 1: the details of the negotiations. Let's discuss the timing not

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Speaker 1: only Cohen's upcoming sentencing, not only the blow up of

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Speaker 1: the Mantafort deal on Monday, but perhaps more important, the

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Speaker 1: submission of President Trump's written answers to the Special Council. Yeah,

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Speaker 1: this is this is not a coincidence that this is

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Speaker 1: all happening. Now, so what did we have? We had?

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Speaker 1: The President finally submitted those written responses to a number

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Speaker 1: of questions provided by the Special Council, the addressing like

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Speaker 1: what he knew about the Trump Power meeting, what he

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Speaker 1: knew about the platform change at the Republican Convention, and

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Speaker 1: what he knew about interactions with people such as Felix

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Speaker 1: Sader and Michael Cohen about a possible deal in Russia

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Speaker 1: for a Trump Tower. Now we know the president's answers

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Speaker 1: to the questions about the Trump Tower meeting. He says

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Speaker 1: he has no recollection of being informed. He says he

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Speaker 1: has no recollection of knowing anything about with you that

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Speaker 1: we don't it know what his answer was on this

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Speaker 1: issue with the Trump Tower stuff. We only have his

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Speaker 1: public statements so far. But if the President lied in

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Speaker 1: his responses, if he committed perjury and knowingly provided false

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Speaker 1: information to the Special Council. He is facing serious potential

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Speaker 1: legal or political problems. This is why the Special Council

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Speaker 1: wanted to sit down, because they wanted to understand what

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Speaker 1: the President knew and to what extent he was concealing

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Speaker 1: information from the government. On that respect, we now know

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Speaker 1: that Jerome Corsi has been giving information. We know that

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Speaker 1: Roger Stone's in the Special Council's crosshairs. All these things.

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Speaker 1: The news is tightening around Donald Trump, and his commentary

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Speaker 1: is only going to get more angry and unhinged as

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Speaker 1: it gets worse. I'm curious about one thing, Brad, what

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Speaker 1: do you make of Muller initially pushing Cohen off to

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Speaker 1: Southern District prosecutors so seemingly not interested in now making

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Speaker 1: a plea deal with him, which the Southern District didn't Well.

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Speaker 1: I think that was partially um D o J bureaucratic move.

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Speaker 1: I believe my understanding of when this all initially came

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Speaker 1: about that they were looking at Cohen, that the Deputy

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Speaker 1: Attorney General, Rob Rosenstein, who was overseeing the probe, decided

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Speaker 1: that this particular area into the issue of campaign finance

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Speaker 1: violations and money longer. I was sorry wire fraud wasn't

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Speaker 1: really within the scope of Special Council's mandate, and so

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Speaker 1: they gave it over to the Southern District. But when

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Speaker 1: Michael Cohen initially played guilty on those felonies, he agreed

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Speaker 1: to cooperate with the US government in general, and that

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Speaker 1: included the Special Council, who was allowed to have these

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Speaker 1: numerous sessions with him. I think it's seventy hours of

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Speaker 1: discussions with him in which they've gotten extensive amount of

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Speaker 1: testimony from him. They've got his text messages and emails,

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Speaker 1: his documents, everything he had on his phones, all of

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Speaker 1: this data, and they're using it to build cases in

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Speaker 1: different suments against potentially different individual rules where there was

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Speaker 1: false material statements or where there was other felonies potentially committed.

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Speaker 1: Brad Now. Trump said an impromptu press conference after the

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Speaker 1: Cohen deal that he had a right to do a

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Speaker 1: business deal with Russia, and he kept repeating that what

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Speaker 1: is he not saying about that deal? Well, that's that's

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Speaker 1: all fifty four thousand dollar question. Yes, so long as

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Speaker 1: the president was a private citizen before he became the

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Speaker 1: president of United States, he had a right to make

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Speaker 1: any business deals he wanted that were consistent with the law.

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Speaker 1: But here were the problems. He repeatedly stated the public

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Speaker 1: during presidential debates and the primaries and the summer and

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Speaker 1: press conferences that he had no deals in Russia. He

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Speaker 1: kept calling it fake news that he had any deals

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Speaker 1: in Russia, where we now know that was completely false,

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Speaker 1: that there was this ongoing negotiation that Cohen was briefing

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Speaker 1: him on. Cohen's ongoing discussions with the Putin's senior officials

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Speaker 1: with Felix Sader, who was a uh Kremlin linked business

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Speaker 1: associate of the Trump circle, was trying to make this deal,

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Speaker 1: trying to make a big meeting between Putin and Trump

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Speaker 1: happen in the summer or the early fall of All

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Speaker 1: these things are going on, And this is the problem

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Speaker 1: of how to what extent the president has been misleading

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Speaker 1: the public in the context of the presidential election, and

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Speaker 1: more particularly to this investigation, to what extent he provided

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Speaker 1: false information at a special council and his responses. All right,

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Speaker 1: just about a minute here, But what kind of time

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Speaker 1: is Coin facing with this particular police So long as

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Speaker 1: he continues to provide the co operation, it's zero to

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Speaker 1: six months. It's basically just being packed on as you know,

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Speaker 1: icing on the cake to his already existing felony plea deal.

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Speaker 1: He's looking at several years, but it's more as he cooperates,

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Speaker 1: it's gonna be more leniency. All right, Thanks so much, brad.

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Speaker 1: That's Bradley Moss, a partner at Mark's ad and UM.

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Speaker 1: Just a reminder, under federal law, it's a crime to

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Speaker 1: knowingly and willfully make material false statements to Congress or

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Speaker 1: to any branch of the federal government in connection with

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Speaker 1: matters your investigation. That's what completed to President Trump has

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Speaker 1: been complaining about the Ninth Circuit since the California federal

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Speaker 1: judge blocked the Trump administration from shutting down the doccer

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Speaker 1: program in January. He ramped up those complaints after another

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Speaker 1: California judge blocked Trump's attempt to ban asylum at the

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Speaker 1: border for those crossing illegally last week. The order today

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Speaker 1: is not we can get around that very easily. What

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Speaker 1: I do say Ninth Circuit is it's very unfair. When

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Speaker 1: everybody files their case in the Ninth Circuit, they file

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Speaker 1: it for a reason. The President's complaints are nothing new

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Speaker 1: for the circuit. It's been stereotyped as too liberal by

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Speaker 1: conservatives for years, Just how liberal is the Ninth Circuit.

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Speaker 1: Here to answer that question is Steve Sanders, a professor

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Speaker 1: at Indiana University's Mare School of Law. Steve Trump is

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Speaker 1: complaining about the Ninth Circuit, a federal appeals court, but

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Speaker 1: most of his real complaints have been about individual district

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Speaker 1: judges in that circuit. Explain the distinction, sure, well, District

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Speaker 1: judges in the federal system are are trial judges trial

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Speaker 1: court judges. There the first level of the federal judiciary.

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Speaker 1: Uh and in most states have at least one so

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Speaker 1: called federal district. Many states, like California and larger states

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Speaker 1: have two or three different districts. The Ninth Circuit is

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Speaker 1: a court of appeals which sits over a group of states. Actually,

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Speaker 1: in the Ninth Circuits a pretty large group of states California, Washington, Oregon, Arizona, Nevada, Idaho, Hawaii, Alaska,

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Speaker 1: and Montana. Uh and the Ninth Circuit takes appeals from

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Speaker 1: litigants who are dissatisfied with the results they've gotten in

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Speaker 1: the district courts in those states, and occasionally the Supreme

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Speaker 1: Court takes appeals from those courts of appeals. The Ninth

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Speaker 1: Circuit is one of twelve such courts of appeals spread

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Speaker 1: around the country. Each one, um, well most of them,

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Speaker 1: eleven of them oversee groups of states, and then there's

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Speaker 1: another court of Appeals for the District of Columbia, so Steve.

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Speaker 1: For years, the Ninth Circuit has been stereotyped as the

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Speaker 1: most liberal circuit, so much so that conservative groups mounted

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Speaker 1: an effort to split it up in just how liberal

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Speaker 1: is the Ninth Circuit compared to other appellate courts? Um,

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Speaker 1: You know, I don't know that I've seen. There has

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Speaker 1: been no recent data, at least reliable scholarly empirical data

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Speaker 1: that measures the liberal or conservative sort of temperature of

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Speaker 1: each federal circuit. You know, for one thing, it's it's

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Speaker 1: hard to do that kind of work. How do you

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Speaker 1: know many decisions that courts issue are really difficult to

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Speaker 1: characterize as quote liberal or conservative. So I have a

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Speaker 1: basic problem of what kind of data are you starting with?

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Speaker 1: How are you going to what are your inputs going

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Speaker 1: to be to try to decide that kind of thing.

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Speaker 1: There's a recent study that try to base its judgment

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Speaker 1: on the political donations that were made by law clerks

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Speaker 1: to judges in those circuits, which seems like a really

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Speaker 1: tenuous and and and end of unreliable way of measuring

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Speaker 1: a circuit um. The most systematic study of the liberal

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Speaker 1: versus conservative nature of the Federal circuits um was done

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Speaker 1: back in UH, well in early two thousands. The data

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Speaker 1: ended at two thousand and at that point, the Ninth

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Speaker 1: Circuit was pretty liberal. It was more liberal than most

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Speaker 1: of the Federal circuits in its decisions. But again that

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Speaker 1: data is now almost twenty years out of date. UM.

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Speaker 1: Other Republican presidents like Trump and George W. Bush had

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Speaker 1: had appointments to those courts. I think a lot of

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Speaker 1: the Ninth circuits liberal reputation stems from, you know, a

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Speaker 1: small number of very high profile liberal judges that that

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Speaker 1: court his heads in some cases dating back to appointments

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Speaker 1: that were made by Jimmy Carter in the late nineteen seventies.

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Speaker 1: Stephen Reinhardt, who just passed away within the last year,

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Speaker 1: was a sort of liberal lion of the Federal judiciary. UM.

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Speaker 1: There's another UH judge named marsh Marsha Burzon who still

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Speaker 1: sits on that court. But the Ninth Circuit also has

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Speaker 1: conservative judges. I think some of this comes from the

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Speaker 1: stereotyping of California. The Ninth Circuit headquarters is in San Francisco,

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Speaker 1: a lot of its cases come out of California. And

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Speaker 1: so I think there's a mixture of factors. I would

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Speaker 1: say that, you know, what President Trump is saying is

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Speaker 1: based on probably things that his Federalist Society advisors and

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Speaker 1: friends have been telling him, which he's in turn vastly

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Speaker 1: oversimplifying and turning into sort of cartoon character versions of

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Speaker 1: a commentary on the on federal judges. And and indeed,

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Speaker 1: but those even those perceptions that he's being hold about

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Speaker 1: are probably about ten years out of date. There are

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Speaker 1: studies showing that the Circuit is becoming more centrist. Now.

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Speaker 1: President Trump has also said that the Ninth Circuit is

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Speaker 1: the federal appeals court reversed most by the Supreme Court.

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Speaker 1: What do the stats tell you about that claim? Yeah,

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Speaker 1: that is flatly not correct. And and here I'm relying

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Speaker 1: on some data that was gathered by a scholar at

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Speaker 1: the University of Texas named Stephen Flattock, who I believe

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Speaker 1: has occasionally been a guest on Bloomberg Law. And the

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Speaker 1: data that he found indicates that over the last five years.

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Speaker 1: Over the last five Supreme Court terms, three federal courts

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Speaker 1: of appeals have actually been reversed by the Supreme Court

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Speaker 1: in a higher percentage of cases than the Ninth Circuit.

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Speaker 1: Of the Third Circuit, which is on the east coast,

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Speaker 1: the Sixth Circuit, which is sort of in the middle

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Speaker 1: of the country, and the Eleventh Circuit, which is in

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Speaker 1: the south, all had higher reversal rates than the Ninth

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Speaker 1: Circuit um the Ninth because the Ninth Circuit is so large,

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Speaker 1: it covers a geographically very large area, it has lots

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Speaker 1: of judges, and so therefore it has a very large

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Speaker 1: caseload in absolute numbers. Um the Ninth Circuit may look

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Speaker 1: like it's getting more reversals, but as a percentage of

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Speaker 1: all the cases decided, it's actually down there near the middle.

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Speaker 1: There three circuits that in the last five years that

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Speaker 1: higher reversal rates at the Supreme Court. And Steve just

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Speaker 1: how much does whether a circuit court is liberal or

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Speaker 1: conservative have to do with the reversal rate? Not very much.

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Speaker 1: You know. Some of these courts that have been more

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Speaker 1: frequently reversed, like the Eleventh Circuit, is actually considered a

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Speaker 1: relatively conservative Court based on the appointments who appointed the

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Speaker 1: judges who are sitting on that court, and so I

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Speaker 1: don't think there's a correlation there at all. The Supreme

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Speaker 1: Court in the last year or two and a couple

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Speaker 1: of very high profile cases, one civil rights discrimination case,

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Speaker 1: another immigration case upheld the Ninth Circuit in in in

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Speaker 1: in opinions that had come to quote unquote liberal outcomes,

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Speaker 1: if you want to put it that way. So I

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Speaker 1: don't think there's very much of a very much of

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Speaker 1: a correlation there. It's also important to remember that the

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Speaker 1: Supreme in something like seventy of the cases it takes,

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Speaker 1: the Supreme Court reverses the lower court. In Supreme Court

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Speaker 1: sometimes takes cases and affirms the judgment of the lower court.

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Speaker 1: But usually if the Supreme Court is going to get

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Speaker 1: involved in a case, it's because it's troubled by something

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Speaker 1: that happened below. And so it is the norm for

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Speaker 1: circuits when cases get to the Supreme Court for circuits

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Speaker 1: to be reversed. More often, something like seventy of the

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Speaker 1: cases the court takes are reversals of lower courts. The

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Speaker 1: one final thing it's important to note that the Supreme

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Speaker 1: Court here's a tiny fraction. They because there's so much

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Speaker 1: to say about this, but thank you that. Steve Sanders,

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Speaker 1: It's professor at Indiana University's Mara School of Law. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg