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Speaker 1: This is Bloomberg Law with June Grasso in a rare

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Speaker 1: AmBank hearing at the d C Circuit Court of Appeals

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Speaker 1: to the Trump administration squared off against House Democrats over

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Speaker 1: a crucial question masked in a fight over the subpoena

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Speaker 1: of former White House Counsel Don McGann joining me as

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Speaker 1: former federal prosecutor Robert Mint's a partner of Carter in English?

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Speaker 1: What's the basic issue the court's considering? This is a

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Speaker 1: high stakes, highly consequential decision that will likely draw the

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Speaker 1: battle lines between Congress and the executive branch for years

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Speaker 1: to come, and it really focuses on the crucial question

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Speaker 1: of whether lawmakers can turn to the courts to enforce

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Speaker 1: subpoena's aimed at exposing alleged wrongdoing in the executive branch.

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Speaker 1: So Trump's lawyers here, the Justice Department lawyers argue that

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Speaker 1: Don McGan is absolutely immune to testifying. How strong is

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Speaker 1: that argument? The courts have never really directly addressed this issue, you,

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Speaker 1: which is why this is so closely watched and will

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Speaker 1: be six a consequential decision in the past. While both

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Speaker 1: sides the House of Representatives on the Executive branch have

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Speaker 1: gone to court and they have jousted with one another.

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Speaker 1: What they've always done is reached some kind of negotiated settlement.

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Speaker 1: And what really forced the settlement is the fact that

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Speaker 1: the issue was unresolved on both sides feared what the

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Speaker 1: d C Circuit might do if it actually had to

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Speaker 1: answer this question. Now we're going to find out since

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Speaker 1: both sides have dug in and there doesn't seem to

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Speaker 1: be any ability to negotiate a resolution here, Congress was

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Speaker 1: challenged about other methods, using other methods to get McGann's testimony.

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Speaker 1: If they don't enforce the subpoena, what can Congress do well,

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Speaker 1: that's really the question here. The essential argument from the

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Speaker 1: Trumpet administration is that this is basically a political question.

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Speaker 1: It's something that is a fight between two political branches

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Speaker 1: of the federal government, and the courts should not insert

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Speaker 1: themselves into this argument. The lower court, the two to

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Speaker 1: one decision by the d C Circuit which preceded this

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Speaker 1: on Bonk hearing which is taking place today, came down

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Speaker 1: along those same lines, saying that they were feared that

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Speaker 1: if they stepped in here to resolve this balance of

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Speaker 1: power dispute, that it would open up the floodgates and

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Speaker 1: the courts would be flooded with arguments between the legislative

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Speaker 1: branch and the executive branch in future battle. But the

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Speaker 1: court below said, and what the executive branch has picked

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Speaker 1: up on, is the argument that there are other avenues

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Speaker 1: of recourse for Congress if the administration refuses to cooperate

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Speaker 1: in an investigation. The court noted, for example, that they

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Speaker 1: could declare the witness in contempt, they could block funding

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Speaker 1: for the White House. But the other side of the argument,

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Speaker 1: the side of the argument that the House is arguing here,

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Speaker 1: is that those other avenues are really not realistic. At

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Speaker 1: the end of the day, if the court decides that

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Speaker 1: an executive branch official can ably ignore a Congressional subpoina,

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Speaker 1: it really gives Congress no ability to challenge that, no

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Speaker 1: ability to force that testimony, and ultimately impairs their ability

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Speaker 1: to oversee the executive branch functions to ultimately hold the

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Speaker 1: executive branch accountable if they believe there are some wrongdoing

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Speaker 1: carried on in the White House. If Congress were to

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Speaker 1: hold Don McGann in contempt of Congress, it doesn't have

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Speaker 1: any power to enforce that does it well? In theory,

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Speaker 1: the House could hold a witness in contempt, and in

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Speaker 1: rare cases even detain or jail an administration official. But

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Speaker 1: that's something that has the practical matter is not likely

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Speaker 1: to happen. And one of the questions I was asked

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Speaker 1: by the panel today was that if that did occur,

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Speaker 1: does in that place the court right back in the

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Speaker 1: mix here? If the House were to choose to theoretically

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Speaker 1: address Don McGan for failing to abide by the subpoena,

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Speaker 1: didn't the court interfere in the Nixon case? Wasn't that

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Speaker 1: an interference in the political process. One arguments that are

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Speaker 1: made by the House lawyers are that there was a

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Speaker 1: congressional demand for information during the wire Gate case, and

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Speaker 1: it went up to the Supreme Court where the House

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Speaker 1: Judiciary Committee was forcing President Nixon to turn over the tapes.

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Speaker 1: That is something that ultimately led to Nixon's resignation, and

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Speaker 1: they are arguing that this shows that the courts can,

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Speaker 1: in fact step been here when the executive branch to

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Speaker 1: simply ignoring a request for information from the House. The

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Speaker 1: difference between the decision of the Nixon case, which simply

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Speaker 1: forced Nixon to turn over tapes and to require witnesses

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Speaker 1: to testify. Is that witness testimony is more complex. It

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Speaker 1: runs into questions as to what information can be requested

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Speaker 1: of the witness, what areas can they be forced to

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Speaker 1: testify about. So it's much more consequential, and that is

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Speaker 1: the question that has never been faced before, and that's

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Speaker 1: the question that's going to be decided by the full

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Speaker 1: DC Court of Appeals in this hearing today. It has

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Speaker 1: been said by legal analysts that Congress has a better

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Speaker 1: chance of winning with the full court than it did

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Speaker 1: with a three judge panel. The political makeup of the

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Speaker 1: full DC Court of Appeals leans to democratically appointed judges,

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Speaker 1: so there's a seven to four balance between judges on

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Speaker 1: the DC Court of Appeals who were appointed by Democratic

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Speaker 1: presidents versus judges who were appointed by the Bank by

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Speaker 1: Republican presidents. Add to that the fact that two of

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Speaker 1: the four Republican appointees on the DC Court of Appeals

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Speaker 1: have recused themselves from this case because they both served

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Speaker 1: in capacities in the Trump administration. So it's effectively a

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Speaker 1: seven to two majority for democratically appointed appointed members of

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Speaker 1: the DC Court of Appeals. That's hearing this decision, and

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Speaker 1: there's no question that the decision here will ultimately go

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Speaker 1: up to the Supreme Court. Thanks Bob. That's Robert Mints,

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Speaker 1: a partner McCarter in English. First. Across the country, there

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Speaker 1: are challenges to governors stay at home orders. Some have

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Speaker 1: even reached state supreme courts. An Attorney General, William Barr

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Speaker 1: has u S attorneys on the lookout for cases to

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Speaker 1: bring against the states, joining me as former federal prosecutor

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Speaker 1: Jennifer Rogers, who teaches at Columbia Law School. In Illinois,

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Speaker 1: a judge rule that the governors stay at home order

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Speaker 1: violated the liberty of a state lawmaker. But in Pennsylvania,

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Speaker 1: the state Supreme Court rejected a challenge to the governor's

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Speaker 1: stay at home order. So how are these cases being decided? Yeah,

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Speaker 1: that's a good question. I mean, of course, each judges

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Speaker 1: his or her own person, so they're making their own ruling,

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Speaker 1: but they're also can be differing regul authorities. There were

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Speaker 1: a couple of species for the Illinois temporary restraining Order

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Speaker 1: that was requested, and one of them was whether the

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Speaker 1: Illinois Emotion Management Agency Act to restrict of the governor

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Speaker 1: from extending his order. So that's actually a legal question

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Speaker 1: that turns on Illinois law. So you could see how

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Speaker 1: there might be some differences state to state, But the

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Speaker 1: liberty into this argument that it's unconstitutional to people at

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Speaker 1: home is largely going to be the same every Americans

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Speaker 1: based on constitutional rights from the federal Constitution. So it

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Speaker 1: not sense the fact that judges might lease different results.

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Speaker 1: It doesn't make a lot of stuff. Is it a

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Speaker 1: balancing test that the judges are supposed to do? So, yeah,

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Speaker 1: there's there's always a balancing test when you're talking about

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Speaker 1: individual liberties, but the test they use depends on what

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Speaker 1: the liberty is. The liberty interests in the class and broke.

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Speaker 1: So in Illinois, you have a white male lawmaker who

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Speaker 1: said that his liberty interest is being intense because he's

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Speaker 1: forced to stay home. He's not part of any cognizable class, right,

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Speaker 1: It's just like any other person. He's not saying because

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Speaker 1: I'm africanaman in, or because I'm female, or because I'm

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Speaker 1: something like a farmer, I'm being told to stay home.

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Speaker 1: So in that situation, the government doesn't have to do

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Speaker 1: a lot to prove that they are not intended on

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Speaker 1: his liberties who's not a member of a protected class.

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Speaker 1: So that's one of the reasons why I think the

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Speaker 1: judge was wrong to say that his case would win

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Speaker 1: in court. I just think that he hasn't identified on

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Speaker 1: specific interest that that he's exercising. Just says that the

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Speaker 1: government is discriminating against him. So I think he's likely

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Speaker 1: to lose, and I think the judgement Illinois was wrong.

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Speaker 1: Is the balance the freedom of the person versus the

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Speaker 1: public safety? Is that the weighing that's being done Ultimately?

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Speaker 1: I mean it's not quote that simple, but let's say

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Speaker 1: it's got to the marriage of an argument where this

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Speaker 1: lawmaker says the other one has to stay home and

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Speaker 1: that violates my rights. Um, Eventually, what you're going to

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Speaker 1: be looking at is, you know, what interest does the

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Speaker 1: government have in ittinging on his liberty interests? It's just

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Speaker 1: like everyone else, And so you'd be thinking about how

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Speaker 1: serious is this thread? And I just think that right

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Speaker 1: now where we are, and there's no question that governments

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Speaker 1: have a very strong interest in ordering people to stay

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Speaker 1: home to stem the rise of the virus. So in

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Speaker 1: I do from now, let's say that the virus is

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Speaker 1: under control, maybe there's a vaccine. Maybe not, but it's

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Speaker 1: learned the under control the economy is open. And yet

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Speaker 1: there's one day or somewhere who's saying everyone must stay hall.

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Speaker 1: You know, at that point I think that that only

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Speaker 1: probably be things unconstitutional because you know that the balancing

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Speaker 1: of the liberty interests of the citizens, it's going to

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Speaker 1: be found to be greater than the need for them

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Speaker 1: to stay home for the public health reason. So you know,

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Speaker 1: it is a balancing test that that it's going to

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Speaker 1: shift as the facts things and where we are in

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Speaker 1: the fact, I think these orders are going to be

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Speaker 1: upheld in court. So a journey. Jam William Barr wrote

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Speaker 1: a memo threatening to sue states if they infringe on

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Speaker 1: people's freedom during the pandemic, and encouraging US attorneys to

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Speaker 1: look for cases to bring against the states. How unusual

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Speaker 1: is this, Well, it's not unusual fron Attorney General to

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Speaker 1: tell US attorneys to look out for discrimination and fraud

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Speaker 1: and other things that arise out of some sort of

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Speaker 1: emergency event. So you know, his first director to look

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Speaker 1: for fraud wasn't surprising, and it wouldn't be surprising if

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Speaker 1: he's saying, you know, hey, listened be on the lookout

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Speaker 1: for discriminatory actions by law makers that they're trying to

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Speaker 1: use the pandemic as an excuse for maybe a mayor saying, hey, listen,

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Speaker 1: you know African Americans are disproportunately affected, so they have

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Speaker 1: to stay home, but no one else does that sort

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Speaker 1: of thing. But it's very clearly not that. I mean,

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Speaker 1: it's very clearly himself. Listen. People are protesting and saying

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Speaker 1: that they want to resart the economy, and we want

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Speaker 1: to support that effectively. And perhaps who mayors and governors

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Speaker 1: who are standing in the way of that. I think

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Speaker 1: that is cretuly a jewel given the nature of this

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Speaker 1: public health threat. I mean, we just haven't seen anything

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Speaker 1: like this before. What d o J should be doing

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Speaker 1: now is ensuring that there's no discriminatory action going on,

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Speaker 1: and ensuring that they put a limit as much as

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Speaker 1: they can on fraud that's happening because of this pandemic.

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Speaker 1: Those are the things that they really should be doing,

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Speaker 1: and they sit be looking out for nationwide, not trying

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Speaker 1: to encourage full to violent stay at home orders or

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Speaker 1: threatened coal action against governors who are doing their best

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Speaker 1: in these really difficult circumstances, d o J has standing

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Speaker 1: to sue states for the violations of citizens rights, and

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Speaker 1: sometimes and then they might get some citizens involved for

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Speaker 1: personal standing reasons. But your J typically has the right

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Speaker 1: to enforce the provisions of the federal constitutions. So you

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Speaker 1: could see the U. S. Attorney s filing suit again

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Speaker 1: governors or mayors, or whatever the case may be, because

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Speaker 1: of violations to the rights of citizens there. Thanks Jennifer.

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Speaker 1: That's Jennifer Rogers, a lecturer in law at Columbia Law School.

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

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

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg yea