1 00:00:02,720 --> 00:00:06,800 Speaker 1: This is Bloomberg Law. A divided Supreme Court rejects a 2 00:00:06,920 --> 00:00:09,800 Speaker 1: religious challenge. Tell us a little about the facts of 3 00:00:09,800 --> 00:00:13,600 Speaker 1: the case. Interviews with prominent attorneys in Bloomberg Legal experts 4 00:00:13,680 --> 00:00:16,919 Speaker 1: I guess his former federal prosecutor Jimmy Garula. Joining me 5 00:00:16,960 --> 00:00:20,760 Speaker 1: is Bloomberg Law reporter Jordan Ruben. And analysis of important 6 00:00:20,800 --> 00:00:24,160 Speaker 1: legal issues, cases and headlines. The Supreme Court takes on 7 00:00:24,239 --> 00:00:28,560 Speaker 1: state secrets. Multiple lawsuits were filed against the emergency rule? 8 00:00:28,800 --> 00:00:32,639 Speaker 1: Is this lawsuit for real? Bloomberg Law with June Grasso 9 00:00:32,960 --> 00:00:39,880 Speaker 1: from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm 10 00:00:39,920 --> 00:00:43,280 Speaker 1: Greg Store and I'm Lydia Wheeler. We're in for June Grasso. 11 00:00:43,960 --> 00:00:46,280 Speaker 1: Coming up on the show, we talked with Georgetown University 12 00:00:46,360 --> 00:00:49,920 Speaker 1: law professor Josh Choppett's about Senator Lindsay Graham's fight to 13 00:00:50,000 --> 00:00:53,760 Speaker 1: avoid testifying before Georgia Grand jury and Georgia State University 14 00:00:53,800 --> 00:00:56,280 Speaker 1: law professor Eric Segal. We'll join us to talk about 15 00:00:56,280 --> 00:00:59,440 Speaker 1: who could challenge President Biden's new student loan forgiveness package. 16 00:00:59,640 --> 00:01:02,800 Speaker 1: But for first, rich Americans are hiding vast sums from 17 00:01:02,840 --> 00:01:05,320 Speaker 1: the r S by exploiting a loophole in a federal 18 00:01:05,400 --> 00:01:08,920 Speaker 1: law designed to crack down on offshore tax evasion. That's 19 00:01:08,920 --> 00:01:11,720 Speaker 1: according to a new Senate report. With us to discuss 20 00:01:11,760 --> 00:01:15,759 Speaker 1: the issue is Bloomberg News reporter Neil Weinberg. Neil, thanks 21 00:01:15,800 --> 00:01:18,680 Speaker 1: for being on with us. In a nutshell, how does 22 00:01:18,760 --> 00:01:23,600 Speaker 1: this loophole work? Basically, what happens is, according to the report, 23 00:01:23,920 --> 00:01:28,640 Speaker 1: rich Americans are putting a lot of money overseas in partnerships, 24 00:01:28,760 --> 00:01:33,560 Speaker 1: and then there is a requirement that these partnerships be 25 00:01:33,720 --> 00:01:36,880 Speaker 1: reported or investigated by foreign banks to see if it's 26 00:01:36,920 --> 00:01:40,160 Speaker 1: Americans who are parking money overseas. But there is a 27 00:01:40,160 --> 00:01:44,080 Speaker 1: way that they can register them essentially as offshore banks. 28 00:01:44,360 --> 00:01:47,960 Speaker 1: And it's a very simple process, and they are then 29 00:01:48,760 --> 00:01:53,800 Speaker 1: given a number called a Global Intermediary Identification Number, and 30 00:01:54,000 --> 00:01:57,240 Speaker 1: this absolves the banks where they put their money of 31 00:01:57,320 --> 00:02:01,520 Speaker 1: having to investigate whether they're taxed dout jing Americans, Can 32 00:02:01,560 --> 00:02:04,400 Speaker 1: you give us a sense of how widely this loophole 33 00:02:04,440 --> 00:02:08,679 Speaker 1: is being used? There aren't clear numbers on exactly how 34 00:02:08,760 --> 00:02:12,520 Speaker 1: much money is involved, but the report points out that 35 00:02:12,600 --> 00:02:16,760 Speaker 1: eight jurisdictions it looked at uh and these are places 36 00:02:16,800 --> 00:02:21,160 Speaker 1: like the Cayman Islands, St. Kitts and Nevis, Guernsey. These 37 00:02:21,160 --> 00:02:24,480 Speaker 1: are well known offshore tax savings. And of these eight 38 00:02:24,560 --> 00:02:27,440 Speaker 1: there were a total of a hundred and twenty eight 39 00:02:27,560 --> 00:02:31,280 Speaker 1: thousand of these entities. So it seems to be a 40 00:02:31,480 --> 00:02:35,840 Speaker 1: very potentially large scale problem. Shall we say, Neil, you're 41 00:02:35,840 --> 00:02:38,679 Speaker 1: writing your story about this that the report grew out 42 00:02:38,680 --> 00:02:42,760 Speaker 1: of an investigation of Robert Brackman, a billionaire software developer. 43 00:02:43,320 --> 00:02:47,680 Speaker 1: Tell us a bit about him and about his case. Sure, 44 00:02:47,720 --> 00:02:52,600 Speaker 1: he was a very low profile software mogul. He made 45 00:02:52,639 --> 00:02:57,880 Speaker 1: his original fortune selling software to automobile dealerships in the 46 00:02:57,960 --> 00:03:01,600 Speaker 1: US and elsewhere so they to run their operations. He 47 00:03:01,720 --> 00:03:06,120 Speaker 1: then became the original investor in Vista Equity Partners, of 48 00:03:06,160 --> 00:03:11,000 Speaker 1: private equity firm which was launched by Robert Smith. Together 49 00:03:11,200 --> 00:03:14,799 Speaker 1: they came up with a structure in which the profits, 50 00:03:15,040 --> 00:03:18,440 Speaker 1: the income from the investments and Vista Equity Partners would 51 00:03:18,440 --> 00:03:24,040 Speaker 1: remain off shore, and Vista was hugely successful. Has you know, 52 00:03:24,120 --> 00:03:29,320 Speaker 1: expanded greatly investing in mostly enterprise software companies, which is 53 00:03:29,360 --> 00:03:36,240 Speaker 1: Brockman's specialty. And Robert Brackman was indicted in on allegations 54 00:03:36,280 --> 00:03:39,760 Speaker 1: according to the Justice Department, that he hid over two 55 00:03:39,800 --> 00:03:45,320 Speaker 1: billion dollars in income mostly earned at Vista Equity partners Uh, 56 00:03:45,360 --> 00:03:49,200 Speaker 1: and that according to the Widen report, the report that 57 00:03:49,280 --> 00:03:52,800 Speaker 1: just came out, he was using this loophole we're referring 58 00:03:52,840 --> 00:03:56,360 Speaker 1: to where he sets up off shore of partnerships and 59 00:03:56,400 --> 00:04:01,160 Speaker 1: then turns them into financial institutions which don't have to 60 00:04:01,200 --> 00:04:04,200 Speaker 1: be reported back to the i R S. So it 61 00:04:04,280 --> 00:04:08,040 Speaker 1: seems like what happened here was that the Senate Finance 62 00:04:08,080 --> 00:04:11,920 Speaker 1: Committee investigators started looking at how could a guy get 63 00:04:11,960 --> 00:04:14,760 Speaker 1: away with a two billion dollar tax fraud for years 64 00:04:14,760 --> 00:04:18,440 Speaker 1: and years, and when they were doing their investigations, they 65 00:04:18,480 --> 00:04:22,880 Speaker 1: came upon this so called shell bank loophole, and so 66 00:04:23,000 --> 00:04:25,920 Speaker 1: it became prominent in the report that they put out 67 00:04:26,320 --> 00:04:28,920 Speaker 1: this week. Now the i r S is getting an 68 00:04:28,960 --> 00:04:32,840 Speaker 1: eighty billion dollar infusion courtesy of the so called Inflation 69 00:04:32,880 --> 00:04:35,960 Speaker 1: Reduction Act that Democrats just passed. Is that going to 70 00:04:35,960 --> 00:04:38,280 Speaker 1: give the i r S more ability to crack down 71 00:04:38,400 --> 00:04:42,240 Speaker 1: on what's happening here? It certainly would seem like it will. 72 00:04:42,480 --> 00:04:46,680 Speaker 1: And it's really notable that in the Senate report, the 73 00:04:46,760 --> 00:04:51,520 Speaker 1: Senate investigators talked with I r S officials and essentially, 74 00:04:51,560 --> 00:04:54,040 Speaker 1: according to the report, what the i r S said was, 75 00:04:54,120 --> 00:04:58,520 Speaker 1: we don't have the resources to investigate these partnerships when 76 00:04:58,520 --> 00:05:00,839 Speaker 1: they come to us and say, you know, we would 77 00:05:00,920 --> 00:05:04,600 Speaker 1: like the so called gin numbers. So essentially what the 78 00:05:04,600 --> 00:05:07,240 Speaker 1: I R S has done is thrown up its hands said, 79 00:05:07,520 --> 00:05:12,040 Speaker 1: we don't have the resources to do the very heavy 80 00:05:12,080 --> 00:05:15,919 Speaker 1: lifting to see what's behind these offshore partnerships. So they've 81 00:05:15,960 --> 00:05:21,320 Speaker 1: just almost automatically, it appears, been granting these numbers, giving 82 00:05:21,360 --> 00:05:25,760 Speaker 1: this status which involves very little oversight to as we said, 83 00:05:26,000 --> 00:05:29,360 Speaker 1: well over a hundred thousand entities. Uh in some well 84 00:05:29,400 --> 00:05:32,080 Speaker 1: known tax savants, Neil, the I R S has been 85 00:05:32,120 --> 00:05:34,719 Speaker 1: such a political lightning rod in recent years. Is this 86 00:05:34,839 --> 00:05:37,360 Speaker 1: something that's kind of destined to become a Republican versus 87 00:05:37,360 --> 00:05:41,440 Speaker 1: Democratic issue? Well, it certainly has become a Republican versus 88 00:05:41,480 --> 00:05:46,719 Speaker 1: a Democratic issue already, And it would certainly seem that 89 00:05:47,000 --> 00:05:50,320 Speaker 1: if the Democrats are true to their word that what 90 00:05:50,360 --> 00:05:53,680 Speaker 1: they're trying to do is focus on the real big offenders. 91 00:05:54,120 --> 00:05:58,800 Speaker 1: Then this Robert Brockman uh and the allegations against him, 92 00:05:59,000 --> 00:06:02,159 Speaker 1: that certainly seemed to be a prime example of how 93 00:06:02,640 --> 00:06:06,839 Speaker 1: very rich Americans are going offshore in many cases to 94 00:06:07,240 --> 00:06:11,000 Speaker 1: hide their money and avoid paying taxes. Uh. They also 95 00:06:11,120 --> 00:06:15,240 Speaker 1: note in this report that, of course this went on 96 00:06:15,360 --> 00:06:18,720 Speaker 1: for many years. In addition, it wasn't as if the 97 00:06:18,800 --> 00:06:23,320 Speaker 1: I R S through its own investigative work uncovered this. 98 00:06:23,720 --> 00:06:27,040 Speaker 1: It was actually uncovered with the help of a whistleblower 99 00:06:27,120 --> 00:06:30,960 Speaker 1: at this to Equity Partners and some other cooperating witnesses. 100 00:06:31,720 --> 00:06:34,839 Speaker 1: So the report also suggests that the I R S 101 00:06:34,839 --> 00:06:38,680 Speaker 1: should be strengthening its whistleblower office so that people who 102 00:06:38,720 --> 00:06:40,680 Speaker 1: are in the mill will come to it and be 103 00:06:40,720 --> 00:06:45,000 Speaker 1: incentivized to do so. That's Bloomberg News reporter Neil Weinberg. Neil, 104 00:06:45,120 --> 00:06:48,360 Speaker 1: thanks so much for joining us. You're listening to Bloomberg Law. 105 00:06:48,760 --> 00:06:52,160 Speaker 1: Up next, a U S senator says the constitution shields 106 00:06:52,200 --> 00:06:54,760 Speaker 1: him from having to testify before a Georgia grand jury 107 00:06:55,120 --> 00:06:59,680 Speaker 1: investigating Donald Trump's efforts to overturn the presidential election. I'm 108 00:06:59,720 --> 00:07:11,320 Speaker 1: Greg Store and I'm Lidia Wheeler. This is Bloomberg. This 109 00:07:11,800 --> 00:07:17,040 Speaker 1: is Bloomberg Law with June Brasso from Bloomberg Radio. I'm 110 00:07:17,080 --> 00:07:20,280 Speaker 1: Gregg Store and I'm Lidia Wheeler. We're in for June Grasso. 111 00:07:20,840 --> 00:07:24,400 Speaker 1: We're joined now by Georgetown University law professor Josh Choppetts 112 00:07:24,480 --> 00:07:26,960 Speaker 1: to talk about Senator Lindsey Graham and his efforts to 113 00:07:27,000 --> 00:07:30,400 Speaker 1: avoid testifying before the Georgia Grand Jury that's investigating whether 114 00:07:30,480 --> 00:07:34,640 Speaker 1: President Trump and his allies interfered with the election. Josh, 115 00:07:34,640 --> 00:07:36,800 Speaker 1: can you start off by telling us why investigators want 116 00:07:36,840 --> 00:07:39,720 Speaker 1: to talk to Senator Graham? Sure? Well. There have been 117 00:07:39,800 --> 00:07:45,400 Speaker 1: allegations that Graham basically tried to pressure state officials into, 118 00:07:45,600 --> 00:07:48,040 Speaker 1: as President Trump put it through, coming up with the 119 00:07:48,200 --> 00:07:51,800 Speaker 1: necessary votes to throw George's Electoral College votes to Trump 120 00:07:51,880 --> 00:07:53,880 Speaker 1: rather than to Biden, who in fact won the state. 121 00:07:54,480 --> 00:07:56,200 Speaker 1: So they want to question him as part of their 122 00:07:56,240 --> 00:08:00,640 Speaker 1: investigation into that sort of broader occurrence. So endaor Graham 123 00:08:00,720 --> 00:08:03,960 Speaker 1: argues that the two calls he made to Brad Rathfensburger, 124 00:08:04,000 --> 00:08:07,880 Speaker 1: the Georgia Secretary of State, are protected by the constitutions 125 00:08:07,920 --> 00:08:10,640 Speaker 1: speech or debate clause. Can you tell us what the 126 00:08:10,640 --> 00:08:13,520 Speaker 1: speech or debate clause is, what it was designed to do. 127 00:08:14,600 --> 00:08:17,320 Speaker 1: Sure so. It's in the article one such in five 128 00:08:17,320 --> 00:08:20,440 Speaker 1: of the Constitution, and it says that members of either 129 00:08:20,520 --> 00:08:23,600 Speaker 1: Chamber of Congress shall not be questioned in any other 130 00:08:23,640 --> 00:08:26,600 Speaker 1: place for anything that they say in speech or debate. 131 00:08:27,000 --> 00:08:28,920 Speaker 1: And speech or debate has always been understood to be 132 00:08:29,080 --> 00:08:32,280 Speaker 1: sort of synecticy for the wider universe of things that 133 00:08:32,440 --> 00:08:35,040 Speaker 1: mes do as part of their official duties as members 134 00:08:35,080 --> 00:08:37,600 Speaker 1: of Congress. So, um, it includes things that are technically 135 00:08:37,600 --> 00:08:42,320 Speaker 1: speaking or debating, voting, or participating in committee activities, things 136 00:08:42,360 --> 00:08:45,840 Speaker 1: like that. And essentially it was meant to protect members 137 00:08:45,880 --> 00:08:49,200 Speaker 1: of the legislature from two things. One is harassment by 138 00:08:49,240 --> 00:08:52,800 Speaker 1: the other branches, so you know, criminal proceedings instigated by 139 00:08:52,840 --> 00:08:55,880 Speaker 1: the executive branch and brought before the judiciary. And then 140 00:08:55,880 --> 00:08:58,439 Speaker 1: the second thing is it was meant to protect against 141 00:08:58,480 --> 00:09:00,960 Speaker 1: harassment from sort of just individual little citizens, right, So 142 00:09:01,080 --> 00:09:03,360 Speaker 1: it was thought that if members had to spend all 143 00:09:03,400 --> 00:09:06,920 Speaker 1: their time answering lawsuits from citizens, they might not have 144 00:09:07,040 --> 00:09:09,640 Speaker 1: enough time to actually do the public business. So it 145 00:09:09,720 --> 00:09:12,680 Speaker 1: was meant to sort of insulate their official activities from 146 00:09:12,679 --> 00:09:16,000 Speaker 1: both of these things. A district court rejected Sender Graham's 147 00:09:16,080 --> 00:09:18,880 Speaker 1: arguments that this clause protects his clause, and then the 148 00:09:18,880 --> 00:09:21,480 Speaker 1: appeals court came back and put that ruling on hold 149 00:09:21,600 --> 00:09:23,520 Speaker 1: and sent the case back to the district court for 150 00:09:23,520 --> 00:09:26,599 Speaker 1: additional argument. Now do you think there's any merit to 151 00:09:26,640 --> 00:09:29,760 Speaker 1: what center Graham claims here? So I actually think this 152 00:09:29,840 --> 00:09:32,720 Speaker 1: is a tough case, so, you know, Graham. Graham's argument 153 00:09:32,760 --> 00:09:36,360 Speaker 1: basically is twofold one that he is you know, a 154 00:09:36,400 --> 00:09:39,240 Speaker 1: member and Senate and therefore, under the Constitution and the 155 00:09:39,240 --> 00:09:43,560 Speaker 1: Electoral Account Act, he has a role in deciding whether 156 00:09:43,640 --> 00:09:46,800 Speaker 1: or not to certify the electoral votes from any particular state, 157 00:09:46,840 --> 00:09:49,400 Speaker 1: including charge of and then to that at the time, 158 00:09:49,559 --> 00:09:51,880 Speaker 1: he was also the chair of the Senate Judiciary Committee 159 00:09:52,080 --> 00:09:55,440 Speaker 1: and so actually had jurisdiction over things like Electoral Account 160 00:09:55,480 --> 00:09:58,240 Speaker 1: Act reform and issues like that. His argument is that 161 00:09:58,360 --> 00:10:00,200 Speaker 1: both of those sort of mean that he had a 162 00:10:00,280 --> 00:10:03,320 Speaker 1: legitimate legislative interest in that. It is certainly the case 163 00:10:03,480 --> 00:10:06,960 Speaker 1: that sort of fact finding by members of Congress is 164 00:10:07,000 --> 00:10:10,160 Speaker 1: protected under the speech or debate clause. It would be 165 00:10:10,200 --> 00:10:12,440 Speaker 1: sort of strange to say that members sort of had 166 00:10:12,440 --> 00:10:15,080 Speaker 1: no right to sort of arm themselves with facts or 167 00:10:15,080 --> 00:10:17,360 Speaker 1: no protections when they did so. And the Supreme Court 168 00:10:17,360 --> 00:10:20,479 Speaker 1: has sent it in several cases that fact finding is protected. 169 00:10:21,040 --> 00:10:24,079 Speaker 1: You know, there is at least a colorable claim here. Now, obviously, 170 00:10:24,520 --> 00:10:27,520 Speaker 1: what prosecutors are saying is, look, this wasn't about fact finding. 171 00:10:27,520 --> 00:10:30,199 Speaker 1: This was about attempting to apply pressure. And that is 172 00:10:30,240 --> 00:10:32,640 Speaker 1: also you know, sort of a strong argument right, if 173 00:10:32,679 --> 00:10:34,680 Speaker 1: he wasn't in fact attempting to apply pressure, that would 174 00:10:34,679 --> 00:10:36,240 Speaker 1: seem to be outside of his role as a member 175 00:10:36,240 --> 00:10:38,640 Speaker 1: of Congress, and he'd be acting in a role as 176 00:10:38,640 --> 00:10:41,520 Speaker 1: a sort of partisan or practical just part of a citizen, 177 00:10:41,679 --> 00:10:43,520 Speaker 1: in which case this would fall outside the protections in 178 00:10:43,600 --> 00:10:45,640 Speaker 1: speech or debate clause. So I think there are actually 179 00:10:45,880 --> 00:10:49,720 Speaker 1: sort of legitimate arguments on both sides here. So Senator 180 00:10:49,760 --> 00:10:52,760 Speaker 1: Graham's lawyers say that he's so far as only a 181 00:10:52,800 --> 00:10:57,000 Speaker 1: witness in this investigation and hasn't been accused of any wrongdoing. 182 00:10:57,679 --> 00:11:01,160 Speaker 1: Does that matter at all in this anna? This is no, 183 00:11:01,480 --> 00:11:04,679 Speaker 1: it shouldn't. So the speech to debate clause protects members 184 00:11:04,720 --> 00:11:07,320 Speaker 1: against service of process for anything they're doing in their 185 00:11:07,320 --> 00:11:09,920 Speaker 1: official duty, So it protects them against being sort of 186 00:11:09,920 --> 00:11:14,000 Speaker 1: called unwillingly as witnesses, as well as against being prosecuted. 187 00:11:14,760 --> 00:11:18,280 Speaker 1: Is there a way for the district court or the 188 00:11:18,280 --> 00:11:21,800 Speaker 1: appeals court to essentially split the baby here or come 189 00:11:21,880 --> 00:11:25,920 Speaker 1: up with a way in which Senatogram maybe has to 190 00:11:26,000 --> 00:11:30,360 Speaker 1: testify but doesn't have to answer every question. The court 191 00:11:30,440 --> 00:11:32,800 Speaker 1: certainly could do that, and I think, you know, maybe 192 00:11:32,800 --> 00:11:35,880 Speaker 1: that that's even a likely outcome here, is to say, well, 193 00:11:35,920 --> 00:11:38,600 Speaker 1: you know, if you were asking questions and gathering information, 194 00:11:38,960 --> 00:11:40,480 Speaker 1: you don't have to talk about that. But if you 195 00:11:40,520 --> 00:11:43,400 Speaker 1: were actually sort of making declaratory statements or putting pressure, 196 00:11:43,440 --> 00:11:46,120 Speaker 1: you do have to talk about that. I think that's plausible. 197 00:11:46,360 --> 00:11:48,760 Speaker 1: I do think that still raises some sort of difficult 198 00:11:48,760 --> 00:11:51,640 Speaker 1: issues both of line drawing, right, how do you exactly 199 00:11:51,679 --> 00:11:54,320 Speaker 1: distinguish between those two, Because of course something can be 200 00:11:54,360 --> 00:11:56,800 Speaker 1: phrased as a question that obviously meant to sort of 201 00:11:56,840 --> 00:11:59,920 Speaker 1: put pressure on someone. But even beyond the sort of 202 00:12:00,200 --> 00:12:03,200 Speaker 1: mind drawing questions, you know, part of the purpose of 203 00:12:03,240 --> 00:12:05,080 Speaker 1: the speech or debate clause is to be a sort 204 00:12:05,080 --> 00:12:07,559 Speaker 1: of jurisdictional bar. It's to be in some sense of 205 00:12:07,600 --> 00:12:11,319 Speaker 1: blunt instrument to say, uh, look, we don't want those 206 00:12:11,400 --> 00:12:13,680 Speaker 1: kinds of fine distinctions to actually have to come before 207 00:12:13,679 --> 00:12:16,000 Speaker 1: a judge, because part of the purpose of this clause 208 00:12:16,200 --> 00:12:20,080 Speaker 1: is to say these, you know, judges are not disinterested 209 00:12:20,120 --> 00:12:22,800 Speaker 1: parties in separation of powers disputes, They're one of the branches. 210 00:12:22,880 --> 00:12:25,000 Speaker 1: One of the things we want to protect members against 211 00:12:25,040 --> 00:12:27,760 Speaker 1: is um sort of compulsion to to appear before other 212 00:12:27,800 --> 00:12:30,320 Speaker 1: governing officials um. And so we want to create a 213 00:12:30,360 --> 00:12:32,840 Speaker 1: sort of strong bar saying, you know, you can't be 214 00:12:32,920 --> 00:12:35,560 Speaker 1: questioned about what you did. So the finer you try 215 00:12:35,600 --> 00:12:39,040 Speaker 1: to draw these distinctions, the more you're sort of necessarily 216 00:12:39,280 --> 00:12:42,560 Speaker 1: going to be involving judges in and saying, well, this 217 00:12:42,640 --> 00:12:45,199 Speaker 1: is legislative activity, but that's not. You can be questioned 218 00:12:45,200 --> 00:12:47,839 Speaker 1: about this but not about that, and that itself sort 219 00:12:47,840 --> 00:12:49,880 Speaker 1: of undermines some of the values that the speechure debate 220 00:12:49,880 --> 00:12:52,319 Speaker 1: clause is meant to protect. You mentioned that this is 221 00:12:52,360 --> 00:12:54,280 Speaker 1: a hard case, and I was hoping that you could 222 00:12:54,280 --> 00:12:56,800 Speaker 1: elaborate a little bit more on why it isn't so 223 00:12:56,840 --> 00:13:01,160 Speaker 1: cutt and and dry. You know, members do a lot 224 00:13:01,320 --> 00:13:05,200 Speaker 1: of different things in their capacity as members, right They 225 00:13:05,240 --> 00:13:07,760 Speaker 1: you know, they participate in the crafting of legislation, debating 226 00:13:07,760 --> 00:13:09,880 Speaker 1: it on the floor, debating and committee, but they also 227 00:13:09,960 --> 00:13:14,160 Speaker 1: participate in sort of broader oversight. They do constituent services, 228 00:13:14,280 --> 00:13:17,400 Speaker 1: things like that. It's true that a lot of the 229 00:13:17,400 --> 00:13:19,679 Speaker 1: federal judicial case law, on the scope of the speeure 230 00:13:19,720 --> 00:13:22,120 Speaker 1: debate clause has tried to sort of draw these distinctions 231 00:13:22,120 --> 00:13:24,600 Speaker 1: between things. So the courts have said, I think wrongly, 232 00:13:24,640 --> 00:13:27,559 Speaker 1: But what they have said is that things like constituent 233 00:13:27,640 --> 00:13:32,240 Speaker 1: services or giving press conferences those are talking to the media, 234 00:13:32,320 --> 00:13:35,319 Speaker 1: those things are actually not covered by the speeture debate clause. 235 00:13:35,760 --> 00:13:38,080 Speaker 1: But even within the courts again in my view, two 236 00:13:38,160 --> 00:13:40,880 Speaker 1: restrictive understanding of the scope of the clause. They have 237 00:13:41,040 --> 00:13:44,199 Speaker 1: said that gathering information is within the scope of the 238 00:13:44,240 --> 00:13:47,000 Speaker 1: speeture debate clause, but attempting to sort of figure out 239 00:13:47,000 --> 00:13:49,679 Speaker 1: what's going on and bring that information back to your 240 00:13:49,760 --> 00:13:52,840 Speaker 1: role as a legislator, as an overseer, that that is 241 00:13:52,960 --> 00:13:55,760 Speaker 1: in fact activity protected by the clause. And again Graham 242 00:13:55,840 --> 00:13:58,440 Speaker 1: is arguing that that's exactly what he was doing, and 243 00:13:58,760 --> 00:14:01,800 Speaker 1: you know, to the extent that he was asking for information, 244 00:14:02,440 --> 00:14:04,920 Speaker 1: that's perfectly plausible because again he did have a role, 245 00:14:05,360 --> 00:14:07,160 Speaker 1: you know, in the question of whether or not electoral 246 00:14:07,320 --> 00:14:10,240 Speaker 1: votes from Georgia should be certified, etcetera. Just to be clear, 247 00:14:10,400 --> 00:14:12,160 Speaker 1: none of this turns on the question of whether Graham 248 00:14:12,240 --> 00:14:15,040 Speaker 1: was sort of a good actor. I think there's no 249 00:14:15,160 --> 00:14:18,199 Speaker 1: reasonable factual question here, and I think that Georgia clearly 250 00:14:18,280 --> 00:14:21,160 Speaker 1: voted for Biden, and I think Graham was was probably 251 00:14:21,200 --> 00:14:24,440 Speaker 1: acting in bad faith here. But you know, legal privileges 252 00:14:24,520 --> 00:14:27,240 Speaker 1: often operate to protect people who are acting in bad 253 00:14:27,280 --> 00:14:30,160 Speaker 1: faith or operate to protect bad actors. Right, everything from 254 00:14:30,160 --> 00:14:33,440 Speaker 1: a turning client privilege to preest penitent privilege. Right. They 255 00:14:33,440 --> 00:14:36,120 Speaker 1: shield information that might be evidence of bad acting on 256 00:14:36,120 --> 00:14:39,720 Speaker 1: someone's part. And yet we accept those privileges because we 257 00:14:39,760 --> 00:14:42,800 Speaker 1: think they serve a broader social purpose. Speeture Debate clause 258 00:14:42,840 --> 00:14:45,320 Speaker 1: does something similar, and so I think, even though I 259 00:14:45,360 --> 00:14:48,400 Speaker 1: don't think Graham was sort of acting in the public 260 00:14:48,440 --> 00:14:50,960 Speaker 1: interest here, I think there is an argument that the 261 00:14:51,000 --> 00:14:53,840 Speaker 1: speechure Debate clause serves a broader public purpose and therefore 262 00:14:53,840 --> 00:14:57,480 Speaker 1: should potentially shield his behavior in this case. You're listening 263 00:14:57,480 --> 00:15:00,640 Speaker 1: to Bloomberg Law. Coming up next, we continue our conversation 264 00:15:00,680 --> 00:15:04,920 Speaker 1: with Georgetown University law professor Josh Chocolates. I'm Gregg Store 265 00:15:05,120 --> 00:15:17,080 Speaker 1: and I'm Lydia Wheeler. This is Bloomberg. This is Bloomberg 266 00:15:17,200 --> 00:15:22,560 Speaker 1: Law with June Grasso from Bloomberg Radio. I'm Gregg Store 267 00:15:22,720 --> 00:15:25,720 Speaker 1: and I'm Lydia Wheeler. We're in for June Grasso. We've 268 00:15:25,720 --> 00:15:29,480 Speaker 1: been talking with Georgetown University law professor Josh Chocolates. Josh, 269 00:15:29,560 --> 00:15:31,320 Speaker 1: can you tell us or do you know of any 270 00:15:31,360 --> 00:15:34,680 Speaker 1: instances where the Speech and Debate Clause has protected a 271 00:15:34,680 --> 00:15:38,560 Speaker 1: sitting member of Congress from having to testify before grand jury. Um. 272 00:15:38,560 --> 00:15:41,480 Speaker 1: So yes, there have been a number of cases where 273 00:15:41,520 --> 00:15:43,840 Speaker 1: it has served that function. I think in some ways. 274 00:15:43,840 --> 00:15:47,520 Speaker 1: Perhaps the most relevant one here might be in seven 275 00:15:47,600 --> 00:15:51,280 Speaker 1: case don Browski versus Eastland, Supreme Court case where Senator 276 00:15:51,280 --> 00:15:54,080 Speaker 1: Eastland was held to be immune from suit and therefore 277 00:15:54,080 --> 00:15:57,400 Speaker 1: it didn't have to testify as a result of investigations 278 00:15:57,400 --> 00:15:59,920 Speaker 1: that his committee had been carrying out that we're a 279 00:16:00,040 --> 00:16:02,760 Speaker 1: ledg to violate the civil rights of various private citizens. 280 00:16:03,200 --> 00:16:04,760 Speaker 1: The clause is also one of the things that operates 281 00:16:04,760 --> 00:16:06,640 Speaker 1: in the shadows right. There are plenty of situations in 282 00:16:06,640 --> 00:16:10,040 Speaker 1: which someone either isn't called to testify or there isn't 283 00:16:10,040 --> 00:16:11,960 Speaker 1: even sort of a thought of bringing them into testified 284 00:16:12,000 --> 00:16:14,960 Speaker 1: because their members. Has the clause ever made its way 285 00:16:15,040 --> 00:16:18,680 Speaker 1: up to the Supreme Court, And regardless, is there a 286 00:16:18,720 --> 00:16:21,720 Speaker 1: sense as to if this were a dispute that made 287 00:16:21,760 --> 00:16:24,760 Speaker 1: it up to this Supreme Court, what the Court might 288 00:16:24,840 --> 00:16:27,520 Speaker 1: think of the speech or debate clause. So so, the 289 00:16:27,720 --> 00:16:29,640 Speaker 1: clause is made up to the Supreme Court a number 290 00:16:29,640 --> 00:16:33,240 Speaker 1: of times in various contexts, and what the Court has 291 00:16:33,520 --> 00:16:37,080 Speaker 1: done in a somewhat consistent way is try to both 292 00:16:37,480 --> 00:16:41,200 Speaker 1: draw a distinction between things that it considers truly legislative 293 00:16:41,200 --> 00:16:43,560 Speaker 1: activity on the one hand, and things that it considers 294 00:16:43,600 --> 00:16:46,400 Speaker 1: sort of ancillary to the congressional job on the other 295 00:16:46,840 --> 00:16:49,080 Speaker 1: and then give really strong protection to the things that 296 00:16:49,080 --> 00:16:52,160 Speaker 1: it considers sort of truly central. So, in some sense, 297 00:16:52,280 --> 00:16:54,760 Speaker 1: the the sort of modern central case for this is 298 00:16:54,800 --> 00:16:58,800 Speaker 1: the Gravelle case. So Senator Mike Gravel read much of 299 00:16:58,840 --> 00:17:02,280 Speaker 1: the pented on papers to a Senate subcommittee hearing, and 300 00:17:02,320 --> 00:17:05,840 Speaker 1: then there was a subsequent grand jury investigation. There were 301 00:17:05,880 --> 00:17:08,320 Speaker 1: sort of two questions in that grand jury. There were 302 00:17:08,320 --> 00:17:12,679 Speaker 1: subpoenas issued to one of Gravel's aids, Leonard Rodberg, UM, 303 00:17:12,800 --> 00:17:17,080 Speaker 1: and to a private publisher with whom Gravel tried to 304 00:17:17,160 --> 00:17:20,640 Speaker 1: publish his excerpts from the Pentagon papers, and Gravel moved 305 00:17:20,680 --> 00:17:23,199 Speaker 1: to quash those subpoenas, And what the court said was 306 00:17:23,600 --> 00:17:26,080 Speaker 1: sort of split the baby. It said that Rodberg was 307 00:17:26,119 --> 00:17:29,000 Speaker 1: absolutely immune because he was, as the court said, Grivel's 308 00:17:29,040 --> 00:17:32,840 Speaker 1: alter ego. So even staff members could get the protection 309 00:17:32,840 --> 00:17:35,040 Speaker 1: of the speech er debate clause if what they were 310 00:17:35,080 --> 00:17:38,240 Speaker 1: doing was sort of central to in this case, committee worked. 311 00:17:38,520 --> 00:17:42,400 Speaker 1: But they said the arrangement to publish the Pentagon papers 312 00:17:42,480 --> 00:17:45,840 Speaker 1: was didn't receive any protection at all because the court 313 00:17:45,880 --> 00:17:48,600 Speaker 1: said communication with the public actually isn't sort of core 314 00:17:48,640 --> 00:17:51,640 Speaker 1: to what members do. And then sort of subsequent cases, 315 00:17:51,680 --> 00:17:53,520 Speaker 1: both in the Supreme Court and the federal Courts of 316 00:17:53,520 --> 00:17:56,280 Speaker 1: Appeals have have sort of continued along this line, saying 317 00:17:56,520 --> 00:18:00,000 Speaker 1: communication with the public, sometimes even communication with other agencies 318 00:18:00,440 --> 00:18:03,720 Speaker 1: of the federal government or constituent services, those things that 319 00:18:03,760 --> 00:18:06,440 Speaker 1: the courts have said are not core legislative behavior and 320 00:18:06,480 --> 00:18:09,640 Speaker 1: therefore don't get speech to debate privileged. Whereas things done 321 00:18:09,680 --> 00:18:12,440 Speaker 1: on the floor, things done in committee are core legislative 322 00:18:12,440 --> 00:18:15,760 Speaker 1: behavior and do as to what this court would do, 323 00:18:16,480 --> 00:18:18,200 Speaker 1: I don't see any reason in particular to think it 324 00:18:18,200 --> 00:18:20,800 Speaker 1: would sort of deviate from that sort of general distinction. 325 00:18:21,520 --> 00:18:25,520 Speaker 1: That said, I think this court has perhaps widely stayed 326 00:18:25,640 --> 00:18:29,280 Speaker 1: very far away from any cases really dealing with the election, 327 00:18:29,320 --> 00:18:32,080 Speaker 1: and I can't imagine it would want to take this case. 328 00:18:32,600 --> 00:18:35,040 Speaker 1: You mentioned that this is a clause that operates in 329 00:18:35,080 --> 00:18:38,000 Speaker 1: the shadows. Can you tell us when does it most 330 00:18:38,080 --> 00:18:41,120 Speaker 1: often come into play? And is it used to protect 331 00:18:41,280 --> 00:18:45,479 Speaker 1: sitting members of Congress? Sure? So, for example, one good example, 332 00:18:45,560 --> 00:18:47,480 Speaker 1: sort of following up on the rebel case of when 333 00:18:47,480 --> 00:18:50,960 Speaker 1: it comes into play is that members, not frequently, but 334 00:18:51,000 --> 00:18:56,480 Speaker 1: on occasion have either revealed classified information or gotten awfully 335 00:18:56,520 --> 00:18:59,280 Speaker 1: close to the line of revealing classified information on the floor. 336 00:19:00,080 --> 00:19:02,680 Speaker 1: So this was the case when Grivell read the Pentagon 337 00:19:02,720 --> 00:19:04,960 Speaker 1: papers into the record, but it was also the case 338 00:19:05,200 --> 00:19:09,000 Speaker 1: House member named Henry Gonzalez from Texas revealed classified information 339 00:19:09,440 --> 00:19:11,920 Speaker 1: about the sort of run up to the First War 340 00:19:12,080 --> 00:19:15,920 Speaker 1: on the floor of the House. More recently, Senators Widen, 341 00:19:16,080 --> 00:19:19,359 Speaker 1: you all and Rockefeller all talked about sort of the 342 00:19:19,400 --> 00:19:22,240 Speaker 1: operation of the Patriot Act at a level of specificity 343 00:19:22,359 --> 00:19:24,760 Speaker 1: that was at least coming close to the line of 344 00:19:24,800 --> 00:19:27,600 Speaker 1: revealing classified information on the floor. And they were all 345 00:19:27,640 --> 00:19:30,639 Speaker 1: able to do that precisely because they knew they couldn't 346 00:19:30,680 --> 00:19:33,000 Speaker 1: be prosecuted for it. And I would say that's a 347 00:19:33,000 --> 00:19:36,000 Speaker 1: good thing, right, That is to say, it basically says 348 00:19:36,000 --> 00:19:38,520 Speaker 1: to the executive branch, you know, classification and how you 349 00:19:38,560 --> 00:19:41,359 Speaker 1: decide how to handle information. But that information doesn't belong 350 00:19:41,400 --> 00:19:44,000 Speaker 1: to the executive It belongs to the American people. Members 351 00:19:44,040 --> 00:19:47,480 Speaker 1: of Congress represent the people as well, and so we 352 00:19:47,760 --> 00:19:49,879 Speaker 1: sort of can make our own determinations about what the 353 00:19:49,920 --> 00:19:52,040 Speaker 1: American people ought to know. It's a it's an important 354 00:19:52,040 --> 00:19:55,479 Speaker 1: sort of executive checking function, and it precisely doesn't make 355 00:19:55,520 --> 00:19:58,520 Speaker 1: it into the court because everyone agreed that that behavior 356 00:19:58,600 --> 00:20:00,719 Speaker 1: is protected by the feat of the big Club. Stepping 357 00:20:00,760 --> 00:20:03,440 Speaker 1: back for a second, this investigation, what do you see 358 00:20:03,480 --> 00:20:05,360 Speaker 1: coming from it is there is a real legal risk 359 00:20:05,359 --> 00:20:08,040 Speaker 1: of former President Trump here. I mean, that's a little 360 00:20:08,040 --> 00:20:10,600 Speaker 1: bit outside my ken as someone who really doesn't know 361 00:20:10,680 --> 00:20:13,600 Speaker 1: much about Georgia criminal law here, But you know, I 362 00:20:13,640 --> 00:20:15,760 Speaker 1: think what we can certainly say is that something we've 363 00:20:15,800 --> 00:20:17,760 Speaker 1: known ever since the recording of this phone call was 364 00:20:17,800 --> 00:20:20,000 Speaker 1: released by Raffinsburger is that, you know, there was some 365 00:20:20,119 --> 00:20:24,199 Speaker 1: really inappropriate pressure put on Georgia officials here by Trump 366 00:20:24,280 --> 00:20:26,880 Speaker 1: and by those working on his behalf, and that had 367 00:20:26,960 --> 00:20:30,040 Speaker 1: that pressure had the potential to do tremendous damage to 368 00:20:30,080 --> 00:20:33,080 Speaker 1: our political and constitutional system um. And to my mind, 369 00:20:33,119 --> 00:20:35,880 Speaker 1: that's sort of the more important conclusion than whether any 370 00:20:35,920 --> 00:20:40,480 Speaker 1: individual might have violated any particular criminal stricture. That's Georgetown 371 00:20:40,560 --> 00:20:43,920 Speaker 1: University law professor Josh Chafets, thanks for being with us. 372 00:20:44,480 --> 00:20:46,960 Speaker 1: Up next, we talked with Georgia State University law professor 373 00:20:47,080 --> 00:20:50,200 Speaker 1: Eric Segal about who could potentially challenge President Trump. Student 374 00:20:50,200 --> 00:20:53,840 Speaker 1: loan forgiveness package. You're listening to Bloomberg Law. I'm Lidia 375 00:20:53,880 --> 00:21:05,679 Speaker 1: Wheeler and I'm Greg's store. This is Bloomberg. This is 376 00:21:05,720 --> 00:21:10,960 Speaker 1: Bloomberg Law with June Grasso from Bloomberg Radio. I'm Luddy 377 00:21:11,040 --> 00:21:13,920 Speaker 1: Wheeler and I'm Greg's store. We're in for June Grasso. 378 00:21:14,520 --> 00:21:17,840 Speaker 1: On Wednesday, President Joe Biden unveiled a sweeping student debt 379 00:21:17,840 --> 00:21:21,000 Speaker 1: relief package that cancels as much as dollars in debt 380 00:21:21,040 --> 00:21:24,200 Speaker 1: for some people. Joining us now is Georgia State University 381 00:21:24,240 --> 00:21:27,480 Speaker 1: College of Law professor Eric Siegel to talk about whether 382 00:21:27,760 --> 00:21:31,560 Speaker 1: the student debt relief plan could face legal challenges. Eric, 383 00:21:31,560 --> 00:21:33,560 Speaker 1: thanks so much for being on with us. Let's just 384 00:21:33,600 --> 00:21:36,600 Speaker 1: first start, um, do you think it's likely that we 385 00:21:36,640 --> 00:21:40,440 Speaker 1: will see some sort of lawsuit challenging this package. Well, 386 00:21:40,560 --> 00:21:44,120 Speaker 1: these days, anytime the executive branch does anything to anybody 387 00:21:44,119 --> 00:21:47,240 Speaker 1: about anything, that is usually a lawsuit. So I suspect 388 00:21:47,560 --> 00:21:51,040 Speaker 1: we will see plenty of lawsuits. Silvers. You know, we 389 00:21:51,160 --> 00:21:54,560 Speaker 1: know that party has to be injured by the plan 390 00:21:54,640 --> 00:21:56,479 Speaker 1: in some way in order to have what's known as 391 00:21:56,520 --> 00:21:59,000 Speaker 1: standing to bring a legal challenge. But can you tell 392 00:21:59,040 --> 00:22:01,440 Speaker 1: us who might be to do that? Right? So, this. 393 00:22:01,520 --> 00:22:03,800 Speaker 1: Backing up a minute, the Supreme Court has said that 394 00:22:03,880 --> 00:22:06,359 Speaker 1: for a plaintiffs to have standing in any federal court, 395 00:22:07,200 --> 00:22:09,200 Speaker 1: the planeff has to have an injury that was caused 396 00:22:09,200 --> 00:22:11,640 Speaker 1: by the defendant that can be redressed by the court. 397 00:22:12,119 --> 00:22:15,920 Speaker 1: Those are constitutional factors because these other kind of prudential factors, 398 00:22:15,920 --> 00:22:18,520 Speaker 1: one of which is the PLANEFF has to be in 399 00:22:18,520 --> 00:22:21,280 Speaker 1: the zone of interests of the statute that he's claiming 400 00:22:21,480 --> 00:22:24,320 Speaker 1: is being violated at is harming him. So in this case, 401 00:22:24,640 --> 00:22:28,440 Speaker 1: I don't think anyone we really have standing except for 402 00:22:28,600 --> 00:22:31,959 Speaker 1: those people those banks that service the loans. If they 403 00:22:32,000 --> 00:22:36,000 Speaker 1: can show they lost money because of this change in policy, 404 00:22:36,240 --> 00:22:39,320 Speaker 1: then certainly losing money is the most traditional injury, and 405 00:22:39,359 --> 00:22:43,400 Speaker 1: they would meet the constitutional requirements these loan services. However, 406 00:22:43,880 --> 00:22:46,600 Speaker 1: I don't think they would have standing under this so 407 00:22:46,720 --> 00:22:50,320 Speaker 1: called zone of interest tests because there's nothing in any 408 00:22:50,359 --> 00:22:53,840 Speaker 1: of the student loans statutes or regulations that are meant 409 00:22:53,880 --> 00:22:57,600 Speaker 1: to protect the people who serviced the loans. This statutory 410 00:22:57,640 --> 00:23:02,520 Speaker 1: scheme and regulatory scheme is for students and their families 411 00:23:02,560 --> 00:23:06,000 Speaker 1: to help provide financial assistance for education, and they're the 412 00:23:06,040 --> 00:23:09,400 Speaker 1: ones the statute is supposed to protect. Now, sorry, one 413 00:23:09,400 --> 00:23:12,080 Speaker 1: more thing. Having said all of that, as I've said 414 00:23:12,119 --> 00:23:14,920 Speaker 1: and written many times, including about the Moment's case in 415 00:23:14,960 --> 00:23:17,040 Speaker 1: the l A Times and other places, I like to 416 00:23:17,119 --> 00:23:20,600 Speaker 1: use this expression. Standing is what standing does and the 417 00:23:20,640 --> 00:23:22,520 Speaker 1: way I mean, and what I mean by that is 418 00:23:23,000 --> 00:23:26,359 Speaker 1: courts manipulate this doctor in all courts, including of course 419 00:23:26,400 --> 00:23:28,760 Speaker 1: the Supreme Court. If they want to hear the case, 420 00:23:29,119 --> 00:23:31,600 Speaker 1: they will likely find a way to grant standing, and 421 00:23:31,640 --> 00:23:33,600 Speaker 1: if they don't want to hear the case, they'll find 422 00:23:33,640 --> 00:23:35,800 Speaker 1: a way not to grant standing. That some cases are 423 00:23:35,800 --> 00:23:38,879 Speaker 1: more challenging than others. I will tell you who dodgean't 424 00:23:38,960 --> 00:23:41,639 Speaker 1: have standing here. People who paid back all their student 425 00:23:41,640 --> 00:23:44,199 Speaker 1: loans in the past and are angry. I understand that 426 00:23:44,240 --> 00:23:46,520 Speaker 1: the date won't have any legal standing. And also, you 427 00:23:46,520 --> 00:23:48,320 Speaker 1: know this doesn't apply to everybody. I think you have 428 00:23:48,359 --> 00:23:51,320 Speaker 1: to make less than five thousan dollars a year if 429 00:23:51,359 --> 00:23:54,040 Speaker 1: you're a single, or two fifty if you're married, filing 430 00:23:54,080 --> 00:23:57,080 Speaker 1: jountly to get this reduction in your loan. If you 431 00:23:57,080 --> 00:23:58,840 Speaker 1: have fall outside of that, I don't think they would 432 00:23:58,840 --> 00:24:02,000 Speaker 1: have standing. But the people who are losing money servicing 433 00:24:02,040 --> 00:24:04,760 Speaker 1: the loan have the best chance. Well, let's circle back 434 00:24:04,760 --> 00:24:06,280 Speaker 1: to them. In a second, I want to ask about 435 00:24:06,280 --> 00:24:08,680 Speaker 1: an entity that you did not mention in there, which 436 00:24:08,760 --> 00:24:12,240 Speaker 1: are states? And I asked us because it seems like 437 00:24:12,320 --> 00:24:15,119 Speaker 1: every other Supreme Court case these days is something like 438 00:24:15,160 --> 00:24:18,879 Speaker 1: Texas versus Biden. Is there any argument that a state 439 00:24:18,960 --> 00:24:21,960 Speaker 1: might be able to challenge it, much like they've been challenging, say, 440 00:24:22,080 --> 00:24:26,600 Speaker 1: President Biden's immigration decisions. As far as I know, states 441 00:24:26,640 --> 00:24:29,480 Speaker 1: have no financial interest in any way, shape or form 442 00:24:30,000 --> 00:24:32,640 Speaker 1: in this, in this pestritory scheme, So no, I wouldn't 443 00:24:32,640 --> 00:24:34,760 Speaker 1: think so. Having said that, and I hope you don't 444 00:24:34,760 --> 00:24:37,680 Speaker 1: mind this little quip. There's a judge in Texas named 445 00:24:37,760 --> 00:24:40,880 Speaker 1: rid O'Connor who will just strike down any Democrat president's 446 00:24:40,920 --> 00:24:44,119 Speaker 1: plans if they form shop to him, who knows what 447 00:24:44,200 --> 00:24:46,359 Speaker 1: would happen, And then maybe a few other judges like 448 00:24:46,400 --> 00:24:48,760 Speaker 1: that as well. It used to be the case that 449 00:24:48,880 --> 00:24:52,640 Speaker 1: states very rarely headstained, and the Supreme Court has loosened 450 00:24:52,640 --> 00:24:55,000 Speaker 1: that a little bit. But I don't see what interest 451 00:24:55,040 --> 00:24:57,960 Speaker 1: a state would have here. They're not directly involved in 452 00:24:58,000 --> 00:25:00,800 Speaker 1: any of the monetary transactions to the US to my knowledge, 453 00:25:01,280 --> 00:25:04,080 Speaker 1: How soon are we likely to see legal challenges coming 454 00:25:04,119 --> 00:25:07,439 Speaker 1: from this plan? And are these disputes likely to delay 455 00:25:07,520 --> 00:25:10,080 Speaker 1: the student debt relief that these people have been promised. 456 00:25:11,000 --> 00:25:14,920 Speaker 1: Well again, times have changed so much. Ten years ago, 457 00:25:15,240 --> 00:25:16,919 Speaker 1: I would have said there's no way there's going to 458 00:25:16,920 --> 00:25:19,200 Speaker 1: be an injunction in these cases. It's just not that 459 00:25:19,280 --> 00:25:22,480 Speaker 1: kind of case. But in recent years we've seen other 460 00:25:22,520 --> 00:25:26,320 Speaker 1: instances where disrecords and courts appeals did put injunctions on 461 00:25:26,400 --> 00:25:29,199 Speaker 1: federal laws in ways we haven't seen the past, and 462 00:25:29,240 --> 00:25:31,879 Speaker 1: that's not of parts and statement. That's happened to both sides. 463 00:25:32,359 --> 00:25:34,760 Speaker 1: So you never know these days. But I would think 464 00:25:35,040 --> 00:25:37,360 Speaker 1: this won't get the court for a while, and when 465 00:25:37,359 --> 00:25:39,399 Speaker 1: it gets the court, I don't think there'll be an 466 00:25:39,440 --> 00:25:42,800 Speaker 1: injunction until a final if there's injunction at all, into 467 00:25:42,840 --> 00:25:45,879 Speaker 1: a final trial and hearing. Let me ask you about 468 00:25:45,920 --> 00:25:49,399 Speaker 1: the prospect that you mentioned about service ers loan servicers 469 00:25:49,840 --> 00:25:54,400 Speaker 1: suing to challenge here. Have you seen any indication that 470 00:25:54,440 --> 00:25:57,920 Speaker 1: there is a service or out there who might be 471 00:25:58,680 --> 00:26:01,840 Speaker 1: motivated to challenge this. You mentioned that there might be 472 00:26:01,880 --> 00:26:05,480 Speaker 1: some financial impact, but surely if there is a lawsuit here, 473 00:26:05,480 --> 00:26:10,080 Speaker 1: it's going to be about ideology as much as about money, right, 474 00:26:10,320 --> 00:26:14,960 Speaker 1: I don't think it would be very hard for groups 475 00:26:15,040 --> 00:26:18,920 Speaker 1: who are devoted to dismantling the administrative state, and both 476 00:26:18,920 --> 00:26:21,040 Speaker 1: of you know, there are a lot of groups that 477 00:26:21,200 --> 00:26:24,240 Speaker 1: want to do that. In general, they'll be able to 478 00:26:24,280 --> 00:26:27,520 Speaker 1: find a service or somewhere who says, you know, I 479 00:26:27,560 --> 00:26:29,920 Speaker 1: have X number of loans and I make X amount 480 00:26:29,960 --> 00:26:31,520 Speaker 1: of money off of them, and now I'm going to 481 00:26:31,600 --> 00:26:34,320 Speaker 1: have X minus that amount of money. But we shouldn't 482 00:26:34,320 --> 00:26:37,560 Speaker 1: criticize that because you know, that's how civil rights groups 483 00:26:37,760 --> 00:26:41,000 Speaker 1: brought lawsuits that eventually led to the Brown versus Board 484 00:26:41,000 --> 00:26:44,119 Speaker 1: of Education. That's an equally true thing for both sides. 485 00:26:44,160 --> 00:26:48,000 Speaker 1: And in these kinds of ideological battles, public interest groups 486 00:26:48,040 --> 00:26:51,119 Speaker 1: normally fund the lawsuits. They find planets who are outstanding, 487 00:26:51,640 --> 00:26:54,359 Speaker 1: and that's something we shouldn't criticize, you know, unless we 488 00:26:54,440 --> 00:26:57,000 Speaker 1: want a much weaker judiciary, because this is how this 489 00:26:57,160 --> 00:27:00,240 Speaker 1: is normally done. Now. I will also say, twenty years ago, 490 00:27:01,119 --> 00:27:03,520 Speaker 1: the Feederow Society would not have bought this was the 491 00:27:03,560 --> 00:27:06,159 Speaker 1: kind of lawsuit people should bring. But they've changed their 492 00:27:06,200 --> 00:27:08,000 Speaker 1: minds on that. And so there are a lot of 493 00:27:08,080 --> 00:27:11,840 Speaker 1: groups who are very vested in limiting the amount of 494 00:27:11,920 --> 00:27:14,560 Speaker 1: deference Congress can give to the executive branch. That's the 495 00:27:14,640 --> 00:27:17,119 Speaker 1: kind of lawsuit this would be. It would be that 496 00:27:17,280 --> 00:27:20,880 Speaker 1: the secretary didn't have the authority that a secretary says 497 00:27:21,560 --> 00:27:24,359 Speaker 1: they have, or if Congress wants to delegate this power, 498 00:27:24,400 --> 00:27:27,520 Speaker 1: it has to do so through you know, much clearer statute. 499 00:27:27,720 --> 00:27:30,639 Speaker 1: Because it's called a major question. All of that stuff 500 00:27:31,200 --> 00:27:33,680 Speaker 1: is fairly new, so it's hard to say, but I'm 501 00:27:33,760 --> 00:27:36,879 Speaker 1: sure there are plainests out there to be gotten by 502 00:27:37,000 --> 00:27:41,000 Speaker 1: ideological groups who want to further limit the administrative state. 503 00:27:41,440 --> 00:27:43,720 Speaker 1: Is it possible that we could see some people get 504 00:27:43,800 --> 00:27:46,520 Speaker 1: the student debt relief and then a court step in 505 00:27:47,040 --> 00:27:50,160 Speaker 1: an issue some nation one junction, and then others don't 506 00:27:50,240 --> 00:27:53,240 Speaker 1: get it, Like, could we see that happen? Well, I 507 00:27:53,520 --> 00:27:56,200 Speaker 1: don't know. That's an interesting question. I would assume that 508 00:27:56,400 --> 00:27:59,800 Speaker 1: the powers that be that want to challenge this will 509 00:28:00,080 --> 00:28:03,200 Speaker 1: organize in a way where they'll likely bring one lawsuit 510 00:28:03,320 --> 00:28:07,359 Speaker 1: in one favorable place. Anybody who is benefited by this 511 00:28:07,520 --> 00:28:10,359 Speaker 1: wouldn't have standing to bring the suit, so I don't know. 512 00:28:10,520 --> 00:28:13,920 Speaker 1: And would they bring several suits in several favorable jurisdictions. 513 00:28:14,359 --> 00:28:17,560 Speaker 1: Maybe it's too early to tell. I'm getting the sense 514 00:28:17,800 --> 00:28:19,719 Speaker 1: from social media there are a lot of people who 515 00:28:19,800 --> 00:28:22,680 Speaker 1: really don't like what's happening, and that being the case, 516 00:28:22,760 --> 00:28:24,879 Speaker 1: I'm sure you can anticipate a lawsuit. But that's just 517 00:28:25,000 --> 00:28:27,400 Speaker 1: my little part of the work. Eric, let me ask 518 00:28:27,440 --> 00:28:29,320 Speaker 1: you a bit about the merits. You will alluded to 519 00:28:29,520 --> 00:28:31,600 Speaker 1: the nature of the claim that it would be that 520 00:28:32,240 --> 00:28:36,200 Speaker 1: the Education Department is overstepping its authority. There is a 521 00:28:36,320 --> 00:28:39,960 Speaker 1: law called the Heroes Act, the Higher Education Relief Opportunities 522 00:28:40,040 --> 00:28:45,800 Speaker 1: for Students Act, that allows for some debt reduction in 523 00:28:45,920 --> 00:28:50,959 Speaker 1: cases like with the pandemic With this Supreme Court, doesn't 524 00:28:51,000 --> 00:28:53,640 Speaker 1: that feel like a pretty strong claim that if it 525 00:28:53,720 --> 00:28:55,760 Speaker 1: were to get to the Supreme Court on the merits, 526 00:28:56,080 --> 00:29:00,120 Speaker 1: the Court would be fairly receptive to any claim these 527 00:29:00,240 --> 00:29:04,040 Speaker 1: days that the executive branch is exceeding the authority given 528 00:29:04,120 --> 00:29:07,120 Speaker 1: to it by Congress, or that Congress can't give the 529 00:29:07,160 --> 00:29:10,920 Speaker 1: authority at all. I think might find a warm welcome 530 00:29:11,160 --> 00:29:14,880 Speaker 1: at the Supreme Court. Then again, things change, you know it. 531 00:29:15,120 --> 00:29:16,920 Speaker 1: It would take a long time to get there unless 532 00:29:16,920 --> 00:29:19,560 Speaker 1: the Court stepped in early on this kind of case. 533 00:29:19,680 --> 00:29:21,880 Speaker 1: I really can't imagine the court which step in early. 534 00:29:21,960 --> 00:29:24,080 Speaker 1: So we're several years away from this case getting to 535 00:29:24,120 --> 00:29:27,440 Speaker 1: the Supreme Court. Who knows what will change between now 536 00:29:27,480 --> 00:29:30,200 Speaker 1: and then. But you're right, Greg, regardless of what I 537 00:29:30,280 --> 00:29:31,920 Speaker 1: think about the merits, or do you think about the 538 00:29:32,000 --> 00:29:34,480 Speaker 1: merits that you think about the merits. Regardless of all 539 00:29:34,560 --> 00:29:37,440 Speaker 1: of that, the Court is going to be receptive. It's 540 00:29:37,480 --> 00:29:39,480 Speaker 1: just the case for better or for worse. I'm not 541 00:29:39,560 --> 00:29:43,160 Speaker 1: thinking who's right who's wrong. That many of the conservative 542 00:29:43,200 --> 00:29:47,480 Speaker 1: judges appointed by Donald Trump have a very anti regulatory stance, 543 00:29:48,040 --> 00:29:50,080 Speaker 1: and that being the case, I would bet on the 544 00:29:50,160 --> 00:29:54,760 Speaker 1: person challenging the law or regulation, not the government, and 545 00:29:54,840 --> 00:29:57,920 Speaker 1: I would hitorialize and say, as law professor, I think 546 00:29:57,960 --> 00:30:00,960 Speaker 1: that's very sad. I think that them is just too 547 00:30:01,040 --> 00:30:04,360 Speaker 1: big for Congress to regulate in detail. But it doesn't 548 00:30:04,400 --> 00:30:06,840 Speaker 1: matter what single things you are right. The Supreme Court 549 00:30:06,960 --> 00:30:09,840 Speaker 1: is likely to be receptive to these kinds of arguments. 550 00:30:10,480 --> 00:30:12,720 Speaker 1: You mentioned that on Twitter, you're seeing a lot of 551 00:30:12,800 --> 00:30:15,280 Speaker 1: chatter about how people really don't like what's happening here. 552 00:30:15,920 --> 00:30:18,120 Speaker 1: Can you talk about what you're seeing and why that is. 553 00:30:18,240 --> 00:30:19,800 Speaker 1: I mean, it seems to me like people would be 554 00:30:19,880 --> 00:30:21,920 Speaker 1: excited that, you know, some of their debt is going 555 00:30:22,000 --> 00:30:25,920 Speaker 1: to be relieved, you know, heavy student loans, Well, those 556 00:30:26,000 --> 00:30:28,960 Speaker 1: people are happy. I think there are people who have 557 00:30:29,040 --> 00:30:31,720 Speaker 1: paid their student loans back in full who feel a 558 00:30:31,840 --> 00:30:34,920 Speaker 1: little bit cheated. Although I suspect the vast majority of 559 00:30:34,960 --> 00:30:37,240 Speaker 1: those people understand. I think there are a lot of 560 00:30:37,360 --> 00:30:40,360 Speaker 1: people who think this is just too much for the 561 00:30:40,440 --> 00:30:43,840 Speaker 1: Secretary to do, given the statute that was passed and 562 00:30:43,880 --> 00:30:46,640 Speaker 1: the regulations that are being issued. But I also, and 563 00:30:46,920 --> 00:30:48,480 Speaker 1: I'm sorry, I won't be able to comment on this. 564 00:30:48,600 --> 00:30:50,760 Speaker 1: What I am seeing, though, are a lot of people 565 00:30:50,800 --> 00:30:53,360 Speaker 1: claiming this is really bad for the economy. It's not 566 00:30:53,480 --> 00:30:56,120 Speaker 1: really what is needed. Most of the benefits are going 567 00:30:56,200 --> 00:30:59,120 Speaker 1: to go to people who don't need them, as you 568 00:30:59,160 --> 00:31:02,440 Speaker 1: know that badly, and all kinds of economic arguments that 569 00:31:02,520 --> 00:31:05,160 Speaker 1: I'm seeing that I just don't have the skills or 570 00:31:05,200 --> 00:31:08,160 Speaker 1: the background to value. Eric, there was this memo issued 571 00:31:08,200 --> 00:31:11,959 Speaker 1: by the Justice Department saying that the Education Department has 572 00:31:12,000 --> 00:31:14,840 Speaker 1: the power to do this. Were you surprised that memo 573 00:31:15,240 --> 00:31:17,840 Speaker 1: did not? As I read it, grappled all with those 574 00:31:17,920 --> 00:31:20,840 Speaker 1: recent Supreme Court decisions from this last term, saying that 575 00:31:20,920 --> 00:31:25,320 Speaker 1: the Biden administration overstepped its authority with the eviction moratorium 576 00:31:25,840 --> 00:31:29,200 Speaker 1: and the mandate, the vaccine mandate for for workers. Were 577 00:31:29,240 --> 00:31:32,960 Speaker 1: you surprised they didn't try to address those. I answered 578 00:31:33,000 --> 00:31:35,440 Speaker 1: that with a general comment about the Office of Legal Counsel, 579 00:31:35,480 --> 00:31:37,760 Speaker 1: who I worked with very closely when I worked the 580 00:31:37,840 --> 00:31:40,720 Speaker 1: first Bush administration. This has been true since at least, 581 00:31:41,960 --> 00:31:44,880 Speaker 1: if not forever, The opposite of Legal Council was going 582 00:31:44,920 --> 00:31:47,200 Speaker 1: to write a memo that gets to the result that 583 00:31:47,400 --> 00:31:50,640 Speaker 1: the president wants. Now, that wasn't always the case, and 584 00:31:50,920 --> 00:31:53,480 Speaker 1: it hasn't always been the case over the last for years, 585 00:31:53,720 --> 00:31:55,640 Speaker 1: but it's mostly the case. I did take a look 586 00:31:55,680 --> 00:31:58,360 Speaker 1: at that memo. I don't remember the date, so I'd 587 00:31:58,400 --> 00:31:59,760 Speaker 1: have to go back and look at the date of it, 588 00:32:00,040 --> 00:32:03,000 Speaker 1: but assume makes in the last few months. Yet normally 589 00:32:03,080 --> 00:32:05,880 Speaker 1: a NOC memo should should canvass the best arguments against 590 00:32:05,920 --> 00:32:08,000 Speaker 1: what the president is trying to do and then make them, 591 00:32:08,120 --> 00:32:11,000 Speaker 1: you know, go away. I am a little surprised, Gregg, 592 00:32:11,080 --> 00:32:13,760 Speaker 1: just like you are. Okay, thanks so much for joining us. 593 00:32:13,920 --> 00:32:17,200 Speaker 1: Eric Segal the professor at Georgia State University College of Law, 594 00:32:17,840 --> 00:32:20,520 Speaker 1: that does it for this episode of Bloomberg Law, I'm 595 00:32:20,560 --> 00:32:24,120 Speaker 1: Greg Storr and I'm Ladio Wheeler. This is Bloomberg