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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. Harvard University is

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Speaker 1: in a Boston federal court defending itself against claims of

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Speaker 1: racial bias in admitting Asian American students. Speaking with Bloomberg

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Speaker 1: and Ivy, founder of Ivy Consulting, explained the importance of

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Speaker 1: the case. Affirmative action has been upheld as latest two

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Speaker 1: thousand and sixteen, but that was when Justice Kennedy was

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Speaker 1: still the swing vote, and of course he's been replaced

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Speaker 1: by Justice Kavanaugh, so the admissions landscape could look very

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Speaker 1: different depending on how this case turns out. Joining me

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Speaker 1: is the Least Body professor at Rutgers University Law School

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Speaker 1: and founder and executive director of the Inclusion Project at least.

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Speaker 1: The suit was brought by a group opposing affirmative action

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Speaker 1: called Students for Fair Admissions. Explain their claims about Harvard

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Speaker 1: engaging in racial balancing of Asian Americans well. Their claim

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Speaker 1: is that Harvard sets a cap on the number of

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Speaker 1: Asian Americans who are admitted to the university. UM. That

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Speaker 1: claim is going to have to be sorted out by

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Speaker 1: the District Court. We know that Asian Americans have been

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Speaker 1: admitted UM an increasing percentage number of Asian Americans have

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Speaker 1: been admitted over the last eight years or so. Two

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Speaker 1: they're now of the admitted class UM. So their their

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Speaker 1: claim is that, uh, there's a limit that has been

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Speaker 1: set UM. If that is in fact true, that is unlawful.

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Speaker 1: And as I said, the district cord is going to

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Speaker 1: have to sort that out. But I think it's important

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Speaker 1: to understand what this case is really about and the

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Speaker 1: significance of the case. Uh. What the plainists are arguing

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Speaker 1: for is for colleges essentially around the country of this

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Speaker 1: case cost of the Supreme Court and the Supreme Court

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Speaker 1: where to strike down affirmative action. Their claim that that

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Speaker 1: colleges around the country should not be able to consider

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Speaker 1: race and they not. They should also not, uh the

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Speaker 1: they should not have a process in which admissions officers

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Speaker 1: are aware of or can even learn the race or

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Speaker 1: ethnicity of a particular applicant. So this is a very

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Speaker 1: extreme case. It goes against settled law. But the goal

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Speaker 1: here is clearly to overturn that law. And let's put

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Speaker 1: the suit into even a little more context. Affirmative action

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Speaker 1: has been under assault, it seems like since it first began,

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Speaker 1: and it's often on the verge of being affirmed by

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Speaker 1: the Supreme Court by a slight vote. As we know

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Speaker 1: that Justice Kenny was the swing vote. So you put

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Speaker 1: it into context of the various cases at the Supreme

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Speaker 1: Court on affirmative action. Sure so, Um, we can start

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Speaker 1: by looking at the case the Bockey decision, which essentially

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Speaker 1: held that quote as the use of quotas and admissions

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Speaker 1: is unconstitutional. Um by Justice Powell, who was who was

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Speaker 1: sort of the Justice Kennedy of his day, concluded that

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Speaker 1: race could be considered as one of many different factors

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Speaker 1: in the comprehensive admissions process, and he pointed to Harvard

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Speaker 1: as the model for how such an admissions process could

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Speaker 1: be implemented. Um. Twenty five years later, the Court in

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Speaker 1: two thousand three upheld again the use of race in

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Speaker 1: admissions as one of many different factors. That was a

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Speaker 1: caste called Rooter versus Bollinger Um. In two thousand sixteen,

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Speaker 1: the Court again in Fisher Um concluded that diversity student

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Speaker 1: diversity UH was an important constitutional value. Um. It it's

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Speaker 1: held uh it hap held the challenge against the University

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Speaker 1: of Texas. UM. So we have a pre significant body

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Speaker 1: of law in which the Court has found on different

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Speaker 1: occasions that uh, the educational benefits of student diversity are

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Speaker 1: constitutionally compelling. There is another aspect to that, which is

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Speaker 1: he has to make sure that it's being constitutionally implemented. UM.

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Speaker 1: But what this case is seeking to do is essentially

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Speaker 1: to say that you can't use any race at all

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Speaker 1: in any context. UM. You've said that the plaintiffs are

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Speaker 1: going back to the basics ensuing Harvard. What do you

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Speaker 1: mean by that? Well, as I as I mentioned a

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Speaker 1: moment ago Um, the Harvard admissions process was cited by

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Speaker 1: just As Powell back in the nineteen of the eight

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Speaker 1: Bockey decision as the model example of how race could

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Speaker 1: be constitutionally used, and so in in suing Harvard, UM, essentially,

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Speaker 1: the plaintiffs are are pointing to our are trying to

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Speaker 1: overturn a plan that has been cited in various contexts

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Speaker 1: by the Court as being as being a model plan. UM.

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Speaker 1: Harvard also is going to attract a lot of attention.

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Speaker 1: Harvard is defended in a case is going to attract

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Speaker 1: a lot of attention, UM, because it does set the

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Speaker 1: standard for how admissions is done. And so by suing

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Speaker 1: Harvard UM, the plainests are going after a very big fish.

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Speaker 1: And we also have the danger that UH if the

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Speaker 1: Harvard UM case UH is successful, that it could have

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Speaker 1: an enormous chilling effect around the country UH in university

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Speaker 1: admissions in terms of the consideration of race UM. And

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Speaker 1: so it's it's a very deliberate effort UH by this outfit,

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Speaker 1: which is run by um Ed Bloom, who is responsible

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Speaker 1: for the earlier challenges against the University of Texas that

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Speaker 1: I mentioned. He's also someone who brought the case challenging

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Speaker 1: the voting rights back that gutted protections from minority voters. UM.

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Speaker 1: This is not a person who cares about creating opportunities

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Speaker 1: for people of color around the country. The Justice Department's

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Speaker 1: position has changed from the Obama administration to the Trump administration.

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Speaker 1: What effect does the Justice Department have in this area? UM,

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Speaker 1: Sorry I didn't hear. I didn't under the question. The

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Speaker 1: Justice Department has taken a position in this case that

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Speaker 1: is different from the position that the Obama administration took.

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Speaker 1: What effect does it have when the Justice Department weighs

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Speaker 1: in that way? Oh? Sure so, UM. The the Justice

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Speaker 1: Department rescinded certain UM regulations that UH that UH laid

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Speaker 1: out how race could be constitutionally considered. The Justice Department

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Speaker 1: does not have the power to change the law. The

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Speaker 1: law is established by the U. S. Supreme Court. UM.

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Speaker 1: Of course, it does have the chilling effect when the

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Speaker 1: United States Justice Department weighs in UM in ways that

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Speaker 1: are adverse to affirmative action UM. But the law as

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Speaker 1: it currently stands UH clearly indicates that UM, a comprehensive

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Speaker 1: admissions process that includes race of one of many different

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Speaker 1: factors is constitutional. And the question is, in that kind

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Speaker 1: of admissions process where admissions officers do look at so

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Speaker 1: many different aspects an applicants identity, should race UH also

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Speaker 1: be included. And we are in a context, We've been

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Speaker 1: listening to that context for four hundred years where race

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Speaker 1: is very much a reality. And so to say that

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Speaker 1: in that context you can't take a considerative consideration of race,

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Speaker 1: all right, at least we'll have to leave it there.

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Speaker 1: But the case will be going on and we'll keep

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Speaker 1: following it. Lease Body, professor at Rutgers University Law School.

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Speaker 1: In August, President Trump's lead attorney, Rudy Giuliani discussed the

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Speaker 1: Mueller investigation on Fox News, talking about how it would

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Speaker 1: play in the mid terms. Well, I think if it

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Speaker 1: isn't over by September, then then we have a very

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Speaker 1: very serious um violation of the Just Department rules that

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Speaker 1: you shouldn't be conducting one of these investigations, uh in

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Speaker 1: the sixty day period. Now it's mid October, there are

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Speaker 1: just three weeks until the mid terms, and the Mueller

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Speaker 1: investigation is still going strong. Joining me is William Banks,

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Speaker 1: professor at Syracuse Universe State Law School. Bill Rudy Giuliani

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Speaker 1: predicted the end of the Muller investigation or threatened about

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Speaker 1: it time and time again. But Paul Maniford is now

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Speaker 1: cooperating with Mueller. Is that an indication that the investigation

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Speaker 1: is not coming to a conclusion anytime soon? I think

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Speaker 1: it's sure is you know mr has made a number

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Speaker 1: of claims and predictions that haven't turned out to be true.

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Speaker 1: There are no Justice Department rules that limit the investigation,

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Speaker 1: and the tendency of an election, and as we've discussed

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Speaker 1: many times, Mr Muller is simply going about his business

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Speaker 1: UH day by day and UH indictment by indictment and

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Speaker 1: letting the letting the facts and law lead them to

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Speaker 1: where they need to go. They have manifort to work

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Speaker 1: with here, and they're still awaiting sentencing and outcome on

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Speaker 1: some of the other indictments have been brought between the

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Speaker 1: Russians and others. According to Political Trump slam the Mueller

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Speaker 1: quote witch hunt on Twitter nearly fifty times since July fourth.

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Speaker 1: He manages is campaign rallies, Yet it seems to be

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Speaker 1: something that both Republicans and Democrats are avoiding talking about

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Speaker 1: as the campaign for the mid terms. Why that's seeming

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Speaker 1: disconnect Well, I think you know, there's a it's a

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Speaker 1: relatively quiet time now. The investigation, the Mueller's team is

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Speaker 1: is working to see what they can get from Manaford

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Speaker 1: and others to building case either on the instruction of

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Speaker 1: justice or on the conspiracy colusion side of things. And

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Speaker 1: there's simply not much to talk about. And obviously we've

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Speaker 1: had plenty of other things to talk about concerning partisan

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Speaker 1: politics with having on the nation and lots of other

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Speaker 1: issues pending the election. But this this thing is simply

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Speaker 1: going on. It has its own momentum, uh, and it's

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Speaker 1: not dependent on November six or any other magic date.

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Speaker 1: One thing that there is to talk about is that

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Speaker 1: CNN's reporting that Trump's lawyers are providing in the process

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Speaker 1: of providing written answers to a first round of questions

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Speaker 1: and several questions about potential collusion. How does it advance

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Speaker 1: Mueller's investigation to have written answers drafted by Trump's attorneys,

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Speaker 1: Probably not very much. Uh. You know, this is a

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Speaker 1: game that the president's lawyers have been playing with the

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Speaker 1: Mueller team from the beginning. The personalities of changed, the

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Speaker 1: presidents brought in new lawyers, and some lawyers have left.

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Speaker 1: There's now, you know, the White House counsels on his

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Speaker 1: way out and the presidents interviewing replacements for Don McGahn,

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Speaker 1: which I think we'll see yet more dynamics and uh

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Speaker 1: in the in the effort to either respond to or

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Speaker 1: not respond to Mueller's request for an interview of Trump.

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Speaker 1: This is going to primarily go to the possibility of

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Speaker 1: obstruction determinations, of course, but it could be important for

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Speaker 1: other aspects of the investigation as well. Turning out to

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Speaker 1: the White House Counsel's office, we know that Council Don

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Speaker 1: McGann is leaving his position, and he was regarded by

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Speaker 1: some as a restraining influence on Trump. The Washington Post

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Speaker 1: is reporting that Trump has chosen a conservative Catholic activists

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Speaker 1: and Washington lawyer Pat Chipoloney as his next White House

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Speaker 1: Council He's already been advising the president's personal lawyers on

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Speaker 1: Trump reportedly, what will this change mean in the approach

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Speaker 1: to Mueller. Well, I don't know much about Shibloney, but

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Speaker 1: I believe that it's going to, you know, play to

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Speaker 1: the sort of the hardball side of of dealing with

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Speaker 1: the Muller team. I think he'll be pretty tough and

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Speaker 1: pretty uh unwilling to cooperate and even to compromise on

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Speaker 1: providing materials to the investigators. I think at the same time,

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Speaker 1: we have to remember that the White House Council's job

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Speaker 1: involves much more than just dealing with the single investigation.

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Speaker 1: Mcgon had a very signal role in getting the Kavanaugh

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Speaker 1: nomination through the Senate ultimately, and then his legacy, of course,

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Speaker 1: in lining up lower court judges that's probably been the

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Speaker 1: president's single most important accomplishments so far. Off to see

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Speaker 1: whether the tip alone can do as well or whether

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Speaker 1: there's someone else in the team that will take over

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Speaker 1: that responsibility. Speaking and in the list of we'll have

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Speaker 1: to see. Most observers think that we'll see Trump firing

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Speaker 1: a G. Jeff Sessions after the mid terms, and the

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Speaker 1: Washington Post reported that Trump had talked to sessions chief

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Speaker 1: of staff Matt Whittaker about the job, and Trump hasn't

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Speaker 1: denied that Whittaker has a conservative record and path explain

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Speaker 1: what that might be. Well, you know, he's he's going

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Speaker 1: to replace Sessions. If he does, he's going to replace

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Speaker 1: him with someone conservative, to be sure, and looking for

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Speaker 1: someone with a lower profile, as would be the case here,

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Speaker 1: might serve his interest in uh, you know, not paying

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Speaker 1: much attention to the uh, the office of the Attorney General,

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Speaker 1: perhaps going beyond the Attorney General to try to interfere

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Speaker 1: again and investigation uh and dismissing Mueller. We'll see if

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Speaker 1: that might happen. It depends, of course, on what the

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Speaker 1: next steps are in the Mueller team. It's sort of

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Speaker 1: a cat and mouse game. And Bill just a quickly

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Speaker 1: here Whittaker. Would he have to be have a confirmation

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Speaker 1: hearing or is he already confirmed by the Senate and

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Speaker 1: so could just slide in there? No, he'd have to

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Speaker 1: be confirmed separately for this post. Okay, thanks so much

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Speaker 1: as always, William Banks, Professor at Syracuse University 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