Speaker 1: You're listening to Bloomberg Law with June Grusso from Bloomberg Radio.
Speaker 1: Donald Trump was arraigned on a New York Supreme Court
Speaker 1: indictment for turn by a Manhattan grand jury on thirty
Speaker 1: four felony counts of falsifying business records in the first degree.
Speaker 2: With a typical indictment, the next moves would be by
Speaker 2: the district attorney and the defendant. But this was anything
Speaker 2: but typical, and so Republican Representative Jim Jordan and the
Speaker 2: House Judiciary Committee started their own investigation into the investigation
Speaker 2: and subpoenaed Mark Pomerantz, a former prosecutor in the Manhattan
Speaker 2: DA's office. In a bold move, DA Alvin Bragg sued
Speaker 2: Jordan and his committee for interfering in his criminal case
Speaker 2: against former President Donald Trump, calling it a brazen and
Speaker 2: unconstitutional attack on a local prosecution. But Jordan told Fox
Speaker 2: News that it was Bragg who interfering.
Speaker 3: And now we have Alvin Bragg interfering and obstructing our
Speaker 3: investigation into election interference. Election interference, and the most important
Speaker 3: election we have, which is the election of who's going
Speaker 3: to be President of the United States.
Speaker 2: Joining me is Victoria Norris a professor at Georgetown Law
Speaker 2: School and an expert on Congress and separation of powers.
Speaker 2: Bragg says that Jordan lacks the authority under the Constitution
Speaker 2: to oversee state criminal matters.
Speaker 4: During the conduct of a criminal investigation, no one really
Speaker 4: has the power to intervene in that unless you appeal
Speaker 4: through that system. So Trump can appeal the validity of
Speaker 4: the indictment. He has to take it up to the
Speaker 4: New York courts, right, he can't go to Congress, which
Speaker 4: is a political branch, because Congress can't try cases. They
Speaker 4: can investigate for the purpose of legislating, and they have
Speaker 4: very broad power. But Trump's own case, there's just been
Speaker 4: a case on this, Mazars versus Trump. The Supreme Court
Speaker 4: said that Congress cannot investigate for the purposes of proscution,
Speaker 4: shooting or embarrassing someone or something like that, because they
Speaker 4: don't have that power. And this came up during McCarthy.
Speaker 4: The first case is on this when Senator McCarthy was
Speaker 4: using the congressional process to essentially be saying people as
Speaker 4: being members of the Communist Party, and the court set
Speaker 4: some limits at that point. But basically there are a
Speaker 4: couple of reasons if you read the fifty page complaint,
Speaker 4: by the way, it's full of threats against South and
Speaker 4: Bragg on social media and elsewhere, and it's really kind
Speaker 4: of disturbing. And you know that's not how our justice
Speaker 4: system is supposed to work, right. We don't use violent
Speaker 4: we use the rules well. And the lawsuit is just
Speaker 4: to try to stop the subpoena of mister Pomerant. Mister
Speaker 4: Pomarants have worked for him, Mister palmerinence is known. This
Speaker 4: is just an aside as a tremendously skilled prosecutor in
Speaker 4: New York. He was known that even when I, you know,
Speaker 4: twenty five years ago, was a clerk in the Southern
Speaker 4: District of New York. And so the food is really
Speaker 4: just to stop the subpoena. Now Trump did the same thing.
Speaker 4: So he didn't want to be subpoenaed by Congress, and
Speaker 4: so he sued. And what happened was that was litigated
Speaker 4: in decent run up to the DC Circuit, run up
Speaker 4: to the Supreme Court, and they decided it in Mazar
Speaker 4: and they said that the court had not applied the
Speaker 4: proper standard because when it's a president, he gets more leeway,
Speaker 4: all right. They've never held that before because no one
Speaker 4: had ever done that before. Now Bragg is using that
Speaker 4: same case to say, look, Congress, you're viling those rules.
Speaker 4: You don't have a proper legislative purpose. And Jordan is
Speaker 4: saying he does have a proper legislative purpose. But this
Speaker 4: suit will now be about whether the subpoena goes forward
Speaker 4: and is enforced. All that Bragg is asking is for
Speaker 4: the subpoena to be stayed during the pendency of his
Speaker 4: criminal prosecution of Trump. So have you ever.
Speaker 2: Heard of an instance before where a congressman tried to
Speaker 2: interfere in a local criminal case.
Speaker 4: I don't know of any. I think they'd raised their argument.
Speaker 4: So let's let me give a recent example of this.
Speaker 4: So they're all lawyers, right, I mean, these members are lawyers.
Speaker 4: And one of the things you first know is that
Speaker 4: a defendant gets the most right but any person in
Speaker 4: court because they're about to be sent to jail. And
Speaker 4: the first thing you can't have it be politicized. If
Speaker 4: you politicize the criminal trial, you end up having a
Speaker 4: banana republic. So this is one of these things that
Speaker 4: is just drummed into you when you learn the criminal law.
Speaker 4: In criminal procedure, which is the constitutional part of criminal law. Recently,
Speaker 4: there was talk of the Senator from South Carolina having
Speaker 4: made a phone call regarding the election to an election
Speaker 4: official in Georgia. And there is a case proceeding about
Speaker 4: claims supposedly asking officials in Georgia to change the vote
Speaker 4: counts for the presidential election, and the Senator didn't, you know,
Speaker 4: there was no investigation. Even when he was chair of
Speaker 4: the Senate Judiciary Committee, Senator Graham didn't hold an investigation.
Speaker 4: He knows he can't do that. He did try to
Speaker 4: stop his own testimony by arguing it was privileged. He
Speaker 4: made the arguments in the case. You see that this
Speaker 4: is like collateral to the case. It's from a whole
Speaker 4: other body that's not supposed to intervene.
Speaker 2: Does it make any difference that Pomerant is no longer
Speaker 2: in Bragg's office and had nothing to do as far
Speaker 2: as we know with this with the current indictment.
Speaker 4: No, for a couple reasons. He's written a book about
Speaker 4: his participation. I have not read the book. We know
Speaker 4: he participated in the thought processes for things that were
Speaker 4: presented to the grand jury and grand juries. Your secret
Speaker 4: they cannot ask him anything about that on the record, one,
Speaker 4: because that's just the rule. Two, this comes down to
Speaker 4: actually Donald Trump's due process right Oddly, this is why
Speaker 4: you don't want to open up the criminal prosecution to
Speaker 4: some third party asking about what's going on inside it.
Speaker 4: That you can appeal within that case. But you don't
Speaker 4: want like the Attorney General of Kansas or the legislature
Speaker 4: of Alabama to intervene in any pending case during the
Speaker 4: pendency of the case, because it will interfere with the
Speaker 4: defendant's due process rights, because it will try the case
Speaker 4: in another court, or in the press, or in a
Speaker 4: political body like the Congress. And so it's one of
Speaker 4: these things that's so basic to a lawyer. It's like,
Speaker 4: you've got to be kidding me. You know, this is
Speaker 4: because of political party wants to use the indictment for
Speaker 4: its own political advantage, including raising money, and they've already
Speaker 4: done that. But it's also because I think Bragg wants
Speaker 4: people to know it's a fifty page You know, you
Speaker 4: could write a paragraph complaint saying I want to enjoin
Speaker 4: the subpoena because Congress doesn't have a proper purpose end
Speaker 4: of case. But he added incredible detail in the complaint,
Speaker 4: and there are pictures on social media that appear to
Speaker 4: threaten mister Bragg with a baseball bat by the former president.
Speaker 4: There are things like slurs, racial slurs that have been used,
Speaker 4: and a lot of violent threats against the DA's office
Speaker 4: in New York. So I think he was wise to
Speaker 4: do this for a number of reasons, which is, this
Speaker 4: is a threat to the justice system and the orderly
Speaker 4: progress of justice. Ultimately, because it's the defendant's due process right,
Speaker 4: I think that no court's going to say you can
Speaker 4: have this testimony now during the pendency of the case.
Speaker 4: Because there's an easy remedy for Jim Jordan. He can
Speaker 4: get this Promeranci's testimony after the case is done.
Speaker 2: Jordan tweeted, first they indict a president for no crime,
Speaker 2: then they sue a block congressional oversight. When we ask
Speaker 2: questions about the federal funds, they say they use to
Speaker 2: do it, and apparently the District Attorney's office did respond
Speaker 2: to them about where they used the five thousand dollars
Speaker 2: in federal funds in the court battle with Trump over
Speaker 2: access to his tax returns. So is that as far
Speaker 2: as Jordan can go to talk about federal funds being used.
Speaker 4: Yeah, I mean, as far as I know, I don't
Speaker 4: know any more facts than what you just repeeded. Every
Speaker 4: state gets money from the federal government for police and
Speaker 4: prosecutors to aid in that effort, because of course criminals
Speaker 4: cross state line, all right, So there are backstop The
Speaker 4: state spends most of the money, you know, the vast
Speaker 4: majority of the money is the taxes you pay for
Speaker 4: your state. That's the first place they get criminal justice.
Speaker 4: But there is backstop money from the federal government, and
Speaker 4: that is the claimed the legislative purpose of the investigation.
Speaker 4: You have to have a valid legislative purpose after this
Speaker 4: Trump versus Massar's case. And if the purpose is simply
Speaker 4: to humiliate or to intimidate, it can't go forward. If
Speaker 4: the purpose is to prosecute, it can't go forward. No
Speaker 4: one thinks Congress can prosecute people. No one. The way
Speaker 4: the Constitution says this is it says you can't have
Speaker 4: a bill of a changer. No one knows what that
Speaker 4: means ancient language, but in Mary Old England, the parliament
Speaker 4: used to send people to the tower because King Henry
Speaker 4: the fifth would say, go to the tower and We
Speaker 4: learned when we had our revolutions that we didn't really
Speaker 4: want parliaments or legislatures to criminalize people because there you
Speaker 4: would always democracy couldn't survive. This is a much bigger
Speaker 4: principle because if the legislature can put people in jail,
Speaker 4: then they put their political enemies in jail. This is
Speaker 4: what happens in Banana Republic. Okay. Now the Trump people
Speaker 4: are saying, well, that's what happening in this case, but
Speaker 4: there's no evidence that that's true. I mean, we don't know.
Speaker 4: Maybe they'll they'll find evidence, but let's see what happens
Speaker 4: when he appeals inside the New York court. That's his
Speaker 4: proper avenue of Redress. Congress shouldn't be involved in this,
Speaker 4: in my view, and I don't think judges will think
Speaker 4: that they should be involved either.
Speaker 2: So they went before a judge who's a Trump appoint d,
Speaker 2: and she denied Bragg's request for a temporary restraining order
Speaker 2: prohibiting enforcement of a subpoena to palmerants instead of hearing
Speaker 2: for April nineteen. Do you think her refusal of the
Speaker 2: temporary restraining order forecast what she's going to do?
Speaker 4: No, no judge would want to rule on something like
Speaker 4: that very quickly. Just involves a former occupant of the
Speaker 4: White House. No judge, whether they're federal court or a
Speaker 4: state court or whatever, wants to be hurried and determining
Speaker 4: the precise rules here because they also know that the
Speaker 4: Congress will push back, there'll be appeals, et cetera. Judges
Speaker 4: don't like to be embarrassed they get the law wrong.
Speaker 4: Remember that with a woman in Florida who got everything
Speaker 4: all wrong with aspective documents in tomor A Lago. Judges
Speaker 4: really don't like them because they get embarrassed and pressed
Speaker 4: from then they're embarrassed and from their colleagues and its
Speaker 4: elite opinion that they care about. So I don't think
Speaker 4: it says much of anything. You wouldn't decide this case
Speaker 4: instantaneously because it's unusual people don't do this. As I said,
Speaker 4: the Alabama legislature is not going to intervene in Alabama
Speaker 4: prosecutions and not going to intervene in another jurisdiction. You know,
Speaker 4: miss is the beast prosecutions. I mean, this is a
Speaker 4: core power of a state, and most of criminal law
Speaker 4: resides in the state. The number of people prosecuted by
Speaker 4: it says it's very minor compared to the number of
Speaker 4: people prosecuted by the States, and so this is one
Speaker 4: of the core principles. And this court, which is a
Speaker 4: conservative court, believes this. They don't think you should be
Speaker 4: able to interfere in state criminal law at a general level.
Speaker 4: And most judges would say, of course, you can't interfere
Speaker 4: in this particular prosecution if you are not the defendant.
Speaker 4: If Trump has arguments to make, you can make them
Speaker 4: all in the case. Right, He doesn't need Jim Jordan,
Speaker 4: a politician, to do it for him. Due process requires
Speaker 4: Trump to make those arguments in his case, and it
Speaker 4: might be thrown off for all we know. We don't
Speaker 4: know quite what the argument is on behalf of Bragg
Speaker 4: because there's a missing piece. So that will be litigated
Speaker 4: in the New York courts as to whether this indictment
Speaker 4: is good on the law. So if you get a
Speaker 4: political person to start making these judgments, it will bias
Speaker 4: that decision one way or another.
Speaker 2: The Republicans on the House Judiciary Committee are holding a
Speaker 2: field hearing in Manhattan to examine how Bragg's quote pro
Speaker 2: crime anti victim policies have led to an increase in
Speaker 2: violent crime and a dangerous community for New York City residents.
Speaker 2: Is that within their purview.
Speaker 4: The House Judiciary Committee can have a field hearing anywhere,
Speaker 4: so can the Senate Judiciary Committee. They want to have
Speaker 4: a field hearing, and they can ask about local crime
Speaker 4: that they want. Now, it so happens that their data
Speaker 4: is wrong. According to Alvin Bragg, I know I has
Speaker 4: gone down. Bragg put that in his document as well,
Speaker 4: is that they should probably go to Miami if they're
Speaker 4: looking for high crime rates.
Speaker 2: For Columbus. A Brag spokesman said that murder rates in
Speaker 2: New York City are three times lower than the murder
Speaker 2: rate in Columbus, Ohio. Jordan of course, being from Ohio.
Speaker 4: Yeah, so you know, they can have a hearing, and
Speaker 4: hearings are often about legislation, and sometimes the legislation is controversial,
Speaker 4: and crime is always an issue that he gets people
Speaker 4: very worked up. Now. I have worked on various crime issues,
Speaker 4: and I am here to tell you that people manipulate
Speaker 4: the data. And you know, people have to judge whether
Speaker 4: that hearing's really about New York or is it about
Speaker 4: Alvin Bragg. And they have the power to go to
Speaker 4: any city. Say, you know, San Francisco apportantly has a
Speaker 4: homeless problem. Okay, San Francisco, let's invest in it. They
Speaker 4: can do that because legitimately they could legislate on homelessness.
Speaker 4: They legislate on crime all the time, in the sense
Speaker 4: of new federal crimes or filling in gaps or the
Speaker 4: way we count crimes is very difficult to complex. You
Speaker 4: know that is actually a proper hearing. I would defend
Speaker 4: them from that, even though I would think, you know,
Speaker 4: in my mind, I bet the pretext here is to
Speaker 4: say something bad about Alvin Brigg.
Speaker 2: I don't think they're making too much of a pretext
Speaker 2: of it. They say it in their announcement of the hearing,
Speaker 2: and Jordan did go to law school. They know.
Speaker 4: See. That's what makes it worse for me, because they
Speaker 4: do know. Because this is not rocket science.
Speaker 2: Thanks so much, Victoria. That's Professor Victoria Nors of Georgetown
Speaker 2: Law School. Clarence Thomas's Supreme Court nomination hearings were among
Speaker 2: the most controversial, as he denied accusations of sexually harassing
Speaker 2: Anita Hill.
Speaker 1: I have been racking my brains and eating my insides
Speaker 1: out trying to think of what I could have said
Speaker 1: or done to Anita Hill to lead her to allege
Speaker 1: that I was interested in her in more than a
Speaker 1: professional way.
Speaker 2: More than thirty years later, his ethics came to question
Speaker 2: again when he declined to recuse himself from a case
Speaker 2: involving the release of White House records concerning January sixth,
Speaker 2: even after it was learned that his wife, right wing
Speaker 2: activist Ginny Thomas, lobbied former President Donald Trump's chief of
Speaker 2: staff to work to overturn the results of the twenty
Speaker 2: twenty election. And now Thomas is again in the spotlight
Speaker 2: after a pro public A report which detailed the Thomas's
Speaker 2: lavish trips around the world, including private yachts and jets
Speaker 2: and luxury accommodations for more than two decades, trips funded
Speaker 2: by billionaire Republican donor Harlan Crowe, including a twenty nineteen
Speaker 2: island hopping vacation with costs that could have exceeded half
Speaker 2: a million dollars, along with travel to California's Bohemian Grove
Speaker 2: Retreat for Men and Crow's East Texas ranch. Thomas never
Speaker 2: reported the gifts. Thomas defended himself against allegations that he
Speaker 2: may have violated the law by noth reporting those vacations,
Speaker 2: saying he'd been told he didn't have to. In a
Speaker 2: one paragraph statement, Thomas said he'd sought guidance from colleagues
Speaker 2: and others in the judiciary early in his tenure as
Speaker 2: a Supreme Court justice and was quote advised that this
Speaker 2: sort of personal hospitality from close personal friends who did
Speaker 2: not have business before the court was not reportable. Joining
Speaker 2: me is Stephen Lubett, a judicial ethics expert at Northwestern
Speaker 2: University's Pritzker School of Law. So the justices file annual
Speaker 2: financial disclosures, and Thomas did disclose a twenty fifteen gift
Speaker 2: from Crow, a bronze bust of abolitionist Frederick Douglass, valued
Speaker 2: at six four hundred and eighty four dollars, And in
Speaker 2: twenty nineteen he disclosed five trips that were paid for
Speaker 2: by someone else, a series of teaching and speaking engagements
Speaker 2: at US law schools and colleges, but not that nine
Speaker 2: day vacation to Indonesia. Does this failure to report the
Speaker 2: travel violate federal law?
Speaker 5: Yeah. The failure to report certain gifts is contrary to
Speaker 5: the Ethics and Government Act, and its contrary to the
Speaker 5: regulations adopted by the Judicial Conference following the Ethics and
Speaker 5: Government Act. It's not a crime, there's no particular penalty
Speaker 5: for it, but it is contrary to the law.
Speaker 4: I know.
Speaker 2: The Supreme Court justices aren't subject to the same ethics
Speaker 2: codes that federal judges are. Are Supreme Court justices subject
Speaker 2: to that law?
Speaker 5: Well? Gift reporting is covered by the Ethics and Government Act,
Speaker 5: which is a statute passed by Congress, signed by the President,
Speaker 5: and specifically applicable to the US Supreme Court. Two Chief Justices,
Speaker 5: Justice John Roberts and before him, Chief Justice Renquists both
Speaker 5: said that they would not concede that Congress had the
Speaker 5: right to impose these vironments on the Supreme Court, but
Speaker 5: they would follow them anyhow.
Speaker 2: Justice Thomas said he'd sought guidance from colleagues and others
Speaker 2: in the judiciary early in his tenure, and he was
Speaker 2: advised that this sort of personal hospitality from close personal
Speaker 2: friends who did not have business before the Court was
Speaker 2: not reportable. Is that in fact true? Is it not reportable?
Speaker 2: What's the exception here?
Speaker 5: Well, Justice Thomas is putting an awful lot of weight
Speaker 5: on the words this sort of hospitality. When he joined
Speaker 5: the Court in nineteen ninety one. I don't think anybody
Speaker 5: imagined that a Justice of the Supreme Court would be
Speaker 5: shuttled all around the country on a private jet by
Speaker 5: a wealthy political donor. So I have to question whether,
Speaker 5: whatever it is, anybody told him it's actlutely applicable to
Speaker 5: the gifts that he has ultimately accepted.
Speaker 2: All the Democrats on the Senate Judiciary Committee have called
Speaker 2: on Chief Justice John Roberts to investigate these trips. Do
Speaker 2: you think that the Chief Justice would actually do that?
Speaker 5: I will say that the Court has been, I think
Speaker 5: unfortunately protective of the prerogatives of the individual members. For example,
Speaker 5: they follow a procedure for disqualification for recusal in which
Speaker 5: each justice decides it individually for themselves, with no review
Speaker 5: by the whole Court. I think that's unfortunate. I think
Speaker 5: the Court should act as a court on ethics issues
Speaker 5: and not leave things up to individuals. The Constitution establishes
Speaker 5: one Supreme Court, not nine Supreme Justices.
Speaker 2: Can you tell us about some of the legislation that
Speaker 2: has been pending in Congress to impose an ethics code
Speaker 2: on the Supreme Court.
Speaker 5: The legislation pending in Congress would not impose any particular
Speaker 5: ethics code on the Supreme Court. It would require the
Speaker 5: Supreme Court to adoptor code of their own devising. I
Speaker 5: think that's a very minimal request and quite an appropriate one.
Speaker 5: If the Justices think there are special provisions that need
Speaker 5: to be included or omitted from the code, they could
Speaker 5: just go ahead and do that.
Speaker 2: Chief Justice Roberts said in his twenty eleven year end report.
Speaker 2: The Court has never addressed whether Congress may impose those
Speaker 2: requirements on the Supreme Court ethics requirements. That is, is
Speaker 2: there a chance that the Justices might say, no, we're
Speaker 2: not doing that. I mean, can they say.
Speaker 5: That, Well, well, they're the Supreme Court. They can say
Speaker 5: whatever they want to say. The question is whether they
Speaker 5: will have sufficient respect for the public to adopt the
Speaker 5: code when there is overwhelming a public opinion in favor
Speaker 5: of so.
Speaker 2: Explain the reason why it's a good idea for these
Speaker 2: gifts and trips to be disclosed.
Speaker 5: Host it's an issue of transparency. Congress, in a bipartisan statute,
Speaker 5: determined that it is important for public respect and understanding
Speaker 5: to know what sort of gifts are being given, not
Speaker 5: only to the justices of the Supreme Court, but also
Speaker 5: to senior officials in the executive branch. Everybody complies with it,
Speaker 5: but the Supreme Court, for reasons of its own has
Speaker 5: withheld acceptance of it as a requirement. They do, they do,
Speaker 5: I should say, the Justices of the Supreme Court do
Speaker 5: file report in accordance with the ethics and government. Chief
Speaker 5: Justice Roberts just said that it is discretionary. They don't
Speaker 5: have to do it, but they all do it.
Speaker 2: Thanks for being on the show. That's Stephen Lubett, a
Speaker 2: professor at Northwestern University's Printzker School of Law. And that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 2: and you're listening to Bloomberg