1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:05,960 --> 00:00:09,040 Speaker 1: Chief Justice John Roberts went back in history to the 3 00:00:09,119 --> 00:00:12,680 Speaker 1: Aaron Burr treason trials in eighteen oh seven and Chief 4 00:00:12,720 --> 00:00:16,599 Speaker 1: Justice John Marshall's seminal rulings to find precedent for his 5 00:00:16,680 --> 00:00:21,200 Speaker 1: majority opinion in Trump Events, the case authorizing the Manhattan 6 00:00:21,200 --> 00:00:25,320 Speaker 1: District Attorney to subpoena President Trump's financial records. It must 7 00:00:25,360 --> 00:00:30,680 Speaker 1: be nice to have Washington on your side. It must 8 00:00:30,720 --> 00:00:36,199 Speaker 1: be nice. It must be nice to have Washington on 9 00:00:36,600 --> 00:00:39,960 Speaker 1: your side. In an essay entitled it must be nice 10 00:00:40,000 --> 00:00:42,800 Speaker 1: to have Marshal on your side, a riff from a 11 00:00:42,840 --> 00:00:46,880 Speaker 1: song from the Broadway hit Hamilton's constitutional law professor Josh 12 00:00:46,920 --> 00:00:50,839 Speaker 1: Blackman writes that the Chief glossed over some important facts 13 00:00:50,920 --> 00:00:54,959 Speaker 1: in the standoff between President Thomas Jefferson and Chief Justice 14 00:00:55,080 --> 00:00:58,840 Speaker 1: John Marshall over letters Jefferson had that Aaron Burr wanted 15 00:00:58,920 --> 00:01:02,760 Speaker 1: for trial. So did Marshall really win the standoff over 16 00:01:02,800 --> 00:01:06,720 Speaker 1: the documents or did Jefferson? Josh Blackman joins me. Now 17 00:01:06,920 --> 00:01:09,440 Speaker 1: he's a professor at the South Texas College of Law. 18 00:01:09,800 --> 00:01:13,400 Speaker 1: Josh explain why Chief Justice John Marshall still looms so 19 00:01:13,560 --> 00:01:16,840 Speaker 1: large at the Supreme Court. John Marshall is the first 20 00:01:16,920 --> 00:01:20,480 Speaker 1: great Chief Justice, and he said many of the Court's 21 00:01:20,560 --> 00:01:24,480 Speaker 1: most important precedents. In Marvey versus Madison, he expands the 22 00:01:24,520 --> 00:01:27,840 Speaker 1: power of the courts to declare laws on constitutional In 23 00:01:27,920 --> 00:01:31,440 Speaker 1: Gibbons the Odden, he'd defined the meaning of commerce. In 24 00:01:31,520 --> 00:01:34,840 Speaker 1: mccullochy Maryland, he defined what are congress is what are 25 00:01:34,840 --> 00:01:38,080 Speaker 1: called necessary and proper powers. In all these cases, Marshall 26 00:01:38,120 --> 00:01:41,280 Speaker 1: set the first precedent, and to this day the Court 27 00:01:41,280 --> 00:01:44,360 Speaker 1: looks back at him as the sort of oracle of 28 00:01:44,400 --> 00:01:48,760 Speaker 1: American constitutional law. So if you read Chief Justice John 29 00:01:48,880 --> 00:01:54,240 Speaker 1: Roberts majority opinion, he refers to Marshall's rulings from Aaron 30 00:01:54,280 --> 00:01:58,560 Speaker 1: Burr's treason trial. For what general propositions is he referring 31 00:01:58,640 --> 00:02:03,400 Speaker 1: to them? During the Aaron Burr treason trial or the 32 00:02:03,440 --> 00:02:07,120 Speaker 1: former vice president who was famously killed, Alexander Hamilton's in 33 00:02:07,160 --> 00:02:11,040 Speaker 1: a duel. Burr sought certain documents from President Jefferson. He 34 00:02:11,080 --> 00:02:14,640 Speaker 1: thought those documents would help his defense. Jefferson didn't want 35 00:02:14,639 --> 00:02:17,760 Speaker 1: to turn them over, so Marshall issued a subpoena. There's 36 00:02:17,800 --> 00:02:20,800 Speaker 1: a request from a course produced a document, and Chief 37 00:02:20,880 --> 00:02:24,720 Speaker 1: Justice Roberts saw the subpoena issue to Jefferson as the 38 00:02:24,840 --> 00:02:27,640 Speaker 1: basis for the tax return cases. In other words, if 39 00:02:27,720 --> 00:02:31,160 Speaker 1: Jefferson was subject to a subpoena, then Trump's tax returns 40 00:02:31,160 --> 00:02:34,840 Speaker 1: could also be requested. And Jefferson asserted the now famous 41 00:02:35,080 --> 00:02:39,840 Speaker 1: the president has immunity from subpoena's argument, right. Trump argued 42 00:02:39,880 --> 00:02:42,799 Speaker 1: that he was absolutely immune from a subpoena, that these 43 00:02:42,800 --> 00:02:45,640 Speaker 1: documents cannot be requested at all, and the court looked 44 00:02:45,639 --> 00:02:48,840 Speaker 1: to the Aaron Burr trial as evidence to the contrary 45 00:02:48,840 --> 00:02:52,280 Speaker 1: that the president can be subject to the judicial process. 46 00:02:52,320 --> 00:02:55,160 Speaker 1: You're right that in Robert's decision he didn't mention a 47 00:02:55,200 --> 00:02:58,040 Speaker 1: few things, or he glanced over them. He didn't mention that. 48 00:02:58,080 --> 00:03:01,160 Speaker 1: In the beginning of the dispute, Jefferson agreed to provide 49 00:03:01,160 --> 00:03:06,960 Speaker 1: the documents voluntarily. Explain why that's important. You know many people. 50 00:03:07,040 --> 00:03:10,280 Speaker 1: Last week we're watching on Disney Plus the Hamilton's Musical, 51 00:03:10,760 --> 00:03:15,920 Speaker 1: which presents a beautiful story that's mostly historically accurate. It's 52 00:03:15,919 --> 00:03:19,359 Speaker 1: somewhat sanitized to gloss over some rough spots in history 53 00:03:19,480 --> 00:03:23,080 Speaker 1: from Hamilton's Washington, Jefferson and others. I view John Roberts's 54 00:03:23,120 --> 00:03:26,000 Speaker 1: rendition of the facts as the most of the Hamilton musical. 55 00:03:26,160 --> 00:03:28,639 Speaker 1: It tells a great story with a happy ending that 56 00:03:28,760 --> 00:03:32,040 Speaker 1: skips all the bumpy parts. As it turns out, Jefferson 57 00:03:32,120 --> 00:03:35,600 Speaker 1: ignored Marshall's subpoena. He didn't follow it. He said, I 58 00:03:35,640 --> 00:03:39,720 Speaker 1: will voluntarily provide a redacted copy of the document that 59 00:03:39,760 --> 00:03:42,240 Speaker 1: as a pocket, the document that had parts crossed out, 60 00:03:42,280 --> 00:03:46,080 Speaker 1: that these sounds confidential. Marshall demanded that Jefferson comes to 61 00:03:46,120 --> 00:03:49,160 Speaker 1: the court in person. Jefferson said, screw that. He didn't 62 00:03:49,160 --> 00:03:51,440 Speaker 1: send anyone in his place. He never provided the documents 63 00:03:51,440 --> 00:03:54,320 Speaker 1: requested as they were requested. So if you look at 64 00:03:54,320 --> 00:03:57,880 Speaker 1: this history, in this battle between Jefferson and Marshall, I 65 00:03:57,920 --> 00:04:01,760 Speaker 1: think Jefferson one. I think Marshall looks dumb in hindsight. 66 00:04:01,800 --> 00:04:04,320 Speaker 1: He sort of issued his order that was ignored. But 67 00:04:04,480 --> 00:04:07,320 Speaker 1: in the court's t rendition of facts, Marshal is the king. 68 00:04:07,520 --> 00:04:09,920 Speaker 1: He could do no wrong. And I think it's mistakes 69 00:04:09,960 --> 00:04:12,520 Speaker 1: with so much weight in a precedent in which the 70 00:04:12,560 --> 00:04:16,600 Speaker 1: court was basically ignored at first second trial, he received 71 00:04:16,640 --> 00:04:19,560 Speaker 1: a copy of the October letter that he wanted, and 72 00:04:19,600 --> 00:04:23,600 Speaker 1: he wanted the original. Did he ever get the original. No, 73 00:04:23,760 --> 00:04:25,400 Speaker 1: he never got it. And let me just make this 74 00:04:25,440 --> 00:04:29,839 Speaker 1: point clearly, Burrow was on trial for apparently the facts 75 00:04:29,839 --> 00:04:32,560 Speaker 1: are murky, but Jefferson alleged that Burr was trying to 76 00:04:33,000 --> 00:04:35,440 Speaker 1: take over part of the western United States. It's a 77 00:04:35,560 --> 00:04:38,240 Speaker 1: very bizarre plot. One of the pieces of evidence was 78 00:04:38,279 --> 00:04:42,040 Speaker 1: a letter that this general wrote to Jefferson General Wilkinson, 79 00:04:42,320 --> 00:04:46,360 Speaker 1: and this letter alleged that Burrow was basically a foreign agent. 80 00:04:46,600 --> 00:04:49,240 Speaker 1: Now the irony is that Wilkinson was a spy. He 81 00:04:49,320 --> 00:04:51,799 Speaker 1: was actually paid by the Spanish new setting up Burr, 82 00:04:52,040 --> 00:04:54,680 Speaker 1: so the entire case was bunked. That's not really relevant. 83 00:04:54,839 --> 00:04:59,000 Speaker 1: Burr wanted the original copy of the Wilkinson letter. Now 84 00:04:59,040 --> 00:05:02,000 Speaker 1: why original? There were no photo copy machines back then, right, 85 00:05:02,120 --> 00:05:05,440 Speaker 1: there were people copying documents by hand. And as every 86 00:05:05,440 --> 00:05:08,080 Speaker 1: one knows, when you copy something by hand, you can 87 00:05:08,080 --> 00:05:12,039 Speaker 1: make mistakes deliberately or extentally. And Burr worried that parts 88 00:05:12,120 --> 00:05:14,200 Speaker 1: might be left out or omitted, so he wants to 89 00:05:14,200 --> 00:05:17,359 Speaker 1: the original. Jefferson would only give a copy, and if that, 90 00:05:17,480 --> 00:05:19,960 Speaker 1: he gave a copy with turn parts cut out. And 91 00:05:20,000 --> 00:05:23,520 Speaker 1: those are portions that Jefferson thought would pertain to national security, 92 00:05:24,120 --> 00:05:27,160 Speaker 1: Burr said, I want the original, I want to complete document, 93 00:05:27,320 --> 00:05:30,520 Speaker 1: and he never got it. If we could analogize, this 94 00:05:30,520 --> 00:05:33,039 Speaker 1: would be like Trump handing over tax returns, but the 95 00:05:33,120 --> 00:05:35,000 Speaker 1: line that says total income would just be you know, 96 00:05:35,080 --> 00:05:36,839 Speaker 1: blacked out. You know, we don't want to put the 97 00:05:36,880 --> 00:05:40,880 Speaker 1: bottom line. Stuff beco embarrassing. In the beginning of the process, 98 00:05:41,040 --> 00:05:46,000 Speaker 1: before Marshall had issued any orders, Jefferson wrote a note 99 00:05:46,160 --> 00:05:50,520 Speaker 1: saying he would voluntarily comply. How did it disintegrate from there? 100 00:05:51,000 --> 00:05:53,400 Speaker 1: In the history of our republic, the political branches found 101 00:05:53,400 --> 00:05:56,360 Speaker 1: a way to get along voluntarily. It said, it's good 102 00:05:56,360 --> 00:05:59,440 Speaker 1: for the country if we go along with process. I 103 00:05:59,480 --> 00:06:04,120 Speaker 1: think there's a big difference between voluntarily complying versus complying. 104 00:06:04,240 --> 00:06:06,400 Speaker 1: At the point of in the order, the reason why 105 00:06:06,640 --> 00:06:10,560 Speaker 1: it is a voluntary compliance, there's given take. Marshall asks 106 00:06:10,600 --> 00:06:13,680 Speaker 1: for X, Jefferson gives why. Okay, it's not exactly what 107 00:06:13,720 --> 00:06:16,280 Speaker 1: he wanted, as close enough, and both sides can feel 108 00:06:16,320 --> 00:06:19,240 Speaker 1: like they worked it out. But when the court orders 109 00:06:19,279 --> 00:06:22,279 Speaker 1: to do X and only X, then there's no given take. 110 00:06:22,360 --> 00:06:25,600 Speaker 1: There's no play in the joint and that's far less desirable. 111 00:06:25,960 --> 00:06:28,880 Speaker 1: There have been many clashes between the President and Congress 112 00:06:28,880 --> 00:06:31,839 Speaker 1: before right with the Congress wants documents and the President 113 00:06:31,880 --> 00:06:34,200 Speaker 1: doesn't want to give them. But historically they've been able 114 00:06:34,200 --> 00:06:36,599 Speaker 1: to work out some sort of middle arrangements, they've been 115 00:06:36,600 --> 00:06:38,800 Speaker 1: able to figure out a deal. In recent years, that 116 00:06:38,920 --> 00:06:42,080 Speaker 1: period of compromise has largely died for It's novel about 117 00:06:42,120 --> 00:06:45,800 Speaker 1: the New York Attorney's case Virus Vance is that it 118 00:06:45,960 --> 00:06:48,240 Speaker 1: wasn't a request from Congress. It was a requests from 119 00:06:48,240 --> 00:06:52,440 Speaker 1: a state prosecutor, which is novel. So even if the 120 00:06:52,440 --> 00:06:55,560 Speaker 1: Bird trial provided some precedent that was in a federal court, 121 00:06:55,880 --> 00:06:57,400 Speaker 1: Vance case was in a state court. And do you 122 00:06:57,440 --> 00:06:59,599 Speaker 1: think that makes some difference. It didn't make a difference 123 00:06:59,600 --> 00:07:01,760 Speaker 1: to the court, but I think there is a distinction there. 124 00:07:01,960 --> 00:07:05,359 Speaker 1: Does the case also stand out because Chief Justice Roberts 125 00:07:05,360 --> 00:07:07,320 Speaker 1: had to go all the way back to the eighteen 126 00:07:07,400 --> 00:07:10,200 Speaker 1: hundreds to come up with this precedent? Well, I think 127 00:07:10,360 --> 00:07:13,240 Speaker 1: Chief Justice Roberts went back to the eighteen hundreds to 128 00:07:13,320 --> 00:07:15,880 Speaker 1: make it seem like he wasn't doing that much. Chief 129 00:07:15,880 --> 00:07:18,240 Speaker 1: Justice Roberts, before he was on the court with a lawyer, 130 00:07:18,240 --> 00:07:20,080 Speaker 1: and he was a good one, and he was a 131 00:07:20,120 --> 00:07:22,200 Speaker 1: brilliant writer. I think he's probably the best writer in 132 00:07:22,240 --> 00:07:25,520 Speaker 1: the court today. He has such good writing skills as remarkable. 133 00:07:26,080 --> 00:07:28,520 Speaker 1: But I think Roberts's greatest skill is to do a 134 00:07:28,560 --> 00:07:31,400 Speaker 1: lot without making it seem like a lot of work. Right. 135 00:07:31,440 --> 00:07:34,680 Speaker 1: He reached a very important conclusion, but does it in 136 00:07:34,760 --> 00:07:38,280 Speaker 1: a calm, nonchalant fashion, as if there's no big deal. 137 00:07:38,360 --> 00:07:39,720 Speaker 1: What's the big deal? You know, we've been doing this 138 00:07:39,760 --> 00:07:42,360 Speaker 1: all along, he says, Look, I'm not doing anything new. 139 00:07:42,520 --> 00:07:45,080 Speaker 1: I'm only doing what John Marshalls is two years ago, 140 00:07:45,120 --> 00:07:47,440 Speaker 1: because everything is normal. And I think what you have 141 00:07:47,480 --> 00:07:50,559 Speaker 1: to recognize is that this was an expansion far beyond 142 00:07:50,680 --> 00:07:53,960 Speaker 1: what Chief Justice Marshall did two years ago. And if 143 00:07:53,960 --> 00:07:56,600 Speaker 1: you look at the history, Marshall is largely ignored, and 144 00:07:56,640 --> 00:07:59,080 Speaker 1: that's kind of strong footing. To rely on the Chief 145 00:07:59,160 --> 00:08:02,040 Speaker 1: Justice offers what I call a sanitized version of history, 146 00:08:02,200 --> 00:08:04,880 Speaker 1: and it's one that only tells the judiciary side of 147 00:08:04,880 --> 00:08:07,800 Speaker 1: the story. It doesn't tell the executive side as a story. 148 00:08:08,000 --> 00:08:11,080 Speaker 1: If we look at this clash, truly the executive prevailed. 149 00:08:11,440 --> 00:08:14,640 Speaker 1: But this sort of fixation on John Marshall, what I 150 00:08:14,680 --> 00:08:17,640 Speaker 1: call this obesent blind the court to the fact that 151 00:08:17,920 --> 00:08:20,360 Speaker 1: governance is more complicated, and you can't just look at 152 00:08:20,440 --> 00:08:22,920 Speaker 1: John Marshall's one sided account just to look at what 153 00:08:22,960 --> 00:08:26,280 Speaker 1: happened after the fact, the actual clash, not the court 154 00:08:26,360 --> 00:08:31,640 Speaker 1: speckless order that was ignored. When Jefferson ignored Marshall's orders, 155 00:08:32,360 --> 00:08:36,240 Speaker 1: Marshall did nothing to ensure compliance at that point. He 156 00:08:36,320 --> 00:08:38,440 Speaker 1: just sort of dropped it. Well, there were a couple 157 00:08:38,440 --> 00:08:41,400 Speaker 1: of orders. But if I can grossly summarize, Jefferson was 158 00:08:41,400 --> 00:08:44,160 Speaker 1: willing to give either a copy of the document, not 159 00:08:44,240 --> 00:08:46,560 Speaker 1: the original. He was willing to have a redacted version 160 00:08:46,559 --> 00:08:49,160 Speaker 1: of another document, or have one of us to boarders 161 00:08:49,160 --> 00:08:51,480 Speaker 1: to go to the court. He was not willing to 162 00:08:51,520 --> 00:08:54,280 Speaker 1: give the original, not willing to give the unredacted document, 163 00:08:54,800 --> 00:08:56,960 Speaker 1: and not willing to physically go to Richmond and deliver 164 00:08:57,040 --> 00:08:59,240 Speaker 1: it as Marshall requested. You know, you may say all 165 00:08:59,280 --> 00:09:02,640 Speaker 1: that Josh's close enough. Well, general, when a court says jump, 166 00:09:02,800 --> 00:09:05,079 Speaker 1: you say, how high right, you don't get to negotiate. 167 00:09:05,480 --> 00:09:08,480 Speaker 1: But Jefferson basically negotiated after the fact, which shows that 168 00:09:08,520 --> 00:09:10,960 Speaker 1: you don't have this sort of strict compliance with the 169 00:09:11,000 --> 00:09:14,640 Speaker 1: judicial process, that there's some playing the joints when the 170 00:09:14,720 --> 00:09:17,680 Speaker 1: presidents involved. In other words, that whatever the standard is 171 00:09:17,720 --> 00:09:20,120 Speaker 1: for regular folk. The president has a little bit more 172 00:09:20,120 --> 00:09:23,360 Speaker 1: discretion because his unique office. Roberts has said that he 173 00:09:23,400 --> 00:09:27,320 Speaker 1: considers Martial a model for a chief justice. Does he 174 00:09:27,360 --> 00:09:31,240 Speaker 1: refer to him in many opinions all the time, all 175 00:09:31,280 --> 00:09:33,800 Speaker 1: the time. It's an obsession, it's a sycophantasm. S if 176 00:09:33,880 --> 00:09:36,720 Speaker 1: you will. Roberts often speaks of the great Chief Justice. 177 00:09:37,080 --> 00:09:40,000 Speaker 1: You're allied on Marshal in his famous Obamacare decision. He's 178 00:09:40,000 --> 00:09:42,400 Speaker 1: relied on him in many other cases where he talks 179 00:09:42,400 --> 00:09:45,800 Speaker 1: about restraints. It's just sort of veneration, this hero worship 180 00:09:45,840 --> 00:09:48,960 Speaker 1: of a person. And I don't blame him. Marshal's remarkable juris. 181 00:09:48,960 --> 00:09:50,760 Speaker 1: I don't want to minimize it. I mean, in this 182 00:09:50,880 --> 00:09:53,520 Speaker 1: Bird trial lasted a couple of months. You are hundreds 183 00:09:53,520 --> 00:09:56,200 Speaker 1: of pages of opinion to inter pages by hand with 184 00:09:56,240 --> 00:09:58,439 Speaker 1: a quill, right by himself. He would just sit there 185 00:09:58,679 --> 00:10:01,079 Speaker 1: all day in court and he would right opinions all night. 186 00:10:01,240 --> 00:10:03,080 Speaker 1: And at one point he said, I'm sorry for your errors. 187 00:10:03,080 --> 00:10:04,600 Speaker 1: I haven't had a chance to read my work yet, 188 00:10:04,720 --> 00:10:06,720 Speaker 1: you just right in one draft. So, I mean, it's 189 00:10:06,760 --> 00:10:09,319 Speaker 1: stunning the amount of work he did. So we should 190 00:10:09,520 --> 00:10:12,840 Speaker 1: put Marshall in the proper context. He was a justice 191 00:10:12,840 --> 00:10:14,839 Speaker 1: of the court. He issued a ruling on a case, 192 00:10:15,200 --> 00:10:18,079 Speaker 1: the president wasn't very interested in following it. And those 193 00:10:18,120 --> 00:10:20,920 Speaker 1: two sides of the story should inform these sorts of 194 00:10:20,920 --> 00:10:23,360 Speaker 1: disputes or tax returns. But we only heard one side 195 00:10:23,360 --> 00:10:26,679 Speaker 1: of the story, the narrow issue at the presidential subpoena. 196 00:10:26,760 --> 00:10:29,400 Speaker 1: It's a formal complication with what made it seem I 197 00:10:29,440 --> 00:10:32,160 Speaker 1: think in this battle between the separation of powers. On 198 00:10:32,360 --> 00:10:35,760 Speaker 1: the paper, Marshall looks like he prevailed, but if you 199 00:10:35,800 --> 00:10:39,400 Speaker 1: look at what happened, Shepherdson won this one, not even close. 200 00:10:39,880 --> 00:10:43,880 Speaker 1: Thanks Josh. That's Josh Blackman, a professor of constitutional law 201 00:10:43,920 --> 00:10:46,760 Speaker 1: at the South Texas College of Law. And that's it 202 00:10:46,800 --> 00:10:49,560 Speaker 1: for the edition of Bloomberg Law. Remember you can always 203 00:10:49,559 --> 00:10:52,280 Speaker 1: get the latest legal news on our Bloomberg Law podcast 204 00:10:52,600 --> 00:10:56,080 Speaker 1: wherever you get your favorite podcasts. I'm June Grosso. Thanks 205 00:10:56,120 --> 00:10:58,319 Speaker 1: so much for listening, and remember to tune to the 206 00:10:58,320 --> 00:11:01,400 Speaker 1: Bloomberg Law Show weeknight at m Eastern right here on 207 00:11:01,480 --> 00:11:09,160 Speaker 1: Bloomberg Radio. H