WEBVTT - Spotlight at Jan. 6 Hearings 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.400 --> 0:00:12.840 The January six Committee continues to build its case that 0:00:12.960 --> 0:00:17.080 former President Donald Trump instigated the violence at the Capitol. 0:00:17.680 --> 0:00:21.040 This week, we heard from Trump insiders like former Attorney 0:00:21.079 --> 0:00:24.800 General William Barr that Trump was not interested in hearing 0:00:24.840 --> 0:00:28.240 the facts about his false claims of election fraud. And 0:00:28.360 --> 0:00:32.760 I went into this and would you know, tell them 0:00:32.760 --> 0:00:35.760 how crazy some of these allegations were. There was never 0:00:36.400 --> 0:00:42.559 there was never an indication of interest and what the 0:00:42.600 --> 0:00:46.519 actual facts were. Attorney General Merrick Garland says he and 0:00:46.560 --> 0:00:49.960 the Justice Department are listening to the hearings, but the 0:00:50.080 --> 0:00:53.279 question is whether they'll act on them. Joining me as 0:00:53.320 --> 0:00:57.960 former federal prosecutor Eli Hoenig, the Committee is obviously laying 0:00:57.960 --> 0:01:02.160 out a roadmap for prosecuting former President Trump. Do you 0:01:02.200 --> 0:01:06.679 think the evidence presented so far provides the basis for 0:01:06.760 --> 0:01:10.039 potential criminal charges? So, jan let me say, first of all, 0:01:10.160 --> 0:01:13.080 there's been a notable change in tone from the committee members. 0:01:13.120 --> 0:01:15.080 If you think back a few weeks and months ago, 0:01:15.120 --> 0:01:17.880 whenever they were asked about are you trying to encourage 0:01:17.920 --> 0:01:20.319 or pressure prosecutors to bring charges, they would always sort 0:01:20.319 --> 0:01:22.520 of demur. They would say, well, it's not up to us. 0:01:22.560 --> 0:01:26.120 Now they are openly talking about illegality and conspiracy, so 0:01:26.120 --> 0:01:28.600 there's no question to me that they're trying to send 0:01:28.600 --> 0:01:31.400 a message here to prosecutors. Is there enough to prosecute, 0:01:31.600 --> 0:01:33.960 that's a complicated question. I think that there is a 0:01:34.000 --> 0:01:38.160 compelling foundation being laid that Donald Trump and others had 0:01:38.280 --> 0:01:42.080 potentially criminal intent, and that the intent was to obstruct 0:01:42.080 --> 0:01:44.520 Congress and potentially to defraud the United States. Not I 0:01:44.520 --> 0:01:47.400 don't usually like to use so many hedge words potential, potential, 0:01:47.640 --> 0:01:50.000 but let me tell you why I'm doing that. We 0:01:50.040 --> 0:01:52.960 should not look at these committee hearings and assume that 0:01:53.040 --> 0:01:56.000 everything we're seeing would translate over one to one to 0:01:56.120 --> 0:01:59.360 a criminal prosecution, because there are two very different ball games, 0:01:59.480 --> 0:02:01.600 and some of the evidence of the committee is playing 0:02:01.640 --> 0:02:04.080 would not be admissible in a trial, and there's no 0:02:04.160 --> 0:02:07.320 defense lawyers, there's no cross examination at the committee. So 0:02:07.360 --> 0:02:10.240 I think we need to keep that in mind, that 0:02:10.440 --> 0:02:12.600 this is sort of the committee having the floor all 0:02:12.600 --> 0:02:14.880 to itself. But a criminal trial is very different. A 0:02:14.919 --> 0:02:17.160 prosecutor has to prove the case beyond a reasonable doubt, 0:02:17.200 --> 0:02:19.720 and of course the accused the defendant would have a 0:02:19.880 --> 0:02:23.680 zealous defect. So I'm reluctant to draw a straight yes, 0:02:23.800 --> 0:02:26.120 this can be prosecuted and convicted, just based on what 0:02:26.200 --> 0:02:28.320 the committee has done so far. What are some of 0:02:28.360 --> 0:02:32.120 the possible crimes that could be charged? Not saying that 0:02:32.120 --> 0:02:33.760 they will be charged, but what are some of the 0:02:33.760 --> 0:02:36.480 possible crimes you see? Well, I see three big ones 0:02:36.520 --> 0:02:38.799 if we're talking about with respected Donald Trump or other 0:02:38.840 --> 0:02:42.760 powerful people. The first one is conspiracy to defraud the 0:02:42.840 --> 0:02:45.880 United States. Though normally that means to steal money from 0:02:45.919 --> 0:02:48.400 the United States, but legally it does not have to 0:02:48.440 --> 0:02:50.640 be a financial loss. It can be to deprive the 0:02:50.720 --> 0:02:54.360 United States of a fair election. In fact, Robertmuller charged 0:02:54.400 --> 0:02:57.679 some of the Russian nationals who interfered with the elections 0:02:57.840 --> 0:03:00.720 under that theory. The second big one I see is 0:03:00.919 --> 0:03:04.120 an attempt to obstruct an official proceeding. Here, the official 0:03:04.120 --> 0:03:07.000 proceeding is the counting of the electoral votes by Congress, 0:03:07.320 --> 0:03:09.520 and the argument would be that Trump or potentially this 0:03:09.639 --> 0:03:12.680 lawyer John Eastman, had corrupt intent. They knew what they 0:03:12.720 --> 0:03:15.239 were doing was wrong, and they still tried to block 0:03:15.400 --> 0:03:18.240 essentially Mike Pencil counting the votes and then the third one, 0:03:18.280 --> 0:03:21.400 the most dramatic charge, would be seditious conspiracy, which is 0:03:21.480 --> 0:03:24.480 essentially the same thing as trying to obstruct a proceeding, 0:03:24.560 --> 0:03:27.320 only with an element of use of force. So you 0:03:27.320 --> 0:03:30.520 would need to tie the person to the physical force 0:03:30.560 --> 0:03:32.359 that we've used to break into the Capitol. I don't 0:03:32.360 --> 0:03:35.120 see any evidence establishing that link to Donald Trump at 0:03:35.120 --> 0:03:37.880 the moment, but d o J has charged various members 0:03:37.880 --> 0:03:40.280 and leaders of the Oath Keepers and Proud Boys with that, 0:03:40.680 --> 0:03:43.760 and if you can show that anybody else was involved 0:03:43.760 --> 0:03:46.000 with that use of force, then you can charge that 0:03:46.160 --> 0:03:49.560 crime as well. Prosecutors, of course, have to believe that 0:03:49.640 --> 0:03:52.360 they can prove their case to a jury beyond a 0:03:52.440 --> 0:03:57.160 reasonable doubt. What else goes into a charging decision? That's 0:03:57.400 --> 0:03:59.400 issue number one. You have to believe that you can 0:03:59.440 --> 0:04:01.560 prove your case of a journy beyond a reasonable doubt. 0:04:01.840 --> 0:04:03.720 You want to look at the equities of it. You 0:04:03.760 --> 0:04:07.400 want to look at is this a fair and righteous prosecution? 0:04:07.560 --> 0:04:09.320 And I think the big question here is how do 0:04:09.360 --> 0:04:11.000 you take into account the fact that this is a 0:04:11.040 --> 0:04:14.240 former president and an indictment of him will cause all 0:04:14.360 --> 0:04:17.920 manner of protests and perhaps worse than that we've heard 0:04:18.000 --> 0:04:20.680 Trump sort of rally his followers. If they indict me, 0:04:20.800 --> 0:04:23.400 we're going to have some civil unrest. Um paraphrasing what 0:04:23.440 --> 0:04:26.560 he said, you know, d O J internal guidance and 0:04:26.680 --> 0:04:29.480 this is public tells prosecutors you're not to consider that 0:04:29.560 --> 0:04:31.320 kind of thing. You're not to consider whether a person 0:04:31.400 --> 0:04:35.040 is politically popular or unpopular in whether to charge them. 0:04:35.040 --> 0:04:36.919 But I do think as a practical matter, June, I 0:04:37.000 --> 0:04:40.080 assure you prosecutors are cognizant of the fact that if 0:04:40.080 --> 0:04:42.840 they do charge Donald Trump, it will be unlike any 0:04:42.880 --> 0:04:45.640 prosecution in prior the United States history, and it will 0:04:45.680 --> 0:04:49.200 be uniquely fraught and uniquely difficult. Yeah, because we hear 0:04:49.400 --> 0:04:53.520 Attorney General Merrick Garland say over and over that you know, 0:04:53.720 --> 0:04:57.479 will go wherever the evidence leads us. But if the 0:04:57.560 --> 0:05:01.840 evidence does lead to Donald Trump, one wonders if they'll be, 0:05:02.160 --> 0:05:05.920 you know, worry of breaking the norm against indicting former 0:05:06.000 --> 0:05:09.279 presidents and also of the division that it will likely 0:05:09.360 --> 0:05:12.560 cause in the country. Here's my response to what we've 0:05:12.560 --> 0:05:15.039 seen from Marrick Arland. Two things I can say for sure. 0:05:15.320 --> 0:05:17.640 Number One, this idea we're going to start at the 0:05:17.680 --> 0:05:20.240 ground level and build up which he says over and over, 0:05:20.600 --> 0:05:23.960 that's not really true. That's not really how good prosecutors 0:05:24.000 --> 0:05:25.880 build their cases. I can't tell you how many times 0:05:25.920 --> 0:05:28.280 I had evidence that led me write to a powerful person. 0:05:28.320 --> 0:05:30.360 I used to do mob cases. I had evidence where 0:05:30.360 --> 0:05:32.000 I would go, Wow, okay, great, I have a shot 0:05:32.040 --> 0:05:33.240 at the boss here, I have a shot at a 0:05:33.279 --> 0:05:35.840 capo here. I wouldn't stop and go okay, hold on, 0:05:36.080 --> 0:05:37.919 let me go start with the low level guys on 0:05:37.960 --> 0:05:40.039 the street and see if I can put them, and 0:05:40.040 --> 0:05:41.760 see if then I can flip those guys and get 0:05:41.760 --> 0:05:44.000 back up to the top. So that, to me is 0:05:44.080 --> 0:05:47.360 not really an accurate view of what good prosecutors do 0:05:47.880 --> 0:05:49.480 or ought to do. The other thing that I think 0:05:49.560 --> 0:05:52.080 is sort of indisputable about Merrick Arland. You know, there's 0:05:52.080 --> 0:05:54.120 a lot of will here, won't he What I think 0:05:54.200 --> 0:05:56.880 is beyond dispute is this is taking too long. I mean, 0:05:56.920 --> 0:05:59.160 we are a year and a half out from January 0:05:59.200 --> 0:06:01.520 six at this point. Arland came in March, so he's 0:06:01.520 --> 0:06:04.200 been there sixteen months at this point. But if this 0:06:04.279 --> 0:06:06.719 is a crime by Donald Trump and others, it is 0:06:06.760 --> 0:06:10.400 the greatest crime ever committed against our democracy and to 0:06:10.480 --> 0:06:13.680 take this long and counting to charge it, I think 0:06:13.760 --> 0:06:16.760 is not at all commensurate with the seriousness of the 0:06:16.800 --> 0:06:19.920 crime that we're talking about, or of the ongoing threat. 0:06:20.040 --> 0:06:22.920 And the thing is, if Garland doesn't charge this by 0:06:22.920 --> 0:06:25.440 the end of the summer, d o J policy says 0:06:25.440 --> 0:06:27.880 you don't charge a big political case within sixty days 0:06:27.960 --> 0:06:29.800 or ninety days. People sort of vary on what the 0:06:29.880 --> 0:06:32.840 number is before an election. So if we don't see 0:06:32.880 --> 0:06:36.200 Merrick Garland charging Donald Trump or anyone around him by August, 0:06:36.400 --> 0:06:38.839 and I don't think anyone realistically thinks that's going to happen. 0:06:39.040 --> 0:06:43.279 Now we're talking end of early three. We're talking two 0:06:43.320 --> 0:06:46.120 full years out, by which time Donald Trump they well 0:06:46.120 --> 0:06:49.320 have declared his candidacy for four and if he does that, 0:06:49.400 --> 0:06:52.839 he will be called immediately the prohibitive Republican front runner, 0:06:52.839 --> 0:06:54.760 which I think makes it even more difficult as a 0:06:54.760 --> 0:06:58.080 practical measure to charge it. Thanks Ellie. That's from our 0:06:58.120 --> 0:07:03.800 federal prosecutor, Ellie Honing. The January six Committee explored former 0:07:03.880 --> 0:07:08.280 Vice President Mike Pence's decision not to violate the Constitution 0:07:08.400 --> 0:07:12.520 by ignoring the votes of states offering fake or alternate 0:07:12.560 --> 0:07:17.560 boards of electors. Pence's former general counsel, Greg Jacob, testified 0:07:17.600 --> 0:07:20.600 that the Vice president was clear from the outset that 0:07:20.680 --> 0:07:24.880 obeying Trump's wishes would have been unconstitutional the vice president's 0:07:24.920 --> 0:07:29.440 first instinct on that point, there is no uh justifiable 0:07:29.440 --> 0:07:32.480 basis to conclude that the vice president has that kind 0:07:32.520 --> 0:07:36.160 of authority. Joining me is Bloomberg Law team leader Christopher 0:07:36.200 --> 0:07:40.600 opfor Chris tell us about what happened to Greg Jacob 0:07:40.760 --> 0:07:44.960 on January six. Sure, so, at the time, Jacob was 0:07:45.000 --> 0:07:47.559 serving as chief council to Mike Pence, and of course 0:07:47.920 --> 0:07:51.480 Pence and his top staffers were there at the Capitol 0:07:52.000 --> 0:07:55.800 preparing to go through the imaginations of certifying the vote. 0:07:56.480 --> 0:08:00.440 And at this point, certainly Pence and his staff, including Jacob, 0:08:00.480 --> 0:08:05.760 were aware of the crowd gathering outside and were aware 0:08:06.400 --> 0:08:09.960 of the back and forth, particularly from various Trump supporters 0:08:10.000 --> 0:08:13.960 are urging Pence to do something to overturn the election results. 0:08:14.120 --> 0:08:18.440 But it wasn't until Jacob went downstairs into the battles 0:08:18.480 --> 0:08:20.280 of the Capitol with a couple of the staffiss to 0:08:20.320 --> 0:08:23.520 actually get a cup of coffee that he heard, you know, 0:08:23.600 --> 0:08:29.280 the mob outside storming the Capitol. He literally heard glass 0:08:29.320 --> 0:08:32.720 breaking and people filing in, and that's when he and 0:08:32.760 --> 0:08:35.760 the others hustled back upstairs. They were ushered by Capitol 0:08:35.760 --> 0:08:38.320 police and secret Service to the Senate floor at first, 0:08:38.360 --> 0:08:41.520 and then they were taken to a secure location with Pence, 0:08:41.720 --> 0:08:46.080 his wife, pence brother who's a Republican congressman, and others, 0:08:46.160 --> 0:08:49.280 and they really hunkered down there for the next six 0:08:49.320 --> 0:08:53.160 hours or so as the mob wineled in. So as 0:08:53.240 --> 0:08:56.479 he was being shuffled from the Senate floor to the 0:08:56.880 --> 0:09:01.080 secure location, Jacob fired off an email Eastman. And the 0:09:01.120 --> 0:09:04.160 backstory there is that over the last two days leading 0:09:04.240 --> 0:09:07.360 up to the Capitol, right on January six, he and 0:09:07.480 --> 0:09:11.120 Eastman had been having this ongoing back and forth debating 0:09:11.120 --> 0:09:14.600 the merits of Eastman's argument, in which Eastman was trying 0:09:14.640 --> 0:09:18.880 to convince Pence to step in and overturn the election. 0:09:19.160 --> 0:09:23.560 Those arguments had been rejected roundly. And once the mob 0:09:23.600 --> 0:09:26.800 had had forced its way into the Capitol and Jacob 0:09:26.920 --> 0:09:30.880 is being shuffled off first, he's fielding frantic text messages 0:09:30.960 --> 0:09:33.880 from family members and his pastor about are you all right? 0:09:33.920 --> 0:09:36.640 Are you say? He takes this moment to fire off 0:09:36.640 --> 0:09:40.720 an email the Eastman which says something to the effect 0:09:40.720 --> 0:09:43.480 that we are now under siege and this is all 0:09:43.520 --> 0:09:48.439 thanks to your BIA. So how did he become Pence's 0:09:48.640 --> 0:09:54.160 top lawyer? Since his background is employment benefits law. It's 0:09:54.200 --> 0:09:58.400 a really unlikely story. It's not something that Jacob had 0:09:58.440 --> 0:10:02.520 in mind for sure. Uh, certainly not when Trump and 0:10:02.600 --> 0:10:06.280 Pence were elected, and not even you know, probably midway 0:10:06.320 --> 0:10:09.680 into the four years of the Trump administration. He is 0:10:09.800 --> 0:10:13.880 an employment lawyer by trade. He is an expert in RISSA, 0:10:13.960 --> 0:10:17.599 which is this very wonky but also complicated and and 0:10:17.840 --> 0:10:24.239 incredibly important federal law that governs employee pensioned plans, retirement benefits, etcetera. 0:10:24.559 --> 0:10:28.040 He's been in and out of government in Republican administration. 0:10:28.679 --> 0:10:31.880 He's had some top roles at the Labor Department. Earlier 0:10:31.880 --> 0:10:34.440 in his career he had worked at the d J 0:10:34.840 --> 0:10:37.720 in the Office of Legal Counsel, so he did have 0:10:37.840 --> 0:10:41.480 some experience and expertise outside of the labor and employment world, 0:10:41.760 --> 0:10:44.760 but that was certainly his bread and butter. And in fact, Jacob, 0:10:45.040 --> 0:10:47.560 you know, once Trump was elected, had his eyes on 0:10:47.880 --> 0:10:50.559 a return to the Labor Department and was really focused 0:10:50.600 --> 0:10:53.360 there and for a number of reasons that fell through. 0:10:54.080 --> 0:10:57.480 He had made some connections with the Pence folks, because 0:10:57.679 --> 0:11:00.520 Jacob had been recruited by a b called the House, 0:11:00.559 --> 0:11:03.280 who's a long time GOP lawyer to work on this 0:11:03.320 --> 0:11:07.240 team that was actually vetting VP candidates for Trump, And 0:11:07.320 --> 0:11:09.199 so that's how he had come into Pence his orbits 0:11:09.200 --> 0:11:12.440 in the first place. Pence's long time chief council, a 0:11:12.440 --> 0:11:15.120 guy named Matt Morgan, had decided he needed to go 0:11:15.160 --> 0:11:19.280 back to Indiana for family reasons, and when they went 0:11:19.360 --> 0:11:22.000 looking for somebody, it was suggested that they take a 0:11:22.040 --> 0:11:24.600 look at Jacob. I mean so that although there was 0:11:24.679 --> 0:11:27.320 some familiarity of this was not a guy who was 0:11:27.400 --> 0:11:30.559 like a long time Pence guy, Pence supporter or anything 0:11:30.640 --> 0:11:32.880 like that. But on the other hand, they really did 0:11:33.000 --> 0:11:36.280 jibe pretty well. It sounds like, from from everyone involved, 0:11:36.520 --> 0:11:40.160 sort of a similar worldview, very conservative, also a very 0:11:40.880 --> 0:11:44.480 devout Christian, which of course Mike Pence in his family 0:11:44.480 --> 0:11:48.840 are as well. Now what is his connection to eat. 0:11:49.679 --> 0:11:52.000 It's interesting these are two guys that are sort of 0:11:52.040 --> 0:11:54.199 cut from the same cloth in many ways. They went 0:11:54.240 --> 0:11:57.360 to the same law school at different times. They've been 0:11:57.679 --> 0:12:02.880 running in GOP lawyer circles for decades, but they had 0:12:02.920 --> 0:12:06.120 never actually met until two days before the riot, and 0:12:06.160 --> 0:12:09.040 that was when Eastman came in. He had been hired 0:12:09.040 --> 0:12:11.440 by Trump to come in and work on some of 0:12:11.480 --> 0:12:15.320 the election issues, and it was on January fourth that 0:12:15.440 --> 0:12:18.600 he started reaching out to the Pence folks, including Greg Jacob, 0:12:18.720 --> 0:12:22.559 pitching this argument, which was basically that Pence could de 0:12:22.720 --> 0:12:26.760 certify the vote or send the vote back to certain 0:12:26.800 --> 0:12:30.520 states and UH six states, states including places like Michigan 0:12:30.559 --> 0:12:34.680 and Arizona where Trump supporters had been arguing that there was, 0:12:35.120 --> 0:12:38.040 you know, reason to take another look at those states 0:12:38.040 --> 0:12:41.120 on the one hand, or that he could simply effectively 0:12:41.200 --> 0:12:44.240 wave a magic wand and say that Trump is going 0:12:44.320 --> 0:12:46.960 to remain president. And he laid this out in detail 0:12:47.080 --> 0:12:50.079 in a memo that has become public as part of 0:12:50.120 --> 0:12:53.400 the hearing proceedings. He also laid it out in a 0:12:53.480 --> 0:12:56.520 series of emails that have become public since then, and 0:12:56.720 --> 0:13:00.600 now this chain of emails on January six between Jacob 0:13:00.600 --> 0:13:04.600 and Eastman have also become public. You're right that friends 0:13:04.640 --> 0:13:09.520 and colleagues call him humble, careful under the radar, not exactly, 0:13:09.880 --> 0:13:13.080 Mr Social. This is a guy, by all accounts, who 0:13:13.160 --> 0:13:16.840 has not thought the spotlight and somebody who is just 0:13:17.320 --> 0:13:21.360 super smart, super well respected in d C. And could 0:13:21.400 --> 0:13:24.720 have gone for a more public facing position had he 0:13:24.840 --> 0:13:28.040 thought that. And it's just not something that he personally 0:13:28.080 --> 0:13:30.920 has gone after. And I get the sense that, you know, 0:13:30.960 --> 0:13:33.200 if you left it up to Greg Jacob, he would 0:13:33.320 --> 0:13:37.360 rather not be going before the House Committee in a 0:13:37.400 --> 0:13:41.520 televised event before the world. He's a low key guy, 0:13:41.880 --> 0:13:44.600 you know. I think from his position, he's already sat 0:13:44.760 --> 0:13:47.679 for closed door testimony with the committee there. But on 0:13:47.720 --> 0:13:50.400 the other hand, here's someone who people close to him 0:13:50.640 --> 0:13:54.200 they believed in the rule of law. And certainly, by 0:13:54.200 --> 0:13:57.760 the time the mob was storming the Capitol, it became 0:13:57.800 --> 0:14:02.440 clear to Jacob that this of Trump's own doing and 0:14:02.520 --> 0:14:06.520 of trump supporters own doing, and and that Eastman in particular, 0:14:06.640 --> 0:14:09.640 according to Jacob, should shoulder some of the blame for 0:14:09.920 --> 0:14:12.800 spewing this narrative that somehow Trump was going to be 0:14:12.800 --> 0:14:15.560 able to remain in office. And I think for him 0:14:15.600 --> 0:14:19.160 it's more of a rule of law patriotism type of 0:14:19.160 --> 0:14:21.600 thing here where he feels like, you know, this is 0:14:21.640 --> 0:14:23.640 something where he has to step up and you know, 0:14:23.680 --> 0:14:27.680 explain what happened. Thanks Chris, that's Christopher up for a 0:14:27.800 --> 0:14:33.040 Bloomberg law. The Supreme Court sided with the Southwest Airlines 0:14:33.120 --> 0:14:36.640 baggage handling supervisor, who was trying to avoid having to 0:14:36.640 --> 0:14:39.920 go to arbitration with her claims for overtime pay. In 0:14:39.960 --> 0:14:43.640 a unanimous opinion, the Justice has said the supervisor isn't 0:14:43.680 --> 0:14:47.600 covered by the Federal Arbitration Act, which requires the enforcement 0:14:47.600 --> 0:14:51.480 of agreements to take claims to arbitration rather than to trial. 0:14:52.080 --> 0:14:55.800 In the majority opinion, Justice Clarence Thomas said the supervisor 0:14:56.000 --> 0:14:59.640 qualified for an exception in the law for workers engaged 0:14:59.680 --> 0:15:03.560 in foreign or interstate commerce. Joining me is Mark Rifkin, 0:15:03.720 --> 0:15:07.240 a partner Wolf Haldenstein. This is the second time in 0:15:07.360 --> 0:15:10.760 two weeks that the Court has shot down a company's 0:15:10.800 --> 0:15:15.600 attempt to force an employee into arbitration rather than going 0:15:15.640 --> 0:15:21.000 to trial and a unanimous decision. Is that surprising to you, No, 0:15:21.240 --> 0:15:24.360 I don't think so. I think that the first decision 0:15:24.600 --> 0:15:28.560 in the case involving the worker who was trying to 0:15:28.760 --> 0:15:33.440 invoke waiver as a defense to arbitration, was a straightforward 0:15:33.440 --> 0:15:36.800 application of the principle that arbitration should be put on 0:15:36.840 --> 0:15:40.520 the same footing as every other contract. And then the 0:15:40.560 --> 0:15:43.800 Southwest Airlines case, the second case is again just a 0:15:43.880 --> 0:15:48.840 straightforward application of simple definitions and principles that you can 0:15:48.880 --> 0:15:51.520 find in Black Law Dictionary. And so I think in 0:15:51.560 --> 0:15:56.000 the in that vein, they're both simple, straightforward applications of 0:15:56.560 --> 0:16:01.880 basic fundamental principles to arbitration agreements. So tell us about 0:16:01.920 --> 0:16:05.200 the facts here. So, the plaintiff in the Southwest Airlines 0:16:05.280 --> 0:16:10.400 case was ramp supervisor and part of her job included 0:16:10.520 --> 0:16:15.640 helping the ramp workers load baggage and airmail and cargo 0:16:15.880 --> 0:16:19.240 on and off airplanes that obviously travel across the country 0:16:19.280 --> 0:16:23.160 and presumably internationally as well. And the question is whether 0:16:23.200 --> 0:16:27.200 those workers who are involved in that kind of work 0:16:27.640 --> 0:16:30.880 belonged to a class of workers engaged in foreign or 0:16:30.920 --> 0:16:36.320 interstate commerce. Because the Federal Arbitration Act exempts those workers 0:16:36.880 --> 0:16:40.520 from the protection of the f a A, they can't 0:16:40.560 --> 0:16:43.800 be compelled to arbitrate, And so the question is do 0:16:43.920 --> 0:16:48.360 those baggage handlers fall within that class of workers. It 0:16:48.440 --> 0:16:51.440 seems obvious what her argument would be. What was the 0:16:51.560 --> 0:16:55.520 argument of Southwest as to why she shouldn't fall under 0:16:55.560 --> 0:17:01.760 this exemption. So Southwest Airlines said that the airline is 0:17:01.800 --> 0:17:05.920 engaged in interstate commerce, but the workers at the airport 0:17:06.119 --> 0:17:12.280 who don't themselves travel across state lines or across international lines. 0:17:12.840 --> 0:17:17.359 That the workers are not engaged in interstate commerce, even 0:17:17.359 --> 0:17:19.760 though they work for a company that is. And and 0:17:19.800 --> 0:17:24.720 the question that the Supreme Court addressed is whether those 0:17:24.760 --> 0:17:30.840 workers who are part of that effort of commerce are 0:17:30.880 --> 0:17:35.920 themselves engaged in foreign or interstate commerce even though they 0:17:35.960 --> 0:17:40.320 work within one state rather than traveling interstate or internationally. 0:17:41.240 --> 0:17:47.120 Justice Clarence Thomas wrote the majority opinion, explain his reasoning, Well, 0:17:47.160 --> 0:17:50.920 it's a unanimous decision, so so all the judges who 0:17:50.960 --> 0:17:56.720 participated in the decision agreed, and Justice Barrett did not participate, 0:17:56.840 --> 0:18:01.399 but everybody who participated agreed. And Justice Thomas, writing for 0:18:01.560 --> 0:18:05.639 the court, said that, um, if we look at how 0:18:06.000 --> 0:18:11.960 black slaw a dictionary defines the words engaged and commerce, 0:18:12.480 --> 0:18:18.080 then we conclude that anyone is engaged in commerce who 0:18:18.200 --> 0:18:21.600 is occupied in it, employed in it, or involved in it. 0:18:22.160 --> 0:18:25.320 And the Court took a very broad approach to applying 0:18:25.800 --> 0:18:31.359 that definition. And since the ramp supervisors who actually handle 0:18:31.640 --> 0:18:37.840 the cargo are certainly involved in interstate commerce, the Court said, well, 0:18:37.880 --> 0:18:41.080 they fall within that class of workers who are exempt 0:18:41.200 --> 0:18:45.160 under Section one of the Federal arbitration. I love when 0:18:45.160 --> 0:18:49.960 they go to the dictionary to decide a case of 0:18:50.119 --> 0:18:53.560 national importance. Well, you would think if a case was 0:18:53.880 --> 0:18:57.560 complicated enough and important enough to be adjudicated by the 0:18:57.600 --> 0:19:02.520 Supreme Court, it should require some more sophisticated analysis than 0:19:02.720 --> 0:19:06.960 looking in the dictionary. But here the dictionary help. And 0:19:07.280 --> 0:19:10.119 so Justice Thomas looked in the dictionary and saw the 0:19:10.480 --> 0:19:15.119 how those terms were interpreted, and uh said, works for 0:19:15.240 --> 0:19:20.600 US Uber Lift and Amazon all file briefs backing Southwest. 0:19:21.160 --> 0:19:24.720 What are the implications for those workers? Well, I think 0:19:24.720 --> 0:19:28.040 the principle is fairly well established. Now, if you work 0:19:28.280 --> 0:19:33.120 in an industry that participates in either interstate or international commerce, 0:19:33.320 --> 0:19:37.119 and so for example, Amazon plainly participates in interstate and 0:19:37.359 --> 0:19:41.400 international commerce, if you work for a company that does that, 0:19:41.680 --> 0:19:46.560 and your job is closely enough tied to that commerce, 0:19:47.000 --> 0:19:51.320 then the same rationale would apply to that worker as 0:19:51.480 --> 0:19:54.600 as applied to Saxon in the Southwest Airlines case. Now, 0:19:54.720 --> 0:19:58.920 not everybody who works for Southwest Airlines would fall within 0:19:59.280 --> 0:20:03.680 the courts rational So I could imagine an accountant who 0:20:03.800 --> 0:20:06.960 works for Southwest Airlines. I could imagine that a court 0:20:07.000 --> 0:20:10.720 would say, well, that person is not engaged in interstate 0:20:10.880 --> 0:20:15.080 or international commerce. But you know, obviously, if a baggage 0:20:15.080 --> 0:20:19.720 handler is engaged in interstate or international commerce, a flight 0:20:19.760 --> 0:20:24.160 attendant is engaged in interstate or international commerce, and presumably 0:20:24.200 --> 0:20:28.359 others as well, even though their jobs don't cross state 0:20:28.440 --> 0:20:33.400 lines or international lines, still could be engaged in interstate 0:20:33.400 --> 0:20:37.280 commerce within the meaning of Supreme Court's decision here, I 0:20:37.280 --> 0:20:39.639 want you to tell me what you think Southwest is 0:20:39.680 --> 0:20:44.240 saying here. They said, because non union employees rarely handle 0:20:44.400 --> 0:20:48.280 cargo on a regular basis, Southwest will continue to rely 0:20:48.359 --> 0:20:52.159 on the Federal Arbitration Act to enforce its arbitration program 0:20:52.240 --> 0:20:54.240 in the future. Are they saying they're not going to 0:20:54.240 --> 0:20:57.000 pay attention to the Supreme Court? Well, I think they're 0:20:57.040 --> 0:20:59.720 trying to look for a move all around through this 0:21:00.040 --> 0:21:04.360 free Courts decisions. They conceded in the case that at 0:21:04.440 --> 0:21:09.080 least Saxon, this ramp supervisor, that a significant part of 0:21:09.119 --> 0:21:13.240 her job was to transport cargo, that she helped the 0:21:13.359 --> 0:21:18.359 ramp workers by frequently loading and unloading cargo. So because 0:21:18.440 --> 0:21:22.480 Southwest conceded the issue there, they're now looking for a 0:21:22.520 --> 0:21:27.440 way to distinguish some other kinds of workers from Saxon 0:21:27.720 --> 0:21:30.320 and I guess the way they're trying to do that 0:21:30.520 --> 0:21:36.080 is the extent to which any particular worker actually handles 0:21:36.800 --> 0:21:39.640 baggage or cargo or whatever it may be that gets 0:21:39.680 --> 0:21:43.840 loaded and unloaded from from airplanes. Um. You know, these 0:21:43.880 --> 0:21:46.919 are the kinds of grain lines that courts often have 0:21:47.119 --> 0:21:51.040 to draw. And I guess in the next case brought 0:21:51.080 --> 0:21:54.240 by a Southwest Airlines employee who doesn't handle as much 0:21:54.240 --> 0:21:57.560 baggage as Saxon did, maybe the court would find that 0:21:57.560 --> 0:22:01.960 that person falls outside the exemption. But that's another case 0:22:02.000 --> 0:22:05.159 for another day. We've talked about the Supreme Court and 0:22:05.240 --> 0:22:09.840 arbitration before. Before these two cases, has the Supreme Court 0:22:09.840 --> 0:22:15.640 been interpreting arbitration in ways that are favorable to businesses 0:22:15.880 --> 0:22:19.199 for the most part, well, I think the Supreme Court's 0:22:19.520 --> 0:22:23.120 approach to arbitration has been favorable to business. The f 0:22:23.119 --> 0:22:27.879 a A says you can't disfavor arbitration, and that was 0:22:28.200 --> 0:22:32.399 the rationale for the Morgan Versus Sundance opinion that Justice 0:22:32.440 --> 0:22:35.879 Kagan wrote is that arbitration agreements have to be on 0:22:36.119 --> 0:22:39.800 exactly the same footing as all other contracts, and so 0:22:40.160 --> 0:22:44.000 in that case in Morgan Versus Sundance, the Supreme Court said, 0:22:44.200 --> 0:22:50.439 you can't favor arbitration by creating an artificial barrier to 0:22:50.560 --> 0:22:53.560 a waiver defense that doesn't exist to the defense of 0:22:53.600 --> 0:22:58.199 any other contractual right. And so when the Sixth Circuit 0:22:58.320 --> 0:23:04.600 imposed this additional requirement of prejudice to the defendant who 0:23:04.720 --> 0:23:10.520 was trying to enforce arbitration after litigating a case or 0:23:10.720 --> 0:23:14.080 some prolonged period of time, the Supreme Court said, you've 0:23:14.160 --> 0:23:19.040 weighed that right, whether you're prejudiced by by the inability 0:23:19.080 --> 0:23:24.440 to arbitrate or not. And so the Court now says, 0:23:24.480 --> 0:23:27.760 you know, equal footing means equal footing both ways. But 0:23:28.160 --> 0:23:33.480 the reason that the approach to arbitration favors business is 0:23:33.520 --> 0:23:36.840 because it's an expansion of what the f a A 0:23:37.160 --> 0:23:42.600 really was created to do. You know, decades ago, federal 0:23:42.640 --> 0:23:49.080 courts were very unwilling to enforce arbitration agreements between sophisticated 0:23:49.080 --> 0:23:53.359 commercial parties, which is primarily where arbitration agreements were found. 0:23:53.800 --> 0:23:57.120 And when two big companies decide they want to arbitrate 0:23:57.320 --> 0:24:02.120 their disputes, they're able to make a decision and negotiate 0:24:02.280 --> 0:24:05.119 over whether to include a provision like that or not 0:24:05.240 --> 0:24:07.760 include a provision like that. In a contract, and so 0:24:07.960 --> 0:24:11.719 it really does make sense to say that arbitration is 0:24:12.359 --> 0:24:15.560 a matter of mutual consent between the parties, and we're 0:24:15.560 --> 0:24:19.560 going to treat that the decision to arbitrate and agreement 0:24:19.560 --> 0:24:23.840