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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. New Jersey has

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Speaker 1: been trying to legalize betting at race tracks and casinos

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Speaker 1: for seven years, fighting to overturn a federal law that

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Speaker 1: bars gambling on individual sporting events in most of the country. Today,

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Speaker 1: the Supreme Court did just that in a landmark decision,

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Speaker 1: ruling that the twenty five year old law was unconstitutional.

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Speaker 1: Joining me is Bloomberg New Supreme Court reporter Greg Store Greg.

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Speaker 1: Why did the justices find that federal law unconstitutional? Hi, June.

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Speaker 1: What they said was that the law unconstitutionally requires states

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Speaker 1: to keep a prohibition on their books. Um. It says

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Speaker 1: that that is an affront to state sovereignty and violent.

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Speaker 1: It's the tenth Amendment of the Constitution. The vote was split.

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Speaker 1: Justice Brier seemed to be all over the place. Explain

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Speaker 1: explain the split please, Yeah. So, the easy thing to

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Speaker 1: say is that the vote was six to three to

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Speaker 1: strike down the entire federal prohibition. Um uh. There were

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Speaker 1: um uh. There was a majority of justices who said

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Speaker 1: violates the tenth Amendment. There were two Justices uh in

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Speaker 1: descent as Ruth Vader Ginsburg and Sonya Soda Mayor, who said,

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Speaker 1: we don't actually want to deal with the tenth Amendment question,

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Speaker 1: but you really didn't have to strike down the whole statute.

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Speaker 1: You could have just done something much narrower. And then

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Speaker 1: there was Justice Brier who said, I agree with you

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Speaker 1: on the tenth Amendment, but I also agree with the

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Speaker 1: dissenters that what you should have done was just trim

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Speaker 1: a little part out of this federal band and not

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Speaker 1: strike the whole thing down. Greg. This leaves the states

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Speaker 1: to decide whether or not they want to offer sports betting,

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Speaker 1: and that would lead to a patchwork of state laws.

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Speaker 1: Will that put pressure on Congress to pass a federal law? Yeah,

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Speaker 1: it might, And and the leagues are coming out with statements.

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Speaker 1: The NBA and the NFL are both saying we want

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Speaker 1: Congress to act. We want The NBA had already started

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Speaker 1: moving in favor of moving in the direction of endorsing

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Speaker 1: sports gambling. But what they want is a is a

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Speaker 1: federal framework so that they don't have different laws all

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Speaker 1: around the country. With internet gambling, the law became more anachronistic,

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Speaker 1: and you had the American Gaming Association estimating that Americans

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Speaker 1: illegally wager about a hundred fifty billion dollars on sports

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Speaker 1: each year. Was that any part of the consideration of

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Speaker 1: the justices. It really wasn't, at least not in the

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Speaker 1: in the opinion itself. It was certainly in the back background.

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Speaker 1: The justices, uh know what's going on. They know that,

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Speaker 1: um uh, this illegal gambling is going on. But the

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Speaker 1: decision was very much written as a um Their arguments

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Speaker 1: pro and against, but that's up to Congress. We're going

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Speaker 1: to leave at the Congress. The only thing we're gonna

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Speaker 1: say here is that Congress can't do it by forcing

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Speaker 1: states to keep it on their their books. If Congress

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Speaker 1: wants to outlast sports gambling, it has to do it

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Speaker 1: itself directly. When the case went to oral arguments, I

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Speaker 1: remember Chris Christie saying, it will take us two weeks

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Speaker 1: New Jersey to get ourselves up and going, But now

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Speaker 1: I'm hearing even days for some states. Yes, so so

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Speaker 1: William Hill, which runs the Monmouth racetrack. Um has this

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Speaker 1: room that has set up. They're all basically poised to

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Speaker 1: go ready to open up uh and start accepting uh

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Speaker 1: single game sports bets. Uh. They're they're not committing so

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Speaker 1: far today to a particular time frame, only saying that

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Speaker 1: they're going to do it just as soon as they can.

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Speaker 1: Another ruling today that is not getting the attention of

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Speaker 1: the sports gambling is about rental car drivers being able

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Speaker 1: to prevent police from searching the vehicle even if they

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Speaker 1: aren't authorized to drive it. Yeah. So this is a

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Speaker 1: case where, um, somebody who was not authorized to drive

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Speaker 1: the car was pulled over and turns out had heroin

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Speaker 1: and Eli God body armor in the trunk. And the

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Speaker 1: question is is whether um, he gets to act like

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Speaker 1: he owned the car in the sense that unless police

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Speaker 1: have probable cause to to to search the trunk, they

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Speaker 1: can't do it without his consent um. And what the

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Speaker 1: Supreme Court said today was we're not going to, you know,

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Speaker 1: answer that ultimate question, but we are going to say

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Speaker 1: that just because he wasn't authorized to drive this car,

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Speaker 1: just because it was rented by somebody else, that's not

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Speaker 1: enough of a reason for police to say, you don't

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Speaker 1: have any privacy rights. Uh, so you at least have

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Speaker 1: some privacy rights if you're driving a car that you're

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Speaker 1: not supposed to be driving, if it was rented by

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Speaker 1: somebody else and you're driving with permission. That seems like

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Speaker 1: a leap to me. Does this show an expansive view

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Speaker 1: of privacy by the justices? It might or maybe kind

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Speaker 1: of uh uh an expansive skepticism, skepticism about technicalities. There

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Speaker 1: was a certain tone of uh where where they didn't

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Speaker 1: want to bind somebody based on this very long rental contract,

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Speaker 1: um leading open other arguments for the government, but not

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Speaker 1: on just based on the technicalities of the contract. About

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Speaker 1: a minute, Well, we're coming into the home stretch, Greg,

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Speaker 1: So you have a lot of work got out for you.

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Speaker 1: What cases are you looking forward to? Oh? Boy, can

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Speaker 1: I only have a minute? Well, certainly the Masterpiece cakeshop

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Speaker 1: case involving the baker who refused to make cakes for

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Speaker 1: for same sex weddings. That's a big one. Donald Trump's

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Speaker 1: travel band will be be huge. Will certainly be talking

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Speaker 1: about the Internet sales tax, a case that could let

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Speaker 1: states start requiring Internet retailers to to collect taxes. Case

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Speaker 1: about a mandatory union fees that could keep going on.

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Speaker 1: But I know at some point, Jude, we're gonna have

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Speaker 1: to end this segment. We might, Um, so tell me

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Speaker 1: when we'll hear about the next opinion. Well, we'll probably

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Speaker 1: get more more opinions on on Monday of next week. Um,

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Speaker 1: could well get one I haven't mentioned. There's a good

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Speaker 1: chance we should be getting very soon involved whether workers

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Speaker 1: can be required to forego class action lawsuits when they

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Speaker 1: agreed to their employment. All right, great, and we know

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Speaker 1: that the big ones who have probably becoming on the

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Speaker 1: last day of the term as they are likely to

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Speaker 1: as we've watched over the years. Thanks so much, Greg,

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Speaker 1: that's Bloomberg News Supreme Court reporter of Greg's store again

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Speaker 1: a landmark case of the Supreme Court ruling that a

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Speaker 1: twenty five year old law that that over that barred

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Speaker 1: gambling on individual sporting events in most of the country

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Speaker 1: outside of Nevada was unconstitutional. The government won the latest

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Speaker 1: round in its battle against political corruption, as the former

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Speaker 1: Speaker of the New York State Assembly, Sheldon Silver, was

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Speaker 1: found guilty of federal corruption charges for a second time.

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Speaker 1: The verdict was a repeat of Silver's first trial. That

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Speaker 1: conviction was tossed out by an appeals court after the

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Speaker 1: Supreme Courts ruling. The McDonald case led to the reversal

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Speaker 1: of several public corruption cases, joining me as former federal

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Speaker 1: prosecutor Robert Mints, a partner at mccar heder in English, Bob,

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Speaker 1: was this a test of whether federal prosecutors could get

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Speaker 1: a conviction under the narrower definition. Well, it was one

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Speaker 1: of the first cases that was retried that had been

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Speaker 1: reversed in light of the McDonald ruling. Um, But I

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Speaker 1: think most observers were not surprised that there was a

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Speaker 1: conviction again in the second trial, because the evidence in

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Speaker 1: this case against former Speaker Silver was fairly overwhelming. In

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Speaker 1: other words, prosecutors, I think we're able to paint a

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Speaker 1: pretty clear picture that the former speaker was leveraging his

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Speaker 1: public position in order to try to get financial gain

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Speaker 1: by getting referral fees from these law firms to which

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Speaker 1: she was having worked Steered. The original verdict was thrown

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Speaker 1: out because of the jury instructions. Explained a little bit

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Speaker 1: more about that, sure, Well. The McDonald decision was a

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Speaker 1: case involving the former Virginia Governor Bob McDonald, and that

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Speaker 1: was a case in which the court clarified what constituted

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Speaker 1: an official act to support a bribery charge. And in

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Speaker 1: that case, the Supreme Court held that the official act

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Speaker 1: had to be a formal exercise of government power, similar

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Speaker 1: to a lawsuit or a hearing or an administrative determination,

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Speaker 1: and that merely setting up a meeting isn't enough. In

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Speaker 1: that case, there were allegations that the former governor had

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Speaker 1: set up meetings in exchange for receiving gifts from somebody

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Speaker 1: who was trying to push a business UH to succeed

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Speaker 1: in Virginia. UM. Here, though there really was no question

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Speaker 1: that the former speaker had taken official acts here, the

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Speaker 1: case really turned on whether or not the government could

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Speaker 1: established that there was a direct quid pro quote connection

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Speaker 1: between those acts and the benefits that he ultimately received.

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Speaker 1: And the case was tried just about asked just about

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Speaker 1: UM twice as speedy UH. The second trial was completed

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Speaker 1: in two weeks. The first trial took a month to complete.

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Speaker 1: One jurors that the government's case was too strong for

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Speaker 1: Silver to overcome. But what were the key points of

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Speaker 1: Silver's defense? Well, the defense was really fairly straightforward. UM.

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Speaker 1: Silver contended that he was engaged in the honest practice

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Speaker 1: of law. Remember that legislators in New York State, as

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Speaker 1: with many other states, are allowed to have jobs in

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Speaker 1: addition to their legislative positions. The legislative positions are not

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Speaker 1: full time positions, and so he's his position was simply

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Speaker 1: that he was practicing law and didn't do anything the

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Speaker 1: legal by taking these referral fees. The government, on the

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Speaker 1: other hand, argued that what he did was he exchanged

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Speaker 1: official acts. He took certain acts to benefit certain individuals

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Speaker 1: in exchange for those referral fees, and ultimately the jury

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Speaker 1: found that there was persuasive evidence to support the government's position.

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Speaker 1: The defense says they're going to appeal. What's the likelihood

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Speaker 1: of a of a reversal. That's hard to say. What's

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Speaker 1: the likelihood of a reversal the second time around? I

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Speaker 1: think it's going to be difficult. The second time around,

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Speaker 1: I think, uh, there's substantial evidence here is to support

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Speaker 1: the conviction. And remember, the reversal the first time around

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Speaker 1: really had nothing to do with the facts of the trial.

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Speaker 1: It had to do with the McDonald decision and had

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Speaker 1: to do with the instruction that was given that was

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Speaker 1: determined by the second circuit to have been overly brought.

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Speaker 1: So I think they have an uptil climb to get

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Speaker 1: at this conviction overturned a second time. Silver's seventy four

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Speaker 1: years old. He was sentenced to twelve years the last time.

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Speaker 1: Have the circumstances changed any Is it likely he'll be

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Speaker 1: sentenced to the same amount. Well, it's hard to say,

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Speaker 1: but he was convicted on all the same charges, and

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Speaker 1: so I think we can expect the sentence that is

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Speaker 1: at least close to you received the last time. Dean Skelos,

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Speaker 1: the former state Senate majority leader, also was convicted, also

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Speaker 1: had his conviction reverse because of the McDonald case. He'll

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Speaker 1: be retried next month. Do you have any expectations for

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Speaker 1: that trial. Well, I think he's going to face the

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Speaker 1: same difficulties that the former speaker faced. His conviction was

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Speaker 1: also overturned on grounds that had really nothing to do

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Speaker 1: with his trial. So, uh, he gets the second shot

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Speaker 1: here trying to gain an acquittal. Um. But that's a

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Speaker 1: case where I think there's some um substantial evidence that

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Speaker 1: supports the conviction, and we'll just have to see whether

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Speaker 1: the government can connect the dots and show the quid

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Speaker 1: pro core arrangement, as they were successfully able to do

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Speaker 1: in the Sheldon Silver case. Bob, how has the government

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Speaker 1: succeeded in its quest to stamp out corrupt public corruption,

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Speaker 1: especially in New York? Can you tell us about the

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Speaker 1: people who have either either left office because they've been

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Speaker 1: forced out or just left office because I thought it

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Speaker 1: was a smart thing to do. Well. I think we're

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Speaker 1: seeing a certainly a ractioning up of these public corruption cases.

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Speaker 1: A lot of this conduct has a leg to have

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Speaker 1: been going on for years, and in fact, the Sheldon

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Speaker 1: Silver case is sort of a prime example because the

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Speaker 1: allegations of this misconduct is something that had been going

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Speaker 1: on for for quite a few years before federal authorities

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Speaker 1: finally sought to crack down there. So I think there

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Speaker 1: is a perception, um that there's been a rather loose

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Speaker 1: enforcement of a lot of these corruption laws in New

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Speaker 1: York until recently, and now that we're seeing that that

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Speaker 1: is stepping up. Um. We're seeing a slew of indictments,

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Speaker 1: and we're seeing certain politicians who are deciding not to

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Speaker 1: run for re election. Does real change have to depend

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Speaker 1: on the law or changes to the law, and Cuomo

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Speaker 1: Governor Cuomo has proposed changes to New York's anti corruption

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Speaker 1: laws after these convictions, but didn't get very far. Yeah.

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Speaker 1: The problem is that when you propose these any corruption changes,

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Speaker 1: everybody's sort of in favor of it as a general principle,

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Speaker 1: but then when you get down to the details, it

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Speaker 1: tends to get bogged down and ultimately go nowhere. So,

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Speaker 1: at least for the short term, it seems that the

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Speaker 1: real change is going to be brought about by the U. S.

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Speaker 1: Attorney's Office in the Southern District uh and and elsewhere, UM,

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Speaker 1: where prosecutors are are going to bring these charges and

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Speaker 1: forced politicians out of office who have been violating the law.

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Speaker 1: About forty five seconds here. Most of these cases were

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Speaker 1: brought under the former U. S. Attorney pre Berrara, who

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Speaker 1: was really um made a campaign sort of of fighting

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Speaker 1: public corruption. Is that continuing under the current US Attorney? Well,

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Speaker 1: I think it's a little early to say, but I

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Speaker 1: would expect that it would. Um. Public corruption has been

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Speaker 1: the hallmark of U. S. Attorney's offices around the country. UM,

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Speaker 1: it's always been difficult, whether it's in U. York State

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Speaker 1: or New Jersey or frankly anywhere around the country. For

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Speaker 1: state Attorneys General's offices to be as effective in pursuing

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Speaker 1: these public corruption cases because the individuals in the a g.

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Speaker 1: S office work more closely with state legislators and then

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Speaker 1: do the federal prosecutors. So I think we'll expect we

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Speaker 1: can't expect to see those prosecutions continue. Thanks so much, Bob.

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Speaker 1: That's Robert Ment's, a partner, a McCarter and English and

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Speaker 1: a former federal prosecutor. Thanks for listening to the Bloomberg

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Speaker 1: Law podcast. You can subscribe and listen to the show

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Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com Slash podcasts.

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Speaker 1: I'm June Basso. This is Bloomberg