WEBVTT - Behind the Trump Classified Documents Controversy 0:00:03.200 --> 0:00:07.960 This is bloombird law with June Brusso from bloombird radio. 0:00:10.880 --> 0:00:12.880 If you're the president of the United States, you can 0:00:12.920 --> 0:00:16.160 declass if I just by saying stick class even by 0:00:16.200 --> 0:00:19.880 thinking about it. Despite what former President Donald Trump said 0:00:19.880 --> 0:00:22.919 on Fox News this week, it's clear that not even 0:00:22.960 --> 0:00:27.640 a president can declassify documents just by saying it, certainly 0:00:27.680 --> 0:00:30.400 not by thinking it, and the Eleventh Circuit Court of 0:00:30.440 --> 0:00:34.880 Appeals definitively shot down most of trump's other arguments about 0:00:34.920 --> 0:00:38.960 the classified documents seized by the FBI from Maral Lago. 0:00:39.440 --> 0:00:43.120 My guest is national security expert Bradley Moss, a partner 0:00:43.280 --> 0:00:47.240 Mark Z Brad. Let's start with the basic question. What 0:00:47.240 --> 0:00:51.200 would trump have to have done to declassify a document? 0:00:51.920 --> 0:00:54.560 So this is this is a bit of a philosophical 0:00:54.600 --> 0:00:57.320 question at some part. In theory, up to the moment 0:00:57.560 --> 0:01:00.440 Joe Biden took the oath of office, Donald Trump could 0:01:00.440 --> 0:01:04.240 at any time have literally just stated that document in 0:01:04.280 --> 0:01:07.000 front of me that says we plan to attack Iran, 0:01:07.440 --> 0:01:12.160 I'm declassifying it and the document would be considered, quote unquote, declassified. 0:01:12.360 --> 0:01:15.559 But there are two problems here. One all the case 0:01:15.640 --> 0:01:18.720 law from the trump era. said that that declassification doesn't 0:01:18.720 --> 0:01:22.800 take effect as a subsequent follow up bureacratic steps. Specifically, 0:01:22.959 --> 0:01:25.240 it has to be notification to the agency that provided it, 0:01:25.560 --> 0:01:30.080 the documents have to be the marked, etcetera, etcetera. More importantly, 0:01:30.120 --> 0:01:33.360 for purposes of a criminal inquiry here, even if he 0:01:33.480 --> 0:01:37.880 declassified the document, the markings are still there and until 0:01:37.959 --> 0:01:42.240 the markings have been properly removed, the document has to 0:01:42.280 --> 0:01:45.880 be treated by any individual who sees it as if 0:01:45.880 --> 0:01:49.560 it is still classified. That's where Donald Trump's problem comes 0:01:49.560 --> 0:01:52.840 into play here. That's why the search warrant didn't ask 0:01:52.880 --> 0:01:56.040 for classified records. It asked for documents with classification marketing, 0:01:56.320 --> 0:01:58.760 because that becomes became the problem that if he took 0:01:58.840 --> 0:02:02.320 them without having proper early had them de marked, there 0:02:02.400 --> 0:02:05.960 still have to be treated as if they're classified. Trump 0:02:06.000 --> 0:02:10.720 many times, including this week on Fox, said he declassified 0:02:10.800 --> 0:02:14.360 these documents. There can be a process, but that doesn't 0:02:14.400 --> 0:02:16.720 have to be you know, the president, you make that decision. 0:02:17.160 --> 0:02:20.519 So when you send it it's the Classif we I 0:02:20.720 --> 0:02:25.440 declassified everything. But his lawyers have never made that claim 0:02:25.639 --> 0:02:29.320 in court or in court papers, have they? No, they 0:02:29.320 --> 0:02:31.640 have come right up to the line, but they've never 0:02:31.760 --> 0:02:35.200 actually come out and said he be classified these documents, 0:02:35.280 --> 0:02:38.120 and the reason they haven't done that is twofold one. 0:02:38.320 --> 0:02:41.480 That would require a sworn after dated from Donald Trump 0:02:41.520 --> 0:02:44.240 and or various staffers who were around who can attest 0:02:44.280 --> 0:02:47.000 to what happened. No one wants to put their name 0:02:47.080 --> 0:02:50.640 on that and potentially subject themselves the perjury charges. But 0:02:50.800 --> 0:02:55.080 too even if they did, all it does is address 0:02:55.160 --> 0:02:58.840 the idea that there were vague, you know, broad verbal orders, 0:02:59.440 --> 0:03:01.600 none of we are gonna most likely have anything to 0:03:01.600 --> 0:03:05.280 do specific to these particular one hundred documents and none 0:03:05.280 --> 0:03:09.320 of which has anything to do ultimately with the three 0:03:09.320 --> 0:03:12.520 criminal statutes in play that were the subject of the search. 0:03:12.560 --> 0:03:15.600 Warm they don't care if the documents were declassified. The 0:03:15.680 --> 0:03:18.239 markings are still there, they're still have to be treated 0:03:18.320 --> 0:03:22.000 as valid unless they were demarked, and it doesn't change 0:03:22.040 --> 0:03:25.080 the obstruction issue. That's the problem. That's why they're dancing 0:03:25.080 --> 0:03:28.240 around this. What I don't understand through all this is 0:03:28.320 --> 0:03:33.160 even if he had declassified these documents, it doesn't change 0:03:33.200 --> 0:03:36.920 the fact that they don't belong to him. Correct. So 0:03:37.280 --> 0:03:42.000 the only way he could theoretically have any possessory interest 0:03:42.200 --> 0:03:46.640 in these documents is if he had designated them under 0:03:46.640 --> 0:03:50.480 the Presidential Records Act as personal records and had done 0:03:50.560 --> 0:03:55.080 so prior to leaving office. There is zero evidence that's 0:03:55.120 --> 0:03:58.960 been produced that he ever did any such thing and 0:03:59.040 --> 0:04:01.840 if he had, he was supposed to have notified the 0:04:01.960 --> 0:04:04.800 archivists of the United States, and the artivists could have 0:04:04.840 --> 0:04:09.200 taken action under the Presidential Records Act to challenge that, 0:04:09.640 --> 0:04:14.280 because personal records are supposed to be non official, you know, 0:04:14.560 --> 0:04:17.920 not relevant to the ordinary business of government. These were 0:04:18.040 --> 0:04:22.719 top secret documents relating to foreign intelligence. That's not supposed 0:04:22.760 --> 0:04:25.919 to be a personal record, that's official government records. That 0:04:26.000 --> 0:04:30.120 would then the only circumstance in which he could theoretically 0:04:30.160 --> 0:04:32.520 have had any type of right to those documents. There's 0:04:32.560 --> 0:04:34.799 no indication you did any of that. If the judge 0:04:34.839 --> 0:04:36.960 did say to the government, you have to prove these 0:04:37.000 --> 0:04:40.400 are classified documents, would that be difficult for the government 0:04:40.440 --> 0:04:44.680 to do? NOPE, all they would have to do, besides 0:04:44.839 --> 0:04:47.400 literally showing the judge the documents with the markings on them, 0:04:47.720 --> 0:04:50.960 they would submit a declaration from a relevant security official 0:04:51.360 --> 0:04:54.440 saying I've reviewed the documents, I've cross checked against where 0:04:54.480 --> 0:04:58.040 those documents came from and the relevant security classification guides. 0:04:58.560 --> 0:05:02.120 They remain classified, the markings remain valid. There is no 0:05:02.240 --> 0:05:06.560 declassification order I've found anywhere. U S District Judge Raymond 0:05:06.600 --> 0:05:10.160 Deary said it's a matter of need to know. In 0:05:10.200 --> 0:05:12.400 other words, is he even going to be able to 0:05:12.400 --> 0:05:17.159 look at these documents explain that? Sure so, and this 0:05:17.240 --> 0:05:19.240 is very common for those of us who deal with 0:05:19.279 --> 0:05:23.600 classified information in civil litigation. This is a common problem 0:05:23.680 --> 0:05:26.320 under the existing case law and I'm not saying I 0:05:26.360 --> 0:05:28.039 agree with it. I'm saying this is what the case 0:05:28.120 --> 0:05:29.960 law says that my name is on a bunch of 0:05:29.960 --> 0:05:34.440 the cases that lost. But under the case law the government, 0:05:34.560 --> 0:05:38.279 the executive branch, makes the ultimate decision on whether or 0:05:38.279 --> 0:05:41.400 not a person has the relevant, quote unquote, need to 0:05:41.440 --> 0:05:45.080 know the information. So it's not just that you have 0:05:45.160 --> 0:05:47.440 the requisite clearance, because I have the clearance, my boss 0:05:47.480 --> 0:05:49.359 is a clearance. We get told we don't have the 0:05:49.400 --> 0:05:52.160 need to know all the time. If the government decides 0:05:52.279 --> 0:05:54.520 that you don't have a need to know this particular information, 0:05:54.800 --> 0:05:58.040 they can still refuse to provide you the access. So 0:05:58.480 --> 0:06:00.919 what trump's team is trying to do here? They're saying 0:06:01.480 --> 0:06:05.880 you see these records. We're challenging it as a civil matter. 0:06:07.080 --> 0:06:10.599 We want access to the documents to review it and 0:06:10.640 --> 0:06:12.880 decide how we're going to present our evidence that these 0:06:12.880 --> 0:06:15.760 were not classified. Of the markets aren't valid. The government 0:06:15.839 --> 0:06:20.400 saying Burns on you. You brought this action, present your evidence. 0:06:20.720 --> 0:06:23.120 You have no need to know in terms of seeing 0:06:23.120 --> 0:06:27.400 these particular documents with classification marketing, that's not our job 0:06:27.480 --> 0:06:29.760 to give it to you. It's not in our view, 0:06:30.160 --> 0:06:33.040 it's not in the interest of national security to provide 0:06:33.080 --> 0:06:36.600 you with that access. In every single case that has 0:06:36.640 --> 0:06:39.040 ever come up about this in a civil action has 0:06:39.040 --> 0:06:42.479 set over and over again the executive branch alone makes 0:06:42.520 --> 0:06:47.080 that decision. Judge Jalen cannon had barred the Justice Department 0:06:47.279 --> 0:06:51.919 from using some one hundred documents with classification markings, but 0:06:52.080 --> 0:06:55.320 on Wednesday a three judge panel of the Eleventh Circuit, 0:06:55.560 --> 0:07:00.599 including two judges appointed by trump, intervened and said the 0:07:00.720 --> 0:07:04.640 Justice Department can use those documents. Why did they intervene? 0:07:05.120 --> 0:07:09.080 This was the eleventh circuit bringing everyone back to reality 0:07:09.120 --> 0:07:11.560 on what the case law actually says and how this 0:07:11.720 --> 0:07:17.480 is actually supposed to work. Namely this was a civil litigant. 0:07:17.640 --> 0:07:20.680 Mr Trump who is now a private citizen, suing to 0:07:20.840 --> 0:07:24.480 try to regain access to, in control over, records that 0:07:24.560 --> 0:07:27.800 had been seized from him by the FBI. Pursue it 0:07:27.840 --> 0:07:31.200 to a search warrant and in the particular context of 0:07:31.240 --> 0:07:37.080 this appealed it concerned one documents with classification markets. At 0:07:37.120 --> 0:07:41.160 no point in the lower court litigation had he ever 0:07:41.240 --> 0:07:45.880 provided any evidence that the documents were not classified, that 0:07:45.920 --> 0:07:49.840 he had declassified him or that the markings were not valid. 0:07:49.920 --> 0:07:53.160 The burden was on him, and all of the case 0:07:53.240 --> 0:07:56.520 law that applies in this context, most of which has 0:07:56.560 --> 0:07:59.680 been dealt with in the context of either bring information 0:08:00.280 --> 0:08:04.640 or First Amendment Litigation for manuscripts the former employees, always 0:08:04.720 --> 0:08:09.160 makes clear that the burden to gain access to documentation 0:08:09.160 --> 0:08:11.280 that the government still thinks it is classified, that burden 0:08:11.320 --> 0:08:14.320 is going to be on the plaintiff to disprove essentially 0:08:14.520 --> 0:08:17.720 that the classification is valid, and Mr Trump had never 0:08:17.800 --> 0:08:22.200 done anything to create a genuine issue of material dispute 0:08:22.320 --> 0:08:25.440 on that front. That's why the circuit intervened. Did you 0:08:25.480 --> 0:08:28.640 see a rebuke to trump here? The panel said quote. 0:08:29.000 --> 0:08:32.120 For our part, we cannot discern why the plaintiff would 0:08:32.160 --> 0:08:35.360 have an individual interest in or need for any of 0:08:35.400 --> 0:08:40.360 the documents with classification markings. I thought it as more 0:08:40.400 --> 0:08:43.559 of a very polite and professional rebute to judge cannon 0:08:43.679 --> 0:08:46.559 more so than to Mr Trump. Mr Trump is trying 0:08:46.600 --> 0:08:49.160 to put forth whatever arguments he can, which is why 0:08:49.200 --> 0:08:52.600 he civil Litigan does in this context, trying to create 0:08:52.720 --> 0:08:56.040 a material controversy in order to try to delay in 0:08:56.160 --> 0:08:59.960 gain access to the records. The judge, Judge Cannon, should 0:09:00.080 --> 0:09:02.719 have known better, and that's what the Eleventh Circuit, I think, 0:09:02.760 --> 0:09:05.079 was really focusing on. It was more of a response 0:09:05.120 --> 0:09:08.880 of what were you thinking here? There's no possible basis 0:09:08.880 --> 0:09:11.400 in law for him to have a possessory interest in 0:09:11.440 --> 0:09:16.679 these documents. They also called trump's declassification argument a red herring. 0:09:16.880 --> 0:09:21.120 Explained that, sure so, the search warrant in the criminal 0:09:21.160 --> 0:09:24.360 provisions that are an issue do not rise and fall 0:09:24.720 --> 0:09:27.920 on whether or not the documents were declassified. It's certainly 0:09:28.080 --> 0:09:32.160 relevant in the context of the espionage espionage act claim, 0:09:32.480 --> 0:09:34.960 because there's only one case in which the government has 0:09:35.000 --> 0:09:40.640 ever pursued that type of charge for unclassified information relating 0:09:40.640 --> 0:09:43.720 to the national defense. But ultimately, as a matter of law, 0:09:44.040 --> 0:09:48.079 it doesn't matter if the documents were declassified, they were 0:09:48.080 --> 0:09:51.280 still contained information relating to the national defense. That's the 0:09:51.400 --> 0:09:54.920 espionage act charge and he obstructed the efforts by the 0:09:55.120 --> 0:09:59.080 FBI and Nara to recover them. The document and the 0:09:59.080 --> 0:10:03.560 search warrant only concerned documents with classification markings. It didn't 0:10:03.600 --> 0:10:08.240 hinge on the documents classified. Regular general impression of what's 0:10:08.280 --> 0:10:11.440 going on here. So what the trump team has tried 0:10:11.440 --> 0:10:14.760 to do here essentially is to drag out or delay 0:10:15.200 --> 0:10:18.640 this entire process. They're trying to throw, you know, a 0:10:18.720 --> 0:10:21.920 wrench into the criminal inquiry, to slow it all down, 0:10:22.000 --> 0:10:26.640 to drag out at whatever point Donald Trump may possibly, hypothetically, 0:10:26.720 --> 0:10:31.679 theoretically be indicted. The hope for them is that if 0:10:31.679 --> 0:10:34.880 they can slow down that part of the process and 0:10:35.080 --> 0:10:37.760 keep that delayed as long as possible, that even if 0:10:37.800 --> 0:10:41.520 there ultimately is an indictment, it will come late enough 0:10:41.559 --> 0:10:44.880 in the process that there won't be a trial before 0:10:44.960 --> 0:10:49.480 November and that either Donald trump or someone favorable to 0:10:49.640 --> 0:10:52.440 him will win the presidency and shut it all down. 0:10:52.760 --> 0:10:55.599 That's all this is. If this gets the trial and 0:10:55.720 --> 0:10:58.440 this gets to a jury verdict, it is almost certain, 0:10:58.440 --> 0:11:01.160 in my view, that donal trump will lose. That's why 0:11:01.200 --> 0:11:04.880 he's doing everything with the special master, with these various emotions. 0:11:04.920 --> 0:11:08.079 He's just trying to muck up the process. Thanks, Prad. 0:11:08.400 --> 0:11:14.080 That's Brad Moss of Mark said. Yeshiva University has decided 0:11:14.120 --> 0:11:19.080 to temporarily suspend all undergraduate club activities after the U 0:11:19.200 --> 0:11:22.320 S Supreme Court refused to step into a legal fight 0:11:22.720 --> 0:11:27.360 over recognition of a campus lgbt q student group. In 0:11:27.400 --> 0:11:31.040 an unsigned opinion, the Supreme Court said the New York 0:11:31.080 --> 0:11:34.960 School has other avenues for repeal it can pursue before 0:11:34.960 --> 0:11:38.160 the justices have to get involved. But in a descent 0:11:38.360 --> 0:11:43.000 joined by three other conservatives, Justice Samuel Alito predicted the 0:11:43.080 --> 0:11:46.800 university will ultimately prevail on the question of whether it's 0:11:46.840 --> 0:11:50.520 religious rights are being violated by having to recognize the 0:11:50.760 --> 0:11:54.280 Y you pride alliance joining me as Professor Richard Garnett 0:11:54.320 --> 0:11:57.480 of Notre Dame law school. So Rick, start by telling 0:11:57.559 --> 0:12:00.079 us about the supreme courts five to four decision. And 0:12:00.559 --> 0:12:04.640 it's a ruling not on the merits of the disagreement 0:12:04.720 --> 0:12:07.520 that yeshiva has with the regulators here. It was. It 0:12:07.600 --> 0:12:10.760 was about whether or not a New York state trial 0:12:10.840 --> 0:12:14.160 courts decision should be stayed. That is kind of put 0:12:14.200 --> 0:12:16.920 on hold in order for Yeshiva to be able to 0:12:17.000 --> 0:12:20.120 take its constitutional and other arguments to a higher court. 0:12:20.200 --> 0:12:23.120 So what the Supreme Court did is not say, you know, 0:12:23.480 --> 0:12:26.839 who's right about this disagreement with respect to the application 0:12:26.880 --> 0:12:29.280 of New York's law or what the First Amendment means. 0:12:29.400 --> 0:12:31.800 It just said that we're not going to block this 0:12:31.920 --> 0:12:35.360 lower state court. We're gonna tell yeshiva instead to pursue 0:12:35.960 --> 0:12:39.199 its available procedures in the New York system and then 0:12:39.480 --> 0:12:41.679 once they're done with the New York system, they can 0:12:41.720 --> 0:12:46.000 come back to us. I saw a lot of commentators 0:12:46.000 --> 0:12:49.160 say how unusual it was for the Supreme Court to basically, 0:12:49.800 --> 0:12:52.360 you know, lay out a roadmap for what yeshiva has 0:12:52.400 --> 0:12:55.920 to do. Did you find it unusual? It is unusual, 0:12:56.400 --> 0:12:59.240 not not unprecedented, but unusual. I mean it was pretty 0:12:59.240 --> 0:13:02.280 clear that only the dissenters, but you know, the court 0:13:02.320 --> 0:13:06.440 itself was pretty explicit about what they thought was still 0:13:06.480 --> 0:13:09.600 open and pretty explicit that they were ready and willing 0:13:09.640 --> 0:13:12.559 to look at the case again once the proper procedures 0:13:12.559 --> 0:13:14.839 have been followed, or what they think the proper procedures are. 0:13:14.880 --> 0:13:18.040 So I guess it's pretty reasonable to think that the 0:13:18.040 --> 0:13:21.439 the justices were signaling their views about the ultimate merits 0:13:21.480 --> 0:13:24.599 of the dispute. But you know it is pretty standard 0:13:24.720 --> 0:13:27.559 for the Supreme Court to sit back and let State 0:13:27.559 --> 0:13:31.520 Court proceedings work out in a chord with state law 0:13:31.640 --> 0:13:35.880 and state process before coming in. So the descent written 0:13:35.920 --> 0:13:39.400 by Justice Samuel Alito, at least four of us are 0:13:39.400 --> 0:13:42.800 likely to vote to grant Sir Sharrari if Shashiva's first 0:13:42.840 --> 0:13:46.720 amendment arguments are rejected on appeal and yeshiva would likely 0:13:46.800 --> 0:13:50.480 win if its case came before us. Isn't he deciding 0:13:50.520 --> 0:13:53.440 the case before it's even been argued? Well, you only 0:13:53.480 --> 0:13:56.640 need four justices to grant sert you know, and there 0:13:56.640 --> 0:13:59.600 were four justices on the descent there. So those four 0:13:59.679 --> 0:14:02.679 don't decide anything. They're just communicating that. You know, given 0:14:02.679 --> 0:14:06.400 our understanding of the case at present, if yeshiva asks 0:14:06.440 --> 0:14:07.959 us to take this case, we're going to vote to 0:14:07.960 --> 0:14:10.240 take it and you know for that to take it. 0:14:10.320 --> 0:14:13.400 But it was interesting that extra bit where justice leader 0:14:13.440 --> 0:14:16.400 does pretty clearly suggest to the parties below that he 0:14:16.520 --> 0:14:19.000 thinks it wouldn't just be the four on yeshiva side, 0:14:19.000 --> 0:14:20.920 and I think he's probably right about that. I mean 0:14:20.960 --> 0:14:23.640 I suspect that it wouldn't even be just five or 0:14:23.680 --> 0:14:26.600 even six, but that if the case were to actually 0:14:26.640 --> 0:14:30.640 get to the Supreme Court, that Yeshiva would win. But for, 0:14:31.600 --> 0:14:33.600 you know, whatever reasons, I'm not I'm not privy to them. 0:14:33.640 --> 0:14:36.800 Obviously a majority of the justices wanted to have this 0:14:36.920 --> 0:14:41.400 thing sort of play out more slowly and to play 0:14:41.440 --> 0:14:43.840 out fully in the State Court system before the Supreme 0:14:43.880 --> 0:14:47.160 Court comes in on the ultimate merits questions. Why do 0:14:47.200 --> 0:14:50.840 you think that it's such a clear cut case on 0:14:50.920 --> 0:14:53.880 the merits so that the doctrine that the supreme courts 0:14:54.000 --> 0:14:56.720 settled on in recent years is that a law that 0:14:56.840 --> 0:15:00.520 is not generally applicable but that burden's religion is subject 0:15:00.560 --> 0:15:03.160 to what's called strict scrutiny, and that's a very demanding standard. 0:15:03.280 --> 0:15:06.040 And it seems pretty clear that the New York anti 0:15:06.040 --> 0:15:10.320 discrimination regulation that's being applied here has lots of exceptions. 0:15:10.320 --> 0:15:13.440 There's all kinds of civic groups and clubs and other 0:15:13.560 --> 0:15:17.880 organizations that are not subject to this particular anti discrimination 0:15:17.920 --> 0:15:20.760 norm but yeshiva is, and so yeshiva is going to 0:15:20.800 --> 0:15:23.160 be able to say the application of this law is 0:15:23.160 --> 0:15:27.440 a burden on our religious freedom rights and because it's 0:15:27.480 --> 0:15:30.760 a burden that's being imposed by a law that's not general, 0:15:31.040 --> 0:15:33.920 then that burden has to be evaluated under this very 0:15:33.920 --> 0:15:37.280 demanding standard and generally speaking, when strict scrutiny is applied 0:15:37.280 --> 0:15:40.520 to a law, the law loses. And I think it'd 0:15:40.520 --> 0:15:42.720 be again more than just bob or even six justices 0:15:42.760 --> 0:15:44.800 who would think that that was true. Because if New 0:15:44.880 --> 0:15:50.080 York is willing to allow various other nonprofits to have 0:15:50.840 --> 0:15:54.640 internal rules that reflect their their values and their missions on, 0:15:55.320 --> 0:15:57.280 I think the court is going to say that they 0:15:57.320 --> 0:16:00.600 can't deny that to yeshiva. There's also a state law 0:16:00.600 --> 0:16:03.880 issue about whether yeshiva is even covered by this law, 0:16:04.240 --> 0:16:06.560 because the question is whether or not accounts as a 0:16:06.600 --> 0:16:09.240 religious institution, and the State Trial Court has said that 0:16:09.320 --> 0:16:12.000 yeshiva wasn't, and obviously yeshiva thinks that it is a 0:16:12.040 --> 0:16:16.040 religious institution. The Supreme Court wouldn't get involved probably in 0:16:16.280 --> 0:16:18.400 resolving with the State Court question, but that's going to 0:16:18.480 --> 0:16:20.840 be something to put the appellate courts in the state 0:16:21.440 --> 0:16:26.359 hash out. So the Lower Court judge ruled that yeshiva 0:16:26.840 --> 0:16:31.120 was incorporated as an educational institution, not a religious one. 0:16:31.720 --> 0:16:36.240 So so as a secular institution, it's bound by New 0:16:36.320 --> 0:16:40.320 York state human rights laws. If the Appellate Court affirms 0:16:40.360 --> 0:16:43.200 that as an interpretation of New York law, will the 0:16:43.240 --> 0:16:48.400 Supreme Court accept that? Yeah, because so if the appellate 0:16:48.400 --> 0:16:51.760 court in New York were to agree that that yeshiva 0:16:51.880 --> 0:16:54.560 is covered, then you sort of pivot to the First 0:16:54.600 --> 0:16:59.040 Amendment question. So in a sense the case has two layers. Right, UM, 0:16:59.160 --> 0:17:02.560 under New York law, should this anti discrimination rule even 0:17:02.600 --> 0:17:05.920 be applied to yeshiva? And the second question is, if 0:17:05.960 --> 0:17:08.760 the New York law does apply, well, does the First 0:17:08.800 --> 0:17:12.679 Amendment permit that application? And I think the question that 0:17:13.160 --> 0:17:17.479 Justice Alito and his colleagues, I think we're signaling their 0:17:17.600 --> 0:17:21.720 views on, was that latter constitutional question, that that even 0:17:21.760 --> 0:17:26.479 if the New York law does apply Um, under current 0:17:27.280 --> 0:17:33.120 free exercise doctrine, current First Amendment Doctrine Um, that application 0:17:33.400 --> 0:17:39.760 would probably be uh invalidated. So I'm wondering if the 0:17:39.880 --> 0:17:43.720 university has sort of tried to tread this line between 0:17:43.880 --> 0:17:49.919 welcoming lgbt Q students but refusing to recognize this club 0:17:50.119 --> 0:17:56.640 on religious grounds. Does that cut against yeshiva in any sense? Well, 0:17:56.680 --> 0:17:59.720 in order to get protection for religious freedom rights courts 0:17:59.720 --> 0:18:03.840 will ask whether the belief in question is sincere. So 0:18:04.080 --> 0:18:06.600 in some cases not, not very often, but in some 0:18:06.640 --> 0:18:11.040 cases a court might say that a party's inconsistent practices 0:18:11.119 --> 0:18:13.440 suggest that its objections are not really since here. I 0:18:13.480 --> 0:18:17.119 don't think that would happen here. You know, religious institutions 0:18:17.119 --> 0:18:21.320 are allowed to decide for themselves, Um, what their religious 0:18:21.320 --> 0:18:25.400 commitments are and Um Yeshiva's position could well be. Look, 0:18:26.160 --> 0:18:29.879 we have no we have no religious problem with welcoming people. 0:18:29.920 --> 0:18:32.919 The problem, the concern that we have is with officially 0:18:33.040 --> 0:18:36.920 recognizing a group, because that might be Um, that might 0:18:36.960 --> 0:18:40.520 count as kind of an institutional endorsement of the group's 0:18:40.520 --> 0:18:45.760 particular positions, which they might think Um, is different from simply, 0:18:46.280 --> 0:18:49.280 you know, welcoming people to come if they so chose. 0:18:49.720 --> 0:18:51.920 And of court is not gonna and we wouldn't want 0:18:51.920 --> 0:18:53.399 courts to do this. I don't think of court is 0:18:53.440 --> 0:18:55.760 not going to get into the question whether, you know, 0:18:56.200 --> 0:19:00.800 are yeshiva's religious liberty, religious positions it makes sense to us. 0:19:00.840 --> 0:19:03.840 Do they seem consistent to us to be line up 0:19:03.840 --> 0:19:06.200 with what you know, how we think their religion should 0:19:06.200 --> 0:19:08.639 be interpreted? Courts aren't going to get into that. So 0:19:08.680 --> 0:19:13.000 the school's taking this rather aggressive step of just suspending 0:19:13.160 --> 0:19:17.280 all the groups at school, while it follows the roadmap 0:19:17.400 --> 0:19:20.400 left by the Supreme Court, and a lawyer for the students, 0:19:20.440 --> 0:19:24.760 the gay students, said the university's action was divisive and 0:19:24.840 --> 0:19:29.080 shameful rather than accept one lgbt q peer support group 0:19:29.160 --> 0:19:32.520 on campus. It's a throwback to fifty years ago when 0:19:32.520 --> 0:19:36.160 the city of Jackson, Mississippi, closed all public swimming pools 0:19:36.600 --> 0:19:41.240 rather than comply with court orders to desegregate. Well, I 0:19:41.280 --> 0:19:44.520 guess we can talk about Um, who's being more aggressive. 0:19:44.720 --> 0:19:48.560 That's a pretty aggressive rhetorical stance to take with respect 0:19:48.560 --> 0:19:52.040 to ESCHIVA's actions. But but yeah, I mean they clearly 0:19:52.040 --> 0:19:57.320 decided that Um, and this, I suppose, confirms the sincerity 0:19:57.320 --> 0:20:02.560 of their position that Um, they genuinely do think that 0:20:03.160 --> 0:20:06.600 Um official recognition of this group, which again they believe 0:20:06.640 --> 0:20:10.760 is different from welcoming particular students, that official recognition would 0:20:11.440 --> 0:20:16.920 constitute an endorsement that's inconsistent with their religious character. and Um, 0:20:17.119 --> 0:20:19.480 you know they they're not going to violate court orders, 0:20:19.520 --> 0:20:23.800 but the way to Um be in compliance with that 0:20:23.960 --> 0:20:28.600 order is to not have groups officially recognized. Groups operating 0:20:28.720 --> 0:20:34.560 at all. I'm sure that's not the university's preference and Um, 0:20:34.600 --> 0:20:36.520 you know, once the litigation plays out, I suppose they 0:20:36.520 --> 0:20:39.439 can go back, you know, whether it's analogous to the 0:20:39.520 --> 0:20:43.160 kind of discrimination that the lawyer mentioned with respect to disaggregation. 0:20:44.119 --> 0:20:46.399 I guess people would disagree with that. I'm inclined to 0:20:46.400 --> 0:20:48.080 say that yeshiva would have a very different take on that. 0:20:48.840 --> 0:20:53.080 Does this Dispute Mirror the kinds of, you know, legal 0:20:53.119 --> 0:20:58.080 disputes we've seen that pit religious beliefs against local or 0:20:58.160 --> 0:21:03.480 state anti discrimination law? Yeah, sure, we were. When we're seeing, 0:21:03.600 --> 0:21:06.960 as you know, we're seeing more of these. You can 0:21:07.000 --> 0:21:11.399 think of the masterpiece cake shop decision, or there's a 0:21:11.520 --> 0:21:13.960 free speech decision that the Supreme Court has this year 0:21:13.960 --> 0:21:18.240 called three or three creative another wedding vendor case. Um, 0:21:18.280 --> 0:21:20.919 the fault in case from two years ago having to 0:21:20.920 --> 0:21:25.239 do with foster care certification in Philadelphia. This, this is 0:21:25.280 --> 0:21:28.919 the this is the arena in our current time. It 0:21:29.000 --> 0:21:32.560 wasn't always true where some of the more high profile 0:21:33.200 --> 0:21:38.400 classes between government regulations on the one hand and religious 0:21:38.400 --> 0:21:42.440 liberty interests on the other are are being seen. Now, 0:21:42.480 --> 0:21:44.320 you know, there's a there is a danger. I think 0:21:44.359 --> 0:21:47.480 that we focus on these classes more than many, many 0:21:47.520 --> 0:21:49.880 religious liberty cases that are out there that don't involve 0:21:50.400 --> 0:21:54.680 antidiscrimination law at all. But these are the ones that 0:21:54.720 --> 0:21:57.280 do seem to be the highest profile right now because 0:21:57.280 --> 0:21:59.800 it's it's just a fact that there is kind of 0:21:59.840 --> 0:22:05.400 a cultural or social or, I guess, the religious Um 0:22:05.880 --> 0:22:09.520 divide the country on some of these questions and they're 0:22:10.280 --> 0:22:13.480 they're going to continue. Yes, you know, all those cases 0:22:13.520 --> 0:22:16.320 you mentioned show why it's pretty clear which way the 0:22:16.359 --> 0:22:19.040 Supreme Court is going to rule on this, if it 0:22:19.119 --> 0:22:21.879 gets to the Supreme Court. Yes, I think that's true. 0:22:21.880 --> 0:22:24.159 And yet these cases are not contrary to with some 0:22:24.200 --> 0:22:27.120 people think. They're not always sort of liberals versus conservatives 0:22:27.160 --> 0:22:28.479 and so on. I mean, I think there has been 0:22:28.520 --> 0:22:32.120 an interest in trying to find kind of compromise positions 0:22:32.119 --> 0:22:37.200 where anti discrimination norms can be closely enforced in public 0:22:37.240 --> 0:22:40.800 contexts and certainly by government agencies and so on, while 0:22:40.880 --> 0:22:44.679 still giving religious institutions space to act in accord with 0:22:44.720 --> 0:22:47.760 their own religious beliefs. And you know, whether we're able 0:22:47.800 --> 0:22:50.800 to find, in kind of a consistent across the board way, 0:22:50.840 --> 0:22:53.679 those sort of compromised I guess that does remain, but 0:22:53.800 --> 0:22:57.320 I suspect that the justices will actually have a consensus 0:22:57.400 --> 0:23:00.520 on this one. Thanks Rick. That's Richard Gardner of Notre 0:23:00.600 --> 0:23:06.000 Dame law school. The Justice Department is laying out policy 0:23:06.160 --> 0:23:09.960 changes to crack down on corporate crime. It's centers on 0:23:10.080 --> 0:23:14.879 allowing more companies to voluntarily report misconduct and cooperate on 0:23:14.960 --> 0:23:19.120 remedial actions to avoid pleading guilty. Joining me is Chris Strom, 0:23:19.119 --> 0:23:24.199 Bloomberg legal reporter covering the Justice Department. So tell us 0:23:24.280 --> 0:23:28.879 about this new push by the Justice Department, where it 0:23:28.960 --> 0:23:32.280 comes from and how long it's been in the making. Well, 0:23:32.480 --> 0:23:37.160 the deputy attorney general, Lisa Monico, had made corporate enforcement 0:23:37.200 --> 0:23:41.479 a priority when she first came into her position. She 0:23:41.680 --> 0:23:45.080 has been in out of government and for a while 0:23:45.240 --> 0:23:48.760 she was working in the private sector and she knew 0:23:48.800 --> 0:23:52.480 what government priorities were, she understood what private sector concerns were, 0:23:52.920 --> 0:23:55.760 and so she came in and made an announcement that 0:23:55.840 --> 0:23:58.639 she was going to take a review of the department's 0:23:58.680 --> 0:24:02.480 Corporate Enforcement Priority these and Um she formed an advisory 0:24:02.480 --> 0:24:04.400 group and over to that, over the last year they've 0:24:04.440 --> 0:24:08.200 been looking at what it is that the department could do. Um, 0:24:08.280 --> 0:24:11.840 that would have more teeth in terms of getting companies 0:24:12.280 --> 0:24:16.520