1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,880 --> 00:00:12,080 Speaker 2: It was a Supreme Court term in which the conservative 3 00:00:12,200 --> 00:00:17,600 Speaker 2: super majority transformed the law in several significant ways, expanding 4 00:00:17,680 --> 00:00:24,040 Speaker 2: presidential power, dismantling landmark civil rights legislation, enhancing gun rights, 5 00:00:24,280 --> 00:00:30,320 Speaker 2: and eliminating campaigns spending restrictions, while overturning decades old precedent 6 00:00:30,760 --> 00:00:35,920 Speaker 2: and undercutting laws passed by Congress. The Republican appointed justices 7 00:00:36,360 --> 00:00:40,640 Speaker 2: certainly didn't act with the judicial restraint that Chief Justice 8 00:00:40,760 --> 00:00:45,440 Speaker 2: John Roberts famously professed to during his confirmation hearings. 9 00:00:46,040 --> 00:00:49,919 Speaker 3: Judges are like umpires. Umpires don't make the rules, they 10 00:00:49,920 --> 00:00:53,680 Speaker 3: apply them. The role of an umpire and a judge 11 00:00:54,080 --> 00:00:57,600 Speaker 3: is critical. They make sure everybody plays by the rules, 12 00:00:58,360 --> 00:01:01,360 Speaker 3: but it is a limited role. Nobody ever went to 13 00:01:01,400 --> 00:01:04,480 Speaker 3: a ballgame to see the umpire. Judges have to have 14 00:01:04,600 --> 00:01:08,080 Speaker 3: the humility to recognize that they operate within a system 15 00:01:08,080 --> 00:01:08,759 Speaker 3: of precedent. 16 00:01:09,160 --> 00:01:12,520 Speaker 2: It was also a term where the ideological differences on 17 00:01:12,640 --> 00:01:16,000 Speaker 2: the Court were never more apparent. Nearly a quarter of 18 00:01:16,040 --> 00:01:19,600 Speaker 2: the decisions were six to three, with the Republican appointees 19 00:01:19,720 --> 00:01:23,440 Speaker 2: in the majority and the Democratic appointees in dissent. My 20 00:01:23,520 --> 00:01:27,240 Speaker 2: guest is constitutional law expert Michael Dorf, a professor at 21 00:01:27,319 --> 00:01:31,760 Speaker 2: Cornell Law School. Mike, let's start with presidential power. The 22 00:01:31,800 --> 00:01:37,160 Speaker 2: court blocked Trump's tariffs, rejected his attempt to end birthright citizenship, 23 00:01:37,319 --> 00:01:41,399 Speaker 2: and prevented the immediate firing of a Federal Reserve governor. 24 00:01:41,760 --> 00:01:46,040 Speaker 2: But the court gave Trump and future presidents greater control 25 00:01:46,240 --> 00:01:51,200 Speaker 2: over federal agencies, allowing them to fire top federal regulators. 26 00:01:51,480 --> 00:01:55,000 Speaker 2: And in the immigration area, the court allowed Trump to 27 00:01:55,040 --> 00:02:00,320 Speaker 2: pursue his aggressive immigration agenda in just about every case. So, 28 00:02:00,440 --> 00:02:03,160 Speaker 2: on the whole, did Trump win or lose this term. 29 00:02:03,200 --> 00:02:06,400 Speaker 1: I think that you have to say he won because 30 00:02:06,760 --> 00:02:10,800 Speaker 1: in the cases in which he lost, his position was 31 00:02:10,919 --> 00:02:16,120 Speaker 1: so extreme that even getting the Supreme Court to divide 32 00:02:16,639 --> 00:02:19,960 Speaker 1: on the issue was kind of a victory. It moved 33 00:02:20,520 --> 00:02:23,920 Speaker 1: the Overton window to the right, or in this case, 34 00:02:23,919 --> 00:02:27,960 Speaker 1: to the direction of greater executive power. So you know, 35 00:02:28,000 --> 00:02:30,960 Speaker 1: in Cook, for example, that's the case with the federal 36 00:02:30,960 --> 00:02:35,000 Speaker 1: Reserve governor. He gets most of the conservatives to sign 37 00:02:35,120 --> 00:02:38,960 Speaker 1: on to his position that what he did was enough 38 00:02:39,200 --> 00:02:42,240 Speaker 1: under the statute to fire a member of the Fed, 39 00:02:42,639 --> 00:02:45,640 Speaker 1: and that effectively, if that position had prevailed would have 40 00:02:45,639 --> 00:02:48,160 Speaker 1: given him control of the Federal Reserve. He came very 41 00:02:48,160 --> 00:02:53,000 Speaker 1: close to getting that. Likewise, with respect to birthright citizenship, 42 00:02:53,080 --> 00:02:56,040 Speaker 1: which you know, nobody was even talking about as part 43 00:02:56,120 --> 00:02:59,639 Speaker 1: of what we thought was reasonably contestable prior to the 44 00:02:59,720 --> 00:03:02,920 Speaker 1: present Sidence executive order. There he gets, you know, a 45 00:03:03,400 --> 00:03:07,960 Speaker 1: ninety page descent by Clarence Thomas. He gets Justice Alito 46 00:03:08,560 --> 00:03:12,800 Speaker 1: Justice Corsuch to propose various alternatives, all of which takes 47 00:03:12,880 --> 00:03:20,040 Speaker 1: seriously this theory that most serious historians say is based on, 48 00:03:20,680 --> 00:03:23,640 Speaker 1: you know, chewing gum and old newspapers that are sort 49 00:03:23,680 --> 00:03:27,160 Speaker 1: of cobbled together from out of context quotes from the 50 00:03:27,160 --> 00:03:30,560 Speaker 1: reconstruction era. And yet he almost wins there. And then 51 00:03:30,639 --> 00:03:33,399 Speaker 1: when you look at the wins, the wins are huge. Right. 52 00:03:33,480 --> 00:03:36,840 Speaker 1: So in the Slaughter case, which is he gets to 53 00:03:36,960 --> 00:03:41,080 Speaker 1: fire members of the Federal Trade Commission Court overrules a 54 00:03:41,240 --> 00:03:45,920 Speaker 1: ninety year old precedent in Humphrey's executor, and this gives him, 55 00:03:46,240 --> 00:03:51,160 Speaker 1: you know, nearly complete control of what were formerly independent agencies. 56 00:03:51,520 --> 00:03:54,760 Speaker 1: There's this tiny carve out for the FED in the cookcase, 57 00:03:55,040 --> 00:03:57,320 Speaker 1: but it looks like that carve out is going to 58 00:03:57,360 --> 00:04:01,880 Speaker 1: be available only there, and maybe with respect to non 59 00:04:01,960 --> 00:04:06,160 Speaker 1: Article three judges, but it also suggests even further sweeping 60 00:04:06,320 --> 00:04:10,000 Speaker 1: presidential power. So, for example, the dissent points out that 61 00:04:10,400 --> 00:04:16,440 Speaker 1: the majority's rationale for upholding the president's power to fire 62 00:04:16,520 --> 00:04:19,760 Speaker 1: people at will would seem to apply to civil servants 63 00:04:19,920 --> 00:04:23,240 Speaker 1: as well, not just heads of agencies. So I think 64 00:04:23,240 --> 00:04:26,719 Speaker 1: the civil service is potentially in the firing line next. 65 00:04:27,120 --> 00:04:31,039 Speaker 2: And even in the extreme cases like birthright citizenship and 66 00:04:31,200 --> 00:04:35,400 Speaker 2: the tariffs, two of the most conservative Supreme Court justices 67 00:04:35,480 --> 00:04:40,560 Speaker 2: Clarence Thomas and Samuel Alito, always found reasons to side 68 00:04:40,560 --> 00:04:44,240 Speaker 2: with Trump. Would you say, exemplifying the real split in the. 69 00:04:44,200 --> 00:04:47,320 Speaker 1: Court, you might say, well, you know, in all those 70 00:04:47,400 --> 00:04:50,640 Speaker 1: cases Sodom I, R. Kagan, and Jackson vote against Trump. 71 00:04:50,880 --> 00:04:53,120 Speaker 1: You know that is true. That is to say that 72 00:04:53,560 --> 00:04:58,480 Speaker 1: this is an ideologically divided court. I think the best 73 00:04:58,480 --> 00:05:01,599 Speaker 1: way to think of it is is that it's a 74 00:05:01,680 --> 00:05:05,080 Speaker 1: court that has sort of three and a half center 75 00:05:05,200 --> 00:05:08,599 Speaker 1: right judges. It's got two and a half extreme right judges, 76 00:05:08,640 --> 00:05:12,400 Speaker 1: and then three liberal justices, including Justice Gorsuch in the 77 00:05:12,760 --> 00:05:16,520 Speaker 1: sometimes centrist, sometimes on the extreme right because that's how 78 00:05:16,520 --> 00:05:19,240 Speaker 1: he votes, except in cases involving Native Americans, in which 79 00:05:19,320 --> 00:05:21,080 Speaker 1: is the most liberal justice in the history of the 80 00:05:21,080 --> 00:05:23,760 Speaker 1: Supreme Court. And you know, that's just where they are. 81 00:05:24,240 --> 00:05:28,080 Speaker 1: What's striking, I think is that, for the most part, 82 00:05:28,520 --> 00:05:31,640 Speaker 1: with a few exceptions for Justice Thomas on cases of 83 00:05:31,720 --> 00:05:36,240 Speaker 1: relatively low salience, right, for the most part, the ideological 84 00:05:36,279 --> 00:05:40,280 Speaker 1: divides are also partisan divides. Right. So the place where 85 00:05:40,320 --> 00:05:45,839 Speaker 1: I think this is most apparent is in Louisiana against Cala, 86 00:05:46,160 --> 00:05:49,400 Speaker 1: which is the Voting Rights Act case. Even though it's 87 00:05:49,480 --> 00:05:55,640 Speaker 1: not technically about executive power, we know that it was 88 00:05:55,760 --> 00:06:00,560 Speaker 1: going to be and has been leverage for redistrict for 89 00:06:00,839 --> 00:06:05,279 Speaker 1: partisan ends by Republicans, which was a top priority and 90 00:06:05,320 --> 00:06:08,440 Speaker 1: continues to be a top priority of President Trump. And 91 00:06:08,680 --> 00:06:14,120 Speaker 1: they're what's I think very revealing is how utterly closely 92 00:06:14,600 --> 00:06:19,640 Speaker 1: the sort of conservative ideological position aligns with the Republican 93 00:06:19,680 --> 00:06:23,520 Speaker 1: partisan position. So, you know, the conservative ideological position is 94 00:06:23,880 --> 00:06:27,080 Speaker 1: government shouldn't use race as a criterion for anything. Constitution 95 00:06:27,200 --> 00:06:32,080 Speaker 1: is colorblind. In Louisiana against Kela, what the Court says is, well, 96 00:06:32,200 --> 00:06:36,400 Speaker 1: political gerry mandering is fine. Therefore, we're not going to 97 00:06:36,480 --> 00:06:42,120 Speaker 1: find any kind of race discrimination against minority voters sufficient 98 00:06:42,320 --> 00:06:46,960 Speaker 1: to create a majority minority district. And the result will 99 00:06:46,960 --> 00:06:51,919 Speaker 1: be we're going to empower Republican controlled state legislatures to 100 00:06:52,400 --> 00:06:56,960 Speaker 1: engage in political gerrymandering that is also to facto racial 101 00:06:57,040 --> 00:07:01,400 Speaker 1: gerry mandering. So you can now have your ideological cake 102 00:07:01,880 --> 00:07:04,880 Speaker 1: and eat your politically partisan cake as well. 103 00:07:05,080 --> 00:07:08,719 Speaker 2: I mean, it's been said that dismantling the Voting Rights 104 00:07:08,760 --> 00:07:12,440 Speaker 2: Act is something that has been on the chiefs agenda, 105 00:07:12,520 --> 00:07:15,560 Speaker 2: let's say, since he was a lawyer in the Reagan administration. 106 00:07:16,000 --> 00:07:18,920 Speaker 2: We saw the first strike against the Voting Rights Act 107 00:07:19,040 --> 00:07:23,960 Speaker 2: in the Shelby County versus Holder case back in twenty thirteen. 108 00:07:24,080 --> 00:07:25,320 Speaker 1: Right, So you can think of it as a one 109 00:07:25,360 --> 00:07:28,280 Speaker 1: to two punch. So in Shelby County against Holder, they 110 00:07:28,360 --> 00:07:33,080 Speaker 1: said that the coverage formula of which areas were subject 111 00:07:33,120 --> 00:07:37,840 Speaker 1: to preclearance was unconstitutional, and so that eliminated the executive 112 00:07:37,920 --> 00:07:41,600 Speaker 1: branch as the enforcer of the Voting Rights Act. What 113 00:07:41,680 --> 00:07:44,680 Speaker 1: they did in the Cala case this term was to 114 00:07:44,720 --> 00:07:50,240 Speaker 1: say that the threshold for binding that there has been 115 00:07:50,720 --> 00:07:55,080 Speaker 1: improper use of race is so high because it's so 116 00:07:55,200 --> 00:07:59,160 Speaker 1: hard to distinguish, in their view between racial and political gerrymandering. 117 00:07:59,440 --> 00:08:03,040 Speaker 1: That effect, now you've taken the judiciary out of the picture. 118 00:08:03,280 --> 00:08:06,400 Speaker 1: What's left. I think, since you can no longer say 119 00:08:06,520 --> 00:08:10,720 Speaker 1: that disparate impact is sufficient, what's left is to say 120 00:08:10,880 --> 00:08:16,800 Speaker 1: that if state legislators are stupid enough to expressly say 121 00:08:17,240 --> 00:08:21,960 Speaker 1: we are gerry mandering here because we have racial animis, well, 122 00:08:22,000 --> 00:08:24,400 Speaker 1: then that's a violation of the Voting Rights Act, and 123 00:08:24,440 --> 00:08:27,120 Speaker 1: that just seems extraordinarily unlikely. 124 00:08:27,640 --> 00:08:30,880 Speaker 2: Democrats did have a rare win when the court upheld 125 00:08:30,920 --> 00:08:35,000 Speaker 2: Mississippi's right to count ballots that are received after election 126 00:08:35,160 --> 00:08:38,840 Speaker 2: day as long as they're postmarked by election day, and 127 00:08:38,880 --> 00:08:41,280 Speaker 2: that was a five to four vote, with the Chief 128 00:08:41,440 --> 00:08:45,240 Speaker 2: and Justice Amy Coney Barrett joining the liberals. Were you 129 00:08:45,320 --> 00:08:46,600 Speaker 2: surprised by that decision? 130 00:08:47,080 --> 00:08:52,600 Speaker 1: I wasn't terribly surprised hardly, because although this has been 131 00:08:52,600 --> 00:08:57,360 Speaker 1: a priority of President Trump, right to go after mail 132 00:08:57,400 --> 00:09:01,080 Speaker 1: in ballots, it hasn't been a priority of the Republican 133 00:09:01,160 --> 00:09:06,000 Speaker 1: Party because it doesn't actually benefit the Republican Party as such. 134 00:09:06,480 --> 00:09:11,040 Speaker 1: The parties both take advantage of mail in voting. I mean, 135 00:09:11,080 --> 00:09:13,880 Speaker 1: the fact that it was Mississippi tells you something. Mississippi 136 00:09:13,920 --> 00:09:16,440 Speaker 1: is a deep red state, but they're the ones who 137 00:09:16,520 --> 00:09:21,719 Speaker 1: are defending their particular timing rules. The other problem for 138 00:09:22,360 --> 00:09:26,079 Speaker 1: the argument against this is that if you take it literally, 139 00:09:26,920 --> 00:09:29,920 Speaker 1: then what about the fact that there's early voting in 140 00:09:29,920 --> 00:09:32,839 Speaker 1: a lot of states. It would really have been extremely 141 00:09:32,920 --> 00:09:36,520 Speaker 1: disruptive of the way that many states, both red and blue, 142 00:09:36,920 --> 00:09:40,360 Speaker 1: conduct their elections, and without the clear partisan valance, it 143 00:09:40,400 --> 00:09:41,160 Speaker 1: didn't surprise me. 144 00:09:41,600 --> 00:09:45,920 Speaker 2: Turning to campaign finance regulations, in another Republican win, the 145 00:09:46,000 --> 00:09:50,320 Speaker 2: court struck down federal limits on spending by political parties 146 00:09:50,559 --> 00:09:54,880 Speaker 2: in coordination with candidates. That case overturned a twenty five 147 00:09:54,960 --> 00:09:58,480 Speaker 2: year old precedent and was down ideological lines. 148 00:09:59,000 --> 00:10:01,240 Speaker 1: You know, you can think of that in the same 149 00:10:01,480 --> 00:10:05,319 Speaker 1: category of cases going back to Citizens United, where the 150 00:10:05,360 --> 00:10:09,640 Speaker 1: Court is taking a very restrictive view of what Congress 151 00:10:09,720 --> 00:10:14,840 Speaker 1: can do to regulate campaign finance. And one of the 152 00:10:14,880 --> 00:10:18,320 Speaker 1: criticisms of Citizens United is that the Court was sort 153 00:10:18,320 --> 00:10:23,040 Speaker 1: of naive about the way in which money affects politics, saying, well, 154 00:10:23,080 --> 00:10:26,320 Speaker 1: you know, someone makes an independent expenditure that's not going 155 00:10:26,400 --> 00:10:29,280 Speaker 1: to buy a candidate, but of course the candidates know 156 00:10:29,440 --> 00:10:33,000 Speaker 1: that that's going on. Same thing is true here, right 157 00:10:33,160 --> 00:10:36,079 Speaker 1: The court says, well, you know, of course parties are 158 00:10:36,080 --> 00:10:42,440 Speaker 1: going to coordinate their campaigns with the candidates. That's true, 159 00:10:42,440 --> 00:10:44,800 Speaker 1: but That's not what coordination is about, is the dissenters 160 00:10:44,840 --> 00:10:46,960 Speaker 1: point out in the case, the whole point of this 161 00:10:47,120 --> 00:10:53,240 Speaker 1: restriction was to prevent circumvention of the limits on giving 162 00:10:53,280 --> 00:10:56,600 Speaker 1: money to an individual candidate. Right, So, you can only 163 00:10:56,640 --> 00:10:59,520 Speaker 1: give you know, probably about four thousand dollars in the 164 00:10:59,559 --> 00:11:02,040 Speaker 1: next camp pain cycle to a candidate, once for the 165 00:11:02,080 --> 00:11:05,320 Speaker 1: primary and once for the general election. But if you 166 00:11:05,360 --> 00:11:07,960 Speaker 1: can give you know, hundreds of thousands of dollars to 167 00:11:08,040 --> 00:11:10,560 Speaker 1: the party and then have that earmarked for that candidate, 168 00:11:10,800 --> 00:11:14,800 Speaker 1: well then you've essentially here's that word again, gutted the 169 00:11:15,320 --> 00:11:19,640 Speaker 1: campaign contribution limits with respect to individual candidates. I think 170 00:11:19,640 --> 00:11:21,520 Speaker 1: that is the goal of the Roberts Court here. 171 00:11:21,559 --> 00:11:24,840 Speaker 2: Frankly, coming up nixt on the Bloomberg Law Show, was 172 00:11:24,920 --> 00:11:27,560 Speaker 2: Trump the winner of the term or was it really 173 00:11:27,880 --> 00:11:31,439 Speaker 2: conservatives that won? And remember, you can listen to all 174 00:11:31,520 --> 00:11:35,160 Speaker 2: the latest legal news anytime on our Bloomberg Law podcasts. 175 00:11:35,559 --> 00:11:39,360 Speaker 2: You can find them on Apple Podcasts, Spotify, or wherever 176 00:11:39,400 --> 00:11:42,720 Speaker 2: you get your favorite podcasts. I'm June Grosso and you're 177 00:11:42,800 --> 00:11:49,480 Speaker 2: listening to Bloomberg. Chief Justice John Roberts has repeatedly stressed 178 00:11:49,520 --> 00:11:53,720 Speaker 2: the importance of an independent judiciary as a key feature 179 00:11:53,800 --> 00:11:57,360 Speaker 2: of the US constitutional system. For years, the Court has 180 00:11:57,400 --> 00:12:02,040 Speaker 2: been divided down partisan lines on hot button issues like abortion, 181 00:12:02,400 --> 00:12:07,600 Speaker 2: gun rights, LGBTQ rights, immigration, The list goes on, but 182 00:12:07,840 --> 00:12:12,719 Speaker 2: Roberts continues to insist that judges are not like politicians 183 00:12:12,720 --> 00:12:16,280 Speaker 2: in robes, and that their decisions don't line up with 184 00:12:16,440 --> 00:12:19,640 Speaker 2: whether they're Democratic or Republican appointees. 185 00:12:19,920 --> 00:12:20,520 Speaker 1: And the other thing. 186 00:12:20,559 --> 00:12:23,680 Speaker 4: The notion that we carry forward the views of the 187 00:12:23,720 --> 00:12:30,400 Speaker 4: people that appointed us is absurd. President George W. Bush 188 00:12:30,440 --> 00:12:35,000 Speaker 4: appointed me twenty years ago. The idea that I'm carrying 189 00:12:35,000 --> 00:12:38,040 Speaker 4: out his agenda somehow is absurd. 190 00:12:38,520 --> 00:12:42,160 Speaker 2: But this term, the Court was split down partisan lines 191 00:12:42,400 --> 00:12:46,240 Speaker 2: in nearly a quarter of the cases, most often involving 192 00:12:46,320 --> 00:12:50,280 Speaker 2: those hot button social issues. I've been talking to constitutional 193 00:12:50,320 --> 00:12:54,319 Speaker 2: law professor Michael Dorf of Cornell Law School. Mike Roberts 194 00:12:54,360 --> 00:12:57,920 Speaker 2: loves to say that the judiciary is different from the 195 00:12:58,000 --> 00:13:01,400 Speaker 2: other branches of government when you have cases like some 196 00:13:01,480 --> 00:13:04,360 Speaker 2: of the ones we've been talking about, voting rights cases 197 00:13:04,400 --> 00:13:08,040 Speaker 2: that set off redistricting in Republican states in the South, 198 00:13:08,320 --> 00:13:13,520 Speaker 2: campaign finance cases that favor the Republican party, cases expanding 199 00:13:13,720 --> 00:13:17,840 Speaker 2: presidential power. Right now, a Republican president's power and the 200 00:13:17,880 --> 00:13:22,240 Speaker 2: Republican appointees are on one side and the Democratic appointees 201 00:13:22,280 --> 00:13:24,720 Speaker 2: are on the other. I mean, doesn't it paint the 202 00:13:24,760 --> 00:13:25,920 Speaker 2: court as political? 203 00:13:26,480 --> 00:13:33,000 Speaker 1: Yes? And I would add that this is exacerbated by 204 00:13:33,040 --> 00:13:37,120 Speaker 1: the fact that in recent years we've had a court 205 00:13:37,160 --> 00:13:43,040 Speaker 1: in which the most liberal Republican appointee is nonetheless much 206 00:13:43,080 --> 00:13:47,800 Speaker 1: more conservative than the most conservative Democratic appointee. That wasn't 207 00:13:48,040 --> 00:13:51,200 Speaker 1: always true, and it wasn't true in a big way 208 00:13:51,640 --> 00:13:55,160 Speaker 1: in periods that are still within living memory. So certainly, 209 00:13:55,200 --> 00:13:58,920 Speaker 1: during the Warren Court, right, the two most influential liberal 210 00:13:59,040 --> 00:14:02,480 Speaker 1: justices were Earl Warr himself and William Brennan, both of 211 00:14:02,520 --> 00:14:07,600 Speaker 1: whom were appointed by President Eisenhower, who's a Republican. You know, 212 00:14:07,840 --> 00:14:11,400 Speaker 1: it wasn't all that long ago that this court still 213 00:14:11,520 --> 00:14:16,840 Speaker 1: had David Souter, Sandrade O'Connor, John Paul Stevens, Anthony Kennedy, 214 00:14:17,200 --> 00:14:20,680 Speaker 1: all of whom were Republican appointees who, to one degree 215 00:14:20,760 --> 00:14:24,400 Speaker 1: or another had a liberal or moderate streak. It's been 216 00:14:24,440 --> 00:14:29,200 Speaker 1: a while since we had the last conservative Democrat. That 217 00:14:29,280 --> 00:14:32,200 Speaker 1: was probably Byron White. But the reason why it's been 218 00:14:32,240 --> 00:14:35,600 Speaker 1: a while is because there's so few Democratic appointees lately, 219 00:14:35,960 --> 00:14:38,920 Speaker 1: and so I think that the fact that we have 220 00:14:39,560 --> 00:14:43,160 Speaker 1: such a partisan court and visibly parties in court is 221 00:14:43,320 --> 00:14:48,040 Speaker 1: partly to do with greater polarization in our politics. You know, 222 00:14:48,240 --> 00:14:52,680 Speaker 1: the era when you had moderate to liberal Republicans was 223 00:14:52,920 --> 00:14:57,400 Speaker 1: an era when you still had New England and Midwestern 224 00:14:57,480 --> 00:14:59,800 Speaker 1: Republicans who were liberal on a lot of issues, and 225 00:15:00,120 --> 00:15:03,280 Speaker 1: had Dixiecrats who were conservative on a lot of issues. 226 00:15:03,440 --> 00:15:06,960 Speaker 1: And so it wasn't that unusual for a Republican president 227 00:15:07,000 --> 00:15:09,960 Speaker 1: to appoint a moderate to liberal or a Democratic president 228 00:15:10,000 --> 00:15:13,960 Speaker 1: to appoint a moderate to conservative. That just doesn't happen anymore. 229 00:15:14,240 --> 00:15:17,800 Speaker 1: And so now you're seeing this perfect alignment of ideology 230 00:15:18,080 --> 00:15:19,440 Speaker 1: and partisan politics. 231 00:15:19,840 --> 00:15:23,240 Speaker 2: Let's turn to the two Second Amendment cases, and the 232 00:15:23,280 --> 00:15:26,800 Speaker 2: one where the justice is ruled that a marijuana smoker 233 00:15:27,000 --> 00:15:31,600 Speaker 2: can't be prosecuted for having a gun was actually unanimous. 234 00:15:32,000 --> 00:15:35,040 Speaker 1: So this is the case where there's this Texas man 235 00:15:35,080 --> 00:15:40,240 Speaker 1: who admits to using marijuana roughly every other day, and 236 00:15:40,600 --> 00:15:45,600 Speaker 1: under a federal statute that's a basis for taking away 237 00:15:45,920 --> 00:15:51,640 Speaker 1: his firearms and criminally convicting him. And the court unanimously says, oh, 238 00:15:51,640 --> 00:15:54,760 Speaker 1: come on, you know, but the basis for doing it 239 00:15:54,800 --> 00:15:58,160 Speaker 1: is in some ways ridiculous. It's this test that they 240 00:15:58,200 --> 00:16:01,720 Speaker 1: announced in the Bruin case few years ago, which says 241 00:16:02,040 --> 00:16:06,360 Speaker 1: that in order or a regulation of firearms to be valid, 242 00:16:06,840 --> 00:16:11,200 Speaker 1: it has to be analogous to a regulation of firearms 243 00:16:11,520 --> 00:16:15,240 Speaker 1: either in seventeen ninety one when the Second Aendment was adopted, 244 00:16:15,280 --> 00:16:17,520 Speaker 1: or maybe in eighteen sixty eight when the fourteenth Amendment 245 00:16:17,560 --> 00:16:19,240 Speaker 1: was adopted. We're not going to tell you which, And 246 00:16:19,280 --> 00:16:21,240 Speaker 1: it had to have been the kind of regulation that 247 00:16:21,320 --> 00:16:24,400 Speaker 1: was widespread at the time, whichever of those times. And 248 00:16:24,440 --> 00:16:26,040 Speaker 1: so of course the government said, well, you know, there 249 00:16:26,040 --> 00:16:30,160 Speaker 1: were these laws that disarmed habitual drunkards at the founding era. 250 00:16:30,480 --> 00:16:33,240 Speaker 1: And then there's a debate over how similar or not 251 00:16:33,560 --> 00:16:36,360 Speaker 1: being a marijuana user is to being an habitual drunkard, 252 00:16:36,360 --> 00:16:38,640 Speaker 1: and the Cord ultimately concludes it's not that similar at all. 253 00:16:38,760 --> 00:16:41,600 Speaker 1: But that's sort of ridiculous, right. The real question should 254 00:16:41,640 --> 00:16:47,080 Speaker 1: be does using marijuana roughly every other day distinguish somebody 255 00:16:47,200 --> 00:16:49,560 Speaker 1: enough from the average person that they shouldn't be able 256 00:16:49,600 --> 00:16:51,360 Speaker 1: to have a gun if everybody else can have a gun. 257 00:16:51,400 --> 00:16:54,520 Speaker 1: And you know, to their credit some of the concurring justices, 258 00:16:54,560 --> 00:16:57,800 Speaker 1: there was a concurrence by Justice Alito joined by Justice Kagan, 259 00:16:58,160 --> 00:17:01,640 Speaker 1: which is not typical lineup right, said, look, you know, 260 00:17:01,880 --> 00:17:05,680 Speaker 1: people use marijuana now the way that people drink, and 261 00:17:05,720 --> 00:17:08,639 Speaker 1: it's been decriminalized, and you know most of the states 262 00:17:08,680 --> 00:17:11,000 Speaker 1: federal government doesn't enforce. This doesn't make any sense. So 263 00:17:11,000 --> 00:17:13,600 Speaker 1: there's like a kind of common sense idea there. 264 00:17:13,920 --> 00:17:16,280 Speaker 2: Now. The other Second Amendment case was a six to 265 00:17:16,359 --> 00:17:20,720 Speaker 2: three vote down ideological lines, where the Court strengthen the 266 00:17:20,880 --> 00:17:24,920 Speaker 2: constitutional right to carry a gun, striking down a Hawaii law. 267 00:17:25,640 --> 00:17:30,320 Speaker 1: Kawaii has a law that they enacted post Bruin that says, 268 00:17:30,840 --> 00:17:34,560 Speaker 1: if you are a private property owner, we are going 269 00:17:34,600 --> 00:17:37,119 Speaker 1: to presume you don't want people coming on your property 270 00:17:37,560 --> 00:17:42,760 Speaker 1: with firearms unless you explicitly, either orally or in writing consent. 271 00:17:43,320 --> 00:17:47,080 Speaker 1: And this was challenged on the ground that, well, you 272 00:17:47,119 --> 00:17:50,320 Speaker 1: know what about a gas station, private property owner, or 273 00:17:50,359 --> 00:17:53,000 Speaker 1: a drug store or a supermarket. You know, when you 274 00:17:53,080 --> 00:17:55,720 Speaker 1: apply this presumption, you're going to say that people that 275 00:17:55,760 --> 00:17:59,640 Speaker 1: effectively can't carry their firearms in public. And the back 276 00:17:59,680 --> 00:18:03,800 Speaker 1: and between the majority and the descent, primarily Justice Jackson 277 00:18:03,880 --> 00:18:06,879 Speaker 1: in descent on this point is over whether this is 278 00:18:06,920 --> 00:18:10,200 Speaker 1: really a regulation of firearms at all, Justice Jackson says, no, no, no, 279 00:18:10,240 --> 00:18:14,000 Speaker 1: this is a regulation of property. Everybody agrees that private 280 00:18:14,040 --> 00:18:15,960 Speaker 1: property owner can say you can't come on to my 281 00:18:16,119 --> 00:18:17,959 Speaker 1: property with a gun. You could say you can't come 282 00:18:18,000 --> 00:18:20,000 Speaker 1: on to my private property with a hat if you 283 00:18:20,080 --> 00:18:23,560 Speaker 1: wanted to. And so you know wat's the issue here. 284 00:18:23,800 --> 00:18:25,960 Speaker 1: And the majority says no, no, this is a regulation 285 00:18:26,040 --> 00:18:28,040 Speaker 1: of guns in the same way. And this is the 286 00:18:28,080 --> 00:18:31,159 Speaker 1: line that Justice Barrett gives. In the same way. 287 00:18:31,240 --> 00:18:35,760 Speaker 5: That if the law said we're going to presume that 288 00:18:35,800 --> 00:18:38,080 Speaker 5: people don't give permission to somebody to come on their 289 00:18:38,119 --> 00:18:41,520 Speaker 5: property wearing a HyG job, that would be religious discrimination. 290 00:18:41,960 --> 00:18:44,400 Speaker 1: Well, this is a violation of your Second Amendment rights. 291 00:18:44,440 --> 00:18:47,880 Speaker 1: And that sounds like a pretty good analogy, except that 292 00:18:48,280 --> 00:18:50,840 Speaker 1: you know, the First Amendment is a kind of anti 293 00:18:50,840 --> 00:18:53,480 Speaker 1: discrimination principle. It can't discriminate it the basis of religion. 294 00:18:53,600 --> 00:18:56,760 Speaker 1: You can't censor by drawing distinctions based on speech. Second 295 00:18:56,760 --> 00:19:00,000 Speaker 1: Amendment is mostly not an equality principle. It's a liberty principle. 296 00:19:00,240 --> 00:19:03,479 Speaker 1: So I'm not sure how well that fits. But now 297 00:19:03,560 --> 00:19:06,639 Speaker 1: you know, this is another category of laws that we 298 00:19:06,720 --> 00:19:09,520 Speaker 1: know are going to be subject to this second event 299 00:19:09,600 --> 00:19:10,520 Speaker 1: scrutiny in. 300 00:19:10,480 --> 00:19:14,680 Speaker 2: Another high profile case that was decided down ideological lines, 301 00:19:15,160 --> 00:19:20,440 Speaker 2: the Court allowed states to ban transgender athletes from female teams. 302 00:19:20,800 --> 00:19:23,480 Speaker 2: I mean, I don't think anyone ever expected that the 303 00:19:23,600 --> 00:19:26,800 Speaker 2: Conservatives were going to vote any which way besides upholding 304 00:19:26,840 --> 00:19:27,479 Speaker 2: these bands. 305 00:19:27,960 --> 00:19:30,240 Speaker 1: Well, the reason to have some hope, it was a 306 00:19:30,240 --> 00:19:31,760 Speaker 1: hope that was dashed. But the reason to have some 307 00:19:31,840 --> 00:19:36,200 Speaker 1: hope was the fact that in the boss Stock case 308 00:19:36,359 --> 00:19:39,919 Speaker 1: back in twenty twenty, the Supreme Court, in an opinion 309 00:19:40,000 --> 00:19:43,840 Speaker 1: by Justice Neil Gorsuch joined by Chief Justice John Roberts 310 00:19:43,920 --> 00:19:47,680 Speaker 1: and the more liberal justices, said that Title seven, which 311 00:19:47,720 --> 00:19:52,520 Speaker 1: is the federal employment discrimination Statute when it forbids sex discrimination, 312 00:19:53,119 --> 00:19:57,200 Speaker 1: also therefore forbidds discrimination on the basis of sexual orientation 313 00:19:57,600 --> 00:20:02,439 Speaker 1: and transgender status. And this case arose under both the 314 00:20:02,440 --> 00:20:06,520 Speaker 1: egal Protection Clause at the Fourteenth Amendment and Title nine 315 00:20:06,880 --> 00:20:10,359 Speaker 1: of that same Civil Rights Act. And Title nine is 316 00:20:10,480 --> 00:20:13,680 Speaker 1: broadly similar to Title seven. So there was at least 317 00:20:13,680 --> 00:20:17,920 Speaker 1: a cymopacia, that is, you know, first instance argument that 318 00:20:18,600 --> 00:20:21,800 Speaker 1: what's true of Title seven should be true of Title nine. Now, 319 00:20:21,800 --> 00:20:25,000 Speaker 1: there were reasons to think that, as the Court ultimately held, 320 00:20:25,240 --> 00:20:27,840 Speaker 1: that might not work. Part of it is there's this 321 00:20:27,880 --> 00:20:30,840 Speaker 1: provision in Title nine adopted a couple of years after 322 00:20:30,880 --> 00:20:33,360 Speaker 1: the adoption of Title line itself, called the Javits Amendment, 323 00:20:33,720 --> 00:20:38,640 Speaker 1: which allows for sex segregated athletic teams. There's no parallel 324 00:20:38,680 --> 00:20:41,680 Speaker 1: allowance in Title seven. But still the so called boss 325 00:20:41,720 --> 00:20:45,520 Speaker 1: Stock analogy was pretty powerful, I should say, turned out 326 00:20:45,560 --> 00:20:48,080 Speaker 1: not to be that way. Even the liberal justices rejected 327 00:20:48,080 --> 00:20:51,320 Speaker 1: the statutory claim, although they accepted the egal protection claim. 328 00:20:51,520 --> 00:20:55,280 Speaker 1: If you're viewing it from a you know, social policy lens, like, 329 00:20:55,320 --> 00:20:57,840 Speaker 1: you know, how far is this court going to go? 330 00:20:58,359 --> 00:21:01,480 Speaker 1: I think I shared your going into the case, and 331 00:21:01,520 --> 00:21:04,960 Speaker 1: certainly after the oral argument that there weren't going to 332 00:21:05,000 --> 00:21:08,040 Speaker 1: be the votes there to say that what the states 333 00:21:08,040 --> 00:21:12,520 Speaker 1: were doing in these cases was unlawful. But that doesn't 334 00:21:12,560 --> 00:21:15,320 Speaker 1: mean that the legal argument was so bad. It just 335 00:21:15,440 --> 00:21:18,159 Speaker 1: means that, you know, you look at the justices and 336 00:21:18,200 --> 00:21:20,679 Speaker 1: you think they're not ready for this, and you know, 337 00:21:20,840 --> 00:21:27,560 Speaker 1: to be fair, the argument for excluding transgender women from 338 00:21:27,600 --> 00:21:31,479 Speaker 1: women's sports and transgender girls from girls' sports is at 339 00:21:31,560 --> 00:21:36,040 Speaker 1: least in many cases stronger than it is for keeping 340 00:21:36,080 --> 00:21:39,520 Speaker 1: out you know, someone who's gay or trends from just 341 00:21:39,720 --> 00:21:44,080 Speaker 1: any job. And so the result was not especially shocking 342 00:21:44,119 --> 00:21:44,680 Speaker 1: for that reason. 343 00:21:45,040 --> 00:21:48,000 Speaker 2: So, Mike, what are your broad conclusions about the term? 344 00:21:48,400 --> 00:21:51,760 Speaker 1: So I want to offer as a foil one alternate 345 00:21:52,000 --> 00:21:54,520 Speaker 1: way of thinking about the term right you might think, 346 00:21:54,600 --> 00:21:58,240 Speaker 1: and I've seen some versions of this that on the 347 00:21:58,800 --> 00:22:03,159 Speaker 1: issues that have been of long running concern to conservatives, 348 00:22:03,440 --> 00:22:07,160 Speaker 1: the conservative side, one on the voting rights, on Second 349 00:22:07,200 --> 00:22:12,560 Speaker 1: Amendment rights, on you know, LGBT culture, war issues, presidential power, 350 00:22:12,640 --> 00:22:16,640 Speaker 1: et cetera. But on the sort of Trump specific issues, 351 00:22:17,080 --> 00:22:19,720 Speaker 1: the president didn't do so well. So you know, tariffs 352 00:22:19,720 --> 00:22:22,760 Speaker 1: have not been a long standing position of conservatives. Generally, 353 00:22:22,840 --> 00:22:25,359 Speaker 1: Conservatives have been for free trade prior to Trump, and 354 00:22:25,400 --> 00:22:29,280 Speaker 1: so he loses on Tariff's birthright citizenship not really on 355 00:22:29,400 --> 00:22:33,040 Speaker 1: the table prior to the president's executive order on his 356 00:22:33,080 --> 00:22:35,520 Speaker 1: first day of his second term, and so he loses 357 00:22:35,560 --> 00:22:38,600 Speaker 1: on that. And I think that's sort of right. But 358 00:22:38,640 --> 00:22:41,360 Speaker 1: I think it's important to understand the reason he loses 359 00:22:41,640 --> 00:22:46,199 Speaker 1: is not because there's this rift between the sort of 360 00:22:46,280 --> 00:22:50,760 Speaker 1: elite legal conservatives and Trump. There might be such a 361 00:22:50,840 --> 00:22:54,360 Speaker 1: rift between Ke, Justice Roberts and Trump. But you know, 362 00:22:54,720 --> 00:22:57,280 Speaker 1: he's getting Thomas and Alito, as you said, in all 363 00:22:57,320 --> 00:23:02,440 Speaker 1: of these cases, he's getting some combat nation of Gorsuch, Kavanaugh, 364 00:23:02,760 --> 00:23:05,280 Speaker 1: Barrett in some of these cases. And so the only 365 00:23:05,320 --> 00:23:08,000 Speaker 1: reason he's losing in the cases he loses is because 366 00:23:08,080 --> 00:23:10,040 Speaker 1: all the Liberals vote against him, and then you know, 367 00:23:10,200 --> 00:23:14,520 Speaker 1: two or occasionally three of the conservatives also vote against him, 368 00:23:14,640 --> 00:23:18,000 Speaker 1: and on the cases he wins, even when he's winning 369 00:23:18,400 --> 00:23:23,520 Speaker 1: on traditional conservative issues, right, I think this Court is 370 00:23:23,760 --> 00:23:28,320 Speaker 1: being willfully blind or at best hyperopic, which is the 371 00:23:28,359 --> 00:23:31,320 Speaker 1: opposite of myopic. They're seeing off in the distance but 372 00:23:31,359 --> 00:23:33,960 Speaker 1: not what's in front of them, so they're not seeing 373 00:23:34,359 --> 00:23:39,040 Speaker 1: the immediate consequences of giving all of this presidential power, right, 374 00:23:39,080 --> 00:23:41,119 Speaker 1: which is something they've wanted to expand for years, but 375 00:23:41,160 --> 00:23:44,879 Speaker 1: giving it to this particular president who has shown that 376 00:23:45,040 --> 00:23:47,479 Speaker 1: he and the people he appoints are going to abuse 377 00:23:47,520 --> 00:23:50,560 Speaker 1: that power. And so, to my mind, the story here 378 00:23:51,080 --> 00:23:55,280 Speaker 1: is that Trump is winning, and it really doesn't matter 379 00:23:55,320 --> 00:23:59,400 Speaker 1: whether he's winning because the Supreme Court likes what he's 380 00:23:59,440 --> 00:24:02,800 Speaker 1: doing or you know, they're pursuing their own agenda. They're 381 00:24:02,840 --> 00:24:06,119 Speaker 1: at the very least allowing him to win and thus 382 00:24:06,200 --> 00:24:09,280 Speaker 1: allowing the concentration of power, in my view, in very 383 00:24:09,359 --> 00:24:10,119 Speaker 1: dangerous hands. 384 00:24:10,400 --> 00:24:13,040 Speaker 2: Thanks so much for sharing your insights with us. Mike. 385 00:24:13,280 --> 00:24:16,400 Speaker 2: That's Cornell Law School professor Michael Dorf coming up next 386 00:24:16,440 --> 00:24:20,040 Speaker 2: on the Bloomberg Law Show. A former Olympian pleads not 387 00:24:20,240 --> 00:24:24,639 Speaker 2: guilty to a felony for allegedly damaging the Lincoln Memorial 388 00:24:24,720 --> 00:24:27,760 Speaker 2: Reflecting Pool. But will the case even get to trial? 389 00:24:28,040 --> 00:24:30,480 Speaker 2: I'm June Grosso and this is Bloomberg. 390 00:24:34,400 --> 00:24:37,360 Speaker 6: Davy Hearn fled not guilty. 391 00:24:40,760 --> 00:24:42,160 Speaker 7: Because he is not guilty. 392 00:24:42,440 --> 00:24:46,439 Speaker 2: On Thursday, a DC courtroom was packed with dozens of 393 00:24:46,560 --> 00:24:50,880 Speaker 2: supporters of three time Olympic canoe racer David Hearn as 394 00:24:50,880 --> 00:24:55,520 Speaker 2: he pleaded not guilty to deliberately damaging the Lincoln Memorial 395 00:24:55,680 --> 00:24:59,560 Speaker 2: Reflecting Pool, a felony charge carrying up to ten years 396 00:24:59,640 --> 00:25:02,439 Speaker 2: in p Hearne has said that he reached into the 397 00:25:02,480 --> 00:25:05,200 Speaker 2: pool to touch a piece of the liner that had 398 00:25:05,240 --> 00:25:09,760 Speaker 2: already floated to the surface. His attorney, Normizen, said the 399 00:25:09,800 --> 00:25:13,159 Speaker 2: administration is using Herne to shift the blame for the 400 00:25:13,200 --> 00:25:15,520 Speaker 2: failed renovation of the reflecting pool. 401 00:25:15,960 --> 00:25:20,000 Speaker 6: If mister Hearn can be charged with a felony for 402 00:25:20,200 --> 00:25:25,960 Speaker 6: touching the reflecting pool, every American is at risk. 403 00:25:26,400 --> 00:25:30,440 Speaker 2: Last week, the US attorney for DC, Janine Pierro, had 404 00:25:30,440 --> 00:25:34,600 Speaker 2: called a press conference to announce Hearn's indictment accusing him 405 00:25:34,640 --> 00:25:38,959 Speaker 2: of intentionally damaging about two square feet of the pool's lining. 406 00:25:39,359 --> 00:25:45,560 Speaker 8: The National Park Service employees observed Hern actually forcefully and 407 00:25:45,800 --> 00:25:52,000 Speaker 8: violently pulling up and removing the bottom liner with both hands. 408 00:25:52,520 --> 00:25:56,960 Speaker 2: But Piero Bristol, when reporters questioned her about just how 409 00:25:57,000 --> 00:25:59,720 Speaker 2: Hern had done more than one thousand dollars worth of 410 00:25:59,760 --> 00:26:00,359 Speaker 2: doubt image. 411 00:26:00,720 --> 00:26:02,080 Speaker 6: Did he have any tools. 412 00:26:01,800 --> 00:26:03,320 Speaker 1: Or is it just a spare hands? 413 00:26:03,880 --> 00:26:06,399 Speaker 8: Right now, we believe it's his bare hands, both hands. 414 00:26:06,400 --> 00:26:07,400 Speaker 1: So does that indicate in. 415 00:26:07,359 --> 00:26:10,000 Speaker 6: Your belief that it was probably damaged before or do 416 00:26:10,040 --> 00:26:10,720 Speaker 6: you believe. 417 00:26:10,480 --> 00:26:12,240 Speaker 8: That he Oh, he damaged it. 418 00:26:12,200 --> 00:26:15,200 Speaker 1: Further, But do you believe it had already been damaged. 419 00:26:14,800 --> 00:26:16,639 Speaker 8: Before he damaged the pool? 420 00:26:17,040 --> 00:26:20,800 Speaker 2: After chunks of the pool's new blue liners started drifting 421 00:26:20,840 --> 00:26:25,520 Speaker 2: to the surface last month, President Trump claimed without substantiation 422 00:26:26,119 --> 00:26:29,439 Speaker 2: that the damage was caused by vandals who cut the 423 00:26:29,480 --> 00:26:31,520 Speaker 2: pools lining with a box cutter. 424 00:26:31,960 --> 00:26:35,240 Speaker 3: They put up big gash three hundred and fifty feet long. 425 00:26:35,320 --> 00:26:37,840 Speaker 1: Think of the three hundred and fifty foot gash. 426 00:26:38,000 --> 00:26:42,280 Speaker 2: Since Hearn's indictment, three others have been charged with misdemeanors 427 00:26:42,560 --> 00:26:46,320 Speaker 2: for peeling or removing pieces of the pool's liner, my 428 00:26:46,400 --> 00:26:49,879 Speaker 2: guess is former federal prosecutor Marissa Darden, chair of the 429 00:26:49,920 --> 00:26:55,680 Speaker 2: White Collar Government Investigations and Regulatory Practice Group at Benish Law. Marissa, 430 00:26:55,760 --> 00:26:59,280 Speaker 2: even if what Piro says is true, does that merit 431 00:26:59,280 --> 00:27:00,520 Speaker 2: a felony and indictment? 432 00:27:00,960 --> 00:27:02,840 Speaker 7: So a couple of things that we should talk about, 433 00:27:03,080 --> 00:27:04,040 Speaker 7: just to kind of levels. 434 00:27:04,040 --> 00:27:07,120 Speaker 9: At the US Attorney's Office for the District of Columbia 435 00:27:07,200 --> 00:27:12,119 Speaker 9: has concurrent jurisdiction between crimes that happen in the District 436 00:27:12,200 --> 00:27:17,439 Speaker 9: of Columbia that violate District of Columbia law and federal 437 00:27:17,760 --> 00:27:19,280 Speaker 9: laws that are violated within the. 438 00:27:19,200 --> 00:27:20,240 Speaker 7: District of Columbia. 439 00:27:20,320 --> 00:27:22,880 Speaker 9: So there's like the Department of Justice writ large right, 440 00:27:23,359 --> 00:27:26,080 Speaker 9: and the US Attorney's Office for the District of Columbia. 441 00:27:26,480 --> 00:27:32,840 Speaker 9: They prosecute federal felonies and misdemeanors and state or local crime. 442 00:27:33,280 --> 00:27:37,640 Speaker 9: So he's charged with violating DC Code Section twenty two 443 00:27:37,840 --> 00:27:40,840 Speaker 9: three oh three, which is not a federal crime and 444 00:27:40,920 --> 00:27:43,919 Speaker 9: not a federal felony. And so on one hand, you 445 00:27:43,960 --> 00:27:47,840 Speaker 9: know Jeanie Parrot love her rhetoric or whatever, and her 446 00:27:47,920 --> 00:27:50,480 Speaker 9: interesting career before she was the US Attorney for the 447 00:27:50,480 --> 00:27:54,160 Speaker 9: District of Columbia. She's dialing it up in that press conference, 448 00:27:54,359 --> 00:27:55,199 Speaker 9: no doubt about it. 449 00:27:55,400 --> 00:27:56,440 Speaker 7: And one of the ways. 450 00:27:56,160 --> 00:27:59,679 Speaker 9: That you know that they're trying to be intellectually honest 451 00:27:59,680 --> 00:28:03,480 Speaker 9: about the crimes that they're actually prosecuting day to day 452 00:28:04,280 --> 00:28:07,280 Speaker 9: is that they charged him with violating DC law and 453 00:28:07,359 --> 00:28:10,480 Speaker 9: not federal law, which they might have been able to 454 00:28:10,520 --> 00:28:13,159 Speaker 9: do given the fact that it's a federal monument and 455 00:28:13,240 --> 00:28:17,960 Speaker 9: the United States Park Service has jurisdiction. So yes, on 456 00:28:17,960 --> 00:28:20,040 Speaker 9: one hand, there's no need to get up there and 457 00:28:20,080 --> 00:28:23,480 Speaker 9: like rant about that, but that might be performative for 458 00:28:23,680 --> 00:28:27,280 Speaker 9: President Trump or other constituencies. The way you know that 459 00:28:27,320 --> 00:28:29,399 Speaker 9: they're trying to be intellectually honest about this crime is 460 00:28:29,440 --> 00:28:32,080 Speaker 9: that they've charged him with a felony violating DC code. 461 00:28:32,359 --> 00:28:35,240 Speaker 2: Explain why that matters, because he's still being charged with 462 00:28:35,280 --> 00:28:35,880 Speaker 2: a felony. 463 00:28:36,320 --> 00:28:39,120 Speaker 9: There are judges in the District of Columbia that are 464 00:28:39,280 --> 00:28:42,640 Speaker 9: District of Columbia judges, so just like the city of 465 00:28:42,800 --> 00:28:47,280 Speaker 9: New York or Chicago has judges, and so their docket 466 00:28:47,320 --> 00:28:52,520 Speaker 9: is very full. Felonies are often handled by settling the 467 00:28:52,640 --> 00:28:56,720 Speaker 9: cases for lower charges than what was actually charged. The 468 00:28:56,800 --> 00:29:01,040 Speaker 9: dockets are very busy and Ultimately, you know, the. 469 00:29:01,040 --> 00:29:03,920 Speaker 7: US Attorney's Office will be responsible. 470 00:29:03,240 --> 00:29:05,720 Speaker 9: For prosecuting those crimes, but there are a host of 471 00:29:05,760 --> 00:29:08,640 Speaker 9: other ways that they can be resolved that are outside 472 00:29:08,680 --> 00:29:11,800 Speaker 9: of the federal system in the US Attorney's Office, even 473 00:29:11,800 --> 00:29:15,080 Speaker 9: in DC that handles federal crimes. If you're indicted by 474 00:29:15,080 --> 00:29:19,400 Speaker 9: a federal grand jury, there's a lot less options available. 475 00:29:18,920 --> 00:29:20,440 Speaker 7: To you in how you resolve the matter. 476 00:29:20,920 --> 00:29:23,720 Speaker 9: So I'm not suggesting that they're gonna plea bargain this 477 00:29:23,840 --> 00:29:25,400 Speaker 9: down to something less than a felony. 478 00:29:25,440 --> 00:29:26,520 Speaker 7: And there may be. 479 00:29:26,240 --> 00:29:29,120 Speaker 9: Political or other reasons why they decided to make the 480 00:29:29,200 --> 00:29:31,320 Speaker 9: charges that they did. I don't speak to that, but 481 00:29:31,480 --> 00:29:34,800 Speaker 9: just from like a volume size, the folks who work 482 00:29:34,840 --> 00:29:38,120 Speaker 9: at the US Attorney's Office on the DC District court side, 483 00:29:38,240 --> 00:29:39,240 Speaker 9: they have full dockets. 484 00:29:39,280 --> 00:29:41,000 Speaker 7: They're very busy. The judges are busy. 485 00:29:41,240 --> 00:29:44,240 Speaker 9: They're just like any other big city courtroom that you know, 486 00:29:44,280 --> 00:29:46,120 Speaker 9: things get pled down to and so forth. 487 00:29:46,320 --> 00:29:51,600 Speaker 2: So he was initially arrested on a misdemeanor charge. Is 488 00:29:51,640 --> 00:29:55,480 Speaker 2: it often that it would be bumped up to a felony? 489 00:29:56,000 --> 00:29:57,840 Speaker 7: Sometimes that's not uncommon. 490 00:29:58,160 --> 00:30:00,800 Speaker 9: So I was a state court prosecute at the Manhattan 491 00:30:00,880 --> 00:30:03,360 Speaker 9: Day's Office. I was a federal prosecutor at a US 492 00:30:03,400 --> 00:30:07,600 Speaker 9: Attorney's office locally, and there are definitely cases that I've 493 00:30:07,640 --> 00:30:10,160 Speaker 9: handled where it came in as one crime and it 494 00:30:10,200 --> 00:30:13,280 Speaker 9: got charged as another as the investigation went on. And 495 00:30:13,320 --> 00:30:16,480 Speaker 9: so you know, again, there are parts and pieces of 496 00:30:16,520 --> 00:30:18,000 Speaker 9: this that may in fact be political. 497 00:30:18,280 --> 00:30:21,160 Speaker 7: I don't question that, But just from like a day 498 00:30:21,200 --> 00:30:23,320 Speaker 7: to day prosecuting side. 499 00:30:22,960 --> 00:30:26,480 Speaker 9: The assisting United States attorney who's responsible for handling this 500 00:30:26,560 --> 00:30:28,160 Speaker 9: case would have a process. 501 00:30:27,800 --> 00:30:30,120 Speaker 7: By which they would evaluate any other arrest. 502 00:30:30,520 --> 00:30:33,440 Speaker 9: They would speak to the police officers, try to ascertain 503 00:30:33,520 --> 00:30:37,840 Speaker 9: exactly what happened here, review the facts, and determine. 504 00:30:37,320 --> 00:30:39,760 Speaker 7: How the facts apply to the law and what might 505 00:30:39,800 --> 00:30:41,520 Speaker 7: be the appropriate charges. 506 00:30:41,880 --> 00:30:45,000 Speaker 9: My understanding is that the Justice Department now is operating 507 00:30:45,080 --> 00:30:49,160 Speaker 9: under a general understanding or a credo that they're supposed 508 00:30:49,200 --> 00:30:52,880 Speaker 9: to put the maximum charges allowable or possible on criminal 509 00:30:52,880 --> 00:30:55,480 Speaker 9: defendants in most, if not all cases, and so it 510 00:30:55,480 --> 00:30:58,960 Speaker 9: would be consistent with that edict that they might arrest 511 00:30:59,040 --> 00:31:02,080 Speaker 9: him with a misdemeanor citation and then investigate the case 512 00:31:02,120 --> 00:31:06,280 Speaker 9: and determine that it violated a felony under DC Code. 513 00:31:06,720 --> 00:31:10,760 Speaker 2: This reminds me a lot of another case where Pierro 514 00:31:11,040 --> 00:31:14,320 Speaker 2: called a press conference, and that was for the guy 515 00:31:14,320 --> 00:31:16,880 Speaker 2: who's now known as the sandwich guy, who threw a 516 00:31:16,920 --> 00:31:20,600 Speaker 2: sandwich in the face of a ice agent last year 517 00:31:20,840 --> 00:31:24,720 Speaker 2: and the grand jury refused to indict him for a felony. 518 00:31:24,760 --> 00:31:29,280 Speaker 2: He was ultimately charged with a misdemeanor assault and acquitted 519 00:31:29,880 --> 00:31:33,640 Speaker 2: at trial. And you know, the DC grand jury also 520 00:31:33,720 --> 00:31:38,320 Speaker 2: refused to indict lawmakers who issued a video statement telling 521 00:31:38,400 --> 00:31:42,200 Speaker 2: soldiers they could refuse to obey illegal orders. So I 522 00:31:42,320 --> 00:31:46,240 Speaker 2: questioned how that grand jury returned a felony here. 523 00:31:46,920 --> 00:31:47,560 Speaker 7: It's hard to know. 524 00:31:47,760 --> 00:31:49,880 Speaker 9: I mean, grand juries are made up of people just 525 00:31:49,960 --> 00:31:52,880 Speaker 9: like you and I usually somewhere between seventeen and twenty 526 00:31:52,880 --> 00:31:57,160 Speaker 9: three people there are provided evidence that the prosecutor dictates 527 00:31:57,200 --> 00:31:59,720 Speaker 9: they want the grand jury to hear. You know, there's 528 00:31:59,720 --> 00:32:01,760 Speaker 9: a reason why the stereotype is you. 529 00:32:01,680 --> 00:32:02,880 Speaker 7: Can indict a ham sandwich. 530 00:32:02,960 --> 00:32:03,160 Speaker 2: Right. 531 00:32:03,360 --> 00:32:07,960 Speaker 9: The prosecutor's office has relatively full control over the witnesses 532 00:32:08,000 --> 00:32:09,880 Speaker 9: that are brought in before the grand jury and the 533 00:32:10,000 --> 00:32:13,880 Speaker 9: information that they're provided in order to return an indictment. 534 00:32:14,080 --> 00:32:16,000 Speaker 9: And now that's not me saying that there was any 535 00:32:16,000 --> 00:32:18,680 Speaker 9: funny business here. I don't speak to that, but I'm 536 00:32:18,720 --> 00:32:22,240 Speaker 9: just saying that the prosecutors would have clearly been able 537 00:32:22,320 --> 00:32:23,480 Speaker 9: to control that narrative. 538 00:32:23,960 --> 00:32:27,920 Speaker 2: Can a judge before trial either throw the case out 539 00:32:28,160 --> 00:32:31,440 Speaker 2: or lower the charges to a misdemeanor. 540 00:32:31,200 --> 00:32:33,640 Speaker 7: Upon motion from one or both sides. 541 00:32:33,680 --> 00:32:37,640 Speaker 2: Absolutely, Yes, He's got some well known and very experienced 542 00:32:37,680 --> 00:32:42,040 Speaker 2: defense attorneys, and they've issued a statement. This indictment represents 543 00:32:42,040 --> 00:32:46,240 Speaker 2: the administration's efforts to shift blame for their own failures. 544 00:32:46,720 --> 00:32:48,920 Speaker 2: And there's been a lot of coverage of the problems 545 00:32:49,080 --> 00:32:54,360 Speaker 2: plaguing the renovation of the reflecting pool, including algae and 546 00:32:54,720 --> 00:32:58,200 Speaker 2: chunks of the pools lining peeling off and coming to 547 00:32:58,240 --> 00:33:00,960 Speaker 2: the surface. So you can bet they'll make emotion and. 548 00:33:00,960 --> 00:33:04,240 Speaker 9: So oh absolutely and make several motions that this might 549 00:33:04,280 --> 00:33:08,800 Speaker 9: be a persecution, that it's unwarranted, that the facts, you know, 550 00:33:09,040 --> 00:33:10,720 Speaker 9: how they've been laid out, either in the. 551 00:33:10,720 --> 00:33:12,520 Speaker 7: Press conference or in the indictment. 552 00:33:13,040 --> 00:33:15,680 Speaker 9: There's a host of factual and legal arguments that the 553 00:33:15,680 --> 00:33:17,680 Speaker 9: defense is going to amount to say, you know that 554 00:33:17,720 --> 00:33:20,640 Speaker 9: there may be a political reason for this, that if 555 00:33:20,680 --> 00:33:23,360 Speaker 9: he was simply just you know, in the reflecting pool, 556 00:33:23,360 --> 00:33:25,160 Speaker 9: that he didn't mean anything by it, that there was 557 00:33:25,200 --> 00:33:29,080 Speaker 9: no malintent. You know, the felony does come with what 558 00:33:29,120 --> 00:33:31,920 Speaker 9: we call a mensrea or some level of intentional action, 559 00:33:32,120 --> 00:33:34,480 Speaker 9: And so if they can't prove that, that would be 560 00:33:34,520 --> 00:33:37,360 Speaker 9: a very difficult case to mount. And the judge certainly 561 00:33:37,400 --> 00:33:40,840 Speaker 9: has the authority to review those charges and make changes 562 00:33:41,160 --> 00:33:44,880 Speaker 9: or dismiscounts, or do a host of other things to 563 00:33:44,920 --> 00:33:47,520 Speaker 9: try to address those issues as they're brought up. 564 00:33:47,800 --> 00:33:49,920 Speaker 2: Do you have a feel for whether a judge would 565 00:33:49,960 --> 00:33:53,960 Speaker 2: at least knock this down to a misdebeanor. 566 00:33:53,840 --> 00:33:55,480 Speaker 7: I don't if for no other reason. 567 00:33:55,520 --> 00:33:58,440 Speaker 9: Then on one hand, yes, the rhetoric is high and 568 00:33:58,600 --> 00:34:01,160 Speaker 9: the political nature of it feels icky. But on the 569 00:34:01,240 --> 00:34:06,520 Speaker 9: other hand, in any other administration, defaming, defiling, or otherwise 570 00:34:06,560 --> 00:34:10,400 Speaker 9: like vandalizing federal monuments would be treated as a pretty 571 00:34:10,440 --> 00:34:11,280 Speaker 9: serious crime. 572 00:34:11,600 --> 00:34:14,040 Speaker 7: So, you know, it depends on what the facts are. 573 00:34:14,680 --> 00:34:19,000 Speaker 2: During the press conference, Piro was asked whether similar charges 574 00:34:19,040 --> 00:34:23,440 Speaker 2: could face those who cause damage to the capital during 575 00:34:23,440 --> 00:34:27,600 Speaker 2: the January sixth attack, and she refused to address that question. 576 00:34:28,160 --> 00:34:31,279 Speaker 2: But is that something the defense can bring up or 577 00:34:31,360 --> 00:34:32,600 Speaker 2: is it irrelevant? 578 00:34:32,960 --> 00:34:35,880 Speaker 9: A good defense attorney might be able to fashion an 579 00:34:36,040 --> 00:34:41,160 Speaker 9: argument that there is a potentially political play here that 580 00:34:41,600 --> 00:34:45,239 Speaker 9: isn't consistent with how the administration has been handling similarly 581 00:34:45,280 --> 00:34:49,640 Speaker 9: situated defendants. That isn't often persuasive to a judge, if 582 00:34:49,680 --> 00:34:52,040 Speaker 9: for no other reason, then the judges are supposed to 583 00:34:52,080 --> 00:34:54,160 Speaker 9: evaluate the facts as they are laid out to them 584 00:34:54,160 --> 00:34:55,480 Speaker 9: on individual basis. 585 00:34:55,520 --> 00:34:58,640 Speaker 2: Also, since Hern's indictment, three others have been accused of 586 00:34:58,880 --> 00:35:03,240 Speaker 2: pealing or at actually removing pieces of the pool's liner, 587 00:35:03,480 --> 00:35:05,640 Speaker 2: but they've only been charged with misdemeanors. 588 00:35:06,040 --> 00:35:08,560 Speaker 9: I mean, the DC Code section twenty three to three 589 00:35:08,640 --> 00:35:10,719 Speaker 9: oh three, it has a misdemeanor provision in it. So 590 00:35:10,760 --> 00:35:13,960 Speaker 9: it's possible that there are some facts that are more aggressive, 591 00:35:14,120 --> 00:35:18,040 Speaker 9: or the vandalism is worth more more than one thousand dollars, 592 00:35:18,160 --> 00:35:20,640 Speaker 9: or you know, there's a host of other factual considerations 593 00:35:20,640 --> 00:35:22,960 Speaker 9: that the prosecutor's office would look at to determine whether 594 00:35:23,080 --> 00:35:25,360 Speaker 9: it would be appropriate to charge somebody under a misdemeanor 595 00:35:25,440 --> 00:35:26,240 Speaker 9: versus a felony. 596 00:35:26,480 --> 00:35:30,359 Speaker 2: Piero claimed that hearn did one thousand dollars worth of damage. 597 00:35:30,680 --> 00:35:33,319 Speaker 2: When a reporter asked her how she would prove that, 598 00:35:33,560 --> 00:35:37,000 Speaker 2: Piero snapped back and said, with an expert come to 599 00:35:37,040 --> 00:35:40,520 Speaker 2: the trial. And that's what's troubling in these cases, being 600 00:35:40,680 --> 00:35:45,120 Speaker 2: charged or overcharged It's easy enough for the prosecutor to say, 601 00:35:45,160 --> 00:35:47,480 Speaker 2: we'll do it at trial. But for the defendant who 602 00:35:47,520 --> 00:35:50,719 Speaker 2: has to go through these proceedings, pay for an attorney, 603 00:35:50,920 --> 00:35:54,600 Speaker 2: and wait the months and months until trial to find 604 00:35:54,640 --> 00:35:57,680 Speaker 2: out what's going to happen to them, it's not so easy. 605 00:35:58,120 --> 00:36:02,400 Speaker 9: You're absolutely right, and it is sort of down cycle 606 00:36:02,600 --> 00:36:05,720 Speaker 9: peril of our criminal justice system that you can mount 607 00:36:05,760 --> 00:36:10,000 Speaker 9: the charges that you're not required to disclose at the 608 00:36:10,120 --> 00:36:14,600 Speaker 9: time of the charging document exactly how or what evidence 609 00:36:14,840 --> 00:36:16,960 Speaker 9: you will use to prove each and every element of 610 00:36:16,960 --> 00:36:18,760 Speaker 9: a crime beyond a reasonable doubt. 611 00:36:19,120 --> 00:36:20,680 Speaker 7: Hopefully that information will come. 612 00:36:20,600 --> 00:36:23,920 Speaker 9: Out in discovery and as part of the litigation of 613 00:36:23,960 --> 00:36:24,480 Speaker 9: the case. 614 00:36:24,880 --> 00:36:26,359 Speaker 7: But she's technically right. 615 00:36:26,440 --> 00:36:28,760 Speaker 9: I mean, if they need to prove that it's a felony, 616 00:36:28,840 --> 00:36:31,080 Speaker 9: that the damages are worth more than one thousand dollars, 617 00:36:31,360 --> 00:36:33,800 Speaker 9: I would expect there to be some expert testimony or 618 00:36:33,840 --> 00:36:36,120 Speaker 9: expert report about that that would come up as part 619 00:36:36,160 --> 00:36:37,440 Speaker 9: of the discovery process. 620 00:36:37,760 --> 00:36:41,160 Speaker 2: And Hearn's attorney said they expect to really push the 621 00:36:41,239 --> 00:36:46,240 Speaker 2: administration for vast amounts of discovery. Thanks for joining me, Marissa. 622 00:36:46,520 --> 00:36:49,560 Speaker 2: That's Marissa Darden of Benish Law. And that's it for 623 00:36:49,560 --> 00:36:52,200 Speaker 2: this edition of The Bloomberg Law Show. Remember you can 624 00:36:52,239 --> 00:36:55,480 Speaker 2: always get the latest legal news on our Bloomberg Law Podcast. 625 00:36:55,760 --> 00:36:58,799 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 626 00:36:58,920 --> 00:37:03,960 Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And 627 00:37:04,040 --> 00:37:07,120 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 628 00:37:07,200 --> 00:37:10,640 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 629 00:37:10,719 --> 00:37:12,160 Speaker 2: you're listening to Bloomberg