1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:07,960 --> 00:00:11,879 Speaker 1: Former President Donald Trump faces his second impeachment trial next 3 00:00:11,880 --> 00:00:15,720 Speaker 1: week on accusations that he incited a harrowing siege at 4 00:00:15,720 --> 00:00:19,760 Speaker 1: the US Capital on January six, when his supporters overran 5 00:00:19,840 --> 00:00:23,360 Speaker 1: the police and violently stormed the building. Joining me as 6 00:00:23,400 --> 00:00:28,000 Speaker 1: former federal prosecutor Elie Honig, what do the legal briefs 7 00:00:28,040 --> 00:00:31,680 Speaker 1: tell you about the strategies at trial, so that the 8 00:00:31,760 --> 00:00:35,000 Speaker 1: legal briefs are really revealing. First of all, from the 9 00:00:35,000 --> 00:00:38,720 Speaker 1: interview of the so called prosecution here the House impeachment managers, 10 00:00:39,159 --> 00:00:43,640 Speaker 1: they are taking a very aggressive, I think appropriately aggressive tack. 11 00:00:44,120 --> 00:00:47,080 Speaker 1: They are not going around the margins of the First 12 00:00:47,120 --> 00:00:50,720 Speaker 1: Amendment or the constitutionality issues. They are just coming straight 13 00:00:50,720 --> 00:00:53,720 Speaker 1: out and saying this is utterly unacceptable. This is the 14 00:00:53,840 --> 00:00:57,640 Speaker 1: core of what impeachment is about. This was an attempted insurrection. 15 00:00:57,680 --> 00:01:00,200 Speaker 1: This was a violation by the president on an other 16 00:01:00,320 --> 00:01:04,000 Speaker 1: branch of our government. And they are coming out swinging 17 00:01:04,480 --> 00:01:07,520 Speaker 1: the defense brief. When we finally saw it was a 18 00:01:07,560 --> 00:01:11,759 Speaker 1: different type of creature. It was tenderly shoddy work product. 19 00:01:11,760 --> 00:01:14,000 Speaker 1: It was poorly written, poorly reasoned. It was a mess. 20 00:01:14,040 --> 00:01:16,000 Speaker 1: It was hard to follow it. They seem to use 21 00:01:16,040 --> 00:01:19,679 Speaker 1: this strange format that lawyers sometimes used when they're responding 22 00:01:19,720 --> 00:01:23,360 Speaker 1: to interrogatories, and the civil caates very formalistic, and we 23 00:01:23,440 --> 00:01:26,560 Speaker 1: hereby admit that the Constitution exists, but we deny everything 24 00:01:26,560 --> 00:01:29,160 Speaker 1: else that you say. But the gist of the arguments 25 00:01:29,200 --> 00:01:33,800 Speaker 1: are this sort of mishmash of the constitutional defense that 26 00:01:34,000 --> 00:01:38,080 Speaker 1: it's unconstitutional to try a former official, which I think 27 00:01:38,720 --> 00:01:41,080 Speaker 1: is not a strong argument. It's an argument we don't 28 00:01:41,120 --> 00:01:43,080 Speaker 1: know the answer, but I think the better weight of 29 00:01:43,120 --> 00:01:45,880 Speaker 1: the evidence and laws. On the other side, they argue 30 00:01:45,959 --> 00:01:50,720 Speaker 1: First Amendment protections, which I think is misguided in several respects. 31 00:01:50,800 --> 00:01:54,400 Speaker 1: And notably they don't take the big lie off the table. 32 00:01:54,560 --> 00:01:57,000 Speaker 1: They minced words a bit about this false idea of 33 00:01:57,080 --> 00:02:00,520 Speaker 1: election fraud, but they say something to the effect of, well, 34 00:02:00,560 --> 00:02:03,080 Speaker 1: there's not enough evidence either way, who can tell? And 35 00:02:03,200 --> 00:02:06,200 Speaker 1: we deny that Donald Trump live when he put forth 36 00:02:06,360 --> 00:02:09,400 Speaker 1: the election fraud theory. I think that's potentially very fraud 37 00:02:09,600 --> 00:02:12,920 Speaker 1: for the lawyers and for Donald Trump's defense. How much 38 00:02:13,080 --> 00:02:17,160 Speaker 1: does the case depend on the House managers being able 39 00:02:17,200 --> 00:02:22,200 Speaker 1: to prove that His speech on February six insided the 40 00:02:22,320 --> 00:02:26,239 Speaker 1: violence that followed, So that is a key component of 41 00:02:26,360 --> 00:02:28,760 Speaker 1: the case that they'll be making. I do think it's 42 00:02:28,760 --> 00:02:31,560 Speaker 1: important to note that the House Impeachment managers have intentionally 43 00:02:31,680 --> 00:02:35,040 Speaker 1: framed their argument is not just January six, but everything 44 00:02:35,040 --> 00:02:37,880 Speaker 1: that led up to it. They past this, I think smartly, 45 00:02:38,320 --> 00:02:42,640 Speaker 1: as a longer term, ongoing, sort of prolonged, coordinated effort 46 00:02:42,680 --> 00:02:45,280 Speaker 1: by Donald Trump and those around him. They don't name names, 47 00:02:45,280 --> 00:02:48,680 Speaker 1: but Rudy Giuliani and Bo Brooks and Donald Trump Jr. 48 00:02:48,720 --> 00:02:51,880 Speaker 1: And Sidney Powell and others to spread and sort of 49 00:02:52,160 --> 00:02:56,639 Speaker 1: amplify and activate this election fraud lie. And I think 50 00:02:56,680 --> 00:02:59,440 Speaker 1: what they point to is January six as sort of 51 00:02:59,520 --> 00:03:02,040 Speaker 1: the tipping point. And look, Donald Trump's words that day 52 00:03:02,040 --> 00:03:03,840 Speaker 1: are very important, and you do want to be able 53 00:03:03,880 --> 00:03:05,440 Speaker 1: to show as much of a connection as you can 54 00:03:05,520 --> 00:03:08,560 Speaker 1: between his words that crowd and their actions. And I 55 00:03:08,600 --> 00:03:11,280 Speaker 1: think that will lie in his actual words to the crowd, 56 00:03:11,560 --> 00:03:14,440 Speaker 1: the crowd's actual reactions. There are more and more videos 57 00:03:14,480 --> 00:03:16,840 Speaker 1: now of that coming out of the crowd saying yeah, 58 00:03:17,240 --> 00:03:19,720 Speaker 1: what he said, Store in the Capitol, Store in the Capitol. 59 00:03:20,120 --> 00:03:22,560 Speaker 1: Just Security just published some of these videos the other day, 60 00:03:22,800 --> 00:03:26,480 Speaker 1: and Donald Trump's reaction afterwards, when he was generally positive 61 00:03:26,520 --> 00:03:29,400 Speaker 1: and praised the crowd who just ransacked the Capitol. I 62 00:03:29,440 --> 00:03:32,080 Speaker 1: think that's the heart of the case. Is the strongest 63 00:03:32,280 --> 00:03:38,160 Speaker 1: argument the defense makes the process argument, because that would 64 00:03:38,160 --> 00:03:42,240 Speaker 1: allow the Republicans who don't want to impeach Donald Trump 65 00:03:42,960 --> 00:03:46,440 Speaker 1: to say it wasn't based on what happened, It wasn't 66 00:03:46,480 --> 00:03:50,320 Speaker 1: based on what he did. We just can't impeach a 67 00:03:50,480 --> 00:03:54,680 Speaker 1: president who's no longer in office. Exactly. Yes, I think 68 00:03:54,720 --> 00:03:57,160 Speaker 1: it's not necessarily the strongest on the merits, but it's 69 00:03:57,240 --> 00:04:00,840 Speaker 1: politically the most expedient for exactly those reasons. Look, it's 70 00:04:00,840 --> 00:04:03,120 Speaker 1: gonna be hard for any Republican who votes not guilty, 71 00:04:03,160 --> 00:04:06,320 Speaker 1: even if they're from a safe red state seat. They're 72 00:04:06,320 --> 00:04:09,200 Speaker 1: going to have to go back and some significant percentage 73 00:04:09,200 --> 00:04:11,520 Speaker 1: of their constituency is going to say, how could you 74 00:04:11,560 --> 00:04:14,480 Speaker 1: be okay with what happened on January six? That all 75 00:04:14,680 --> 00:04:18,520 Speaker 1: ramp of the constitutional procedural question will enable those senators 76 00:04:18,560 --> 00:04:22,039 Speaker 1: to say, no, no, no, I was not okay with that. However, 77 00:04:22,320 --> 00:04:25,159 Speaker 1: I believe that it's unconstitutional to try a former official. 78 00:04:25,160 --> 00:04:27,920 Speaker 1: I really doubt many of them actually believe that. By 79 00:04:28,000 --> 00:04:29,720 Speaker 1: the way, I mean, how could it be that a 80 00:04:29,760 --> 00:04:32,000 Speaker 1: president could do anything he wants in those last few 81 00:04:32,040 --> 00:04:36,159 Speaker 1: days or weeks and have zero consequence. I suspect if 82 00:04:36,160 --> 00:04:39,440 Speaker 1: the party affiliations were flipped here, as often happens in impeachment, 83 00:04:39,520 --> 00:04:42,240 Speaker 1: and the positions of not just the Republicans, but potentially 84 00:04:42,240 --> 00:04:45,120 Speaker 1: Democrats as well would be flipped as well. A lot 85 00:04:45,160 --> 00:04:47,880 Speaker 1: of legal experts look at one thing the defense did 86 00:04:47,960 --> 00:04:50,479 Speaker 1: and say this is a bad move, and that is 87 00:04:50,560 --> 00:04:54,600 Speaker 1: that Trump denies the allegation that his claims that he 88 00:04:54,680 --> 00:04:57,880 Speaker 1: won the election were false, so they don't make an 89 00:04:57,880 --> 00:05:03,919 Speaker 1: outright argument that the action was stolen. But that inference 90 00:05:04,000 --> 00:05:08,080 Speaker 1: is there if this were a real criminal trial that 91 00:05:08,200 --> 00:05:10,640 Speaker 1: might distract a jury. What is it going to have 92 00:05:10,680 --> 00:05:14,000 Speaker 1: any effect on these senators? You're exactly right that in 93 00:05:14,040 --> 00:05:18,280 Speaker 1: a real trial, like criminal trial, that defense would be irrelevant. 94 00:05:18,440 --> 00:05:21,479 Speaker 1: It doesn't matter if the election was stolen or not. 95 00:05:21,680 --> 00:05:24,279 Speaker 1: It was not, but even if it was, it does 96 00:05:24,320 --> 00:05:26,880 Speaker 1: not permit you to go inside a riot or engage 97 00:05:26,880 --> 00:05:30,599 Speaker 1: another criminality. So it would probably, I believe, be excluded. 98 00:05:30,640 --> 00:05:32,159 Speaker 1: I think a judge would keep it out of a 99 00:05:32,200 --> 00:05:34,680 Speaker 1: criminal trial. I also don't think it's going to help 100 00:05:34,720 --> 00:05:38,560 Speaker 1: in terms of persuading or allowing senators the political cover 101 00:05:38,680 --> 00:05:41,240 Speaker 1: to vote not guilty. I suspect the reason those lawyers 102 00:05:41,279 --> 00:05:43,839 Speaker 1: kept it in there is sort of as a concession 103 00:05:43,880 --> 00:05:46,960 Speaker 1: to their very difficult client, Donald Trump. I mean the 104 00:05:47,000 --> 00:05:50,040 Speaker 1: reporting is the reason Trump's first legal team all resigned, 105 00:05:50,040 --> 00:05:52,240 Speaker 1: several of them, by the way, where dj Department of 106 00:05:52,279 --> 00:05:55,160 Speaker 1: Justice alums, one of whom was an ethics expert, is 107 00:05:55,200 --> 00:05:57,279 Speaker 1: because they refused to make that argument or even to 108 00:05:57,680 --> 00:06:00,200 Speaker 1: hedge it the way his new lawyers did. And so 109 00:06:00,240 --> 00:06:02,640 Speaker 1: I think his new lawyers came in and they've tried 110 00:06:02,680 --> 00:06:04,440 Speaker 1: to be lawyerly about it and have a lot of 111 00:06:04,440 --> 00:06:07,360 Speaker 1: double in trical negatives and said, you can't not disprove this, 112 00:06:07,800 --> 00:06:10,360 Speaker 1: therefore we deny it. But I think it's an irresponsible 113 00:06:10,440 --> 00:06:12,679 Speaker 1: argument to make, and I think it will hurt Donald 114 00:06:12,720 --> 00:06:15,200 Speaker 1: Trump's cause if they make it really on the floor 115 00:06:15,240 --> 00:06:17,680 Speaker 1: of the Senate. What's your take on the First Amendment 116 00:06:17,800 --> 00:06:21,840 Speaker 1: argument is a persuasive at all? I think it's misplaced. Again, 117 00:06:21,880 --> 00:06:24,120 Speaker 1: it may sound good, it may give some political cover 118 00:06:24,400 --> 00:06:26,919 Speaker 1: to some of the senators who intend to vote not guilty. 119 00:06:26,960 --> 00:06:29,520 Speaker 1: But the first thing that's so important to understand, the 120 00:06:29,520 --> 00:06:31,960 Speaker 1: First Amendment can be a defense in a criminal case. 121 00:06:31,960 --> 00:06:34,920 Speaker 1: But we're not in the criminal world here. This is impeachment. 122 00:06:34,960 --> 00:06:37,960 Speaker 1: And John Berman, who's the CNN anchor, I think, made 123 00:06:37,960 --> 00:06:39,840 Speaker 1: the exact right point this morning. I have to give 124 00:06:39,880 --> 00:06:42,640 Speaker 1: him credit because I'm gonna steal it perbade him. He said, 125 00:06:43,040 --> 00:06:45,640 Speaker 1: if a president stood up and said, I hereby a 126 00:06:45,760 --> 00:06:48,360 Speaker 1: spouse the Nazi Party, I am a member of the 127 00:06:48,440 --> 00:06:51,440 Speaker 1: Nazi Party and I believe in all of their beliefs 128 00:06:51,440 --> 00:06:54,479 Speaker 1: and thought systems, Well, guess what not a crime to 129 00:06:54,560 --> 00:06:58,200 Speaker 1: do that? Protected by the First Amendment as well. However, 130 00:06:58,560 --> 00:07:02,359 Speaker 1: impeachable you It would have to be impeachable. So the 131 00:07:02,400 --> 00:07:05,880 Speaker 1: First Amendment is not really applicable to impeachment. If you 132 00:07:05,880 --> 00:07:08,359 Speaker 1: think about it that way, there could be statements that 133 00:07:08,400 --> 00:07:11,120 Speaker 1: are First Amendment protected that you could not be prosecuted for, 134 00:07:11,240 --> 00:07:14,560 Speaker 1: but that are absolutely impeachable. Now look, it gives them 135 00:07:14,560 --> 00:07:18,040 Speaker 1: a framework, though, to wrap themselves in the Constitution. If 136 00:07:18,080 --> 00:07:21,440 Speaker 1: this was a criminal case, they could absolutely defend him 137 00:07:21,440 --> 00:07:24,080 Speaker 1: by saying this his First Amendment protected speech. And I 138 00:07:24,080 --> 00:07:26,240 Speaker 1: think the better argument is that it's not. The First 139 00:07:26,280 --> 00:07:29,400 Speaker 1: Amendment does not blanket protect all speech. You'll hear people 140 00:07:29,440 --> 00:07:31,800 Speaker 1: out there saying, but Brandenburg, but Brandenburg. Is this old 141 00:07:31,840 --> 00:07:34,880 Speaker 1: Supreme Court decision from over fifty years ago. But that 142 00:07:34,920 --> 00:07:37,680 Speaker 1: decision does not say you can say anything you want, 143 00:07:37,720 --> 00:07:40,160 Speaker 1: and it's never a prime. That decision says you can 144 00:07:40,160 --> 00:07:43,600 Speaker 1: say a lot, but you cannot directly intend or say 145 00:07:43,600 --> 00:07:48,120 Speaker 1: something that has a natural effect of imminently causing violent 146 00:07:48,200 --> 00:07:50,400 Speaker 1: or criminal action. And I think there's an argument that 147 00:07:50,480 --> 00:07:53,240 Speaker 1: his speech here across that line. You mentioned that this 148 00:07:53,360 --> 00:07:57,880 Speaker 1: defense brief is not as well formed and there are typos. 149 00:07:58,000 --> 00:08:00,400 Speaker 1: People have made a lot of the fact that on 150 00:08:00,440 --> 00:08:03,840 Speaker 1: the first page United States Senate there's a typo there, 151 00:08:04,400 --> 00:08:07,560 Speaker 1: which it's hard to understand in these days of autocorrect. 152 00:08:07,600 --> 00:08:12,320 Speaker 1: But does that indicate anything about the trial team itself 153 00:08:12,560 --> 00:08:15,480 Speaker 1: or does that just indicate that they had to put 154 00:08:15,480 --> 00:08:18,240 Speaker 1: this together pretty fast. I do think it says something 155 00:08:18,240 --> 00:08:20,600 Speaker 1: about the child team. I will make a little bit 156 00:08:20,640 --> 00:08:22,440 Speaker 1: of an excuse from the funny thing is that the 157 00:08:22,800 --> 00:08:25,880 Speaker 1: scariest typos are the ones that auto correct would not catch. 158 00:08:26,360 --> 00:08:28,720 Speaker 1: What they did was instead of United States, there are 159 00:08:28,840 --> 00:08:31,320 Speaker 1: United States U, N I T E. S. But selcheck 160 00:08:31,360 --> 00:08:33,840 Speaker 1: would not catch that because unites is a word, So 161 00:08:34,240 --> 00:08:36,880 Speaker 1: we don't worry about that, right. But no, Look, I 162 00:08:36,880 --> 00:08:40,079 Speaker 1: think it was a sloppy enough product, and I think 163 00:08:40,120 --> 00:08:43,040 Speaker 1: it was a product that showed so little fought and 164 00:08:43,160 --> 00:08:46,319 Speaker 1: consistency that it looks I've seen it worse. I'm not 165 00:08:46,360 --> 00:08:48,560 Speaker 1: gonna say it's it's the worst filing I've ever seen, 166 00:08:48,559 --> 00:08:51,320 Speaker 1: but it's shoddy and it's not at the level that 167 00:08:51,640 --> 00:08:54,679 Speaker 1: a true top shelf attorney, even with just forty eight 168 00:08:54,720 --> 00:08:57,079 Speaker 1: hours you would put something together. Even if you wanted 169 00:08:57,120 --> 00:09:00,800 Speaker 1: your brief to be very brief, very concise, very summary 170 00:09:00,920 --> 00:09:03,040 Speaker 1: in nature, I think you would still do it in 171 00:09:03,040 --> 00:09:06,559 Speaker 1: a way that was more convincing, more coherent, and better structure. 172 00:09:06,600 --> 00:09:10,400 Speaker 1: Their structure is bizarre. They break out these different number 173 00:09:10,440 --> 00:09:13,400 Speaker 1: of accusations that are tied to nothing in the articles 174 00:09:13,400 --> 00:09:16,240 Speaker 1: of impeachment, and then they sort of very formalistically, we 175 00:09:16,600 --> 00:09:21,040 Speaker 1: hereby and whereun to deny and admit this. It's a confusing, 176 00:09:21,520 --> 00:09:25,760 Speaker 1: messy document and it doesn't bode well for how straightforward 177 00:09:25,840 --> 00:09:30,160 Speaker 1: and digestible their presentations will be next week. We understand 178 00:09:30,280 --> 00:09:35,400 Speaker 1: that the house managers have compiled footage of what happened 179 00:09:35,559 --> 00:09:38,840 Speaker 1: his speech, the reactions in the crowd. As you mentioned 180 00:09:38,920 --> 00:09:43,679 Speaker 1: that compilation that was put together by just Security, do 181 00:09:43,720 --> 00:09:47,360 Speaker 1: you think that that is really effective in this kind 182 00:09:47,400 --> 00:09:50,520 Speaker 1: of a setting. Not only do I think it's effective, 183 00:09:50,520 --> 00:09:52,800 Speaker 1: I think it's the most effective thing they can do. 184 00:09:53,000 --> 00:09:56,120 Speaker 1: I mean, look, their task to have some impeachment managers 185 00:09:56,200 --> 00:09:58,040 Speaker 1: is going to be to remind people and to to 186 00:09:58,160 --> 00:10:00,520 Speaker 1: really hit him in the gut, as we would say, 187 00:10:00,600 --> 00:10:05,040 Speaker 1: to appeal viscerally to just how bad, scary and dangerous 188 00:10:05,120 --> 00:10:07,559 Speaker 1: this was. And the reality is that I think we're 189 00:10:07,559 --> 00:10:10,559 Speaker 1: all experiencing human memory is remarkably short. Here we are 190 00:10:11,040 --> 00:10:13,160 Speaker 1: three and change weeks out from the event, and it's 191 00:10:13,200 --> 00:10:16,680 Speaker 1: already receding a little bit in terms of just how 192 00:10:16,720 --> 00:10:20,800 Speaker 1: immediate and dangerous itself. And to me, it's much more 193 00:10:21,360 --> 00:10:24,439 Speaker 1: resonant to show a video what was happening inside the 194 00:10:24,480 --> 00:10:27,640 Speaker 1: capital than to have some member of Congress, state an 195 00:10:27,640 --> 00:10:31,400 Speaker 1: elect turn make an impassioned twenty minute speech, show me 196 00:10:31,440 --> 00:10:34,520 Speaker 1: a two minute video any day over that, And I 197 00:10:34,559 --> 00:10:37,240 Speaker 1: think they need to really make their case, hit quickly 198 00:10:37,280 --> 00:10:40,480 Speaker 1: and hit hard, and I think those videos are the 199 00:10:40,520 --> 00:10:44,000 Speaker 1: best way to do that. The last trial, we had 200 00:10:44,000 --> 00:10:47,640 Speaker 1: the Republicans in charge of the Senate. This trial, the 201 00:10:47,679 --> 00:10:50,800 Speaker 1: Democrats are in charge, so they're going to be able 202 00:10:50,880 --> 00:10:54,400 Speaker 1: to decide what the trial is going to be like, 203 00:10:54,760 --> 00:10:58,760 Speaker 1: do you think that they should call witnesses. Yeah, that's 204 00:10:58,760 --> 00:11:01,200 Speaker 1: a that's an important difference doing last year and this year. 205 00:11:02,200 --> 00:11:05,880 Speaker 1: The trick with calling witnesses is is keeping it from 206 00:11:05,880 --> 00:11:09,600 Speaker 1: spiraling into a never ending proceeding. I mean, there's dozen 207 00:11:09,760 --> 00:11:12,199 Speaker 1: hundreds of people who witnessed what happened in the capital. 208 00:11:12,679 --> 00:11:14,480 Speaker 1: If you are going to call witnesses, I think you 209 00:11:14,559 --> 00:11:17,040 Speaker 1: probably should, but you need to be very careful and selective. 210 00:11:17,200 --> 00:11:21,800 Speaker 1: There's also a risk of appearing emotionally exploitative, right. I mean, look, 211 00:11:21,800 --> 00:11:23,920 Speaker 1: you want to drive home the horrors of what happened. 212 00:11:23,960 --> 00:11:27,280 Speaker 1: You want to focus attention on Officer Brian Sicknik, who 213 00:11:27,320 --> 00:11:30,320 Speaker 1: was murderer inside that building. But there also is a 214 00:11:30,360 --> 00:11:34,360 Speaker 1: way to overdo it and look like you're being not 215 00:11:34,480 --> 00:11:39,120 Speaker 1: fully respectful to the people who suffered. Um. So, for example, 216 00:11:39,120 --> 00:11:41,800 Speaker 1: if they call his grieving family members, I don't know 217 00:11:42,160 --> 00:11:44,839 Speaker 1: that maybe a little bit much, but I think you 218 00:11:44,880 --> 00:11:47,480 Speaker 1: want to call some basic witnesses to to explain what 219 00:11:47,600 --> 00:11:50,880 Speaker 1: happened on that day, perhaps some congressional staffers who can 220 00:11:50,920 --> 00:11:53,400 Speaker 1: really bring it to light. Um, I think you should. 221 00:11:53,440 --> 00:11:55,720 Speaker 1: They should consider calling people who can testify about Donald 222 00:11:55,760 --> 00:11:58,400 Speaker 1: Trump's state of mind that day, people who were with 223 00:11:58,679 --> 00:12:01,600 Speaker 1: or speaking with a privy to how he was reacting 224 00:12:01,760 --> 00:12:04,839 Speaker 1: to what was going on. So I think the trick 225 00:12:04,960 --> 00:12:07,600 Speaker 1: is is sort of calibrating your case and calling a 226 00:12:07,600 --> 00:12:10,080 Speaker 1: handful of witnesses, but not turning it into a saga. 227 00:12:10,120 --> 00:12:13,000 Speaker 1: I mean, in the Bill Clinton case, the negotiated agreement, 228 00:12:13,040 --> 00:12:16,319 Speaker 1: what they called three I think three or four witnesses total, 229 00:12:16,480 --> 00:12:18,840 Speaker 1: So you know, maybe a few more than that, But 230 00:12:18,880 --> 00:12:21,000 Speaker 1: you don't want to get into dozens of witnesses here. 231 00:12:21,320 --> 00:12:23,600 Speaker 1: What about one of the rioters. There's been a lot 232 00:12:23,640 --> 00:12:27,520 Speaker 1: of press that Jacob Chesney, you know, the so called 233 00:12:27,600 --> 00:12:31,440 Speaker 1: q and On Shaman, is willing to testify. I would 234 00:12:31,520 --> 00:12:33,400 Speaker 1: not do that at all if I was in charge 235 00:12:33,400 --> 00:12:34,800 Speaker 1: of putting this case on. First of all, if you 236 00:12:34,840 --> 00:12:37,840 Speaker 1: call a witness, you sort of own that person and 237 00:12:38,320 --> 00:12:41,040 Speaker 1: that becomes your witness, like it or not. Second of all, 238 00:12:41,120 --> 00:12:44,080 Speaker 1: it would become a circus to call some of these folks. Third, 239 00:12:44,160 --> 00:12:46,559 Speaker 1: you have what you need from them, You can do 240 00:12:46,640 --> 00:12:49,040 Speaker 1: that without cauling them into the well of the Senate 241 00:12:49,200 --> 00:12:51,400 Speaker 1: by playing the many videos that are out there, if 242 00:12:51,400 --> 00:12:54,360 Speaker 1: people saying fight for Trump, or if by even using 243 00:12:54,559 --> 00:12:57,240 Speaker 1: the statements that their lawyers have made, or the legal 244 00:12:57,320 --> 00:12:59,880 Speaker 1: filings that they're that their lawyers have put in saying 245 00:13:00,040 --> 00:13:03,320 Speaker 1: my client did this because he or she believed Donald 246 00:13:03,320 --> 00:13:05,480 Speaker 1: Trump asked him to or called on him to do it. 247 00:13:05,640 --> 00:13:07,760 Speaker 1: That's good enough. That makes the point, and that keeps 248 00:13:07,760 --> 00:13:11,520 Speaker 1: it from becoming assert Now, one of the defense attorneys 249 00:13:11,559 --> 00:13:15,240 Speaker 1: has said that at least some of the supporters planned 250 00:13:15,360 --> 00:13:20,719 Speaker 1: their attack in advance. If they can prove that, does 251 00:13:20,760 --> 00:13:24,480 Speaker 1: that help their case. I don't see how it does, 252 00:13:24,800 --> 00:13:28,559 Speaker 1: because the argument is not that Donald Trump just just 253 00:13:28,800 --> 00:13:32,319 Speaker 1: you know, dropped in out of nowhere on January six, um. 254 00:13:32,559 --> 00:13:35,280 Speaker 1: The argument that the inficial managers are making is this 255 00:13:35,360 --> 00:13:37,880 Speaker 1: was several weeks in the making. And so if there's 256 00:13:37,920 --> 00:13:42,200 Speaker 1: evidence that some of these people who rioted were planning 257 00:13:42,240 --> 00:13:45,920 Speaker 1: in late December or mid December or January three, you go, 258 00:13:46,040 --> 00:13:48,080 Speaker 1: of course they were, because this is what Donald Trump 259 00:13:48,160 --> 00:13:51,120 Speaker 1: and his people were working on inciting for weeks. And 260 00:13:51,160 --> 00:13:53,880 Speaker 1: by the way, even if there was pre planning that 261 00:13:53,960 --> 00:13:55,920 Speaker 1: had nothing to do with Donald Trump, you're still not 262 00:13:56,040 --> 00:13:58,360 Speaker 1: allowed to go in and sort of set off that 263 00:13:58,440 --> 00:14:02,360 Speaker 1: power powder keag. So I don't see that being as 264 00:14:02,480 --> 00:14:04,840 Speaker 1: quite as persuasive a point as I think some of 265 00:14:04,880 --> 00:14:08,160 Speaker 1: these defenders of Donald Trump and UM and others seem 266 00:14:08,200 --> 00:14:12,920 Speaker 1: to think so. Now it seems almost a foregone conclusion 267 00:14:12,960 --> 00:14:15,240 Speaker 1: that they will not be able to get the number 268 00:14:15,280 --> 00:14:19,280 Speaker 1: of Republican Senators they need to convict. But what would 269 00:14:19,320 --> 00:14:23,840 Speaker 1: you say is the best move they could make to 270 00:14:23,960 --> 00:14:29,920 Speaker 1: convince some of those reluctant senators to convict. Yeah, I 271 00:14:29,920 --> 00:14:33,560 Speaker 1: still think it's it's more possible than many think that 272 00:14:33,560 --> 00:14:36,240 Speaker 1: that they do get seventeen Republicans to join with all 273 00:14:36,280 --> 00:14:39,360 Speaker 1: fifty Democrats and convicted. I think enough of them, even 274 00:14:39,360 --> 00:14:42,040 Speaker 1: those who voted the forty five who voted last week 275 00:14:42,080 --> 00:14:44,640 Speaker 1: on Senator Rampaul's motion, several of them have come forward 276 00:14:44,640 --> 00:14:47,160 Speaker 1: publicly and made clear they said, my vote there was 277 00:14:47,200 --> 00:14:49,560 Speaker 1: to hear the constitutional issue and debate it. But that 278 00:14:49,640 --> 00:14:51,760 Speaker 1: does not mean I'm committed to vote one way or 279 00:14:51,760 --> 00:14:55,080 Speaker 1: another on the ultimate guilt or non guilt of Donald Trump. 280 00:14:55,120 --> 00:14:57,640 Speaker 1: John Thune said that, Rob Portman said that, and I 281 00:14:57,640 --> 00:14:59,760 Speaker 1: think others are in the same same point of view. 282 00:15:00,080 --> 00:15:02,520 Speaker 1: I think the best thing that the impeachment managers can 283 00:15:02,560 --> 00:15:06,080 Speaker 1: do is appeal not even directly to the senators, but 284 00:15:06,320 --> 00:15:09,000 Speaker 1: to the American public, Because do I think there are 285 00:15:09,000 --> 00:15:11,760 Speaker 1: senators on the fence who can be persuaded by just 286 00:15:12,200 --> 00:15:15,040 Speaker 1: the force of the evidence in the chamber. I don't know, 287 00:15:15,160 --> 00:15:18,080 Speaker 1: maybe maybe a few, maybe only at the margins. But 288 00:15:18,600 --> 00:15:22,880 Speaker 1: if those senators start hearing receiving blots of emails or 289 00:15:22,880 --> 00:15:26,000 Speaker 1: tweets from their constituents, or start seeing public opinion polling 290 00:15:26,320 --> 00:15:29,680 Speaker 1: showing that X percentage of their constituents are in favor 291 00:15:29,720 --> 00:15:33,000 Speaker 1: of an of a conviction, that I think can move 292 00:15:33,040 --> 00:15:38,760 Speaker 1: the needle on the most number of Republican or Democratic senators. 293 00:15:38,760 --> 00:15:41,400 Speaker 1: So if I'm the impeatiment managers, I'm trying to really 294 00:15:42,000 --> 00:15:45,400 Speaker 1: aim my case at the American public, and, like I 295 00:15:45,400 --> 00:15:47,080 Speaker 1: said before, to to hit him in the gut and 296 00:15:47,120 --> 00:15:48,960 Speaker 1: to be really visceral in the way I do this. 297 00:15:49,360 --> 00:15:54,440 Speaker 1: Thanks Ellie. That's former federal prosecutor Ellie Honig. A case 298 00:15:54,480 --> 00:15:57,560 Speaker 1: involving Donald Trump's use of his personal Twitter account for 299 00:15:57,600 --> 00:16:01,000 Speaker 1: official business is now pending before the Supreme Court. It 300 00:16:01,080 --> 00:16:03,560 Speaker 1: revolves around a ruling from the Second Circuit Court of 301 00:16:03,600 --> 00:16:06,880 Speaker 1: Appeals that found Trump's use of the at real Donald 302 00:16:06,880 --> 00:16:10,880 Speaker 1: Trump platform for official business created a public forum entitled 303 00:16:10,880 --> 00:16:14,000 Speaker 1: to first amend the Protection and that Trump violated the 304 00:16:14,040 --> 00:16:17,560 Speaker 1: Constitution when he blocked followers who were critical of him. 305 00:16:17,600 --> 00:16:20,000 Speaker 1: The Justice Department and the Twitter uses who sued the 306 00:16:20,040 --> 00:16:23,240 Speaker 1: president agree the case is now moot since Trump is 307 00:16:23,280 --> 00:16:26,680 Speaker 1: out of office and has been banned from social media platforms. 308 00:16:26,720 --> 00:16:29,120 Speaker 1: But how to get rid of it? The case presents 309 00:16:29,160 --> 00:16:33,080 Speaker 1: the Justice is with a doctrinal puzzle. Joining me is 310 00:16:33,160 --> 00:16:37,200 Speaker 1: Robin Efron, a professor at Brooklyn Law School. So start 311 00:16:37,320 --> 00:16:41,680 Speaker 1: by just telling us briefly about the ruling by the 312 00:16:41,760 --> 00:16:45,200 Speaker 1: Second Circuit. So the Second Circuit had to rule on 313 00:16:45,280 --> 00:16:49,080 Speaker 1: this issue of whether or not Trump, when he was 314 00:16:49,120 --> 00:16:54,280 Speaker 1: tweeting in his capacity as president, was allowed to block 315 00:16:54,640 --> 00:16:58,080 Speaker 1: people on Twitter, right the way that you can block 316 00:16:58,160 --> 00:17:00,680 Speaker 1: people if you're just an ordinary Twitter user and you 317 00:17:00,680 --> 00:17:03,560 Speaker 1: want to block people from your account. Either was a 318 00:17:03,680 --> 00:17:07,159 Speaker 1: question of whether or not Trumps, who was using his 319 00:17:07,240 --> 00:17:10,000 Speaker 1: Twitter account, you know, at real Donald Trump as president, 320 00:17:10,000 --> 00:17:13,800 Speaker 1: whether he could block people. And the Second Circuit said no, 321 00:17:14,160 --> 00:17:17,560 Speaker 1: he couldn't that the you know, Twitter was essentially a 322 00:17:17,640 --> 00:17:22,240 Speaker 1: public forum in that capacity, and so there were First 323 00:17:22,240 --> 00:17:26,679 Speaker 1: Amendment implications in Trump blocking people from Twitter when he 324 00:17:26,760 --> 00:17:29,200 Speaker 1: was tweeting under that account. So that was the Second 325 00:17:29,240 --> 00:17:33,600 Speaker 1: Circuit ruling um and of course things changed very quickly, 326 00:17:34,080 --> 00:17:37,520 Speaker 1: both with regard to Donald Trump and Twitter, and then 327 00:17:37,600 --> 00:17:40,840 Speaker 1: of course Donald Trump and his position as president of 328 00:17:40,880 --> 00:17:45,240 Speaker 1: the United States. So an average person would say, Okay, 329 00:17:45,440 --> 00:17:49,000 Speaker 1: this isn't a controversy anymore, you know, just dismiss it. 330 00:17:49,160 --> 00:17:53,600 Speaker 1: What's the problem. Well, the problem is that, you know, 331 00:17:53,640 --> 00:17:58,560 Speaker 1: the courts are there serving two purposes. So one and 332 00:17:58,640 --> 00:18:02,160 Speaker 1: this is the primary purpose of the courts, and one 333 00:18:02,440 --> 00:18:06,720 Speaker 1: that the courts take quite seriously under the Constitution, that 334 00:18:07,000 --> 00:18:11,400 Speaker 1: is your role in resolving live controversy. So if there 335 00:18:11,480 --> 00:18:15,159 Speaker 1: is an actual dispute between parties, courts are there to 336 00:18:15,440 --> 00:18:19,439 Speaker 1: resolve that. They're there to give an answer right, who 337 00:18:19,560 --> 00:18:23,320 Speaker 1: is right, who is wrong, who is liable, who is responsible? 338 00:18:23,920 --> 00:18:26,280 Speaker 1: And then you know it's part of that courts are 339 00:18:26,320 --> 00:18:29,840 Speaker 1: there to make sure that the party who is not 340 00:18:30,000 --> 00:18:33,920 Speaker 1: at fault yet a remedy. So the remedies that parties 341 00:18:34,000 --> 00:18:39,320 Speaker 1: asked for are usually money, which is damages. For an 342 00:18:39,320 --> 00:18:42,720 Speaker 1: equitable remedy, you know, an equitable remedy would be something 343 00:18:42,760 --> 00:18:46,000 Speaker 1: like an injunction in which a court tells the party, no, 344 00:18:46,320 --> 00:18:48,960 Speaker 1: you can't do that anymore. Right, So here it would 345 00:18:48,960 --> 00:18:52,399 Speaker 1: be saying no, Donald Trump as president, who can't block 346 00:18:52,480 --> 00:18:55,600 Speaker 1: people on Twitter anymore. That's one rule of the court, 347 00:18:55,680 --> 00:18:58,879 Speaker 1: so that they're there to dissolve, to resolve live controversies. 348 00:18:59,359 --> 00:19:02,359 Speaker 1: You know. The the role of the court, which is 349 00:19:03,240 --> 00:19:06,800 Speaker 1: sort of secondary to that, is that they are there 350 00:19:06,840 --> 00:19:10,439 Speaker 1: to make pronouncements on the law. Right, So when it 351 00:19:10,480 --> 00:19:14,080 Speaker 1: comes to things like common law or interpretation of the 352 00:19:14,119 --> 00:19:18,240 Speaker 1: Constitution or statute, courts are there not just to sort 353 00:19:18,280 --> 00:19:21,320 Speaker 1: of issue a decision and say what the remedy is. 354 00:19:21,600 --> 00:19:24,879 Speaker 1: But there's a reason that they write opinions because those 355 00:19:24,920 --> 00:19:27,480 Speaker 1: opinions are then going to form the basis of the 356 00:19:27,560 --> 00:19:30,840 Speaker 1: law going forward. And so one of the things that 357 00:19:30,880 --> 00:19:33,840 Speaker 1: we rely on courts to do is to provide reasoning 358 00:19:33,920 --> 00:19:37,880 Speaker 1: for their decisions that the decision itself and the reasoning 359 00:19:37,920 --> 00:19:41,200 Speaker 1: will form the basis for what other courts do going forward. 360 00:19:41,840 --> 00:19:45,639 Speaker 1: So the Second Circuit is an appellate court. It's the 361 00:19:45,720 --> 00:19:48,840 Speaker 1: federal court that here's appeals that come out of the 362 00:19:48,840 --> 00:19:53,440 Speaker 1: federal courts in New York, Connecticut, Vermont, and so anything 363 00:19:53,640 --> 00:19:56,760 Speaker 1: that the Second Circuit says is going to be binding 364 00:19:57,119 --> 00:20:02,640 Speaker 1: on federal courts hearing decision and in federal district courts 365 00:20:02,640 --> 00:20:04,879 Speaker 1: coming out of those states. And it's also going to 366 00:20:04,960 --> 00:20:08,200 Speaker 1: be considered persuasive authority to other courts, right, so the 367 00:20:08,280 --> 00:20:11,000 Speaker 1: state courts that might be hearing these questions, or to 368 00:20:11,320 --> 00:20:14,280 Speaker 1: other federal courts. And as it turns out, you know, 369 00:20:14,400 --> 00:20:17,480 Speaker 1: all the federal courts of the skills are equal, they're 370 00:20:17,480 --> 00:20:21,440 Speaker 1: all very important, but there are some circuits that are 371 00:20:21,480 --> 00:20:26,200 Speaker 1: considered particularly influential. So the Second Circuit is one of them. 372 00:20:26,520 --> 00:20:29,400 Speaker 1: You know, an opinion coming out of the Second Circuit 373 00:20:30,000 --> 00:20:33,360 Speaker 1: is going to carry a lot of weights. So one 374 00:20:33,400 --> 00:20:35,360 Speaker 1: of the things that's going on here is that when 375 00:20:35,359 --> 00:20:39,080 Speaker 1: a court is issuing an opinion, it is resolving a 376 00:20:39,119 --> 00:20:42,080 Speaker 1: lot of controversy, but it's also laying the groundwork for 377 00:20:42,160 --> 00:20:45,120 Speaker 1: what is going to go forward. But it's not binding 378 00:20:45,240 --> 00:20:48,000 Speaker 1: on the whole country. Other courts that are outside of 379 00:20:48,040 --> 00:20:51,960 Speaker 1: that jurisdiction are free to come to their own conclusions. 380 00:20:51,960 --> 00:20:55,160 Speaker 1: But every time you have a federal Court of Appeals 381 00:20:55,200 --> 00:20:59,240 Speaker 1: issuing a decision and giving its reasoning, that really sets 382 00:20:59,240 --> 00:21:01,960 Speaker 1: the path for how other courts are going to look 383 00:21:01,960 --> 00:21:04,720 Speaker 1: at things and act upon things. And certainly it's going 384 00:21:04,760 --> 00:21:09,120 Speaker 1: to be binding precedent for everything within that court's jurisdiction 385 00:21:09,280 --> 00:21:12,840 Speaker 1: until another court comes along and comes to a different decision. 386 00:21:14,720 --> 00:21:19,080 Speaker 1: So then why not just leave the Second Circuit's decision 387 00:21:19,240 --> 00:21:22,359 Speaker 1: as is, because you don't know how the Supreme Court 388 00:21:22,520 --> 00:21:26,360 Speaker 1: would have ruled on the issue and pretend that there 389 00:21:26,480 --> 00:21:29,479 Speaker 1: was no appeal, you know. I think the thing that 390 00:21:29,760 --> 00:21:32,760 Speaker 1: is important to keep in mind is that even if 391 00:21:32,800 --> 00:21:36,440 Speaker 1: we wipe away sort of all of the controversy around 392 00:21:36,520 --> 00:21:40,399 Speaker 1: this particular case and how politically heated it is, the 393 00:21:40,520 --> 00:21:45,959 Speaker 1: US Supreme Court is a court of very limited jurisdiction, right, 394 00:21:46,200 --> 00:21:50,359 Speaker 1: and they hear very few cases per year. So for 395 00:21:50,600 --> 00:21:55,359 Speaker 1: most cases in the United States, they end well before 396 00:21:55,400 --> 00:21:57,840 Speaker 1: the Supreme Court, right. So we can think even of 397 00:21:57,960 --> 00:22:00,919 Speaker 1: state courts where the states the Preme Court is the 398 00:22:01,000 --> 00:22:04,280 Speaker 1: highest authority in that state. A lot of those decisions 399 00:22:04,280 --> 00:22:06,639 Speaker 1: of state law couldn't even go to the U. S. 400 00:22:06,640 --> 00:22:10,480 Speaker 1: Supreme Court if people wanted them to. Now in federal court. 401 00:22:10,880 --> 00:22:15,359 Speaker 1: Even though someone who has an adverse ruling in a 402 00:22:15,440 --> 00:22:18,520 Speaker 1: court of appeals, meaning you know, they a law that 403 00:22:18,680 --> 00:22:22,480 Speaker 1: they can petition the Supreme Court to hear their case, 404 00:22:23,240 --> 00:22:27,879 Speaker 1: that the vast majority of these cases are not heard 405 00:22:27,920 --> 00:22:31,840 Speaker 1: by the Supreme Court. So for most litigants, their path 406 00:22:32,240 --> 00:22:35,800 Speaker 1: ends in the Court of Appeals. And so that's the 407 00:22:36,000 --> 00:22:40,479 Speaker 1: ordinary state of affairs, right, is that people, you know, 408 00:22:40,560 --> 00:22:43,119 Speaker 1: either just sort of access the decision of the Circuit 409 00:22:43,200 --> 00:22:45,720 Speaker 1: court and then that's the end that becomes the binding 410 00:22:45,840 --> 00:22:50,119 Speaker 1: judgment for those parties and it becomes binding precedent within 411 00:22:50,160 --> 00:22:53,280 Speaker 1: that circuit, or they try to go up to the 412 00:22:53,280 --> 00:22:56,760 Speaker 1: Supreme Court and you know, they aren't picked, and the 413 00:22:56,840 --> 00:23:02,000 Speaker 1: judgment below just stands. The problem comes up when the 414 00:23:02,080 --> 00:23:06,280 Speaker 1: Supreme Court has agreed to hear a case. But then 415 00:23:06,320 --> 00:23:10,600 Speaker 1: maybe that case becomes it's not a live controversy anymore. 416 00:23:11,119 --> 00:23:14,840 Speaker 1: So that's when we're in this sort of what if territory. Right, 417 00:23:15,160 --> 00:23:18,720 Speaker 1: maybe we wouldn't have just let that second Circuit opinion 418 00:23:18,800 --> 00:23:23,320 Speaker 1: be um, but the Supreme Court might have decided something else. 419 00:23:23,520 --> 00:23:26,040 Speaker 1: And so in that case, that's where we get this 420 00:23:26,240 --> 00:23:30,119 Speaker 1: month aware doctrine that comes in, which is to say, Okay, 421 00:23:30,160 --> 00:23:33,600 Speaker 1: the Supreme Court is not in a position to actually 422 00:23:33,760 --> 00:23:36,920 Speaker 1: rule on this particular issue because of muteness, right, there's 423 00:23:36,960 --> 00:23:40,560 Speaker 1: no longer a live controversy, and so the Supreme Court, 424 00:23:41,040 --> 00:23:44,439 Speaker 1: as a matter of mutinous and you know, sort of 425 00:23:44,440 --> 00:23:47,320 Speaker 1: part of this larger standing doctrine, they're not going a 426 00:23:47,400 --> 00:23:50,520 Speaker 1: way in on this issue. But then the question is, 427 00:23:50,680 --> 00:23:52,679 Speaker 1: if they're not going to weigh in on this issue, 428 00:23:53,160 --> 00:23:57,200 Speaker 1: do you just sort of pretend like this never happened 429 00:23:57,240 --> 00:23:59,840 Speaker 1: and it was never appealed to the Supreme Court and 430 00:23:59,880 --> 00:24:03,399 Speaker 1: the first place, and that lower court doctrine would just stand. 431 00:24:03,960 --> 00:24:06,320 Speaker 1: Or does the Supreme Court say, you know what, we're 432 00:24:06,320 --> 00:24:08,680 Speaker 1: going to wipe the slate clean. We're going to pretend 433 00:24:08,760 --> 00:24:12,880 Speaker 1: like the second circuit never happened. Either, it's no longer 434 00:24:13,560 --> 00:24:17,080 Speaker 1: alive controversy, and if it comes up again, we'll just 435 00:24:17,160 --> 00:24:20,119 Speaker 1: start all over again. Right, new litigants will get a 436 00:24:20,240 --> 00:24:23,679 Speaker 1: clean slate, they'll start off in the trial court and 437 00:24:23,720 --> 00:24:27,760 Speaker 1: they will keep litigating from there. So how does the 438 00:24:27,800 --> 00:24:33,600 Speaker 1: Supreme Court decide what to do? So the ordinary course 439 00:24:33,640 --> 00:24:37,520 Speaker 1: of affairs would be that the Supreme Court just leave 440 00:24:37,680 --> 00:24:41,920 Speaker 1: things to be right, that what happened below stays now. 441 00:24:42,080 --> 00:24:45,960 Speaker 1: In some cases, the Supreme Court, without making its own decision, 442 00:24:46,160 --> 00:24:49,399 Speaker 1: will vacate the judgment below. Right, that's the idea of 443 00:24:49,600 --> 00:24:53,120 Speaker 1: wiping the slate clean. And so in other contexts, one 444 00:24:53,160 --> 00:24:55,200 Speaker 1: reason that they might do that is that a lot 445 00:24:55,200 --> 00:24:57,760 Speaker 1: of times, for example, the Supreme Court will come out 446 00:24:57,800 --> 00:25:01,439 Speaker 1: with a big ruling that has a change in law 447 00:25:01,760 --> 00:25:04,480 Speaker 1: or a change in the direction and law, and so 448 00:25:04,800 --> 00:25:07,560 Speaker 1: there are lots of follow on cases, as the Supreme 449 00:25:07,600 --> 00:25:10,560 Speaker 1: Court itself doesn't need to sort of hear a new 450 00:25:10,640 --> 00:25:13,080 Speaker 1: every single time. And so what the Supreme Court will 451 00:25:13,119 --> 00:25:16,399 Speaker 1: do is they'll just vacate the lower court judgment that 452 00:25:16,560 --> 00:25:18,639 Speaker 1: keeps goes back to the lower courts, and then the 453 00:25:18,680 --> 00:25:22,120 Speaker 1: lower courts sort of proceed with the new Supreme Court 454 00:25:22,200 --> 00:25:25,600 Speaker 1: doctrine in mind now here, that's not what's going on. 455 00:25:25,760 --> 00:25:29,280 Speaker 1: This is a little bit different, and so the parties 456 00:25:29,400 --> 00:25:32,800 Speaker 1: are asking the Supreme Court to wipe this late clean 457 00:25:32,960 --> 00:25:35,560 Speaker 1: for a different reason, right, not because there's been a 458 00:25:35,640 --> 00:25:39,720 Speaker 1: change in the law, but because there is this question 459 00:25:39,840 --> 00:25:42,359 Speaker 1: of the Supreme Court might have made a change in 460 00:25:42,400 --> 00:25:44,960 Speaker 1: the law, but they didn't quite ever get to making 461 00:25:45,000 --> 00:25:49,720 Speaker 1: the decision because of movements. So since vacator itself is 462 00:25:49,720 --> 00:25:52,520 Speaker 1: a remedy, right, it's the Supreme Court is making an 463 00:25:52,600 --> 00:25:56,400 Speaker 1: active decision to do something which could grant somebody the 464 00:25:56,440 --> 00:26:00,720 Speaker 1: remedy of vacating that lower court judgment, the Supreme Court 465 00:26:00,760 --> 00:26:03,120 Speaker 1: is going to need a reason to do that, right. 466 00:26:03,200 --> 00:26:05,720 Speaker 1: They need to have a good reason, not to just 467 00:26:05,880 --> 00:26:09,040 Speaker 1: believe they see because like I was saying before, the 468 00:26:09,160 --> 00:26:11,920 Speaker 1: ordinary course of affairs is that cases are just done 469 00:26:12,320 --> 00:26:17,639 Speaker 1: after the circuit courts. So what does Supreme Court has said? 470 00:26:18,560 --> 00:26:22,320 Speaker 1: And that if somebody is going to ask for vacater right, 471 00:26:22,359 --> 00:26:26,159 Speaker 1: if they are asking to um sort of white the 472 00:26:26,240 --> 00:26:30,160 Speaker 1: slate clean, then they need to show that they weren't 473 00:26:30,200 --> 00:26:34,120 Speaker 1: responsible for the case being moved. In other words, it's 474 00:26:34,160 --> 00:26:38,080 Speaker 1: the whole reason that the Supreme Court no longer has 475 00:26:38,119 --> 00:26:40,879 Speaker 1: the ability to issue a ruling in this case and 476 00:26:40,920 --> 00:26:43,600 Speaker 1: decide on law. Then you want to make sure that 477 00:26:43,720 --> 00:26:47,720 Speaker 1: the person who's getting the benefit of that vacat didn't 478 00:26:48,359 --> 00:26:51,240 Speaker 1: sort of cause that neuteness to begin with, right, And 479 00:26:51,800 --> 00:26:55,160 Speaker 1: you can see how that would be a little bit inequitable. Right, 480 00:26:55,200 --> 00:26:59,399 Speaker 1: you asked the Supreme Court to intervene, then you yourself 481 00:27:00,119 --> 00:27:03,199 Speaker 1: create the reason for the Supreme Court not to be 482 00:27:03,359 --> 00:27:07,600 Speaker 1: able to make a decision. And then nonetheless, you're asking 483 00:27:08,000 --> 00:27:11,280 Speaker 1: for the benefits of vacating that lower court judgment which 484 00:27:11,359 --> 00:27:15,919 Speaker 1: was adverse against you. So that's this doctrine that the 485 00:27:15,960 --> 00:27:19,960 Speaker 1: Supreme Court isn't going to datate that lower court judgment 486 00:27:19,960 --> 00:27:22,760 Speaker 1: because of muteness. It's the party who's asking for it 487 00:27:22,840 --> 00:27:26,000 Speaker 1: caused the muteness. But then that's how we get these 488 00:27:26,040 --> 00:27:29,080 Speaker 1: other problems, which is the question of what does it 489 00:27:29,160 --> 00:27:32,280 Speaker 1: mean to have caused the movements? Right? How do we 490 00:27:32,400 --> 00:27:36,000 Speaker 1: know that the party who's asking for this remedy is 491 00:27:36,040 --> 00:27:39,800 Speaker 1: in fact responsible for the case being moved? So in 492 00:27:39,840 --> 00:27:43,960 Speaker 1: this case, the election really is causing the muteness And 493 00:27:44,080 --> 00:27:47,520 Speaker 1: also the fact that Twitter has closed Donald Trump's account, 494 00:27:48,080 --> 00:27:51,840 Speaker 1: So who's causing the muteness here? Yeah, this is super 495 00:27:51,920 --> 00:27:54,600 Speaker 1: interesting to me, um, and I think it really is 496 00:27:54,640 --> 00:27:58,600 Speaker 1: important to separate those arguments because there really are there's 497 00:27:58,760 --> 00:28:02,720 Speaker 1: two separate things going on that did not necessarily have 498 00:28:02,840 --> 00:28:06,239 Speaker 1: to be connected at all, that are causing the movements. Right. 499 00:28:06,280 --> 00:28:09,720 Speaker 1: So the whole problem was could Donald Trump in his 500 00:28:10,040 --> 00:28:14,200 Speaker 1: you know, at real Donald Trump account blocked Twitter users? 501 00:28:14,280 --> 00:28:16,840 Speaker 1: So two things had to be true in order for 502 00:28:16,920 --> 00:28:20,760 Speaker 1: this to be alive controversy. One is that Donald Trump 503 00:28:20,880 --> 00:28:23,919 Speaker 1: still needs to be on Twitter. The second is that 504 00:28:23,960 --> 00:28:26,760 Speaker 1: he still needs to be president, right, because that's the 505 00:28:26,880 --> 00:28:29,359 Speaker 1: allegation of what was causing the problem, and that's what 506 00:28:29,520 --> 00:28:33,560 Speaker 1: the Second Circuit ruled on. They ruled on Twitter specifically, 507 00:28:34,000 --> 00:28:38,000 Speaker 1: and Donald Trump became president specifically, and then a very 508 00:28:38,040 --> 00:28:42,320 Speaker 1: short period of time, both of those things changed So 509 00:28:42,600 --> 00:28:47,000 Speaker 1: let's take the Twitter part first. So on the Twitter front, 510 00:28:47,880 --> 00:28:54,200 Speaker 1: he engaged in lots and Twitter activity that was wrapped 511 00:28:54,280 --> 00:29:01,400 Speaker 1: up in rhetoric that people have alleged was really raising 512 00:29:01,440 --> 00:29:06,480 Speaker 1: the temperature in the country, uh, leading to the insurrection 513 00:29:06,680 --> 00:29:11,320 Speaker 1: on January six, and just sort of generally making the 514 00:29:11,480 --> 00:29:16,000 Speaker 1: peaceful transition of how are quite difficult after the election. Right, So, 515 00:29:16,760 --> 00:29:19,880 Speaker 1: you know, from Twitter's point of view, he is just 516 00:29:20,160 --> 00:29:22,800 Speaker 1: a user, and Twitter is a private company, and they 517 00:29:22,800 --> 00:29:25,480 Speaker 1: have terms of service, and you know, their terms of 518 00:29:25,600 --> 00:29:30,160 Speaker 1: service contain all sorts of reasons why they might block 519 00:29:30,440 --> 00:29:34,440 Speaker 1: or suspend uh, your usage of the service through their account, 520 00:29:34,840 --> 00:29:39,479 Speaker 1: and things like uh sort of being mean to people 521 00:29:39,920 --> 00:29:43,960 Speaker 1: spreading this information. Right, all of these things, right, depending 522 00:29:44,160 --> 00:29:47,760 Speaker 1: on how you're going to interpret Twitter's terms of service, 523 00:29:48,280 --> 00:29:50,760 Speaker 1: violate that right. And at the end of the day, 524 00:29:50,920 --> 00:29:55,400 Speaker 1: we're not really arguing here about Twitter's terms of services. Um, 525 00:29:55,440 --> 00:29:58,040 Speaker 1: you know, somebody might argue about that somewhere else, but 526 00:29:58,400 --> 00:30:02,640 Speaker 1: the bottom line is Twitter to sided that he was 527 00:30:03,120 --> 00:30:07,440 Speaker 1: uh sort of causing such significant problems that they were 528 00:30:07,480 --> 00:30:11,480 Speaker 1: going to suspend his account indefinitely. And so what that 529 00:30:11,560 --> 00:30:14,600 Speaker 1: means is, you know, rightly or wrongly, from that sort 530 00:30:14,600 --> 00:30:17,360 Speaker 1: of tech and contract point of view. Donald Trump is 531 00:30:17,400 --> 00:30:20,040 Speaker 1: no longer on Twitter, right, he can't tweet as himself, 532 00:30:20,160 --> 00:30:23,400 Speaker 1: he can't tweet as himself as the president. It's just gone. 533 00:30:23,480 --> 00:30:27,280 Speaker 1: That account is no longer functional. And so that means 534 00:30:27,280 --> 00:30:30,600 Speaker 1: that the question of whether he can block users is right. 535 00:30:30,680 --> 00:30:34,240 Speaker 1: If he himself is not on Twitter tweeting, then he 536 00:30:34,360 --> 00:30:37,680 Speaker 1: can't block people because he's not there. So that is 537 00:30:37,800 --> 00:30:41,280 Speaker 1: one argument about muteness. And so you know, the question 538 00:30:41,280 --> 00:30:44,760 Speaker 1: about whether he caused that is an interesting one. I 539 00:30:44,760 --> 00:30:47,440 Speaker 1: mean then that's where maybe we do have to get 540 00:30:47,480 --> 00:30:50,440 Speaker 1: a little bit more into those questions about you know, 541 00:30:50,920 --> 00:30:55,160 Speaker 1: was Twitter correct in blocking him or suspending him? Right? 542 00:30:55,200 --> 00:30:58,600 Speaker 1: If he was violating their terms of service very quick 543 00:30:58,680 --> 00:31:02,959 Speaker 1: and very clearly, then one might say he is responsible. Right, 544 00:31:03,120 --> 00:31:07,040 Speaker 1: he should know how to use Twitter within its rules 545 00:31:07,040 --> 00:31:10,600 Speaker 1: in terms of service. Um, he didn't do that, and 546 00:31:10,680 --> 00:31:13,800 Speaker 1: so they blocked him, and therefore the fact that he's 547 00:31:13,840 --> 00:31:17,040 Speaker 1: no longer on Twitter is his fault. You know, other 548 00:31:17,160 --> 00:31:21,920 Speaker 1: people might argue differently that Twitter is um sort of 549 00:31:22,160 --> 00:31:24,960 Speaker 1: very capricious in how they apply that. You know, they've 550 00:31:24,960 --> 00:31:28,560 Speaker 1: blocked some people, they don't suspend other people. You know, 551 00:31:28,640 --> 00:31:30,520 Speaker 1: that is what it is, but I think that that 552 00:31:30,720 --> 00:31:35,080 Speaker 1: is possibly the stronger argument for him sort of causing 553 00:31:35,160 --> 00:31:37,960 Speaker 1: his own moveeness. Right, he is responsible for the fact 554 00:31:37,960 --> 00:31:40,640 Speaker 1: that he's no longer on Twitter now, the fact that 555 00:31:40,720 --> 00:31:44,480 Speaker 1: he's no longer president, I think is a really tough 556 00:31:44,720 --> 00:31:47,960 Speaker 1: argument from a public policy point of view. So, you know, 557 00:31:48,000 --> 00:31:50,440 Speaker 1: if you read the filings that the parties has made 558 00:31:50,440 --> 00:31:55,520 Speaker 1: in this case, the Twitter users are basically saying, you know, 559 00:31:55,560 --> 00:31:59,720 Speaker 1: it's ridiculous to say that he's not responsible for no 560 00:32:00,000 --> 00:32:05,360 Speaker 1: longer being president because he ran for reelection. He you know, 561 00:32:05,720 --> 00:32:09,880 Speaker 1: conducted himself during that campaign. He made his argument to 562 00:32:09,960 --> 00:32:14,000 Speaker 1: the American people about whether he should be reelected and 563 00:32:14,160 --> 00:32:17,760 Speaker 1: he lost. Right, he was not successful in that attempt, 564 00:32:17,840 --> 00:32:23,800 Speaker 1: and so he is responsible for losing the election. You know, 565 00:32:23,960 --> 00:32:27,400 Speaker 1: that one, I think is a much harder argument to make, 566 00:32:27,720 --> 00:32:31,120 Speaker 1: and you know, I will just opine this is purely 567 00:32:31,160 --> 00:32:34,240 Speaker 1: my own opinion, and I think a little bit aside 568 00:32:34,320 --> 00:32:38,760 Speaker 1: from the core legal argument, I worry a little bit 569 00:32:38,960 --> 00:32:43,680 Speaker 1: about what this means for our understanding of peaceful transitions 570 00:32:43,680 --> 00:32:48,840 Speaker 1: of power. It's found that by no longer being president, 571 00:32:49,040 --> 00:32:52,680 Speaker 1: he caused the muteness in this case, Right, I think 572 00:32:52,840 --> 00:32:56,880 Speaker 1: that you know, I personally would want legal doctrines that 573 00:32:57,120 --> 00:33:03,080 Speaker 1: don't incentivize people to hang on to power simply so 574 00:33:03,120 --> 00:33:07,040 Speaker 1: that they could be said to have not caused the 575 00:33:07,200 --> 00:33:10,320 Speaker 1: situation in which he was no longer president. I mean, 576 00:33:10,480 --> 00:33:13,880 Speaker 1: given what we've been through, one frame of mind that 577 00:33:14,000 --> 00:33:18,080 Speaker 1: somebody might be in is, oh, I'm responsible for making 578 00:33:18,120 --> 00:33:21,280 Speaker 1: sure that I still occupied the office of President of 579 00:33:21,320 --> 00:33:24,960 Speaker 1: the United States. And I think, you know, in our 580 00:33:25,000 --> 00:33:28,360 Speaker 1: country in which we say that we're a nation of 581 00:33:28,920 --> 00:33:33,560 Speaker 1: laws and not of people, etcetera, I think it's good 582 00:33:33,600 --> 00:33:36,840 Speaker 1: to sort of be personalize these sorts of things and 583 00:33:36,960 --> 00:33:40,880 Speaker 1: say Donald Trump is no longer president because we held 584 00:33:41,000 --> 00:33:44,480 Speaker 1: a free and fair election. That election was going to 585 00:33:44,560 --> 00:33:48,920 Speaker 1: happen on November three, regardless of what Donald Trump did. 586 00:33:49,640 --> 00:33:53,000 Speaker 1: That it was going to be certified by a Congress 587 00:33:53,280 --> 00:33:57,640 Speaker 1: on January six, you know, because of how the state acted, 588 00:33:57,880 --> 00:34:00,920 Speaker 1: regardless of what Donald Trump did, and that we were 589 00:34:00,920 --> 00:34:05,000 Speaker 1: going to have a peaceful transition of power on January twentieth, 590 00:34:05,120 --> 00:34:07,800 Speaker 1: regardless of what Donald Trump did. Right, if he had 591 00:34:07,840 --> 00:34:10,640 Speaker 1: won the election, it would be the same thing, right, 592 00:34:10,680 --> 00:34:14,000 Speaker 1: he would continue to be president because it's the operation 593 00:34:14,200 --> 00:34:17,680 Speaker 1: of free and fair elections, not because he has some 594 00:34:17,840 --> 00:34:22,719 Speaker 1: sort of powerful positive force in hanging on. So I 595 00:34:22,920 --> 00:34:26,840 Speaker 1: personally see, um, you know, a little bit of a 596 00:34:26,920 --> 00:34:31,000 Speaker 1: politically difficult argument in saying that he caused the muteness 597 00:34:31,080 --> 00:34:34,839 Speaker 1: by himself no longer being president. I do think, though 598 00:34:34,920 --> 00:34:39,200 Speaker 1: there is a longer argument on the Twitter side, right, 599 00:34:39,280 --> 00:34:42,160 Speaker 1: that the fact that he was no longer able to 600 00:34:42,239 --> 00:34:45,920 Speaker 1: tweet in that period, and it is a little bit different. 601 00:34:46,640 --> 00:34:49,920 Speaker 1: So then you think that the Supreme Court will allow 602 00:34:49,920 --> 00:34:55,600 Speaker 1: the second service decision to remain won't vacated, you know, 603 00:34:55,760 --> 00:34:59,400 Speaker 1: it's it's hard to say, um, you know, sort of 604 00:35:00,239 --> 00:35:03,160 Speaker 1: back a little bit and looking at this in the 605 00:35:03,239 --> 00:35:06,320 Speaker 1: context of some of the other cases where this issue 606 00:35:06,360 --> 00:35:11,840 Speaker 1: has come up. The typical scenario in which the court 607 00:35:11,960 --> 00:35:15,000 Speaker 1: is talking about a party causing muteness is when it 608 00:35:15,120 --> 00:35:18,760 Speaker 1: case settles. So, in other words, the reason that there's 609 00:35:18,800 --> 00:35:22,640 Speaker 1: no longer a live controversy is that the parties have 610 00:35:22,880 --> 00:35:27,279 Speaker 1: decided that the controversy itself as between them should come 611 00:35:27,280 --> 00:35:31,400 Speaker 1: to an end. So that's not quite what's happening here. 612 00:35:31,640 --> 00:35:34,200 Speaker 1: I don't think it's out of the question there's a 613 00:35:34,320 --> 00:35:38,680 Speaker 1: Supreme Court to look at this situation and come up 614 00:35:38,719 --> 00:35:43,160 Speaker 1: with some sort of justification in which it it says, 615 00:35:43,200 --> 00:35:49,359 Speaker 1: you know, this is a controversy that is important enough 616 00:35:50,120 --> 00:35:55,000 Speaker 1: that you know, regardless of some technical issues about who 617 00:35:55,160 --> 00:36:00,239 Speaker 1: caused muteness or not that you know, and then for there, 618 00:36:00,280 --> 00:36:02,520 Speaker 1: I think they can actually go in either direction, right. 619 00:36:02,520 --> 00:36:05,480 Speaker 1: I mean, they could say this is important enough that 620 00:36:05,680 --> 00:36:09,360 Speaker 1: we want this decided fresh and anew from the beginning, 621 00:36:09,480 --> 00:36:11,640 Speaker 1: right if it's now going to be a different public 622 00:36:11,680 --> 00:36:15,560 Speaker 1: figure who is blocking people on Twitter, right, that that 623 00:36:15,640 --> 00:36:20,960 Speaker 1: government official should have their own case adjudicated without the 624 00:36:21,040 --> 00:36:24,080 Speaker 1: president of these other cases in the way. Or they 625 00:36:24,120 --> 00:36:26,440 Speaker 1: could go the other direction and say this is an 626 00:36:26,480 --> 00:36:30,360 Speaker 1: important enough issue that even though it's not a live 627 00:36:30,440 --> 00:36:34,879 Speaker 1: controversy for us to decide that the Second Circuit did 628 00:36:35,000 --> 00:36:39,319 Speaker 1: have a live controversy before them, right, that there's no 629 00:36:39,400 --> 00:36:42,920 Speaker 1: reason to vacate that decision. Right, it's not going to 630 00:36:43,719 --> 00:36:46,680 Speaker 1: a really sort of affect Donald Trump in that way. 631 00:36:46,719 --> 00:36:50,719 Speaker 1: He's no longer president, he's no longer on Twitter, and 632 00:36:50,800 --> 00:36:55,120 Speaker 1: so you know, it's perfectly acceptable to just duct this 633 00:36:55,320 --> 00:36:58,000 Speaker 1: case as the Supreme Court because it's not live, but 634 00:36:58,120 --> 00:37:00,560 Speaker 1: let the lower court stand. So I think that this 635 00:37:00,640 --> 00:37:04,160 Speaker 1: is you know, a different enough to be generous situation 636 00:37:04,360 --> 00:37:07,080 Speaker 1: from settlement or some of the other things that the 637 00:37:07,120 --> 00:37:10,080 Speaker 1: Supreme Court could could go either way on that one. 638 00:37:10,400 --> 00:37:15,719 Speaker 1: So finally, there are upcoming cases. Joe Biden has asked 639 00:37:15,760 --> 00:37:19,319 Speaker 1: the Supreme Court to cancel the upcoming arguments in the 640 00:37:19,360 --> 00:37:22,880 Speaker 1: case challenging Trump's sport of wall funding and remain in 641 00:37:22,960 --> 00:37:28,080 Speaker 1: Mexico policy, and the Supreme Court agreed to cancel those arguments. 642 00:37:28,440 --> 00:37:31,520 Speaker 1: Will this kind of a question come up in those 643 00:37:31,560 --> 00:37:36,280 Speaker 1: cases as well? Um? Not quite. I mean it could, 644 00:37:36,920 --> 00:37:41,400 Speaker 1: it could if the case itself becomes neot But these 645 00:37:41,600 --> 00:37:45,840 Speaker 1: arguments are a slightly different issue, which is what happens 646 00:37:45,960 --> 00:37:50,120 Speaker 1: when the government's position it self changes, um. And this 647 00:37:50,239 --> 00:37:53,080 Speaker 1: isn't new. This does happen, um, when there is a 648 00:37:53,160 --> 00:37:57,800 Speaker 1: change in administration. It happens at the lower court levels 649 00:37:57,800 --> 00:38:01,200 Speaker 1: to it doesn't just, um, you know, require a change 650 00:38:01,400 --> 00:38:06,320 Speaker 1: at the national level. So for example, there were questions 651 00:38:06,360 --> 00:38:10,480 Speaker 1: when Donald Trump became president about whether or not the 652 00:38:10,520 --> 00:38:13,640 Speaker 1: federal government and the Department of Justice would continue to 653 00:38:13,719 --> 00:38:17,799 Speaker 1: defend the Affordable Care Act in court. So that's going 654 00:38:17,880 --> 00:38:20,680 Speaker 1: to be a little bit of a different position because 655 00:38:21,160 --> 00:38:24,080 Speaker 1: the you know, the question is whether or not the 656 00:38:24,120 --> 00:38:28,400 Speaker 1: government's policy is still the same, and there the issue 657 00:38:28,640 --> 00:38:32,080 Speaker 1: is going to be whether there's been an actually different 658 00:38:32,200 --> 00:38:35,960 Speaker 1: change in policy, right, so whether there is you know, 659 00:38:36,120 --> 00:38:40,600 Speaker 1: a new order or a new policy about a border 660 00:38:40,600 --> 00:38:43,600 Speaker 1: wall funding, or if it's just a question of the 661 00:38:43,719 --> 00:38:48,719 Speaker 1: government not continuing to defend something um and you know, 662 00:38:48,760 --> 00:38:51,960 Speaker 1: not to get too far down that road because a 663 00:38:52,000 --> 00:38:54,560 Speaker 1: little bit further from what we're talking about. But the 664 00:38:54,640 --> 00:38:58,360 Speaker 1: interesting thing about that ladder view, which is if something 665 00:38:58,480 --> 00:39:01,360 Speaker 1: is in the work but the federal government position changes 666 00:39:01,400 --> 00:39:04,279 Speaker 1: and they're just no longer defending something, is that there 667 00:39:04,280 --> 00:39:08,360 Speaker 1: are often other actors who are still interested in defending 668 00:39:08,360 --> 00:39:11,279 Speaker 1: that policy. And as long as a policy or a 669 00:39:11,400 --> 00:39:15,200 Speaker 1: regulation is live and causes a controversy, the fact that 670 00:39:15,239 --> 00:39:18,799 Speaker 1: the federal government is no longer defending it isn't necessarily 671 00:39:18,840 --> 00:39:23,239 Speaker 1: despositive because you can have other parties who have an interest, right, 672 00:39:23,280 --> 00:39:27,920 Speaker 1: a constitutionally cognizable interests who are either already parties in 673 00:39:27,960 --> 00:39:30,880 Speaker 1: this in the case, or might try to step in 674 00:39:31,000 --> 00:39:35,120 Speaker 1: as interveners and continue defending that policy even if the 675 00:39:35,160 --> 00:39:39,239 Speaker 1: federal government isn't still defending that policy. So that's a 676 00:39:39,239 --> 00:39:42,239 Speaker 1: little bit different because it's you know, it depends on 677 00:39:42,239 --> 00:39:46,320 Speaker 1: whether the policy it's self or the regulation itself has changed, 678 00:39:46,680 --> 00:39:49,000 Speaker 1: and that's going to tell you whether or not the 679 00:39:49,280 --> 00:39:51,959 Speaker 1: issue is moot or whether you just have this sub 680 00:39:52,040 --> 00:39:54,799 Speaker 1: issue of what it means for the federal government no 681 00:39:54,840 --> 00:39:57,600 Speaker 1: longer to paint supporting a policy, but that policy is 682 00:39:57,600 --> 00:40:00,880 Speaker 1: still there. Thanks Robin. That's Rob an effort At professor 683 00:40:00,920 --> 00:40:03,440 Speaker 1: at Brooklyn Law School. And that's it for the sedition 684 00:40:03,440 --> 00:40:06,279 Speaker 1: of the Bloomberg Law Show. I'm June Grosso. Thanks so 685 00:40:06,360 --> 00:40:08,759 Speaker 1: much for listening and plays it into The Bloomberg Law 686 00:40:08,800 --> 00:40:11,439 Speaker 1: Show every week and at ten pm Eastern right here 687 00:40:11,480 --> 00:40:12,440 Speaker 1: on Bloomberg Radio.