Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: Former President Donald Trump faces his second impeachment trial next
Speaker 1: week on accusations that he incited a harrowing siege at
Speaker 1: the US Capital on January six, when his supporters overran
Speaker 1: the police and violently stormed the building. Joining me as
Speaker 1: former federal prosecutor Elie Honig, what do the legal briefs
Speaker 1: tell you about the strategies at trial, so that the
Speaker 1: legal briefs are really revealing. First of all, from the
Speaker 1: interview of the so called prosecution here the House impeachment managers,
Speaker 1: they are taking a very aggressive, I think appropriately aggressive tack.
Speaker 1: They are not going around the margins of the First
Speaker 1: Amendment or the constitutionality issues. They are just coming straight
Speaker 1: out and saying this is utterly unacceptable. This is the
Speaker 1: core of what impeachment is about. This was an attempted insurrection.
Speaker 1: This was a violation by the president on an other
Speaker 1: branch of our government. And they are coming out swinging
Speaker 1: the defense brief. When we finally saw it was a
Speaker 1: different type of creature. It was tenderly shoddy work product.
Speaker 1: It was poorly written, poorly reasoned. It was a mess.
Speaker 1: It was hard to follow it. They seem to use
Speaker 1: this strange format that lawyers sometimes used when they're responding
Speaker 1: to interrogatories, and the civil caates very formalistic, and we
Speaker 1: hereby admit that the Constitution exists, but we deny everything
Speaker 1: else that you say. But the gist of the arguments
Speaker 1: are this sort of mishmash of the constitutional defense that
Speaker 1: it's unconstitutional to try a former official, which I think
Speaker 1: is not a strong argument. It's an argument we don't
Speaker 1: know the answer, but I think the better weight of
Speaker 1: the evidence and laws. On the other side, they argue
Speaker 1: First Amendment protections, which I think is misguided in several respects.
Speaker 1: And notably they don't take the big lie off the table.
Speaker 1: They minced words a bit about this false idea of
Speaker 1: election fraud, but they say something to the effect of, well,
Speaker 1: there's not enough evidence either way, who can tell? And
Speaker 1: we deny that Donald Trump live when he put forth
Speaker 1: the election fraud theory. I think that's potentially very fraud
Speaker 1: for the lawyers and for Donald Trump's defense. How much
Speaker 1: does the case depend on the House managers being able
Speaker 1: to prove that His speech on February six insided the
Speaker 1: violence that followed, So that is a key component of
Speaker 1: the case that they'll be making. I do think it's
Speaker 1: important to note that the House Impeachment managers have intentionally
Speaker 1: framed their argument is not just January six, but everything
Speaker 1: that led up to it. They past this, I think smartly,
Speaker 1: as a longer term, ongoing, sort of prolonged, coordinated effort
Speaker 1: by Donald Trump and those around him. They don't name names,
Speaker 1: but Rudy Giuliani and Bo Brooks and Donald Trump Jr.
Speaker 1: And Sidney Powell and others to spread and sort of
Speaker 1: amplify and activate this election fraud lie. And I think
Speaker 1: what they point to is January six as sort of
Speaker 1: the tipping point. And look, Donald Trump's words that day
Speaker 1: are very important, and you do want to be able
Speaker 1: to show as much of a connection as you can
Speaker 1: between his words that crowd and their actions. And I
Speaker 1: think that will lie in his actual words to the crowd,
Speaker 1: the crowd's actual reactions. There are more and more videos
Speaker 1: now of that coming out of the crowd saying yeah,
Speaker 1: what he said, Store in the Capitol, Store in the Capitol.
Speaker 1: Just Security just published some of these videos the other day,
Speaker 1: and Donald Trump's reaction afterwards, when he was generally positive
Speaker 1: and praised the crowd who just ransacked the Capitol. I
Speaker 1: think that's the heart of the case. Is the strongest
Speaker 1: argument the defense makes the process argument, because that would
Speaker 1: allow the Republicans who don't want to impeach Donald Trump
Speaker 1: to say it wasn't based on what happened, It wasn't
Speaker 1: based on what he did. We just can't impeach a
Speaker 1: president who's no longer in office. Exactly. Yes, I think
Speaker 1: it's not necessarily the strongest on the merits, but it's
Speaker 1: politically the most expedient for exactly those reasons. Look, it's
Speaker 1: gonna be hard for any Republican who votes not guilty,
Speaker 1: even if they're from a safe red state seat. They're
Speaker 1: going to have to go back and some significant percentage
Speaker 1: of their constituency is going to say, how could you
Speaker 1: be okay with what happened on January six? That all
Speaker 1: ramp of the constitutional procedural question will enable those senators
Speaker 1: to say, no, no, no, I was not okay with that. However,
Speaker 1: I believe that it's unconstitutional to try a former official.
Speaker 1: I really doubt many of them actually believe that. By
Speaker 1: the way, I mean, how could it be that a
Speaker 1: president could do anything he wants in those last few
Speaker 1: days or weeks and have zero consequence. I suspect if
Speaker 1: the party affiliations were flipped here, as often happens in impeachment,
Speaker 1: and the positions of not just the Republicans, but potentially
Speaker 1: Democrats as well would be flipped as well. A lot
Speaker 1: of legal experts look at one thing the defense did
Speaker 1: and say this is a bad move, and that is
Speaker 1: that Trump denies the allegation that his claims that he
Speaker 1: won the election were false, so they don't make an
Speaker 1: outright argument that the action was stolen. But that inference
Speaker 1: is there if this were a real criminal trial that
Speaker 1: might distract a jury. What is it going to have
Speaker 1: any effect on these senators? You're exactly right that in
Speaker 1: a real trial, like criminal trial, that defense would be irrelevant.
Speaker 1: It doesn't matter if the election was stolen or not.
Speaker 1: It was not, but even if it was, it does
Speaker 1: not permit you to go inside a riot or engage
Speaker 1: another criminality. So it would probably, I believe, be excluded.
Speaker 1: I think a judge would keep it out of a
Speaker 1: criminal trial. I also don't think it's going to help
Speaker 1: in terms of persuading or allowing senators the political cover
Speaker 1: to vote not guilty. I suspect the reason those lawyers
Speaker 1: kept it in there is sort of as a concession
Speaker 1: to their very difficult client, Donald Trump. I mean the
Speaker 1: reporting is the reason Trump's first legal team all resigned,
Speaker 1: several of them, by the way, where dj Department of
Speaker 1: Justice alums, one of whom was an ethics expert, is
Speaker 1: because they refused to make that argument or even to
Speaker 1: hedge it the way his new lawyers did. And so
Speaker 1: I think his new lawyers came in and they've tried
Speaker 1: to be lawyerly about it and have a lot of
Speaker 1: double in trical negatives and said, you can't not disprove this,
Speaker 1: therefore we deny it. But I think it's an irresponsible
Speaker 1: argument to make, and I think it will hurt Donald
Speaker 1: Trump's cause if they make it really on the floor
Speaker 1: of the Senate. What's your take on the First Amendment
Speaker 1: argument is a persuasive at all? I think it's misplaced. Again,
Speaker 1: it may sound good, it may give some political cover
Speaker 1: to some of the senators who intend to vote not guilty.
Speaker 1: But the first thing that's so important to understand, the
Speaker 1: First Amendment can be a defense in a criminal case.
Speaker 1: But we're not in the criminal world here. This is impeachment.
Speaker 1: And John Berman, who's the CNN anchor, I think, made
Speaker 1: the exact right point this morning. I have to give
Speaker 1: him credit because I'm gonna steal it perbade him. He said,
Speaker 1: if a president stood up and said, I hereby a
Speaker 1: spouse the Nazi Party, I am a member of the
Speaker 1: Nazi Party and I believe in all of their beliefs
Speaker 1: and thought systems, Well, guess what not a crime to
Speaker 1: do that? Protected by the First Amendment as well. However,
Speaker 1: impeachable you It would have to be impeachable. So the
Speaker 1: First Amendment is not really applicable to impeachment. If you
Speaker 1: think about it that way, there could be statements that
Speaker 1: are First Amendment protected that you could not be prosecuted for,
Speaker 1: but that are absolutely impeachable. Now look, it gives them
Speaker 1: a framework, though, to wrap themselves in the Constitution. If
Speaker 1: this was a criminal case, they could absolutely defend him
Speaker 1: by saying this his First Amendment protected speech. And I
Speaker 1: think the better argument is that it's not. The First
Speaker 1: Amendment does not blanket protect all speech. You'll hear people
Speaker 1: out there saying, but Brandenburg, but Brandenburg. Is this old
Speaker 1: Supreme Court decision from over fifty years ago. But that
Speaker 1: decision does not say you can say anything you want,
Speaker 1: and it's never a prime. That decision says you can
Speaker 1: say a lot, but you cannot directly intend or say
Speaker 1: something that has a natural effect of imminently causing violent
Speaker 1: or criminal action. And I think there's an argument that
Speaker 1: his speech here across that line. You mentioned that this
Speaker 1: defense brief is not as well formed and there are typos.
Speaker 1: People have made a lot of the fact that on
Speaker 1: the first page United States Senate there's a typo there,
Speaker 1: which it's hard to understand in these days of autocorrect.
Speaker 1: But does that indicate anything about the trial team itself
Speaker 1: or does that just indicate that they had to put
Speaker 1: this together pretty fast. I do think it says something
Speaker 1: about the child team. I will make a little bit
Speaker 1: of an excuse from the funny thing is that the
Speaker 1: scariest typos are the ones that auto correct would not catch.
Speaker 1: What they did was instead of United States, there are
Speaker 1: United States U, N I T E. S. But selcheck
Speaker 1: would not catch that because unites is a word, So
Speaker 1: we don't worry about that, right. But no, Look, I
Speaker 1: think it was a sloppy enough product, and I think
Speaker 1: it was a product that showed so little fought and
Speaker 1: consistency that it looks I've seen it worse. I'm not
Speaker 1: gonna say it's it's the worst filing I've ever seen,
Speaker 1: but it's shoddy and it's not at the level that
Speaker 1: a true top shelf attorney, even with just forty eight
Speaker 1: hours you would put something together. Even if you wanted
Speaker 1: your brief to be very brief, very concise, very summary
Speaker 1: in nature, I think you would still do it in
Speaker 1: a way that was more convincing, more coherent, and better structure.
Speaker 1: Their structure is bizarre. They break out these different number
Speaker 1: of accusations that are tied to nothing in the articles
Speaker 1: of impeachment, and then they sort of very formalistically, we
Speaker 1: hereby and whereun to deny and admit this. It's a confusing,
Speaker 1: messy document and it doesn't bode well for how straightforward
Speaker 1: and digestible their presentations will be next week. We understand
Speaker 1: that the house managers have compiled footage of what happened
Speaker 1: his speech, the reactions in the crowd. As you mentioned
Speaker 1: that compilation that was put together by just Security, do
Speaker 1: you think that that is really effective in this kind
Speaker 1: of a setting. Not only do I think it's effective,
Speaker 1: I think it's the most effective thing they can do.
Speaker 1: I mean, look, their task to have some impeachment managers
Speaker 1: is going to be to remind people and to to
Speaker 1: really hit him in the gut, as we would say,
Speaker 1: to appeal viscerally to just how bad, scary and dangerous
Speaker 1: this was. And the reality is that I think we're
Speaker 1: all experiencing human memory is remarkably short. Here we are
Speaker 1: three and change weeks out from the event, and it's
Speaker 1: already receding a little bit in terms of just how
Speaker 1: immediate and dangerous itself. And to me, it's much more
Speaker 1: resonant to show a video what was happening inside the
Speaker 1: capital than to have some member of Congress, state an
Speaker 1: elect turn make an impassioned twenty minute speech, show me
Speaker 1: a two minute video any day over that, And I
Speaker 1: think they need to really make their case, hit quickly
Speaker 1: and hit hard, and I think those videos are the
Speaker 1: best way to do that. The last trial, we had
Speaker 1: the Republicans in charge of the Senate. This trial, the
Speaker 1: Democrats are in charge, so they're going to be able
Speaker 1: to decide what the trial is going to be like,
Speaker 1: do you think that they should call witnesses. Yeah, that's
Speaker 1: a that's an important difference doing last year and this year.
Speaker 1: The trick with calling witnesses is is keeping it from
Speaker 1: spiraling into a never ending proceeding. I mean, there's dozen
Speaker 1: hundreds of people who witnessed what happened in the capital.
Speaker 1: If you are going to call witnesses, I think you
Speaker 1: probably should, but you need to be very careful and selective.
Speaker 1: There's also a risk of appearing emotionally exploitative, right. I mean, look,
Speaker 1: you want to drive home the horrors of what happened.
Speaker 1: You want to focus attention on Officer Brian Sicknik, who
Speaker 1: was murderer inside that building. But there also is a
Speaker 1: way to overdo it and look like you're being not
Speaker 1: fully respectful to the people who suffered. Um. So, for example,
Speaker 1: if they call his grieving family members, I don't know
Speaker 1: that maybe a little bit much, but I think you
Speaker 1: want to call some basic witnesses to to explain what
Speaker 1: happened on that day, perhaps some congressional staffers who can
Speaker 1: really bring it to light. Um, I think you should.
Speaker 1: They should consider calling people who can testify about Donald
Speaker 1: Trump's state of mind that day, people who were with
Speaker 1: or speaking with a privy to how he was reacting
Speaker 1: to what was going on. So I think the trick
Speaker 1: is is sort of calibrating your case and calling a
Speaker 1: handful of witnesses, but not turning it into a saga.
Speaker 1: I mean, in the Bill Clinton case, the negotiated agreement,
Speaker 1: what they called three I think three or four witnesses total,
Speaker 1: So you know, maybe a few more than that, But
Speaker 1: you don't want to get into dozens of witnesses here.
Speaker 1: What about one of the rioters. There's been a lot
Speaker 1: of press that Jacob Chesney, you know, the so called
Speaker 1: q and On Shaman, is willing to testify. I would
Speaker 1: not do that at all if I was in charge
Speaker 1: of putting this case on. First of all, if you
Speaker 1: call a witness, you sort of own that person and
Speaker 1: that becomes your witness, like it or not. Second of all,
Speaker 1: it would become a circus to call some of these folks. Third,
Speaker 1: you have what you need from them, You can do
Speaker 1: that without cauling them into the well of the Senate
Speaker 1: by playing the many videos that are out there, if
Speaker 1: people saying fight for Trump, or if by even using
Speaker 1: the statements that their lawyers have made, or the legal
Speaker 1: filings that they're that their lawyers have put in saying
Speaker 1: my client did this because he or she believed Donald
Speaker 1: Trump asked him to or called on him to do it.
Speaker 1: That's good enough. That makes the point, and that keeps
Speaker 1: it from becoming assert Now, one of the defense attorneys
Speaker 1: has said that at least some of the supporters planned
Speaker 1: their attack in advance. If they can prove that, does
Speaker 1: that help their case. I don't see how it does,
Speaker 1: because the argument is not that Donald Trump just just
Speaker 1: you know, dropped in out of nowhere on January six, um.
Speaker 1: The argument that the inficial managers are making is this
Speaker 1: was several weeks in the making. And so if there's
Speaker 1: evidence that some of these people who rioted were planning
Speaker 1: in late December or mid December or January three, you go,
Speaker 1: of course they were, because this is what Donald Trump
Speaker 1: and his people were working on inciting for weeks. And
Speaker 1: by the way, even if there was pre planning that
Speaker 1: had nothing to do with Donald Trump, you're still not
Speaker 1: allowed to go in and sort of set off that
Speaker 1: power powder keag. So I don't see that being as
Speaker 1: quite as persuasive a point as I think some of
Speaker 1: these defenders of Donald Trump and UM and others seem
Speaker 1: to think so. Now it seems almost a foregone conclusion
Speaker 1: that they will not be able to get the number
Speaker 1: of Republican Senators they need to convict. But what would
Speaker 1: you say is the best move they could make to
Speaker 1: convince some of those reluctant senators to convict. Yeah, I
Speaker 1: still think it's it's more possible than many think that
Speaker 1: that they do get seventeen Republicans to join with all
Speaker 1: fifty Democrats and convicted. I think enough of them, even
Speaker 1: those who voted the forty five who voted last week
Speaker 1: on Senator Rampaul's motion, several of them have come forward
Speaker 1: publicly and made clear they said, my vote there was
Speaker 1: to hear the constitutional issue and debate it. But that
Speaker 1: does not mean I'm committed to vote one way or
Speaker 1: another on the ultimate guilt or non guilt of Donald Trump.
Speaker 1: John Thune said that, Rob Portman said that, and I
Speaker 1: think others are in the same same point of view.
Speaker 1: I think the best thing that the impeachment managers can
Speaker 1: do is appeal not even directly to the senators, but
Speaker 1: to the American public, Because do I think there are
Speaker 1: senators on the fence who can be persuaded by just
Speaker 1: the force of the evidence in the chamber. I don't know,
Speaker 1: maybe maybe a few, maybe only at the margins. But
Speaker 1: if those senators start hearing receiving blots of emails or
Speaker 1: tweets from their constituents, or start seeing public opinion polling
Speaker 1: showing that X percentage of their constituents are in favor
Speaker 1: of an of a conviction, that I think can move
Speaker 1: the needle on the most number of Republican or Democratic senators.
Speaker 1: So if I'm the impeatiment managers, I'm trying to really
Speaker 1: aim my case at the American public, and, like I
Speaker 1: said before, to to hit him in the gut and
Speaker 1: to be really visceral in the way I do this.
Speaker 1: Thanks Ellie. That's former federal prosecutor Ellie Honig. A case
Speaker 1: involving Donald Trump's use of his personal Twitter account for
Speaker 1: official business is now pending before the Supreme Court. It
Speaker 1: revolves around a ruling from the Second Circuit Court of
Speaker 1: Appeals that found Trump's use of the at real Donald
Speaker 1: Trump platform for official business created a public forum entitled
Speaker 1: to first amend the Protection and that Trump violated the
Speaker 1: Constitution when he blocked followers who were critical of him.
Speaker 1: The Justice Department and the Twitter uses who sued the
Speaker 1: president agree the case is now moot since Trump is
Speaker 1: out of office and has been banned from social media platforms.
Speaker 1: But how to get rid of it? The case presents
Speaker 1: the Justice is with a doctrinal puzzle. Joining me is
Speaker 1: Robin Efron, a professor at Brooklyn Law School. So start
Speaker 1: by just telling us briefly about the ruling by the
Speaker 1: Second Circuit. So the Second Circuit had to rule on
Speaker 1: this issue of whether or not Trump, when he was
Speaker 1: tweeting in his capacity as president, was allowed to block
Speaker 1: people on Twitter, right the way that you can block
Speaker 1: people if you're just an ordinary Twitter user and you
Speaker 1: want to block people from your account. Either was a
Speaker 1: question of whether or not Trumps, who was using his
Speaker 1: Twitter account, you know, at real Donald Trump as president,
Speaker 1: whether he could block people. And the Second Circuit said no,
Speaker 1: he couldn't that the you know, Twitter was essentially a
Speaker 1: public forum in that capacity, and so there were First
Speaker 1: Amendment implications in Trump blocking people from Twitter when he
Speaker 1: was tweeting under that account. So that was the Second
Speaker 1: Circuit ruling um and of course things changed very quickly,
Speaker 1: both with regard to Donald Trump and Twitter, and then
Speaker 1: of course Donald Trump and his position as president of
Speaker 1: the United States. So an average person would say, Okay,
Speaker 1: this isn't a controversy anymore, you know, just dismiss it.
Speaker 1: What's the problem. Well, the problem is that, you know,
Speaker 1: the courts are there serving two purposes. So one and
Speaker 1: this is the primary purpose of the courts, and one
Speaker 1: that the courts take quite seriously under the Constitution, that
Speaker 1: is your role in resolving live controversy. So if there
Speaker 1: is an actual dispute between parties, courts are there to
Speaker 1: resolve that. They're there to give an answer right, who
Speaker 1: is right, who is wrong, who is liable, who is responsible?
Speaker 1: And then you know it's part of that courts are
Speaker 1: there to make sure that the party who is not
Speaker 1: at fault yet a remedy. So the remedies that parties
Speaker 1: asked for are usually money, which is damages. For an
Speaker 1: equitable remedy, you know, an equitable remedy would be something
Speaker 1: like an injunction in which a court tells the party, no,
Speaker 1: you can't do that anymore. Right, So here it would
Speaker 1: be saying no, Donald Trump as president, who can't block
Speaker 1: people on Twitter anymore. That's one rule of the court,
Speaker 1: so that they're there to dissolve, to resolve live controversies.
Speaker 1: You know. The the role of the court, which is
Speaker 1: sort of secondary to that, is that they are there
Speaker 1: to make pronouncements on the law. Right, So when it
Speaker 1: comes to things like common law or interpretation of the
Speaker 1: Constitution or statute, courts are there not just to sort
Speaker 1: of issue a decision and say what the remedy is.
Speaker 1: But there's a reason that they write opinions because those
Speaker 1: opinions are then going to form the basis of the
Speaker 1: law going forward. And so one of the things that
Speaker 1: we rely on courts to do is to provide reasoning
Speaker 1: for their decisions that the decision itself and the reasoning
Speaker 1: will form the basis for what other courts do going forward.
Speaker 1: So the Second Circuit is an appellate court. It's the
Speaker 1: federal court that here's appeals that come out of the
Speaker 1: federal courts in New York, Connecticut, Vermont, and so anything
Speaker 1: that the Second Circuit says is going to be binding
Speaker 1: on federal courts hearing decision and in federal district courts
Speaker 1: coming out of those states. And it's also going to
Speaker 1: be considered persuasive authority to other courts, right, so the
Speaker 1: state courts that might be hearing these questions, or to
Speaker 1: other federal courts. And as it turns out, you know,
Speaker 1: all the federal courts of the skills are equal, they're
Speaker 1: all very important, but there are some circuits that are
Speaker 1: considered particularly influential. So the Second Circuit is one of them.
Speaker 1: You know, an opinion coming out of the Second Circuit
Speaker 1: is going to carry a lot of weights. So one
Speaker 1: of the things that's going on here is that when
Speaker 1: a court is issuing an opinion, it is resolving a
Speaker 1: lot of controversy, but it's also laying the groundwork for
Speaker 1: what is going to go forward. But it's not binding
Speaker 1: on the whole country. Other courts that are outside of
Speaker 1: that jurisdiction are free to come to their own conclusions.
Speaker 1: But every time you have a federal Court of Appeals
Speaker 1: issuing a decision and giving its reasoning, that really sets
Speaker 1: the path for how other courts are going to look
Speaker 1: at things and act upon things. And certainly it's going
Speaker 1: to be binding precedent for everything within that court's jurisdiction
Speaker 1: until another court comes along and comes to a different decision.
Speaker 1: So then why not just leave the Second Circuit's decision
Speaker 1: as is, because you don't know how the Supreme Court
Speaker 1: would have ruled on the issue and pretend that there
Speaker 1: was no appeal, you know. I think the thing that
Speaker 1: is important to keep in mind is that even if
Speaker 1: we wipe away sort of all of the controversy around
Speaker 1: this particular case and how politically heated it is, the
Speaker 1: US Supreme Court is a court of very limited jurisdiction, right,
Speaker 1: and they hear very few cases per year. So for
Speaker 1: most cases in the United States, they end well before
Speaker 1: the Supreme Court, right. So we can think even of
Speaker 1: state courts where the states the Preme Court is the
Speaker 1: highest authority in that state. A lot of those decisions
Speaker 1: of state law couldn't even go to the U. S.
Speaker 1: Supreme Court if people wanted them to. Now in federal court.
Speaker 1: Even though someone who has an adverse ruling in a
Speaker 1: court of appeals, meaning you know, they a law that
Speaker 1: they can petition the Supreme Court to hear their case,
Speaker 1: that the vast majority of these cases are not heard
Speaker 1: by the Supreme Court. So for most litigants, their path
Speaker 1: ends in the Court of Appeals. And so that's the
Speaker 1: ordinary state of affairs, right, is that people, you know,
Speaker 1: either just sort of access the decision of the Circuit
Speaker 1: court and then that's the end that becomes the binding
Speaker 1: judgment for those parties and it becomes binding precedent within
Speaker 1: that circuit, or they try to go up to the
Speaker 1: Supreme Court and you know, they aren't picked, and the
Speaker 1: judgment below just stands. The problem comes up when the
Speaker 1: Supreme Court has agreed to hear a case. But then
Speaker 1: maybe that case becomes it's not a live controversy anymore.
Speaker 1: So that's when we're in this sort of what if territory. Right,
Speaker 1: maybe we wouldn't have just let that second Circuit opinion
Speaker 1: be um, but the Supreme Court might have decided something else.
Speaker 1: And so in that case, that's where we get this
Speaker 1: month aware doctrine that comes in, which is to say, Okay,
Speaker 1: the Supreme Court is not in a position to actually
Speaker 1: rule on this particular issue because of muteness, right, there's
Speaker 1: no longer a live controversy, and so the Supreme Court,
Speaker 1: as a matter of mutinous and you know, sort of
Speaker 1: part of this larger standing doctrine, they're not going a
Speaker 1: way in on this issue. But then the question is,
Speaker 1: if they're not going to weigh in on this issue,
Speaker 1: do you just sort of pretend like this never happened
Speaker 1: and it was never appealed to the Supreme Court and
Speaker 1: the first place, and that lower court doctrine would just stand.
Speaker 1: Or does the Supreme Court say, you know what, we're
Speaker 1: going to wipe the slate clean. We're going to pretend
Speaker 1: like the second circuit never happened. Either, it's no longer
Speaker 1: alive controversy, and if it comes up again, we'll just
Speaker 1: start all over again. Right, new litigants will get a
Speaker 1: clean slate, they'll start off in the trial court and
Speaker 1: they will keep litigating from there. So how does the
Speaker 1: Supreme Court decide what to do? So the ordinary course
Speaker 1: of affairs would be that the Supreme Court just leave
Speaker 1: things to be right, that what happened below stays now.
Speaker 1: In some cases, the Supreme Court, without making its own decision,
Speaker 1: will vacate the judgment below. Right, that's the idea of
Speaker 1: wiping the slate clean. And so in other contexts, one
Speaker 1: reason that they might do that is that a lot
Speaker 1: of times, for example, the Supreme Court will come out
Speaker 1: with a big ruling that has a change in law
Speaker 1: or a change in the direction and law, and so
Speaker 1: there are lots of follow on cases, as the Supreme
Speaker 1: Court itself doesn't need to sort of hear a new
Speaker 1: every single time. And so what the Supreme Court will
Speaker 1: do is they'll just vacate the lower court judgment that
Speaker 1: keeps goes back to the lower courts, and then the
Speaker 1: lower courts sort of proceed with the new Supreme Court
Speaker 1: doctrine in mind now here, that's not what's going on.
Speaker 1: This is a little bit different, and so the parties
Speaker 1: are asking the Supreme Court to wipe this late clean
Speaker 1: for a different reason, right, not because there's been a
Speaker 1: change in the law, but because there is this question
Speaker 1: of the Supreme Court might have made a change in
Speaker 1: the law, but they didn't quite ever get to making
Speaker 1: the decision because of movements. So since vacator itself is
Speaker 1: a remedy, right, it's the Supreme Court is making an
Speaker 1: active decision to do something which could grant somebody the
Speaker 1: remedy of vacating that lower court judgment, the Supreme Court
Speaker 1: is going to need a reason to do that, right.
Speaker 1: They need to have a good reason, not to just
Speaker 1: believe they see because like I was saying before, the
Speaker 1: ordinary course of affairs is that cases are just done
Speaker 1: after the circuit courts. So what does Supreme Court has said?
Speaker 1: And that if somebody is going to ask for vacater right,
Speaker 1: if they are asking to um sort of white the
Speaker 1: slate clean, then they need to show that they weren't
Speaker 1: responsible for the case being moved. In other words, it's
Speaker 1: the whole reason that the Supreme Court no longer has
Speaker 1: the ability to issue a ruling in this case and
Speaker 1: decide on law. Then you want to make sure that
Speaker 1: the person who's getting the benefit of that vacat didn't
Speaker 1: sort of cause that neuteness to begin with, right, And
Speaker 1: you can see how that would be a little bit inequitable. Right,
Speaker 1: you asked the Supreme Court to intervene, then you yourself
Speaker 1: create the reason for the Supreme Court not to be
Speaker 1: able to make a decision. And then nonetheless, you're asking
Speaker 1: for the benefits of vacating that lower court judgment which
Speaker 1: was adverse against you. So that's this doctrine that the
Speaker 1: Supreme Court isn't going to datate that lower court judgment
Speaker 1: because of muteness. It's the party who's asking for it
Speaker 1: caused the muteness. But then that's how we get these
Speaker 1: other problems, which is the question of what does it
Speaker 1: mean to have caused the movements? Right? How do we
Speaker 1: know that the party who's asking for this remedy is
Speaker 1: in fact responsible for the case being moved? So in
Speaker 1: this case, the election really is causing the muteness And
Speaker 1: also the fact that Twitter has closed Donald Trump's account,
Speaker 1: So who's causing the muteness here? Yeah, this is super
Speaker 1: interesting to me, um, and I think it really is
Speaker 1: important to separate those arguments because there really are there's
Speaker 1: two separate things going on that did not necessarily have
Speaker 1: to be connected at all, that are causing the movements. Right.
Speaker 1: So the whole problem was could Donald Trump in his
Speaker 1: you know, at real Donald Trump account blocked Twitter users?
Speaker 1: So two things had to be true in order for
Speaker 1: this to be alive controversy. One is that Donald Trump
Speaker 1: still needs to be on Twitter. The second is that
Speaker 1: he still needs to be president, right, because that's the
Speaker 1: allegation of what was causing the problem, and that's what
Speaker 1: the Second Circuit ruled on. They ruled on Twitter specifically,
Speaker 1: and Donald Trump became president specifically, and then a very
Speaker 1: short period of time, both of those things changed So
Speaker 1: let's take the Twitter part first. So on the Twitter front,
Speaker 1: he engaged in lots and Twitter activity that was wrapped
Speaker 1: up in rhetoric that people have alleged was really raising
Speaker 1: the temperature in the country, uh, leading to the insurrection
Speaker 1: on January six, and just sort of generally making the
Speaker 1: peaceful transition of how are quite difficult after the election. Right, So,
Speaker 1: you know, from Twitter's point of view, he is just
Speaker 1: a user, and Twitter is a private company, and they
Speaker 1: have terms of service, and you know, their terms of
Speaker 1: service contain all sorts of reasons why they might block
Speaker 1: or suspend uh, your usage of the service through their account,
Speaker 1: and things like uh sort of being mean to people
Speaker 1: spreading this information. Right, all of these things, right, depending
Speaker 1: on how you're going to interpret Twitter's terms of service,
Speaker 1: violate that right. And at the end of the day,
Speaker 1: we're not really arguing here about Twitter's terms of services. Um,
Speaker 1: you know, somebody might argue about that somewhere else, but
Speaker 1: the bottom line is Twitter to sided that he was
Speaker 1: uh sort of causing such significant problems that they were
Speaker 1: going to suspend his account indefinitely. And so what that
Speaker 1: means is, you know, rightly or wrongly, from that sort
Speaker 1: of tech and contract point of view. Donald Trump is
Speaker 1: no longer on Twitter, right, he can't tweet as himself,
Speaker 1: he can't tweet as himself as the president. It's just gone.
Speaker 1: That account is no longer functional. And so that means
Speaker 1: that the question of whether he can block users is right.
Speaker 1: If he himself is not on Twitter tweeting, then he
Speaker 1: can't block people because he's not there. So that is
Speaker 1: one argument about muteness. And so you know, the question
Speaker 1: about whether he caused that is an interesting one. I
Speaker 1: mean then that's where maybe we do have to get
Speaker 1: a little bit more into those questions about you know,
Speaker 1: was Twitter correct in blocking him or suspending him? Right?
Speaker 1: If he was violating their terms of service very quick
Speaker 1: and very clearly, then one might say he is responsible. Right,
Speaker 1: he should know how to use Twitter within its rules
Speaker 1: in terms of service. Um, he didn't do that, and
Speaker 1: so they blocked him, and therefore the fact that he's
Speaker 1: no longer on Twitter is his fault. You know, other
Speaker 1: people might argue differently that Twitter is um sort of
Speaker 1: very capricious in how they apply that. You know, they've
Speaker 1: blocked some people, they don't suspend other people. You know,
Speaker 1: that is what it is, but I think that that
Speaker 1: is possibly the stronger argument for him sort of causing
Speaker 1: his own moveeness. Right, he is responsible for the fact
Speaker 1: that he's no longer on Twitter now, the fact that
Speaker 1: he's no longer president, I think is a really tough
Speaker 1: argument from a public policy point of view. So, you know,
Speaker 1: if you read the filings that the parties has made
Speaker 1: in this case, the Twitter users are basically saying, you know,
Speaker 1: it's ridiculous to say that he's not responsible for no
Speaker 1: longer being president because he ran for reelection. He you know,
Speaker 1: conducted himself during that campaign. He made his argument to
Speaker 1: the American people about whether he should be reelected and
Speaker 1: he lost. Right, he was not successful in that attempt,
Speaker 1: and so he is responsible for losing the election. You know,
Speaker 1: that one, I think is a much harder argument to make,
Speaker 1: and you know, I will just opine this is purely
Speaker 1: my own opinion, and I think a little bit aside
Speaker 1: from the core legal argument, I worry a little bit
Speaker 1: about what this means for our understanding of peaceful transitions
Speaker 1: of power. It's found that by no longer being president,
Speaker 1: he caused the muteness in this case, Right, I think
Speaker 1: that you know, I personally would want legal doctrines that
Speaker 1: don't incentivize people to hang on to power simply so
Speaker 1: that they could be said to have not caused the
Speaker 1: situation in which he was no longer president. I mean,
Speaker 1: given what we've been through, one frame of mind that
Speaker 1: somebody might be in is, oh, I'm responsible for making
Speaker 1: sure that I still occupied the office of President of
Speaker 1: the United States. And I think, you know, in our
Speaker 1: country in which we say that we're a nation of
Speaker 1: laws and not of people, etcetera, I think it's good
Speaker 1: to sort of be personalize these sorts of things and
Speaker 1: say Donald Trump is no longer president because we held
Speaker 1: a free and fair election. That election was going to
Speaker 1: happen on November three, regardless of what Donald Trump did.
Speaker 1: That it was going to be certified by a Congress
Speaker 1: on January six, you know, because of how the state acted,
Speaker 1: regardless of what Donald Trump did, and that we were
Speaker 1: going to have a peaceful transition of power on January twentieth,
Speaker 1: regardless of what Donald Trump did. Right, if he had
Speaker 1: won the election, it would be the same thing, right,
Speaker 1: he would continue to be president because it's the operation
Speaker 1: of free and fair elections, not because he has some
Speaker 1: sort of powerful positive force in hanging on. So I
Speaker 1: personally see, um, you know, a little bit of a
Speaker 1: politically difficult argument in saying that he caused the muteness
Speaker 1: by himself no longer being president. I do think, though
Speaker 1: there is a longer argument on the Twitter side, right,
Speaker 1: that the fact that he was no longer able to
Speaker 1: tweet in that period, and it is a little bit different.
Speaker 1: So then you think that the Supreme Court will allow
Speaker 1: the second service decision to remain won't vacated, you know,
Speaker 1: it's it's hard to say, um, you know, sort of
Speaker 1: back a little bit and looking at this in the
Speaker 1: context of some of the other cases where this issue
Speaker 1: has come up. The typical scenario in which the court
Speaker 1: is talking about a party causing muteness is when it
Speaker 1: case settles. So, in other words, the reason that there's
Speaker 1: no longer a live controversy is that the parties have
Speaker 1: decided that the controversy itself as between them should come
Speaker 1: to an end. So that's not quite what's happening here.
Speaker 1: I don't think it's out of the question there's a
Speaker 1: Supreme Court to look at this situation and come up
Speaker 1: with some sort of justification in which it it says,
Speaker 1: you know, this is a controversy that is important enough
Speaker 1: that you know, regardless of some technical issues about who
Speaker 1: caused muteness or not that you know, and then for there,
Speaker 1: I think they can actually go in either direction, right.
Speaker 1: I mean, they could say this is important enough that
Speaker 1: we want this decided fresh and anew from the beginning,
Speaker 1: right if it's now going to be a different public
Speaker 1: figure who is blocking people on Twitter, right, that that
Speaker 1: government official should have their own case adjudicated without the
Speaker 1: president of these other cases in the way. Or they
Speaker 1: could go the other direction and say this is an
Speaker 1: important enough issue that even though it's not a live
Speaker 1: controversy for us to decide that the Second Circuit did
Speaker 1: have a live controversy before them, right, that there's no
Speaker 1: reason to vacate that decision. Right, it's not going to
Speaker 1: a really sort of affect Donald Trump in that way.
Speaker 1: He's no longer president, he's no longer on Twitter, and
Speaker 1: so you know, it's perfectly acceptable to just duct this
Speaker 1: case as the Supreme Court because it's not live, but
Speaker 1: let the lower court stand. So I think that this
Speaker 1: is you know, a different enough to be generous situation
Speaker 1: from settlement or some of the other things that the
Speaker 1: Supreme Court could could go either way on that one.
Speaker 1: So finally, there are upcoming cases. Joe Biden has asked
Speaker 1: the Supreme Court to cancel the upcoming arguments in the
Speaker 1: case challenging Trump's sport of wall funding and remain in
Speaker 1: Mexico policy, and the Supreme Court agreed to cancel those arguments.
Speaker 1: Will this kind of a question come up in those
Speaker 1: cases as well? Um? Not quite. I mean it could,
Speaker 1: it could if the case itself becomes neot But these
Speaker 1: arguments are a slightly different issue, which is what happens
Speaker 1: when the government's position it self changes, um. And this
Speaker 1: isn't new. This does happen, um, when there is a
Speaker 1: change in administration. It happens at the lower court levels
Speaker 1: to it doesn't just, um, you know, require a change
Speaker 1: at the national level. So for example, there were questions
Speaker 1: when Donald Trump became president about whether or not the
Speaker 1: federal government and the Department of Justice would continue to
Speaker 1: defend the Affordable Care Act in court. So that's going
Speaker 1: to be a little bit of a different position because
Speaker 1: the you know, the question is whether or not the
Speaker 1: government's policy is still the same, and there the issue
Speaker 1: is going to be whether there's been an actually different
Speaker 1: change in policy, right, so whether there is you know,
Speaker 1: a new order or a new policy about a border
Speaker 1: wall funding, or if it's just a question of the
Speaker 1: government not continuing to defend something um and you know,
Speaker 1: not to get too far down that road because a
Speaker 1: little bit further from what we're talking about. But the
Speaker 1: interesting thing about that ladder view, which is if something
Speaker 1: is in the work but the federal government position changes
Speaker 1: and they're just no longer defending something, is that there
Speaker 1: are often other actors who are still interested in defending
Speaker 1: that policy. And as long as a policy or a
Speaker 1: regulation is live and causes a controversy, the fact that
Speaker 1: the federal government is no longer defending it isn't necessarily
Speaker 1: despositive because you can have other parties who have an interest, right,
Speaker 1: a constitutionally cognizable interests who are either already parties in
Speaker 1: this in the case, or might try to step in
Speaker 1: as interveners and continue defending that policy even if the
Speaker 1: federal government isn't still defending that policy. So that's a
Speaker 1: little bit different because it's you know, it depends on
Speaker 1: whether the policy it's self or the regulation itself has changed,
Speaker 1: and that's going to tell you whether or not the
Speaker 1: issue is moot or whether you just have this sub
Speaker 1: issue of what it means for the federal government no
Speaker 1: longer to paint supporting a policy, but that policy is
Speaker 1: still there. Thanks Robin. That's Rob an effort At professor
Speaker 1: at Brooklyn Law School. And that's it for the sedition
Speaker 1: of the Bloomberg Law Show. I'm June Grosso. Thanks so
Speaker 1: much for listening and plays it into The Bloomberg Law
Speaker 1: Show every week and at ten pm Eastern right here
Speaker 1: on Bloomberg Radio.