1 00:00:02,880 --> 00:00:07,120 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,600 --> 00:00:14,040 Speaker 1: Recent Supreme Court terms have been dominated by blockbuster case 3 00:00:14,240 --> 00:00:18,599 Speaker 1: after blockbuster case. In recent years. The court eliminated the 4 00:00:18,640 --> 00:00:23,040 Speaker 1: constitutional right to abortion, effectively ended the use of race 5 00:00:23,079 --> 00:00:27,520 Speaker 1: as a factor in college admission decisions, and expanded gun rights. 6 00:00:27,880 --> 00:00:31,720 Speaker 1: It also curtailed the power of federal regulators throughout a 7 00:00:31,760 --> 00:00:35,880 Speaker 1: federal ban on bump stocks, and granted Donald Trump broad 8 00:00:35,920 --> 00:00:40,360 Speaker 1: immunity from criminal prosecution. So far, this term appears to 9 00:00:40,400 --> 00:00:45,519 Speaker 1: be quieter. The highest profile cases argued involved challenges to 10 00:00:45,640 --> 00:00:49,919 Speaker 1: federal regulations for ghost guns and access to gender affirming 11 00:00:50,040 --> 00:00:53,040 Speaker 1: care for transgender miners. We're going to take a look 12 00:00:53,040 --> 00:00:55,520 Speaker 1: at the arguments coming up at the Supreme Court in 13 00:00:55,560 --> 00:00:59,280 Speaker 1: the new year. Joining me is constitutional law expert Harold Krent, 14 00:00:59,520 --> 00:01:02,320 Speaker 1: a profes Star at the Chicago Kent College of Law. 15 00:01:02,720 --> 00:01:06,119 Speaker 1: Let's start with the three First Amendment cases. The case 16 00:01:06,160 --> 00:01:09,920 Speaker 1: over the TikTok ban, the case challenging a Texas law 17 00:01:09,959 --> 00:01:13,759 Speaker 1: that requires porn sites to verify the ages of users, 18 00:01:14,319 --> 00:01:17,080 Speaker 1: And an attempt by a charitable arm of the Catholic 19 00:01:17,200 --> 00:01:21,640 Speaker 1: Church for an exemption from Wisconsin's unemployment tax. So the 20 00:01:21,680 --> 00:01:25,360 Speaker 1: first arguments of the year are the arguments over TikTok's 21 00:01:25,400 --> 00:01:29,520 Speaker 1: ban next Friday, which is a special argument day set 22 00:01:29,560 --> 00:01:32,280 Speaker 1: aside by the Court. Tell us about the First Amendment 23 00:01:32,480 --> 00:01:33,600 Speaker 1: argument in this case. 24 00:01:34,040 --> 00:01:38,280 Speaker 2: Well, Congress in early twenty twenty four passed the law 25 00:01:38,400 --> 00:01:42,440 Speaker 2: requiring TikTok basically to be divested from its Chinese parent 26 00:01:42,520 --> 00:01:46,959 Speaker 2: byte Dance by January nineteenth, twenty twenty five. So that 27 00:01:47,080 --> 00:01:52,760 Speaker 2: data is rapidly approaching, and the divestiture requirement has been 28 00:01:53,120 --> 00:01:56,640 Speaker 2: challenged under the First Amendment, and it is far from privolous, 29 00:01:57,120 --> 00:02:00,920 Speaker 2: and so the court did decide to take an emergency appeal, 30 00:02:01,080 --> 00:02:03,080 Speaker 2: So it's not exactly on the merits. It would be 31 00:02:03,400 --> 00:02:06,600 Speaker 2: an emergency peal about whether or not they're so convinced 32 00:02:06,600 --> 00:02:09,840 Speaker 2: that the First Amendment issues are substantial or not that 33 00:02:09,840 --> 00:02:14,320 Speaker 2: they would give a injunction against the statute to get 34 00:02:14,400 --> 00:02:18,960 Speaker 2: rid of the January nineteenth deadline. So obviously, TikTok is 35 00:02:18,960 --> 00:02:22,640 Speaker 2: incredibly popular in the United States, particularly amongst young people, 36 00:02:22,680 --> 00:02:26,360 Speaker 2: but also for adults as well, and the fear that 37 00:02:26,480 --> 00:02:30,040 Speaker 2: led Congress to order the divestiture is the fact that 38 00:02:30,680 --> 00:02:33,760 Speaker 2: there is not only a Chinese parent, but the Chinese 39 00:02:33,800 --> 00:02:37,320 Speaker 2: parent here can collect so much information about one hundred 40 00:02:37,320 --> 00:02:41,200 Speaker 2: million users or so on TikTok and then change the 41 00:02:41,280 --> 00:02:45,400 Speaker 2: algorithms by which people see information and through doing that, 42 00:02:45,960 --> 00:02:49,880 Speaker 2: influence America in a way that is more pro Chinese. 43 00:02:50,040 --> 00:02:52,880 Speaker 2: There's been no evidence that by Dance and TikTok has 44 00:02:52,919 --> 00:02:56,040 Speaker 2: done this, but it's certainly, i think well accepted that 45 00:02:56,120 --> 00:03:00,200 Speaker 2: they could if they wanted to sort of just disinformationation 46 00:03:00,720 --> 00:03:04,120 Speaker 2: all the incredible number of users of TikTok in a 47 00:03:04,120 --> 00:03:07,120 Speaker 2: way that would jeopardize our foreign policy. So that's what 48 00:03:07,240 --> 00:03:11,720 Speaker 2: led Congress to or the divestiture. But that raises huge 49 00:03:11,720 --> 00:03:16,519 Speaker 2: First Amendment questions because it is picking out one particular 50 00:03:16,560 --> 00:03:20,480 Speaker 2: social media platform and saying that there can no longer 51 00:03:20,960 --> 00:03:24,639 Speaker 2: be free expression in that venue because of the fear 52 00:03:25,000 --> 00:03:28,520 Speaker 2: of the Chinese influence. So it really raises a very 53 00:03:28,560 --> 00:03:31,560 Speaker 2: important but a very novel First Amendment claim, and that's 54 00:03:31,600 --> 00:03:34,320 Speaker 2: what will be heard in January tenth in order to 55 00:03:34,480 --> 00:03:36,760 Speaker 2: make sure there's enough time for the Court to act 56 00:03:36,760 --> 00:03:39,600 Speaker 2: before January nineteenth if they are so inclined. 57 00:03:40,520 --> 00:03:44,120 Speaker 1: So one thing that's interesting is that President elect Donald 58 00:03:44,120 --> 00:03:48,280 Speaker 1: Trump asked the court to stay the law without taking 59 00:03:48,280 --> 00:03:51,440 Speaker 1: a stance on whether the law is unconstitutional. And here 60 00:03:51,520 --> 00:03:57,360 Speaker 1: is what his lawyer, John Sower, the future Uslicitor General, wrote, 61 00:03:57,520 --> 00:04:01,760 Speaker 1: President Trump alone possesses the consummate deal making expertise, the 62 00:04:01,800 --> 00:04:05,840 Speaker 1: electoral mandate, and the political will to negotiate a resolution 63 00:04:06,040 --> 00:04:10,200 Speaker 1: to save the platform while addressing the national security concerns 64 00:04:10,240 --> 00:04:14,360 Speaker 1: expressed by the government. It's unprecedented to have a future 65 00:04:14,440 --> 00:04:18,320 Speaker 1: president intervene in a case before the Court before he 66 00:04:18,400 --> 00:04:21,880 Speaker 1: takes office to try to counteract something that the current 67 00:04:21,960 --> 00:04:23,520 Speaker 1: president has done. 68 00:04:23,680 --> 00:04:27,359 Speaker 2: So what's even more amazing about that filing is that 69 00:04:27,440 --> 00:04:31,760 Speaker 2: it raises a presidential power issue under Article two that 70 00:04:31,839 --> 00:04:34,320 Speaker 2: has never been discussed in the court before, which is 71 00:04:34,360 --> 00:04:37,520 Speaker 2: what about the Article too interests of a president elect? 72 00:04:37,880 --> 00:04:40,080 Speaker 2: Because what President Trump has done, in a kind of 73 00:04:40,160 --> 00:04:45,000 Speaker 2: rambling filing is suggests that his progatives as a future 74 00:04:45,040 --> 00:04:49,680 Speaker 2: president should be preserved under Article two by deciding to 75 00:04:49,720 --> 00:04:53,560 Speaker 2: stay the divestiture date of January nineteenth. We've just never 76 00:04:53,600 --> 00:04:57,360 Speaker 2: had a case on the powers of a president elect, 77 00:04:57,880 --> 00:05:02,240 Speaker 2: and President Trump's filing does raise the issue. It's a 78 00:05:02,279 --> 00:05:04,520 Speaker 2: can of worms that has not been opened, but it 79 00:05:04,560 --> 00:05:06,960 Speaker 2: may be opened by the Supreme Court. We'll have to 80 00:05:06,960 --> 00:05:08,920 Speaker 2: see if the course, the Court doesn't have to reach 81 00:05:09,000 --> 00:05:12,120 Speaker 2: that issue in deciding whether to stay the case or not, 82 00:05:12,480 --> 00:05:14,359 Speaker 2: but it's a fascinating stub issue. 83 00:05:14,920 --> 00:05:19,760 Speaker 1: Well, we were all surprised when the Court expanded presidential 84 00:05:19,800 --> 00:05:24,719 Speaker 1: immunity from criminal prosecution. So I suppose anything is possible. 85 00:05:25,120 --> 00:05:27,880 Speaker 2: Anything is possible, And you know, as a political matter, 86 00:05:28,279 --> 00:05:32,120 Speaker 2: President trump'submission makes some sense because what the Court does 87 00:05:32,320 --> 00:05:34,880 Speaker 2: by delaying or not delaying the deadline on January nineteenth, 88 00:05:35,000 --> 00:05:37,800 Speaker 2: will have an impact on his presidency. And so there 89 00:05:37,839 --> 00:05:40,920 Speaker 2: is absolutely more than a kernel of truth in what 90 00:05:41,040 --> 00:05:42,880 Speaker 2: President Trump has stated. 91 00:05:43,200 --> 00:05:46,440 Speaker 1: And we're guaranteed to get a ruling quickly in one 92 00:05:46,480 --> 00:05:49,480 Speaker 1: week's time because the Court has to rule before that 93 00:05:49,680 --> 00:05:52,000 Speaker 1: January nineteenth deadline, and there. 94 00:05:51,880 --> 00:05:54,560 Speaker 2: Will be a number of options. TikTok, of course, can 95 00:05:54,640 --> 00:05:56,960 Speaker 2: sell itself to an American company, and there are some 96 00:05:57,040 --> 00:06:00,280 Speaker 2: American based companies that are suggesting that they're interested. So 97 00:06:00,320 --> 00:06:04,440 Speaker 2: there are ways that TikTok can continue on even with 98 00:06:04,560 --> 00:06:05,560 Speaker 2: the steadline looming. 99 00:06:05,839 --> 00:06:09,360 Speaker 1: So on January fifteenth, the justices are going to hear 100 00:06:09,600 --> 00:06:13,919 Speaker 1: arguments in a case challenging a Texas law that requires 101 00:06:14,080 --> 00:06:18,520 Speaker 1: porn sites to verify the ages of users. This has 102 00:06:18,560 --> 00:06:21,440 Speaker 1: forced one of the biggest sites, porn Hub, to shut 103 00:06:21,520 --> 00:06:24,719 Speaker 1: down in Texas. Industry groups are fighting this, are suing 104 00:06:24,720 --> 00:06:26,560 Speaker 1: over this. What is their contention? 105 00:06:27,240 --> 00:06:30,479 Speaker 2: They have two general First Amendment claims that I think 106 00:06:30,480 --> 00:06:35,360 Speaker 2: they're quite substantial. The first is more of a doctrinal one. 107 00:06:35,480 --> 00:06:39,479 Speaker 2: The court below used a kind of rational basis test 108 00:06:39,839 --> 00:06:44,680 Speaker 2: in order to assess the legitimacy of this statute in 109 00:06:44,720 --> 00:06:49,040 Speaker 2: terms of protecting minors as opposed to a more demanding 110 00:06:49,080 --> 00:06:52,839 Speaker 2: scrutiny test. And if their strict scrutiny had been afforded 111 00:06:52,880 --> 00:06:56,240 Speaker 2: as it has been afforded to other similar kinds of 112 00:06:56,720 --> 00:07:00,880 Speaker 2: age restrictions in statutes on First Amendment grounds that then 113 00:07:01,160 --> 00:07:04,279 Speaker 2: the statute probably would be struck down. So the first 114 00:07:04,440 --> 00:07:07,359 Speaker 2: challenge is simply one did the court below use the 115 00:07:07,400 --> 00:07:10,360 Speaker 2: wrong standard of scrutiny, in which case the court might 116 00:07:10,520 --> 00:07:14,800 Speaker 2: then just remanded back for another go round with the 117 00:07:14,840 --> 00:07:19,320 Speaker 2: Fifth Circuit. But the second issue is more predictable, which is, 118 00:07:19,680 --> 00:07:24,600 Speaker 2: if you have an age verification on a statute and 119 00:07:24,640 --> 00:07:28,080 Speaker 2: you require adults to put in you know, whether it's 120 00:07:28,120 --> 00:07:31,720 Speaker 2: driver's licenses or other proof of age, you will deter 121 00:07:31,960 --> 00:07:35,160 Speaker 2: people from going to that site for fear of privacy 122 00:07:35,160 --> 00:07:40,000 Speaker 2: invasions for fear of manipulation, et cetera. So there will 123 00:07:40,040 --> 00:07:44,200 Speaker 2: be a diminution in free expression by having an age 124 00:07:44,280 --> 00:07:46,880 Speaker 2: verification on this kind of site. So that's sort of 125 00:07:47,200 --> 00:07:50,560 Speaker 2: one traditional First Amendment argument. And you know, the second 126 00:07:50,680 --> 00:07:54,440 Speaker 2: is probably the way the statute is crafted. It applies 127 00:07:54,480 --> 00:07:56,880 Speaker 2: to any site which has at least a third of 128 00:07:56,880 --> 00:08:00,960 Speaker 2: its material which may be distasteful or content which is 129 00:08:01,040 --> 00:08:04,440 Speaker 2: inappropriate for children. Well, how do you determine that if 130 00:08:04,440 --> 00:08:07,720 Speaker 2: you have artworks on display, or if you have some 131 00:08:07,800 --> 00:08:11,200 Speaker 2: kind of erotic poetry, And so there may be just 132 00:08:11,320 --> 00:08:17,560 Speaker 2: a deterrenceive speech by websites having to self edit for 133 00:08:17,640 --> 00:08:21,680 Speaker 2: fear of reaching this one third threshold, which is very 134 00:08:21,680 --> 00:08:26,160 Speaker 2: hard to ascertain. So there is a Supreme Court case 135 00:08:26,720 --> 00:08:29,400 Speaker 2: almost on point of about twenty years ago. It looked 136 00:08:29,440 --> 00:08:33,240 Speaker 2: at the Hilt Online Privacy Act and it had an 137 00:08:33,440 --> 00:08:36,360 Speaker 2: age verification it and it was struck down as unconstitutional 138 00:08:36,360 --> 00:08:39,600 Speaker 2: and never re enacted by Congress. And I would predict 139 00:08:39,600 --> 00:08:41,839 Speaker 2: that the Texas Statute would be held to be on 140 00:08:41,920 --> 00:08:46,319 Speaker 2: constitutional as well, particularly if the Heidens standard of scrutiny 141 00:08:46,640 --> 00:08:47,840 Speaker 2: is required by the court. 142 00:08:48,280 --> 00:08:51,440 Speaker 1: The Texas Attorney General is pointing to a nineteen sixty 143 00:08:51,440 --> 00:08:55,080 Speaker 1: eight Supreme Court decision that said states could bar the 144 00:08:55,120 --> 00:08:59,160 Speaker 1: dissemination of pornographic magazines to minors. 145 00:08:59,440 --> 00:09:02,840 Speaker 2: Is that, Well, the difference is the websites. Right, Once 146 00:09:02,880 --> 00:09:07,480 Speaker 2: we have a whole kind of different world that can't 147 00:09:07,480 --> 00:09:11,600 Speaker 2: be cordoned off into magazines delivered or magazines not delivered. 148 00:09:11,960 --> 00:09:14,880 Speaker 2: We have a new First Amendment dimension that has been 149 00:09:14,960 --> 00:09:18,000 Speaker 2: added to it. Now, what's interesting I think about this 150 00:09:18,600 --> 00:09:23,760 Speaker 2: is that the Biden administration has held that it's likely 151 00:09:23,840 --> 00:09:27,680 Speaker 2: to be unconstitutional, and so the question is what will 152 00:09:27,679 --> 00:09:32,000 Speaker 2: a Trump administration do? And that's something that's common in 153 00:09:32,080 --> 00:09:35,559 Speaker 2: all of these cases is when there has been a 154 00:09:36,400 --> 00:09:38,240 Speaker 2: not so much in the Texas case, which will go 155 00:09:38,280 --> 00:09:40,800 Speaker 2: on because it doesn't evolve an Act of Congress, but 156 00:09:40,880 --> 00:09:45,680 Speaker 2: once there has been a determination by the Soster General 157 00:09:45,720 --> 00:09:48,400 Speaker 2: of what position to take, you know, the Trump administration 158 00:09:48,480 --> 00:09:51,199 Speaker 2: may file something and say we no longer have that position, 159 00:09:51,320 --> 00:09:54,320 Speaker 2: or we're changing that position, we're changing regulation. So a 160 00:09:54,320 --> 00:09:56,720 Speaker 2: lot of the cases that are on the docket for 161 00:09:56,960 --> 00:10:00,360 Speaker 2: this first half of twenty twenty five may end up 162 00:10:00,360 --> 00:10:02,680 Speaker 2: in a very different procedural stance from when it started. 163 00:10:02,880 --> 00:10:05,679 Speaker 1: So the justices that are going to review a Wisconsin 164 00:10:05,760 --> 00:10:11,320 Speaker 1: Supreme Court decision that denied Catholic charities an exemption from 165 00:10:11,360 --> 00:10:13,840 Speaker 1: Wisconsin's unemployment tax. 166 00:10:14,640 --> 00:10:18,880 Speaker 2: The question here is whether you can deny a tax 167 00:10:18,920 --> 00:10:22,959 Speaker 2: rexemption to an arm of a religious institution, even though 168 00:10:22,960 --> 00:10:26,760 Speaker 2: you couldn't deny it to the religious institution itself. So 169 00:10:27,040 --> 00:10:31,040 Speaker 2: the states that have these exemptions in terms of applying 170 00:10:31,040 --> 00:10:35,160 Speaker 2: it to religious organizations, they say, religious organizations are exempt, 171 00:10:35,440 --> 00:10:38,160 Speaker 2: but how do you tell if it's really a religious organization? 172 00:10:38,800 --> 00:10:44,080 Speaker 2: And the language in the Wisconsin statute itself basically held 173 00:10:44,120 --> 00:10:47,680 Speaker 2: that has to be organizations that are operated primarily for 174 00:10:47,720 --> 00:10:52,440 Speaker 2: religious purposes, and they use a test to determine not 175 00:10:52,559 --> 00:10:57,760 Speaker 2: just the motivation underlying the arm of the religious entity, 176 00:10:58,040 --> 00:11:01,880 Speaker 2: but also their activities. In this case, they said, yes, 177 00:11:02,360 --> 00:11:06,720 Speaker 2: there can be great religious motivations for operating charities, and 178 00:11:06,880 --> 00:11:09,880 Speaker 2: they latted the efforts of the Catholic Church to help 179 00:11:09,880 --> 00:11:13,120 Speaker 2: out people with disabilities. But they said that the actions 180 00:11:13,200 --> 00:11:18,360 Speaker 2: of the religious group are secular. It's nothing about imbuing 181 00:11:18,520 --> 00:11:23,360 Speaker 2: people with religious sense or devotion or anything along those lines. 182 00:11:24,040 --> 00:11:27,920 Speaker 2: And the court therefore made a distinction between a motivation 183 00:11:28,280 --> 00:11:32,000 Speaker 2: to create a school, for instance, or a hospital as 184 00:11:32,000 --> 00:11:35,920 Speaker 2: opposed to trying to encourage religious doctrine. So that is 185 00:11:35,960 --> 00:11:39,720 Speaker 2: a difficult line drawing issue, and that's the argument here 186 00:11:39,760 --> 00:11:43,280 Speaker 2: of why it's unconstitutional. That will mesh the courts in 187 00:11:43,400 --> 00:11:46,760 Speaker 2: determining whether these activities are really religious or not. But 188 00:11:46,840 --> 00:11:49,280 Speaker 2: on the other hand, as the Coreme Court said more 189 00:11:49,280 --> 00:11:51,920 Speaker 2: than twenty years ago in the Walks case, sometimes this 190 00:11:52,080 --> 00:11:56,280 Speaker 2: line drawing for tax resumption is just inevitable. You can't 191 00:11:56,320 --> 00:11:58,480 Speaker 2: really get around it. You have to have some kind 192 00:11:58,520 --> 00:12:03,400 Speaker 2: of tests in this instance to try to suggest that 193 00:12:03,520 --> 00:12:06,040 Speaker 2: when you can have exemptions from you know, in this case, 194 00:12:06,080 --> 00:12:09,880 Speaker 2: taxes that help people who are unemployed citizens of Wisconsin 195 00:12:10,760 --> 00:12:13,200 Speaker 2: on the one hand, on the other hand, be respectful 196 00:12:13,320 --> 00:12:17,360 Speaker 2: of religious institutions. So that's where the test of motivations 197 00:12:17,360 --> 00:12:20,880 Speaker 2: and activities separations come from. And we'll see if the 198 00:12:21,040 --> 00:12:23,000 Speaker 2: court and stuff like that. It's really unclear. 199 00:12:23,559 --> 00:12:28,079 Speaker 1: So, but the Roberts Court has expanded religious rights over 200 00:12:28,120 --> 00:12:31,200 Speaker 1: and over again. Is this another chance for them to 201 00:12:31,320 --> 00:12:33,000 Speaker 1: expand religious rights? 202 00:12:33,400 --> 00:12:35,320 Speaker 2: It is a chance, and it certainly it wouldn't be 203 00:12:35,320 --> 00:12:38,200 Speaker 2: shocking for the court to do that. But it is 204 00:12:38,240 --> 00:12:41,720 Speaker 2: I think only fair to note that if the Court 205 00:12:42,000 --> 00:12:47,760 Speaker 2: decides that wisconunting cannot make a distinction between Catholic charities 206 00:12:47,880 --> 00:12:51,000 Speaker 2: and the Catholic Church. That this will give a huge 207 00:12:51,040 --> 00:12:55,200 Speaker 2: advantage to religious based organizations that are in health care 208 00:12:55,200 --> 00:12:58,079 Speaker 2: and education, who then don't have to pay the same 209 00:12:58,160 --> 00:13:02,559 Speaker 2: taxes that secular hospitals and secular universities. 210 00:13:02,920 --> 00:13:06,520 Speaker 1: Coming up next, will the powers of federal agencies take 211 00:13:06,559 --> 00:13:11,640 Speaker 1: another hit this term. This is Bloomberg. I've been talking 212 00:13:11,640 --> 00:13:14,480 Speaker 1: to Professor Harold Krant to the Chicago Kent College of 213 00:13:14,600 --> 00:13:17,840 Speaker 1: Law about the oral arguments coming up at the Supreme 214 00:13:17,960 --> 00:13:20,360 Speaker 1: Court in the new year. So let's turn out to 215 00:13:20,440 --> 00:13:25,240 Speaker 1: some cases involving agency authority, which the Supreme Court has 216 00:13:26,280 --> 00:13:30,880 Speaker 1: been rigorously, shall we say, cutting back on federal regulatory authority. 217 00:13:31,240 --> 00:13:34,880 Speaker 1: They're going to consider the constitutionality of the eight billion 218 00:13:34,960 --> 00:13:39,840 Speaker 1: dollars annual subsidies that help cover the cost of telecom 219 00:13:40,000 --> 00:13:44,600 Speaker 1: services for poor people and rural residents. So this is 220 00:13:44,640 --> 00:13:47,800 Speaker 1: about the power of the Federal Communications Commission. 221 00:13:48,080 --> 00:13:51,640 Speaker 2: Absolutely, this is a Federal Communications Commission rule, but it's 222 00:13:51,640 --> 00:13:55,079 Speaker 2: done by delegation from Congress, and so that there are 223 00:13:55,120 --> 00:13:59,760 Speaker 2: Congresses delegated to the sec the power to impose this 224 00:13:59,760 --> 00:14:03,439 Speaker 2: fear and the first claim against it is the fact 225 00:14:03,440 --> 00:14:06,880 Speaker 2: that the SEC shouldn't be imposing a fee that's a tax, 226 00:14:06,920 --> 00:14:10,480 Speaker 2: and only Congress can impose taxes. This would be a 227 00:14:10,520 --> 00:14:15,319 Speaker 2: wild argument if the Supreme Court buys it, because agencies 228 00:14:15,640 --> 00:14:18,520 Speaker 2: apply user fees all the time, and you can look 229 00:14:18,559 --> 00:14:20,320 Speaker 2: at user fees as a tax, you can look at 230 00:14:20,320 --> 00:14:23,040 Speaker 2: them as something else, a subsidy. How do you distinguish 231 00:14:23,080 --> 00:14:25,840 Speaker 2: one from the other. So one way that the Court 232 00:14:25,840 --> 00:14:29,360 Speaker 2: could just cut back again dramatically the power of agencies 233 00:14:29,720 --> 00:14:32,560 Speaker 2: is to begin to say that anything that looks like 234 00:14:32,600 --> 00:14:35,320 Speaker 2: a tax can only come from Congress as opposed to 235 00:14:35,320 --> 00:14:37,240 Speaker 2: the agencies. I don't think the Court will go there, 236 00:14:37,480 --> 00:14:40,320 Speaker 2: but that's at least one possibility. And there's another one 237 00:14:40,400 --> 00:14:44,200 Speaker 2: that is pretty clear, because the statue itself says that 238 00:14:44,240 --> 00:14:48,680 Speaker 2: the fee should be quote sufficient to preserve and advance 239 00:14:49,040 --> 00:14:53,360 Speaker 2: universal service. That admittedly is quite vague, and so this 240 00:14:53,400 --> 00:14:57,360 Speaker 2: is another vehicle potentially for the Court to revive the 241 00:14:57,440 --> 00:15:01,400 Speaker 2: non delegation doctrine, and that would say that Congress, if 242 00:15:01,440 --> 00:15:04,600 Speaker 2: it gives power to the SEC, has to be far 243 00:15:04,640 --> 00:15:09,160 Speaker 2: more nuanced and clear than this sort of broad understanding 244 00:15:09,280 --> 00:15:13,600 Speaker 2: that they set fees sufficient to preserve in advanced universal service, 245 00:15:13,880 --> 00:15:18,000 Speaker 2: just not giving enough direction to the administrative agency. And 246 00:15:18,120 --> 00:15:21,800 Speaker 2: there's a third side of this particular challenge which I 247 00:15:21,840 --> 00:15:23,760 Speaker 2: think is going to be very close on the Supreme Court, 248 00:15:24,120 --> 00:15:27,320 Speaker 2: which is that the agency has given too much power 249 00:15:27,360 --> 00:15:32,840 Speaker 2: to a private group. The SEC decided to use a 250 00:15:33,080 --> 00:15:36,080 Speaker 2: group in this case, which is called a Universal Service 251 00:15:36,120 --> 00:15:40,480 Speaker 2: Administration Company, which is a private group of mainly people 252 00:15:40,520 --> 00:15:44,040 Speaker 2: in the telecom industry. They gave that power to set 253 00:15:44,040 --> 00:15:47,520 Speaker 2: the fee and provided that if the agency took no 254 00:15:47,640 --> 00:15:52,160 Speaker 2: action within fourteen days, the fee recommended by this private 255 00:15:52,160 --> 00:15:55,440 Speaker 2: group would become binding. So the court may say that 256 00:15:55,480 --> 00:15:59,960 Speaker 2: the involvement in this private group makes the delegation even 257 00:16:00,640 --> 00:16:05,840 Speaker 2: more constitutionally problematic and strike down the structure on that ground. 258 00:16:06,320 --> 00:16:09,200 Speaker 2: And I think maybe it's a small point, but I 259 00:16:09,240 --> 00:16:12,520 Speaker 2: think the court might say, look, the agency at least 260 00:16:12,640 --> 00:16:18,000 Speaker 2: has to take some positive, concrete actions, such as accepting 261 00:16:18,640 --> 00:16:22,240 Speaker 2: a private recommendation from the group as to the fee 262 00:16:22,520 --> 00:16:25,200 Speaker 2: before it becomes binding in the name of the United States. 263 00:16:25,640 --> 00:16:30,720 Speaker 2: And as the statute is written, the private groups recommendation 264 00:16:30,840 --> 00:16:34,480 Speaker 2: becomes final if no action is taken on behalf of 265 00:16:34,520 --> 00:16:37,480 Speaker 2: the agency. And that might seem like a minor issue, 266 00:16:37,640 --> 00:16:39,680 Speaker 2: but it may be just one step too far for 267 00:16:39,720 --> 00:16:42,920 Speaker 2: the Court in order to signal the Congress to stop 268 00:16:43,440 --> 00:16:46,600 Speaker 2: giving too much authority to private parties who are not 269 00:16:46,680 --> 00:16:51,160 Speaker 2: subject to close oversight by the President or heads of agencies. 270 00:16:51,520 --> 00:16:55,040 Speaker 1: You mentioned wild arguments. This case is an appealed from 271 00:16:55,040 --> 00:16:58,600 Speaker 1: the Fifth Circuit, which is the most conservative circuit in 272 00:16:58,640 --> 00:17:02,760 Speaker 1: the country and often has novel arguments, shall we say, 273 00:17:03,160 --> 00:17:06,199 Speaker 1: And it's a split with two other appellate courts in 274 00:17:06,240 --> 00:17:09,639 Speaker 1: declaring the program invalid. So does it seem like the 275 00:17:09,680 --> 00:17:13,080 Speaker 1: Court took this case to overturn to reverse the Fifth Circuit. 276 00:17:14,000 --> 00:17:16,320 Speaker 2: It's unclear to me. I think that the case has 277 00:17:16,320 --> 00:17:19,160 Speaker 2: some merit to it, and I think that the Court 278 00:17:19,200 --> 00:17:22,280 Speaker 2: has been interested in non delegation issues, and particularly non 279 00:17:22,320 --> 00:17:26,320 Speaker 2: delegation issues involving power that's shared with private parties. So 280 00:17:26,520 --> 00:17:29,680 Speaker 2: I'm not surprised that the Court took this case. And 281 00:17:29,720 --> 00:17:31,400 Speaker 2: there is a split in the circuits, and I don't 282 00:17:31,440 --> 00:17:33,760 Speaker 2: think we can be confident that the Court's going to 283 00:17:33,760 --> 00:17:36,239 Speaker 2: rebuff the Fifth Circuit in this particular case. I think 284 00:17:36,280 --> 00:17:39,160 Speaker 2: there will in other cases, but not necessarily in this one, 285 00:17:39,240 --> 00:17:42,960 Speaker 2: because this is a somewhat of a standardless delegation involving 286 00:17:43,040 --> 00:17:47,520 Speaker 2: sharing power with private parties, something that is of interest 287 00:17:47,560 --> 00:17:48,840 Speaker 2: to a number of the justices. 288 00:17:49,200 --> 00:17:55,040 Speaker 1: There is a clash involving California's strict vehicle pollution laws, 289 00:17:55,520 --> 00:17:59,040 Speaker 1: but this is a preliminary question of standing and whether 290 00:17:59,080 --> 00:18:02,160 Speaker 1: the fuel producers have the legal right to sue over 291 00:18:02,200 --> 00:18:02,840 Speaker 1: the regulation. 292 00:18:03,080 --> 00:18:05,600 Speaker 2: That's right, I mean, the underlying this case is a 293 00:18:05,600 --> 00:18:09,880 Speaker 2: waiver that is very controversial that the EPA or Environmental 294 00:18:09,880 --> 00:18:14,840 Speaker 2: Protection Agency gave to California to exempt them from sort 295 00:18:14,880 --> 00:18:19,840 Speaker 2: of national requirements in terms of regulation of fuel emissions, 296 00:18:20,040 --> 00:18:23,720 Speaker 2: allowing California to go its own way. California has gone 297 00:18:23,760 --> 00:18:26,240 Speaker 2: its own way since twenty thirteen. It was cut back 298 00:18:26,240 --> 00:18:28,520 Speaker 2: a little bit during the tough administration the first one, 299 00:18:28,520 --> 00:18:33,040 Speaker 2: but not completely, and California is much more rigorous in 300 00:18:33,160 --> 00:18:38,760 Speaker 2: terms of requiring less fuel emissions than other states, and 301 00:18:38,800 --> 00:18:42,520 Speaker 2: of course the industry has chafed against that repeatedly, but 302 00:18:42,640 --> 00:18:45,120 Speaker 2: lost it politically to try to do anything about it. 303 00:18:45,440 --> 00:18:50,600 Speaker 2: So this involves some lawsuits by fuel producers saying because 304 00:18:50,840 --> 00:18:57,119 Speaker 2: of California's exemption, their ability then to regulate more stringently, 305 00:18:57,480 --> 00:19:01,359 Speaker 2: people are buying less fuel. At the one level, you 306 00:19:01,440 --> 00:19:06,280 Speaker 2: can say, yes, that's logical, and that these fuel producers 307 00:19:06,280 --> 00:19:10,520 Speaker 2: should have standing because they're injured, because people will likely 308 00:19:11,119 --> 00:19:14,960 Speaker 2: then pay less money for fuel if they have more 309 00:19:15,600 --> 00:19:20,200 Speaker 2: energy sufficient cars. But there are two problems with the argument, 310 00:19:20,240 --> 00:19:23,280 Speaker 2: and that's what led the Ninth Circuit to hold that 311 00:19:23,320 --> 00:19:26,159 Speaker 2: there is no standing in this case. The first is 312 00:19:26,200 --> 00:19:31,240 Speaker 2: that there is no showing that car manufacturers would make 313 00:19:31,320 --> 00:19:35,080 Speaker 2: different fleets of cars available but for California's rules. And 314 00:19:35,160 --> 00:19:38,960 Speaker 2: so the argument there that was given by California, it's saying, 315 00:19:39,320 --> 00:19:42,280 Speaker 2: you know, think about Tesla, if you think about even 316 00:19:43,119 --> 00:19:47,840 Speaker 2: Chevrolet and Honda and so forth, they're making more fuel 317 00:19:48,200 --> 00:19:53,320 Speaker 2: conscious cars all the time, the electric fleets, the hybrids, 318 00:19:53,760 --> 00:19:57,760 Speaker 2: and it's not clear that even if California changed its 319 00:19:57,800 --> 00:20:02,919 Speaker 2: regulations that they would decide to produce a different type 320 00:20:03,320 --> 00:20:06,639 Speaker 2: of car for the market. Now that's a serious argument 321 00:20:06,920 --> 00:20:10,880 Speaker 2: and it does undercut I think standing significantly. But then 322 00:20:10,880 --> 00:20:13,640 Speaker 2: the court relied on the second reason to suggest there 323 00:20:13,680 --> 00:20:18,320 Speaker 2: was no standing, namely no addressability, because the actual action 324 00:20:19,160 --> 00:20:23,919 Speaker 2: that the fuel producers was challenging was the Plan of 325 00:20:24,000 --> 00:20:28,919 Speaker 2: California that was to be implemented from twenty seventeen to 326 00:20:28,920 --> 00:20:32,399 Speaker 2: twenty twenty five. Well, guess what we're in twenty twenty 327 00:20:32,440 --> 00:20:37,439 Speaker 2: five now, So even if car manufacturers would produce different 328 00:20:37,480 --> 00:20:41,840 Speaker 2: cars if California lessened its regulation, they couldn't do it 329 00:20:41,880 --> 00:20:44,920 Speaker 2: in time for twenty twenty five because there's too much 330 00:20:45,240 --> 00:20:48,840 Speaker 2: lead time required to bring different cars to the market. 331 00:20:49,240 --> 00:20:52,159 Speaker 2: So the argument is pretty strong that there is no 332 00:20:52,240 --> 00:20:55,400 Speaker 2: addressability in this case, namely that even if the fuel 333 00:20:55,440 --> 00:20:59,720 Speaker 2: producers won and would say that this waiver for California 334 00:21:00,080 --> 00:21:03,920 Speaker 2: is against the spirit of the statute, that there still 335 00:21:03,920 --> 00:21:06,159 Speaker 2: would be no change because there isn't time for a change, 336 00:21:06,400 --> 00:21:08,840 Speaker 2: and that whether a change would happen is still so 337 00:21:09,000 --> 00:21:11,960 Speaker 2: speculative because it depends upon the actions of third parties 338 00:21:11,960 --> 00:21:16,080 Speaker 2: not before the court, namely the automobile manufacturers. So at 339 00:21:16,080 --> 00:21:18,639 Speaker 2: the bottom of the case is a very important issue 340 00:21:18,640 --> 00:21:23,760 Speaker 2: of power, and did the EPA violate somehow these statutory 341 00:21:24,359 --> 00:21:27,720 Speaker 2: instructions by giving this broad waiver to California. That's a 342 00:21:27,800 --> 00:21:31,960 Speaker 2: very important issue. But in this particular context, the core, 343 00:21:32,040 --> 00:21:35,760 Speaker 2: I think is probably on strong ground in saying no standing. 344 00:21:36,119 --> 00:21:41,280 Speaker 1: And California's waiver isn't it in danger already? Because Trump 345 00:21:41,359 --> 00:21:46,480 Speaker 1: campaigned on promises to end ev mandates, and his administration 346 00:21:46,680 --> 00:21:49,800 Speaker 1: is expected to try to withdraw the waiver. 347 00:21:50,080 --> 00:21:53,399 Speaker 2: So it's an interesting question, right because at the one hand, 348 00:21:53,640 --> 00:21:57,080 Speaker 2: during the first administration there was a restriction of the 349 00:21:57,119 --> 00:22:00,600 Speaker 2: waiver authority at the EPA, but it wasn't got to completely. 350 00:22:01,119 --> 00:22:04,840 Speaker 2: And Elon Muscow is a friend of the president so 351 00:22:04,920 --> 00:22:09,560 Speaker 2: far as we know, certainly benefits from the tighter restrictions 352 00:22:09,560 --> 00:22:13,280 Speaker 2: that are imposed by California. So what the Trump administration 353 00:22:13,320 --> 00:22:15,840 Speaker 2: will do is really an unknown. But yes, it may 354 00:22:15,960 --> 00:22:20,800 Speaker 2: change the face of this litigation substantially if the Trump 355 00:22:20,880 --> 00:22:23,320 Speaker 2: EPA decides to pull back the waiver. 356 00:22:24,240 --> 00:22:27,639 Speaker 1: So the court's going to consider reviving a plan to 357 00:22:27,840 --> 00:22:32,560 Speaker 1: store as much as forty thousand tons of highly radioactive 358 00:22:32,600 --> 00:22:37,679 Speaker 1: waste at a temporary West Texas site, and Texas is 359 00:22:37,720 --> 00:22:40,959 Speaker 1: opposing this. What is the basis for Texas's opposition? 360 00:22:41,400 --> 00:22:45,399 Speaker 2: So Originally, under the Atomic Energy Act, it was clear 361 00:22:45,520 --> 00:22:50,080 Speaker 2: that the Nuclear Regulatory Commission had the power to license 362 00:22:50,320 --> 00:22:55,399 Speaker 2: both radioactive dump sites that are located at the nuclear 363 00:22:55,440 --> 00:23:01,000 Speaker 2: facility as well as radioactive storage sites off site, and 364 00:23:01,560 --> 00:23:05,280 Speaker 2: the Nuclear Record three Commission, and as predecessor, did this 365 00:23:05,480 --> 00:23:10,119 Speaker 2: for generations. Congress, however, recognized that there was a great 366 00:23:10,200 --> 00:23:14,480 Speaker 2: deal of difficulty and tried many times to encourage others 367 00:23:14,920 --> 00:23:19,400 Speaker 2: to build these radioactive sites because nobody wants them, and 368 00:23:19,480 --> 00:23:23,199 Speaker 2: so they wanted to create enough sort of incentive or 369 00:23:23,280 --> 00:23:26,719 Speaker 2: force to make sure that these sites existed, which are 370 00:23:26,760 --> 00:23:30,520 Speaker 2: critical because of the waste coming from nuclear facilities. And 371 00:23:30,560 --> 00:23:34,080 Speaker 2: there's been a series of litigations that have been spawned 372 00:23:34,080 --> 00:23:37,800 Speaker 2: by this effort. But the key issue here, according to 373 00:23:37,840 --> 00:23:43,200 Speaker 2: the Circuit, is when Congress later enacted the Nuclear Waste 374 00:23:43,240 --> 00:23:46,600 Speaker 2: Policy Act in nineteen eighty two, it was clear in 375 00:23:46,640 --> 00:23:51,560 Speaker 2: that act that it was encouraging the actual operators of 376 00:23:51,600 --> 00:23:56,520 Speaker 2: the nuclear sites to create their own storage facilities. So 377 00:23:56,560 --> 00:23:59,000 Speaker 2: the argument that was given by the State of Texas 378 00:23:59,520 --> 00:24:04,719 Speaker 2: was that this particular license violates the spirit of the 379 00:24:05,200 --> 00:24:08,320 Speaker 2: nineteen eighty two Act, which is subsequent to the original 380 00:24:08,359 --> 00:24:12,199 Speaker 2: authorization for the regulation. And if Congress is saying we 381 00:24:12,240 --> 00:24:18,200 Speaker 2: are encouraging all site owners to develop their own temporary 382 00:24:18,240 --> 00:24:22,720 Speaker 2: storage facilities, how can the agency go and license a 383 00:24:22,800 --> 00:24:25,560 Speaker 2: one that is off site. This is the question about 384 00:24:26,080 --> 00:24:30,359 Speaker 2: really interpreting the statute. Is it just a hortatory kind 385 00:24:30,400 --> 00:24:33,440 Speaker 2: of statement from the Congress saying we think this would 386 00:24:33,440 --> 00:24:36,359 Speaker 2: be a good idea, or can this really be interpreted 387 00:24:36,400 --> 00:24:39,000 Speaker 2: as the Fifth Circuit did to say you are no 388 00:24:39,119 --> 00:24:43,119 Speaker 2: longer allowed to license in a off facility place. I 389 00:24:43,160 --> 00:24:46,360 Speaker 2: think it's likely that the Court is going to turn 390 00:24:46,400 --> 00:24:48,680 Speaker 2: back the Fifth Circuit here because it would be such 391 00:24:48,680 --> 00:24:53,000 Speaker 2: a reversal of practice over the last twenty five years 392 00:24:53,160 --> 00:24:54,119 Speaker 2: and more that we'll. 393 00:24:53,960 --> 00:24:54,360 Speaker 3: Have to see. 394 00:24:54,520 --> 00:24:57,320 Speaker 1: And again, this is the Fifth Circuit in conflict with 395 00:24:57,480 --> 00:25:02,879 Speaker 1: other circuits, upending more than forty years of NRC practices. 396 00:25:03,920 --> 00:25:06,200 Speaker 2: Yeah, so I think that this is a long shot. 397 00:25:06,240 --> 00:25:09,280 Speaker 2: There's also another procedural issue involved in here, which is 398 00:25:09,400 --> 00:25:13,719 Speaker 2: say Texas was not involved directly in the licensing peering 399 00:25:14,040 --> 00:25:19,200 Speaker 2: at all, and jurisdictionally, under the jurisdictional provisions, only those 400 00:25:19,280 --> 00:25:23,000 Speaker 2: who were involved in this particular kind of rulemaking can 401 00:25:23,760 --> 00:25:26,840 Speaker 2: challenge the licensing decision in court. And what the Fifth 402 00:25:26,840 --> 00:25:30,119 Speaker 2: Circuit held here was, yes, Texas and others were just 403 00:25:30,200 --> 00:25:32,600 Speaker 2: tempted interveners and they were not parties to the case. 404 00:25:32,720 --> 00:25:36,720 Speaker 2: But they noted an exception for parties who were challenging 405 00:25:37,080 --> 00:25:40,280 Speaker 2: the administrative authority of the agency. So the Fifth Circuit 406 00:25:40,440 --> 00:25:44,280 Speaker 2: used an anti agency rationale to say that we ought 407 00:25:44,320 --> 00:25:49,120 Speaker 2: to ignore the jurisdictional provisions set by Congress to invite 408 00:25:49,320 --> 00:25:52,880 Speaker 2: more people in to challenge agency action if we think 409 00:25:52,880 --> 00:25:57,560 Speaker 2: the agency action is outside of Congress's directions. And so 410 00:25:57,640 --> 00:26:02,199 Speaker 2: this is again a clearly anti administrative agency tenor to 411 00:26:02,240 --> 00:26:05,119 Speaker 2: the decisions. So as possible, the Court could just say 412 00:26:05,640 --> 00:26:10,440 Speaker 2: you're wrong, Fifth Circuit and the interveneers cannot raise this 413 00:26:10,640 --> 00:26:15,000 Speaker 2: challenge to the licensing provision and therefore get rid of 414 00:26:15,040 --> 00:26:16,000 Speaker 2: the Fifth orcnscis on. 415 00:26:16,000 --> 00:26:18,480 Speaker 1: That round, the Court is also going to take up 416 00:26:18,800 --> 00:26:22,480 Speaker 1: another redistricting issue, a new clash over the use of 417 00:26:22,640 --> 00:26:28,200 Speaker 1: race in redistricting. This is arguments on a Louisiana congressional 418 00:26:28,240 --> 00:26:32,359 Speaker 1: map that creates an additional majority black voting district. And 419 00:26:32,840 --> 00:26:35,560 Speaker 1: this issue has come before the Court before. But is 420 00:26:35,600 --> 00:26:38,480 Speaker 1: it based more on facts than anything else. 421 00:26:39,080 --> 00:26:40,840 Speaker 2: Yeah, So in the case is before the court, before 422 00:26:40,960 --> 00:26:43,920 Speaker 2: the Court said, well, we're not going to get involved 423 00:26:43,920 --> 00:26:47,679 Speaker 2: in it. The election to twenty four can continue with 424 00:26:47,840 --> 00:26:51,520 Speaker 2: this new district intact. We're not going to say one 425 00:26:51,520 --> 00:26:54,000 Speaker 2: way or another whether it's a good idea or not. 426 00:26:54,440 --> 00:26:59,000 Speaker 2: And the Louisiana legislature had approved the new districting in 427 00:26:59,040 --> 00:27:02,680 Speaker 2: the wake of a determination on the Voting Rights Act 428 00:27:02,960 --> 00:27:07,440 Speaker 2: that the prior allocation of boundaries or setting boundaries violated 429 00:27:07,520 --> 00:27:10,960 Speaker 2: the principle of fairness in the Voting Rights Act itself, 430 00:27:11,000 --> 00:27:15,239 Speaker 2: So Louisiana was trying to remedy a statutory violation in 431 00:27:15,359 --> 00:27:18,680 Speaker 2: creating this act. Now, the Act is a little controversial 432 00:27:18,720 --> 00:27:23,560 Speaker 2: because it's clear that the Louisiana legislature discussed it making 433 00:27:23,640 --> 00:27:26,680 Speaker 2: safe seats for people like Steve Scalice. There would be 434 00:27:26,840 --> 00:27:33,080 Speaker 2: a Speaker of the House and chose to redistrict in 435 00:27:33,080 --> 00:27:36,800 Speaker 2: a way not only that insured two districts were majority black, 436 00:27:37,320 --> 00:27:41,879 Speaker 2: but also ensured that their favorite Republicans would stay in power. 437 00:27:42,520 --> 00:27:47,040 Speaker 2: So the three judge district court after the Supreme Court decision, 438 00:27:47,400 --> 00:27:52,080 Speaker 2: held that this was unconstitutional because the effort to redraw 439 00:27:52,119 --> 00:27:56,119 Speaker 2: the map not only was race based in terms of 440 00:27:56,160 --> 00:27:59,800 Speaker 2: creating a second majority black district, but also was done 441 00:28:00,160 --> 00:28:04,840 Speaker 2: not on neutral principles. So those issues are percolating here, 442 00:28:05,359 --> 00:28:07,960 Speaker 2: and it's unclear what the court could do. Because the 443 00:28:08,000 --> 00:28:12,160 Speaker 2: Court could use this as a way of limiting remedies 444 00:28:12,160 --> 00:28:14,800 Speaker 2: on their Voting Rights Act. They could knock out some 445 00:28:14,840 --> 00:28:17,600 Speaker 2: of the Voting Rights Act itself, or they could have 446 00:28:18,040 --> 00:28:21,639 Speaker 2: a very narrow decision. So this one's definitely worth watching. 447 00:28:21,960 --> 00:28:26,919 Speaker 1: So now there's also a case involving Title seven of 448 00:28:27,000 --> 00:28:30,240 Speaker 1: the Civil Rights Act, and it involves pleating requirements. 449 00:28:30,480 --> 00:28:34,800 Speaker 2: Yes, in order to advance in a Title seven case 450 00:28:34,880 --> 00:28:36,720 Speaker 2: or discrimination, if you have to show kind of a 451 00:28:36,760 --> 00:28:40,480 Speaker 2: prime officia case that you were treated differently than another 452 00:28:40,520 --> 00:28:44,000 Speaker 2: covered group and that because you were treated differently, it 453 00:28:44,080 --> 00:28:47,440 Speaker 2: resulted in some kind of adverse employment action. So to 454 00:28:47,440 --> 00:28:50,560 Speaker 2: you even get to the pleting stage, one has to 455 00:28:50,960 --> 00:28:56,240 Speaker 2: allege these particular type of harms, and that's been consistent 456 00:28:56,520 --> 00:29:00,600 Speaker 2: since Title SEVENE was enacted in sixty four. Well, what 457 00:29:00,800 --> 00:29:05,160 Speaker 2: happens if you're a member of a majority religion or 458 00:29:05,640 --> 00:29:09,760 Speaker 2: majority race, or if you're straight in terms of your sexuality, 459 00:29:10,040 --> 00:29:12,880 Speaker 2: and if you then make a claim that even though 460 00:29:12,960 --> 00:29:18,240 Speaker 2: you're straight, you were treated unfairly based on your straightness, 461 00:29:19,080 --> 00:29:23,560 Speaker 2: and therefore you are claiming some kind of discrimination that's 462 00:29:23,560 --> 00:29:27,400 Speaker 2: protected under the Act. And indeed, in the Ohio case, 463 00:29:27,880 --> 00:29:31,840 Speaker 2: there was an individual who is straight and she didn't 464 00:29:31,840 --> 00:29:34,680 Speaker 2: get a promotion, and instead the promotion went to someone 465 00:29:34,720 --> 00:29:38,640 Speaker 2: who is gay, and then was later demoted and someone 466 00:29:38,720 --> 00:29:41,760 Speaker 2: took her old position who was gay as well, And 467 00:29:41,840 --> 00:29:46,160 Speaker 2: even though someone who is straight made these employment decisions, 468 00:29:46,600 --> 00:29:50,840 Speaker 2: she claimed that the decision was in violation of her 469 00:29:51,280 --> 00:29:54,240 Speaker 2: statutory rights to be treated the same as anybody else 470 00:29:54,280 --> 00:29:58,840 Speaker 2: based upon her sexuality, and a number of courts have held, 471 00:29:58,880 --> 00:30:03,320 Speaker 2: but others have disagreed that there is an additional hurdle 472 00:30:03,760 --> 00:30:08,760 Speaker 2: that somebody who is of a majority religion, race, or 473 00:30:08,840 --> 00:30:12,280 Speaker 2: who are straight, as in this case, has to surmount 474 00:30:12,320 --> 00:30:14,080 Speaker 2: before they can get into court, and they have to 475 00:30:14,120 --> 00:30:19,240 Speaker 2: show background circumstances to give more of color or more 476 00:30:19,320 --> 00:30:23,360 Speaker 2: oomph to their argument that they were treated unfairly based 477 00:30:23,440 --> 00:30:28,720 Speaker 2: upon a covered characteristics. And in some ways that requirement 478 00:30:29,480 --> 00:30:32,720 Speaker 2: makes them sense because for a court they have to 479 00:30:32,760 --> 00:30:37,720 Speaker 2: go into any kind of analysis and waste resources to 480 00:30:37,800 --> 00:30:40,960 Speaker 2: determine if someone who is of a majority race, religion, 481 00:30:41,160 --> 00:30:44,560 Speaker 2: or sexual appearance. That just wastes time because it's so 482 00:30:44,640 --> 00:30:47,240 Speaker 2: unlikely that if you're a majority, you will be subject 483 00:30:47,280 --> 00:30:50,480 Speaker 2: to discrimination. And so those courts that then as a 484 00:30:50,520 --> 00:30:53,680 Speaker 2: way to conserve resources, we just want to make sure 485 00:30:54,080 --> 00:30:57,160 Speaker 2: that somebody who pleads the case will show a little 486 00:30:57,200 --> 00:31:00,520 Speaker 2: bit more of those background circumstances which suggest despite the 487 00:31:00,560 --> 00:31:04,840 Speaker 2: fact that their majority, they were subject to discrimination. And 488 00:31:04,920 --> 00:31:08,200 Speaker 2: you know, in this case, the decisions were made by 489 00:31:08,280 --> 00:31:13,200 Speaker 2: someone who was straight, just as was the planker. But 490 00:31:13,520 --> 00:31:18,360 Speaker 2: the Biden administration and a number of courts is said, 491 00:31:18,760 --> 00:31:22,160 Speaker 2: there's one standard under Title seven and it applies to 492 00:31:22,200 --> 00:31:26,000 Speaker 2: everybody the same, and so there is no basis for 493 00:31:26,040 --> 00:31:29,760 Speaker 2: this sort of judicial common lawmaking of adding this special 494 00:31:30,200 --> 00:31:33,880 Speaker 2: pleading requirement of background circumstances. So it's going to be 495 00:31:33,920 --> 00:31:36,520 Speaker 2: interesting to see what the Trump Sister General will say 496 00:31:36,520 --> 00:31:39,680 Speaker 2: about this. And it's really unknowable what the Court will say, 497 00:31:39,720 --> 00:31:42,880 Speaker 2: because I think, in my view is a rule of thumb, Yes, 498 00:31:43,280 --> 00:31:45,560 Speaker 2: it should be harder to show discrimination if you're a 499 00:31:45,560 --> 00:31:49,360 Speaker 2: member of the majority group, whether religion or race or 500 00:31:49,520 --> 00:31:52,680 Speaker 2: sexual practice. But there is only one central Title seven, 501 00:31:53,080 --> 00:31:55,760 Speaker 2: and so maybe the Court should just look at it 502 00:31:55,800 --> 00:31:59,400 Speaker 2: more skeptically without having any kind of formal requirement of 503 00:31:59,440 --> 00:32:01,440 Speaker 2: additional In his. 504 00:32:01,520 --> 00:32:06,520 Speaker 1: Annual report on the Federal Judiciary, Chief Justice John Roberts 505 00:32:06,560 --> 00:32:10,040 Speaker 1: issued a defense of judicial independence, which he set is 506 00:32:10,160 --> 00:32:15,280 Speaker 1: under threat from intimidation, disinformation, and the prospect of public 507 00:32:15,320 --> 00:32:20,000 Speaker 1: officials defying court orders. With a string of alleged ethical 508 00:32:20,080 --> 00:32:26,440 Speaker 1: missteps by justices and controversial decisions, including a landmark presidential 509 00:32:26,480 --> 00:32:31,280 Speaker 1: immunity decision written by Roberts, Americans confidence in the country's 510 00:32:31,360 --> 00:32:35,160 Speaker 1: judicial system and courts has dropped to a record low 511 00:32:35,320 --> 00:32:39,000 Speaker 1: of thirty five percent, according to a Gallup poll. I've 512 00:32:39,000 --> 00:32:41,600 Speaker 1: been talking to Professor Harold Krent of the Chicago Kent 513 00:32:41,680 --> 00:32:47,479 Speaker 1: College of Law. The Chief's annual report typically ignores current 514 00:32:47,560 --> 00:32:52,840 Speaker 1: concerns surrounding the justices and the institution, but his focus 515 00:32:52,880 --> 00:32:56,920 Speaker 1: this year was on what he called illegitimate activity aimed 516 00:32:56,960 --> 00:33:00,720 Speaker 1: at undermining the independence of the judiciary. He had four 517 00:33:00,760 --> 00:33:07,160 Speaker 1: areas of concerns, violence directed at judges, efforts to intimidate them, disinformation, 518 00:33:07,480 --> 00:33:12,000 Speaker 1: and government officials threats to defy court judgments. What did 519 00:33:12,000 --> 00:33:14,480 Speaker 1: you take from his end of year report? 520 00:33:14,720 --> 00:33:17,480 Speaker 2: It can be empathetic to his wish and his hope 521 00:33:17,480 --> 00:33:21,840 Speaker 2: and his fervent desire that the Supreme Court retained its 522 00:33:22,280 --> 00:33:24,880 Speaker 2: independence and respect in our society. And I guess, on 523 00:33:24,880 --> 00:33:27,760 Speaker 2: one hand, you can be skeptical, given that a lot 524 00:33:27,760 --> 00:33:30,440 Speaker 2: of the loss of support and respect for the Court 525 00:33:30,480 --> 00:33:34,080 Speaker 2: has come because of Discourt's decisions, and as you mentioned before, 526 00:33:34,200 --> 00:33:38,080 Speaker 2: most notably Chief Justice Roberts's decision in the presidential communic case, 527 00:33:38,120 --> 00:33:41,440 Speaker 2: but you know, other decisions in the abortion case as well. 528 00:33:41,520 --> 00:33:44,280 Speaker 2: But I mean, I think he is right that we are, 529 00:33:45,120 --> 00:33:50,640 Speaker 2: in this politicized world, even more open to attacks upon 530 00:33:50,760 --> 00:33:54,040 Speaker 2: judges than we were before, and there's been picketing in 531 00:33:54,040 --> 00:33:56,920 Speaker 2: front of judges houses as we know justice houses, and 532 00:33:56,960 --> 00:34:00,200 Speaker 2: that's something to be I think, probably a little little 533 00:34:00,200 --> 00:34:03,400 Speaker 2: bit frightened up. But there's also been other kinds of defiance, 534 00:34:03,440 --> 00:34:09,120 Speaker 2: and Vice President Vance has suggested that certain times it's 535 00:34:09,320 --> 00:34:12,480 Speaker 2: totally appropriate for the administration to ignore what the Supreme 536 00:34:12,520 --> 00:34:16,240 Speaker 2: Court would hold. So there are challenges coming from various 537 00:34:16,360 --> 00:34:19,759 Speaker 2: different sectors, people that just disagree with the Court, as 538 00:34:19,800 --> 00:34:22,239 Speaker 2: well as what people think that they don't have to 539 00:34:22,280 --> 00:34:24,840 Speaker 2: listen to what the Court says. So there is reason 540 00:34:24,920 --> 00:34:28,719 Speaker 2: for Chief Justice Roberts to decry those kinds of challenges 541 00:34:28,719 --> 00:34:31,520 Speaker 2: to the Court's authority. But I think at the same time, 542 00:34:32,000 --> 00:34:33,960 Speaker 2: part of the problem is the courts. 543 00:34:33,680 --> 00:34:37,600 Speaker 1: Aren't doing I think everyone agrees that the violence against 544 00:34:37,800 --> 00:34:42,520 Speaker 1: judges should be stopped. But when he talked about intimidation 545 00:34:42,800 --> 00:34:47,839 Speaker 1: and he mentioned protesters quote intent on harassing judges and 546 00:34:47,920 --> 00:34:52,120 Speaker 1: public officials he said have tried to intimidate judges by 547 00:34:52,160 --> 00:34:57,400 Speaker 1: suggesting political bias is behind their decisions without a credible basis. 548 00:34:57,840 --> 00:35:01,080 Speaker 1: Both of those seem like First Amendment protest activities. 549 00:35:01,480 --> 00:35:04,120 Speaker 2: To me, it can be right, it's a fine line 550 00:35:04,120 --> 00:35:08,200 Speaker 2: to draw between when they are harassment as opposed to 551 00:35:08,200 --> 00:35:10,439 Speaker 2: when it's just criticism of the court. And the way 552 00:35:10,520 --> 00:35:15,439 Speaker 2: to I think see this clash most plainly is to 553 00:35:15,480 --> 00:35:18,480 Speaker 2: talk about and we'll look at the immunity decision, and 554 00:35:18,680 --> 00:35:21,880 Speaker 2: some people can criticize it as being badly crafted. Others 555 00:35:21,880 --> 00:35:25,319 Speaker 2: can say it's just illegitimate. And those are two ways 556 00:35:25,640 --> 00:35:29,520 Speaker 2: of criticizing the opinion. And it's hard to say what 557 00:35:29,600 --> 00:35:32,480 Speaker 2: is really the difference between saying it's poorly reasoned as 558 00:35:32,480 --> 00:35:38,040 Speaker 2: opposed to it's politically lawless. Those are just different perspectives 559 00:35:38,440 --> 00:35:41,279 Speaker 2: if people don't accept the opinion, and so I think 560 00:35:41,280 --> 00:35:44,400 Speaker 2: he's conflating one with the other to some extent. But 561 00:35:44,480 --> 00:35:48,440 Speaker 2: it is notoriously very difficult to try to figure out 562 00:35:48,520 --> 00:35:53,239 Speaker 2: what is legitimate dissent protests as opposed to one which 563 00:35:53,320 --> 00:35:57,279 Speaker 2: is saying that the Supreme Court is lawless and we 564 00:35:57,280 --> 00:36:00,800 Speaker 2: should have a quick overhaul of the entire judicial system. 565 00:36:01,000 --> 00:36:03,840 Speaker 1: And you mentioned it to a game that threats to 566 00:36:03,880 --> 00:36:07,239 Speaker 1: ignore federal court rulings by elected officials, which he said 567 00:36:07,239 --> 00:36:11,360 Speaker 1: had come from across the political spectrum. But Vice President, 568 00:36:11,400 --> 00:36:14,640 Speaker 1: like JD. Vance had said, and when the courts stop, 569 00:36:14,680 --> 00:36:19,160 Speaker 1: you stand behind the country like Andrew Jackson did and 570 00:36:19,239 --> 00:36:22,759 Speaker 1: say the Chief Justice has made his ruling, now let 571 00:36:22,840 --> 00:36:25,280 Speaker 1: him enforce it. I just want to mention that Vance's 572 00:36:25,360 --> 00:36:26,680 Speaker 1: wife clerked. 573 00:36:26,560 --> 00:36:29,719 Speaker 2: For the Chief Justice, which is an odd term for sure. 574 00:36:29,760 --> 00:36:33,319 Speaker 2: And the Jackson issue arose at least allegedly out of 575 00:36:33,360 --> 00:36:37,320 Speaker 2: protests from a Supreme Court decision saying that the removal 576 00:36:37,600 --> 00:36:42,440 Speaker 2: of Indigenous peoples from a particular reservation was illegal and 577 00:36:43,280 --> 00:36:47,080 Speaker 2: ordered the administration to comply with it and by all 578 00:36:47,520 --> 00:36:53,239 Speaker 2: historical measures. Andrew Jackson refused and continued to disband the 579 00:36:53,520 --> 00:36:59,080 Speaker 2: indigenous communities. And you know, with the Vice President articulating 580 00:36:59,160 --> 00:37:02,600 Speaker 2: that kind of issue is putting into play this notion 581 00:37:03,120 --> 00:37:05,360 Speaker 2: that the Court is just another political arm of the 582 00:37:05,360 --> 00:37:09,880 Speaker 2: country and that it should be subservient to the president 583 00:37:09,920 --> 00:37:12,560 Speaker 2: and Vice President who were elected and given a mandate 584 00:37:12,600 --> 00:37:17,160 Speaker 2: by the voters, unlike the Supreme Court itself. And that 585 00:37:17,440 --> 00:37:21,440 Speaker 2: is a dangerous notion and maybe some progressives have flirted 586 00:37:21,520 --> 00:37:23,920 Speaker 2: with it as well in frustration with what the Court 587 00:37:23,960 --> 00:37:27,320 Speaker 2: has done recently. But now the Court is being challenged 588 00:37:27,560 --> 00:37:31,719 Speaker 2: by the members of its party who appointed most of them, 589 00:37:32,400 --> 00:37:36,480 Speaker 2: which are the Republicans, so they have reasons to be 590 00:37:36,560 --> 00:37:40,000 Speaker 2: nervous because they're now potentially going to be challenged by 591 00:37:40,120 --> 00:37:41,880 Speaker 2: both sides of the political spectrum. 592 00:37:42,040 --> 00:37:44,319 Speaker 1: Hell, thanks so much for spending so much time with 593 00:37:44,480 --> 00:37:48,000 Speaker 1: me and taking us through what's coming up this year 594 00:37:48,040 --> 00:37:51,200 Speaker 1: at the Supreme Court. That's Professor Harrold Krant of the 595 00:37:51,280 --> 00:37:55,040 Speaker 1: Chicago Kent College of Law. Coming up next, we'll take 596 00:37:55,040 --> 00:37:58,080 Speaker 1: a look at the status of Trump's New York cases. 597 00:37:58,400 --> 00:38:01,719 Speaker 1: You're listening to Bloomberg turning to the civil and criminal 598 00:38:01,800 --> 00:38:05,600 Speaker 1: cases against Donald Trump in New York. A federal appeals 599 00:38:05,640 --> 00:38:09,120 Speaker 1: court has denied his request for a new trial in 600 00:38:09,239 --> 00:38:13,960 Speaker 1: New York writer Ejing Carroll's sexual abuse lawsuit, dealing a 601 00:38:13,960 --> 00:38:16,719 Speaker 1: blow to the president elect as he seeks to put 602 00:38:16,760 --> 00:38:20,600 Speaker 1: his legal woes behind him before taking office. Joining me 603 00:38:20,640 --> 00:38:24,600 Speaker 1: is Bloomberg Legal reporter Eric Larson. Eric the Second Circuit 604 00:38:24,600 --> 00:38:28,840 Speaker 1: handed down this decision on Monday. Eric the Second Circuit 605 00:38:28,880 --> 00:38:31,600 Speaker 1: handed down this decision on Monday. Remind us what the 606 00:38:31,600 --> 00:38:32,440 Speaker 1: trial was about. 607 00:38:32,600 --> 00:38:36,160 Speaker 3: So Trump was found libel by a Manhattan jury in 608 00:38:36,239 --> 00:38:40,720 Speaker 3: May twenty twenty three after a trial in Ejing Carroll's 609 00:38:40,800 --> 00:38:45,719 Speaker 3: lawsuit accusing him of sexually abusing her in the nineteen nineties, 610 00:38:45,880 --> 00:38:49,480 Speaker 3: and it also included a claim for defamation for some 611 00:38:49,600 --> 00:38:53,200 Speaker 3: things that Trump said about her after he left office 612 00:38:53,360 --> 00:38:57,520 Speaker 3: during his first administration, and the jury awarded five million 613 00:38:57,600 --> 00:39:01,839 Speaker 3: dollars in damages to Egan Carroll. Trump appealed and the 614 00:39:01,880 --> 00:39:06,560 Speaker 3: Second Circuit Federal Appeals Court in Manhattan rejected Trump's request 615 00:39:06,719 --> 00:39:07,800 Speaker 3: for a new trial. 616 00:39:08,480 --> 00:39:12,719 Speaker 1: And what were Trump's arguments supporting his request for a 617 00:39:12,719 --> 00:39:14,000 Speaker 1: new trial? So? 618 00:39:14,239 --> 00:39:19,000 Speaker 3: Trump argued that the trial judge made evidentiary errors by 619 00:39:19,040 --> 00:39:23,320 Speaker 3: allowing certain evidence and testimony into the trial. He argued 620 00:39:23,400 --> 00:39:26,600 Speaker 3: that the testimony from two other women who had made 621 00:39:26,640 --> 00:39:30,760 Speaker 3: allegations of sexual assault against him should not have been allowed. 622 00:39:31,320 --> 00:39:34,640 Speaker 3: Two women took the stand and gave testimony about Trump 623 00:39:35,160 --> 00:39:39,880 Speaker 3: allegedly assaulting them, and also the so called Access Hollywood 624 00:39:39,920 --> 00:39:43,120 Speaker 3: tape that two thousand and five Hot Nike recording of 625 00:39:43,280 --> 00:39:48,320 Speaker 3: Trump sort of bragging on the Access Hollywood bus about 626 00:39:48,520 --> 00:39:52,280 Speaker 3: kissing and groping women without their consent if he finds 627 00:39:52,320 --> 00:39:55,680 Speaker 3: them attractive and being able to get away with it 628 00:39:55,719 --> 00:39:58,560 Speaker 3: when you're a star, to use his words. So the 629 00:39:58,640 --> 00:40:01,360 Speaker 3: jury heard that tape, and they also heard the evidence 630 00:40:01,400 --> 00:40:04,720 Speaker 3: of these two other women, just the leads and Natasha 631 00:40:04,760 --> 00:40:09,360 Speaker 3: Stoinos and were able to use that evidence to show 632 00:40:09,400 --> 00:40:12,400 Speaker 3: a pattern of behavior that the jury agreed. 633 00:40:12,600 --> 00:40:15,479 Speaker 1: Trump had the testimony from the women. First of all, 634 00:40:15,800 --> 00:40:21,239 Speaker 1: what did the appellate court say about admitting that testimony 635 00:40:21,560 --> 00:40:27,040 Speaker 1: from two women not connected to the allegations in the case? 636 00:40:28,719 --> 00:40:32,280 Speaker 3: Right, So the appeals for it decided that the judge 637 00:40:32,280 --> 00:40:35,279 Speaker 3: did not make an error by allowing this testimony and 638 00:40:35,320 --> 00:40:38,480 Speaker 3: this evidence in. It's a type of evidence that it 639 00:40:38,520 --> 00:40:42,920 Speaker 3: can be limited and barred in some cases, particularly in 640 00:40:43,000 --> 00:40:46,520 Speaker 3: criminal cases, if you have someone come in and testify 641 00:40:46,960 --> 00:40:51,080 Speaker 3: about a defendant doing something that was alleged but never 642 00:40:51,120 --> 00:40:54,680 Speaker 3: criminally proven, just to show a pattern of behavior, that 643 00:40:55,080 --> 00:40:57,680 Speaker 3: kind of evidence is usually not allowed in if it's 644 00:40:57,719 --> 00:41:00,600 Speaker 3: a criminal case, just because you know there's or at stake, 645 00:41:00,680 --> 00:41:04,279 Speaker 3: someone's freedom is at stake. And again, these are testimony 646 00:41:04,320 --> 00:41:07,719 Speaker 3: about allegations that were never charged. These two other women 647 00:41:07,880 --> 00:41:11,520 Speaker 3: did not make these allegations at the time. They never 648 00:41:12,120 --> 00:41:15,520 Speaker 3: sued him. He wasn't criminally charged obviously with that conduct. 649 00:41:15,840 --> 00:41:18,279 Speaker 3: So he argued that it shouldn't have been allowed against him, 650 00:41:18,280 --> 00:41:21,799 Speaker 3: that it tainted the jury's perceptions of him when the 651 00:41:21,840 --> 00:41:25,360 Speaker 3: allegations had never been made previously. But the court determined 652 00:41:25,360 --> 00:41:28,280 Speaker 3: that because it was a civil case, and just because 653 00:41:28,360 --> 00:41:32,279 Speaker 3: of the nature of what said by both women and 654 00:41:32,440 --> 00:41:35,480 Speaker 3: what was said and asked this Hollywood tape, that it 655 00:41:35,560 --> 00:41:39,520 Speaker 3: was fair for the jury to use that evidence to show, 656 00:41:39,920 --> 00:41:43,880 Speaker 3: as they put it in the decision, a pattern of abrupt, 657 00:41:44,120 --> 00:41:48,160 Speaker 3: non consensual, and physical advances on the women he barely knew. 658 00:41:48,400 --> 00:41:51,920 Speaker 1: Has there been any talk about Trump appealing to the 659 00:41:51,920 --> 00:41:52,760 Speaker 1: Supreme Court? 660 00:41:53,120 --> 00:41:56,640 Speaker 3: I would say that that's almost a certainty. He's pretty 661 00:41:56,719 --> 00:41:59,880 Speaker 3: much appealed. Any time he's gotten a ruling against them 662 00:41:59,960 --> 00:42:03,360 Speaker 3: or or lost in the case like this, he does appeal. 663 00:42:03,680 --> 00:42:06,440 Speaker 3: So I think we can expect that petition to be filed. 664 00:42:07,280 --> 00:42:13,360 Speaker 1: He's separately appealing another verdict involving Carol that resulted in 665 00:42:13,400 --> 00:42:16,839 Speaker 1: an eighty three point three million dollar verdict. Do we 666 00:42:16,920 --> 00:42:19,479 Speaker 1: know what his appeal issues are there? 667 00:42:20,040 --> 00:42:22,839 Speaker 3: So that case is also in the case brought by 668 00:42:22,920 --> 00:42:25,359 Speaker 3: eging Carroll. The first one that we had just been 669 00:42:25,400 --> 00:42:28,279 Speaker 3: discussing was was filed under a New York state law 670 00:42:28,320 --> 00:42:31,719 Speaker 3: that allowed went in to file sex abuse civil claims 671 00:42:31,760 --> 00:42:35,239 Speaker 3: over alleged attasks that had happened even decades ago. It 672 00:42:35,280 --> 00:42:38,879 Speaker 3: was a temporary listing of the Statute of Limitations. Their 673 00:42:39,120 --> 00:42:41,399 Speaker 3: earlier case that the one that went to trial later 674 00:42:41,480 --> 00:42:45,600 Speaker 3: that that was a pure defamation claim over comments that 675 00:42:45,600 --> 00:42:48,960 Speaker 3: Trump made about Eging Carroll in twenty nineteen when he 676 00:42:49,040 --> 00:42:51,480 Speaker 3: was in the White House. That case was long delayed 677 00:42:51,640 --> 00:42:54,600 Speaker 3: because of his immunity at the time while he was 678 00:42:54,640 --> 00:42:59,040 Speaker 3: in office. But he again argues on details of the 679 00:42:59,280 --> 00:43:04,239 Speaker 3: alleged defamation about him being protected by immunity while he 680 00:43:04,320 --> 00:43:06,319 Speaker 3: was in the White House. Some of these statements were 681 00:43:06,360 --> 00:43:10,800 Speaker 3: actually issued sort of through comments on official White House statements, 682 00:43:10,880 --> 00:43:13,360 Speaker 3: and he argues that he's protected and that he is 683 00:43:13,480 --> 00:43:16,920 Speaker 3: allowed to defend himself when in this case Eagen Carroll 684 00:43:16,960 --> 00:43:18,959 Speaker 3: had gone public with her claim that Trump had raised 685 00:43:19,000 --> 00:43:22,920 Speaker 3: her in nineteen ninety six in the Bergdorf Goodman department store. 686 00:43:23,280 --> 00:43:28,160 Speaker 3: He issued statements and sometimes crude statements, denying the attack 687 00:43:28,640 --> 00:43:31,920 Speaker 3: and making remarks such as that it was a fabrication, 688 00:43:32,000 --> 00:43:36,279 Speaker 3: a hoax, that she had created to help Democrats, and 689 00:43:36,360 --> 00:43:40,120 Speaker 3: also at one point suggesting that she was not his type, 690 00:43:40,120 --> 00:43:44,120 Speaker 3: therefore somehow not attractive enough for him to assault at 691 00:43:44,200 --> 00:43:46,680 Speaker 3: any rate. These are things that he says he's allowed 692 00:43:46,719 --> 00:43:50,480 Speaker 3: to say in his defense after allegations were made against 693 00:43:50,520 --> 00:43:50,879 Speaker 3: him ad. 694 00:43:50,800 --> 00:43:55,799 Speaker 1: Office and we're still waiting for Judge Juan Verschon to 695 00:43:56,440 --> 00:43:58,600 Speaker 1: rule on the criminal case. 696 00:43:59,239 --> 00:44:02,439 Speaker 3: That's right, This is the big decision here that we've 697 00:44:02,480 --> 00:44:06,400 Speaker 3: been waiting for. Could come at any time. Of course, 698 00:44:06,680 --> 00:44:10,239 Speaker 3: Trump was found guilty in that case. I think this 699 00:44:10,280 --> 00:44:12,400 Speaker 3: is the one that everyone is just waiting to see 700 00:44:12,680 --> 00:44:15,680 Speaker 3: whether or not the judge is going to allow this 701 00:44:15,800 --> 00:44:18,439 Speaker 3: case to go away because Trump is going to take 702 00:44:18,480 --> 00:44:22,799 Speaker 3: office or put it on holds so that Trump can 703 00:44:22,840 --> 00:44:26,200 Speaker 3: be sentenced after he leaves office, which would be very 704 00:44:26,280 --> 00:44:30,840 Speaker 3: obviously unprecedented, rare situation where the judge has to decide 705 00:44:30,880 --> 00:44:33,880 Speaker 3: how far he's going to go wearing off against Trump 706 00:44:33,960 --> 00:44:37,279 Speaker 3: over this verdict. It's such an unusual situation because the 707 00:44:37,400 --> 00:44:41,200 Speaker 3: verdict was handed down before the election, but then Trump 708 00:44:41,280 --> 00:44:44,040 Speaker 3: was never a sentence and then he won. So it's 709 00:44:44,040 --> 00:44:45,680 Speaker 3: a tough spot for the judge to be in. 710 00:44:46,200 --> 00:44:49,360 Speaker 1: I would fall off my chair if the judge just 711 00:44:49,719 --> 00:44:53,880 Speaker 1: throws out the case after a jury has rendered a 712 00:44:54,000 --> 00:44:55,920 Speaker 1: verdict after a full trial. 713 00:44:56,320 --> 00:45:00,520 Speaker 3: Pretty surprising. I mean, as the Manhattan District's attorney Bragg 714 00:45:00,560 --> 00:45:04,240 Speaker 3: said in his brief, the jury has such an important 715 00:45:04,440 --> 00:45:08,040 Speaker 3: role in our judicial system. They listened to all the 716 00:45:08,080 --> 00:45:12,240 Speaker 3: evidence heard the testimony and made a very significant finding 717 00:45:12,400 --> 00:45:16,239 Speaker 3: about Trump's conduct and he was convicted and so as 718 00:45:16,320 --> 00:45:19,239 Speaker 3: we sit here today, he still faces potentially up to 719 00:45:19,320 --> 00:45:22,719 Speaker 3: four years in prison if this case doesn't go away. 720 00:45:22,680 --> 00:45:25,640 Speaker 1: And we could hear the judge's decision any day. Thanks 721 00:45:25,640 --> 00:45:30,000 Speaker 1: so much, Eric. That's Bloomberg Legal reporter Eric Larson, and 722 00:45:30,040 --> 00:45:32,520 Speaker 1: that's it for this edition of the Bloomberg Law Podcast. 723 00:45:32,880 --> 00:45:35,239 Speaker 1: Remember you can always get the latest legal news by 724 00:45:35,280 --> 00:45:39,120 Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify, 725 00:45:39,400 --> 00:45:43,239 Speaker 1: and at Bloomberg dot com, Slash podcast, Slash Law. I'm 726 00:45:43,320 --> 00:45:45,759 Speaker 1: June Grosso and this is Bloomberg