Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. Among all of
Speaker 1: the questions about trade, you just heard President Trump fielding
Speaker 1: in the Rose Garden. He also got some questions about
Speaker 1: Supreme Court nominee Brett Kavanaugh. President on Saturday commented about
Speaker 1: the FBI's investigation into those sexual assault charges against Kavanaugh. Yeah,
Speaker 1: they have free reign. They're gonna do whatever they have
Speaker 1: to do, whatever it is they do. They'll be doing
Speaker 1: things that we never even thought of. And hopefully it's
Speaker 1: the conclusion. Everything will be fun, okay. And I want
Speaker 1: to clarify those aren't charges, their allegations. And over the weekend,
Speaker 1: Bloomberg News learned that there may be some limits on
Speaker 1: that investigation. Let's talk about this with Professor Will Banks
Speaker 1: from Syracuse Syracuse University Law School. Professor, I want to
Speaker 1: thank you for taking the time with us this afternoon. Um,
Speaker 1: not just the limited time, because the time is going
Speaker 1: to be a week or less but a limited scope,
Speaker 1: perhaps not allowed to delve into drinking or maybe talk
Speaker 1: to some of the other accusers. Give us your thoughts
Speaker 1: on that. Well, you know, it is unclear. I heard
Speaker 1: the president quote. I saw his tweet from Saturday that
Speaker 1: suggested that the investigation was unlimited as far as the
Speaker 1: President's concerned. And the important thing here is that that
Speaker 1: was the President speaking. Any clarification or characterization of the
Speaker 1: limits on the investigation that's offered by anyone else in
Speaker 1: the White House, unless they say they're speaking specifically for
Speaker 1: the President, that doesn't carry weight. So Don McGann doesn't
Speaker 1: set the terms of the investigation or its parameters, nor
Speaker 1: do the members of the Senate. Uh. The fact that
Speaker 1: it's a so called limited background investigation does tell us something.
Speaker 1: It suggests that indeed, the era won't be using any
Speaker 1: compulsory process, no subpoenas or anything of that nature. They're
Speaker 1: just going to be interviewing witnesses. But you know, they
Speaker 1: could do a lot of interviews in the course of
Speaker 1: a few days. If they're only looking at the two
Speaker 1: the first two accusers and the immediate witnesses that they
Speaker 1: say they were present at those events, then that's verily
Speaker 1: a very short list of interviewees and that could be done,
Speaker 1: as someone said as early as today. So what is
Speaker 1: your expectation for the outcome of the investigation. It's really
Speaker 1: hard to say, you know. It's if all they're doing
Speaker 1: is talking to those two plus the witnesses to the events,
Speaker 1: it sounds like we're not going to know much more
Speaker 1: about the veracity of the statements of Judge Kavanaugh or
Speaker 1: Dr Ford, and we then we did after we heard
Speaker 1: their testimony. On the other hand, the investigation, you know,
Speaker 1: the was being interviewed now that if they declined to
Speaker 1: tell the truth that they're subject to penalty. So I
Speaker 1: think there's every reason for them to say exactly what
Speaker 1: they know. I want to ask you a little bit
Speaker 1: about some of the criticism about Kavanaugh's behavior, how he
Speaker 1: snapped at some of the senators during the hearing, showing
Speaker 1: some partisan preference during his opening statement, and even some
Speaker 1: people were being critical of his appearance on Fox News.
Speaker 1: They just thought that wasn't becoming of a Supreme Court justice,
Speaker 1: the Supreme Court justice nominee. I want to get your
Speaker 1: thoughts on that. Where do you stand there? Uh, you know,
Speaker 1: it's certainly not a judicial demeanor that he was exhibiting
Speaker 1: during the hearing last week are certainly by appearing on
Speaker 1: the media on television. I think, you know, the Senators
Speaker 1: who will eventually have to decide on the nomination have
Speaker 1: to look at the entire picture, the entire record, which
Speaker 1: includes not only everything leading up to the hearings, but
Speaker 1: the conduct of the hearings themselves, the original hearings, and
Speaker 1: then this additional testimony that was given last week. I
Speaker 1: think we do have questions now about the drinking, about
Speaker 1: his character generally that we didn't have to take into
Speaker 1: account before. But as far as the FBI talking to
Speaker 1: the witnesses, the witnesses have already sent letters to Congress
Speaker 1: um and and if if, if they weren't truthful to Congress,
Speaker 1: they could be subject to perjury, perjury charges in Congress.
Speaker 1: They've already sent letters saying that you know, they don't
Speaker 1: recall or this part, this this party that Dr Ford
Speaker 1: talked about didn't happen. Uh. It seems to me the
Speaker 1: FBI is just going to be kind of probably getting
Speaker 1: kind of the same thing. It's it's certainly possible, but
Speaker 1: you know, the bureau can ask questions that weren't anticipated
Speaker 1: by the writers of the letters. They can probe into
Speaker 1: answers that or or to suggestions or made in the
Speaker 1: letters that lead to other questions. And you know, they're
Speaker 1: very seasoned and skillful of course at at the techniques
Speaker 1: of interviewing. So we we may well learn some things.
Speaker 1: And indeed it's possible that if if it's truly an
Speaker 1: unfettered investigation in the way that the President characterized it
Speaker 1: on the weekend, they may well find that they can
Speaker 1: talk to others by asking the the interviewees, the immediate interviewees,
Speaker 1: who else they know who was president at those events.
Speaker 1: And I just want to remind our listeners that we
Speaker 1: are away in comments from Commerce Secretary Wilburt Ross, he
Speaker 1: too will be talking about trade and NAFTA. I'll call
Speaker 1: it NAFTA anymore. It's completely revamped now and we are
Speaker 1: waiting for the Commerce Secretary in just a few minutes.
Speaker 1: But until then, more about Kavanaugh. I'm curious about what
Speaker 1: you think the dynamic might be if and when Kavanaugh
Speaker 1: is seated on the Supreme Court, and what it might
Speaker 1: be between the justices, well, you know, the justices. I
Speaker 1: think the eighth sitting justices are certainly uh fully capable
Speaker 1: of sort of rising above this h this period of crisis. Uh.
Speaker 1: And it is a period of crisis, I would say,
Speaker 1: And I think it's if if Kavanaugh is confirmed, that
Speaker 1: he'll be confirmed with an asterisk and way similar to
Speaker 1: the way that Justice Thomas was confirmed all those years
Speaker 1: ago in a not too dissimilar environment. It certainly took
Speaker 1: a time, I think for us to sort of put
Speaker 1: that Thomas episode with Anita Hill behind us. It would
Speaker 1: take time, if that happens, for us to do something
Speaker 1: similar with Kavanaugh. UM. So I wouldn't worry so much
Speaker 1: about the dynamics on the court. I think the justices
Speaker 1: are are you know today, they've begun their term, They're
Speaker 1: they're getting their going with eight justices, they have a
Speaker 1: lot on their docket this year. And if it's just
Speaker 1: as Kavanaugh, he will be integrated into the mix. Based
Speaker 1: on everything you know right now, do you think Judge
Speaker 1: Kavanaugh gets confirmed? Yeah, I think the odds are still
Speaker 1: in his favor because of the uh, just because of
Speaker 1: the partisan lineup in the Senate in Washington today. The
Speaker 1: Supreme Court is starting it's fall term, but the Court's
Speaker 1: new term is being overshadowed by the pending nomination of
Speaker 1: Brett Kavanaugh, as the FBI investigates charges sexual assault against
Speaker 1: the Appeals Court judge. After last week's emotional Senate hearing,
Speaker 1: Democratic Senator Sheldon Whitehouse criticized kavan Off for the political
Speaker 1: nature of some of his comments last week. The fact
Speaker 1: that we're in a position in this country right now
Speaker 1: where him going soapartisan, him losing complete control over his temperament.
Speaker 1: You know they talk about judicial temperament. Didn't see much
Speaker 1: of that. Greg store is Bloomberg News Supreme Court reporter.
Speaker 1: He joins us now from more on all of this
Speaker 1: by phone from the court. So, Greg, how is the
Speaker 1: absence of a justice they're affecting the Court's new term? Well, Peter,
Speaker 1: they are. They're starting to hear cases heard the first
Speaker 1: ones today with just eight justices on the court, and
Speaker 1: that of course creates a very different dynamic where if
Speaker 1: they split along ideological lines as as possible they could
Speaker 1: do in in the first case, they argued today that
Speaker 1: they would have to reargue the case once they get
Speaker 1: a ninth justice, which could be in the matter of
Speaker 1: a week or two, or could be much longer than that.
Speaker 1: Are they talking about delaying hearing any cases? Not talking
Speaker 1: about it. But so far, in terms of the cases
Speaker 1: the Court has agreed to hear um, they have not
Speaker 1: taken the most high profile, provocative cases. So, for example,
Speaker 1: there's a appending bid for review in a case involving
Speaker 1: across that is World War One memorial in the middle
Speaker 1: of a busy intersection in Maryland just outside the DC border. UM,
Speaker 1: and the Court so far hasn't acted on that petition. Uh.
Speaker 1: They are potentially in this case, waiting to see if
Speaker 1: they have another justice who might provide the deciding vote.
Speaker 1: I'm speculating a bit here, so, but it seems like
Speaker 1: they're at least kicking the can down the road on
Speaker 1: some of those more controversial cases. But in terms of
Speaker 1: what they have scheduled, they are just going ahead as planned.
Speaker 1: Got to ask you what is the mood around all
Speaker 1: of this in the building. It was interesting this argument today,
Speaker 1: which involved in an Endangered Species Act, was fairly contentious.
Speaker 1: Um it uh right from the get go. UH. Justice
Speaker 1: Elena Kagan came out, one of the liberal justice came
Speaker 1: out and was pretty pretty uh forcefully arguing that uh,
Speaker 1: the endangered species that could be used to designate this
Speaker 1: this area as a critical habitat for an endangered froug
Speaker 1: And just to say, Alito, a conservative came right out
Speaker 1: after her and suggested that she was spinning the way
Speaker 1: the case was set up to produce a preferred outcome.
Speaker 1: So at least at this point, it doesn't seem like
Speaker 1: on the bench the justices are pulling any punches. Yeah,
Speaker 1: but but you know the talk in the hallways about
Speaker 1: you know, the Kavanaugh nomination and the and the and
Speaker 1: the and the new FBI investigation going on this week. Yeah,
Speaker 1: it's um, you know, my my sense is that there
Speaker 1: is going to be some division among the people in
Speaker 1: this building over that. Um. You know, this is a
Speaker 1: very raw subject and it's crucially important for the future
Speaker 1: of the court. Um, you know, it's it's there are
Speaker 1: two worlds that we could have going forward. We could
Speaker 1: have a court that um tries to lay low for
Speaker 1: a little while and not deal with these really controversial cases.
Speaker 1: Or you could have a world where it feels a
Speaker 1: little bit like an extension of that Senate hearing with
Speaker 1: with Judge Kavanaugh there where the two sides are even
Speaker 1: more vociferously hollering at one another. And at this point
Speaker 1: I would say that the second possibility is at least possible.
Speaker 1: And do you get a sense that once this limited
Speaker 1: investigation by the FBI is done that Um, but let
Speaker 1: me just ask straight up, do you think Kavanaugh still
Speaker 1: gets confirmed? Here? I have so much trouble. You've covered
Speaker 1: a lot of these herring scragg and I know I'm
Speaker 1: not trying to put you on the spot, you know, Um,
Speaker 1: indications are that that the FBI investigation isn't going to
Speaker 1: tell us too much more than what we already know
Speaker 1: could be wrong in there. We'll see where it goes. Um.
Speaker 1: You know, it will then come down to basically what
Speaker 1: it has come down to pretty much the whole time.
Speaker 1: Those few Republican senators whose votes are still up in
Speaker 1: the air. It depends on what Susan Collins thinks about
Speaker 1: his testimony, and she hasn't made that clear. It's um uh,
Speaker 1: it's been clear that and depends on what It depends
Speaker 1: on what the FBI reports too. It does depend on
Speaker 1: with Collins and some of the others. Yeah, the one
Speaker 1: danger that that brit Kavanaugh has and maybe he didn't
Speaker 1: have a week ago. Um is that his testimony, his
Speaker 1: demeanor in the testimony was so combative that that could
Speaker 1: prompt some senators to say, hey, this is not the
Speaker 1: kind of judicious person we want on the Supreme Court.
Speaker 1: And there's also the risk that if he has caught
Speaker 1: in some smaller life something other than you know, the
Speaker 1: big sexual assault allegation. If if there's um evidence that's
Speaker 1: clear enough that he uh misrepresented the facts about his
Speaker 1: you know, drinking or something else that you know, the
Speaker 1: references in his yearbooks, that that might be enough of
Speaker 1: a reason for so many to say, I don't trust
Speaker 1: this guy. He shouldn't be on the Supreme Court. But
Speaker 1: you know, this all depends on what's in the mind
Speaker 1: of two or three pisotal senators. And just in the
Speaker 1: last seconds, what did you make of President Trump's comments
Speaker 1: about all this in the Rose Garden today? You know, Peter,
Speaker 1: I've been I'm afraid I've been upstairs, and you've been
Speaker 1: working and writing a story about the Endangered Species acted.
Speaker 1: So I'm gonna have to duck a ne because I
Speaker 1: haven't heard what he said. Alright, alright about that, faird
Speaker 1: Greg No problem, listen, thanks, uh, And we know, you'll
Speaker 1: be stand on you'll you'll be doing your job and
Speaker 1: we'll we'll talk to you know, Alex Wade coming up there.
Speaker 1: Just a moment about the White House comments. But the
Speaker 1: thank you once again, and thanks and thanks for keeping
Speaker 1: us up to speed. Greg Store, Bloomberg News Supreme Court Reporter.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
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