1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,160 --> 00:00:09,880 Speaker 1: COVID nineteen has lawyers navigating all kinds of issues in 3 00:00:09,880 --> 00:00:12,840 Speaker 1: the criminal justice system, from not being able to confer 4 00:00:12,920 --> 00:00:17,040 Speaker 1: adequately with their clients to potentially skewed jury pools. Judges 5 00:00:17,079 --> 00:00:21,160 Speaker 1: are routinely delaying cases as they confront an evolving situation 6 00:00:21,280 --> 00:00:24,920 Speaker 1: and novel questions. Joining me is Bloomberg Law editor Jordan 7 00:00:25,040 --> 00:00:28,080 Speaker 1: Ruben Jordan to put this into context, tell us about 8 00:00:28,080 --> 00:00:32,599 Speaker 1: the case of Jose Javier Rivera Bernard Sure. So this 9 00:00:32,680 --> 00:00:35,360 Speaker 1: is a case where a defendant is in a situation 10 00:00:35,400 --> 00:00:38,879 Speaker 1: that has become a somewhat common and illustrative of what 11 00:00:38,960 --> 00:00:43,080 Speaker 1: decendants are facing in this COVID nineteen era. So this 12 00:00:43,159 --> 00:00:46,280 Speaker 1: is a case where the defendant is facing federal drug charges, 13 00:00:46,360 --> 00:00:50,960 Speaker 1: serious charges. He's detained pre trial, and he's facing a 14 00:00:51,000 --> 00:00:55,760 Speaker 1: dilemma of do I ops for a virtual hearing or 15 00:00:55,840 --> 00:00:59,279 Speaker 1: do I still wait longer in jail until I can 16 00:00:59,320 --> 00:01:02,880 Speaker 1: get a real hearing. Now, his lawyer is raising the 17 00:01:02,920 --> 00:01:05,920 Speaker 1: issue that he doesn't want a virtual hearing because he 18 00:01:06,000 --> 00:01:10,399 Speaker 1: can't properly challenge the credibility of government witnesses, and so 19 00:01:10,720 --> 00:01:13,440 Speaker 1: it's his dilemma because he can either get a hearing 20 00:01:13,480 --> 00:01:15,840 Speaker 1: that's really, in his view, a half measure of what 21 00:01:16,120 --> 00:01:19,360 Speaker 1: he's entitled to. On the other hand, though he's sitting 22 00:01:19,720 --> 00:01:23,639 Speaker 1: locked up in a place where is really not safe 23 00:01:23,680 --> 00:01:26,840 Speaker 1: to be in jail decays because of the coronavirus. We 24 00:01:26,959 --> 00:01:31,680 Speaker 1: hear a lot about defendants being released or getting deals 25 00:01:32,160 --> 00:01:35,880 Speaker 1: to get out of prison because of COVID. In this case, RIVERA. 26 00:01:35,920 --> 00:01:40,440 Speaker 1: Bernard is in the Metropolitan Correction Center. Isn't there any 27 00:01:40,480 --> 00:01:44,160 Speaker 1: way for him to get released prior to his hearing. 28 00:01:44,920 --> 00:01:47,520 Speaker 1: It's possible for a defendant in general to get that 29 00:01:47,600 --> 00:01:50,880 Speaker 1: kind of release, and we have seen some defendants getting released, 30 00:01:50,880 --> 00:01:53,560 Speaker 1: but the reality is that it's just not as many 31 00:01:53,600 --> 00:01:57,840 Speaker 1: people getting released as defense attorneys would want. And so 32 00:01:58,240 --> 00:02:00,840 Speaker 1: the reality is there is this situation where a fair 33 00:02:01,000 --> 00:02:04,720 Speaker 1: amount of people are sitting in jail, detained pre trial, 34 00:02:05,160 --> 00:02:10,480 Speaker 1: awaiting trial, and they're essentially sitting ducks exposed to the coronavirus. 35 00:02:10,480 --> 00:02:12,920 Speaker 1: And it's not just an issue in the jails of 36 00:02:13,560 --> 00:02:17,760 Speaker 1: the defendants who are exposed to this, it's the correctional 37 00:02:17,800 --> 00:02:20,880 Speaker 1: officers who are going out into the community as well. 38 00:02:20,880 --> 00:02:23,320 Speaker 1: And so you can see how this becomes a problem really, 39 00:02:23,360 --> 00:02:26,600 Speaker 1: not just inside the prisons but outside as well. And 40 00:02:26,720 --> 00:02:31,000 Speaker 1: is this a problem in prisons across the country, is 41 00:02:31,040 --> 00:02:34,399 Speaker 1: it more so in big cities. Well, it's sort of. 42 00:02:34,919 --> 00:02:37,880 Speaker 1: It's similar to the way that we're seeing different reactions 43 00:02:37,919 --> 00:02:40,000 Speaker 1: to how the virus is playing out across the country. 44 00:02:40,080 --> 00:02:43,760 Speaker 1: It's somewhat true in the criminal justice system, but on 45 00:02:43,840 --> 00:02:46,959 Speaker 1: the whole when it comes to the coronavirus across the board, 46 00:02:47,000 --> 00:02:50,440 Speaker 1: really the prisoner jails is just simply the worst place 47 00:02:50,480 --> 00:02:52,840 Speaker 1: to be. It's up there with nursing homes. Those are 48 00:02:52,840 --> 00:02:56,560 Speaker 1: really two of the institutions where we've seen the coronavirus 49 00:02:56,880 --> 00:03:00,320 Speaker 1: make its hardest hits. And so really just by the sign, 50 00:03:00,440 --> 00:03:03,200 Speaker 1: it's almost if you are designing a place where a 51 00:03:03,320 --> 00:03:06,360 Speaker 1: virus like that could thrive, a prisoner at jail would 52 00:03:06,400 --> 00:03:09,720 Speaker 1: be what someone would want to design. Really, So you 53 00:03:09,840 --> 00:03:14,400 Speaker 1: talked to a lawyer, Michael Diamonds, the uniformer prosecutor, and 54 00:03:14,400 --> 00:03:17,640 Speaker 1: he said, courts are overwhelmed. They don't know how to react. 55 00:03:18,000 --> 00:03:21,200 Speaker 1: The tried and true method is keep everyone in jail 56 00:03:21,360 --> 00:03:24,440 Speaker 1: and we'll sort it out. So is he saying that 57 00:03:24,600 --> 00:03:28,200 Speaker 1: it's the exception rather than the rule that people are 58 00:03:28,240 --> 00:03:32,840 Speaker 1: getting released because of COVID. I think that's definitely right, 59 00:03:33,000 --> 00:03:36,440 Speaker 1: because it's a situation where the courts are faced with 60 00:03:36,520 --> 00:03:39,200 Speaker 1: really in no good choice of they have these cases 61 00:03:39,200 --> 00:03:41,240 Speaker 1: that they want to move along. They have people that 62 00:03:41,320 --> 00:03:45,640 Speaker 1: are detained, sometimes on very serious crimes, homicides, things like that, 63 00:03:45,720 --> 00:03:48,760 Speaker 1: and so obviously every defense attorney wants to get their 64 00:03:48,840 --> 00:03:52,360 Speaker 1: client out, but it's not always that simple, and so 65 00:03:52,960 --> 00:03:55,880 Speaker 1: it really is a matter of in a situation like this, 66 00:03:56,240 --> 00:03:59,560 Speaker 1: like in general, in the criminal justice system, when push 67 00:03:59,600 --> 00:04:02,440 Speaker 1: comes to job, it's usually the defendant who winds up 68 00:04:02,920 --> 00:04:06,080 Speaker 1: staying the pained. At least that's how the defense attorneys 69 00:04:06,080 --> 00:04:10,440 Speaker 1: are seeing the situation. I was struck because one defense 70 00:04:10,480 --> 00:04:13,120 Speaker 1: attorney you talked to said that instead of working on 71 00:04:13,160 --> 00:04:18,360 Speaker 1: the case, all they're doing seven is making bail applications 72 00:04:18,360 --> 00:04:21,919 Speaker 1: and compassionate release applications and not really getting to you know, 73 00:04:21,920 --> 00:04:25,440 Speaker 1: the nitty gritty. Well, that's right. I mean, the system 74 00:04:25,440 --> 00:04:27,640 Speaker 1: itself is kind of at a standstill. So it's not 75 00:04:27,680 --> 00:04:30,479 Speaker 1: like cases are moving along anyway, at least not in 76 00:04:30,480 --> 00:04:33,240 Speaker 1: the way that people want them to. And so if 77 00:04:33,279 --> 00:04:35,640 Speaker 1: you're an attorney and you have a client who's detained 78 00:04:35,640 --> 00:04:39,440 Speaker 1: pre trial, really that's your main job is trying to 79 00:04:39,600 --> 00:04:42,440 Speaker 1: get them out. And again that's something that's true even 80 00:04:42,480 --> 00:04:45,440 Speaker 1: in quote unquote normal times, But just like in every 81 00:04:45,440 --> 00:04:49,640 Speaker 1: other aspect of life, the pandemic has exacerbated that and 82 00:04:49,800 --> 00:04:52,360 Speaker 1: brought it even more to the forefront of what people 83 00:04:52,360 --> 00:04:57,880 Speaker 1: are focusing on. Looking at this through Rivera Bernard's case, 84 00:04:58,520 --> 00:05:02,400 Speaker 1: his lawyer said the it's difficult to prepare for cases 85 00:05:02,520 --> 00:05:07,160 Speaker 1: because he can't communicate with him adequately. It's very limited. 86 00:05:07,160 --> 00:05:09,320 Speaker 1: I didn't realize it was that limited. The amount of 87 00:05:09,360 --> 00:05:13,320 Speaker 1: time they can communicate with their lawyers. Tell us about that. Again, 88 00:05:13,400 --> 00:05:16,480 Speaker 1: this is something that is different in different facilities across 89 00:05:16,520 --> 00:05:19,000 Speaker 1: the country. But if you have a jail it's in 90 00:05:19,120 --> 00:05:22,960 Speaker 1: lockdown because of COVID, then that means in turn that 91 00:05:23,000 --> 00:05:25,640 Speaker 1: a lawyer really can't get in there to communicate with 92 00:05:25,680 --> 00:05:29,000 Speaker 1: their client. And so sometimes you can communicate by phone, 93 00:05:29,040 --> 00:05:32,040 Speaker 1: but when you're talking about really important issues and really 94 00:05:32,080 --> 00:05:36,559 Speaker 1: serious discussions, clients not necessarily going to feel comfortable talking 95 00:05:36,560 --> 00:05:39,800 Speaker 1: about that over the phone. And if you have luminous 96 00:05:39,920 --> 00:05:43,240 Speaker 1: documents and evidence to review with a client, forget about it. 97 00:05:43,320 --> 00:05:45,640 Speaker 1: That's not going to happen in any meaningful way. And 98 00:05:45,720 --> 00:05:48,120 Speaker 1: so at the same time as these trials are being 99 00:05:48,120 --> 00:05:53,359 Speaker 1: pushed off essentially indefinitely, it's almost impossible to meaningfully prepare 100 00:05:53,400 --> 00:05:55,880 Speaker 1: for them at the same time, and so you're seeing 101 00:05:55,880 --> 00:05:59,280 Speaker 1: that two different degrees across the country. But if you're 102 00:05:59,320 --> 00:06:02,440 Speaker 1: in an air aware there's a really serious COVID situation, 103 00:06:02,800 --> 00:06:05,680 Speaker 1: that's just going to be compounding the issue because the 104 00:06:05,720 --> 00:06:07,760 Speaker 1: trial is going to get delayed and it's something that 105 00:06:07,839 --> 00:06:12,279 Speaker 1: you can't even really meaningfully be prepared for, and it's 106 00:06:12,279 --> 00:06:16,840 Speaker 1: really difficult to establish a relationship with your client in 107 00:06:16,880 --> 00:06:20,520 Speaker 1: these kinds of circumstances. Sure, so, even if it's a 108 00:06:21,279 --> 00:06:23,720 Speaker 1: case that you had going into the pandemic and it's 109 00:06:23,760 --> 00:06:27,240 Speaker 1: still going on, that's challenging enough. But a lot of 110 00:06:27,279 --> 00:06:30,120 Speaker 1: times lawyers are coming into a cage new maybe there's 111 00:06:30,120 --> 00:06:32,920 Speaker 1: a new lawyer that needs to be introduced for whatever reason, 112 00:06:32,920 --> 00:06:36,280 Speaker 1: and so in a normal situation, a lawyer might actually 113 00:06:36,320 --> 00:06:39,720 Speaker 1: meet their client in person at least eventually. But now 114 00:06:40,120 --> 00:06:43,640 Speaker 1: when these relationships are starting over the phone like any 115 00:06:43,680 --> 00:06:46,360 Speaker 1: other relationship, it's not going to be the same as 116 00:06:46,400 --> 00:06:48,880 Speaker 1: it is when you can actually see someone in person. 117 00:06:48,960 --> 00:06:51,600 Speaker 1: So that's just yet another layer to this that makes 118 00:06:51,600 --> 00:06:54,640 Speaker 1: it difficult just to carry on the normal life of 119 00:06:54,640 --> 00:06:57,960 Speaker 1: a case that we would see in normal times, also 120 00:06:58,040 --> 00:07:01,800 Speaker 1: investigating a case before where the trial actually happens, where 121 00:07:01,839 --> 00:07:05,239 Speaker 1: you have to talk to witnesses and you know, see 122 00:07:05,279 --> 00:07:08,599 Speaker 1: how your case lays out, and how do they investigate 123 00:07:09,000 --> 00:07:12,360 Speaker 1: during COVID Sure, And I think that point is important 124 00:07:12,400 --> 00:07:15,320 Speaker 1: because it's important to point out that this isn't just 125 00:07:15,400 --> 00:07:19,120 Speaker 1: an issue where the defense side is suffering. Prosecutions are 126 00:07:19,120 --> 00:07:22,360 Speaker 1: having issues too, including in the first instance, being able 127 00:07:22,400 --> 00:07:26,200 Speaker 1: to conduct investigations and prepare witnesses and victims and things 128 00:07:26,200 --> 00:07:29,640 Speaker 1: of that nature. And so obviously you can't just walk 129 00:07:29,720 --> 00:07:31,400 Speaker 1: up to someone on the street like you put in 130 00:07:31,440 --> 00:07:34,720 Speaker 1: normal times. It's tough to travel among the different states 131 00:07:34,720 --> 00:07:38,120 Speaker 1: and especially out of the country these days, like which 132 00:07:38,160 --> 00:07:42,040 Speaker 1: is necessary, and investigations both on the prosecution side and 133 00:07:42,240 --> 00:07:44,760 Speaker 1: on the defense side after a charge is brought, and 134 00:07:44,840 --> 00:07:49,280 Speaker 1: so really it's it's really just a complete breakdown of 135 00:07:49,360 --> 00:07:52,000 Speaker 1: the system on all sides, and it just is not 136 00:07:52,120 --> 00:07:55,240 Speaker 1: functioning like it normally would, including things that you take 137 00:07:55,240 --> 00:07:58,000 Speaker 1: for granted, like just being able to walk down the 138 00:07:58,000 --> 00:08:02,520 Speaker 1: street and fastitudes. Are there any trials actually going on 139 00:08:02,760 --> 00:08:05,360 Speaker 1: right now that you know of across the country, state 140 00:08:05,440 --> 00:08:09,640 Speaker 1: or federal. So it's interesting and this mirrors what we're 141 00:08:09,680 --> 00:08:14,280 Speaker 1: seeing in different states coronavirus responses across the country. We've 142 00:08:14,320 --> 00:08:18,000 Speaker 1: seen some trials start up, but then as cases go up, 143 00:08:18,240 --> 00:08:21,400 Speaker 1: they're shutting them down. We're seeing this mirroring the general 144 00:08:21,440 --> 00:08:25,040 Speaker 1: states reopening. We're seeing some states try to opt for 145 00:08:25,200 --> 00:08:29,000 Speaker 1: virtual proceedings, which create their own issues. And so we 146 00:08:29,080 --> 00:08:32,280 Speaker 1: have seen some movement trying to get trials started in 147 00:08:32,320 --> 00:08:36,560 Speaker 1: cases where in areas where the coronavirus has been less 148 00:08:36,600 --> 00:08:39,920 Speaker 1: impactful in the area. But on the whole, these things 149 00:08:39,920 --> 00:08:42,280 Speaker 1: just aren't happening, and if they are, they're not happening 150 00:08:42,280 --> 00:08:45,360 Speaker 1: in the way that people want them to. Several lawyers 151 00:08:45,360 --> 00:08:49,079 Speaker 1: who talked about the difficulty of holding a trial. If 152 00:08:49,080 --> 00:08:51,640 Speaker 1: you did decide to hold a trial, you know, how 153 00:08:51,640 --> 00:08:55,440 Speaker 1: would you keep six feet away from everyone so much 154 00:08:55,600 --> 00:08:57,680 Speaker 1: is in the face of someone. How would you be 155 00:08:57,720 --> 00:09:01,680 Speaker 1: able to cross examine someone was wearing a mask. Have 156 00:09:01,800 --> 00:09:05,680 Speaker 1: any courts dealt with this yet? Well, courts have dealt 157 00:09:05,720 --> 00:09:08,840 Speaker 1: with it um but people aren't sure that any court 158 00:09:08,840 --> 00:09:11,000 Speaker 1: has dealt with it in exactly the best way. And 159 00:09:11,040 --> 00:09:13,560 Speaker 1: that's not to say that there's a good answer out there, 160 00:09:13,600 --> 00:09:16,560 Speaker 1: and it really raises all these issues of little things 161 00:09:16,600 --> 00:09:19,120 Speaker 1: again that we would take for granted in normal times. 162 00:09:19,320 --> 00:09:21,440 Speaker 1: I mean, if you picture a client, if you picture 163 00:09:21,440 --> 00:09:23,320 Speaker 1: a trial in your mind, and you think of a 164 00:09:23,440 --> 00:09:26,240 Speaker 1: lawyer and a defendant sitting at a table, or a 165 00:09:26,280 --> 00:09:30,240 Speaker 1: prosecutor and their witness sitting at their own prosecution table, 166 00:09:30,520 --> 00:09:32,680 Speaker 1: the image in your mind is of a lawyer with 167 00:09:32,720 --> 00:09:35,640 Speaker 1: their hand over the client's shoulder and their whispering back 168 00:09:35,679 --> 00:09:37,440 Speaker 1: and forth to one another. But if you have to 169 00:09:37,440 --> 00:09:40,040 Speaker 1: stay six ft apart, something as simple as being able 170 00:09:40,080 --> 00:09:43,120 Speaker 1: to communicate in court during a trial in a time 171 00:09:43,200 --> 00:09:45,920 Speaker 1: sensitive manner, that's not something you can do if everyone's 172 00:09:46,120 --> 00:09:50,520 Speaker 1: abiding by social distancing restrictions. So something as seemingly small 173 00:09:50,559 --> 00:09:53,480 Speaker 1: as that becomes a huge issue. And so something you 174 00:09:53,480 --> 00:09:56,480 Speaker 1: mentioned too, like cross examining with a mask done. It 175 00:09:56,520 --> 00:09:58,679 Speaker 1: all comes down to credibility. And so if you're not 176 00:09:58,760 --> 00:10:02,240 Speaker 1: able to cease somebody and interact with them in that way, 177 00:10:02,520 --> 00:10:05,520 Speaker 1: then it really just changes the whole tenner of the process. 178 00:10:05,640 --> 00:10:08,439 Speaker 1: Is it New York? There's one court system that's using 179 00:10:09,000 --> 00:10:12,160 Speaker 1: closed circuit phones to for the lawyers to talk to 180 00:10:12,160 --> 00:10:15,320 Speaker 1: their clients. Sure, and this is an example of just 181 00:10:15,400 --> 00:10:18,280 Speaker 1: different courts trying to adapt to the situation as best 182 00:10:18,320 --> 00:10:21,120 Speaker 1: they can. One example that I came across was in 183 00:10:21,520 --> 00:10:24,440 Speaker 1: the Southern District of New York, which covers Manhattan, to 184 00:10:24,679 --> 00:10:27,760 Speaker 1: address the problem that I just mentioned, they have a 185 00:10:27,800 --> 00:10:31,200 Speaker 1: situation where there's a closed circuit phone where a client 186 00:10:31,280 --> 00:10:32,839 Speaker 1: can be on one end and a lawyer to be 187 00:10:32,920 --> 00:10:36,080 Speaker 1: on one end, just on opposite sides of the same table, 188 00:10:36,120 --> 00:10:39,559 Speaker 1: and they're whispering into their respective phones. And so it's 189 00:10:39,600 --> 00:10:42,559 Speaker 1: a situation that, again it's perhaps not ideal for everybody, 190 00:10:42,600 --> 00:10:45,240 Speaker 1: but it might be better than the alternative of not 191 00:10:45,320 --> 00:10:49,080 Speaker 1: being able to really communicate in real time otherwise. And 192 00:10:49,120 --> 00:10:51,840 Speaker 1: one lawyer you spoke to said, what probably would end 193 00:10:51,920 --> 00:10:54,480 Speaker 1: up happening is you just say, forget the six feet 194 00:10:54,720 --> 00:10:57,200 Speaker 1: between you and your client, and you just close the 195 00:10:57,200 --> 00:11:00,280 Speaker 1: gap and go for it, right, And that's the problem. 196 00:11:00,280 --> 00:11:02,679 Speaker 1: And again it's stuff we're seeing all over the country 197 00:11:02,679 --> 00:11:05,160 Speaker 1: and all aspects of life, but just apply here now 198 00:11:05,480 --> 00:11:08,000 Speaker 1: to the court system. When push comes to shove, you know, 199 00:11:08,080 --> 00:11:10,520 Speaker 1: different people are going to react differently, and so if 200 00:11:10,520 --> 00:11:14,040 Speaker 1: you're a lawyer and you're taking your job seriously, are 201 00:11:14,040 --> 00:11:16,360 Speaker 1: and it's a situation where you think it's really important 202 00:11:16,400 --> 00:11:19,520 Speaker 1: to communicate with your clients, but you have to reach 203 00:11:19,640 --> 00:11:22,080 Speaker 1: this six foot rule. You know, different people are going 204 00:11:22,080 --> 00:11:24,480 Speaker 1: to react to that differently. Some people are going to 205 00:11:24,559 --> 00:11:27,560 Speaker 1: maybe hold back and maybe that winds up harming their case. 206 00:11:28,000 --> 00:11:29,920 Speaker 1: Some people are gonna not hold back, and maybe that 207 00:11:29,960 --> 00:11:32,360 Speaker 1: winds up harming their health. So we can see how 208 00:11:32,360 --> 00:11:35,240 Speaker 1: this is just a situation that's evolving and does not 209 00:11:35,400 --> 00:11:39,439 Speaker 1: have any great answers, and there's really just no end 210 00:11:39,480 --> 00:11:41,520 Speaker 1: to it in sight, because we're seeing cases go up 211 00:11:41,520 --> 00:11:44,400 Speaker 1: and go back down, just as with every other aspect 212 00:11:44,480 --> 00:11:48,120 Speaker 1: of life. Have any lawyers told you I'm not going 213 00:11:48,160 --> 00:11:51,520 Speaker 1: to take any extensions any more. Extensions I just can't 214 00:11:51,880 --> 00:11:54,080 Speaker 1: because my case has reached a point where I need 215 00:11:54,120 --> 00:11:58,080 Speaker 1: to move forward. One notable example of that came from 216 00:11:58,480 --> 00:12:01,200 Speaker 1: Los Angeles County. The public defender there who I spoke to, 217 00:12:01,280 --> 00:12:04,000 Speaker 1: Ricardo Garcia, has said that, you know, courts are just 218 00:12:04,080 --> 00:12:06,480 Speaker 1: kicking the can down the road and they can't take 219 00:12:06,520 --> 00:12:09,680 Speaker 1: it anymore. And so it's a situation that mirrors I 220 00:12:09,720 --> 00:12:12,680 Speaker 1: think a lot of lawyer's attitudes across the country. The 221 00:12:12,760 --> 00:12:15,920 Speaker 1: problem is that the question is whether you can actually 222 00:12:16,000 --> 00:12:20,160 Speaker 1: do something about that, because courts are issuing these blanket orders, 223 00:12:20,240 --> 00:12:23,880 Speaker 1: delaying these trials essentially indefinitely, but piece by piece, so 224 00:12:23,920 --> 00:12:27,240 Speaker 1: there'll be a month extension followed by another month extension, 225 00:12:27,559 --> 00:12:30,000 Speaker 1: just because really, I think courts are buying time, just 226 00:12:30,080 --> 00:12:33,240 Speaker 1: like every other elected official is when people just don't 227 00:12:33,280 --> 00:12:35,760 Speaker 1: really know what to do, and so it's easier to 228 00:12:35,840 --> 00:12:38,320 Speaker 1: take it piece by piece when people just don't know 229 00:12:38,360 --> 00:12:41,440 Speaker 1: what's going to happen the next day, and so we're 230 00:12:41,480 --> 00:12:45,400 Speaker 1: not seeing a ton of challenges to this, and when 231 00:12:45,400 --> 00:12:47,760 Speaker 1: we are seeing challenges, I don't think lawyers think they're 232 00:12:47,800 --> 00:12:50,880 Speaker 1: necessarily going to be successful in this because courts are 233 00:12:50,880 --> 00:12:54,319 Speaker 1: going to defer to the emergency. I wonder if this 234 00:12:54,400 --> 00:12:59,079 Speaker 1: means in some sense this gives the defense an advantage 235 00:12:59,520 --> 00:13:03,439 Speaker 1: in the witnesses may not want to come in and testify, 236 00:13:03,520 --> 00:13:06,280 Speaker 1: and victims may not want to come in and testify, 237 00:13:06,320 --> 00:13:09,439 Speaker 1: and prosecutors may have a hard time just putting their 238 00:13:09,480 --> 00:13:13,240 Speaker 1: case together. So that's definitely a concern that comes up 239 00:13:13,280 --> 00:13:16,760 Speaker 1: in when I spoke to some prosecutors. In the same 240 00:13:16,840 --> 00:13:20,920 Speaker 1: way that defense lawyers are worrying about their clients, prosecutors 241 00:13:20,960 --> 00:13:24,680 Speaker 1: are worrying about essentially their clients, which are the witnesses 242 00:13:24,720 --> 00:13:27,400 Speaker 1: and the victims that they're trying to bring the court 243 00:13:27,480 --> 00:13:30,560 Speaker 1: to make their case. And so everyone really has the 244 00:13:30,640 --> 00:13:33,160 Speaker 1: same concerns these days and so and so you have 245 00:13:33,240 --> 00:13:35,760 Speaker 1: to think about your health as well. That's just one 246 00:13:35,760 --> 00:13:38,840 Speaker 1: of the many challenges that being faith here and trying 247 00:13:38,840 --> 00:13:43,000 Speaker 1: to put these trials together. Thanks Jordan's that's Jordan Reuben 248 00:13:43,040 --> 00:13:48,000 Speaker 1: Bloomberg Law Editor. Just a month ago, President Trump said 249 00:13:48,080 --> 00:13:52,600 Speaker 1: this about the litigation over subpoenas for his financial records. 250 00:13:52,640 --> 00:13:56,160 Speaker 1: Were basically starting all over again, sending everything back down 251 00:13:56,160 --> 00:13:58,240 Speaker 1: to the lower courts, and to start all over again. 252 00:13:58,640 --> 00:14:01,480 Speaker 1: Today Trump could say this ame thing about the congressional 253 00:14:01,520 --> 00:14:05,320 Speaker 1: subpoenas for the testimony of former White House Counsel Don McGann. 254 00:14:05,679 --> 00:14:08,320 Speaker 1: Despite a victory for Democrats at the d C. Circuit 255 00:14:08,400 --> 00:14:11,560 Speaker 1: Court of Appeals, the fight over McGahan's testimony is going 256 00:14:11,679 --> 00:14:14,120 Speaker 1: back to the lower court judge who ruled on in 257 00:14:14,200 --> 00:14:17,520 Speaker 1: November of last year. Joining me is Harold Krant, a 258 00:14:17,520 --> 00:14:21,080 Speaker 1: professor at the Chicago Kent College of Law. This goes 259 00:14:21,280 --> 00:14:25,960 Speaker 1: way back to April of last year. So just remind 260 00:14:26,080 --> 00:14:30,080 Speaker 1: us why they wanted to subpoena Don McGann. Don McGann 261 00:14:30,080 --> 00:14:33,480 Speaker 1: served as White House counsel for President Trump, and he 262 00:14:33,560 --> 00:14:37,600 Speaker 1: was critical figure in the Russian investigation. By all accounts, 263 00:14:37,680 --> 00:14:42,680 Speaker 1: he was there at President Trump's elbow during the firing 264 00:14:42,880 --> 00:14:47,840 Speaker 1: of FBI Comey and at Trump's alleged efforts to get 265 00:14:47,920 --> 00:14:50,960 Speaker 1: Mueller fired as a special investigator to look into the 266 00:14:51,040 --> 00:14:55,960 Speaker 1: Russia investigation. He cooperated with the special investigation, but then 267 00:14:56,040 --> 00:15:00,280 Speaker 1: when the House decided to subpoena him, the president New 268 00:15:00,320 --> 00:15:05,960 Speaker 1: Council decided to intervene and forbid him from complying with subpoena, 269 00:15:06,440 --> 00:15:09,440 Speaker 1: arguing that as a close advisor to the president, he 270 00:15:09,520 --> 00:15:11,880 Speaker 1: was immune from any kind of reach of the House 271 00:15:12,200 --> 00:15:15,920 Speaker 1: in its effort to get investigation to corroborate the alleged 272 00:15:15,920 --> 00:15:19,400 Speaker 1: obstruction of justice charges against President Trump. This was an 273 00:15:19,400 --> 00:15:22,520 Speaker 1: on bank hearing of nine judges on the d C. 274 00:15:22,760 --> 00:15:25,560 Speaker 1: Circuit Court of Appeals. Tell Us about the seven to 275 00:15:25,640 --> 00:15:29,280 Speaker 1: two ruling, The depicially is important in terms of the 276 00:15:29,320 --> 00:15:33,560 Speaker 1: broad strokes that it paints as to build legitimacy of 277 00:15:33,760 --> 00:15:38,600 Speaker 1: a corrational interest in obtaining information in the president's possession. 278 00:15:38,760 --> 00:15:41,800 Speaker 1: The argument had been that courts should never get involved 279 00:15:42,040 --> 00:15:45,200 Speaker 1: in these kind of subpoena fights over information, because of 280 00:15:45,200 --> 00:15:48,040 Speaker 1: course that would be a kind of a forced umpire 281 00:15:48,160 --> 00:15:51,560 Speaker 1: and they would have to decide that rule for one 282 00:15:51,560 --> 00:15:53,320 Speaker 1: branch or the other, and they'll be better to let 283 00:15:53,320 --> 00:15:56,000 Speaker 1: the two branches fight it out, and sometimes the two 284 00:15:56,040 --> 00:15:58,960 Speaker 1: branches to fight it out successfully over what type of 285 00:15:59,040 --> 00:16:02,520 Speaker 1: information to bulge. In the lower court case, the court 286 00:16:02,560 --> 00:16:06,320 Speaker 1: had held that courts are not permitted under our constitution 287 00:16:06,760 --> 00:16:10,680 Speaker 1: to sit in this kind of inter branch dispute between 288 00:16:10,720 --> 00:16:15,200 Speaker 1: Congress and the presidency. That would not be appropriate under 289 00:16:15,200 --> 00:16:17,840 Speaker 1: our system of separation of powers for the courts to 290 00:16:17,920 --> 00:16:21,800 Speaker 1: make that kind of rule. The armand Court has upheld 291 00:16:22,040 --> 00:16:25,040 Speaker 1: not only the congressional interest in getting this information to 292 00:16:25,200 --> 00:16:28,680 Speaker 1: investigate in a possible impeachment, but has held that the 293 00:16:28,680 --> 00:16:32,880 Speaker 1: courts are indeed the proper place to enforce a subpoena 294 00:16:33,200 --> 00:16:37,400 Speaker 1: because Congress has a tangible interest in getting this kind 295 00:16:37,440 --> 00:16:40,160 Speaker 1: of information. But the case is not over, because it's 296 00:16:40,160 --> 00:16:43,880 Speaker 1: going to go back and McGann can still claim that 297 00:16:43,920 --> 00:16:48,120 Speaker 1: the information he had because of his work for President 298 00:16:48,120 --> 00:16:52,320 Speaker 1: Trump is privileged. There's a long time recognition of executive privilege, 299 00:16:52,640 --> 00:16:54,960 Speaker 1: and he will probably make some other claims as well. 300 00:16:55,120 --> 00:16:58,600 Speaker 1: So the principle is very important here that the almand 301 00:16:58,640 --> 00:17:01,640 Speaker 1: Court maintained. But it's unlikely that we're going to see 302 00:17:01,720 --> 00:17:05,439 Speaker 1: McGann's testimony anytime soon. Let's talk a little bit about 303 00:17:05,480 --> 00:17:09,479 Speaker 1: the tone of the majority opinion. The judge wrote that 304 00:17:09,480 --> 00:17:14,119 Speaker 1: Trump had taken an unprecedented categorical direction and that the 305 00:17:14,119 --> 00:17:21,359 Speaker 1: Trump administration's disregard for constitutional obligations likely explains the infrequency 306 00:17:21,400 --> 00:17:25,280 Speaker 1: of subpoena enforcement lawsuits such as the present one. Tell 307 00:17:25,359 --> 00:17:28,440 Speaker 1: us what she was getting at there, Well, what the 308 00:17:28,480 --> 00:17:33,040 Speaker 1: Court was suggesting is that the reason why the branches 309 00:17:33,160 --> 00:17:36,720 Speaker 1: had been able to reach some kind of accommodation or 310 00:17:36,760 --> 00:17:40,680 Speaker 1: reconciliation of fights over information we passed was because they 311 00:17:40,800 --> 00:17:44,080 Speaker 1: believed in working together ultimately. Yes they each had their side, 312 00:17:44,200 --> 00:17:46,760 Speaker 1: Yes they had their differences, but they all believed that 313 00:17:46,840 --> 00:17:50,640 Speaker 1: there was a fundamental role for each in governing the country. 314 00:17:50,920 --> 00:17:53,760 Speaker 1: And what the Court is reacting to was that there 315 00:17:54,000 --> 00:17:57,760 Speaker 1: has been a sort of manifest lack of respect for 316 00:17:57,880 --> 00:18:00,760 Speaker 1: Congress that has been exhibited by our chiefs Ecutive, and 317 00:18:00,800 --> 00:18:03,879 Speaker 1: that you expect the two branches to come to an 318 00:18:03,920 --> 00:18:07,640 Speaker 1: agreement when one side here the President is so dismissive 319 00:18:07,720 --> 00:18:11,200 Speaker 1: of and detigrates the authority of Congress that under those 320 00:18:11,320 --> 00:18:14,959 Speaker 1: kinds of unique situations, it's even more appropriate for the 321 00:18:14,960 --> 00:18:18,240 Speaker 1: courts to step in and act as the arbiter. The 322 00:18:18,280 --> 00:18:21,920 Speaker 1: majority opinion sided the Supreme Court opinion on the congressional 323 00:18:21,960 --> 00:18:27,120 Speaker 1: subpoenas for Trump's financial records sixteen times. How much reliance 324 00:18:27,560 --> 00:18:31,520 Speaker 1: was there on that decision In fun Strokes, the opinion 325 00:18:31,600 --> 00:18:34,560 Speaker 1: is sort of like a reflection or parallel to the 326 00:18:34,600 --> 00:18:37,639 Speaker 1: Supreme Court's decision in the major's case having to do 327 00:18:37,720 --> 00:18:40,959 Speaker 1: with Trump's taxes, because in both cases, what the Court 328 00:18:41,000 --> 00:18:45,040 Speaker 1: held was that the claims of absolute immunity from suit 329 00:18:45,160 --> 00:18:48,560 Speaker 1: by the executive branch, that those claims are too broad, 330 00:18:48,800 --> 00:18:53,399 Speaker 1: and that that kind of executive hegemony is anathetical to 331 00:18:53,520 --> 00:18:56,760 Speaker 1: the structure of our constitution. It did say, however, in 332 00:18:56,800 --> 00:18:59,920 Speaker 1: both cases, that there could be legitimate reasons for either 333 00:19:00,280 --> 00:19:03,160 Speaker 1: contesting the effort to get taxes in the one case 334 00:19:03,200 --> 00:19:06,360 Speaker 1: by Congress in the other case, the effort to intrude 335 00:19:06,400 --> 00:19:11,000 Speaker 1: into executive privilege by asking God to demanding questions about 336 00:19:11,040 --> 00:19:13,639 Speaker 1: his relationship with President Trump on the other. But in 337 00:19:13,720 --> 00:19:17,640 Speaker 1: broad structure, both courts reject the claim of broad immunity 338 00:19:17,680 --> 00:19:21,679 Speaker 1: by President Trump's administration and say that's not how we 339 00:19:21,800 --> 00:19:24,960 Speaker 1: understand the way the Constitution is meant to be structured, 340 00:19:25,200 --> 00:19:28,480 Speaker 1: and rather their need for one branch to conform or 341 00:19:28,480 --> 00:19:32,160 Speaker 1: accommodate to the legitimate claims of the other branch at times, 342 00:19:32,320 --> 00:19:35,520 Speaker 1: and that both of these were such cases where accommodation 343 00:19:35,680 --> 00:19:40,040 Speaker 1: is required under the Constitution. Two Republican appointees were in 344 00:19:40,040 --> 00:19:44,320 Speaker 1: descent here, and how did they distinguish the Supreme Court's 345 00:19:44,359 --> 00:19:49,119 Speaker 1: opinions In dissent, They look to a different line of 346 00:19:49,200 --> 00:19:53,640 Speaker 1: cases um involving the ability of Congress to go into 347 00:19:53,680 --> 00:19:57,480 Speaker 1: court to sue, and there's been a string of opinions 348 00:19:57,520 --> 00:20:01,719 Speaker 1: that has limited the ability of individual members of Congress 349 00:20:01,760 --> 00:20:05,679 Speaker 1: to go into court to contestant injuries suffered by the 350 00:20:05,880 --> 00:20:09,800 Speaker 1: entire Congress. So they made parallel arguments and said, this 351 00:20:09,880 --> 00:20:14,879 Speaker 1: is really simply the Democrats in the House, not the 352 00:20:15,119 --> 00:20:18,880 Speaker 1: entire House, that is going into court for some kind 353 00:20:18,920 --> 00:20:24,199 Speaker 1: of injury. They shouldn't be allowed to use the authority 354 00:20:24,320 --> 00:20:26,800 Speaker 1: or the majesty of the U. S. Court system to 355 00:20:26,960 --> 00:20:30,040 Speaker 1: get what it is an essence of political victory. And 356 00:20:30,080 --> 00:20:34,040 Speaker 1: the majority, however, rejected that and said this is not 357 00:20:34,160 --> 00:20:37,840 Speaker 1: the interest of a single or limited part of the legislature. 358 00:20:37,920 --> 00:20:42,639 Speaker 1: This is an entire legitimate House effort to get information 359 00:20:42,760 --> 00:20:47,800 Speaker 1: pursued into its constitutional responsibilities under the impeachment clause. So 360 00:20:47,840 --> 00:20:50,879 Speaker 1: this is not just like three members of the legislature 361 00:20:51,080 --> 00:20:53,520 Speaker 1: who feel like their vote has been diluted. This is 362 00:20:53,560 --> 00:20:58,919 Speaker 1: an institutional injury to the House of Representatives itself and 363 00:20:59,000 --> 00:21:04,560 Speaker 1: when an exercising constitutional responsibilities under the impeachment couse. I 364 00:21:04,640 --> 00:21:09,000 Speaker 1: found it interesting that Trump's position was that Congress has 365 00:21:09,080 --> 00:21:12,040 Speaker 1: other tools available, and one of those tools was shutting 366 00:21:12,080 --> 00:21:15,960 Speaker 1: down the government. How did the court react to shut 367 00:21:15,960 --> 00:21:19,360 Speaker 1: down the government to enforce these subpoenas well. I mean, 368 00:21:19,880 --> 00:21:23,480 Speaker 1: what the Court has said is that you know there are, yes, 369 00:21:23,560 --> 00:21:28,840 Speaker 1: there are political ways to fight over information in subpoenas um. 370 00:21:28,880 --> 00:21:31,840 Speaker 1: But at the same time there is there is this 371 00:21:31,920 --> 00:21:34,840 Speaker 1: kind of brinkmanship is not required on the constitution, that 372 00:21:34,880 --> 00:21:39,719 Speaker 1: there's a history of enforcement of subpoenas and the fact 373 00:21:39,760 --> 00:21:44,600 Speaker 1: that the president administration has disdained for the operation of 374 00:21:44,920 --> 00:21:47,439 Speaker 1: the House of Representative is not a reason for course 375 00:21:47,480 --> 00:21:51,640 Speaker 1: to forbear from deciding this important case. Again, I don't 376 00:21:51,680 --> 00:21:55,080 Speaker 1: think we can seem against testimony anytime soon. But the 377 00:21:55,119 --> 00:21:58,359 Speaker 1: principle that The fact that a close advisor is not 378 00:21:58,560 --> 00:22:02,840 Speaker 1: totally immune from from complying with the congressional subpoena when 379 00:22:02,840 --> 00:22:05,119 Speaker 1: the congressional subpoena is looking into the wrong during an 380 00:22:05,119 --> 00:22:09,320 Speaker 1: executive branch is a very important principle that was reinforced 381 00:22:09,320 --> 00:22:13,119 Speaker 1: by the court. So they sent this back to the 382 00:22:13,119 --> 00:22:15,960 Speaker 1: lower court, and the lower court judge had written this 383 00:22:16,359 --> 00:22:20,200 Speaker 1: very strong opinion where she said presidents are not kings. 384 00:22:20,840 --> 00:22:23,640 Speaker 1: What kinds of questions are left for the lower court 385 00:22:23,720 --> 00:22:28,159 Speaker 1: to decide. There's a technical question about whether the way 386 00:22:28,160 --> 00:22:32,480 Speaker 1: to force compliance with the subpoena is through an action, 387 00:22:32,880 --> 00:22:36,639 Speaker 1: a judicial action, or whether first it's whether to a 388 00:22:36,760 --> 00:22:41,520 Speaker 1: refer a refusal to comply with subpoena to prosecutors to 389 00:22:41,880 --> 00:22:44,879 Speaker 1: lodge a contempt action. So this is a route. Do 390 00:22:44,880 --> 00:22:47,200 Speaker 1: you go through a criminal contempt action or do you 391 00:22:47,359 --> 00:22:52,800 Speaker 1: instead have a sort of declaratory judgment to require compliance 392 00:22:52,840 --> 00:22:56,119 Speaker 1: with the subpoena. I think the Mbard Court clearly indicated 393 00:22:56,160 --> 00:22:58,240 Speaker 1: that their view on this. They didn't decide it, but 394 00:22:58,280 --> 00:23:01,280 Speaker 1: their view on this is that this kind of judicial 395 00:23:01,280 --> 00:23:03,720 Speaker 1: action is totally appropriate and you don't want to have 396 00:23:03,840 --> 00:23:08,360 Speaker 1: to rely upon a criminal contempt motion for relatively obvious reasons, 397 00:23:08,400 --> 00:23:12,400 Speaker 1: because since the executive branch is in charge of prosecution, 398 00:23:12,640 --> 00:23:15,439 Speaker 1: you're not likely to get any kind of prosecutory of 399 00:23:15,440 --> 00:23:18,440 Speaker 1: contempt or when it's the executive branch fighting with the 400 00:23:18,560 --> 00:23:21,679 Speaker 1: legislative branch. So that one is is even odd that 401 00:23:22,160 --> 00:23:24,680 Speaker 1: I think the President is maintaining that position. The one 402 00:23:24,720 --> 00:23:27,359 Speaker 1: that is I think quite legitimate, which is this claim 403 00:23:27,400 --> 00:23:31,280 Speaker 1: of executive privilege. Much of the information that Don McGann 404 00:23:31,440 --> 00:23:35,000 Speaker 1: has he has by virtue of his role as an 405 00:23:35,000 --> 00:23:39,439 Speaker 1: advisor to the president, and if the questions pertain to 406 00:23:39,480 --> 00:23:42,840 Speaker 1: the advice he gave the president, those kind of conversations 407 00:23:42,920 --> 00:23:46,000 Speaker 1: are subjected to not an absolute privilege, but to a 408 00:23:46,080 --> 00:23:50,000 Speaker 1: qualified privilege that the lower court would have to figure out. 409 00:23:50,640 --> 00:23:54,520 Speaker 1: On the one hand, is the presidential privilege more important 410 00:23:55,040 --> 00:23:57,080 Speaker 1: as opposed to the other, which is the need for 411 00:23:57,160 --> 00:24:01,480 Speaker 1: information from the House to go about it's constitutionally assigned functions. 412 00:24:01,640 --> 00:24:04,240 Speaker 1: And here, of course, because we're the end of the 413 00:24:04,359 --> 00:24:09,240 Speaker 1: term and the impeachment has already been voted upon, you know, 414 00:24:09,280 --> 00:24:13,920 Speaker 1: it's unlikely that the houses need will be paramount if 415 00:24:14,080 --> 00:24:17,600 Speaker 1: such issues are claimed by privilege. Some won't be things 416 00:24:17,640 --> 00:24:21,360 Speaker 1: that McGann may have seen. Things that McGann may have 417 00:24:21,440 --> 00:24:26,520 Speaker 1: heard from non presidential sources may be appropriate for divulging 418 00:24:26,600 --> 00:24:29,840 Speaker 1: to the House. But there will be some materials in 419 00:24:29,960 --> 00:24:33,199 Speaker 1: McGann's possession and memory that would definitely be subject to 420 00:24:33,200 --> 00:24:38,399 Speaker 1: this presidential privilege. Might the Justice Department also appeal to 421 00:24:38,440 --> 00:24:41,600 Speaker 1: the Supreme Court and is the court likely to take 422 00:24:41,640 --> 00:24:43,920 Speaker 1: this case? I don't think the Court would be likely 423 00:24:43,960 --> 00:24:45,959 Speaker 1: to take this case so soon on the heels of 424 00:24:46,000 --> 00:24:50,639 Speaker 1: the congressional subpoena for Trump's taxes. I could be wrong. Besides, 425 00:24:50,680 --> 00:24:53,440 Speaker 1: I don't think there's anything really to this procedural posture 426 00:24:53,560 --> 00:24:57,320 Speaker 1: is one that's at the worst for the administration, and 427 00:24:57,320 --> 00:24:59,760 Speaker 1: it's more likely I think the administration will allow let 428 00:24:59,760 --> 00:25:02,639 Speaker 1: it percolate back in the district court because it's going 429 00:25:02,680 --> 00:25:05,360 Speaker 1: to go on a very slow probably will not be 430 00:25:05,440 --> 00:25:07,879 Speaker 1: speedily resolved. So I don't think they have much to 431 00:25:08,280 --> 00:25:11,960 Speaker 1: worry about in this instance. In this case, two judges 432 00:25:12,400 --> 00:25:17,080 Speaker 1: to Trump appointees recused themselves from hearing this case. So 433 00:25:17,119 --> 00:25:21,200 Speaker 1: the ruling was seven to two, with the Democratic appointees 434 00:25:21,240 --> 00:25:25,200 Speaker 1: in the majority and the Republican appointees in the minority. 435 00:25:25,359 --> 00:25:29,760 Speaker 1: And those two Republican appointees were in the majority in 436 00:25:29,800 --> 00:25:33,320 Speaker 1: the panel before that ruled for Trump. How do you 437 00:25:33,400 --> 00:25:38,560 Speaker 1: explain this other than that it's a political decision. Well, 438 00:25:38,600 --> 00:25:41,760 Speaker 1: I think that to some sense, one is not surprised 439 00:25:41,760 --> 00:25:45,400 Speaker 1: that if you have a geology is supposed to reflect 440 00:25:45,480 --> 00:25:49,760 Speaker 1: the political philosophy of the president who appoints the judges, 441 00:25:50,119 --> 00:25:53,240 Speaker 1: and so you would expect more often than not that 442 00:25:53,400 --> 00:25:57,200 Speaker 1: the judge appointed by the president would be sympathetic to 443 00:25:58,080 --> 00:26:04,520 Speaker 1: the expanse of Article to authority that the president believes in, 444 00:26:04,800 --> 00:26:08,800 Speaker 1: and that was reflected obviously in the Onbod decision, but 445 00:26:08,960 --> 00:26:11,719 Speaker 1: in the task case in the Supreme Court. Obviously we 446 00:26:11,720 --> 00:26:14,439 Speaker 1: were delighted to find out that there is more of 447 00:26:14,640 --> 00:26:20,760 Speaker 1: a mix. That the opinion attracted both Republicans and Democrats, 448 00:26:20,800 --> 00:26:24,600 Speaker 1: which shows that sometimes there is independent analysis and that 449 00:26:24,800 --> 00:26:27,600 Speaker 1: once you are appointed, even if you share some parts 450 00:26:27,600 --> 00:26:31,520 Speaker 1: of political philosophy of a president, you will form and 451 00:26:31,600 --> 00:26:35,560 Speaker 1: mold your own views, and so you don't have copycat views. 452 00:26:35,560 --> 00:26:39,200 Speaker 1: And so Democratic appointed judges often disagree with Democrat other 453 00:26:39,240 --> 00:26:43,480 Speaker 1: Democratic appointed judges, and as do Republican appointed judges as well. 454 00:26:43,920 --> 00:26:48,960 Speaker 1: The subpoena will expire at the end of Congress's term. 455 00:26:49,119 --> 00:26:52,239 Speaker 1: A new Congress is going to be sworn in. Is 456 00:26:52,280 --> 00:26:56,600 Speaker 1: there any possibility that they would be able to enforce 457 00:26:56,680 --> 00:27:00,720 Speaker 1: this subpoena before then? Or will the litigation just go 458 00:27:00,880 --> 00:27:04,560 Speaker 1: on much longer than that. There is some chance that 459 00:27:04,680 --> 00:27:08,000 Speaker 1: then it could be enforced before that. There probably will 460 00:27:08,040 --> 00:27:11,399 Speaker 1: be a hearing within a month in District Court to 461 00:27:11,440 --> 00:27:15,320 Speaker 1: take the next steps. The McGann side will put in 462 00:27:15,359 --> 00:27:17,880 Speaker 1: several motions to get rid of the subpoena as well 463 00:27:17,920 --> 00:27:21,560 Speaker 1: as to limit its reach because of executive privilege. The 464 00:27:21,600 --> 00:27:24,400 Speaker 1: court will then have to make that decision and there 465 00:27:24,400 --> 00:27:27,920 Speaker 1: will be an appeal, so likely it will go up 466 00:27:27,960 --> 00:27:32,720 Speaker 1: to the DC Circuit again prior to the election. But 467 00:27:33,000 --> 00:27:36,639 Speaker 1: if they decide then to seek review in the Supreme Court, 468 00:27:36,920 --> 00:27:40,880 Speaker 1: that will be resolved probably well after the election. Here's 469 00:27:40,880 --> 00:27:43,760 Speaker 1: about a five percent chance that this will that the 470 00:27:43,760 --> 00:27:47,879 Speaker 1: subpoena will be resolved upon prior to the election. The 471 00:27:47,960 --> 00:27:52,320 Speaker 1: judges also found that the lawmakers can go to court 472 00:27:52,920 --> 00:27:57,159 Speaker 1: to fight the border wall, so explain how standing works 473 00:27:57,200 --> 00:28:01,680 Speaker 1: in both cases. There's been a very long and difficult 474 00:28:02,160 --> 00:28:08,120 Speaker 1: history of the Court struggling to find when members of 475 00:28:08,160 --> 00:28:10,320 Speaker 1: the House or when the House itself as an institution, 476 00:28:10,400 --> 00:28:13,760 Speaker 1: can go to court to try to protect its own 477 00:28:13,800 --> 00:28:18,199 Speaker 1: legal interests. In the Monument's case, for instance, the courts 478 00:28:18,200 --> 00:28:23,840 Speaker 1: have held that members of the legislature, even all Democrats 479 00:28:24,000 --> 00:28:26,920 Speaker 1: for most of the all Democrats, do not have standing 480 00:28:27,720 --> 00:28:32,320 Speaker 1: to try to get the resolution of whether the president's 481 00:28:32,320 --> 00:28:36,200 Speaker 1: actions have violated the monuments clause, even though the institutional 482 00:28:36,240 --> 00:28:40,760 Speaker 1: interests because Congress has the constitutional right to consent to 483 00:28:41,600 --> 00:28:44,720 Speaker 1: gifts received by the president. In the border wall case, 484 00:28:45,200 --> 00:28:48,719 Speaker 1: there the question is whether there was a to find 485 00:28:48,760 --> 00:28:51,920 Speaker 1: tangible interests of Congress to go to court to say 486 00:28:52,040 --> 00:28:56,400 Speaker 1: that the President is trying to bypass Congress in funding 487 00:28:56,560 --> 00:28:59,680 Speaker 1: the border wall. I find that a harder case. All 488 00:28:59,680 --> 00:29:03,040 Speaker 1: the case is are you know, somewhat similar? But I 489 00:29:03,080 --> 00:29:05,960 Speaker 1: do believe that this case is the easiest one with 490 00:29:05,960 --> 00:29:10,560 Speaker 1: with McGann. Why because the fact that the Constitution directly 491 00:29:10,920 --> 00:29:15,680 Speaker 1: devolves the responsibility to consider impeachments onto the House, and 492 00:29:15,720 --> 00:29:19,080 Speaker 1: if the House can't get information, it can't perform its 493 00:29:19,080 --> 00:29:24,200 Speaker 1: constitutionally assigned functions. The standing question with respect to the 494 00:29:24,240 --> 00:29:27,800 Speaker 1: border wall, I think is closer. Yes, the President was 495 00:29:27,880 --> 00:29:30,880 Speaker 1: doing the end around Congress. On the other hand, there 496 00:29:30,920 --> 00:29:34,000 Speaker 1: are other people who could maintain the claim doesn't happen 497 00:29:34,040 --> 00:29:36,440 Speaker 1: in members of Congress and other people have suit to 498 00:29:36,520 --> 00:29:38,840 Speaker 1: stop funding the border wall. In fact, they've been successful. 499 00:29:39,160 --> 00:29:41,960 Speaker 1: So I think that these are all very difficult case 500 00:29:42,280 --> 00:29:46,800 Speaker 1: specific statutes, but clearly the nature of the institutional injury 501 00:29:46,840 --> 00:29:49,760 Speaker 1: is key. Again, the impeachment clause injury, I think is 502 00:29:49,800 --> 00:29:52,880 Speaker 1: much stronger than the monuments. And I think the border 503 00:29:52,880 --> 00:29:56,400 Speaker 1: wall might be somewhere in the middle because it was 504 00:29:56,520 --> 00:30:01,680 Speaker 1: seemed to be a circumvention or a run around as 505 00:30:01,680 --> 00:30:06,160 Speaker 1: opposed to Congress's control over funding. Thanks for being on 506 00:30:06,160 --> 00:30:09,120 Speaker 1: the show. How that's Harold Granted, professor at the Chicago 507 00:30:09,200 --> 00:30:11,960 Speaker 1: Kent College of Law. And that's it for this edition 508 00:30:11,960 --> 00:30:14,920 Speaker 1: of the Bloomberg Law Show. I'm June Grosso. Thanks so 509 00:30:15,000 --> 00:30:17,640 Speaker 1: much for listening, and remember to tune to The Bloomberg 510 00:30:17,720 --> 00:30:20,400 Speaker 1: Law Show every week night at ten pm Eastern right 511 00:30:20,440 --> 00:30:21,760 Speaker 1: here on Bloomberg Radio.