Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: COVID nineteen has lawyers navigating all kinds of issues in
Speaker 1: the criminal justice system, from not being able to confer
Speaker 1: adequately with their clients to potentially skewed jury pools. Judges
Speaker 1: are routinely delaying cases as they confront an evolving situation
Speaker 1: and novel questions. Joining me is Bloomberg Law editor Jordan
Speaker 1: Ruben Jordan to put this into context, tell us about
Speaker 1: the case of Jose Javier Rivera Bernard Sure. So this
Speaker 1: is a case where a defendant is in a situation
Speaker 1: that has become a somewhat common and illustrative of what
Speaker 1: decendants are facing in this COVID nineteen era. So this
Speaker 1: is a case where the defendant is facing federal drug charges,
Speaker 1: serious charges. He's detained pre trial, and he's facing a
Speaker 1: dilemma of do I ops for a virtual hearing or
Speaker 1: do I still wait longer in jail until I can
Speaker 1: get a real hearing. Now, his lawyer is raising the
Speaker 1: issue that he doesn't want a virtual hearing because he
Speaker 1: can't properly challenge the credibility of government witnesses, and so
Speaker 1: it's his dilemma because he can either get a hearing
Speaker 1: that's really, in his view, a half measure of what
Speaker 1: he's entitled to. On the other hand, though he's sitting
Speaker 1: locked up in a place where is really not safe
Speaker 1: to be in jail decays because of the coronavirus. We
Speaker 1: hear a lot about defendants being released or getting deals
Speaker 1: to get out of prison because of COVID. In this case, RIVERA.
Speaker 1: Bernard is in the Metropolitan Correction Center. Isn't there any
Speaker 1: way for him to get released prior to his hearing.
Speaker 1: It's possible for a defendant in general to get that
Speaker 1: kind of release, and we have seen some defendants getting released,
Speaker 1: but the reality is that it's just not as many
Speaker 1: people getting released as defense attorneys would want. And so
Speaker 1: the reality is there is this situation where a fair
Speaker 1: amount of people are sitting in jail, detained pre trial,
Speaker 1: awaiting trial, and they're essentially sitting ducks exposed to the coronavirus.
Speaker 1: And it's not just an issue in the jails of
Speaker 1: the defendants who are exposed to this, it's the correctional
Speaker 1: officers who are going out into the community as well.
Speaker 1: And so you can see how this becomes a problem really,
Speaker 1: not just inside the prisons but outside as well. And
Speaker 1: is this a problem in prisons across the country, is
Speaker 1: it more so in big cities. Well, it's sort of.
Speaker 1: It's similar to the way that we're seeing different reactions
Speaker 1: to how the virus is playing out across the country.
Speaker 1: It's somewhat true in the criminal justice system, but on
Speaker 1: the whole when it comes to the coronavirus across the board,
Speaker 1: really the prisoner jails is just simply the worst place
Speaker 1: to be. It's up there with nursing homes. Those are
Speaker 1: really two of the institutions where we've seen the coronavirus
Speaker 1: make its hardest hits. And so really just by the sign,
Speaker 1: it's almost if you are designing a place where a
Speaker 1: virus like that could thrive, a prisoner at jail would
Speaker 1: be what someone would want to design. Really, So you
Speaker 1: talked to a lawyer, Michael Diamonds, the uniformer prosecutor, and
Speaker 1: he said, courts are overwhelmed. They don't know how to react.
Speaker 1: The tried and true method is keep everyone in jail
Speaker 1: and we'll sort it out. So is he saying that
Speaker 1: it's the exception rather than the rule that people are
Speaker 1: getting released because of COVID. I think that's definitely right,
Speaker 1: because it's a situation where the courts are faced with
Speaker 1: really in no good choice of they have these cases
Speaker 1: that they want to move along. They have people that
Speaker 1: are detained, sometimes on very serious crimes, homicides, things like that,
Speaker 1: and so obviously every defense attorney wants to get their
Speaker 1: client out, but it's not always that simple, and so
Speaker 1: it really is a matter of in a situation like this,
Speaker 1: like in general, in the criminal justice system, when push
Speaker 1: comes to job, it's usually the defendant who winds up
Speaker 1: staying the pained. At least that's how the defense attorneys
Speaker 1: are seeing the situation. I was struck because one defense
Speaker 1: attorney you talked to said that instead of working on
Speaker 1: the case, all they're doing seven is making bail applications
Speaker 1: and compassionate release applications and not really getting to you know,
Speaker 1: the nitty gritty. Well, that's right. I mean, the system
Speaker 1: itself is kind of at a standstill. So it's not
Speaker 1: like cases are moving along anyway, at least not in
Speaker 1: the way that people want them to. And so if
Speaker 1: you're an attorney and you have a client who's detained
Speaker 1: pre trial, really that's your main job is trying to
Speaker 1: get them out. And again that's something that's true even
Speaker 1: in quote unquote normal times, But just like in every
Speaker 1: other aspect of life, the pandemic has exacerbated that and
Speaker 1: brought it even more to the forefront of what people
Speaker 1: are focusing on. Looking at this through Rivera Bernard's case,
Speaker 1: his lawyer said the it's difficult to prepare for cases
Speaker 1: because he can't communicate with him adequately. It's very limited.
Speaker 1: I didn't realize it was that limited. The amount of
Speaker 1: time they can communicate with their lawyers. Tell us about that. Again,
Speaker 1: this is something that is different in different facilities across
Speaker 1: the country. But if you have a jail it's in
Speaker 1: lockdown because of COVID, then that means in turn that
Speaker 1: a lawyer really can't get in there to communicate with
Speaker 1: their client. And so sometimes you can communicate by phone,
Speaker 1: but when you're talking about really important issues and really
Speaker 1: serious discussions, clients not necessarily going to feel comfortable talking
Speaker 1: about that over the phone. And if you have luminous
Speaker 1: documents and evidence to review with a client, forget about it.
Speaker 1: That's not going to happen in any meaningful way. And
Speaker 1: so at the same time as these trials are being
Speaker 1: pushed off essentially indefinitely, it's almost impossible to meaningfully prepare
Speaker 1: for them at the same time, and so you're seeing
Speaker 1: that two different degrees across the country. But if you're
Speaker 1: in an air aware there's a really serious COVID situation,
Speaker 1: that's just going to be compounding the issue because the
Speaker 1: trial is going to get delayed and it's something that
Speaker 1: you can't even really meaningfully be prepared for, and it's
Speaker 1: really difficult to establish a relationship with your client in
Speaker 1: these kinds of circumstances. Sure, so, even if it's a
Speaker 1: case that you had going into the pandemic and it's
Speaker 1: still going on, that's challenging enough. But a lot of
Speaker 1: times lawyers are coming into a cage new maybe there's
Speaker 1: a new lawyer that needs to be introduced for whatever reason,
Speaker 1: and so in a normal situation, a lawyer might actually
Speaker 1: meet their client in person at least eventually. But now
Speaker 1: when these relationships are starting over the phone like any
Speaker 1: other relationship, it's not going to be the same as
Speaker 1: it is when you can actually see someone in person.
Speaker 1: So that's just yet another layer to this that makes
Speaker 1: it difficult just to carry on the normal life of
Speaker 1: a case that we would see in normal times, also
Speaker 1: investigating a case before where the trial actually happens, where
Speaker 1: you have to talk to witnesses and you know, see
Speaker 1: how your case lays out, and how do they investigate
Speaker 1: during COVID Sure, And I think that point is important
Speaker 1: because it's important to point out that this isn't just
Speaker 1: an issue where the defense side is suffering. Prosecutions are
Speaker 1: having issues too, including in the first instance, being able
Speaker 1: to conduct investigations and prepare witnesses and victims and things
Speaker 1: of that nature. And so obviously you can't just walk
Speaker 1: up to someone on the street like you put in
Speaker 1: normal times. It's tough to travel among the different states
Speaker 1: and especially out of the country these days, like which
Speaker 1: is necessary, and investigations both on the prosecution side and
Speaker 1: on the defense side after a charge is brought, and
Speaker 1: so really it's it's really just a complete breakdown of
Speaker 1: the system on all sides, and it just is not
Speaker 1: functioning like it normally would, including things that you take
Speaker 1: for granted, like just being able to walk down the
Speaker 1: street and fastitudes. Are there any trials actually going on
Speaker 1: right now that you know of across the country, state
Speaker 1: or federal. So it's interesting and this mirrors what we're
Speaker 1: seeing in different states coronavirus responses across the country. We've
Speaker 1: seen some trials start up, but then as cases go up,
Speaker 1: they're shutting them down. We're seeing this mirroring the general
Speaker 1: states reopening. We're seeing some states try to opt for
Speaker 1: virtual proceedings, which create their own issues. And so we
Speaker 1: have seen some movement trying to get trials started in
Speaker 1: cases where in areas where the coronavirus has been less
Speaker 1: impactful in the area. But on the whole, these things
Speaker 1: just aren't happening, and if they are, they're not happening
Speaker 1: in the way that people want them to. Several lawyers
Speaker 1: who talked about the difficulty of holding a trial. If
Speaker 1: you did decide to hold a trial, you know, how
Speaker 1: would you keep six feet away from everyone so much
Speaker 1: is in the face of someone. How would you be
Speaker 1: able to cross examine someone was wearing a mask. Have
Speaker 1: any courts dealt with this yet? Well, courts have dealt
Speaker 1: with it um but people aren't sure that any court
Speaker 1: has dealt with it in exactly the best way. And
Speaker 1: that's not to say that there's a good answer out there,
Speaker 1: and it really raises all these issues of little things
Speaker 1: again that we would take for granted in normal times.
Speaker 1: I mean, if you picture a client, if you picture
Speaker 1: a trial in your mind, and you think of a
Speaker 1: lawyer and a defendant sitting at a table, or a
Speaker 1: prosecutor and their witness sitting at their own prosecution table,
Speaker 1: the image in your mind is of a lawyer with
Speaker 1: their hand over the client's shoulder and their whispering back
Speaker 1: and forth to one another. But if you have to
Speaker 1: stay six ft apart, something as simple as being able
Speaker 1: to communicate in court during a trial in a time
Speaker 1: sensitive manner, that's not something you can do if everyone's
Speaker 1: abiding by social distancing restrictions. So something as seemingly small
Speaker 1: as that becomes a huge issue. And so something you
Speaker 1: mentioned too, like cross examining with a mask done. It
Speaker 1: all comes down to credibility. And so if you're not
Speaker 1: able to cease somebody and interact with them in that way,
Speaker 1: then it really just changes the whole tenner of the process.
Speaker 1: Is it New York? There's one court system that's using
Speaker 1: closed circuit phones to for the lawyers to talk to
Speaker 1: their clients. Sure, and this is an example of just
Speaker 1: different courts trying to adapt to the situation as best
Speaker 1: they can. One example that I came across was in
Speaker 1: the Southern District of New York, which covers Manhattan, to
Speaker 1: address the problem that I just mentioned, they have a
Speaker 1: situation where there's a closed circuit phone where a client
Speaker 1: can be on one end and a lawyer to be
Speaker 1: on one end, just on opposite sides of the same table,
Speaker 1: and they're whispering into their respective phones. And so it's
Speaker 1: a situation that, again it's perhaps not ideal for everybody,
Speaker 1: but it might be better than the alternative of not
Speaker 1: being able to really communicate in real time otherwise. And
Speaker 1: one lawyer you spoke to said, what probably would end
Speaker 1: up happening is you just say, forget the six feet
Speaker 1: between you and your client, and you just close the
Speaker 1: gap and go for it, right, And that's the problem.
Speaker 1: And again it's stuff we're seeing all over the country
Speaker 1: and all aspects of life, but just apply here now
Speaker 1: to the court system. When push comes to shove, you know,
Speaker 1: different people are going to react differently, and so if
Speaker 1: you're a lawyer and you're taking your job seriously, are
Speaker 1: and it's a situation where you think it's really important
Speaker 1: to communicate with your clients, but you have to reach
Speaker 1: this six foot rule. You know, different people are going
Speaker 1: to react to that differently. Some people are going to
Speaker 1: maybe hold back and maybe that winds up harming their case.
Speaker 1: Some people are gonna not hold back, and maybe that
Speaker 1: winds up harming their health. So we can see how
Speaker 1: this is just a situation that's evolving and does not
Speaker 1: have any great answers, and there's really just no end
Speaker 1: to it in sight, because we're seeing cases go up
Speaker 1: and go back down, just as with every other aspect
Speaker 1: of life. Have any lawyers told you I'm not going
Speaker 1: to take any extensions any more. Extensions I just can't
Speaker 1: because my case has reached a point where I need
Speaker 1: to move forward. One notable example of that came from
Speaker 1: Los Angeles County. The public defender there who I spoke to,
Speaker 1: Ricardo Garcia, has said that, you know, courts are just
Speaker 1: kicking the can down the road and they can't take
Speaker 1: it anymore. And so it's a situation that mirrors I
Speaker 1: think a lot of lawyer's attitudes across the country. The
Speaker 1: problem is that the question is whether you can actually
Speaker 1: do something about that, because courts are issuing these blanket orders,
Speaker 1: delaying these trials essentially indefinitely, but piece by piece, so
Speaker 1: there'll be a month extension followed by another month extension,
Speaker 1: just because really, I think courts are buying time, just
Speaker 1: like every other elected official is when people just don't
Speaker 1: really know what to do, and so it's easier to
Speaker 1: take it piece by piece when people just don't know
Speaker 1: what's going to happen the next day, and so we're
Speaker 1: not seeing a ton of challenges to this, and when
Speaker 1: we are seeing challenges, I don't think lawyers think they're
Speaker 1: necessarily going to be successful in this because courts are
Speaker 1: going to defer to the emergency. I wonder if this
Speaker 1: means in some sense this gives the defense an advantage
Speaker 1: in the witnesses may not want to come in and testify,
Speaker 1: and victims may not want to come in and testify,
Speaker 1: and prosecutors may have a hard time just putting their
Speaker 1: case together. So that's definitely a concern that comes up
Speaker 1: in when I spoke to some prosecutors. In the same
Speaker 1: way that defense lawyers are worrying about their clients, prosecutors
Speaker 1: are worrying about essentially their clients, which are the witnesses
Speaker 1: and the victims that they're trying to bring the court
Speaker 1: to make their case. And so everyone really has the
Speaker 1: same concerns these days and so and so you have
Speaker 1: to think about your health as well. That's just one
Speaker 1: of the many challenges that being faith here and trying
Speaker 1: to put these trials together. Thanks Jordan's that's Jordan Reuben
Speaker 1: Bloomberg Law Editor. Just a month ago, President Trump said
Speaker 1: this about the litigation over subpoenas for his financial records.
Speaker 1: Were basically starting all over again, sending everything back down
Speaker 1: to the lower courts, and to start all over again.
Speaker 1: Today Trump could say this ame thing about the congressional
Speaker 1: subpoenas for the testimony of former White House Counsel Don McGann.
Speaker 1: Despite a victory for Democrats at the d C. Circuit
Speaker 1: Court of Appeals, the fight over McGahan's testimony is going
Speaker 1: back to the lower court judge who ruled on in
Speaker 1: November of last year. Joining me is Harold Krant, a
Speaker 1: professor at the Chicago Kent College of Law. This goes
Speaker 1: way back to April of last year. So just remind
Speaker 1: us why they wanted to subpoena Don McGann. Don McGann
Speaker 1: served as White House counsel for President Trump, and he
Speaker 1: was critical figure in the Russian investigation. By all accounts,
Speaker 1: he was there at President Trump's elbow during the firing
Speaker 1: of FBI Comey and at Trump's alleged efforts to get
Speaker 1: Mueller fired as a special investigator to look into the
Speaker 1: Russia investigation. He cooperated with the special investigation, but then
Speaker 1: when the House decided to subpoena him, the president New
Speaker 1: Council decided to intervene and forbid him from complying with subpoena,
Speaker 1: arguing that as a close advisor to the president, he
Speaker 1: was immune from any kind of reach of the House
Speaker 1: in its effort to get investigation to corroborate the alleged
Speaker 1: obstruction of justice charges against President Trump. This was an
Speaker 1: on bank hearing of nine judges on the d C.
Speaker 1: Circuit Court of Appeals. Tell Us about the seven to
Speaker 1: two ruling, The depicially is important in terms of the
Speaker 1: broad strokes that it paints as to build legitimacy of
Speaker 1: a corrational interest in obtaining information in the president's possession.
Speaker 1: The argument had been that courts should never get involved
Speaker 1: in these kind of subpoena fights over information, because of
Speaker 1: course that would be a kind of a forced umpire
Speaker 1: and they would have to decide that rule for one
Speaker 1: branch or the other, and they'll be better to let
Speaker 1: the two branches fight it out, and sometimes the two
Speaker 1: branches to fight it out successfully over what type of
Speaker 1: information to bulge. In the lower court case, the court
Speaker 1: had held that courts are not permitted under our constitution
Speaker 1: to sit in this kind of inter branch dispute between
Speaker 1: Congress and the presidency. That would not be appropriate under
Speaker 1: our system of separation of powers for the courts to
Speaker 1: make that kind of rule. The armand Court has upheld
Speaker 1: not only the congressional interest in getting this information to
Speaker 1: investigate in a possible impeachment, but has held that the
Speaker 1: courts are indeed the proper place to enforce a subpoena
Speaker 1: because Congress has a tangible interest in getting this kind
Speaker 1: of information. But the case is not over, because it's
Speaker 1: going to go back and McGann can still claim that
Speaker 1: the information he had because of his work for President
Speaker 1: Trump is privileged. There's a long time recognition of executive privilege,
Speaker 1: and he will probably make some other claims as well.
Speaker 1: So the principle is very important here that the almand
Speaker 1: Court maintained. But it's unlikely that we're going to see
Speaker 1: McGann's testimony anytime soon. Let's talk a little bit about
Speaker 1: the tone of the majority opinion. The judge wrote that
Speaker 1: Trump had taken an unprecedented categorical direction and that the
Speaker 1: Trump administration's disregard for constitutional obligations likely explains the infrequency
Speaker 1: of subpoena enforcement lawsuits such as the present one. Tell
Speaker 1: us what she was getting at there, Well, what the
Speaker 1: Court was suggesting is that the reason why the branches
Speaker 1: had been able to reach some kind of accommodation or
Speaker 1: reconciliation of fights over information we passed was because they
Speaker 1: believed in working together ultimately. Yes they each had their side,
Speaker 1: Yes they had their differences, but they all believed that
Speaker 1: there was a fundamental role for each in governing the country.
Speaker 1: And what the Court is reacting to was that there
Speaker 1: has been a sort of manifest lack of respect for
Speaker 1: Congress that has been exhibited by our chiefs Ecutive, and
Speaker 1: that you expect the two branches to come to an
Speaker 1: agreement when one side here the President is so dismissive
Speaker 1: of and detigrates the authority of Congress that under those
Speaker 1: kinds of unique situations, it's even more appropriate for the
Speaker 1: courts to step in and act as the arbiter. The
Speaker 1: majority opinion sided the Supreme Court opinion on the congressional
Speaker 1: subpoenas for Trump's financial records sixteen times. How much reliance
Speaker 1: was there on that decision In fun Strokes, the opinion
Speaker 1: is sort of like a reflection or parallel to the
Speaker 1: Supreme Court's decision in the major's case having to do
Speaker 1: with Trump's taxes, because in both cases, what the Court
Speaker 1: held was that the claims of absolute immunity from suit
Speaker 1: by the executive branch, that those claims are too broad,
Speaker 1: and that that kind of executive hegemony is anathetical to
Speaker 1: the structure of our constitution. It did say, however, in
Speaker 1: both cases, that there could be legitimate reasons for either
Speaker 1: contesting the effort to get taxes in the one case
Speaker 1: by Congress in the other case, the effort to intrude
Speaker 1: into executive privilege by asking God to demanding questions about
Speaker 1: his relationship with President Trump on the other. But in
Speaker 1: broad structure, both courts reject the claim of broad immunity
Speaker 1: by President Trump's administration and say that's not how we
Speaker 1: understand the way the Constitution is meant to be structured,
Speaker 1: and rather their need for one branch to conform or
Speaker 1: accommodate to the legitimate claims of the other branch at times,
Speaker 1: and that both of these were such cases where accommodation
Speaker 1: is required under the Constitution. Two Republican appointees were in
Speaker 1: descent here, and how did they distinguish the Supreme Court's
Speaker 1: opinions In dissent, They look to a different line of
Speaker 1: cases um involving the ability of Congress to go into
Speaker 1: court to sue, and there's been a string of opinions
Speaker 1: that has limited the ability of individual members of Congress
Speaker 1: to go into court to contestant injuries suffered by the
Speaker 1: entire Congress. So they made parallel arguments and said, this
Speaker 1: is really simply the Democrats in the House, not the
Speaker 1: entire House, that is going into court for some kind
Speaker 1: of injury. They shouldn't be allowed to use the authority
Speaker 1: or the majesty of the U. S. Court system to
Speaker 1: get what it is an essence of political victory. And
Speaker 1: the majority, however, rejected that and said this is not
Speaker 1: the interest of a single or limited part of the legislature.
Speaker 1: This is an entire legitimate House effort to get information
Speaker 1: pursued into its constitutional responsibilities under the impeachment clause. So
Speaker 1: this is not just like three members of the legislature
Speaker 1: who feel like their vote has been diluted. This is
Speaker 1: an institutional injury to the House of Representatives itself and
Speaker 1: when an exercising constitutional responsibilities under the impeachment couse. I
Speaker 1: found it interesting that Trump's position was that Congress has
Speaker 1: other tools available, and one of those tools was shutting
Speaker 1: down the government. How did the court react to shut
Speaker 1: down the government to enforce these subpoenas well. I mean,
Speaker 1: what the Court has said is that you know there are, yes,
Speaker 1: there are political ways to fight over information in subpoenas um.
Speaker 1: But at the same time there is there is this
Speaker 1: kind of brinkmanship is not required on the constitution, that
Speaker 1: there's a history of enforcement of subpoenas and the fact
Speaker 1: that the president administration has disdained for the operation of
Speaker 1: the House of Representative is not a reason for course
Speaker 1: to forbear from deciding this important case. Again, I don't
Speaker 1: think we can seem against testimony anytime soon. But the
Speaker 1: principle that The fact that a close advisor is not
Speaker 1: totally immune from from complying with the congressional subpoena when
Speaker 1: the congressional subpoena is looking into the wrong during an
Speaker 1: executive branch is a very important principle that was reinforced
Speaker 1: by the court. So they sent this back to the
Speaker 1: lower court, and the lower court judge had written this
Speaker 1: very strong opinion where she said presidents are not kings.
Speaker 1: What kinds of questions are left for the lower court
Speaker 1: to decide. There's a technical question about whether the way
Speaker 1: to force compliance with the subpoena is through an action,
Speaker 1: a judicial action, or whether first it's whether to a
Speaker 1: refer a refusal to comply with subpoena to prosecutors to
Speaker 1: lodge a contempt action. So this is a route. Do
Speaker 1: you go through a criminal contempt action or do you
Speaker 1: instead have a sort of declaratory judgment to require compliance
Speaker 1: with the subpoena. I think the Mbard Court clearly indicated
Speaker 1: that their view on this. They didn't decide it, but
Speaker 1: their view on this is that this kind of judicial
Speaker 1: action is totally appropriate and you don't want to have
Speaker 1: to rely upon a criminal contempt motion for relatively obvious reasons,
Speaker 1: because since the executive branch is in charge of prosecution,
Speaker 1: you're not likely to get any kind of prosecutory of
Speaker 1: contempt or when it's the executive branch fighting with the
Speaker 1: legislative branch. So that one is is even odd that
Speaker 1: I think the President is maintaining that position. The one
Speaker 1: that is I think quite legitimate, which is this claim
Speaker 1: of executive privilege. Much of the information that Don McGann
Speaker 1: has he has by virtue of his role as an
Speaker 1: advisor to the president, and if the questions pertain to
Speaker 1: the advice he gave the president, those kind of conversations
Speaker 1: are subjected to not an absolute privilege, but to a
Speaker 1: qualified privilege that the lower court would have to figure out.
Speaker 1: On the one hand, is the presidential privilege more important
Speaker 1: as opposed to the other, which is the need for
Speaker 1: information from the House to go about it's constitutionally assigned functions.
Speaker 1: And here, of course, because we're the end of the
Speaker 1: term and the impeachment has already been voted upon, you know,
Speaker 1: it's unlikely that the houses need will be paramount if
Speaker 1: such issues are claimed by privilege. Some won't be things
Speaker 1: that McGann may have seen. Things that McGann may have
Speaker 1: heard from non presidential sources may be appropriate for divulging
Speaker 1: to the House. But there will be some materials in
Speaker 1: McGann's possession and memory that would definitely be subject to
Speaker 1: this presidential privilege. Might the Justice Department also appeal to
Speaker 1: the Supreme Court and is the court likely to take
Speaker 1: this case? I don't think the Court would be likely
Speaker 1: to take this case so soon on the heels of
Speaker 1: the congressional subpoena for Trump's taxes. I could be wrong. Besides,
Speaker 1: I don't think there's anything really to this procedural posture
Speaker 1: is one that's at the worst for the administration, and
Speaker 1: it's more likely I think the administration will allow let
Speaker 1: it percolate back in the district court because it's going
Speaker 1: to go on a very slow probably will not be
Speaker 1: speedily resolved. So I don't think they have much to
Speaker 1: worry about in this instance. In this case, two judges
Speaker 1: to Trump appointees recused themselves from hearing this case. So
Speaker 1: the ruling was seven to two, with the Democratic appointees
Speaker 1: in the majority and the Republican appointees in the minority.
Speaker 1: And those two Republican appointees were in the majority in
Speaker 1: the panel before that ruled for Trump. How do you
Speaker 1: explain this other than that it's a political decision. Well,
Speaker 1: I think that to some sense, one is not surprised
Speaker 1: that if you have a geology is supposed to reflect
Speaker 1: the political philosophy of the president who appoints the judges,
Speaker 1: and so you would expect more often than not that
Speaker 1: the judge appointed by the president would be sympathetic to
Speaker 1: the expanse of Article to authority that the president believes in,
Speaker 1: and that was reflected obviously in the Onbod decision, but
Speaker 1: in the task case in the Supreme Court. Obviously we
Speaker 1: were delighted to find out that there is more of
Speaker 1: a mix. That the opinion attracted both Republicans and Democrats,
Speaker 1: which shows that sometimes there is independent analysis and that
Speaker 1: once you are appointed, even if you share some parts
Speaker 1: of political philosophy of a president, you will form and
Speaker 1: mold your own views, and so you don't have copycat views.
Speaker 1: And so Democratic appointed judges often disagree with Democrat other
Speaker 1: Democratic appointed judges, and as do Republican appointed judges as well.
Speaker 1: The subpoena will expire at the end of Congress's term.
Speaker 1: A new Congress is going to be sworn in. Is
Speaker 1: there any possibility that they would be able to enforce
Speaker 1: this subpoena before then? Or will the litigation just go
Speaker 1: on much longer than that. There is some chance that
Speaker 1: then it could be enforced before that. There probably will
Speaker 1: be a hearing within a month in District Court to
Speaker 1: take the next steps. The McGann side will put in
Speaker 1: several motions to get rid of the subpoena as well
Speaker 1: as to limit its reach because of executive privilege. The
Speaker 1: court will then have to make that decision and there
Speaker 1: will be an appeal, so likely it will go up
Speaker 1: to the DC Circuit again prior to the election. But
Speaker 1: if they decide then to seek review in the Supreme Court,
Speaker 1: that will be resolved probably well after the election. Here's
Speaker 1: about a five percent chance that this will that the
Speaker 1: subpoena will be resolved upon prior to the election. The
Speaker 1: judges also found that the lawmakers can go to court
Speaker 1: to fight the border wall, so explain how standing works
Speaker 1: in both cases. There's been a very long and difficult
Speaker 1: history of the Court struggling to find when members of
Speaker 1: the House or when the House itself as an institution,
Speaker 1: can go to court to try to protect its own
Speaker 1: legal interests. In the Monument's case, for instance, the courts
Speaker 1: have held that members of the legislature, even all Democrats
Speaker 1: for most of the all Democrats, do not have standing
Speaker 1: to try to get the resolution of whether the president's
Speaker 1: actions have violated the monuments clause, even though the institutional
Speaker 1: interests because Congress has the constitutional right to consent to
Speaker 1: gifts received by the president. In the border wall case,
Speaker 1: there the question is whether there was a to find
Speaker 1: tangible interests of Congress to go to court to say
Speaker 1: that the President is trying to bypass Congress in funding
Speaker 1: the border wall. I find that a harder case. All
Speaker 1: the case is are you know, somewhat similar? But I
Speaker 1: do believe that this case is the easiest one with
Speaker 1: with McGann. Why because the fact that the Constitution directly
Speaker 1: devolves the responsibility to consider impeachments onto the House, and
Speaker 1: if the House can't get information, it can't perform its
Speaker 1: constitutionally assigned functions. The standing question with respect to the
Speaker 1: border wall, I think is closer. Yes, the President was
Speaker 1: doing the end around Congress. On the other hand, there
Speaker 1: are other people who could maintain the claim doesn't happen
Speaker 1: in members of Congress and other people have suit to
Speaker 1: stop funding the border wall. In fact, they've been successful.
Speaker 1: So I think that these are all very difficult case
Speaker 1: specific statutes, but clearly the nature of the institutional injury
Speaker 1: is key. Again, the impeachment clause injury, I think is
Speaker 1: much stronger than the monuments. And I think the border
Speaker 1: wall might be somewhere in the middle because it was
Speaker 1: seemed to be a circumvention or a run around as
Speaker 1: opposed to Congress's control over funding. Thanks for being on
Speaker 1: the show. How that's Harold Granted, professor at the Chicago
Speaker 1: Kent College of Law. And that's it for this edition
Speaker 1: of the Bloomberg Law Show. I'm June Grosso. Thanks so
Speaker 1: much for listening, and remember to tune to The Bloomberg
Speaker 1: Law Show every week night at ten pm Eastern right
Speaker 1: here on Bloomberg Radio.