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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com Slash podcasts. More changes in

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Speaker 1: President Trump's legal team, and more changes in his story

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Speaker 1: about not knowing about one thirty thousand dollar payment made

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Speaker 1: to adult film actress Stormy Daniels during the campaign. In

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Speaker 1: tweets this morning, Trump confirmed what his new lead attorney,

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Speaker 1: Rudy Giuliani said on Fox last night that he repaid

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Speaker 1: his lawyer Michael Cohen for the one dollar payment Cohen

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Speaker 1: made to Daniels just days before the election. This morning,

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Speaker 1: on Fox and Friends, Giuliani also discussed the changes the

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Speaker 1: chances of the Special Council interviewing Trump before they rated

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Speaker 1: a lawyer's office, which will turn out to be an

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Speaker 1: outrageous uh violation the attorney client privilege, before they put

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Speaker 1: out the questions and completely soil the atmosphere. The chances

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Speaker 1: were pretty good. Now we're gonna have some convintion to do.

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Speaker 1: My guest is former federal prosecutor Reno Mariotti, a partner

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Speaker 1: at Thompson Coburn, were not This new version of the

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Speaker 1: facts is a hundred and eighty degree change from what

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Speaker 1: Trump and Cohen had been saying previously. It's obviously a

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Speaker 1: legal strategy. But what's your assessment of it? Wow, Well,

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Speaker 1: it is a strategy, I'd say, if if I had

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Speaker 1: to make sense of the strategy, which is a little

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Speaker 1: hard to make sense of. I think originally, what what

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Speaker 1: Giuliani was trying to do last night on the Hannity

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Speaker 1: Show before the comments this morning, was to try to

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Speaker 1: help Michael Cohen. You know, we know that Michael Cohen

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Speaker 1: is under investigation for campaign finance violations related to the

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Speaker 1: payments to Sturmy Daniels. Uh. And I think, you know,

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Speaker 1: although the President had been trying to distance himself from

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Speaker 1: Michael Cohen recently, you know, Um, the President did an

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Speaker 1: interview recently and Fox and Friends where he said that

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Speaker 1: Cohen didn't do much of his legal work and he

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Speaker 1: was an independent businessman and so on. Um, it looks like,

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Speaker 1: you know, they were It seemed to me like they

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Speaker 1: were trying to help Michael Cohen here and try to

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Speaker 1: convince him not to flip um. But I think that,

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Speaker 1: you know, and then the consequence of that, of course,

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Speaker 1: is creating legal liability for the president Unlike Michael Cohen.

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Speaker 1: You know, as president of the United States, Uh, Donald

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Speaker 1: Trump can't get indicted while in office, or at least

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Speaker 1: that's the current position of the Justice Department. Uh. And

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Speaker 1: the Republicans and Congress can protect him from impeachment. Uh.

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Speaker 1: And so um, you know, that's a way of transferring

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Speaker 1: liability from Cohen to Trump. But I think Giuliani's statements

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Speaker 1: were so in artful that he may have actually harmed

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Speaker 1: both Cohen and the president. One of the things I

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Speaker 1: found odd in one of the interviews that Giuliani did

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Speaker 1: on Foxes, he said, when I heard Cohen's retainer of

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Speaker 1: thirty five thousand when he was doing no work for

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Speaker 1: the president, I said, that's how he is repaying with

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Speaker 1: a will profit in a little margin for paying taxes.

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Speaker 1: Does that sound like Juliani came up with this new

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Speaker 1: explanation in a Eureka moment. I've seen this, and that's

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Speaker 1: how I'll do it. And he even talked about funneling money,

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Speaker 1: which is an odd term to use. It is a

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Speaker 1: really term to use. And I have to say, UM,

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Speaker 1: it's it's very odd and irregular. Why would somebody who

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Speaker 1: purports to be a billionaire need to pay one hundred

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Speaker 1: and thirty thousand dollars to their attorney over time and installments, UM,

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Speaker 1: through a retainer. Um, it's very unusual. Um, it does

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Speaker 1: not really make a lot of sense. Uh. It seems

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Speaker 1: to me more of a um after the fact explanation

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Speaker 1: for this, rather than what was happening at the time.

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Speaker 1: I mean, I think, um, you know, you know, it

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Speaker 1: appears from what we know that at the time, you know,

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Speaker 1: this was an arrangement that you know, perhaps not a

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Speaker 1: lot of thought was given to the legality of this,

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Speaker 1: and uh, you know now they're trying to scramble. I mean,

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Speaker 1: the good news for Trump that still remains is, as

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Speaker 1: I said, he's president of the United States. UM, it

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Speaker 1: can be hard to go at him personally legally, But

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Speaker 1: Cohen knows a lot about the president. He was his

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Speaker 1: attorney for a long period of time. There's a lot

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Speaker 1: of issues related to what Cohen could tell prosecutors about Trump,

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Speaker 1: because obviously there might be attorney client privilege. But you know,

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Speaker 1: what we've seen thus far indicates that Cohen hasn't been

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Speaker 1: acting much as an attorney, So, um, you know, it's

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Speaker 1: possible that this could really have very significant impact for

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Speaker 1: the president. You wrote an editorial in The New York

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Speaker 1: Times about those forty nine questions that Mueller could ask

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Speaker 1: Trump filtered through Trump's legal team. You said, they leave

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Speaker 1: little doubt that Trump is in serious jeopardy, and the

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Speaker 1: questions showed that Mueller has already thought about how he

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Speaker 1: would prove his case on obstruction. Tell us how sure? So, Um,

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Speaker 1: there's no doubt that the President did a number of

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Speaker 1: things that you could construe his acts that might be

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Speaker 1: influencing the investigation, like firing James Comey. The question is

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Speaker 1: all about his intent. You know, if the president fired

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Speaker 1: James Comy because he thought he was a bad FBI director,

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Speaker 1: that's one thing. He certainly is entitled to do that.

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Speaker 1: But if he was firing James Comey because he was

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Speaker 1: was upset that Comy was not going to stop the

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Speaker 1: investigation of Michael Flynn and he wanted an FBI director

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Speaker 1: who would be more amenable to um, you know, uh,

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Speaker 1: interfering with the investigation, that would be a crime. And

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Speaker 1: so the question all comes down to what was the

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Speaker 1: president's intent at the time, and to prove that. Really,

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Speaker 1: what Mueller is doing is looking at the president's words

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Speaker 1: and actions over a long period of time, not just

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Speaker 1: what he said in the Lester whole interview, which a

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Speaker 1: lot of people focus on, but you know the fact that,

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Speaker 1: for example, he got very angry and erupted at the

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Speaker 1: Attorney General Jeff Sessions, when Jeff Sessions told him that

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Speaker 1: he recused himself. Reportedly, the president said, um that he wanted, uh,

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Speaker 1: the attorney general to protect him and to shield him. Um.

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Speaker 1: You know. Similarly, the president has talked about firing the

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Speaker 1: special counsel, Robert Mueller. So there's a whole series of

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Speaker 1: events in which the president is shown is an intense

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Speaker 1: interest in the Russia investigation and a desire to try to,

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Speaker 1: you know, shut it down or cut it off or

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Speaker 1: stop it. And so uh, Mueller was asking very pointed questions, uh,

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Speaker 1: you know in that list that we saw about what

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Speaker 1: the President really intended and meant when he said and

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Speaker 1: did all these various things. And really what that tells

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Speaker 1: you is that the president is the one who's under

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Speaker 1: investigation here. It is the president's intent that's an issue,

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Speaker 1: and Giuliani was developing Excuse me, Giuliani, Mueller is developing

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Speaker 1: that evidence, uh, in order to um, uh you know,

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Speaker 1: potentially prove that the President obstructed Justice Renaldo. The Trumps

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Speaker 1: team seems to be putting out many reasons now why

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Speaker 1: the interview won't take place in about a minute. Should

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Speaker 1: Muller just issue the subpoena already before Trump has a

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Speaker 1: chance to fire Rod Rosenstein something else? Well? Um, I think, um,

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Speaker 1: you know, that's more of a political question. You know,

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Speaker 1: if he let's say he issued the subpoena, now, I

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Speaker 1: mean Trump could still fire Rod Rosenstein. Uh. Realistically, Um,

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Speaker 1: you know, if if if Trump appointed a new deputy

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Speaker 1: Attorney general, or for example Mr Francisco stepped into the

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Speaker 1: shoes who's the solicitor general, and next in line stepped

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Speaker 1: into the shoes of Rod Rosenstein, he certainly could try

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Speaker 1: to prevent Muller from issuing a subpoena. But I think

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Speaker 1: that that would, you know, create additional problems for the

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Speaker 1: Trump team. I suspect that at some point that would

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Speaker 1: become public and you know, would generate a lot of outrage. Um.

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Speaker 1: I really think for for Trump and his team, at

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Speaker 1: this point there there's there's savvast move and that's not

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Speaker 1: that does not I do not mean to suggest that

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Speaker 1: they will do this, but the Savvys move would be,

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Speaker 1: I think, to keep Muller in place and then do

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Speaker 1: continue doing whatever they can to discredit him and to

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Speaker 1: attack him. Because if they do get Muller out of there,

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Speaker 1: rob Mula and rosen Stan out of there, they replace

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Speaker 1: them with new people, and then they have to you

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Speaker 1: have to cut you off there, thanks so much. That's

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Speaker 1: when we're federal prosecutor. We're not on Mariotti. Justice Anthony

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Speaker 1: Kennedy has been the swing vote on the Supreme Court

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Speaker 1: for more than ten years. For the second year, the

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Speaker 1: one year old justice is the focus of retirement speculation,

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Speaker 1: something that sends anxiety into the hearts of many liberals

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Speaker 1: joining me to either put the speculation to rest or

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Speaker 1: not is Bloomberg New Supreme Court reporter Greg's Store. Greg

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Speaker 1: explain just how important Justice Kennedy is to the decisions

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Speaker 1: in controversial issues that come before the Court June It

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Speaker 1: it's hard to overstate how important he is. Um he

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Speaker 1: is usually the swing vote when you have a five

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Speaker 1: to four Supreme Court decision. He's with the conservatives on

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Speaker 1: things like campaign finance and the decision from a few

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Speaker 1: years ago that that cut out up core part of

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Speaker 1: the Voting Rights Act. He's with the liberals on gay

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Speaker 1: rights and generally on abortion access. One Professor Michael Clarman

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Speaker 1: of Harvard Law School said he is the most important

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Speaker 1: Supreme Court justice in history, and it's not close. You

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Speaker 1: write that Kennedy's retirement quote would drop a political bomb

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Speaker 1: into what's already one of the country's most divisive eras

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Speaker 1: since the Civil War. What's likely to happen? Tell us

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Speaker 1: how it would unfold? Well if he were to retire

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Speaker 1: this term. Uh. And with Republicans having fifty one seats

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Speaker 1: in the Senate out of the one, they don't need

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Speaker 1: democratic control. Uh So, as long as they can hold together,

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Speaker 1: and that includes a couple of Republican senators Susan Collins

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Speaker 1: and Lisa Murkowski, who tend to be on the side

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Speaker 1: of abortion rights. But as long as Republicans can can

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Speaker 1: hold together, they can get a nominee. Confirmed that said, um,

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Speaker 1: the magnitude of the shift on the court would mean

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Speaker 1: that um uh no holds will be barred. Uh. Liberals

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Speaker 1: Democrats will fight as hard as they possibly can to

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Speaker 1: derail a Trump nomination until the mid term when there's

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Speaker 1: at least a chance that Democrats could take control of

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Speaker 1: the Senate. Now, if let's suppose that Trump does nominate

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Speaker 1: someone and that a Conservatives put on the court, would

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Speaker 1: it be a lasting change on the court. Yeah, it

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Speaker 1: would would in all likelihood be huge. Um. The the

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Speaker 1: conservative members of the Court would all generally be uh,

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Speaker 1: relatively young. The oldest would be would be Justice Clarence

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Speaker 1: Thomas um. And unless one of them were to leave

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Speaker 1: during a democratic administration, and and it's hard to imagine

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Speaker 1: any of them would do that voluntarily. Uh, it's it's

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Speaker 1: a majority, a solid conservative majority. Uh, that that would

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Speaker 1: last for decades. Kennedy has seen how Justice Neil Gorstch,

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Speaker 1: who replaced the late Justice antonin Scalia, is a pretty

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Speaker 1: reliable conservative vote. So is staying on the court the

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Speaker 1: only way that Kennedy could really protect some of his

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Speaker 1: accomplishments like gay marriage. Yeah, well, well that's certainly what

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Speaker 1: what folks on the progressive side are are saying, you know,

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Speaker 1: try and encourage him to stay. Um, you know, there's

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Speaker 1: there's at least a theory that that the gay rights

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Speaker 1: precedents on the Supreme Court are not going anywhere, that

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Speaker 1: it is regardless of who who would succeed Kennedy, that

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Speaker 1: were unlikely to see the Court try to revisit the

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Speaker 1: Albergia Fell Gay marriage ruling, for example, whereas a decision

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Speaker 1: like Roevie Wade could be overturned. Um. And on the

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Speaker 1: other side, some of the decisions like Citizens United, where

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Speaker 1: Kennedy sides with the liberals excusing with the conservatives. Uh,

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Speaker 1: those could be more vulnerable if a more liberal justice

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Speaker 1: replaced Kennedy. So his legacy may be more secure in

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Speaker 1: a sense, Uh, with his more liberal decisions, regardless of

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Speaker 1: who who succeeds him. So Greg Supreme Court justices, well,

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Speaker 1: we should know by the end of the term. Will

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Speaker 1: we be hearing from Justice Kennedy. Yeah, We're definitely in

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Speaker 1: the season now when justices do announce their retirement. So

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Speaker 1: the last two who have sept the step down who retired, Uh,

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Speaker 1: John Paul Stevens and David Suitor both did it around

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Speaker 1: this time. Some of the justices, if you go a

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Speaker 1: little further back, Sandra Day O'Connor um third good Marshal

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Speaker 1: Louis Powell retired at the very end of the term

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Speaker 1: after the last decisions. So we're certainly going to be

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Speaker 1: watching up until that last week of June when we

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Speaker 1: expect the Court to finish its term. And so add

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Speaker 1: to the speculation here, what is Justice Kennedy likely to do? Boy? Uh,

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Speaker 1: you know, there are no outward signs that he is

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Speaker 1: going to retire. He he in the sense that he's

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Speaker 1: hired his clerks for next term. He is going to

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Speaker 1: teach in Austria like he does every summer. Um. But

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Speaker 1: it would not be a surprise to anybody if indeed

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Speaker 1: he does say that this is the end. He shows

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Speaker 1: no signs of slowing down. When you when I listened

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Speaker 1: to the oral arguments, you see him there. Do you

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Speaker 1: see anything that indicates that he's ready to slow down? No,

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Speaker 1: certainly nothing I can point you to in any concrete sense. Um.

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Speaker 1: You know, the thinking is really that he was appointed

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Speaker 1: by a Republican Uh. Some of his former law clerks

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Speaker 1: tell me, uh, you know, he still thinks of himself,

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Speaker 1: as you know, coming from that from those roots, and

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Speaker 1: would like a Republican president to nominate his successor. If

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Speaker 1: if um, and if he waits for another year. There's

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Speaker 1: a possibility that Democrats take control of the Senate, and um,

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Speaker 1: you know, maybe no nominee from Donald Trump could get

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Speaker 1: onto the Court until the next presidential election. You right.

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Speaker 1: And I was surprised by this that though I shouldn't be,

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Speaker 1: conservative groups are already making plans to back any Trump nominee.

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Speaker 1: So in about a minute, tell us about that. Yeah. So, um,

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Speaker 1: there's a group called the Judicial Crisis Network that uh,

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Speaker 1: um is uh conservatives who have gone to bat went

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Speaker 1: to bat for Neil Gorsich. It's sort of the genesis

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Speaker 1: of it. Um was back uh in the George W.

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Speaker 1: Bush administration supporting John Roberts and Sam Alito on the court. Uh,

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Speaker 1: conservatives have they're willing to. They run television advertisements, and

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Speaker 1: many of those advertisements are likely to show up in

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Speaker 1: states where, say, uh, Trump leaning states where a Democratic

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Speaker 1: senator is up for re election, and they could be

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Speaker 1: very powerful forces. Well, it's it's a really interesting story.

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Speaker 1: And Greg, we will wait to hear from us to

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Speaker 1: what Justice Kennedy is doing. Thanks so much. That's Bloomberg

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Speaker 1: News Supreme Court reporter Greg Store, Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot

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Speaker 1: com slash podcast. I'm June Brolso this is Bloomberg