1 00:00:02,040 --> 00:00:03,800 Speaker 1: This is Bloomberg Law. 2 00:00:03,920 --> 00:00:06,720 Speaker 2: What does a prosecutor have to prove in order to 3 00:00:06,760 --> 00:00:09,920 Speaker 2: get a Rico conviction? Tell us why this Solicitor General 4 00:00:10,000 --> 00:00:12,280 Speaker 2: is sometimes referred to as the tenth Justice. 5 00:00:12,280 --> 00:00:15,480 Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts. 6 00:00:15,520 --> 00:00:18,279 Speaker 2: That's Jennifer k from Bloomberg Law. Joining me is former 7 00:00:18,360 --> 00:00:20,079 Speaker 2: federal prosecutor Robert Minn. 8 00:00:19,960 --> 00:00:23,080 Speaker 3: And analysis of important legal issues, cases and headlines. 9 00:00:23,120 --> 00:00:26,320 Speaker 2: It is the toughest hurdle for prosecutors proving Trump's intent. 10 00:00:26,480 --> 00:00:29,880 Speaker 2: Alito took on Congress saying Congress has no power to 11 00:00:29,920 --> 00:00:31,360 Speaker 2: regulate the Supreme Court. 12 00:00:31,400 --> 00:00:34,480 Speaker 3: Bloomberg Law with June Grosso from Bloomberg Radio. 13 00:00:38,840 --> 00:00:41,920 Speaker 4: This is a special edition of Bloomberg Law. I'm Amy 14 00:00:42,000 --> 00:00:45,239 Speaker 4: Morris in Washington. June Grosso is off today, She'll be 15 00:00:45,280 --> 00:00:48,159 Speaker 4: back next week. Coming up on the show, fallout from 16 00:00:48,200 --> 00:00:52,159 Speaker 4: the Supreme Court decision on presidential immunity, plus the Justice's 17 00:00:52,240 --> 00:00:56,520 Speaker 4: decision on restricting social media, and finally, what we did 18 00:00:56,560 --> 00:00:59,120 Speaker 4: and did not learn from the High Court's latest term. 19 00:00:59,360 --> 00:01:02,160 Speaker 4: All of that coming up on today's edition of Bloomberg Law. 20 00:01:02,680 --> 00:01:06,200 Speaker 4: But first we begin with the most closely watched decision 21 00:01:06,319 --> 00:01:08,720 Speaker 4: of the term. You know the one. On Monday, the 22 00:01:08,760 --> 00:01:12,360 Speaker 4: Supreme Court ruled for the first time former presidents are 23 00:01:12,440 --> 00:01:16,760 Speaker 4: shielded from prosecution for some official acts. The six to 24 00:01:16,760 --> 00:01:19,679 Speaker 4: three decision sent the case back to a district judge, 25 00:01:19,959 --> 00:01:23,320 Speaker 4: saying the Court was wrong to reject former President Trump's 26 00:01:23,319 --> 00:01:26,839 Speaker 4: immunity arguments out of hand. For more on this ruling 27 00:01:26,880 --> 00:01:30,080 Speaker 4: and its broad implications, were joined by Harold Krent, a 28 00:01:30,160 --> 00:01:33,600 Speaker 4: professor at Chicago Kent College of Law and author of 29 00:01:33,640 --> 00:01:37,360 Speaker 4: the book Presidential Powers, and Professor Krant. It is a pleasure, 30 00:01:37,400 --> 00:01:38,800 Speaker 4: Thanks so much for joining us today. 31 00:01:38,959 --> 00:01:39,520 Speaker 5: My pleasure. 32 00:01:39,720 --> 00:01:41,440 Speaker 4: Now we've all had some time to go through this 33 00:01:41,640 --> 00:01:46,000 Speaker 4: voluminous opinion, and the dissents just your initial thoughts right 34 00:01:46,040 --> 00:01:46,880 Speaker 4: off the bat well. 35 00:01:46,920 --> 00:01:52,760 Speaker 5: The Court resisted the temptation to side with either President 36 00:01:52,840 --> 00:01:57,200 Speaker 5: Trump completely or with the government completely. It tried to 37 00:01:57,760 --> 00:02:01,080 Speaker 5: take a middle path, but in so doing it cited 38 00:02:01,600 --> 00:02:06,080 Speaker 5: much more closely with the President Trump's camp than with 39 00:02:06,800 --> 00:02:11,120 Speaker 5: the special prosecutor's side. In so doing, they held that 40 00:02:11,560 --> 00:02:16,800 Speaker 5: a former president can be tried criminally, but only in 41 00:02:17,080 --> 00:02:21,760 Speaker 5: very rare situations. And I think they as a practical matter, 42 00:02:22,080 --> 00:02:25,000 Speaker 5: they erected a high hurdle in this case for the 43 00:02:25,000 --> 00:02:29,240 Speaker 5: special prosecutor to succeed in bringing the charges arising out 44 00:02:29,280 --> 00:02:33,000 Speaker 5: of the January sixth insurrection. And they also erected a 45 00:02:33,080 --> 00:02:39,959 Speaker 5: high hurdle in future cases to enable anyone to try 46 00:02:40,000 --> 00:02:41,760 Speaker 5: criminally a former president. 47 00:02:43,000 --> 00:02:46,200 Speaker 4: Now, they did not specify what those criminal acts would be. 48 00:02:46,240 --> 00:02:47,680 Speaker 4: They left that for the lower court. 49 00:02:49,040 --> 00:02:52,960 Speaker 5: They did, though they did to the court's benefit. I 50 00:02:52,960 --> 00:02:59,200 Speaker 5: think they started to create a helpful scaffolding to assist 51 00:02:59,400 --> 00:03:02,800 Speaker 5: the lower judge in making the decision. They divided a 52 00:03:03,000 --> 00:03:10,320 Speaker 5: president's actions into three buckets or categories into core executive actions. 53 00:03:10,440 --> 00:03:15,600 Speaker 5: They didn't define it entirely into official actions and unofficial actions. 54 00:03:15,639 --> 00:03:20,920 Speaker 5: And their quick summary of this is, if a criminal 55 00:03:20,960 --> 00:03:24,360 Speaker 5: action tries to intrude into a core action core area 56 00:03:24,480 --> 00:03:29,320 Speaker 5: of a presidential power, that action is immune from criminal prosecution. 57 00:03:29,760 --> 00:03:33,919 Speaker 5: If criminal prosecution instead stems at an official act in 58 00:03:33,960 --> 00:03:38,520 Speaker 5: the president, it is very likely to be immune. And 59 00:03:38,800 --> 00:03:44,360 Speaker 5: if the criminal action focuses on a private conduct of 60 00:03:44,400 --> 00:03:48,800 Speaker 5: the president, then there is at least a womb to 61 00:03:48,880 --> 00:03:53,040 Speaker 5: say the criminal action can exist. In this case, most 62 00:03:53,040 --> 00:03:57,000 Speaker 5: of the acts that have been charged against President Trump 63 00:03:57,360 --> 00:04:01,040 Speaker 5: have been involving President Trump as a candidate for office. 64 00:04:01,040 --> 00:04:03,960 Speaker 5: In therefore, in its private capacity. So at first blush, 65 00:04:04,040 --> 00:04:07,040 Speaker 5: one would think that there is nothing to disturb the 66 00:04:07,240 --> 00:04:11,880 Speaker 5: prosecution from going forward. But the court then limited its 67 00:04:11,920 --> 00:04:15,120 Speaker 5: holding in a way that left most people scratching their 68 00:04:15,120 --> 00:04:20,760 Speaker 5: heads by saying that no official discussions can be part 69 00:04:21,360 --> 00:04:25,040 Speaker 5: of the case, even against a president acting in his 70 00:04:25,400 --> 00:04:30,040 Speaker 5: personal capacity. So the best example of that is supposedly, 71 00:04:30,920 --> 00:04:33,960 Speaker 5: and it's been I think confirmed, that President Trump talked 72 00:04:34,000 --> 00:04:37,600 Speaker 5: to Attorney General Barr and others in the government and 73 00:04:37,960 --> 00:04:41,000 Speaker 5: was told that there was actually no kind of voter fraud. 74 00:04:41,720 --> 00:04:46,960 Speaker 5: That evidence seems pretty pertinent to deciding whether President Trump 75 00:04:47,000 --> 00:04:50,839 Speaker 5: had the intent to engage in a conspiracy to defraud 76 00:04:50,880 --> 00:04:53,640 Speaker 5: the election. But the court is said that that should 77 00:04:53,640 --> 00:04:59,160 Speaker 5: be barred, so to speak, from the indictment and not 78 00:04:59,240 --> 00:05:02,480 Speaker 5: presented to the jury in deciding whether or not the 79 00:05:02,520 --> 00:05:05,800 Speaker 5: president acted in this private capacity in trying to overthrow 80 00:05:05,880 --> 00:05:10,320 Speaker 5: the election. So it's almost like tying one arm behind 81 00:05:10,360 --> 00:05:13,359 Speaker 5: the back of the prosecutor in allowing the prosecutor to 82 00:05:13,440 --> 00:05:17,800 Speaker 5: proceed to try to maintain some semblance of an indictment 83 00:05:17,839 --> 00:05:20,080 Speaker 5: against as President Trump in this. 84 00:05:20,080 --> 00:05:23,880 Speaker 4: Case, Let's take Trump out of it for just one moment. 85 00:05:23,920 --> 00:05:26,359 Speaker 4: I want to look at the great big picture and 86 00:05:26,480 --> 00:05:29,800 Speaker 4: way down the road, professor, if we could express you 87 00:05:29,839 --> 00:05:32,840 Speaker 4: explained how the different buckets were being presented, the core 88 00:05:32,880 --> 00:05:35,400 Speaker 4: of the official, the unofficial, and those were to be 89 00:05:35,520 --> 00:05:39,240 Speaker 4: decided in some part by the lower courts. It seems 90 00:05:39,279 --> 00:05:41,880 Speaker 4: to me that that is opening the door and stop 91 00:05:41,920 --> 00:05:45,479 Speaker 4: me if I'm wrong to argue that before the Supreme Court, 92 00:05:45,520 --> 00:05:48,440 Speaker 4: there may be one lower court that says no, this 93 00:05:48,520 --> 00:05:50,839 Speaker 4: is an official or this is a core action. You know, 94 00:05:50,880 --> 00:05:53,040 Speaker 4: they might bleed over into each other, and that could 95 00:05:53,120 --> 00:05:57,560 Speaker 4: create even more caseloads or even more arguments to come 96 00:05:57,640 --> 00:06:01,039 Speaker 4: up in the future, depending on who we wind up 97 00:06:01,080 --> 00:06:02,560 Speaker 4: electing in what they decide to do. 98 00:06:03,320 --> 00:06:05,240 Speaker 5: Well, thankfully, we want to step back and say this 99 00:06:05,320 --> 00:06:07,720 Speaker 5: is there's only been one former president who's ever been 100 00:06:08,320 --> 00:06:11,000 Speaker 5: subjected to criminal charges, so at least this we don't 101 00:06:11,000 --> 00:06:12,680 Speaker 5: have a run on these, and let's hope that we 102 00:06:12,720 --> 00:06:15,760 Speaker 5: don't have many in the future. But you're absolutely right 103 00:06:15,839 --> 00:06:18,159 Speaker 5: that there's a lack of clarity in this opinion in 104 00:06:18,200 --> 00:06:21,280 Speaker 5: many respects that you wouldn't expect it to cover you all. 105 00:06:21,360 --> 00:06:24,919 Speaker 5: They dot every I and cross every T, given the 106 00:06:25,240 --> 00:06:28,400 Speaker 5: so many different permutations of cases that can arise. But 107 00:06:29,120 --> 00:06:32,320 Speaker 5: you are absolutely right that these kinds of prosecutions are 108 00:06:32,360 --> 00:06:35,240 Speaker 5: so difficult, in part because the guidance given by the 109 00:06:35,279 --> 00:06:40,520 Speaker 5: Supreme Court is so opaque, and particularly the idea of 110 00:06:40,600 --> 00:06:47,280 Speaker 5: that some types of official conduct cannot be predicated or 111 00:06:47,320 --> 00:06:49,080 Speaker 5: you're kind of not going to be used to show 112 00:06:49,600 --> 00:06:52,920 Speaker 5: that a president as commuted a crime and as private capacity. 113 00:06:53,080 --> 00:06:55,479 Speaker 5: We see that even now in the New York prosecution 114 00:06:56,000 --> 00:07:01,640 Speaker 5: right because President Trump has tried to vacate the jury 115 00:07:01,760 --> 00:07:04,520 Speaker 5: verdict in that case on the ground that some of 116 00:07:04,560 --> 00:07:09,720 Speaker 5: the official discussions between him and subordinates in the executive 117 00:07:09,720 --> 00:07:13,320 Speaker 5: branch were used to convict him, and they were I mean, 118 00:07:13,360 --> 00:07:17,680 Speaker 5: most importantly the conversation with Hope Hicks and with the 119 00:07:17,720 --> 00:07:23,280 Speaker 5: president partially as a candidate, so partially when he was 120 00:07:23,440 --> 00:07:24,640 Speaker 5: in office. 121 00:07:24,960 --> 00:07:27,920 Speaker 4: Let's talk about that for just one second. As you mentioned, 122 00:07:27,920 --> 00:07:30,760 Speaker 4: we're already seeing some of the impacts on other cases. 123 00:07:31,640 --> 00:07:35,400 Speaker 4: Donald Trump trying to get that verdicts tossed the delay 124 00:07:35,520 --> 00:07:37,880 Speaker 4: in sentencing so that the court can go over this 125 00:07:38,120 --> 00:07:40,520 Speaker 4: and try to determine what can stay and what has 126 00:07:40,600 --> 00:07:43,080 Speaker 4: to go. We're not going to hear about that until 127 00:07:43,240 --> 00:07:47,160 Speaker 4: the fall. Are there other effects that we can anticipate, 128 00:07:47,440 --> 00:07:50,600 Speaker 4: whether in cases that are ongoing now or in things 129 00:07:50,600 --> 00:07:52,280 Speaker 4: that may come up in the future. What can we 130 00:07:52,320 --> 00:07:53,400 Speaker 4: look forward to from this? 131 00:07:54,000 --> 00:07:57,679 Speaker 5: Yeah, I mean a famous conversation that arose in Georgia 132 00:07:58,120 --> 00:08:04,360 Speaker 5: when President Trump asked Secretary of State Brad Ruthlisberger whether 133 00:08:04,400 --> 00:08:06,480 Speaker 5: he could just find, you know, seven thousand votes or 134 00:08:06,520 --> 00:08:10,880 Speaker 5: something like that. Obviously, to a large extent, President Trump 135 00:08:11,040 --> 00:08:13,760 Speaker 5: was acting in his private capacity trying to find votes 136 00:08:13,840 --> 00:08:16,320 Speaker 5: for the election. He was accompanied by the head of 137 00:08:16,880 --> 00:08:21,480 Speaker 5: the RNC, the Republican National Committee. So again it looks 138 00:08:21,600 --> 00:08:24,040 Speaker 5: to a large extent that he's acting in a private capacity. 139 00:08:24,880 --> 00:08:28,320 Speaker 5: But to the extent that you know, Linda Graham was president, 140 00:08:28,480 --> 00:08:32,319 Speaker 5: to the extent that there was some other subordinate from 141 00:08:32,360 --> 00:08:36,000 Speaker 5: the Department of Justice who had some contact with Georgia officials, 142 00:08:36,320 --> 00:08:39,520 Speaker 5: then we have this sort of intermingling of the two 143 00:08:39,559 --> 00:08:43,040 Speaker 5: categories according to the Supreme Court, And we have to 144 00:08:43,080 --> 00:08:47,120 Speaker 5: make sure that there's nothing in the indictment that remains 145 00:08:47,640 --> 00:08:51,400 Speaker 5: that relates to any kind of official conduct that the 146 00:08:51,440 --> 00:08:56,880 Speaker 5: President had with a member of the either the Justice 147 00:08:56,880 --> 00:09:00,680 Speaker 5: Department or the Executive branch. And it's just from all 148 00:09:00,720 --> 00:09:04,679 Speaker 5: accounts from observers that I've read in my own reactions. 149 00:09:05,080 --> 00:09:08,559 Speaker 5: It makes no sense that it's very common in criminal 150 00:09:08,600 --> 00:09:13,360 Speaker 5: prosecutions that evidence is used to help form the intent 151 00:09:13,760 --> 00:09:18,319 Speaker 5: to commit a crime that isn't part of the crime itself. 152 00:09:18,679 --> 00:09:23,480 Speaker 5: And therefore you would think that the immunity issue would 153 00:09:23,480 --> 00:09:26,040 Speaker 5: not be framed in the way framed by the Supreme Court, 154 00:09:26,320 --> 00:09:30,280 Speaker 5: because again, it's like hindering the prosecution from showing that 155 00:09:30,800 --> 00:09:35,839 Speaker 5: a former president had criminal intent in undertaking the acts 156 00:09:35,840 --> 00:09:36,280 Speaker 5: that he did. 157 00:09:37,720 --> 00:09:41,319 Speaker 4: Let's boil it down even more granular. Chief Justice Roberts 158 00:09:41,320 --> 00:09:44,160 Speaker 4: was writing for the majority. In that writing, he seemed 159 00:09:44,200 --> 00:09:48,480 Speaker 4: to kind of dismiss the dissenting opinions, especially when Justice 160 00:09:48,679 --> 00:09:52,520 Speaker 4: Sotomayor wrote, quote with fear for our democracy, I dissent 161 00:09:53,160 --> 00:09:53,960 Speaker 4: is that hyperbole. 162 00:09:55,920 --> 00:09:59,320 Speaker 5: I think it's partial hyperperble. I mean, I disagree with 163 00:09:59,520 --> 00:10:02,600 Speaker 5: many who say that there should be no presidential community. 164 00:10:02,920 --> 00:10:04,839 Speaker 5: I do agree with the Chief Justice that there should 165 00:10:04,880 --> 00:10:07,960 Speaker 5: be a court area in which presidents are criminally immediately 166 00:10:08,080 --> 00:10:14,840 Speaker 5: from suit. But I do agree that the majority opinion 167 00:10:14,920 --> 00:10:18,080 Speaker 5: in the court drew with such a broad brush that 168 00:10:18,240 --> 00:10:21,560 Speaker 5: is going to make a very small area in which 169 00:10:21,600 --> 00:10:25,600 Speaker 5: foreign presidents can be criminally tried. And I admire that 170 00:10:26,160 --> 00:10:30,719 Speaker 5: at least Justice Barrett peeled off from the majority on 171 00:10:30,760 --> 00:10:33,760 Speaker 5: the point that we discussed earlier, saying that she didn't 172 00:10:33,800 --> 00:10:37,880 Speaker 5: understand why the Chief Justice was saying that the prosecutor 173 00:10:37,880 --> 00:10:42,320 Speaker 5: couldn't even discuss official matters in trying to prosecute a 174 00:10:42,360 --> 00:10:45,000 Speaker 5: president acting in his or her private capacity. 175 00:10:46,280 --> 00:10:48,200 Speaker 4: Now that the Court has kicked this back to a 176 00:10:48,240 --> 00:10:51,920 Speaker 4: district judge, what's the sequence? What happens from. 177 00:10:51,840 --> 00:10:55,600 Speaker 5: Here, Well, there'll be a hearing relatively soon. There'll be 178 00:10:55,760 --> 00:11:00,960 Speaker 5: an inspection of the indictment, and both sides argue about 179 00:11:01,000 --> 00:11:03,920 Speaker 5: what can stay and what cannot stay in the indictment 180 00:11:04,320 --> 00:11:08,120 Speaker 5: under pursuance of the instructions such as they are given 181 00:11:08,160 --> 00:11:12,160 Speaker 5: by the Supreme Court, and then Truskin will have to 182 00:11:12,200 --> 00:11:16,680 Speaker 5: make a decision. And trying to be conservative about how 183 00:11:17,280 --> 00:11:20,760 Speaker 5: the prosecution going to go forward, my guess is it 184 00:11:20,880 --> 00:11:24,640 Speaker 5: will it will go forward on a shoestring, that there 185 00:11:24,679 --> 00:11:27,920 Speaker 5: will be parts that have to be paired out, and 186 00:11:28,000 --> 00:11:32,720 Speaker 5: that the special counsel jectments will just have enough of 187 00:11:33,040 --> 00:11:39,800 Speaker 5: material focusing on discussions with you know, John Eastland or 188 00:11:39,840 --> 00:11:44,720 Speaker 5: with Rudi Giuliani and other evidence to show that there's 189 00:11:44,840 --> 00:11:50,680 Speaker 5: enough conspiracy there to overturn the lawful processes of our election. 190 00:11:51,240 --> 00:11:53,840 Speaker 5: Some especially the indictment, will will probably be thrown out, 191 00:11:54,440 --> 00:11:58,080 Speaker 5: but I think that they're likely to be some charges remaining. 192 00:11:58,320 --> 00:12:02,319 Speaker 5: But then that is concluded. If my prediction is correct, 193 00:12:02,760 --> 00:12:06,320 Speaker 5: that will give President Trump another bite of the apple, 194 00:12:06,640 --> 00:12:09,760 Speaker 5: and then he'll be able to appeal what is left 195 00:12:09,800 --> 00:12:13,880 Speaker 5: of the indictment to the higher course. So this is 196 00:12:13,920 --> 00:12:17,840 Speaker 5: built in for delay after delay, and certainly we're not 197 00:12:17,840 --> 00:12:20,240 Speaker 5: going to see the end of this before the election. 198 00:12:21,600 --> 00:12:24,920 Speaker 4: Harold Crent, Chicago, Kent College of Law professor and author 199 00:12:24,960 --> 00:12:27,240 Speaker 4: of the book Presidential Powers, want to thank you so 200 00:12:27,320 --> 00:12:30,440 Speaker 4: much for joining us on Bloomberg Law. Coming up a 201 00:12:30,559 --> 00:12:33,720 Speaker 4: ruling on state laws that restricts social media. We're going 202 00:12:33,760 --> 00:12:37,199 Speaker 4: to tell you about the unanimous Supreme Court ruling still 203 00:12:37,240 --> 00:12:41,080 Speaker 4: resulted in five different opinions from the justices. That's next 204 00:12:41,320 --> 00:12:44,360 Speaker 4: on Bloomberg Law. I'm Abe Morris and for June Grosso, 205 00:12:44,720 --> 00:12:45,600 Speaker 4: this is Bloomberg. 206 00:12:55,080 --> 00:12:59,880 Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio. 207 00:13:00,720 --> 00:13:03,520 Speaker 4: This is a special edition of Bloomberg Law. I Mamie 208 00:13:03,559 --> 00:13:06,520 Speaker 4: Morris in Washington. June Grosso is off today, she'll be 209 00:13:06,559 --> 00:13:09,120 Speaker 4: back next week. And we now turn to a discussion 210 00:13:09,200 --> 00:13:13,640 Speaker 4: on social media restrictions imposed by states. You may remember 211 00:13:13,679 --> 00:13:16,440 Speaker 4: on Monday, the Supreme Court made a decision seen as 212 00:13:16,480 --> 00:13:20,400 Speaker 4: a partial victory for tech companies. In a unanimous nine 213 00:13:20,400 --> 00:13:23,840 Speaker 4: to zero decision, the High Court declined to say whether 214 00:13:23,920 --> 00:13:28,120 Speaker 4: Republican backed laws in Texas and Florida were constitutional. They 215 00:13:28,200 --> 00:13:32,120 Speaker 4: sent the case back to lower courts for further analysis. Now, 216 00:13:32,160 --> 00:13:35,560 Speaker 4: while the ruling was unanimous, it still resulted in five 217 00:13:35,679 --> 00:13:39,000 Speaker 4: separate opinions from the justices. To break this all down 218 00:13:39,080 --> 00:13:41,880 Speaker 4: for us, now, we're joined by Rick Garnett, professor of 219 00:13:42,000 --> 00:13:45,000 Speaker 4: law at Notre Dame and director of the school's Program 220 00:13:45,040 --> 00:13:48,600 Speaker 4: on Church, State and Society. Rick, it is a pleasure. 221 00:13:48,640 --> 00:13:50,280 Speaker 4: Thank you so much for joining us today. 222 00:13:50,520 --> 00:13:51,520 Speaker 1: Thank you for having me on. 223 00:13:51,920 --> 00:13:55,199 Speaker 4: Let's talk about these laws. What were the laws in question? 224 00:13:55,280 --> 00:13:58,800 Speaker 4: I know the states Texas and Florida wanted to limit 225 00:13:58,920 --> 00:14:03,600 Speaker 4: somehow how social media sites regulate content. What was the pushback? 226 00:14:04,000 --> 00:14:08,280 Speaker 1: Yeah, these are interesting cases, so there are subtle differences 227 00:14:08,280 --> 00:14:10,320 Speaker 1: between the two laws. But I think for our purposes, 228 00:14:10,320 --> 00:14:12,880 Speaker 1: the bottom line is pretty clear is that in each 229 00:14:12,920 --> 00:14:17,520 Speaker 1: of these states, the legislature back in twenty twenty one 230 00:14:18,320 --> 00:14:26,480 Speaker 1: enacted laws that would restrict social media company's content moderation practices, 231 00:14:27,240 --> 00:14:31,960 Speaker 1: and among other things, would have required these companies to 232 00:14:32,000 --> 00:14:37,400 Speaker 1: give individual explanations to anybody whose content they removed or 233 00:14:37,440 --> 00:14:41,520 Speaker 1: blocked or what have you. And it was kind of interesting. 234 00:14:41,520 --> 00:14:45,000 Speaker 1: The cases are going on parallel tracks. And the Eleventh Circuit, 235 00:14:45,080 --> 00:14:49,800 Speaker 1: which serves the southeastern part of the United States, had said, 236 00:14:49,880 --> 00:14:55,400 Speaker 1: you know, we think these this Florida laws probably unconstitutional. 237 00:14:56,000 --> 00:14:59,120 Speaker 1: And then the Fifth Circuit, which is Texas and Louisiana, 238 00:14:59,600 --> 00:15:03,160 Speaker 1: said you know, we think the Texas law probably is constitutional. 239 00:15:03,400 --> 00:15:06,440 Speaker 1: So neither of them actually reached the ultimate decision, but 240 00:15:06,480 --> 00:15:09,760 Speaker 1: they reached their probably judgments, and the Supreme Court took 241 00:15:09,800 --> 00:15:14,120 Speaker 1: the two cases together to give us some guidance on 242 00:15:14,120 --> 00:15:16,200 Speaker 1: on what of those probablys were correct. 243 00:15:18,360 --> 00:15:20,200 Speaker 4: Well, let me back up for just a second and 244 00:15:20,360 --> 00:15:23,600 Speaker 4: help me distinguish how this is different from that new 245 00:15:23,680 --> 00:15:28,120 Speaker 4: law in New York where they limit the algorithm suggestions 246 00:15:28,120 --> 00:15:31,480 Speaker 4: for miners. Could that ultimately be challenged as well under 247 00:15:31,520 --> 00:15:32,680 Speaker 4: the same circumstances. 248 00:15:33,560 --> 00:15:35,760 Speaker 1: Oh, it's a great point. I mean, so connections these 249 00:15:35,800 --> 00:15:40,720 Speaker 1: cases clearly have implications. So there's two layers to this 250 00:15:41,720 --> 00:15:45,160 Speaker 1: Supreme Court's decisions about these two laws. One layer is 251 00:15:45,240 --> 00:15:47,480 Speaker 1: really technical, and it has to do with the difference 252 00:15:47,480 --> 00:15:51,840 Speaker 1: between what lawyers call facial challenges to laws and as 253 00:15:51,880 --> 00:15:54,360 Speaker 1: applied challenges. And that's kind of a fancy way of saying. 254 00:15:54,880 --> 00:15:58,040 Speaker 1: Sometimes when you attack a law, you say it's unconstitutional 255 00:15:58,120 --> 00:16:01,560 Speaker 1: in every conceivable circumstance, and sometimes when you attackle law, 256 00:16:01,600 --> 00:16:05,240 Speaker 1: you say, well, it's unconstitutional in this particular circumstance. And 257 00:16:05,280 --> 00:16:08,520 Speaker 1: the reason why the justices sent the cases back was, 258 00:16:08,560 --> 00:16:12,960 Speaker 1: in their view, neither of these lower courts had done 259 00:16:13,120 --> 00:16:15,520 Speaker 1: all of the analysis you're supposed to do when you're 260 00:16:15,520 --> 00:16:17,880 Speaker 1: dealing with a so called facial challenge. So that's the 261 00:16:17,960 --> 00:16:23,880 Speaker 1: technical layer. Below that, though, is a big picture question 262 00:16:24,000 --> 00:16:26,200 Speaker 1: about the freedom of speech in the First Amendment, Namely, 263 00:16:26,800 --> 00:16:32,560 Speaker 1: our governments allowed to restrict editorial decisions that are made 264 00:16:32,640 --> 00:16:38,240 Speaker 1: by media institutions in order to try to produce what 265 00:16:38,280 --> 00:16:41,120 Speaker 1: the government thinks is a more diverse or a better 266 00:16:42,560 --> 00:16:46,560 Speaker 1: marketplace of ideas. That was the kind of reason that 267 00:16:46,680 --> 00:16:49,320 Speaker 1: Texas in particular gave for its laws, like, look, we 268 00:16:49,440 --> 00:16:54,120 Speaker 1: worry that these tech companies are using their content moderation 269 00:16:54,240 --> 00:16:58,120 Speaker 1: practices to really push the marketplace of ideas in a 270 00:16:58,160 --> 00:17:01,600 Speaker 1: direction that we don't like. They're censoring some people on 271 00:17:01,600 --> 00:17:04,920 Speaker 1: one side of political issues or public health issues or whatever, 272 00:17:04,960 --> 00:17:07,080 Speaker 1: and we want to make sure that they're not they're 273 00:17:07,119 --> 00:17:09,720 Speaker 1: not doing that. And a big takeaway from the court 274 00:17:09,760 --> 00:17:12,840 Speaker 1: is that it appears that a majority of the justices 275 00:17:12,920 --> 00:17:17,200 Speaker 1: believe that A social media companies are protected by the 276 00:17:17,240 --> 00:17:23,160 Speaker 1: First Amendment B their editorial decisions count as speech. And see, 277 00:17:23,720 --> 00:17:27,159 Speaker 1: the government's not allowed to take on for itself the 278 00:17:27,240 --> 00:17:30,520 Speaker 1: task of making the marketplace of ideas better. So now 279 00:17:30,560 --> 00:17:33,800 Speaker 1: you can connect that to the New York the proposal 280 00:17:33,840 --> 00:17:39,159 Speaker 1: that you mentioned, similar principles are going to be in 281 00:17:39,240 --> 00:17:42,720 Speaker 1: play there. Now. There's a lot of First Amendment law 282 00:17:42,800 --> 00:17:46,639 Speaker 1: out there about the government's special authority to deal with 283 00:17:46,720 --> 00:17:49,960 Speaker 1: cases that involve protecting minors and so on, So there'll 284 00:17:50,000 --> 00:17:53,720 Speaker 1: be some there'll be some important variations with the New 285 00:17:53,800 --> 00:17:57,440 Speaker 1: York law, But in terms of general principle, I think 286 00:17:57,480 --> 00:17:59,199 Speaker 1: we can take those that A, B and C that 287 00:17:59,240 --> 00:18:02,160 Speaker 1: I gave you has have important implications going forward. 288 00:18:03,040 --> 00:18:06,560 Speaker 4: So it did boil down to a free speech issue, 289 00:18:06,560 --> 00:18:09,399 Speaker 4: but only in part then, because there is that technical 290 00:18:09,800 --> 00:18:11,160 Speaker 4: part of it that you were explaining. 291 00:18:12,359 --> 00:18:15,159 Speaker 1: Yeah, when you're doing it, it's I mean the justices 292 00:18:15,160 --> 00:18:18,639 Speaker 1: I think we're almost a little frustrated. It's that, you know, 293 00:18:19,160 --> 00:18:22,320 Speaker 1: several of the justices said, you know, if these social 294 00:18:22,359 --> 00:18:27,359 Speaker 1: media companies and in these courts had focused much more 295 00:18:27,440 --> 00:18:31,280 Speaker 1: precisely on the application of the Texas and Florida laws 296 00:18:31,880 --> 00:18:39,399 Speaker 1: to particular practices, like say, the curation of a Facebook feed, 297 00:18:39,760 --> 00:18:41,800 Speaker 1: then we could have analyzed that issue. But the thing is, 298 00:18:41,840 --> 00:18:44,200 Speaker 1: these companies do all kinds of things just the s. 299 00:18:44,240 --> 00:18:46,680 Speaker 1: Barrett pointed out, for example, that you know, the First 300 00:18:46,680 --> 00:18:50,800 Speaker 1: Amendment issues might look very different if you're comparing what 301 00:18:50,960 --> 00:18:55,760 Speaker 1: Uber does to what TikTok does. And she also made 302 00:18:55,800 --> 00:18:59,560 Speaker 1: the interesting point that the First Amendment issues might look 303 00:18:59,640 --> 00:19:03,120 Speaker 1: very differ if you're talking about a corporation that's fore 304 00:19:03,200 --> 00:19:05,639 Speaker 1: and owned versus one that's domestic, because the First Amendment 305 00:19:05,680 --> 00:19:08,960 Speaker 1: laws can vary there too. So basically, the justices message 306 00:19:09,160 --> 00:19:13,200 Speaker 1: on this point they were unanimous, was that this case 307 00:19:13,280 --> 00:19:17,280 Speaker 1: is really complicated and both the Fifth Circuit and the 308 00:19:17,320 --> 00:19:20,480 Speaker 1: Eleventh Circuit needed to do some more work in order 309 00:19:20,520 --> 00:19:23,440 Speaker 1: to focus more specifically on all of the different kinds 310 00:19:23,480 --> 00:19:27,080 Speaker 1: of practices that social media companies engage in where you 311 00:19:27,119 --> 00:19:29,280 Speaker 1: had some disagreement, and this is what I think will 312 00:19:29,320 --> 00:19:33,000 Speaker 1: be really interesting to watch is that some of the justices, 313 00:19:34,240 --> 00:19:38,280 Speaker 1: three of them joined an opinion by Justice Thomas, who 314 00:19:38,440 --> 00:19:43,439 Speaker 1: was I think signaling his view that we do need 315 00:19:43,480 --> 00:19:47,600 Speaker 1: to be concerned about the content moderation practices of social 316 00:19:47,600 --> 00:19:53,320 Speaker 1: media companies, and he connected this issue to an ancient 317 00:19:53,440 --> 00:19:56,960 Speaker 1: issue in our law having to do with companies that 318 00:19:57,000 --> 00:20:00,480 Speaker 1: are so called common carriers and concerns we might about 319 00:20:00,520 --> 00:20:05,120 Speaker 1: these companies misusing their monopoly position in order to act 320 00:20:05,160 --> 00:20:07,840 Speaker 1: as kind of choke points. So it's some interesting debates 321 00:20:07,880 --> 00:20:11,960 Speaker 1: going forward once these procedural issues get refined a little more. 322 00:20:12,040 --> 00:20:16,400 Speaker 4: This is a unanimous decision yet with five separate opinions, 323 00:20:17,720 --> 00:20:20,000 Speaker 4: because they are they all agreed to send it back 324 00:20:20,080 --> 00:20:22,600 Speaker 4: to the lower court. But at the same time they 325 00:20:22,640 --> 00:20:24,760 Speaker 4: didn't agree on why. 326 00:20:25,160 --> 00:20:27,560 Speaker 1: Yeah, so as you said, they all agree, we got 327 00:20:27,560 --> 00:20:31,560 Speaker 1: to send this back. What they disagreed about was three 328 00:20:31,560 --> 00:20:34,400 Speaker 1: of the justices said, look, the rest of you are 329 00:20:34,480 --> 00:20:36,960 Speaker 1: saying a lot more than you need to say. You're 330 00:20:37,320 --> 00:20:41,840 Speaker 1: you're predeciding the issue in a way. Your Justice Thomas 331 00:20:41,880 --> 00:20:44,200 Speaker 1: would say that Justice Kagan's opinion, which is the one 332 00:20:44,240 --> 00:20:46,359 Speaker 1: that had the most votes, you know, it kind of 333 00:20:46,840 --> 00:20:48,720 Speaker 1: it went a long It went a long way towards 334 00:20:48,760 --> 00:20:52,520 Speaker 1: saying the Texas law is going to be unconstitutional even 335 00:20:52,560 --> 00:20:56,800 Speaker 1: after it comes back to us, and I think Justice 336 00:20:56,840 --> 00:20:58,840 Speaker 1: as Thomas Alito and course it's wanted, you'd be like, no, 337 00:20:58,920 --> 00:21:02,080 Speaker 1: we're we're withholding judgment on that because we're still open 338 00:21:02,080 --> 00:21:05,200 Speaker 1: to the possibility that the First Amendment does permit states 339 00:21:05,840 --> 00:21:09,639 Speaker 1: to regulate at least some of the content moderation decisions 340 00:21:10,160 --> 00:21:14,080 Speaker 1: that the social media companies engage in, whereas I think 341 00:21:14,080 --> 00:21:16,920 Speaker 1: a majority of the justices we're kind of signaling their 342 00:21:17,040 --> 00:21:22,119 Speaker 1: view that editorial decisions that are made by social media 343 00:21:22,160 --> 00:21:25,680 Speaker 1: companies are protected speech and that states can regulate them. 344 00:21:25,800 --> 00:21:30,400 Speaker 1: And then you have some really kind of fascinating hypothetical, 345 00:21:31,240 --> 00:21:34,400 Speaker 1: just as parent raised the issue of, you know, when 346 00:21:34,440 --> 00:21:41,760 Speaker 1: you have content moderation being done by artificial intelligence programs, 347 00:21:42,400 --> 00:21:44,880 Speaker 1: are when it's done by virtue of an algorithm that's 348 00:21:44,960 --> 00:21:48,119 Speaker 1: not coming from the company itself, but an algorithm that 349 00:21:48,200 --> 00:21:54,760 Speaker 1: is fed by the social media user's own data inputs. 350 00:21:55,000 --> 00:21:59,479 Speaker 1: So these are going to be hard questions, right, and 351 00:21:59,520 --> 00:22:02,040 Speaker 1: so this is not over by a long shot. 352 00:22:02,760 --> 00:22:05,159 Speaker 4: Okay, So then where are we going from here? What 353 00:22:05,280 --> 00:22:09,200 Speaker 4: is this going to mean for social media? My vision 354 00:22:09,400 --> 00:22:10,840 Speaker 4: is that we're going to go back to the sort 355 00:22:10,880 --> 00:22:14,320 Speaker 4: of wild West on the Internet, and I don't know 356 00:22:14,359 --> 00:22:17,399 Speaker 4: that anybody necessarily wants that. What does this allow for? 357 00:22:18,600 --> 00:22:22,960 Speaker 1: Yeah, so I'm not an expert, and I'm bad at predictions, 358 00:22:23,040 --> 00:22:25,720 Speaker 1: you know the old joke, especially about the future. What 359 00:22:25,840 --> 00:22:31,160 Speaker 1: this means in the law context is more litigation focusing 360 00:22:31,240 --> 00:22:34,199 Speaker 1: on all of the various different kinds of things that 361 00:22:34,240 --> 00:22:38,000 Speaker 1: different social media companies do and trying to think through Okay, 362 00:22:38,680 --> 00:22:41,440 Speaker 1: maybe some of these functions can be regulated and maybe 363 00:22:41,480 --> 00:22:43,960 Speaker 1: some of them can't. But as you know, this is 364 00:22:44,000 --> 00:22:46,800 Speaker 1: a this is an area where things are changing so 365 00:22:47,000 --> 00:22:49,800 Speaker 1: fast it's difficult. The Supreme Court has always struggled with 366 00:22:49,840 --> 00:22:52,600 Speaker 1: this for the at least you know, for my lifetime, 367 00:22:53,119 --> 00:22:56,800 Speaker 1: because as media technology changes, the ability to adapt for 368 00:22:56,880 --> 00:23:03,680 Speaker 1: some amendment doctrine is is tough. Right, So I guess 369 00:23:03,680 --> 00:23:06,720 Speaker 1: if you that's for a prediction, the issues are not 370 00:23:06,880 --> 00:23:09,760 Speaker 1: going away, and we will continue to see I think 371 00:23:11,680 --> 00:23:16,439 Speaker 1: commentators and politicians and legislatures expressing concern and perhaps enacting 372 00:23:16,480 --> 00:23:19,600 Speaker 1: regulation to try to make sure that social media companies 373 00:23:19,600 --> 00:23:24,640 Speaker 1: aren't discriminating against disfavored views. But at the same time 374 00:23:24,920 --> 00:23:27,080 Speaker 1: you'll see the social media companies and booking their First 375 00:23:27,119 --> 00:23:31,200 Speaker 1: Minendment rights to make the editorial judgments that they see 376 00:23:31,200 --> 00:23:33,640 Speaker 1: fit and to be continued. 377 00:23:33,920 --> 00:23:36,359 Speaker 4: Indeed, before we let you go, I want to ask 378 00:23:36,440 --> 00:23:39,080 Speaker 4: about what the Supreme Court is prepared to handle. And 379 00:23:39,119 --> 00:23:41,959 Speaker 4: what I mean by that is AI is a whole 380 00:23:42,000 --> 00:23:44,760 Speaker 4: different world, and you were talking about the implications of 381 00:23:44,800 --> 00:23:48,560 Speaker 4: if AI was creating the algorithm based on what the 382 00:23:48,680 --> 00:23:54,640 Speaker 4: user is doing. Is our Supreme Court able to manage 383 00:23:55,200 --> 00:23:58,439 Speaker 4: the really heavy duty questions, particularly when it comes to 384 00:23:58,560 --> 00:24:01,840 Speaker 4: this whole new world of AI and other technologies that 385 00:24:01,880 --> 00:24:03,400 Speaker 4: we might not even know about yet. 386 00:24:04,560 --> 00:24:07,119 Speaker 1: Yeah, it's going to be a challenge because you know, 387 00:24:08,680 --> 00:24:10,720 Speaker 1: when we talk about the freedom of speech, it's easy 388 00:24:10,720 --> 00:24:13,960 Speaker 1: when you think about a person standing on a soapbox 389 00:24:14,119 --> 00:24:16,920 Speaker 1: in a park making a political speech. We all get that, 390 00:24:17,640 --> 00:24:20,480 Speaker 1: you know, a pamphleteer, a newspaper, and then we had 391 00:24:20,480 --> 00:24:23,879 Speaker 1: new technologies radio, television, and still you know, you get 392 00:24:23,920 --> 00:24:28,480 Speaker 1: the basic idea people are speaking. For a while, there 393 00:24:28,560 --> 00:24:31,359 Speaker 1: was some debate about whether, you know, corporations had free 394 00:24:31,359 --> 00:24:33,280 Speaker 1: speech rights, but it seems pretty clear that they do. 395 00:24:33,440 --> 00:24:37,080 Speaker 1: Because corporations are made up of people and their vehicle 396 00:24:37,119 --> 00:24:40,320 Speaker 1: for people's expression. What's going to be interesting with some 397 00:24:40,400 --> 00:24:42,040 Speaker 1: of the AI stuff. I think, and I don't want 398 00:24:42,040 --> 00:24:44,040 Speaker 1: to go too far out of my depth, is that 399 00:24:44,880 --> 00:24:48,720 Speaker 1: it's harder to characterize some of the outputs of these 400 00:24:49,000 --> 00:24:53,159 Speaker 1: large language models as actually being attached to any real people, 401 00:24:54,680 --> 00:24:57,320 Speaker 1: and so then it's hard to see exactly how the 402 00:24:57,359 --> 00:25:02,640 Speaker 1: First Amendment should apply to it expressive decisions that are 403 00:25:02,680 --> 00:25:06,840 Speaker 1: being made by ones and zeros, and I think they're 404 00:25:06,840 --> 00:25:08,480 Speaker 1: going to have a tough time figuring out how to 405 00:25:08,480 --> 00:25:09,439 Speaker 1: deal with that. 406 00:25:09,440 --> 00:25:12,000 Speaker 4: That is going to be fascinating to watch. We have 407 00:25:12,160 --> 00:25:15,600 Speaker 4: no idea how this movie is going to end Rick Garnett, 408 00:25:15,640 --> 00:25:18,240 Speaker 4: Professor of Law at Notre Dame and director of Notre 409 00:25:18,280 --> 00:25:20,680 Speaker 4: Dame's Program on Church, State and Society. We want to 410 00:25:20,720 --> 00:25:23,360 Speaker 4: thank you very much for joining us on Bloomberg Law. 411 00:25:23,680 --> 00:25:26,200 Speaker 4: Now coming up what we did and did not learn 412 00:25:26,280 --> 00:25:29,920 Speaker 4: from the High Court's latest term. That's next on Bloomberg Law. 413 00:25:30,240 --> 00:25:33,240 Speaker 4: I'm Amy Morris and for June Grosso. This is Bloomberg. 414 00:25:45,560 --> 00:25:50,359 Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio. 415 00:25:50,960 --> 00:25:54,359 Speaker 4: This is a special edition of Bloomberg Law. I'm Amy 416 00:25:54,400 --> 00:25:57,320 Speaker 4: Morris in Washington. June Grosso is off today. She's coming 417 00:25:57,359 --> 00:26:01,240 Speaker 4: back next week. We now turn to a much broader discussion. 418 00:26:01,520 --> 00:26:04,040 Speaker 4: The Supreme Court has wrapped up its latest term with 419 00:26:04,160 --> 00:26:08,760 Speaker 4: rulings on everything from presidential powers to abortion rights and 420 00:26:08,800 --> 00:26:11,560 Speaker 4: the power of federal agencies. There is a lot to 421 00:26:11,640 --> 00:26:15,080 Speaker 4: glean from what the Justice has decided and what they didn't. 422 00:26:15,600 --> 00:26:18,760 Speaker 4: Let's get the view now from Elizabeth Wasserman, Bloomberg's legal 423 00:26:18,840 --> 00:26:21,960 Speaker 4: editor for our Supreme Court coverage. Elizabeth, thank you for 424 00:26:22,040 --> 00:26:22,879 Speaker 4: joining us today. 425 00:26:23,000 --> 00:26:24,040 Speaker 3: Oh, it's my pleasure. 426 00:26:24,480 --> 00:26:28,040 Speaker 4: Let's start with immunity. There's a lot to unpack here. 427 00:26:28,080 --> 00:26:28,880 Speaker 4: Give us your take. 428 00:26:29,320 --> 00:26:32,240 Speaker 3: Well, Donald Trump had a very good year at the 429 00:26:32,280 --> 00:26:34,840 Speaker 3: Supreme Court. You know, a couple of months ago, first 430 00:26:34,920 --> 00:26:39,440 Speaker 3: he won that ruling about the you know that after 431 00:26:39,480 --> 00:26:43,720 Speaker 3: he was kicked off the Colorado ballot over the insurrectionist clause. 432 00:26:44,200 --> 00:26:49,400 Speaker 3: And then, in probably their most substantial ruling this term, 433 00:26:51,600 --> 00:26:56,359 Speaker 3: the Court found that he's substantially immune from prosecution on 434 00:26:56,480 --> 00:26:59,320 Speaker 3: charges that he tried to subvert the twenty twenty election. 435 00:27:00,840 --> 00:27:03,879 Speaker 3: The ruling basically sent it down to a lower court, 436 00:27:04,440 --> 00:27:07,560 Speaker 3: and that pretty much guarantees that he's not going to 437 00:27:07,560 --> 00:27:11,800 Speaker 3: face trial on this election interference case before the election. 438 00:27:12,200 --> 00:27:14,520 Speaker 4: Now, why is that significant? A lot of people keep 439 00:27:14,560 --> 00:27:16,520 Speaker 4: saying that. Explain why that matters. 440 00:27:17,320 --> 00:27:21,320 Speaker 3: Well, that matters because there are some people who believe 441 00:27:21,440 --> 00:27:25,399 Speaker 3: that voters should have some kind of court verdict or 442 00:27:25,480 --> 00:27:29,560 Speaker 3: jury verdict on what happened four years ago and whether 443 00:27:29,600 --> 00:27:35,720 Speaker 3: he did anything wrong. So the vote the American public 444 00:27:35,800 --> 00:27:39,359 Speaker 3: won't get to hear all the evidence and see a trial. 445 00:27:41,280 --> 00:27:44,679 Speaker 3: What's going to happen is that. And why this is 446 00:27:44,680 --> 00:27:48,160 Speaker 3: also important is because he was seeking to delay the 447 00:27:48,200 --> 00:27:52,560 Speaker 3: case because if he wins the presidency, he can instruct 448 00:27:52,600 --> 00:27:56,359 Speaker 3: the Justice Department to dismiss the case. He has that power. 449 00:27:56,920 --> 00:28:01,240 Speaker 3: And you know, in fact, the the court gave him 450 00:28:01,400 --> 00:28:04,240 Speaker 3: a lot of power and gave the presidency a lot 451 00:28:04,240 --> 00:28:10,280 Speaker 3: more power this term. In this ruling, the court basically 452 00:28:10,320 --> 00:28:14,800 Speaker 3: said that certain acts of a president, official acts, have 453 00:28:14,960 --> 00:28:19,760 Speaker 3: absolute immunity from criminal prosecution. This is a new power 454 00:28:19,880 --> 00:28:23,840 Speaker 3: that they gave the president. And what the lower court 455 00:28:23,920 --> 00:28:25,920 Speaker 3: is going to have to do now is go through 456 00:28:26,280 --> 00:28:31,120 Speaker 3: that indictment from Special Counsel Jack Smith and figure out 457 00:28:31,280 --> 00:28:39,000 Speaker 3: which actions were those of a president versus which were 458 00:28:39,040 --> 00:28:40,880 Speaker 3: those of a private citizen. 459 00:28:40,520 --> 00:28:42,840 Speaker 4: So official versus unofficial. 460 00:28:42,720 --> 00:28:48,640 Speaker 3: Yes, or president versus candidate for president, And that could 461 00:28:48,720 --> 00:28:53,200 Speaker 3: be in terms of evidence in his tweets, you know, 462 00:28:53,240 --> 00:28:59,560 Speaker 3: were his tweets the presidential record or were they a 463 00:28:59,680 --> 00:29:03,840 Speaker 3: person campaigning or a person expressing their views. 464 00:29:03,960 --> 00:29:07,120 Speaker 4: So something he said, does this also apply to candidates 465 00:29:07,120 --> 00:29:07,720 Speaker 4: for president? 466 00:29:08,280 --> 00:29:11,360 Speaker 3: No, okay, so that would still the candidate, he'd be 467 00:29:11,400 --> 00:29:14,840 Speaker 3: a private citizen. Yes, yes, But that's some of the 468 00:29:14,960 --> 00:29:17,479 Speaker 3: argument is that he was doing some of this, and 469 00:29:17,760 --> 00:29:21,160 Speaker 3: you know, some of this was sponsored by his campaign. 470 00:29:22,680 --> 00:29:24,600 Speaker 3: That will be a question that the lower court has 471 00:29:24,640 --> 00:29:27,960 Speaker 3: to answer. Remember, you know, he's accused of a bunch 472 00:29:28,000 --> 00:29:31,719 Speaker 3: of different actions, you know, conspiring to you know, promote 473 00:29:31,760 --> 00:29:36,600 Speaker 3: false claims about election fraud, pressuring the Justice Department to 474 00:29:36,640 --> 00:29:43,440 Speaker 3: investigate these these claims, pushing Vice President Mike Pence to 475 00:29:43,480 --> 00:29:48,920 Speaker 3: not certify Joe Biden's electors and make Biden's victory official, 476 00:29:49,200 --> 00:29:53,440 Speaker 3: and also inciting the crowd to storm the capitol. And 477 00:29:53,840 --> 00:29:57,760 Speaker 3: the court may have created more work for the lower 478 00:29:57,760 --> 00:30:01,240 Speaker 3: courts because they work, they did get clarity on some 479 00:30:01,320 --> 00:30:06,080 Speaker 3: of the actions that would be considered the actions official 480 00:30:06,080 --> 00:30:10,240 Speaker 3: acts in this case. In Trump's case, they said, for example, 481 00:30:10,280 --> 00:30:14,360 Speaker 3: that his efforts to push the Justice Department to investigate 482 00:30:15,480 --> 00:30:18,320 Speaker 3: and threaten you know, he threatened also to replace the 483 00:30:18,320 --> 00:30:22,640 Speaker 3: attorney general if he didn't investigate those were official conduct, 484 00:30:22,960 --> 00:30:26,480 Speaker 3: and he's immune from any charges related to those. 485 00:30:27,640 --> 00:30:31,280 Speaker 4: You talked a bit about January sixth, than what happened 486 00:30:31,280 --> 00:30:33,680 Speaker 4: that day and Donald Trump's role in it, and how 487 00:30:33,720 --> 00:30:37,200 Speaker 4: the court weighed that. There was also another case about 488 00:30:37,240 --> 00:30:40,920 Speaker 4: January sixth, and that was focusing mostly on obstruction. Bring 489 00:30:40,960 --> 00:30:43,840 Speaker 4: us up to speed on that, and it seemed almost 490 00:30:43,840 --> 00:30:47,600 Speaker 4: as though that was foreshadowing this ruling that was going 491 00:30:47,640 --> 00:30:52,000 Speaker 4: to come about immunity. Did you see them also linked? 492 00:30:52,320 --> 00:30:56,680 Speaker 3: Yes, I did, because this case also tangentially relates to 493 00:30:56,880 --> 00:31:00,840 Speaker 3: the election case against Trump. Two of the four case 494 00:31:01,080 --> 00:31:07,400 Speaker 3: counts against Trump involve this statute which was at dispute 495 00:31:08,360 --> 00:31:11,960 Speaker 3: before the court. The Justice Department had used this two 496 00:31:12,000 --> 00:31:15,000 Speaker 3: thousand and two statute that makes it a crime to 497 00:31:15,040 --> 00:31:19,000 Speaker 3: obstruct an official proceeding in charging many of the January 498 00:31:19,080 --> 00:31:22,080 Speaker 3: sixth rioters, I think it was about three hundred and 499 00:31:22,120 --> 00:31:26,200 Speaker 3: fifty of them, including Trump, with this charge. But what 500 00:31:26,320 --> 00:31:30,480 Speaker 3: the court found in siding with one of the rioters, 501 00:31:30,520 --> 00:31:34,400 Speaker 3: this man named Joseph Fisher, whose former Pennsylvania police officer 502 00:31:34,680 --> 00:31:38,160 Speaker 3: who stormed the capitol that day, The court found that 503 00:31:39,840 --> 00:31:42,400 Speaker 3: they took issue with the law not necessarily the actions. 504 00:31:42,600 --> 00:31:45,360 Speaker 3: The law was enacted in response to the Enron collapse 505 00:31:46,640 --> 00:31:51,520 Speaker 3: in an accounting scandal years ago in which physical evidence 506 00:31:51,680 --> 00:31:56,640 Speaker 3: was destroyed, and in this case, in the January sixth case, 507 00:31:56,960 --> 00:31:59,880 Speaker 3: the Court found that the law can only be used 508 00:32:01,200 --> 00:32:05,720 Speaker 3: in cases in which it's alleged that documents or other 509 00:32:05,840 --> 00:32:11,600 Speaker 3: records were destroyed, and not simply in the act of 510 00:32:11,760 --> 00:32:15,000 Speaker 3: stopping trying to thwart a congressional proceeding. 511 00:32:15,040 --> 00:32:18,360 Speaker 4: Okay, so let me boil it down. Then they can't 512 00:32:18,360 --> 00:32:21,480 Speaker 4: be charged with obstruction because they didn't actually obstruct anything. 513 00:32:21,640 --> 00:32:24,400 Speaker 4: They tried to but failed, so they're not charged with 514 00:32:24,440 --> 00:32:26,760 Speaker 4: that is That is how the Supreme Court say it. 515 00:32:27,120 --> 00:32:32,960 Speaker 3: The Supreme Court says there weren't paper documents involved, there 516 00:32:33,000 --> 00:32:38,840 Speaker 3: weren't records that were involved, although there are some people 517 00:32:38,840 --> 00:32:42,360 Speaker 3: who say, in Trump's case, there were records of the 518 00:32:42,400 --> 00:32:45,640 Speaker 3: electors that were being brought to the Capitol to be 519 00:32:45,720 --> 00:32:53,080 Speaker 3: certified by Congress. So but that's something for a future 520 00:32:53,080 --> 00:32:53,880 Speaker 3: court to decide. 521 00:32:54,000 --> 00:32:57,080 Speaker 4: Now let's jump ahead a little bit. That's because there's 522 00:32:57,080 --> 00:32:58,680 Speaker 4: a lot to unpack there too, But we need to 523 00:32:58,720 --> 00:33:02,719 Speaker 4: move on federal powers. Secy Chevron I got a crash 524 00:33:02,760 --> 00:33:06,000 Speaker 4: course in what Chevron means, and once you boil it down, 525 00:33:06,040 --> 00:33:08,040 Speaker 4: it's not nearly as complicated as it sounds. 526 00:33:08,120 --> 00:33:10,880 Speaker 3: No, no, and it's it's not just about a car, 527 00:33:11,400 --> 00:33:12,080 Speaker 3: so not. 528 00:33:12,160 --> 00:33:12,920 Speaker 4: Just about fuel. 529 00:33:13,160 --> 00:33:18,920 Speaker 3: It takes from Chevron versus Natural Resources Defense Counsel, a 530 00:33:19,120 --> 00:33:23,480 Speaker 3: nineteen eighty four ruling that's been used for the past 531 00:33:23,520 --> 00:33:27,440 Speaker 3: forty years as a building block for new regulations from 532 00:33:27,520 --> 00:33:32,480 Speaker 3: federal agencies. And what the court did was they tossed 533 00:33:32,520 --> 00:33:39,560 Speaker 3: this legal doctrine that had let federal regulators interpret unclear 534 00:33:39,680 --> 00:33:48,440 Speaker 3: laws for newer problems or for more scientific, scientifically specific 535 00:33:48,960 --> 00:33:55,080 Speaker 3: rules and regulations. But the court decided that they tossed it. 536 00:33:55,760 --> 00:34:02,800 Speaker 3: They it will have a tremendous impact on environmental agencies, 537 00:34:02,960 --> 00:34:08,680 Speaker 3: consumer financial regulatory agencies such as the SEC. And the 538 00:34:08,840 --> 00:34:12,560 Speaker 3: problem with it is that our Congress right now, for 539 00:34:12,640 --> 00:34:17,279 Speaker 3: the last several years, has been dysfunctional. They can't agree, 540 00:34:17,600 --> 00:34:22,279 Speaker 3: the parties can't agree to pass laws that provide more 541 00:34:22,320 --> 00:34:29,640 Speaker 3: specific guidance for regulating new areas such as climate change 542 00:34:29,880 --> 00:34:34,640 Speaker 3: or crypto or AI, and so agencies have been taking 543 00:34:34,640 --> 00:34:37,680 Speaker 3: older laws and trying to make new rules for these 544 00:34:37,719 --> 00:34:42,800 Speaker 3: newer areas under older statutes. 545 00:34:42,360 --> 00:34:46,160 Speaker 4: Now looking ahead. Also, the SEC was also wrapped up 546 00:34:46,200 --> 00:34:49,439 Speaker 4: in another decision by the Supreme Court and it sort 547 00:34:49,480 --> 00:34:53,440 Speaker 4: of took some teeth away from their enforcement power. Corrected. 548 00:34:53,640 --> 00:34:58,680 Speaker 3: Yes, so the SEC had been and also some other 549 00:34:59,560 --> 00:35:03,720 Speaker 3: federal agencies had been using in house judges at times, 550 00:35:03,719 --> 00:35:07,920 Speaker 3: so sometimes their administrative law judges. So sometimes the cases 551 00:35:07,920 --> 00:35:10,080 Speaker 3: wouldn't go to court, but if they could get a 552 00:35:10,080 --> 00:35:15,480 Speaker 3: settlement before an administrative law judge, they would go that route. 553 00:35:15,480 --> 00:35:19,520 Speaker 3: It was quicker, it was easier for them to handle 554 00:35:19,760 --> 00:35:24,840 Speaker 3: more cases. They use this to The SEC used this 555 00:35:24,960 --> 00:35:27,440 Speaker 3: to take care of about one hundred cases per year. 556 00:35:28,640 --> 00:35:33,080 Speaker 3: More recently they've they've avoided using it because they sense 557 00:35:33,320 --> 00:35:37,359 Speaker 3: that the Supreme Court was pushing back some of on 558 00:35:37,400 --> 00:35:41,520 Speaker 3: some of the federal agencies and their power. And so 559 00:35:41,560 --> 00:35:44,000 Speaker 3: now what it means is, particularly where it applies to 560 00:35:44,040 --> 00:35:47,880 Speaker 3: financial damages, defendants have a right to go to court. 561 00:35:48,480 --> 00:35:50,759 Speaker 3: And that means people or companies have a right to 562 00:35:50,800 --> 00:35:54,120 Speaker 3: go to court and before a jury to determine if 563 00:35:54,120 --> 00:35:57,319 Speaker 3: they need to pay financial settlements, So not. 564 00:35:57,320 --> 00:35:59,680 Speaker 4: Using the in house judges, but actually having a trial 565 00:35:59,760 --> 00:36:03,160 Speaker 4: journy or a judge an actual court. Yes, there are 566 00:36:03,239 --> 00:36:05,799 Speaker 4: so many other issues that have come up in this term. 567 00:36:05,840 --> 00:36:07,280 Speaker 4: I wanted to hit abortion. 568 00:36:07,640 --> 00:36:09,719 Speaker 3: Yes, so on abortion. You know, on the surface, it 569 00:36:09,760 --> 00:36:12,480 Speaker 3: looked like the abortion rights advocates had a good run 570 00:36:12,560 --> 00:36:15,960 Speaker 3: this year at the Court, especially compared with you know, 571 00:36:15,960 --> 00:36:18,920 Speaker 3: two years ago with the Dobbs decision overturning Roe v. Wade. 572 00:36:19,360 --> 00:36:24,600 Speaker 3: But the two rulings were very technical wins. They almost 573 00:36:24,960 --> 00:36:28,640 Speaker 3: seemed designed to avoid a controver controversial ruling in an 574 00:36:28,719 --> 00:36:32,680 Speaker 3: election year, and they basically just kicked these issues down 575 00:36:32,800 --> 00:36:35,160 Speaker 3: the road a bit, you know. In one regarding the 576 00:36:35,560 --> 00:36:41,359 Speaker 3: widely used abortion pill, that the justices basically a rule 577 00:36:41,440 --> 00:36:43,719 Speaker 3: that the group bringing the case had a lack of standing. 578 00:36:44,239 --> 00:36:46,520 Speaker 3: That means it may come back to them. In the 579 00:36:46,560 --> 00:36:50,799 Speaker 3: second case, the court dismissed a case about Idaho's very 580 00:36:50,800 --> 00:36:57,720 Speaker 3: strict abortion ban and the government had challenged. The federal 581 00:36:57,719 --> 00:37:01,160 Speaker 3: government had challenged it because they felt that in their 582 00:37:01,160 --> 00:37:07,200 Speaker 3: own law on emergency room that requires measures to save 583 00:37:08,160 --> 00:37:13,000 Speaker 3: preserve someone's health if they're brought in. But the Supreme 584 00:37:13,040 --> 00:37:16,879 Speaker 3: Court's opinion wasn't about the issue. The courts decided that, oh, 585 00:37:16,960 --> 00:37:19,400 Speaker 3: it had taken this case too soon, you know, so 586 00:37:19,480 --> 00:37:21,359 Speaker 3: it's going to go back to the Appellate Court. 587 00:37:21,440 --> 00:37:23,239 Speaker 4: That wasn't on the marriage, Nope, that was on the 588 00:37:23,320 --> 00:37:24,719 Speaker 4: technicality exactly. 589 00:37:24,800 --> 00:37:27,640 Speaker 3: All right, So these were not pure wins for abortion supporters. 590 00:37:27,800 --> 00:37:30,960 Speaker 4: All right, we got so much we really needed a 591 00:37:31,040 --> 00:37:32,080 Speaker 4: lightning round there. 592 00:37:32,160 --> 00:37:32,600 Speaker 3: Okay. 593 00:37:32,680 --> 00:37:35,359 Speaker 4: There there were so many different issues and so many 594 00:37:35,360 --> 00:37:38,400 Speaker 4: different cases that came up in this particular session. Is 595 00:37:38,440 --> 00:37:39,879 Speaker 4: that unusual? Was this a busy one? 596 00:37:40,080 --> 00:37:41,839 Speaker 3: No, it wasn't. As a matter of fact, they used 597 00:37:41,880 --> 00:37:47,040 Speaker 3: to handle one hundred cases. This was a rather light year. 598 00:37:47,160 --> 00:37:48,000 Speaker 4: They just felt big. 599 00:37:48,320 --> 00:37:51,040 Speaker 3: It felt big because everyone had to write a dissent 600 00:37:51,640 --> 00:37:56,120 Speaker 3: and the court was very much divided along ideological lines. 601 00:37:56,840 --> 00:37:58,480 Speaker 4: Thank you, Elizabeth for taking the time. 602 00:37:58,360 --> 00:37:59,560 Speaker 3: With us, My pleasure. 603 00:37:59,640 --> 00:37:59,920 Speaker 5: Thanks. 604 00:38:00,080 --> 00:38:04,200 Speaker 4: Elizabeth Wasserman is Bloomberg Legal editor for Supreme Court coverage. 605 00:38:04,520 --> 00:38:07,720 Speaker 4: Thanks also to Harold Krent, professor at Chicago Kent College 606 00:38:07,760 --> 00:38:10,800 Speaker 4: of Law, and Rick Garnett, director of Notre Dame's Program 607 00:38:10,840 --> 00:38:13,160 Speaker 4: on Church, State and Society. And that does it for 608 00:38:13,200 --> 00:38:16,319 Speaker 4: today's edition of Bloomberg Law. I'm Amy Morris in for 609 00:38:16,400 --> 00:38:19,759 Speaker 4: June Grosso. For more Bloomberg Law analysis and interviews, you 610 00:38:19,800 --> 00:38:23,560 Speaker 4: can head to Apple Podcasts, Spotify, and the Bloomberg Business 611 00:38:23,560 --> 00:38:26,800 Speaker 4: app to download the latest edition of the Bloomberg Law Podcast. 612 00:38:27,200 --> 00:38:30,120 Speaker 4: Stay with us. Your top stories and global business headlines 613 00:38:30,160 --> 00:38:31,680 Speaker 4: are coming up right now.