1 00:00:03,160 --> 00:00:10,959 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio, Mr. Chairman. 2 00:00:11,320 --> 00:00:14,600 Speaker 1: On this vote, there are nine eyes and zero knows. 3 00:00:15,280 --> 00:00:19,040 Speaker 1: And with that vote, history was made. The January sixth 4 00:00:19,040 --> 00:00:22,840 Speaker 1: Committee recommended that Donald Trump be prosecuted for his role 5 00:00:22,880 --> 00:00:25,759 Speaker 1: in the assault on the US Capitol, the first time 6 00:00:25,800 --> 00:00:28,440 Speaker 1: a former president has been the subject of a criminal 7 00:00:28,480 --> 00:00:33,199 Speaker 1: referral by Congress. He lost the election and knew it, 8 00:00:33,840 --> 00:00:36,800 Speaker 1: but he chose to try to stay in office through 9 00:00:36,840 --> 00:00:41,280 Speaker 1: a multipart scheme to overturn the results and block the 10 00:00:41,360 --> 00:00:45,760 Speaker 1: transfer of power. Democratic chair Benny Thompson led the committee 11 00:00:45,760 --> 00:00:49,839 Speaker 1: through eighteen months of investigation into the insurrection that included 12 00:00:49,880 --> 00:00:53,120 Speaker 1: interviewing more than a thousand people, gathering more than a 13 00:00:53,159 --> 00:00:57,920 Speaker 1: million documents, and issuing more than a hundred subpoenas. Democratic 14 00:00:57,920 --> 00:01:02,320 Speaker 1: Committee member Jamie Raskin urged the Justice Department to consider 15 00:01:02,440 --> 00:01:07,520 Speaker 1: prosecuting Trump for four offenses obstructing Congress's certification of the 16 00:01:08,200 --> 00:01:13,039 Speaker 1: election results, conspiring to defraud the United States, conspiring to 17 00:01:13,080 --> 00:01:18,840 Speaker 1: submit fake slates of electors, and inciting an insurrection, which Chairman, 18 00:01:19,360 --> 00:01:22,240 Speaker 1: we understand the gravity of each and every referral we 19 00:01:22,280 --> 00:01:26,120 Speaker 1: are making today, just as we understand the magnitude of 20 00:01:26,120 --> 00:01:30,280 Speaker 1: the crime against democracy that we describe in our report, 21 00:01:30,840 --> 00:01:32,760 Speaker 1: but we have gone where the facts in the law 22 00:01:32,840 --> 00:01:37,800 Speaker 1: lead us, and inescapably they lead us here. The question 23 00:01:37,920 --> 00:01:42,440 Speaker 1: now is whether this unprecedented referral will lead to an 24 00:01:42,520 --> 00:01:47,400 Speaker 1: unprecedented prosecution of a former president. Joining me to discuss 25 00:01:47,440 --> 00:01:51,480 Speaker 1: the referrals impact is former federal prosecutor Elie Hohenig of 26 00:01:51,600 --> 00:01:56,480 Speaker 1: Lowenstein Sandler Ellie. This referral is symbolic. It doesn't require 27 00:01:56,520 --> 00:01:59,920 Speaker 1: the Justice Department to do anything, and in fact, Special 28 00:02:00,000 --> 00:02:04,200 Speaker 1: Council Jack Smith is already leading an investigation into Trump. 29 00:02:04,360 --> 00:02:07,560 Speaker 1: But does the public nature of the referral and the 30 00:02:07,640 --> 00:02:10,880 Speaker 1: information that it comes with put any pressure on the 31 00:02:11,000 --> 00:02:14,480 Speaker 1: Justice Department to come up with indictments against Trump? So, 32 00:02:14,600 --> 00:02:17,080 Speaker 1: first of all, yes, this is symbolic, but that doesn't 33 00:02:17,120 --> 00:02:20,720 Speaker 1: mean it's meaningless. Things that can have a serious impact. 34 00:02:21,000 --> 00:02:25,160 Speaker 1: Does it increase political pressure public pressure on d o K. Sure, 35 00:02:25,200 --> 00:02:28,440 Speaker 1: the more voices, especially authoritative voices like Congress that you 36 00:02:28,520 --> 00:02:31,640 Speaker 1: have calling on prosecutors to bring charges, the more public pressure. 37 00:02:31,760 --> 00:02:34,600 Speaker 1: But I don't think that pressure is going to influenced 38 00:02:34,680 --> 00:02:36,920 Speaker 1: o J. It's not supposed to influenced o J and 39 00:02:36,960 --> 00:02:39,040 Speaker 1: every Attorney general going back at the start of the 40 00:02:39,080 --> 00:02:42,000 Speaker 1: Republic will say we are not influenced by public pressure. 41 00:02:42,000 --> 00:02:43,840 Speaker 1: But I think with Merrick Garland, one thing that I 42 00:02:43,880 --> 00:02:46,680 Speaker 1: think he's very strong on is not being subject to 43 00:02:46,840 --> 00:02:48,840 Speaker 1: political pressure. But here's where I think is going to 44 00:02:48,919 --> 00:02:52,480 Speaker 1: make a big difference, students, and that's the actual evidence itself. 45 00:02:52,520 --> 00:02:55,160 Speaker 1: It doesn't so much matter what the label is or 46 00:02:55,160 --> 00:02:58,480 Speaker 1: whether it's packaged as a referral or not. But I 47 00:02:58,480 --> 00:03:00,959 Speaker 1: guarantee you d o J and prosecutors are going to 48 00:03:01,000 --> 00:03:03,400 Speaker 1: go through that report that comes out of the committee 49 00:03:03,400 --> 00:03:05,560 Speaker 1: word by word because there's going to be evidence in 50 00:03:05,560 --> 00:03:07,720 Speaker 1: there that d o J does not have. There could 51 00:03:07,760 --> 00:03:11,079 Speaker 1: be evidence in there that's different or inconsistent some respects 52 00:03:11,080 --> 00:03:12,919 Speaker 1: with evidence that d o J has. And by the way, 53 00:03:12,919 --> 00:03:15,160 Speaker 1: Donald Trump's lawyers, who will do the exact same thing. 54 00:03:15,200 --> 00:03:17,040 Speaker 1: They're going to look for weaknesses, They're going to look 55 00:03:17,080 --> 00:03:20,160 Speaker 1: for wholes. So I'm not so concerned. If I'm a 56 00:03:20,200 --> 00:03:23,040 Speaker 1: prosecutor with the referral itself, I'd probably just roll my 57 00:03:23,080 --> 00:03:25,680 Speaker 1: eyes at that and go, Okay, thanks for the referral, Congress. 58 00:03:25,680 --> 00:03:28,320 Speaker 1: But I'm very interested in the actual evidence in the subset. 59 00:03:28,880 --> 00:03:32,079 Speaker 1: But does it hurt prosecutors to have all that evidence 60 00:03:32,160 --> 00:03:36,040 Speaker 1: out there with the public, potential witnesses, and as you mentioned, 61 00:03:36,120 --> 00:03:40,600 Speaker 1: Trump's people going through it. Yes, And it cuts both ways. 62 00:03:40,640 --> 00:03:43,200 Speaker 1: On the one hand, if you're d J, you're grateful, Wow, 63 00:03:43,280 --> 00:03:45,640 Speaker 1: all this new evidence, almost certainly some that d o 64 00:03:45,720 --> 00:03:48,240 Speaker 1: J didn't already know. And we know that the committee 65 00:03:48,280 --> 00:03:50,720 Speaker 1: got to certain key witnesses before d o J. Cassidy 66 00:03:50,800 --> 00:03:53,960 Speaker 1: Hutchinson being one example, Passive Maloney being another example, the 67 00:03:54,000 --> 00:03:56,400 Speaker 1: text from Mark Meadows. The committee got those before d 68 00:03:56,480 --> 00:03:58,320 Speaker 1: o J had them as far as we know. On 69 00:03:58,360 --> 00:04:01,480 Speaker 1: the other hand, as a prosecute ter, you never want 70 00:04:01,600 --> 00:04:04,760 Speaker 1: other people interviewing and questioning your key witnesses. You never 71 00:04:04,800 --> 00:04:08,520 Speaker 1: want there to be a massive body of previous statements 72 00:04:08,560 --> 00:04:12,320 Speaker 1: that a witness can be attacked, questioned, cross examined on. 73 00:04:12,400 --> 00:04:15,440 Speaker 1: And that's what's really unusual here, because in any criminal case, 74 00:04:15,600 --> 00:04:17,839 Speaker 1: the prosecution has to turn over and the defense lawyer 75 00:04:18,160 --> 00:04:21,640 Speaker 1: has an obligation to scrutinize any prior statements of the witnesses. Well, 76 00:04:21,680 --> 00:04:24,720 Speaker 1: here there are reams and reams of volumes of that 77 00:04:24,760 --> 00:04:26,600 Speaker 1: material that we're going to see fully when it all 78 00:04:26,640 --> 00:04:28,880 Speaker 1: comes out in the next few days, and all of 79 00:04:28,880 --> 00:04:31,520 Speaker 1: that is fair game for defense lawyers to pick apart. 80 00:04:31,600 --> 00:04:33,600 Speaker 1: So this is part of the reason there's a cost 81 00:04:33,680 --> 00:04:35,760 Speaker 1: to the fact that d o J has been largely 82 00:04:35,839 --> 00:04:38,159 Speaker 1: lagging behind Congress. Now there's going to be all this 83 00:04:38,320 --> 00:04:40,080 Speaker 1: information out there, some of which may be used to 84 00:04:40,160 --> 00:04:43,359 Speaker 1: undermine its case, which is outside of DJ's control. What 85 00:04:43,560 --> 00:04:47,240 Speaker 1: struck you about the referral and the reports sort of 86 00:04:47,400 --> 00:04:51,400 Speaker 1: high points the executive summary that we saw, which runs 87 00:04:51,440 --> 00:04:53,200 Speaker 1: about a hundred sixty pages. And by the way, if 88 00:04:53,240 --> 00:04:55,000 Speaker 1: I was advising the committee, I would have said, let's 89 00:04:55,000 --> 00:04:57,080 Speaker 1: have a little more summary, a little less executive That's 90 00:04:57,120 --> 00:04:59,640 Speaker 1: that's a little long for a summary. Much of it 91 00:04:59,760 --> 00:05:02,720 Speaker 1: was material that we already knew, not all presented with 92 00:05:02,760 --> 00:05:05,200 Speaker 1: similar themes to what we've seen before, which boils down 93 00:05:05,240 --> 00:05:07,719 Speaker 1: to this was all about Donald Trump. There were some 94 00:05:07,839 --> 00:05:11,360 Speaker 1: new nuggets and hints in there. I found it particularly 95 00:05:11,400 --> 00:05:14,599 Speaker 1: interesting where the report goes into the role that lawyers played, 96 00:05:14,600 --> 00:05:17,520 Speaker 1: the role of lawyers that were paid for or provided 97 00:05:17,560 --> 00:05:20,920 Speaker 1: by either Trump or entities around Trump, and the role 98 00:05:20,960 --> 00:05:24,080 Speaker 1: they played in trying to dissuade witnesses. They don't name 99 00:05:24,080 --> 00:05:26,880 Speaker 1: the witnesses, but they say it's a she uh dissuade 100 00:05:26,880 --> 00:05:29,200 Speaker 1: one witness in particular, from coming forward with the full 101 00:05:29,240 --> 00:05:32,240 Speaker 1: truth in a way that could potentially damage Donald Trump. 102 00:05:32,360 --> 00:05:35,040 Speaker 1: That's something that you actually do see quite commonly in 103 00:05:35,160 --> 00:05:37,480 Speaker 1: the real world. In my criminal cases, you would see 104 00:05:37,720 --> 00:05:40,479 Speaker 1: more powerful people are wealthy people paying for lawyers for 105 00:05:40,520 --> 00:05:43,960 Speaker 1: people to make sure those people didn't flip or didn't 106 00:05:43,960 --> 00:05:47,760 Speaker 1: provide harmful information. So that was new. I found that interesting. Also, 107 00:05:47,920 --> 00:05:50,880 Speaker 1: the committee eludes the potential obstruction of justice, and I 108 00:05:50,920 --> 00:05:52,760 Speaker 1: want to see a bit more about what they have 109 00:05:52,839 --> 00:05:56,360 Speaker 1: on that isn't citing an insurrection. The toughest of the 110 00:05:56,440 --> 00:05:59,719 Speaker 1: charges to prove. Insurrection, of course, is the most difficult 111 00:05:59,720 --> 00:06:02,719 Speaker 1: to prove. The others are obstruction of Congress or conspiracy 112 00:06:02,760 --> 00:06:05,800 Speaker 1: to obstruct Congress, conspiracy to defraud the United States. Those 113 00:06:05,800 --> 00:06:08,520 Speaker 1: focus on the pressure campaign on Mike pens Those focus 114 00:06:08,560 --> 00:06:12,680 Speaker 1: on the effort has fake electors installed. The insurrection charge, though, 115 00:06:12,880 --> 00:06:14,640 Speaker 1: is much more dramatic, and you'd have to prove an 116 00:06:14,640 --> 00:06:17,720 Speaker 1: intent to essentially overthrow the government. That's going to be 117 00:06:17,839 --> 00:06:20,920 Speaker 1: much more difficult. Dj has charged over nine people connected 118 00:06:21,080 --> 00:06:24,240 Speaker 1: to January six. They've not charged a single person with insurrection. 119 00:06:24,279 --> 00:06:26,919 Speaker 1: They have charged a few with seditious conspiracy, which is 120 00:06:26,960 --> 00:06:30,000 Speaker 1: similar but not identical. So I think the committee through 121 00:06:30,040 --> 00:06:33,360 Speaker 1: in insurrection mostly as a symbolic measure. I don't think 122 00:06:33,400 --> 00:06:36,279 Speaker 1: there's any realistic chance that d o J charges Donald 123 00:06:36,279 --> 00:06:38,640 Speaker 1: Trump with insurrection, but I think the committee was trying 124 00:06:38,680 --> 00:06:41,440 Speaker 1: to make a larger point there. Trump is known for 125 00:06:41,640 --> 00:06:45,960 Speaker 1: not putting things in writing, not emails, not texts. And 126 00:06:46,080 --> 00:06:49,240 Speaker 1: also I understand there's no evidence that he had contact 127 00:06:49,279 --> 00:06:51,840 Speaker 1: with the insurrectionists, So is it going to be hard 128 00:06:51,880 --> 00:06:54,880 Speaker 1: to prove intent? Absolutely? That is going to be the 129 00:06:54,960 --> 00:06:57,640 Speaker 1: crux of any case against Donald Trump. It's often the 130 00:06:57,640 --> 00:07:00,400 Speaker 1: crux of any criminal cases intent people So times think 131 00:07:00,440 --> 00:07:02,280 Speaker 1: about the who done it, who robbed the bank, or 132 00:07:02,279 --> 00:07:05,440 Speaker 1: who committed the murder, But most cases turned on intent. 133 00:07:05,600 --> 00:07:07,680 Speaker 1: What was the person's state of minding? Can you show 134 00:07:07,720 --> 00:07:10,800 Speaker 1: that specific criminal intent that you need in a case 135 00:07:10,880 --> 00:07:14,080 Speaker 1: like this? And you're right, Trump is particularly elusive because 136 00:07:14,080 --> 00:07:16,120 Speaker 1: he does not text either, not email, so there's not 137 00:07:16,160 --> 00:07:18,560 Speaker 1: going to be some smoking gun document that he created. 138 00:07:18,800 --> 00:07:22,760 Speaker 1: There's not been a person really close to him on 139 00:07:22,840 --> 00:07:25,840 Speaker 1: the inner circle who has flipped and cooperated in a 140 00:07:25,840 --> 00:07:30,000 Speaker 1: way that prosecutors have wanted to fully credit and trust 141 00:07:30,040 --> 00:07:33,280 Speaker 1: and go with There's no known wire cap or audio 142 00:07:33,320 --> 00:07:37,280 Speaker 1: tape of him, so it's very difficult to ascertain his intent. Now, 143 00:07:37,400 --> 00:07:39,560 Speaker 1: the committee was making the argument that, well, if you 144 00:07:39,600 --> 00:07:42,280 Speaker 1: look at all of his conduct and his public statements, 145 00:07:42,320 --> 00:07:44,720 Speaker 1: you can see his intent. But that's difficult. That's never 146 00:07:44,760 --> 00:07:46,920 Speaker 1: an easy road for prosecutors, and I think that's going 147 00:07:46,960 --> 00:07:49,840 Speaker 1: to be the biggest obstacle to charging. I assume, but 148 00:07:49,880 --> 00:07:52,880 Speaker 1: our prosecute is going to try to flip a witness. 149 00:07:53,000 --> 00:07:55,520 Speaker 1: It seems like Mark Meadows might be at the top 150 00:07:55,600 --> 00:07:58,960 Speaker 1: of their list, and there's been some suggestion that he 151 00:07:59,040 --> 00:08:02,920 Speaker 1: might be co operating already because d o J didn't 152 00:08:02,920 --> 00:08:06,360 Speaker 1: bring contempt of Congress charges against him despite a referral. 153 00:08:07,240 --> 00:08:09,680 Speaker 1: So there's flipping a witness, and then there's flipping a witness. 154 00:08:09,880 --> 00:08:13,280 Speaker 1: There's one version of that where you get someone who 155 00:08:13,320 --> 00:08:15,240 Speaker 1: maybe on the borderline or you don't know if the 156 00:08:15,240 --> 00:08:17,320 Speaker 1: person committed a crime or may have witnessed some things, 157 00:08:17,360 --> 00:08:19,520 Speaker 1: to come in and tell you the truth. Then there's 158 00:08:19,560 --> 00:08:22,440 Speaker 1: the sort of John dene style or somebody who was 159 00:08:22,480 --> 00:08:24,640 Speaker 1: involved in the criminality. And John is a friend of 160 00:08:24,680 --> 00:08:26,440 Speaker 1: mine now and I all respect for him, but he 161 00:08:26,480 --> 00:08:29,080 Speaker 1: admitted at the time that he was involved in Nixon's criminality. 162 00:08:29,240 --> 00:08:31,240 Speaker 1: Who comes forward and says I was on the inside. 163 00:08:31,560 --> 00:08:33,920 Speaker 1: Here's what happens. I committed a crime. He committed a 164 00:08:33,960 --> 00:08:36,120 Speaker 1: crime with me. That is much more difficult. You have 165 00:08:36,240 --> 00:08:39,320 Speaker 1: to have leverage over a person. Absolutely, prosecutors are trying 166 00:08:39,320 --> 00:08:41,520 Speaker 1: to do both of those things. That's what prosecutors spent 167 00:08:41,679 --> 00:08:44,480 Speaker 1: most of our time doing. I don't buy these theories 168 00:08:44,480 --> 00:08:48,120 Speaker 1: that Mark Meadows is secretly cooperating in a meaningful way 169 00:08:48,280 --> 00:08:50,760 Speaker 1: with d o J. There's no specific evidence on that. 170 00:08:50,920 --> 00:08:55,160 Speaker 1: He was temporarily cooperating with the committee many months ago, 171 00:08:55,160 --> 00:08:58,320 Speaker 1: but he stopped and the committee tried to get him 172 00:08:58,360 --> 00:09:01,319 Speaker 1: prosecuted for contempt. So I think that the theory that's 173 00:09:01,320 --> 00:09:02,960 Speaker 1: out there that I don't see any support for it, 174 00:09:03,080 --> 00:09:06,040 Speaker 1: I don't buy into. So the committee said it had 175 00:09:06,040 --> 00:09:09,840 Speaker 1: sufficient evidence to make its criminal referral. But the Justice 176 00:09:09,880 --> 00:09:14,160 Speaker 1: Department standard to indict is way way way higher. Explain that. 177 00:09:14,520 --> 00:09:17,920 Speaker 1: So d J standard to indict, according to prosecutorial practice 178 00:09:18,040 --> 00:09:20,440 Speaker 1: is by the textbook. You can get an indictment based 179 00:09:20,440 --> 00:09:23,360 Speaker 1: on probable cause, which means more likely than not, but 180 00:09:23,480 --> 00:09:27,040 Speaker 1: no responsible prosecutor charge is only based on probable cause. 181 00:09:27,240 --> 00:09:29,280 Speaker 1: The guidance within d o J is you need to 182 00:09:29,280 --> 00:09:31,160 Speaker 1: be confident that you can prove your case beyond a 183 00:09:31,200 --> 00:09:33,280 Speaker 1: reasonable doubt before you charge it. That doesn't mean you 184 00:09:33,320 --> 00:09:36,839 Speaker 1: only charge assured winners. There's no such thing as that. 185 00:09:37,080 --> 00:09:39,000 Speaker 1: But you need to be satisfied the proof beyond a 186 00:09:39,040 --> 00:09:42,360 Speaker 1: reasonable doubt. That is the highest standard in our legal system. 187 00:09:42,559 --> 00:09:45,400 Speaker 1: Congress is standard for making a referral. Frankly, is whatever 188 00:09:45,440 --> 00:09:49,040 Speaker 1: Congress feels like. There's no legal standard that says Congress 189 00:09:49,080 --> 00:09:51,920 Speaker 1: must be x percent sure or must meet this legal standard. 190 00:09:52,000 --> 00:09:54,960 Speaker 1: It's just whatever they think. And I don't think any 191 00:09:55,000 --> 00:09:57,880 Speaker 1: of them have been able to articulate what standard they're using. 192 00:09:57,880 --> 00:10:00,320 Speaker 1: I think they've said persuasively that we believe this is 193 00:10:00,360 --> 00:10:04,480 Speaker 1: a compelling body of evidence. But they are not playing 194 00:10:04,520 --> 00:10:06,720 Speaker 1: by nor should they be playing by the same rules 195 00:10:06,760 --> 00:10:10,000 Speaker 1: that prosecutors are. That these are two different things. Whatever 196 00:10:10,040 --> 00:10:13,360 Speaker 1: Congress concludes are referses is not the same test that 197 00:10:13,440 --> 00:10:16,840 Speaker 1: prosecutors are going to apply. Even though Attorney General Merrick 198 00:10:16,920 --> 00:10:19,319 Speaker 1: Garland has said over and over that no one is 199 00:10:19,360 --> 00:10:23,360 Speaker 1: above the law and they'll go wherever the evidence takes them. 200 00:10:23,400 --> 00:10:27,439 Speaker 1: But in deciding whether to indict a former president. Are 201 00:10:27,480 --> 00:10:30,200 Speaker 1: they going to consider that would be a first in 202 00:10:30,200 --> 00:10:33,160 Speaker 1: our nation's history, that Trump is going to be running 203 00:10:33,200 --> 00:10:37,240 Speaker 1: against the current president in and a significant part of 204 00:10:37,240 --> 00:10:40,760 Speaker 1: the country still believes in him and that the election 205 00:10:40,840 --> 00:10:43,120 Speaker 1: was stolen. Is that all going to be part of 206 00:10:43,160 --> 00:10:46,319 Speaker 1: the decision. So by the book literally the book, the 207 00:10:46,400 --> 00:10:48,880 Speaker 1: Justice Manual, the Guide to all Federal Prosecutors, it's not 208 00:10:48,920 --> 00:10:51,600 Speaker 1: supposed to be part of the calculation. There's a section 209 00:10:51,640 --> 00:10:54,560 Speaker 1: in the Justice Manual that says, essentially, prosecutors are not 210 00:10:54,600 --> 00:10:57,360 Speaker 1: to take into consideration a person's fame or notoriety, or 211 00:10:57,360 --> 00:11:01,480 Speaker 1: popularity or unpopularity. But ebsecutors are not robots. We live 212 00:11:01,480 --> 00:11:04,679 Speaker 1: in the real world. And of course Merricolland is going 213 00:11:04,679 --> 00:11:07,680 Speaker 1: to think about the broader implications of this, And of 214 00:11:07,720 --> 00:11:10,880 Speaker 1: course it will be difficult, extraordinarily difficult in my view, 215 00:11:10,920 --> 00:11:14,319 Speaker 1: to get a jury unanimously all twelves zero to come 216 00:11:14,320 --> 00:11:17,120 Speaker 1: back and find not only a formal president, but as 217 00:11:17,120 --> 00:11:19,040 Speaker 1: you say, Joe's somebody who, by the time this case 218 00:11:19,080 --> 00:11:21,560 Speaker 1: ever gets the trial, if ever it will be in 219 00:11:21,559 --> 00:11:24,079 Speaker 1: the heat of election, might even be the front runner, 220 00:11:24,160 --> 00:11:26,840 Speaker 1: might even be the nominee. That is very, very difficult 221 00:11:26,840 --> 00:11:28,840 Speaker 1: and I think the o J can be faulted for 222 00:11:28,960 --> 00:11:31,080 Speaker 1: taking this long if they are going to indict. I 223 00:11:31,080 --> 00:11:33,040 Speaker 1: don't think this needed to take two years. I don't 224 00:11:33,040 --> 00:11:34,880 Speaker 1: think they needed to spend a year and a half 225 00:11:34,920 --> 00:11:38,640 Speaker 1: focusing exclusively on the lowest level people to the exclusion 226 00:11:39,240 --> 00:11:42,000 Speaker 1: of higher level people. But I think you have to 227 00:11:42,040 --> 00:11:44,200 Speaker 1: consider all of those things if you're Merrickland. We don't 228 00:11:44,200 --> 00:11:45,679 Speaker 1: know how he's gonna balance him or where he's going 229 00:11:45,679 --> 00:11:47,599 Speaker 1: to come out. He's certainly been cautious so far, and 230 00:11:47,640 --> 00:11:49,400 Speaker 1: I think it's one of the reasons he appointed special 231 00:11:49,480 --> 00:11:52,240 Speaker 1: counsel Jack Smith, so he'll sort of have another voice 232 00:11:52,280 --> 00:11:55,720 Speaker 1: in there, But ultimately the decision will be Merrickland. Representative 233 00:11:55,800 --> 00:11:59,760 Speaker 1: Jamie Raskin said that an insurrection conviction would prohibit Trump 234 00:12:00,240 --> 00:12:04,200 Speaker 1: serving again in any public office. Now, that's been talked 235 00:12:04,200 --> 00:12:07,439 Speaker 1: about a lot, and there are lots of steps before that, 236 00:12:07,480 --> 00:12:11,680 Speaker 1: including a conviction. But isn't that an uphill battle. I mean, 237 00:12:11,800 --> 00:12:15,800 Speaker 1: even if you get the conviction, that's an unclear legal path, 238 00:12:15,960 --> 00:12:18,520 Speaker 1: isn't it. Yes, So, first of all, even if you 239 00:12:18,600 --> 00:12:21,320 Speaker 1: take that law on its face that says you're disqualified 240 00:12:21,360 --> 00:12:23,160 Speaker 1: if you're convicted in this, not only do we have 241 00:12:23,200 --> 00:12:27,040 Speaker 1: to get from indictment to trial to conviction, but that 242 00:12:27,040 --> 00:12:29,280 Speaker 1: conviction also has to be reviewed by the Court of 243 00:12:29,320 --> 00:12:31,720 Speaker 1: Appeals and potentially by the U. S. Supreme Court. I mean, 244 00:12:31,720 --> 00:12:34,960 Speaker 1: we are talking gosh, even if they indicted tomorrow, that 245 00:12:35,040 --> 00:12:37,439 Speaker 1: whole process that I just laid out would take two years, 246 00:12:37,760 --> 00:12:40,400 Speaker 1: I think on the low end. So it's not going 247 00:12:40,440 --> 00:12:42,320 Speaker 1: to be barring Donald Trump and doing anything in the 248 00:12:42,360 --> 00:12:44,400 Speaker 1: near future. And as I think you allude to you, 249 00:12:44,480 --> 00:12:47,319 Speaker 1: and there is a question about whether that is constitutional 250 00:12:47,440 --> 00:12:50,360 Speaker 1: or not that bar because the argument is, well, the U. S. 251 00:12:50,400 --> 00:12:53,240 Speaker 1: Constitution gives us the qualifications to be president. It says 252 00:12:53,320 --> 00:12:55,720 Speaker 1: on the face of the Constitution person must be thirty 253 00:12:55,760 --> 00:12:58,240 Speaker 1: five years old, must be a quote natural born citizen. 254 00:12:58,480 --> 00:13:01,480 Speaker 1: I must have fourteen years residents see. And Congress can't 255 00:13:01,520 --> 00:13:05,800 Speaker 1: just add to that add to those qualifications by passing laws. 256 00:13:05,880 --> 00:13:08,080 Speaker 1: You would have to amend the Constitution, which is much 257 00:13:08,160 --> 00:13:12,400 Speaker 1: more difficult, requires a higher standard than just passing new laws. 258 00:13:12,400 --> 00:13:15,000 Speaker 1: So even if a conviction were to come to pass 259 00:13:15,040 --> 00:13:18,080 Speaker 1: and be upheld, there would be a substantial legal challenge 260 00:13:18,080 --> 00:13:22,199 Speaker 1: to whether that disqualification provision would stand up. The committee 261 00:13:22,280 --> 00:13:27,400 Speaker 1: named some possible Trump associates that the Justice Department can 262 00:13:27,440 --> 00:13:31,280 Speaker 1: consider charging. Why don't you think they made criminal referral 263 00:13:31,360 --> 00:13:36,520 Speaker 1: specific for individuals like John Eastman. So this one requires 264 00:13:36,520 --> 00:13:38,679 Speaker 1: a little bit of reading between the lines that they 265 00:13:38,720 --> 00:13:42,640 Speaker 1: didn't quite say we hereby referre John Eastman or Jeoffrey Clark, 266 00:13:42,720 --> 00:13:46,400 Speaker 1: but they do name them throughout Eastman Clark in particular, 267 00:13:46,440 --> 00:13:48,920 Speaker 1: and here and there some other folks, um where they 268 00:13:48,920 --> 00:13:51,760 Speaker 1: say we believe this person was a co conspirator, aided 269 00:13:51,760 --> 00:13:54,440 Speaker 1: and abetted or whatever language. Um So, I think the 270 00:13:54,440 --> 00:13:57,559 Speaker 1: committee looked there's obviously, if you believe Donald Trump committed 271 00:13:57,559 --> 00:13:59,680 Speaker 1: a crime in this case, as the committee clearly does, 272 00:14:00,040 --> 00:14:02,280 Speaker 1: then he's not. He can't be the only one there, right, 273 00:14:02,320 --> 00:14:04,040 Speaker 1: There are other people who are part of this or 274 00:14:04,080 --> 00:14:05,920 Speaker 1: in on it with him, Eastman and Clark and Rudy 275 00:14:05,960 --> 00:14:09,000 Speaker 1: Giuliani being among the top tier. Um So, I think 276 00:14:09,040 --> 00:14:13,640 Speaker 1: the committee was trying to to refer not just Donald Trump, 277 00:14:13,800 --> 00:14:16,360 Speaker 1: but not bog it down by listing two dozen or 278 00:14:16,440 --> 00:14:18,360 Speaker 1: three dozen different people. And the committee does go out 279 00:14:18,360 --> 00:14:20,000 Speaker 1: of its way a couple of times to say just 280 00:14:20,080 --> 00:14:22,760 Speaker 1: because we don't mention someone here or don't mention someone explicitly, 281 00:14:22,760 --> 00:14:25,800 Speaker 1: doesn't mean that we believe they're free and clear. Finally, 282 00:14:26,080 --> 00:14:29,200 Speaker 1: what do you think the chances are that Trump will 283 00:14:29,400 --> 00:14:33,720 Speaker 1: eventually be indicted for something. Let's break this into two parts. 284 00:14:33,920 --> 00:14:37,080 Speaker 1: There is the Fulton County District Attorney in Georgia. I 285 00:14:37,080 --> 00:14:40,880 Speaker 1: think the signs there are increasingly pointing towards an indictment. 286 00:14:40,920 --> 00:14:42,680 Speaker 1: I'm not going to predict. I don't do that, but 287 00:14:42,800 --> 00:14:44,760 Speaker 1: I think if you look at the pace of that investigation, 288 00:14:44,840 --> 00:14:47,720 Speaker 1: the public statements that the d A down there has made, 289 00:14:48,120 --> 00:14:50,440 Speaker 1: it seems as if the d A is inclined to 290 00:14:50,560 --> 00:14:53,240 Speaker 1: seek an indictment. That's going to be even more difficult 291 00:14:53,240 --> 00:14:55,720 Speaker 1: than what we've been discussing because there's an additional argument 292 00:14:55,760 --> 00:14:59,640 Speaker 1: that you can't have an elected, local, political, county level 293 00:14:59,760 --> 00:15:02,600 Speaker 1: d A charging somebody for any conduct that touches on 294 00:15:02,640 --> 00:15:04,720 Speaker 1: the presidency. There will be a question about whether this 295 00:15:04,800 --> 00:15:07,840 Speaker 1: conduct touches on the presidency. So I think that one, 296 00:15:08,040 --> 00:15:11,160 Speaker 1: to me, is trending towards indictment. D o J is 297 00:15:11,200 --> 00:15:13,240 Speaker 1: really a bit of a cipher as they should be. 298 00:15:13,320 --> 00:15:15,920 Speaker 1: They've certainly taken their time and then some I think 299 00:15:16,000 --> 00:15:19,800 Speaker 1: Jack Smith appears to be a fairly aggressive prosecutor. I 300 00:15:19,840 --> 00:15:22,280 Speaker 1: think it's more likely d J indicts Donald Trump on 301 00:15:22,280 --> 00:15:26,000 Speaker 1: mor Lago than on January six and January six related activities. 302 00:15:26,120 --> 00:15:28,800 Speaker 1: I think again, the tea leaves are trending a bit 303 00:15:28,920 --> 00:15:31,760 Speaker 1: towards indictment on Mara Lago, but I'm certainly not going 304 00:15:31,800 --> 00:15:34,600 Speaker 1: to predict that it's you know, whatever percent likely. So 305 00:15:34,680 --> 00:15:36,360 Speaker 1: sorry not to give you a number, but you know 306 00:15:36,400 --> 00:15:38,280 Speaker 1: this isn't the NFL. I can't I can't give you 307 00:15:38,320 --> 00:15:41,480 Speaker 1: his final score predictions. Fair enough, Thanks so much, Ellie. 308 00:15:41,640 --> 00:15:45,840 Speaker 1: That's former federal prosecutor Ellie Hoenig. As for Trump's reaction 309 00:15:45,920 --> 00:15:49,600 Speaker 1: to the referral in opposed, he called them fake charges 310 00:15:49,880 --> 00:15:53,240 Speaker 1: made by the highly PARTI is an unselect committee. Coming 311 00:15:53,280 --> 00:15:56,640 Speaker 1: up next on Bloomberg Law, February looks like a blockbuster 312 00:15:56,760 --> 00:16:01,600 Speaker 1: month at the Supreme Court. You're listening to Bloomberg. We'll 313 00:16:01,680 --> 00:16:05,760 Speaker 1: your argument first this morning in case number sixty nine, 314 00:16:05,960 --> 00:16:10,080 Speaker 1: Andy Warhol Foundation versus Goldsmith. The Supreme Court has heard 315 00:16:10,120 --> 00:16:13,080 Speaker 1: twenty seven cases since it began its term on the 316 00:16:13,120 --> 00:16:15,920 Speaker 1: first Monday in October, but it did not issue a 317 00:16:15,960 --> 00:16:19,480 Speaker 1: decision in any of those cases before recessing for the year. 318 00:16:19,920 --> 00:16:23,600 Speaker 1: That's the slowest start since the early nineteen hundreds. Add 319 00:16:23,640 --> 00:16:25,600 Speaker 1: to that the fact that the number of cases the 320 00:16:25,640 --> 00:16:29,480 Speaker 1: Court actually takes up has hit historic lows in recent years. 321 00:16:29,840 --> 00:16:33,560 Speaker 1: Joining me is Kimberly, Strawbridge, Robinson, Bloomberg Law Supreme Court 322 00:16:33,600 --> 00:16:37,880 Speaker 1: reporter Kimberly. Typically the Court issues at least one opinion 323 00:16:37,960 --> 00:16:41,640 Speaker 1: in late November or early December in an argued case. 324 00:16:42,280 --> 00:16:46,360 Speaker 1: So what's happening. Are there justices just kicking back or 325 00:16:46,400 --> 00:16:48,920 Speaker 1: are there other reasons? Well, I think it's exactly the 326 00:16:48,920 --> 00:16:51,000 Speaker 1: opposite of that. So there are a couple of things 327 00:16:51,000 --> 00:16:53,160 Speaker 1: that are really going on here, and I'll say the 328 00:16:53,200 --> 00:16:56,440 Speaker 1: first of which is something that could explain why this 329 00:16:56,520 --> 00:16:58,560 Speaker 1: is something we can expect to see in the future, 330 00:16:58,600 --> 00:17:00,800 Speaker 1: as well as just that has been a change in 331 00:17:00,840 --> 00:17:04,520 Speaker 1: the membership of the Court. And so importantly, Justice Ruth 332 00:17:04,560 --> 00:17:08,000 Speaker 1: Vader Ginsburg used to really pride herself on getting not 333 00:17:08,160 --> 00:17:11,280 Speaker 1: just the first opinion out of the term, but really 334 00:17:11,320 --> 00:17:15,200 Speaker 1: turning around opinions very quickly. And you know, people speculate 335 00:17:15,240 --> 00:17:17,800 Speaker 1: that that's in part because she came onto the Court 336 00:17:17,800 --> 00:17:20,359 Speaker 1: at a time when they were hearing many more cases, 337 00:17:20,520 --> 00:17:23,359 Speaker 1: and so there was just this pressure to turn around 338 00:17:23,359 --> 00:17:25,960 Speaker 1: those opinions quickly, so that there was enough time at 339 00:17:25,960 --> 00:17:28,119 Speaker 1: the end of the term to get out all of 340 00:17:28,160 --> 00:17:30,880 Speaker 1: their opinions. Now, the current court, it seems like most 341 00:17:30,920 --> 00:17:33,280 Speaker 1: of the justices have been on the court when they're 342 00:17:33,280 --> 00:17:36,600 Speaker 1: accepting our fewer cases. Now it's we're lucky if we 343 00:17:36,640 --> 00:17:39,199 Speaker 1: tend to get to sixty five these days, and so 344 00:17:39,280 --> 00:17:41,960 Speaker 1: there's just not that pressure sort of built into their 345 00:17:42,080 --> 00:17:44,240 Speaker 1: d n A. And so I think this is something 346 00:17:44,280 --> 00:17:46,639 Speaker 1: we're probably gonna be seeing more of in the future. 347 00:17:47,480 --> 00:17:51,160 Speaker 1: The last term was the most contentious I can remember 348 00:17:51,200 --> 00:17:54,560 Speaker 1: in a long time, and this term looks like it's 349 00:17:54,600 --> 00:17:57,680 Speaker 1: going to be fairly contentious as well. How does that 350 00:17:57,720 --> 00:18:01,600 Speaker 1: play into getting opinions out? That's right. So that's actually 351 00:18:01,600 --> 00:18:04,960 Speaker 1: the second reason why I think that this term in particular, 352 00:18:05,440 --> 00:18:08,880 Speaker 1: we're seeing a slow start for the justices is that, 353 00:18:09,080 --> 00:18:12,240 Speaker 1: you know, often the first opinion in an argued case 354 00:18:12,320 --> 00:18:15,119 Speaker 1: comes in one of these cases that are argued in October, 355 00:18:15,520 --> 00:18:19,360 Speaker 1: maybe early November. But this year the justices have really 356 00:18:19,640 --> 00:18:23,639 Speaker 1: frontloaded those contentious cases that you're referring to. So if 357 00:18:23,640 --> 00:18:25,920 Speaker 1: you look at October, you know, we kicked it off 358 00:18:25,960 --> 00:18:28,800 Speaker 1: with a major challenge to the e p a's abilities 359 00:18:28,840 --> 00:18:32,200 Speaker 1: to regulate Wetlands. It was followed by, you know, a 360 00:18:32,320 --> 00:18:35,120 Speaker 1: voting case that could change the way that the Supreme 361 00:18:35,160 --> 00:18:38,440 Speaker 1: Court and all thorough courts look at certain claims brought 362 00:18:38,520 --> 00:18:41,439 Speaker 1: under the Voting Rights Act, and you know, even a 363 00:18:41,480 --> 00:18:45,080 Speaker 1: really foundational trademark case that was heard at the end 364 00:18:45,080 --> 00:18:47,159 Speaker 1: of October, and then if you moved into the beginning 365 00:18:47,240 --> 00:18:49,960 Speaker 1: of November, it's hard to believe that it was that 366 00:18:50,040 --> 00:18:52,560 Speaker 1: long ago, but that's when the Support heard those cases 367 00:18:52,600 --> 00:18:56,159 Speaker 1: over the affirmative action and higher education. So you know, 368 00:18:56,240 --> 00:18:59,760 Speaker 1: those cases just don't lend themselves to a quick turn 369 00:18:59,840 --> 00:19:02,320 Speaker 1: or own. Not only are they really hard issues for 370 00:19:02,400 --> 00:19:04,920 Speaker 1: the justice to sort out, but it's likely that those 371 00:19:04,960 --> 00:19:06,879 Speaker 1: are going to be divided cases where you're going to 372 00:19:07,000 --> 00:19:09,520 Speaker 1: have dissenting opinions that sort of go back and forth 373 00:19:09,560 --> 00:19:11,960 Speaker 1: with the majority opinions before they're ready to let's be 374 00:19:12,200 --> 00:19:15,480 Speaker 1: public kind of see how those disagreements all sort of 375 00:19:15,480 --> 00:19:19,919 Speaker 1: shook out. The shadow docket of emergency cases has become 376 00:19:19,960 --> 00:19:23,439 Speaker 1: more active. Does that play into the slowdown? Well, that 377 00:19:23,520 --> 00:19:26,520 Speaker 1: really could. I think you're right to think that with 378 00:19:26,880 --> 00:19:31,280 Speaker 1: more emergency applications coming to the court, and particularly if 379 00:19:31,320 --> 00:19:34,480 Speaker 1: those are going to be decisions that are divided and 380 00:19:34,520 --> 00:19:37,760 Speaker 1: where we might see a justice writing a dissenting opinion, 381 00:19:38,040 --> 00:19:39,760 Speaker 1: but that's going to take up some of the times 382 00:19:39,760 --> 00:19:42,280 Speaker 1: that they might spend towards writing an opinion and an 383 00:19:42,400 --> 00:19:45,000 Speaker 1: argued case. On the other end, you know, what we 384 00:19:45,080 --> 00:19:47,560 Speaker 1: see them doing in um in a case that's going 385 00:19:47,600 --> 00:19:49,720 Speaker 1: to be arguing next term, is that they're actually taking 386 00:19:49,760 --> 00:19:52,480 Speaker 1: a lot of cases off of the shadow docket and 387 00:19:52,560 --> 00:19:55,400 Speaker 1: sort of moving them into kind of how we more 388 00:19:55,440 --> 00:19:58,680 Speaker 1: normally think about cases being decided at the Supreme Court 389 00:19:58,720 --> 00:20:01,880 Speaker 1: with oral arguments and then these opinions that we're talking about. 390 00:20:01,960 --> 00:20:04,040 Speaker 1: So I think the Stato dockets sort of sort of works, 391 00:20:04,440 --> 00:20:07,720 Speaker 1: uh in two different ways there. That will probably make 392 00:20:07,960 --> 00:20:11,399 Speaker 1: a lot of people who criticize the shadow docket happier. 393 00:20:12,160 --> 00:20:15,960 Speaker 1: As you mentioned, they hear so many fewer cases. What 394 00:20:16,000 --> 00:20:19,000 Speaker 1: were the numbers like in the old days, Let's say 395 00:20:19,040 --> 00:20:22,439 Speaker 1: when RBG was on the court. Well, there was a time, 396 00:20:22,560 --> 00:20:24,720 Speaker 1: you know, in the nine eighties or so when the 397 00:20:24,800 --> 00:20:27,720 Speaker 1: justices were hearing that was really sort of the high watermark. 398 00:20:27,720 --> 00:20:30,560 Speaker 1: When they're justices, we're hearing about a hundred fifty cases. Now, 399 00:20:30,560 --> 00:20:33,360 Speaker 1: they weren't hearing them the same way hearing oral arguments 400 00:20:33,440 --> 00:20:35,720 Speaker 1: for hours and hours on end. Some of them would 401 00:20:35,720 --> 00:20:39,360 Speaker 1: be more summary opinions, and we've really seen that sort 402 00:20:39,359 --> 00:20:41,639 Speaker 1: of creep down a lot. Now we're lucky if we 403 00:20:41,720 --> 00:20:45,960 Speaker 1: get sixty five opinions in arguing cases. It doesn't seem like, 404 00:20:46,240 --> 00:20:48,040 Speaker 1: you know, an opinion is a lot of work, but 405 00:20:48,119 --> 00:20:50,600 Speaker 1: it takes the justices many, many months not only to 406 00:20:50,680 --> 00:20:53,520 Speaker 1: write it, but to circulate it to the other justices, 407 00:20:53,880 --> 00:20:57,240 Speaker 1: to incorporate their changes and suggestions and make sure that 408 00:20:57,359 --> 00:20:59,840 Speaker 1: it's an opinion that will garner a majority. And so 409 00:21:00,200 --> 00:21:03,160 Speaker 1: even just bringing down the numbers by a dozen cases 410 00:21:03,160 --> 00:21:05,119 Speaker 1: are so really makes the difference. That the kind of 411 00:21:05,119 --> 00:21:09,240 Speaker 1: workloads that the justices have now tell us what used 412 00:21:09,240 --> 00:21:13,800 Speaker 1: to happen before COVID when decisions were handed down. So, 413 00:21:13,920 --> 00:21:17,959 Speaker 1: before decisions were issued, the justices would take the bench 414 00:21:18,560 --> 00:21:21,600 Speaker 1: um even if they weren't hearing any oral arguments. They 415 00:21:22,080 --> 00:21:25,360 Speaker 1: all get dressed up in their rope. The Court Martial 416 00:21:25,359 --> 00:21:29,160 Speaker 1: would gabl in a session um their republic and security 417 00:21:29,200 --> 00:21:32,760 Speaker 1: and reporters in the room, and the justice and the 418 00:21:32,800 --> 00:21:36,359 Speaker 1: majority would would read a portion of their opinion or 419 00:21:36,440 --> 00:21:41,600 Speaker 1: summarize their opinion, and then more infrequently really just in 420 00:21:41,760 --> 00:21:45,720 Speaker 1: very big dramatic cases. The discent might also read part 421 00:21:46,000 --> 00:21:48,560 Speaker 1: of their descent from the bench, and all of that, 422 00:21:48,680 --> 00:21:52,720 Speaker 1: of course got scrapped from uh, you know, during the pandemic, 423 00:21:52,760 --> 00:21:56,320 Speaker 1: when the justices were not even coming into the courtroom. UM. 424 00:21:56,600 --> 00:21:58,960 Speaker 1: And so we see now the courts made an announcement 425 00:21:59,000 --> 00:22:01,520 Speaker 1: that it's going to return to its pre pandemic ways 426 00:22:01,600 --> 00:22:05,040 Speaker 1: and once again take the bench for these opinion announcements. 427 00:22:06,200 --> 00:22:09,960 Speaker 1: So COVID did bring one good thing to Supreme Court watchers, 428 00:22:09,960 --> 00:22:14,480 Speaker 1: and that's that the audio was heard live, the audio 429 00:22:14,600 --> 00:22:17,240 Speaker 1: of the oral arguments. Usually you had to wait till 430 00:22:17,280 --> 00:22:19,320 Speaker 1: the end of the week I think it was to 431 00:22:19,440 --> 00:22:23,119 Speaker 1: hear the audio. So they're keeping that up. Are they 432 00:22:23,200 --> 00:22:28,639 Speaker 1: going to release audio of the decisions? So they are not, 433 00:22:29,240 --> 00:22:32,000 Speaker 1: And that's sort of in keeping with its practice pre 434 00:22:32,119 --> 00:22:36,960 Speaker 1: pandemic as well. You know, you're right that the transcripts 435 00:22:36,960 --> 00:22:40,160 Speaker 1: and the audio of the oral arguments would be released 436 00:22:40,520 --> 00:22:45,399 Speaker 1: fairly shortly after the actual argument itself happened. But in 437 00:22:45,440 --> 00:22:49,040 Speaker 1: the case of these opinion announcements, none of them were 438 00:22:49,080 --> 00:22:52,880 Speaker 1: released until the following October. UM. So if you had 439 00:22:52,880 --> 00:22:55,639 Speaker 1: a case an opinion that was decided in November of 440 00:22:57,480 --> 00:22:59,960 Speaker 1: that audio would not be available to you until Octo 441 00:23:00,000 --> 00:23:03,160 Speaker 1: over three, and they're gonna go ahead and keep that rule. 442 00:23:03,240 --> 00:23:05,320 Speaker 1: They're not going to be live streaming these and I 443 00:23:05,359 --> 00:23:07,800 Speaker 1: think that was a pretty big disappointment to a lot 444 00:23:07,800 --> 00:23:11,160 Speaker 1: of people who want to see more transparency at the court. Yeah, 445 00:23:11,200 --> 00:23:16,480 Speaker 1: because to get the audio of the justices reading the decisions, 446 00:23:17,080 --> 00:23:18,679 Speaker 1: where do you have to go to get that audio? 447 00:23:18,720 --> 00:23:22,480 Speaker 1: It's is it on the website. It's not on the website. 448 00:23:22,560 --> 00:23:27,040 Speaker 1: It's available through you know, a government um agency, but 449 00:23:27,640 --> 00:23:31,360 Speaker 1: a lot of other private entities make it available more easily. 450 00:23:31,480 --> 00:23:34,200 Speaker 1: And so here I am thinking, um, there's a group 451 00:23:34,240 --> 00:23:38,320 Speaker 1: out of the University of Chicago, Oh yeah, that makes 452 00:23:38,320 --> 00:23:42,119 Speaker 1: these pretty widely available when they're made available to the public. 453 00:23:42,640 --> 00:23:44,520 Speaker 1: But it is it does take a lot of searching 454 00:23:44,520 --> 00:23:47,320 Speaker 1: around to get ahold of these. And you know that's 455 00:23:47,359 --> 00:23:50,159 Speaker 1: on top of the fact that it's also really difficult 456 00:23:50,280 --> 00:23:55,000 Speaker 1: to you know, even know when the justices are deciding opinions. 457 00:23:55,080 --> 00:23:56,960 Speaker 1: You know that it's not like they have a regular 458 00:23:57,000 --> 00:24:01,200 Speaker 1: interval for when they decide opinions, and we never beforehand 459 00:24:01,240 --> 00:24:03,720 Speaker 1: what those opinions are going to be. So already a 460 00:24:03,800 --> 00:24:07,680 Speaker 1: process that has very little transparency to it, do you really? 461 00:24:07,680 --> 00:24:11,560 Speaker 1: There are some really contentious cases coming up next year. 462 00:24:12,080 --> 00:24:15,800 Speaker 1: One is a challenge to President Biden's student loan forgiveness plan, 463 00:24:16,240 --> 00:24:19,040 Speaker 1: and the Court has expanded that this was the case 464 00:24:19,080 --> 00:24:21,879 Speaker 1: I was mentioning earlier that was taken off of the 465 00:24:21,920 --> 00:24:26,120 Speaker 1: shadow docket UM and brought onto the courts more normal docket. 466 00:24:26,600 --> 00:24:28,960 Speaker 1: It is being expedited though, at the request of the 467 00:24:29,080 --> 00:24:34,000 Speaker 1: United States, and it involves Biden's student loan forgiveness program. 468 00:24:34,359 --> 00:24:38,120 Speaker 1: You know, listeners may remember that the Court had rejected 469 00:24:38,240 --> 00:24:41,040 Speaker 1: a couple of emergency applications that had come up to 470 00:24:41,119 --> 00:24:44,120 Speaker 1: the Court um and done so in a pretty quick fashion. 471 00:24:44,359 --> 00:24:46,880 Speaker 1: But those were all a situation where the lower courts 472 00:24:46,920 --> 00:24:50,000 Speaker 1: had not disturbed the program. And once a lower court 473 00:24:50,040 --> 00:24:53,000 Speaker 1: did finally put the program on hold, saying that the 474 00:24:53,000 --> 00:24:56,400 Speaker 1: Biden administration had gone too far, then the Supreme Court 475 00:24:56,440 --> 00:24:58,560 Speaker 1: agreed to take it up. And recently we heard that 476 00:24:58,640 --> 00:25:01,119 Speaker 1: they added a second case to that, and both of 477 00:25:01,160 --> 00:25:04,080 Speaker 1: those will be heard in February. The Court has kept 478 00:25:04,440 --> 00:25:09,240 Speaker 1: the plan on hold. Are people reading anything into that? Well, 479 00:25:09,400 --> 00:25:11,239 Speaker 1: you know, I don't know if it's the fact that 480 00:25:11,280 --> 00:25:14,520 Speaker 1: they kept it on whole necessarily that has people sort 481 00:25:14,520 --> 00:25:17,200 Speaker 1: of reading the tea leaves. But what's the Supreme Court 482 00:25:17,280 --> 00:25:20,679 Speaker 1: has said in the past about these really big governmental 483 00:25:20,720 --> 00:25:23,760 Speaker 1: programs that sort of find their way into law through 484 00:25:23,800 --> 00:25:27,960 Speaker 1: these more ambiguous congressional statutes. And I think the sort 485 00:25:28,000 --> 00:25:30,440 Speaker 1: of conventional thinking is that this is the court that's 486 00:25:30,440 --> 00:25:34,000 Speaker 1: going to be very skeptical of what the Biden administration 487 00:25:34,119 --> 00:25:37,280 Speaker 1: has done here because it was done under a law 488 00:25:37,320 --> 00:25:39,480 Speaker 1: that was passed so long ago that was sort of 489 00:25:39,520 --> 00:25:42,679 Speaker 1: meant to address a very general situation, um. And I 490 00:25:42,720 --> 00:25:45,480 Speaker 1: think that's where you see people thinking that this program 491 00:25:45,560 --> 00:25:48,080 Speaker 1: is really in trouble once the justices get their hands 492 00:25:48,080 --> 00:25:51,960 Speaker 1: on it. Another case that promises to be controversial, The 493 00:25:52,000 --> 00:25:56,160 Speaker 1: Court's going to hear a case challenging the legal shield 494 00:25:56,240 --> 00:26:01,000 Speaker 1: for social media platforms, the controversial sex into thirty that 495 00:26:01,200 --> 00:26:04,080 Speaker 1: we'll put it right in the middle of political debates, 496 00:26:04,760 --> 00:26:07,560 Speaker 1: that's right, And you know this is the case, um 497 00:26:07,600 --> 00:26:10,919 Speaker 1: that involves Google and Twitter, So it's uh, you know, 498 00:26:11,040 --> 00:26:13,480 Speaker 1: definitely the Supreme Court is not shying away from the 499 00:26:13,520 --> 00:26:17,040 Speaker 1: controversial issues of the day. You know. Here they're really 500 00:26:17,720 --> 00:26:22,240 Speaker 1: again looking at whether or not the shield that Congress 501 00:26:22,359 --> 00:26:26,639 Speaker 1: has given to the Internet service providers and other major 502 00:26:26,800 --> 00:26:30,479 Speaker 1: tech companies really makes sense in light of you know, 503 00:26:30,520 --> 00:26:35,280 Speaker 1: today's realities, and what they're looking at is a logarithms 504 00:26:35,280 --> 00:26:38,800 Speaker 1: by these tech companies that sort of push content UM 505 00:26:39,040 --> 00:26:42,720 Speaker 1: or you know, promote content, and whether or not they 506 00:26:42,760 --> 00:26:45,920 Speaker 1: should bear any responsibility for things that happen after those 507 00:26:45,920 --> 00:26:49,320 Speaker 1: And in each of these cases, UM, we have, you know, 508 00:26:49,760 --> 00:26:53,880 Speaker 1: a family whose loved one was killed in an ISIS 509 00:26:54,000 --> 00:26:57,280 Speaker 1: terror attack and they're doing the tech company saying that 510 00:26:57,359 --> 00:27:00,680 Speaker 1: you know, they bear some responsibility for really promoting that content, 511 00:27:01,560 --> 00:27:04,840 Speaker 1: whereas you know, the course below said that that kind 512 00:27:04,840 --> 00:27:08,159 Speaker 1: of thing is protected by federal law. So again another 513 00:27:08,240 --> 00:27:11,600 Speaker 1: issue where the justices are just jumping right into the 514 00:27:11,640 --> 00:27:15,240 Speaker 1: fray of sort of the most um top of mind 515 00:27:15,320 --> 00:27:18,960 Speaker 1: issues of the day. There are a couple of trademark cases, 516 00:27:19,240 --> 00:27:23,680 Speaker 1: and my favorite is the one that involves Jack Daniels 517 00:27:23,720 --> 00:27:29,080 Speaker 1: and a squeaky dog toy. That's right, so you know, 518 00:27:29,160 --> 00:27:31,479 Speaker 1: this is another I mentioned that they had some of 519 00:27:31,480 --> 00:27:35,920 Speaker 1: a uh foundational copyright case. This is another potentially foundational 520 00:27:36,200 --> 00:27:40,639 Speaker 1: UM intellectual property case dealing with trademark. It involves a 521 00:27:40,720 --> 00:27:44,840 Speaker 1: company who makes bad Spaniel toys to look very much 522 00:27:45,000 --> 00:27:50,680 Speaker 1: like the UM iconic Jack Daniels Bottle, and the question 523 00:27:50,720 --> 00:27:55,200 Speaker 1: here is really a battle between trademark law and free speech. 524 00:27:55,640 --> 00:27:58,240 Speaker 1: You know, Jack Daniels says that, you know, the black 525 00:27:58,800 --> 00:28:03,440 Speaker 1: the Bad Spaniel lates it's trademarks, but the bad Fanuel 526 00:28:03,480 --> 00:28:06,040 Speaker 1: makers are saying, you know, this is a humorous parody 527 00:28:06,160 --> 00:28:09,760 Speaker 1: and that kind of speech is protected by the First Amendment. 528 00:28:09,840 --> 00:28:13,600 Speaker 1: So really a battle of sort of two values that 529 00:28:13,640 --> 00:28:16,960 Speaker 1: we have in this country of protecting trademarks and protecting speech. 530 00:28:17,359 --> 00:28:20,159 Speaker 1: Is there anything you're watching for on the shadow docket? 531 00:28:20,680 --> 00:28:23,000 Speaker 1: There are a few more cases that are coming up 532 00:28:23,040 --> 00:28:25,040 Speaker 1: that we're keeping an eye on here. You know, there 533 00:28:25,040 --> 00:28:30,000 Speaker 1: are some other cases involving social media that we're also looking. 534 00:28:30,080 --> 00:28:32,679 Speaker 1: But you know, it's mind boggling to me the issues 535 00:28:32,720 --> 00:28:35,520 Speaker 1: that the justices already have on their plate to decide. 536 00:28:35,600 --> 00:28:38,080 Speaker 1: I wonder if there's an appetite to add much more. 537 00:28:38,400 --> 00:28:42,200 Speaker 1: Thanks so much, Kimberly. That's Bloomberg Law reporter Kimberly Strawbridge 538 00:28:42,280 --> 00:28:44,840 Speaker 1: Robinson and that's it for this edition of the Bloomberg 539 00:28:44,920 --> 00:28:47,600 Speaker 1: Law Show. Remember you can always get the latest legal 540 00:28:47,600 --> 00:28:50,600 Speaker 1: news on our Bloomberg Law podcast. You can find them 541 00:28:50,600 --> 00:28:55,600 Speaker 1: on Apple Podcasts, Spotify, and at www. Dot Bloomberg dot com, 542 00:28:55,720 --> 00:28:59,040 Speaker 1: slash podcast Slash Law, and remember to tune into the 543 00:28:59,080 --> 00:29:03,080 Speaker 1: Bloomberg Laws every week night. Atten b M Wall Street Time. 544 00:29:03,640 --> 00:29:10,040 Speaker 1: I'm June Grosso and you're listening to Bloomberg. H