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

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

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

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

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Speaker 1: and on Bloomberg dot com slash podcasts. Senate House committees

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Speaker 1: have been investigating Russian medley in the election for more

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Speaker 1: than a year, yet the first congressional criminal referral is

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Speaker 1: a request for the Justice Department to investigate a former

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Speaker 1: British spy whose disputed dossier on President Trump's ties to

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Speaker 1: Russia has been a flashpoint. Senate Judiciary Chairman Chuck Grassley

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Speaker 1: and fellow Republican Senator Lindsey Graham took the unusual step

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Speaker 1: of asking for the investigation of former British spy Christopher

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Speaker 1: Steele last Friday. The move was ripped by Democrats on

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Speaker 1: the panel. Senator Diane Feinstein of California, the top Democrat

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Speaker 1: on the panel, said the Democrats were not consulted and

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Speaker 1: call this an effort to deflect attention from the broader

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Speaker 1: Russia investigation. My guest is William Banks, professor at Syracuse

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Speaker 1: University School of Law. Bill let's first discuss what Grassley

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Speaker 1: and Graham are asking for. Is I understand it, it's

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Speaker 1: an investigation which would most likely be done by the

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Speaker 1: FBI about whether Steele lied to the FBI about his

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Speaker 1: statements to the press about the dossier. Sounds a little circular.

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Speaker 1: It is a little circular, and I think you've summarized

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Speaker 1: it well, and I agree with Senator Feinstein's characterization. I

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Speaker 1: think this is a partisan move to deflect attention from

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Speaker 1: the core of the investigation that's ongoing. It's it is

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Speaker 1: I think fair to wonder more about the Steel dossier

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Speaker 1: and how it came into the hands of of our

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Speaker 1: intelligence community and just what Steele was up to. You know.

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Speaker 1: The bottom line, however, is that whatever role as dossier

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Speaker 1: has played, our intelligence community had other sources that would

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Speaker 1: have led them to the information about Russian uh interference

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Speaker 1: in the election, even if Steele had never written as

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Speaker 1: dossier or tried to share it with the United States.

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Speaker 1: Is that why there's been so much focus on this dossier,

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Speaker 1: whether or not that was how the Russia investigation was

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Speaker 1: started by the FBI. Well, I think some of the

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Speaker 1: Republicans and the committees are trying to characterize it that

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Speaker 1: way to undermine the sort of uh, the premise which

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Speaker 1: began the investigation, that there was some lawful way to

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Speaker 1: know in s that the Russians are up to no

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Speaker 1: good here. Indeed, though we know from from several media

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Speaker 1: reports that the Justice Department had intelligence intercepts on Russian

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Speaker 1: attempts to interference interfere in the election at least by

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Speaker 1: June or July of Steen, and likely much earlier. How

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Speaker 1: unusual is this for a congressional committee to ask for

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Speaker 1: an investigation like this? It's fairly unusual, and of course

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Speaker 1: they can. They can ask, but they don't have any

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Speaker 1: legal authority to compel its simply a request or referral.

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Speaker 1: It's up to the Justice Department to decide what to

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Speaker 1: do with that referral. So again, I think it's more

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Speaker 1: posturing than anything else. I think there they are trying

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Speaker 1: to undermine the steel dustier, and that's fine. I don't

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Speaker 1: think that the steel steel duscie is going to be

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Speaker 1: central to any part of the investigation going forward, because,

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Speaker 1: as I said, they had other ways of obtaining the

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Speaker 1: same information, and much of the stuff that's in the

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Speaker 1: steel duschy I think is not really part of the

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Speaker 1: congressional investigation, nor part of what Mueller is trying to do.

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Speaker 1: Some legal experts have said that this shows the Justice

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Speaker 1: Department being pulled into a partisan battle. Is the independence

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Speaker 1: of the assist department at stake in any way here? Well,

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Speaker 1: it would be. I think if they if they took

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Speaker 1: this request very seriously, I think they won't. I think

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Speaker 1: they'll decline. As we know, you know that the Justice

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Speaker 1: Department itself was hobbled a bit at the very beginning

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Speaker 1: because Attorney General Sessions was recused from being involved in

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Speaker 1: the in the supervision of the Mueller investigation. So that's

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Speaker 1: being handled by the Deputy Rob Rosenstein. And now you know,

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Speaker 1: with request coming from Congress, uh, you further question I

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Speaker 1: think the independence of Justice, but I think Justice is

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Speaker 1: up to the task here. They'll simply decline to move

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Speaker 1: forward with this request. I wonder on a practical level,

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Speaker 1: this request would involve digging into allegations of the dossier.

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Speaker 1: Are those are those allegations that the Republicans necessarily want

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Speaker 1: to be, you know, inquired about. I think they're probably

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Speaker 1: if they could, they would, they would be more interested

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Speaker 1: in how the dossier found its way into the hands

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Speaker 1: of US investigators, who paid steal and why what was

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Speaker 1: their motivation so that to try to paint the Democrats

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Speaker 1: in particularly the Clinton campaign, in an unfavorable light. Tell

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Speaker 1: us about what's been happening between Chuck Grassley and the

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Speaker 1: organization that, as I understand it, initially asked for this

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Speaker 1: dossier to be made. Well, I think Grassley, who who's

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Speaker 1: you know, long been a chair of the of the

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Speaker 1: Senate Committee and it's you know, decades long experience in

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Speaker 1: the Senate, has never been a fan of the of

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Speaker 1: the Clintons or the Clintons uh campaign and attempt at

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Speaker 1: the presidency in two sixteen, and I think he he sees, uh,

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Speaker 1: this is one of the few opportunities that he's had

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Speaker 1: now that that Donald Trump is the president to try

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Speaker 1: to gain some kind of uh victory against the Clinton's

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Speaker 1: even even after their electoral opportunities have gone by the wayside.

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Speaker 1: So it was just to straighten out where the what

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Speaker 1: we know about the dossier, a group called Fusion GPS

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Speaker 1: originally commissioned it and then it was picked up later

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Speaker 1: um by the Clinton campaign. That's that's what we believe

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Speaker 1: based on what's been reported and a law firm may

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Speaker 1: have been involved in pain for the dossier, the law

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Speaker 1: firm that was supporting the Clinton campaign at the time.

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Speaker 1: I don't. I think none of these can be called

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Speaker 1: hard facts at the at this point because it's all

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Speaker 1: based on reporting from a lot of multiple sources. Lindsay

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Speaker 1: Graham also said he wants a special counsel to review

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Speaker 1: the matter. So a special counsel in addition to the

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Speaker 1: special council, Why is that allegation? Why why is that

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Speaker 1: request being made? Well, I think Graham's just going at

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Speaker 1: the same objective in a different way. And if you

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Speaker 1: can't get to Justice Department to launch a criminal case,

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Speaker 1: you might get them to appoint a social council. And

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Speaker 1: I think he's again sort of plailing at windmills here

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Speaker 1: that that's not likely to happen. We've got an investigation

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Speaker 1: ongoing a Russian interference. Often, you know, I've said this

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Speaker 1: to you on your program before. I think we sometimes

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Speaker 1: lose sight that investigation is principally about Russian interference. The

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Speaker 1: chance that it's also about Trump administration or Trump campaign

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Speaker 1: collusion was not the principal objective for the investigation. It

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Speaker 1: may be a secondary objective, but it gets certainly more

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Speaker 1: of the attention I think in our media. Uh so

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Speaker 1: the Republicans are reacting to what maybe the lesser of

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Speaker 1: the two objectives of the investigation. All right, thanks Bill,

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Speaker 1: It's always a pleasure to have you here. The Supreme

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Speaker 1: Court is back in session. By a vote of seven

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Speaker 1: to three, the justices ordered a lower court to take

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Speaker 1: a new look at a Georgia inmates death sentence after

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Speaker 1: one of the jurors referred to the defendant using a

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Speaker 1: racial slur, joining us as Bloomberg New Supreme Court reporter

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Speaker 1: Greg's store. Greg. Did the juror's comments come out during

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Speaker 1: the trial, No, journe They didn't. They didn't come out

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Speaker 1: till about seven years after the trial when the defendants.

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Speaker 1: Mr Sharp's lawyers were doing some additional investigating, and they

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Speaker 1: went and they talked to the juror and he made

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Speaker 1: those comments, and then they persuaded him to sign an

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Speaker 1: affidavit to that effect. So the justices seven to three

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Speaker 1: at least decided that this was plaus for another review

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Speaker 1: by a federal court. Yes, so so the federal appeals court.

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Speaker 1: So he he had tried, convicted, sentenced to death, um

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Speaker 1: had gone through several several layers of appeals so called

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Speaker 1: habeas process, and he was basically trying to and is

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Speaker 1: still trying to essentially reopen his conviction based on this

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Speaker 1: new evidence, and the eleven Circuit Court of Appeals said, um, no,

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Speaker 1: you don't have enough here to to reopen it. And

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Speaker 1: the Supreme Court essentially said, you are a little too

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Speaker 1: quick to do that. Um. At a minimum, Mr Thorpe

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Speaker 1: has shown that there was some prejudice to his trial,

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Speaker 1: that the that the sturs comments did probably did affect

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Speaker 1: how he voted in the case. And now go back

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Speaker 1: and look at some of the state's other arguments for

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Speaker 1: for keeping the verdict intact. So what would the defendant

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Speaker 1: have to show, because, as you wrote, Georgia still has

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Speaker 1: other arguments for not reopening the case. Yeah. So this essentially,

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Speaker 1: and a lot of this was was containing a dissent

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Speaker 1: by Justice Arrence Thomas along with justusice Is Corsa and Alito. Um.

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Speaker 1: They pointed out essentially that that as I said, this

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Speaker 1: is a conviction that has been finalized, and it's a

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Speaker 1: very high bar that that courts expected this send it

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Speaker 1: to me to reopen something. UM. And in this case,

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Speaker 1: among other things. Uh, Mr Thorpe has got to have

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Speaker 1: to show that there was some good reason why he

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Speaker 1: didn't uh provide this evidence at an earlier stage in

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Speaker 1: the process that Thomas defense defense excuse me essentially says, um, Uh,

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Speaker 1: there's no way he's gonna be able to clear that bar.

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Speaker 1: There's there's ample evidence that he did not have good

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Speaker 1: reason to wait so long before bringing this out. So

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Speaker 1: greg The Jealstices didn't take on any new cases today,

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Speaker 1: but there are a few interesting cases that they turned away.

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Speaker 1: One involving a Mississippi law that lets businesses and government

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Speaker 1: workers refuse on religious grounds to provide services to gay

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Speaker 1: and transgender people. Tell us about that case, Yeah, so

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Speaker 1: so this is uh. A lot of people are familiar

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Speaker 1: with the Colorado case of Supreme Court has where Colorado

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Speaker 1: UH said that a baker had to sell wedding cakes

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Speaker 1: the same sex couple if he was going to sell

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Speaker 1: them to other couples. Um. This is almost like the

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Speaker 1: flip side of that where Mississippi, in this debate between

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Speaker 1: religious rights on one side and uh equal rights on

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Speaker 1: the other side for gain lesbian people, Mississippi decided we're

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Speaker 1: going to be on the side of religious rights, and

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Speaker 1: we're gonna give uh, individuals, businesses, government employees a very

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Speaker 1: broad right to say I have a religious objection to

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Speaker 1: same sex marriage or to sex out of wedlock, um,

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Speaker 1: or to have a very strong religious view that a

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Speaker 1: person's gender is immutable and therefore, uh, you know, I

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Speaker 1: don't want to provide services to say, transgender people, or

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Speaker 1: or or gain lesbian people. And uh. The lower court

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Speaker 1: set in this case that the people who are challenging

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Speaker 1: Mississippi's law hadn't yet hadn't shown that they were going

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Speaker 1: to be injured by had so they throughout the case.

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Speaker 1: It's possible we'll get another legal challenge at a later

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Speaker 1: point where we have a very specific situation where somebody

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Speaker 1: says I was harmed. I'm a gay person, I was

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Speaker 1: harmed because of this law. Yeah, that makes a little

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Speaker 1: more sense, because I was surprised because critics say the

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Speaker 1: law let's government clerks refused to issue same sex marriage licenses,

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Speaker 1: And that was certainly settled when the court legalized same

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Speaker 1: sex marriage. So there's still there's still a point where

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Speaker 1: this may come back to the court. It may well

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Speaker 1: you could see a case where if that if that happens,

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Speaker 1: and a couple says I was treated, we were treated

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Speaker 1: in a discriminatory manner, and in violation of the Supreme

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Speaker 1: Court's decision that legalized gay marriage. You could see them

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Speaker 1: UM pressing a new legal challenge and that might incorporate

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Speaker 1: the Mississippi law. There was some good news for plaintiffs

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Speaker 1: in Florida smoker lawsuits. Yes, so UM. A number of

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Speaker 1: years ago, if you were called, there was a big

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Speaker 1: class action case in Florida against smokers called Angle, and

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Speaker 1: in that case, the jury found essentially found that cigarettes

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Speaker 1: are really really dangerous. And since then an individual trials,

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Speaker 1: UM plaintiffs have been able to use that verdict and

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Speaker 1: Angle as sort of a starting point. And this this

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Speaker 1: was an appeal by UM Philip Morris and R. J.

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Speaker 1: Reynolds in one of those individual cases saying, hey, we

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Speaker 1: have a constitutional right for to expect that this plaintiffs

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Speaker 1: show that our products actually caused her UM to get

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Speaker 1: get sick, and UM the Federal appeals Court in this

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Speaker 1: case said no, Actually, the Angle jury decided that question.

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Speaker 1: That was a class action and we all knew that

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Speaker 1: was going to apply very broadly. So there is no

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Speaker 1: constitutional problem today the Supreme Court said we're not going

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Speaker 1: to hear arguments on the tobacco company appeal. So Greg,

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Speaker 1: about a minute here. The Supreme Court is going to

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Speaker 1: just decide about more cases as we go on, And

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Speaker 1: is the case involving Amazon may come up. Yes, so

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Speaker 1: Amazon is technically involved in it. But this is the

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Speaker 1: decision from twenty five years ago that said that states

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Speaker 1: cannot impose sales taxes on on Internet retailers mail order

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Speaker 1: companies unless they have a physical presence in their state.

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Speaker 1: They can't require those companies to collect those sales taxes.

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Speaker 1: The Supreme Court could well revisit that case. That would

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Speaker 1: be a big deal on the world of internet commerce

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Speaker 1: and could open up billions of dollars of new revenue

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Speaker 1: to states and local governments. So we'll be watching for

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Speaker 1: that on Friday when they consider their cases again. That's right, Yeah,

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Speaker 1: we could. We could well get a list of new

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Speaker 1: cases on Friday. All right, Thanks so much, as always,

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Speaker 1: Gregg for being here. That's Greg Store, Bloomberg News Supreme

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Speaker 1: Court reporter. Thanks for listening to the Bloomberg Law podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot Com, slash podcasts. I'm June Brasso.

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Speaker 1: This is Bloomberg. I think the leading to the end

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Speaker 1: in the Cotta