1
00:00:03,120 --> 00:00:08,320
Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.

2
00:00:09,160 --> 00:00:16,680
Speaker 2: Will this institution survive the stench that this creates in

3
00:00:16,720 --> 00:00:24,920
Speaker 2: the public perception that the Constitution and its reading are

4
00:00:25,040 --> 00:00:29,960
Speaker 2: just political acts. I don't see how it is possible.

5
00:00:30,440 --> 00:00:34,360
Speaker 3: Justice Sonia Sotomayor is one of the justices who've expressed

6
00:00:34,440 --> 00:00:38,000
Speaker 3: concern about the legitimacy of the Supreme Court. The Court

7
00:00:38,040 --> 00:00:41,680
Speaker 3: has faced a string of ethics scandals and controversies over

8
00:00:41,720 --> 00:00:45,239
Speaker 3: the past year, and Justice Clarence Thomas is in the

9
00:00:45,280 --> 00:00:49,560
Speaker 3: ethics spotlight again with revelations from a pro public a

10
00:00:49,680 --> 00:00:53,120
Speaker 3: report that he and his wife accepted lavish trips around

11
00:00:53,200 --> 00:00:57,800
Speaker 3: the world, including private yachts and jets and luxury accommodations

12
00:00:58,040 --> 00:01:01,840
Speaker 3: for more than two decades, trips worth hundreds of thousands

13
00:01:01,840 --> 00:01:06,360
Speaker 3: of dollars funded by Republican billionaire donor Harlan Crowe, trips

14
00:01:06,360 --> 00:01:10,640
Speaker 3: which Thomas never reported, And now an even more damaging

15
00:01:10,720 --> 00:01:14,880
Speaker 3: revelation involving money flowing from Crow to Thomas for the

16
00:01:14,920 --> 00:01:18,240
Speaker 3: sale of three Georgia properties in twenty fourteen for one

17
00:01:18,319 --> 00:01:22,120
Speaker 3: hundred and thirty four thousand dollars, which Thomas also failed

18
00:01:22,160 --> 00:01:26,320
Speaker 3: to disclose. Will Thomas's description of a loss of trust

19
00:01:26,360 --> 00:01:29,120
Speaker 3: on the Court after the leak draft of the Dobbs

20
00:01:29,160 --> 00:01:31,800
Speaker 3: decision apply to him now.

21
00:01:32,640 --> 00:01:36,160
Speaker 1: And look where we are where now? That trust or

22
00:01:36,200 --> 00:01:41,600
Speaker 1: that belief is gone forever. And when you lose that trust,

23
00:01:42,400 --> 00:01:47,319
Speaker 1: especially in the institution that I'm in, it changes the

24
00:01:47,360 --> 00:01:51,760
Speaker 1: institution fundamentally. You begin to look over your shoulder. It's

25
00:01:51,840 --> 00:01:56,160
Speaker 1: like kind of an infidelity that you can explain it,

26
00:01:56,240 --> 00:01:57,360
Speaker 1: but you can't undo it.

27
00:01:57,840 --> 00:02:01,080
Speaker 3: My guest is David Super, a professor at Georgetown Law

28
00:02:01,120 --> 00:02:05,000
Speaker 3: School and an expert in constitutional law. Let's discuss the

29
00:02:05,000 --> 00:02:08,440
Speaker 3: trips first. What was your initial reaction when you heard

30
00:02:08,480 --> 00:02:12,800
Speaker 3: about these opulent trips that Thomas failed to report.

31
00:02:13,520 --> 00:02:18,000
Speaker 4: I was shocked. I disagree with Justice Thomas on a

32
00:02:18,080 --> 00:02:21,079
Speaker 4: number of issues, strongly agree with him on some others.

33
00:02:21,360 --> 00:02:26,280
Speaker 4: But I thought that he took the Court seriously enough

34
00:02:26,320 --> 00:02:30,120
Speaker 4: that he would not subject it to this sort of embarrassment.

35
00:02:30,639 --> 00:02:35,480
Speaker 3: All the justices must file annual financial disclosures. What are

36
00:02:35,520 --> 00:02:38,800
Speaker 3: the rules for them about reporting gifts?

37
00:02:39,480 --> 00:02:48,200
Speaker 4: The rules are relatively unclear, and there have been many

38
00:02:48,240 --> 00:02:51,320
Speaker 4: people who've asked the Court to clarify the rules or

39
00:02:51,360 --> 00:02:54,120
Speaker 4: to tighten the rules. And the Court has shown very

40
00:02:54,120 --> 00:02:58,240
Speaker 4: little interest in that. But the basic principle is that

41
00:02:58,280 --> 00:03:04,639
Speaker 4: their disclosures are those to show potential interests or conflicts

42
00:03:04,680 --> 00:03:07,640
Speaker 4: that they could have that can allow members of the

43
00:03:07,680 --> 00:03:10,800
Speaker 4: public to be confident that they're not sitting on cases

44
00:03:11,000 --> 00:03:15,200
Speaker 4: where they might be improperly influenced. The standard for judges,

45
00:03:15,600 --> 00:03:18,880
Speaker 4: and the standard the Court has upheld with respect to

46
00:03:18,919 --> 00:03:23,440
Speaker 4: other judges, is that they should avoid not just impropriety,

47
00:03:23,480 --> 00:03:27,720
Speaker 4: but the appearance of impropriety. And part of the point

48
00:03:27,840 --> 00:03:32,200
Speaker 4: of the annual disclosures is to avoid the appearance of

49
00:03:32,240 --> 00:03:36,840
Speaker 4: impropriety by letting everybody know what a justice is receiving.

50
00:03:37,560 --> 00:03:41,680
Speaker 3: Thomas has disclosed gifts and trips before. The Los Angeles

51
00:03:41,760 --> 00:03:45,119
Speaker 3: Times report in two thousand and four that in previous

52
00:03:45,240 --> 00:03:48,800
Speaker 3: years Thomas had disclosed a trip paid for by Crowe,

53
00:03:49,000 --> 00:03:51,840
Speaker 3: as well as several gifts. There was a twenty fifteen

54
00:03:51,880 --> 00:03:56,080
Speaker 3: gift from crow of a bronze bust of abolitionist Frederick Douglass,

55
00:03:56,160 --> 00:03:58,760
Speaker 3: valued at more than six thousand dollars, and in the

56
00:03:58,880 --> 00:04:02,040
Speaker 3: year he took that night a vacation to Indonesia that

57
00:04:02,200 --> 00:04:05,600
Speaker 3: might have wrecked up about half a million dollars. He

58
00:04:05,680 --> 00:04:09,040
Speaker 3: did disclose five trips that were paid for by someone else,

59
00:04:09,080 --> 00:04:14,120
Speaker 3: a series of teaching and speaking engagements at US colleges

60
00:04:14,600 --> 00:04:18,159
Speaker 3: and law schools. Is there a reason why he might

61
00:04:18,240 --> 00:04:22,279
Speaker 3: have excluded those trips paid for by Crow?

62
00:04:22,880 --> 00:04:27,039
Speaker 4: The reason that he's given is that the Crow trips

63
00:04:27,080 --> 00:04:32,279
Speaker 4: were personal and the speaking engagements were professional. That really

64
00:04:32,960 --> 00:04:39,640
Speaker 4: doesn't stand even the most cursory examination, because we benefit

65
00:04:39,839 --> 00:04:43,800
Speaker 4: from both our personal lives and our professional lives, and

66
00:04:43,839 --> 00:04:46,279
Speaker 4: we have interests that come from our personal lives. And

67
00:04:46,400 --> 00:04:50,920
Speaker 4: judges recuse themselves for either personal or professional reasons. They

68
00:04:50,960 --> 00:04:54,280
Speaker 4: recuse themselves because they own stock in the company. They

69
00:04:54,320 --> 00:04:57,600
Speaker 4: recuse themselves because they have family connected with the company.

70
00:04:57,600 --> 00:05:01,599
Speaker 4: It's very common, though, the no that these being personal

71
00:05:01,800 --> 00:05:05,280
Speaker 4: rather than professional doesn't bear much scrutiny.

72
00:05:05,880 --> 00:05:09,480
Speaker 3: If Thomas were a regular judge and not a justice,

73
00:05:09,920 --> 00:05:13,840
Speaker 3: would that sort of loophole, i'll call it of the

74
00:05:14,080 --> 00:05:20,400
Speaker 3: exemption for social and personal hospitality. Would that loophole still apply?

75
00:05:22,400 --> 00:05:27,280
Speaker 4: Hospitality means having someone over for dinner. When it's something

76
00:05:27,960 --> 00:05:32,359
Speaker 4: in this scope, it's very hard to call that hospitality

77
00:05:32,920 --> 00:05:36,680
Speaker 4: in many state court systems. If he were a regular judge,

78
00:05:36,680 --> 00:05:39,359
Speaker 4: and in some even if he was a state Supreme

79
00:05:39,400 --> 00:05:43,960
Speaker 4: Court justice. This would lead to complaints to a judicial

80
00:05:44,000 --> 00:05:48,520
Speaker 4: tenure commission and the possible termination of the justice from

81
00:05:48,600 --> 00:05:52,719
Speaker 4: that position. Were he a regular district or circuit court

82
00:05:52,800 --> 00:05:57,200
Speaker 4: federal judge, it's certainly possible that one could imagine Congress

83
00:05:57,240 --> 00:06:00,640
Speaker 4: beginning impeachment proceedings because of this sort of thing. It's

84
00:06:00,720 --> 00:06:03,640
Speaker 4: not going to happen because he's a Supreme Court justice.

85
00:06:03,920 --> 00:06:07,920
Speaker 3: Now, is the real estate transaction with this Republican mega

86
00:06:07,960 --> 00:06:11,520
Speaker 3: donor different from the trips paid for by him?

87
00:06:11,880 --> 00:06:15,479
Speaker 4: It certainly is. The argument about the trips was that

88
00:06:15,520 --> 00:06:20,039
Speaker 4: it was personal hospitality, very extravagant personal hospitality. But that

89
00:06:20,240 --> 00:06:24,360
Speaker 4: was the argument. A real estate transaction isn't that. And

90
00:06:24,640 --> 00:06:29,360
Speaker 4: it's well known that if you want to pass money

91
00:06:29,360 --> 00:06:32,400
Speaker 4: to somebody without being noticed, that one way to do

92
00:06:32,480 --> 00:06:36,800
Speaker 4: it is to enter into a very unprofitable transaction with them.

93
00:06:36,839 --> 00:06:38,800
Speaker 4: And that's the decision that's been raised here.

94
00:06:39,080 --> 00:06:42,440
Speaker 3: And what's the penalty for failing to disclose this transaction.

95
00:06:43,120 --> 00:06:47,800
Speaker 4: The penalty would be impeachment and removal from office. The

96
00:06:47,839 --> 00:06:52,080
Speaker 4: informal penalty would be a severe loss of credibility.

97
00:06:52,279 --> 00:06:54,960
Speaker 3: Some have called for his impeachment. I mean, why should

98
00:06:55,000 --> 00:06:59,120
Speaker 3: a Supreme Court justice be exempt from the rules that

99
00:06:59,279 --> 00:07:01,120
Speaker 3: other judge are subjected to.

100
00:07:01,520 --> 00:07:04,839
Speaker 4: They shouldn't. They should be subject to much higher rules

101
00:07:04,920 --> 00:07:09,120
Speaker 4: because there's no appeal from a Supreme Court decision. The

102
00:07:09,160 --> 00:07:12,320
Speaker 4: standards to the Court should be much much higher, commensurate

103
00:07:12,400 --> 00:07:16,520
Speaker 4: with their greater power. And indeed, former Associate Justice Aide

104
00:07:16,520 --> 00:07:20,280
Speaker 4: Fortis was forced off of the Supreme Court for doing

105
00:07:20,680 --> 00:07:24,000
Speaker 4: arguably a lot less than Justice Thomas did. And when

106
00:07:24,520 --> 00:07:28,200
Speaker 4: Justice Fortis was forced off the Court, the entire court

107
00:07:28,440 --> 00:07:33,960
Speaker 4: and Washington political establishment insisted that he go. Liberals who

108
00:07:34,040 --> 00:07:38,680
Speaker 4: agreed within conservatives who did not. Everyone agreed that taking

109
00:07:38,960 --> 00:07:42,720
Speaker 4: substantial money from, in that case, a friend of his,

110
00:07:43,120 --> 00:07:46,920
Speaker 4: but a friend who also had interest in legal matters,

111
00:07:47,400 --> 00:07:52,239
Speaker 4: was inappropriate. The standards clearly have changed, where everyone agreed

112
00:07:52,280 --> 00:07:56,360
Speaker 4: that Justice fort Is needed to step down, and only

113
00:07:56,800 --> 00:08:02,120
Speaker 4: some of his political opponents are saying that about Justice Thomas.

114
00:08:02,640 --> 00:08:07,240
Speaker 3: There are arguments that none of this affected Justice Thomas's

115
00:08:07,320 --> 00:08:09,560
Speaker 3: votes because he's extremely conservative.

116
00:08:09,600 --> 00:08:14,320
Speaker 4: Anyway, That's true that he has always been conservative, but many,

117
00:08:14,400 --> 00:08:19,040
Speaker 4: maybe most justices change their approach over time. Some like

118
00:08:19,320 --> 00:08:24,440
Speaker 4: Justice Black, Justice White, become more conservative. Others like Justice Stevens,

119
00:08:24,520 --> 00:08:28,600
Speaker 4: Justice Black than Justice suitor become more liberal. The fact

120
00:08:28,880 --> 00:08:34,880
Speaker 4: that Justice Thomas had these very extensive financial relationships with

121
00:08:34,960 --> 00:08:39,120
Speaker 4: an ideological conservative made it much less likely that he

122
00:08:39,240 --> 00:08:42,760
Speaker 4: would have his views of all the way other justices did.

123
00:08:42,880 --> 00:08:46,280
Speaker 4: We'll never know whether he would have been more moderate

124
00:08:46,760 --> 00:08:49,360
Speaker 4: if he hadn't had this relationship with mister Crow.

125
00:08:49,679 --> 00:08:54,040
Speaker 3: Democratic senators on the Judiciary Committee have called on the

126
00:08:54,120 --> 00:08:57,720
Speaker 3: Chief Justice to investigate this. First of all, do you

127
00:08:57,720 --> 00:09:00,160
Speaker 3: think he'll even do that? And second I would or

128
00:09:00,200 --> 00:09:03,360
Speaker 3: what the point of it is? When the leak investigation

129
00:09:03,800 --> 00:09:08,000
Speaker 3: ended in either not finding out who leaked the draft

130
00:09:08,240 --> 00:09:11,960
Speaker 3: of the DABS decision or not telling us who leaked

131
00:09:11,960 --> 00:09:13,199
Speaker 3: the draft, the.

132
00:09:13,800 --> 00:09:17,360
Speaker 4: Call for anyone other than the House Judiciary Committey to

133
00:09:17,440 --> 00:09:22,199
Speaker 4: investigate is absurd because other than the House Judiciary Committee

134
00:09:22,320 --> 00:09:26,360
Speaker 4: has any authority over this. As you say, the Chief

135
00:09:26,520 --> 00:09:31,160
Speaker 4: Justice has limited capacity to investigate and even more limited

136
00:09:31,240 --> 00:09:34,679
Speaker 4: interest in embarrassing the court. The Chief Justice, more than

137
00:09:34,720 --> 00:09:38,760
Speaker 4: any other justice, has spoken fervently about the importance of

138
00:09:38,920 --> 00:09:42,040
Speaker 4: maintaining the Court's public image, and it's hard to see

139
00:09:42,040 --> 00:09:45,520
Speaker 4: how an investigation of this kind would support that. But

140
00:09:45,640 --> 00:09:49,280
Speaker 4: even if he found things that were deeply disturbing, there's

141
00:09:49,320 --> 00:09:52,720
Speaker 4: nothing that the Chief Justice has the authority to do.

142
00:09:53,120 --> 00:09:57,400
Speaker 4: The other eight justices have no authority to exclude one

143
00:09:57,440 --> 00:10:01,080
Speaker 4: of their own from the court or to deny them

144
00:10:01,120 --> 00:10:04,959
Speaker 4: the ability to vote on cases. So the Chief Justice

145
00:10:05,120 --> 00:10:09,440
Speaker 4: perhaps could investigate more gently than outsiders, but as you say,

146
00:10:09,480 --> 00:10:11,600
Speaker 4: it's not clear that he would, and it's not clear

147
00:10:11,640 --> 00:10:14,560
Speaker 4: that he would disclose the result, And whatever he found,

148
00:10:14,600 --> 00:10:17,079
Speaker 4: he has very little authority to do anything about it.

149
00:10:17,800 --> 00:10:20,880
Speaker 3: The lawmakers also asked Roberts to take the lead in

150
00:10:20,960 --> 00:10:25,160
Speaker 3: adopting a code of conduct that would, for the first time,

151
00:10:25,600 --> 00:10:29,040
Speaker 3: subject the justices to the types of standards that are

152
00:10:29,080 --> 00:10:33,440
Speaker 3: now applied to other federal judges. Roberts in the past

153
00:10:33,480 --> 00:10:37,720
Speaker 3: has not embraced that idea. Neither have the justices. Might

154
00:10:37,800 --> 00:10:38,960
Speaker 3: this move them?

155
00:10:39,440 --> 00:10:42,840
Speaker 4: I think it might because the Court is being so

156
00:10:43,080 --> 00:10:48,720
Speaker 4: severely embarrassed by this and wouldn't deal with the problems

157
00:10:48,760 --> 00:10:52,200
Speaker 4: with Justice Thomas, but it would give them something to

158
00:10:52,240 --> 00:10:58,480
Speaker 4: say back to the concerns about how corrupt this certainly looks.

159
00:10:58,559 --> 00:11:02,200
Speaker 4: There've been a number of incidents of this kind over

160
00:11:02,240 --> 00:11:05,360
Speaker 4: the last number of years, but this is by far

161
00:11:05,480 --> 00:11:09,760
Speaker 4: the worst, and I think this could well drive the

162
00:11:09,880 --> 00:11:12,800
Speaker 4: Justice to want to do something. My suspicion is that

163
00:11:12,840 --> 00:11:15,160
Speaker 4: if they did an act to new code of conduct,

164
00:11:15,360 --> 00:11:17,680
Speaker 4: it would have plenty of loopholes in it, but that

165
00:11:17,720 --> 00:11:20,400
Speaker 4: there would at least be the appearance of typening things up.

166
00:11:20,720 --> 00:11:23,280
Speaker 3: Thanks so much for being on the show, Bes, Professor

167
00:11:23,360 --> 00:11:27,120
Speaker 3: David super of Georgetown Law School. Coming up next, The

168
00:11:27,160 --> 00:11:31,640
Speaker 3: Manhattan DA sues Congressman Jim Jordan and the Judiciary Committee

169
00:11:31,760 --> 00:11:37,080
Speaker 3: you're listening to Bloomberg. Senators have also vowed to consider

170
00:11:37,200 --> 00:11:41,360
Speaker 3: legislation to resolve this issue. If the Supreme Court doesn't

171
00:11:41,360 --> 00:11:44,480
Speaker 3: act on its own. That doesn't seem likely because they'd

172
00:11:44,520 --> 00:11:48,960
Speaker 3: need at least nine Senate Republicans and the House is

173
00:11:49,000 --> 00:11:53,199
Speaker 3: controlled by Republicans. But even if it succeeds, the Chief

174
00:11:53,200 --> 00:11:57,360
Speaker 3: has suggested that Congress might not have the constitutional power

175
00:11:57,880 --> 00:12:01,800
Speaker 3: to impose ethics rules on the justices. Do you think

176
00:12:01,920 --> 00:12:03,400
Speaker 3: that is the case or not.

177
00:12:04,200 --> 00:12:09,000
Speaker 4: If five Supreme Court justices say it's unconstitutional, then for

178
00:12:09,080 --> 00:12:14,880
Speaker 4: practical purposes it's unconstitutional. I would find that a bizarre holding. However,

179
00:12:15,400 --> 00:12:22,280
Speaker 4: because Congress has imposed numerous ethics requirements on the executive branch,

180
00:12:22,920 --> 00:12:26,800
Speaker 4: it cannot pass a law saying that the president must

181
00:12:26,840 --> 00:12:31,160
Speaker 4: resign or loses office if they don't do X or Y,

182
00:12:31,200 --> 00:12:37,119
Speaker 4: but they can and have imposed various disclosure requirements on presidents.

183
00:12:37,120 --> 00:12:41,240
Speaker 4: The Presidential Documents Act that's been in the news quite

184
00:12:41,280 --> 00:12:45,959
Speaker 4: a bit lately is a limitation on how the President

185
00:12:46,240 --> 00:12:51,080
Speaker 4: conducts him self designed to lead to transparency. And I

186
00:12:51,120 --> 00:12:54,839
Speaker 4: would have trouble seeing how Congress would be barred from

187
00:12:54,960 --> 00:12:59,360
Speaker 4: imposing similar standards on justices. Now it's a justice chose

188
00:12:59,440 --> 00:13:03,320
Speaker 4: to disregard those standards, the only remedy would be impeachment

189
00:13:03,360 --> 00:13:07,040
Speaker 4: and removal. But Congress clearly could put standards like that

190
00:13:07,200 --> 00:13:07,720
Speaker 4: out there.

191
00:13:07,920 --> 00:13:11,240
Speaker 3: You refer to this, but the Supreme Court has had

192
00:13:11,440 --> 00:13:15,600
Speaker 3: one problem after the other, one ethical issue after the other,

193
00:13:15,720 --> 00:13:19,320
Speaker 3: several involving Justice Thomas. Do you think that this will

194
00:13:19,559 --> 00:13:24,920
Speaker 3: lead to less public confidence in the Court than even now?

195
00:13:25,640 --> 00:13:31,599
Speaker 4: I think the combination of substantive rulings that are upsetting

196
00:13:31,679 --> 00:13:35,480
Speaker 4: to a large fraction of the public and a sense

197
00:13:36,280 --> 00:13:41,720
Speaker 4: that the Court's ethics are in bad shape is quite lethal.

198
00:13:41,800 --> 00:13:45,200
Speaker 4: I think either one of those by itself might not

199
00:13:45,360 --> 00:13:48,640
Speaker 4: be a problem, But the Court has made several radical

200
00:13:48,679 --> 00:13:53,040
Speaker 4: decisions lately. There's indications it has several more in store

201
00:13:53,160 --> 00:13:57,439
Speaker 4: for us later this year, and when you combine that

202
00:13:57,520 --> 00:14:02,680
Speaker 4: with a sense that the Court is receiving large sums

203
00:14:02,720 --> 00:14:07,200
Speaker 4: from private parties, that justice are ruling on cases in

204
00:14:07,240 --> 00:14:12,200
Speaker 4: which their family members are highly interested, that justices are

205
00:14:12,840 --> 00:14:17,600
Speaker 4: crafting their opinions through the news media with leak, that

206
00:14:18,360 --> 00:14:22,400
Speaker 4: is certainly going to persuade the public that these decisions

207
00:14:22,440 --> 00:14:26,560
Speaker 4: are not reasoned attempts to get at the correct answer,

208
00:14:27,120 --> 00:14:30,760
Speaker 4: but rather the response of interest group, politics, and ideology.

209
00:14:31,040 --> 00:14:33,280
Speaker 4: One thought I have I sort of alluded to earlier

210
00:14:33,480 --> 00:14:37,000
Speaker 4: is that I would really love to hear people who

211
00:14:37,040 --> 00:14:41,760
Speaker 4: are defending Justice Thomas explain how this is different than

212
00:14:42,200 --> 00:14:45,920
Speaker 4: Justice Fortis. It's actually much worse than Justice Fortis. And

213
00:14:45,920 --> 00:14:48,200
Speaker 4: I would like them either to say that Justice Fortis

214
00:14:48,400 --> 00:14:53,240
Speaker 4: was improperly forced off the court or explain why removing

215
00:14:53,360 --> 00:14:56,400
Speaker 4: Justice Fortas was appropriate and Justice Thomas should stay.

216
00:14:56,960 --> 00:14:58,760
Speaker 3: Thanks so much for being on the show. It's always

217
00:14:58,800 --> 00:15:01,800
Speaker 3: a pleasure to have you. That's Professor David super of

218
00:15:01,960 --> 00:15:08,480
Speaker 3: Georgetown Law School. Attorney Stephen Donziger is an environmental activist

219
00:15:08,520 --> 00:15:12,520
Speaker 3: who took on Chevron and ended up disbarred and imprisoned

220
00:15:12,560 --> 00:15:15,840
Speaker 3: for contempt of court. It's the conviction for contempt of

221
00:15:15,960 --> 00:15:19,320
Speaker 3: Court that ended up before the Supreme Court. New York

222
00:15:19,360 --> 00:15:23,320
Speaker 3: Federal Judge Lewis Kaplan charged Donziger with contempt in twenty

223
00:15:23,400 --> 00:15:27,440
Speaker 3: nineteen after he refused to turn over his electronic devices

224
00:15:27,440 --> 00:15:30,880
Speaker 3: for Chevron's forensic experts to review. When the U. S.

225
00:15:30,920 --> 00:15:35,360
Speaker 3: Attorney of Manhattant declined to prosecute Donziger, the judge appointed

226
00:15:35,360 --> 00:15:38,880
Speaker 3: a private attorney to prosecute him, ending in a six

227
00:15:38,960 --> 00:15:42,800
Speaker 3: month sentence for Donziger. The Supreme Court refused to hear

228
00:15:42,920 --> 00:15:47,080
Speaker 3: Donziger's appeal, and Justice Neil Gorsich wrote a blistering dissent,

229
00:15:47,280 --> 00:15:51,400
Speaker 3: joined by Justice Brett Kavanaugh. Gorsech wrote, in this country,

230
00:15:51,520 --> 00:15:54,720
Speaker 3: judges have no more power to initiate a prosecution of

231
00:15:54,760 --> 00:15:58,000
Speaker 3: those who come before them than prosecutors have to sit

232
00:15:58,080 --> 00:16:01,320
Speaker 3: in judgment of those they charge. Joining me is Professor

233
00:16:01,320 --> 00:16:04,440
Speaker 3: Harold Krant of the Chicago Kent College of Law, hell

234
00:16:04,440 --> 00:16:07,400
Speaker 3: tell us about Donziger in his case, this case.

235
00:16:07,560 --> 00:16:12,160
Speaker 5: Is an incredible story of environmental activism likely gone bad.

236
00:16:12,640 --> 00:16:17,640
Speaker 5: The environmental activist Stephen Donziger represented indigenous groups who protested

237
00:16:17,680 --> 00:16:21,800
Speaker 5: against Chevron the oil companies despoiling of the earth in

238
00:16:22,320 --> 00:16:27,040
Speaker 5: letting effluence go wild. In Ecuador, and there was wrangling

239
00:16:27,080 --> 00:16:31,640
Speaker 5: about where this lawsuit would take place, and Chevron sought

240
00:16:31,680 --> 00:16:34,720
Speaker 5: to have the trial be decided in Ecuador. It got

241
00:16:34,720 --> 00:16:38,440
Speaker 5: its wish, and Donziger was able to get eight billion

242
00:16:38,520 --> 00:16:41,800
Speaker 5: dollar verdict on half of his clients. Chevron then turned

243
00:16:41,800 --> 00:16:44,720
Speaker 5: around and said that the eight billion dollar verdict was

244
00:16:44,960 --> 00:16:49,120
Speaker 5: produced by fraud and convinced a New York court that

245
00:16:49,120 --> 00:16:51,960
Speaker 5: that in fact was the case. This then series of

246
00:16:52,000 --> 00:16:56,560
Speaker 5: events followed that finding a fraud because then Chevron tried

247
00:16:56,600 --> 00:17:00,560
Speaker 5: to find whether Donziger hidden some of them that it

248
00:17:00,600 --> 00:17:04,400
Speaker 5: had been paid pursuing to the judgment, and in looking

249
00:17:04,480 --> 00:17:07,800
Speaker 5: at his bank statements, looking at his emails, and Donziger

250
00:17:07,800 --> 00:17:11,640
Speaker 5: then refused to turn over all of his private information

251
00:17:11,760 --> 00:17:14,679
Speaker 5: to the New York court. That's what starts this case,

252
00:17:14,960 --> 00:17:18,800
Speaker 5: because then the question is did Donziger in effect commit

253
00:17:18,880 --> 00:17:22,320
Speaker 5: a contempt on the court by refusing to abide by

254
00:17:22,440 --> 00:17:26,520
Speaker 5: its turnover order to give them all the personal documents?

255
00:17:26,960 --> 00:17:30,280
Speaker 5: And the court in New York asked the Justice Department

256
00:17:30,680 --> 00:17:34,399
Speaker 5: to bring a case to prosecute Donziger for failure to

257
00:17:34,440 --> 00:17:37,440
Speaker 5: abide by the order, and the Justice Department considered it

258
00:17:37,480 --> 00:17:39,240
Speaker 5: and decided it was not a good use of its

259
00:17:39,280 --> 00:17:42,919
Speaker 5: resources and so declined to prosecute Donziger for violating the

260
00:17:42,960 --> 00:17:48,040
Speaker 5: court order. Thereupon, the judge decided to appoint the prosecutor

261
00:17:48,160 --> 00:17:52,480
Speaker 5: to champion the event and prosecute Donziger for violating the

262
00:17:52,520 --> 00:17:55,879
Speaker 5: court's order, and that gave rise to the decision of

263
00:17:55,920 --> 00:17:58,240
Speaker 5: the Second Circuit, which in a two to one vote

264
00:17:58,400 --> 00:18:02,960
Speaker 5: upheld the court's decision to appoint a special private prosecutor

265
00:18:03,040 --> 00:18:07,240
Speaker 5: to determine whether Donziger had violated the court order. And

266
00:18:07,440 --> 00:18:11,000
Speaker 5: the Second Circuit held that the district Court's decision to

267
00:18:11,480 --> 00:18:14,520
Speaker 5: impose a six month sentence and a fine was entirely

268
00:18:14,760 --> 00:18:19,399
Speaker 5: appropriate over a vigorous descent, and that led to the curpetition,

269
00:18:19,720 --> 00:18:23,480
Speaker 5: which was recently rejected by the Supreme Court over the

270
00:18:23,520 --> 00:18:28,560
Speaker 5: descents of both Justice Gorsuch and Justice Kavanaugh.

271
00:18:28,840 --> 00:18:31,320
Speaker 3: That was an extraordinary thing for a judge to do.

272
00:18:31,800 --> 00:18:33,119
Speaker 3: That doesn't often happen.

273
00:18:33,600 --> 00:18:35,600
Speaker 5: So the theory is that a court must have the

274
00:18:35,640 --> 00:18:40,400
Speaker 5: authority to vindicate its own power by punishing those who

275
00:18:40,400 --> 00:18:43,320
Speaker 5: have tried to interfere with this process, and that those

276
00:18:43,320 --> 00:18:47,199
Speaker 5: are called sort of contempt orders in court. So if

277
00:18:47,240 --> 00:18:51,080
Speaker 5: someone screams and yells or insults the judge that the

278
00:18:51,160 --> 00:18:54,679
Speaker 5: judge has the power to issue a contempt and to

279
00:18:54,760 --> 00:18:58,200
Speaker 5: prosecute it if it happened before him or her. In addition,

280
00:18:58,440 --> 00:19:00,840
Speaker 5: the Supreme Court did decide case a number of years

281
00:19:00,880 --> 00:19:04,600
Speaker 5: ago in which a court appointed a special prosecutor to

282
00:19:05,280 --> 00:19:09,400
Speaker 5: prosecute not a contempt flowing from an in court conduct,

283
00:19:09,400 --> 00:19:13,359
Speaker 5: but a contempt flowing from a violation of a court's order.

284
00:19:13,800 --> 00:19:17,800
Speaker 5: This is rare. Rule forty two allows a court to

285
00:19:17,800 --> 00:19:22,240
Speaker 5: appoint a special prosecutor in an extraordinary case. And so,

286
00:19:23,080 --> 00:19:24,960
Speaker 5: although this case is not on all fours with that,

287
00:19:25,440 --> 00:19:29,200
Speaker 5: this case does involve how to apply rule forty two

288
00:19:29,520 --> 00:19:33,280
Speaker 5: and ask whether Rule forty two is constitutional for a

289
00:19:33,359 --> 00:19:34,320
Speaker 5: variety of reasons.

290
00:19:35,240 --> 00:19:38,800
Speaker 3: So Justice Neil Gorsitch wrote the Descent. He is joined

291
00:19:38,800 --> 00:19:44,879
Speaker 3: by Justice Kavanaugh. He says, this prosecution raises grave constitutional questions.

292
00:19:45,440 --> 00:19:48,359
Speaker 3: Quote the Constitution gives courts the power to serve as

293
00:19:48,400 --> 00:19:52,040
Speaker 3: a neutral adjudicator in a criminal case, not the power

294
00:19:52,040 --> 00:19:55,800
Speaker 3: to prosecute crimes. Tell us about his descent.

295
00:19:56,359 --> 00:20:00,159
Speaker 5: So, Justice course, it really raises two fundamental challenges to

296
00:20:00,160 --> 00:20:02,560
Speaker 5: what happened here in New York with respect to the

297
00:20:02,640 --> 00:20:06,520
Speaker 5: Donziger prosecution. One is a formal argument, and the other

298
00:20:06,840 --> 00:20:09,680
Speaker 5: is a functional argument. The functional argument, I think will

299
00:20:09,680 --> 00:20:13,240
Speaker 5: make the most powerful because it says a judge is

300
00:20:13,280 --> 00:20:17,320
Speaker 5: an independent and neutral. Here the judge appointed a prosecutor

301
00:20:17,560 --> 00:20:22,280
Speaker 5: after the Justice Department the executive branch refused to appoint

302
00:20:22,280 --> 00:20:25,800
Speaker 5: a prosecutor. So one of the protections for an individual

303
00:20:26,680 --> 00:20:30,879
Speaker 5: is the fact that a politically accountable prosecutor will make

304
00:20:30,880 --> 00:20:35,239
Speaker 5: a determination of whether to pursue a prosecution. And in

305
00:20:35,280 --> 00:20:39,200
Speaker 5: this case that didn't happen because the independent, politically accountable

306
00:20:39,359 --> 00:20:42,320
Speaker 5: the executive branch decided not to prosecutor, that it wasn't

307
00:20:42,359 --> 00:20:45,879
Speaker 5: worth the resources to do so. So was the interested

308
00:20:46,280 --> 00:20:50,040
Speaker 5: court that appointed the prosecutor, sort of deviating from the

309
00:20:50,119 --> 00:20:54,879
Speaker 5: usual judicial robes to become a prosecutor himself. So that

310
00:20:55,080 --> 00:20:58,600
Speaker 5: was one level in terms of the functional separation of

311
00:20:58,640 --> 00:21:01,919
Speaker 5: powers problem. Those were the sort of i'll call the

312
00:21:02,000 --> 00:21:07,119
Speaker 5: functional separation of powers issues that Justice Courtshi's mentioned, But

313
00:21:07,160 --> 00:21:10,280
Speaker 5: there's a formal one as well. Under the appointment's clause

314
00:21:10,359 --> 00:21:14,320
Speaker 5: and Article two of the Constitution, the Constitution says that

315
00:21:14,440 --> 00:21:18,080
Speaker 5: a inferior officer may be appointed by the courts of law,

316
00:21:18,560 --> 00:21:22,200
Speaker 5: or by the President, or by a head of Department

317
00:21:22,560 --> 00:21:27,200
Speaker 5: when Congress so decides. In this case, Congress only indirectly

318
00:21:27,520 --> 00:21:30,960
Speaker 5: decided upon appointment of a special prosecutor who's considered an

319
00:21:30,960 --> 00:21:35,560
Speaker 5: inferior officer, because Congress, through the Rules Enabling Act, allowed

320
00:21:35,560 --> 00:21:39,040
Speaker 5: the Supreme Court to decide on what rules to adopt,

321
00:21:39,359 --> 00:21:42,920
Speaker 5: and this appointment provision was only housed in a rule

322
00:21:43,240 --> 00:21:47,000
Speaker 5: that the Supreme Court articulated, not one that was provided

323
00:21:47,040 --> 00:21:50,359
Speaker 5: by Congress. So therefore, on its face, it appears that

324
00:21:50,440 --> 00:21:53,880
Speaker 5: this is not the type of appointment that is consistent

325
00:21:53,920 --> 00:21:58,679
Speaker 5: with Article two of the Constitution, and the courts in

326
00:21:58,720 --> 00:22:01,439
Speaker 5: the past have held that those kinds of special prosecutors,

327
00:22:01,560 --> 00:22:04,840
Speaker 5: as in the Independent Council Act, are acting like inferior

328
00:22:04,880 --> 00:22:09,159
Speaker 5: officers within the meaning of the Constitution, and so this

329
00:22:09,200 --> 00:22:13,399
Speaker 5: special Prosecutor, like the Independent Council, should be so characterized

330
00:22:13,440 --> 00:22:17,320
Speaker 5: and therefore could only be appointed by if Congresso determined

331
00:22:17,560 --> 00:22:20,080
Speaker 5: again by the President of the Heads of the Department

332
00:22:20,280 --> 00:22:22,160
Speaker 5: or the Courts of Law, so that would be the

333
00:22:22,320 --> 00:22:25,480
Speaker 5: formal separation of powers. Objection that there was appointments Clause

334
00:22:25,600 --> 00:22:28,400
Speaker 5: violation in this case is.

335
00:22:29,160 --> 00:22:35,080
Speaker 3: Concern about the potential that rogue judges will initiate prosecutions

336
00:22:35,119 --> 00:22:38,919
Speaker 3: where the executive branch wouldn't or is his concern more

337
00:22:39,359 --> 00:22:41,800
Speaker 3: that it's a violation of separation of powers.

338
00:22:43,240 --> 00:22:46,280
Speaker 5: I think they're connected. That separation of powers is intended

339
00:22:46,320 --> 00:22:49,440
Speaker 5: to protect liberty, and it seemed to fall apart here

340
00:22:49,520 --> 00:22:53,480
Speaker 5: because this individual, Stephen Donziger, was not given the benefit

341
00:22:53,560 --> 00:22:56,880
Speaker 5: of sort of an independent decision of whether to prosecute.

342
00:22:57,040 --> 00:23:00,760
Speaker 5: And I think Justice Gorsus was right to raise these concerns.

343
00:23:01,160 --> 00:23:04,440
Speaker 5: And most people think that if there is an exception here,

344
00:23:05,000 --> 00:23:07,960
Speaker 5: that judges do need to have the ability to punish

345
00:23:08,240 --> 00:23:11,040
Speaker 5: contempts in their presence. And again, if someone stands up

346
00:23:11,040 --> 00:23:13,800
Speaker 5: and starts yelling at the judge or starts attacking somebody

347
00:23:13,800 --> 00:23:17,760
Speaker 5: else in the courtroom, that the judge simply cannot continue

348
00:23:18,320 --> 00:23:21,200
Speaker 5: with his or her case with that kind of obstruction.

349
00:23:21,680 --> 00:23:24,760
Speaker 5: Has to have the ability to punish for contempt within

350
00:23:24,880 --> 00:23:28,160
Speaker 5: the presence of the judge, But for violating a court order,

351
00:23:28,680 --> 00:23:32,160
Speaker 5: that just seems like a context for any other kind

352
00:23:32,200 --> 00:23:36,000
Speaker 5: of crime that should be prosecuted by the independent executive branch.

353
00:23:36,480 --> 00:23:39,720
Speaker 5: So I think that the issue here is that when

354
00:23:40,040 --> 00:23:44,639
Speaker 5: a special prosecutor is appointed to look into whether or

355
00:23:44,720 --> 00:23:48,760
Speaker 5: not a individual violated a court order, that is simply

356
00:23:48,800 --> 00:23:51,440
Speaker 5: not a case where there should be a special prosecutor.

357
00:23:51,560 --> 00:23:55,160
Speaker 5: It should be determined by the Department of Justice itself.

358
00:23:56,200 --> 00:24:00,399
Speaker 3: So what surprising is, so you had these two justices dissent,

359
00:24:00,600 --> 00:24:03,879
Speaker 3: you need four in order to take a case. Doesn't

360
00:24:03,880 --> 00:24:07,639
Speaker 3: this seem like an issue that the liberal justices would

361
00:24:07,640 --> 00:24:08,600
Speaker 3: be on board with.

362
00:24:09,320 --> 00:24:11,680
Speaker 5: It is interesting that there were not two other justices

363
00:24:12,040 --> 00:24:16,520
Speaker 5: to agree with, particularly given the fact that obviously controversial,

364
00:24:16,560 --> 00:24:19,159
Speaker 5: but Stephen donzon Or, the defendant in this case, is

365
00:24:19,200 --> 00:24:23,960
Speaker 5: considered a environmental liberal activist and might have garnered some

366
00:24:24,000 --> 00:24:26,800
Speaker 5: sympathy from some of the liberal justices itself. But it

367
00:24:26,840 --> 00:24:28,840
Speaker 5: also has to do with judicial power, and it may

368
00:24:28,880 --> 00:24:33,040
Speaker 5: well be that other justices are not as eager to

369
00:24:33,240 --> 00:24:38,240
Speaker 5: whittle away judicial power as Justices Kavanaugh and Courses said

370
00:24:38,240 --> 00:24:42,280
Speaker 5: they were interested in doing, because taking away the ability

371
00:24:42,320 --> 00:24:45,959
Speaker 5: to appoint a special prosecutor does undermine some of the

372
00:24:46,000 --> 00:24:50,399
Speaker 5: authority that judges not often but occasionally have wielded in

373
00:24:50,440 --> 00:24:50,879
Speaker 5: the past.

374
00:24:51,480 --> 00:24:54,760
Speaker 3: Thanks Hal, That's Professor Harrold Krant of Chicago Kent College

375
00:24:54,800 --> 00:24:56,800
Speaker 3: of Law. And that's it for this edition of the

376
00:24:56,840 --> 00:24:59,720
Speaker 3: Bloomberg Law Show. Remember you can always get the latest

377
00:24:59,760 --> 00:25:02,960
Speaker 3: legal news on our Bloomberg Law podcasts. You can find

378
00:25:02,960 --> 00:25:07,520
Speaker 3: them on Apple Podcasts, Spotify, and at www dot bloomberg

379
00:25:07,600 --> 00:25:11,400
Speaker 3: dot com slash podcast slash Law, and remember to tune

380
00:25:11,400 --> 00:25:14,639
Speaker 3: into The Bloomberg Law Show every weeknight at ten pm

381
00:25:14,680 --> 00:25:18,280
Speaker 3: Wall Street Time. I'm June Grosso and you're listening to

382
00:25:18,320 --> 00:25:18,840
Speaker 3: Bloomberg