WEBVTT - Clarence Thomas in Ethics Controversy 0:00:03.120 --> 0:00:08.320 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:09.160 --> 0:00:16.680 Will this institution survive the stench that this creates in 0:00:16.720 --> 0:00:24.920 the public perception that the Constitution and its reading are 0:00:25.040 --> 0:00:29.960 just political acts. I don't see how it is possible. 0:00:30.440 --> 0:00:34.360 Justice Sonia Sotomayor is one of the justices who've expressed 0:00:34.440 --> 0:00:38.000 concern about the legitimacy of the Supreme Court. The Court 0:00:38.040 --> 0:00:41.680 has faced a string of ethics scandals and controversies over 0:00:41.720 --> 0:00:45.239 the past year, and Justice Clarence Thomas is in the 0:00:45.280 --> 0:00:49.560 ethics spotlight again with revelations from a pro public a 0:00:49.680 --> 0:00:53.120 report that he and his wife accepted lavish trips around 0:00:53.200 --> 0:00:57.800 the world, including private yachts and jets and luxury accommodations 0:00:58.040 --> 0:01:01.840 for more than two decades, trips worth hundreds of thousands 0:01:01.840 --> 0:01:06.360 of dollars funded by Republican billionaire donor Harlan Crowe, trips 0:01:06.360 --> 0:01:10.640 which Thomas never reported, And now an even more damaging 0:01:10.720 --> 0:01:14.880 revelation involving money flowing from Crow to Thomas for the 0:01:14.920 --> 0:01:18.240 sale of three Georgia properties in twenty fourteen for one 0:01:18.319 --> 0:01:22.120 hundred and thirty four thousand dollars, which Thomas also failed 0:01:22.160 --> 0:01:26.320 to disclose. Will Thomas's description of a loss of trust 0:01:26.360 --> 0:01:29.120 on the Court after the leak draft of the Dobbs 0:01:29.160 --> 0:01:31.800 decision apply to him now. 0:01:32.640 --> 0:01:36.160 And look where we are where now? That trust or 0:01:36.200 --> 0:01:41.600 that belief is gone forever. And when you lose that trust, 0:01:42.400 --> 0:01:47.319 especially in the institution that I'm in, it changes the 0:01:47.360 --> 0:01:51.760 institution fundamentally. You begin to look over your shoulder. It's 0:01:51.840 --> 0:01:56.160 like kind of an infidelity that you can explain it, 0:01:56.240 --> 0:01:57.360 but you can't undo it. 0:01:57.840 --> 0:02:01.080 My guest is David Super, a professor at Georgetown Law 0:02:01.120 --> 0:02:05.000 School and an expert in constitutional law. Let's discuss the 0:02:05.000 --> 0:02:08.440 trips first. What was your initial reaction when you heard 0:02:08.480 --> 0:02:12.800 about these opulent trips that Thomas failed to report. 0:02:13.520 --> 0:02:18.000 I was shocked. I disagree with Justice Thomas on a 0:02:18.080 --> 0:02:21.079 number of issues, strongly agree with him on some others. 0:02:21.360 --> 0:02:26.280 But I thought that he took the Court seriously enough 0:02:26.320 --> 0:02:30.120 that he would not subject it to this sort of embarrassment. 0:02:30.639 --> 0:02:35.480 All the justices must file annual financial disclosures. What are 0:02:35.520 --> 0:02:38.800 the rules for them about reporting gifts? 0:02:39.480 --> 0:02:48.200 The rules are relatively unclear, and there have been many 0:02:48.240 --> 0:02:51.320 people who've asked the Court to clarify the rules or 0:02:51.360 --> 0:02:54.120 to tighten the rules. And the Court has shown very 0:02:54.120 --> 0:02:58.240 little interest in that. But the basic principle is that 0:02:58.280 --> 0:03:04.639 their disclosures are those to show potential interests or conflicts 0:03:04.680 --> 0:03:07.640 that they could have that can allow members of the 0:03:07.680 --> 0:03:10.800 public to be confident that they're not sitting on cases 0:03:11.000 --> 0:03:15.200 where they might be improperly influenced. The standard for judges, 0:03:15.600 --> 0:03:18.880 and the standard the Court has upheld with respect to 0:03:18.919 --> 0:03:23.440 other judges, is that they should avoid not just impropriety, 0:03:23.480 --> 0:03:27.720 but the appearance of impropriety. And part of the point 0:03:27.840 --> 0:03:32.200 of the annual disclosures is to avoid the appearance of 0:03:32.240 --> 0:03:36.840 impropriety by letting everybody know what a justice is receiving. 0:03:37.560 --> 0:03:41.680 Thomas has disclosed gifts and trips before. The Los Angeles 0:03:41.760 --> 0:03:45.119 Times report in two thousand and four that in previous 0:03:45.240 --> 0:03:48.800 years Thomas had disclosed a trip paid for by Crowe, 0:03:49.000 --> 0:03:51.840 as well as several gifts. There was a twenty fifteen 0:03:51.880 --> 0:03:56.080 gift from crow of a bronze bust of abolitionist Frederick Douglass, 0:03:56.160 --> 0:03:58.760 valued at more than six thousand dollars, and in the 0:03:58.880 --> 0:04:02.040 year he took that night a vacation to Indonesia that 0:04:02.200 --> 0:04:05.600 might have wrecked up about half a million dollars. He 0:04:05.680 --> 0:04:09.040 did disclose five trips that were paid for by someone else, 0:04:09.080 --> 0:04:14.120 a series of teaching and speaking engagements at US colleges 0:04:14.600 --> 0:04:18.159 and law schools. Is there a reason why he might 0:04:18.240 --> 0:04:22.279 have excluded those trips paid for by Crow? 0:04:22.880 --> 0:04:27.039 The reason that he's given is that the Crow trips 0:04:27.080 --> 0:04:32.279 were personal and the speaking engagements were professional. That really 0:04:32.960 --> 0:04:39.640 doesn't stand even the most cursory examination, because we benefit 0:04:39.839 --> 0:04:43.800 from both our personal lives and our professional lives, and 0:04:43.839 --> 0:04:46.279 we have interests that come from our personal lives. And 0:04:46.400 --> 0:04:50.920 judges recuse themselves for either personal or professional reasons. They 0:04:50.960 --> 0:04:54.280 recuse themselves because they own stock in the company. They 0:04:54.320 --> 0:04:57.600 recuse themselves because they have family connected with the company. 0:04:57.600 --> 0:05:01.599 It's very common, though, the no that these being personal 0:05:01.800 --> 0:05:05.280 rather than professional doesn't bear much scrutiny. 0:05:05.880 --> 0:05:09.480 If Thomas were a regular judge and not a justice, 0:05:09.920 --> 0:05:13.840 would that sort of loophole, i'll call it of the 0:05:14.080 --> 0:05:20.400 exemption for social and personal hospitality. Would that loophole still apply? 0:05:22.400 --> 0:05:27.280 Hospitality means having someone over for dinner. When it's something 0:05:27.960 --> 0:05:32.359 in this scope, it's very hard to call that hospitality 0:05:32.920 --> 0:05:36.680 in many state court systems. If he were a regular judge, 0:05:36.680 --> 0:05:39.359 and in some even if he was a state Supreme 0:05:39.400 --> 0:05:43.960 Court justice. This would lead to complaints to a judicial 0:05:44.000 --> 0:05:48.520 tenure commission and the possible termination of the justice from 0:05:48.600 --> 0:05:52.719 that position. Were he a regular district or circuit court 0:05:52.800 --> 0:05:57.200 federal judge, it's certainly possible that one could imagine Congress 0:05:57.240 --> 0:06:00.640 beginning impeachment proceedings because of this sort of thing. It's 0:06:00.720 --> 0:06:03.640 not going to happen because he's a Supreme Court justice. 0:06:03.920 --> 0:06:07.920 Now, is the real estate transaction with this Republican mega 0:06:07.960 --> 0:06:11.520 donor different from the trips paid for by him? 0:06:11.880 --> 0:06:15.479 It certainly is. The argument about the trips was that 0:06:15.520 --> 0:06:20.039 it was personal hospitality, very extravagant personal hospitality. But that 0:06:20.240 --> 0:06:24.360 was the argument. A real estate transaction isn't that. And 0:06:24.640 --> 0:06:29.360 it's well known that if you want to pass money 0:06:29.360 --> 0:06:32.400 to somebody without being noticed, that one way to do 0:06:32.480 --> 0:06:36.800 it is to enter into a very unprofitable transaction with them. 0:06:36.839 --> 0:06:38.800 And that's the decision that's been raised here. 0:06:39.080 --> 0:06:42.440 And what's the penalty for failing to disclose this transaction. 0:06:43.120 --> 0:06:47.800 The penalty would be impeachment and removal from office. The 0:06:47.839 --> 0:06:52.080 informal penalty would be a severe loss of credibility. 0:06:52.279 --> 0:06:54.960 Some have called for his impeachment. I mean, why should 0:06:55.000 --> 0:06:59.120 a Supreme Court justice be exempt from the rules that 0:06:59.279 --> 0:07:01.120 other judge are subjected to. 0:07:01.520 --> 0:07:04.839 They shouldn't. They should be subject to much higher rules 0:07:04.920 --> 0:07:09.120 because there's no appeal from a Supreme Court decision. The 0:07:09.160 --> 0:07:12.320 standards to the Court should be much much higher, commensurate 0:07:12.400 --> 0:07:16.520 with their greater power. And indeed, former Associate Justice Aide 0:07:16.520 --> 0:07:20.280 Fortis was forced off of the Supreme Court for doing 0:07:20.680 --> 0:07:24.000 arguably a lot less than Justice Thomas did. And when 0:07:24.520 --> 0:07:28.200 Justice Fortis was forced off the Court, the entire court 0:07:28.440 --> 0:07:33.960 and Washington political establishment insisted that he go. Liberals who 0:07:34.040 --> 0:07:38.680 agreed within conservatives who did not. Everyone agreed that taking 0:07:38.960 --> 0:07:42.720 substantial money from, in that case, a friend of his, 0:07:43.120 --> 0:07:46.920 but a friend who also had interest in legal matters, 0:07:47.400 --> 0:07:52.239 was inappropriate. The standards clearly have changed, where everyone agreed 0:07:52.280 --> 0:07:56.360 that Justice fort Is needed to step down, and only 0:07:56.800 --> 0:08:02.120 some of his political opponents are saying that about Justice Thomas. 0:08:02.640 --> 0:08:07.240 There are arguments that none of this affected Justice Thomas's 0:08:07.320 --> 0:08:09.560 votes because he's extremely conservative. 0:08:09.600 --> 0:08:14.320 Anyway, That's true that he has always been conservative, but many, 0:08:14.400 --> 0:08:19.040 maybe most justices change their approach over time. Some like 0:08:19.320 --> 0:08:24.440 Justice Black, Justice White, become more conservative. Others like Justice Stevens, 0:08:24.520 --> 0:08:28.600 Justice Black than Justice suitor become more liberal. The fact 0:08:28.880 --> 0:08:34.880 that Justice Thomas had these very extensive financial relationships with 0:08:34.960 --> 0:08:39.120 an ideological conservative made it much less likely that he 0:08:39.240 --> 0:08:42.760 would have his views of all the way other justices did. 0:08:42.880 --> 0:08:46.280 We'll never know whether he would have been more moderate 0:08:46.760 --> 0:08:49.360 if he hadn't had this relationship with mister Crow. 0:08:49.679 --> 0:08:54.040 Democratic senators on the Judiciary Committee have called on the 0:08:54.120 --> 0:08:57.720 Chief Justice to investigate this. First of all, do you 0:08:57.720 --> 0:09:00.160 think he'll even do that? And second I would or 0:09:00.200 --> 0:09:03.360 what the point of it is? When the leak investigation 0:09:03.800 --> 0:09:08.000 ended in either not finding out who leaked the draft 0:09:08.240 --> 0:09:11.960 of the DABS decision or not telling us who leaked 0:09:11.960 --> 0:09:13.199 the draft, the. 0:09:13.800 --> 0:09:17.360 Call for anyone other than the House Judiciary Committey to 0:09:17.440 --> 0:09:22.199 investigate is absurd because other than the House Judiciary Committee 0:09:22.320 --> 0:09:26.360 has any authority over this. As you say, the Chief 0:09:26.520 --> 0:09:31.160 Justice has limited capacity to investigate and even more limited 0:09:31.240 --> 0:09:34.679 interest in embarrassing the court. The Chief Justice, more than 0:09:34.720 --> 0:09:38.760 any other justice, has spoken fervently about the importance of 0:09:38.920 --> 0:09:42.040 maintaining the Court's public image, and it's hard to see 0:09:42.040 --> 0:09:45.520 how an investigation of this kind would support that. But 0:09:45.640 --> 0:09:49.280 even if he found things that were deeply disturbing, there's 0:09:49.320 --> 0:09:52.720 nothing that the Chief Justice has the authority to do. 0:09:53.120 --> 0:09:57.400 The other eight justices have no authority to exclude one 0:09:57.440 --> 0:10:01.080 of their own from the court or to deny them 0:10:01.120 --> 0:10:04.959 the ability to vote on cases. So the Chief Justice 0:10:05.120 --> 0:10:09.440 perhaps could investigate more gently than outsiders, but as you say, 0:10:09.480 --> 0:10:11.600 it's not clear that he would, and it's not clear 0:10:11.640 --> 0:10:14.560 that he would disclose the result, And whatever he found, 0:10:14.600 --> 0:10:17.079 he has very little authority to do anything about it. 0:10:17.800 --> 0:10:20.880 The lawmakers also asked Roberts to take the lead in 0:10:20.960 --> 0:10:25.160 adopting a code of conduct that would, for the first time, 0:10:25.600 --> 0:10:29.040 subject the justices to the types of standards that are 0:10:29.080 --> 0:10:33.440 now applied to other federal judges. Roberts in the past 0:10:33.480 --> 0:10:37.720 has not embraced that idea. Neither have the justices. Might 0:10:37.800 --> 0:10:38.960 this move them? 0:10:39.440 --> 0:10:42.840 I think it might because the Court is being so 0:10:43.080 --> 0:10:48.720 severely embarrassed by this and wouldn't deal with the problems 0:10:48.760 --> 0:10:52.200 with Justice Thomas, but it would give them something to 0:10:52.240 --> 0:10:58.480 say back to the concerns about how corrupt this certainly looks. 0:10:58.559 --> 0:11:02.200 There've been a number of incidents of this kind over 0:11:02.240 --> 0:11:05.360 the last number of years, but this is by far 0:11:05.480 --> 0:11:09.760 the worst, and I think this could well drive the 0:11:09.880 --> 0:11:12.800 Justice to want to do something. My suspicion is that 0:11:12.840 --> 0:11:15.160 if they did an act to new code of conduct, 0:11:15.360 --> 0:11:17.680 it would have plenty of loopholes in it, but that 0:11:17.720 --> 0:11:20.400 there would at least be the appearance of typening things up. 0:11:20.720 --> 0:11:23.280 Thanks so much for being on the show, Bes, Professor 0:11:23.360 --> 0:11:27.120 David super of Georgetown Law School. Coming up next, The 0:11:27.160 --> 0:11:31.640 Manhattan DA sues Congressman Jim Jordan and the Judiciary Committee 0:11:31.760 --> 0:11:37.080 you're listening to Bloomberg. Senators have also vowed to consider 0:11:37.200 --> 0:11:41.360 legislation to resolve this issue. If the Supreme Court doesn't 0:11:41.360 --> 0:11:44.480 act on its own. That doesn't seem likely because they'd 0:11:44.520 --> 0:11:48.960 need at least nine Senate Republicans and the House is 0:11:49.000 --> 0:11:53.199 controlled by Republicans. But even if it succeeds, the Chief 0:11:53.200 --> 0:11:57.360 has suggested that Congress might not have the constitutional power 0:11:57.880 --> 0:12:01.800 to impose ethics rules on the justices. Do you think 0:12:01.920 --> 0:12:03.400 that is the case or not. 0:12:04.200 --> 0:12:09.000 If five Supreme Court justices say it's unconstitutional, then for 0:12:09.080 --> 0:12:14.880 practical purposes it's unconstitutional. I would find that a bizarre holding. However, 0:12:15.400 --> 0:12:22.280 because Congress has imposed numerous ethics requirements on the executive branch, 0:12:22.920 --> 0:12:26.800 it cannot pass a law saying that the president must 0:12:26.840 --> 0:12:31.160 resign or loses office if they don't do X or Y, 0:12:31.200 --> 0:12:37.119 but they can and have imposed various disclosure requirements on presidents. 0:12:37.120 --> 0:12:41.240 The Presidential Documents Act that's been in the news quite 0:12:41.280 --> 0:12:45.959 a bit lately is a limitation on how the President 0:12:46.240 --> 0:12:51.080 conducts him self designed to lead to transparency. And I 0:12:51.120 --> 0:12:54.839 would have trouble seeing how Congress would be barred from 0:12:54.960 --> 0:12:59.360 imposing similar standards on justices. Now it's a justice chose 0:12:59.440 --> 0:13:03.320 to disregard those standards, the only remedy would be impeachment 0:13:03.360 --> 0:13:07.040 and removal. But Congress clearly could put standards like that 0:13:07.200 --> 0:13:07.720 out there. 0:13:07.920 --> 0:13:11.240 You refer to this, but the Supreme Court has had 0:13:11.440 --> 0:13:15.600 one problem after the other, one ethical issue after the other, 0:13:15.720 --> 0:13:19.320 several involving Justice Thomas. Do you think that this will 0:13:19.559 --> 0:13:24.920 lead to less public confidence in the Court than even now? 0:13:25.640 --> 0:13:31.599 I think the combination of substantive rulings that are upsetting 0:13:31.679 --> 0:13:35.480 to a large fraction of the public and a sense 0:13:36.280 --> 0:13:41.720 that the Court's ethics are in bad shape is quite lethal. 0:13:41.800 --> 0:13:45.200 I think either one of those by itself might not 0:13:45.360 --> 0:13:48.640 be a problem, But the Court has made several radical 0:13:48.679 --> 0:13:53.040 decisions lately. There's indications it has several more in store 0:13:53.160 --> 0:13:57.439 for us later this year, and when you combine that 0:13:57.520 --> 0:14:02.680 with a sense that the Court is receiving large sums 0:14:02.720 --> 0:14:07.200 from private parties, that justice are ruling on cases in 0:14:07.240 --> 0:14:12.200 which their family members are highly interested, that justices are 0:14:12.840 --> 0:14:17.600 crafting their opinions through the news media with leak, that 0:14:18.360 --> 0:14:22.400 is certainly going to persuade the public that these decisions 0:14:22.440 --> 0:14:26.560 are not reasoned attempts to get at the correct answer, 0:14:27.120 --> 0:14:30.760 but rather the response of interest group, politics, and ideology. 0:14:31.040 --> 0:14:33.280 One thought I have I sort of alluded to earlier 0:14:33.480 --> 0:14:37.000 is that I would really love to hear people who 0:14:37.040 --> 0:14:41.760 are defending Justice Thomas explain how this is different than 0:14:42.200 --> 0:14:45.920 Justice Fortis. It's actually much worse than Justice Fortis. And 0:14:45.920 --> 0:14:48.200 I would like them either to say that Justice Fortis 0:14:48.400 --> 0:14:53.240 was improperly forced off the court or explain why removing 0:14:53.360 --> 0:14:56.400 Justice Fortas was appropriate and Justice Thomas should stay. 0:14:56.960 --> 0:14:58.760 Thanks so much for being on the show. It's always 0:14:58.800 --> 0:15:01.800 a pleasure to have you. That's Professor David super of 0:15:01.960 --> 0:15:08.480 Georgetown Law School. Attorney Stephen Donziger is an environmental activist 0:15:08.520 --> 0:15:12.520 who took on Chevron and ended up disbarred and imprisoned 0:15:12.560 --> 0:15:15.840 for contempt of court. It's the conviction for contempt of 0:15:15.960 --> 0:15:19.320 Court that ended up before the Supreme Court. New York 0:15:19.360 --> 0:15:23.320 Federal Judge Lewis Kaplan charged Donziger with contempt in twenty 0:15:23.400 --> 0:15:27.440 nineteen after he refused to turn over his electronic devices 0:15:27.440 --> 0:15:30.880 for Chevron's forensic experts to review. When the U. S. 0:15:30.920 --> 0:15:35.360 Attorney of Manhattant declined to prosecute Donziger, the judge appointed 0:15:35.360 --> 0:15:38.880 a private attorney to prosecute him, ending in a six 0:15:38.960 --> 0:15:42.800 month sentence for Donziger. The Supreme Court refused to hear 0:15:42.920 --> 0:15:47.080 Donziger's appeal, and Justice Neil Gorsich wrote a blistering dissent, 0:15:47.280 --> 0:15:51.400 joined by Justice Brett Kavanaugh. Gorsech wrote, in this country, 0:15:51.520 --> 0:15:54.720 judges have no more power to initiate a prosecution of 0:15:54.760 --> 0:15:58.000 those who come before them than prosecutors have to sit 0:15:58.080 --> 0:16:01.320 in judgment of those they charge. Joining me is Professor 0:16:01.320 --> 0:16:04.440 Harold Krant of the Chicago Kent College of Law, hell 0:16:04.440 --> 0:16:07.400 tell us about Donziger in his case, this case. 0:16:07.560 --> 0:16:12.160 Is an incredible story of environmental activism likely gone bad. 0:16:12.640 --> 0:16:17.640 The environmental activist Stephen Donziger represented indigenous groups who protested 0:16:17.680 --> 0:16:21.800 against Chevron the oil companies despoiling of the earth in 0:16:22.320 --> 0:16:27.040 letting effluence go wild. In Ecuador, and there was wrangling 0:16:27.080 --> 0:16:31.640 about where this lawsuit would take place, and Chevron sought 0:16:31.680 --> 0:16:34.720 to have the trial be decided in Ecuador. It got 0:16:34.720 --> 0:16:38.440 its wish, and Donziger was able to get eight billion 0:16:38.520 --> 0:16:41.800 dollar verdict on half of his clients. Chevron then turned 0:16:41.800 --> 0:16:44.720 around and said that the eight billion dollar verdict was 0:16:44.960 --> 0:16:49.120 produced by fraud and convinced a New York court that 0:16:49.120 --> 0:16:51.960 that in fact was the case. This then series of 0:16:52.000 --> 0:16:56.560 events followed that finding a fraud because then Chevron tried 0:16:56.600 --> 0:17:00.560 to find whether Donziger hidden some of them that it 0:17:00.600 --> 0:17:04.400 had been paid pursuing to the judgment, and in looking 0:17:04.480 --> 0:17:07.800 at his bank statements, looking at his emails, and Donziger 0:17:07.800 --> 0:17:11.640 then refused to turn over all of his private information 0:17:11.760 --> 0:17:14.679 to the New York court. That's what starts this case, 0:17:14.960 --> 0:17:18.800 because then the question is did Donziger in effect commit 0:17:18.880 --> 0:17:22.320 a contempt on the court by refusing to abide by 0:17:22.440 --> 0:17:26.520 its turnover order to give them all the personal documents? 0:17:26.960 --> 0:17:30.280 And the court in New York asked the Justice Department 0:17:30.680 --> 0:17:34.399 to bring a case to prosecute Donziger for failure to 0:17:34.440 --> 0:17:37.440 abide by the order, and the Justice Department considered it 0:17:37.480 --> 0:17:39.240 and decided it was not a good use of its 0:17:39.280 --> 0:17:42.919 resources and so declined to prosecute Donziger for violating the 0:17:42.960 --> 0:17:48.040 court order. Thereupon, the judge decided to appoint the prosecutor 0:17:48.160 --> 0:17:52.480 to champion the event and prosecute Donziger for violating the 0:17:52.520 --> 0:17:55.879 court's order, and that gave rise to the decision of 0:17:55.920 --> 0:17:58.240 the Second Circuit, which in a two to one vote 0:17:58.400 --> 0:18:02.960 upheld the court's decision to appoint a special private prosecutor 0:18:03.040 --> 0:18:07.240 to determine whether Donziger had violated the court order. And 0:18:07.440 --> 0:18:11.000 the Second Circuit held that the district Court's decision to 0:18:11.480 --> 0:18:14.520 impose a six month sentence and a fine was entirely 0:18:14.760 --> 0:18:19.399 appropriate over a vigorous descent, and that led to the curpetition, 0:18:19.720 --> 0:18:23.480 which was recently rejected by the Supreme Court over the 0:18:23.520 --> 0:18:28.560 descents of both Justice Gorsuch and Justice Kavanaugh. 0:18:28.840 --> 0:18:31.320 That was an extraordinary thing for a judge to do. 0:18:31.800 --> 0:18:33.119 That doesn't often happen. 0:18:33.600 --> 0:18:35.600 So the theory is that a court must have the 0:18:35.640 --> 0:18:40.400 authority to vindicate its own power by punishing those who 0:18:40.400 --> 0:18:43.320 have tried to interfere with this process, and that those 0:18:43.320 --> 0:18:47.199 are called sort of contempt orders in court. So if 0:18:47.240 --> 0:18:51.080 someone screams and yells or insults the judge that the 0:18:51.160 --> 0:18:54.679 judge has the power to issue a contempt and to 0:18:54.760 --> 0:18:58.200 prosecute it if it happened before him or her. In addition, 0:18:58.440 --> 0:19:00.840 the Supreme Court did decide case a number of years 0:19:00.880 --> 0:19:04.600 ago in which a court appointed a special prosecutor to 0:19:05.280 --> 0:19:09.400 prosecute not a contempt flowing from an in court conduct, 0:19:09.400 --> 0:19:13.359 but a contempt flowing from a violation of a court's order. 0:19:13.800 --> 0:19:17.800 This is rare. Rule forty two allows a court to 0:19:17.800 --> 0:19:22.240 appoint a special prosecutor in an extraordinary case. And so, 0:19:23.080 --> 0:19:24.960 although this case is not on all fours with that, 0:19:25.440 --> 0:19:29.200 this case does involve how to apply rule forty two 0:19:29.520 --> 0:19:33.280 and ask whether Rule forty two is constitutional for a 0:19:33.359 --> 0:19:34.320 variety of reasons. 0:19:35.240 --> 0:19:38.800 So Justice Neil Gorsitch wrote the Descent. He is joined 0:19:38.800 --> 0:19:44.879 by Justice Kavanaugh. He says, this prosecution raises grave constitutional questions. 0:19:45.440 --> 0:19:48.359 Quote the Constitution gives courts the power to serve as 0:19:48.400 --> 0:19:52.040 a neutral adjudicator in a criminal case, not the power 0:19:52.040 --> 0:19:55.800 to prosecute crimes. Tell us about his descent. 0:19:56.359 --> 0:20:00.159 So, Justice course, it really raises two fundamental challenges to 0:20:00.160 --> 0:20:02.560 what happened here in New York with respect to the 0:20:02.640 --> 0:20:06.520 Donziger prosecution. One is a formal argument, and the other 0:20:06.840 --> 0:20:09.680 is a functional argument. The functional argument, I think will 0:20:09.680 --> 0:20:13.240 make the most powerful because it says a judge is 0:20:13.280 --> 0:20:17.320 an independent and neutral. Here the judge appointed a prosecutor 0:20:17.560 --> 0:20:22.280 after the Justice Department the executive branch refused to appoint 0:20:22.280 --> 0:20:25.800 a prosecutor. So one of the protections for an individual 0:20:26.680 --> 0:20:30.879 is the fact that a politically accountable prosecutor will make 0:20:30.880 --> 0:20:35.239 a determination of whether to pursue a prosecution. And in 0:20:35.280 --> 0:20:39.200 this case that didn't happen because the independent, politically accountable 0:20:39.359 --> 0:20:42.320 the executive branch decided not to prosecutor, that it wasn't 0:20:42.359 --> 0:20:45.879 worth the resources to do so. So was the interested 0:20:46.280 --> 0:20:50.040 court that appointed the prosecutor, sort of deviating from the 0:20:50.119 --> 0:20:54.879 usual judicial robes to become a prosecutor himself. So that 0:20:55.080 --> 0:20:58.600 was one level in terms of the functional separation of 0:20:58.640 --> 0:21:01.919 powers problem. Those were the sort of i'll call the 0:21:02.000 --> 0:21:07.119 functional separation of powers issues that Justice Courtshi's mentioned, But 0:21:07.160 --> 0:21:10.280 there's a formal one as well. Under the appointment's clause 0:21:10.359 --> 0:21:14.320 and Article two of the Constitution, the Constitution says that 0:21:14.440 --> 0:21:18.080 a inferior officer may be appointed by the courts of law, 0:21:18.560 --> 0:21:22.200 or by the President, or by a head of Department 0:21:22.560 --> 0:21:27.200 when Congress so decides. In this case, Congress only indirectly 0:21:27.520 --> 0:21:30.960 decided upon appointment of a special prosecutor who's considered an 0:21:30.960 --> 0:21:35.560 inferior officer, because Congress, through the Rules Enabling Act, allowed 0:21:35.560 --> 0:21:39.040 the Supreme Court to decide on what rules to adopt, 0:21:39.359 --> 0:21:42.920 and this appointment provision was only housed in a rule 0:21:43.240 --> 0:21:47.000 that the Supreme Court articulated, not one that was provided 0:21:47.040 --> 0:21:50.359 by Congress. So therefore, on its face, it appears that 0:21:50.440 --> 0:21:53.880 this is not the type of appointment that is consistent 0:21:53.920 --> 0:21:58.679 with Article two of the Constitution, and the courts in 0:21:58.720 --> 0:22:01.439 the past have held that those kinds of special prosecutors, 0:22:01.560 --> 0:22:04.840 as in the Independent Council Act, are acting like inferior 0:22:04.880 --> 0:22:09.159 officers within the meaning of the Constitution, and so this 0:22:09.200 --> 0:22:13.399 special Prosecutor, like the Independent Council, should be so characterized 0:22:13.440 --> 0:22:17.320 and therefore could only be appointed by if Congresso determined 0:22:17.560 --> 0:22:20.080 again by the President of the Heads of the Department 0:22:20.280 --> 0:22:22.160 or the Courts of Law, so that would be the 0:22:22.320 --> 0:22:25.480 formal separation of powers. Objection that there was appointments Clause 0:22:25.600 --> 0:22:28.400 violation in this case is. 0:22:29.160 --> 0:22:35.080 Concern about the potential that rogue judges will initiate prosecutions 0:22:35.119 --> 0:22:38.919 where the executive branch wouldn't or is his concern more 0:22:39.359 --> 0:22:41.800 that it's a violation of separation of powers. 0:22:43.240 --> 0:22:46.280 I think they're connected. That separation of powers is intended 0:22:46.320 --> 0:22:49.440 to protect liberty, and it seemed to fall apart here 0:22:49.520 --> 0:22:53.480 because this individual, Stephen Donziger, was not given the benefit 0:22:53.560 --> 0:22:56.880 of sort of an independent decision of whether to prosecute. 0:22:57.040 --> 0:23:00.760 And I think Justice Gorsus was right to raise these concerns. 0:23:01.160 --> 0:23:04.440 And most people think that if there is an exception here, 0:23:05.000 --> 0:23:07.960 that judges do need to have the ability to punish 0:23:08.240 --> 0:23:11.040 contempts in their presence. And again, if someone stands up 0:23:11.040 --> 0:23:13.800 and starts yelling at the judge or starts attacking somebody 0:23:13.800 --> 0:23:17.760 else in the courtroom, that the judge simply cannot continue 0:23:18.320 --> 0:23:21.200 with his or her case with that kind of obstruction. 0:23:21.680 --> 0:23:24.760 Has to have the ability to punish for contempt within 0:23:24.880 --> 0:23:28.160 the presence of the judge, But for violating a court order, 0:23:28.680 --> 0:23:32.160 that just seems like a context for any other kind 0:23:32.200 --> 0:23:36.000 of crime that should be prosecuted by the independent executive branch. 0:23:36.480 --> 0:23:39.720 So I think that the issue here is that when 0:23:40.040 --> 0:23:44.639 a special prosecutor is appointed to look into whether or 0:23:44.720 --> 0:23:48.760 not a individual violated a court order, that is simply 0:23:48.800 --> 0:23:51.440 not a case where there should be a special prosecutor. 0:23:51.560 --> 0:23:55.160 It should be determined by the Department of Justice itself. 0:23:56.200 --> 0:24:00.399 So what surprising is, so you had these two justices dissent, 0:24:00.600 --> 0:24:03.879 you need four in order to take a case. Doesn't 0:24:03.880 --> 0:24:07.639 this seem like an issue that the liberal justices would 0:24:07.640 --> 0:24:08.600 be on board with. 0:24:09.320 --> 0:24:11.680 It is interesting that there were not two other justices 0:24:12.040 --> 0:24:16.520 to agree with, particularly given the fact that obviously controversial, 0:24:16.560 --> 0:24:19.159 but Stephen donzon Or, the defendant in this case, is 0:24:19.200 --> 0:24:23.960 considered a environmental liberal activist and might have garnered some 0:24:24.000 --> 0:24:26.800 sympathy from some of the liberal justices itself. But it 0:24:26.840 --> 0:24:28.840 also has to do with judicial power, and it may 0:24:28.880 --> 0:24:33.040 well be that other justices are not as eager to 0:24:33.240 --> 0:24:38.240 whittle away judicial power as Justices Kavanaugh and Courses said 0:24:38.240 --> 0:24:42.280 they were interested in doing, because taking away the ability 0:24:42.320 --> 0:24:45.959 to appoint a special prosecutor does undermine some of the 0:24:46.000 --> 0:24:50.399 authority that judges not often but occasionally have wielded in 0:24:50.440 --> 0:24:50.879 the past. 0:24:51.480 --> 0:24:54.760 Thanks Hal, That's Professor Harrold Krant of Chicago Kent College 0:24:54.800 --> 0:24:56.800 of Law. And that's it for this edition of the 0:24:56.840 --> 0:24:59.720 Bloomberg Law Show. Remember you can always get the latest 0:24:59.760 --> 0:25:02.960 legal news on our Bloomberg Law podcasts. You can find 0:25:02.960 --> 0:25:07.520 them on Apple Podcasts, Spotify, and at www dot bloomberg 0:25:07.600 --> 0:25:11.400 dot com slash podcast slash Law, and remember to tune 0:25:11.400 --> 0:25:14.639 into The Bloomberg Law Show every weeknight at ten pm 0:25:14.680 --> 0:25:18.280 Wall Street Time. I'm June Grosso and you're listening to 0:25:18.320 --> 0:25:18.840 Bloomberg