Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Will this institution survive the stench that this creates in
Speaker 2: the public perception that the Constitution and its reading are
Speaker 2: just political acts. I don't see how it is possible.
Speaker 3: Justice Sonia Sotomayor is one of the justices who've expressed
Speaker 3: concern about the legitimacy of the Supreme Court. The Court
Speaker 3: has faced a string of ethics scandals and controversies over
Speaker 3: the past year, and Justice Clarence Thomas is in the
Speaker 3: ethics spotlight again with revelations from a pro public a
Speaker 3: report that he and his wife accepted lavish trips around
Speaker 3: the world, including private yachts and jets and luxury accommodations
Speaker 3: for more than two decades, trips worth hundreds of thousands
Speaker 3: of dollars funded by Republican billionaire donor Harlan Crowe, trips
Speaker 3: which Thomas never reported, And now an even more damaging
Speaker 3: revelation involving money flowing from Crow to Thomas for the
Speaker 3: sale of three Georgia properties in twenty fourteen for one
Speaker 3: hundred and thirty four thousand dollars, which Thomas also failed
Speaker 3: to disclose. Will Thomas's description of a loss of trust
Speaker 3: on the Court after the leak draft of the Dobbs
Speaker 3: decision apply to him now.
Speaker 1: And look where we are where now? That trust or
Speaker 1: that belief is gone forever. And when you lose that trust,
Speaker 1: especially in the institution that I'm in, it changes the
Speaker 1: institution fundamentally. You begin to look over your shoulder. It's
Speaker 1: like kind of an infidelity that you can explain it,
Speaker 1: but you can't undo it.
Speaker 3: My guest is David Super, a professor at Georgetown Law
Speaker 3: School and an expert in constitutional law. Let's discuss the
Speaker 3: trips first. What was your initial reaction when you heard
Speaker 3: about these opulent trips that Thomas failed to report.
Speaker 4: I was shocked. I disagree with Justice Thomas on a
Speaker 4: number of issues, strongly agree with him on some others.
Speaker 4: But I thought that he took the Court seriously enough
Speaker 4: that he would not subject it to this sort of embarrassment.
Speaker 3: All the justices must file annual financial disclosures. What are
Speaker 3: the rules for them about reporting gifts?
Speaker 4: The rules are relatively unclear, and there have been many
Speaker 4: people who've asked the Court to clarify the rules or
Speaker 4: to tighten the rules. And the Court has shown very
Speaker 4: little interest in that. But the basic principle is that
Speaker 4: their disclosures are those to show potential interests or conflicts
Speaker 4: that they could have that can allow members of the
Speaker 4: public to be confident that they're not sitting on cases
Speaker 4: where they might be improperly influenced. The standard for judges,
Speaker 4: and the standard the Court has upheld with respect to
Speaker 4: other judges, is that they should avoid not just impropriety,
Speaker 4: but the appearance of impropriety. And part of the point
Speaker 4: of the annual disclosures is to avoid the appearance of
Speaker 4: impropriety by letting everybody know what a justice is receiving.
Speaker 3: Thomas has disclosed gifts and trips before. The Los Angeles
Speaker 3: Times report in two thousand and four that in previous
Speaker 3: years Thomas had disclosed a trip paid for by Crowe,
Speaker 3: as well as several gifts. There was a twenty fifteen
Speaker 3: gift from crow of a bronze bust of abolitionist Frederick Douglass,
Speaker 3: valued at more than six thousand dollars, and in the
Speaker 3: year he took that night a vacation to Indonesia that
Speaker 3: might have wrecked up about half a million dollars. He
Speaker 3: did disclose five trips that were paid for by someone else,
Speaker 3: a series of teaching and speaking engagements at US colleges
Speaker 3: and law schools. Is there a reason why he might
Speaker 3: have excluded those trips paid for by Crow?
Speaker 4: The reason that he's given is that the Crow trips
Speaker 4: were personal and the speaking engagements were professional. That really
Speaker 4: doesn't stand even the most cursory examination, because we benefit
Speaker 4: from both our personal lives and our professional lives, and
Speaker 4: we have interests that come from our personal lives. And
Speaker 4: judges recuse themselves for either personal or professional reasons. They
Speaker 4: recuse themselves because they own stock in the company. They
Speaker 4: recuse themselves because they have family connected with the company.
Speaker 4: It's very common, though, the no that these being personal
Speaker 4: rather than professional doesn't bear much scrutiny.
Speaker 3: If Thomas were a regular judge and not a justice,
Speaker 3: would that sort of loophole, i'll call it of the
Speaker 3: exemption for social and personal hospitality. Would that loophole still apply?
Speaker 4: Hospitality means having someone over for dinner. When it's something
Speaker 4: in this scope, it's very hard to call that hospitality
Speaker 4: in many state court systems. If he were a regular judge,
Speaker 4: and in some even if he was a state Supreme
Speaker 4: Court justice. This would lead to complaints to a judicial
Speaker 4: tenure commission and the possible termination of the justice from
Speaker 4: that position. Were he a regular district or circuit court
Speaker 4: federal judge, it's certainly possible that one could imagine Congress
Speaker 4: beginning impeachment proceedings because of this sort of thing. It's
Speaker 4: not going to happen because he's a Supreme Court justice.
Speaker 3: Now, is the real estate transaction with this Republican mega
Speaker 3: donor different from the trips paid for by him?
Speaker 4: It certainly is. The argument about the trips was that
Speaker 4: it was personal hospitality, very extravagant personal hospitality. But that
Speaker 4: was the argument. A real estate transaction isn't that. And
Speaker 4: it's well known that if you want to pass money
Speaker 4: to somebody without being noticed, that one way to do
Speaker 4: it is to enter into a very unprofitable transaction with them.
Speaker 4: And that's the decision that's been raised here.
Speaker 3: And what's the penalty for failing to disclose this transaction.
Speaker 4: The penalty would be impeachment and removal from office. The
Speaker 4: informal penalty would be a severe loss of credibility.
Speaker 3: Some have called for his impeachment. I mean, why should
Speaker 3: a Supreme Court justice be exempt from the rules that
Speaker 3: other judge are subjected to.
Speaker 4: They shouldn't. They should be subject to much higher rules
Speaker 4: because there's no appeal from a Supreme Court decision. The
Speaker 4: standards to the Court should be much much higher, commensurate
Speaker 4: with their greater power. And indeed, former Associate Justice Aide
Speaker 4: Fortis was forced off of the Supreme Court for doing
Speaker 4: arguably a lot less than Justice Thomas did. And when
Speaker 4: Justice Fortis was forced off the Court, the entire court
Speaker 4: and Washington political establishment insisted that he go. Liberals who
Speaker 4: agreed within conservatives who did not. Everyone agreed that taking
Speaker 4: substantial money from, in that case, a friend of his,
Speaker 4: but a friend who also had interest in legal matters,
Speaker 4: was inappropriate. The standards clearly have changed, where everyone agreed
Speaker 4: that Justice fort Is needed to step down, and only
Speaker 4: some of his political opponents are saying that about Justice Thomas.
Speaker 3: There are arguments that none of this affected Justice Thomas's
Speaker 3: votes because he's extremely conservative.
Speaker 4: Anyway, That's true that he has always been conservative, but many,
Speaker 4: maybe most justices change their approach over time. Some like
Speaker 4: Justice Black, Justice White, become more conservative. Others like Justice Stevens,
Speaker 4: Justice Black than Justice suitor become more liberal. The fact
Speaker 4: that Justice Thomas had these very extensive financial relationships with
Speaker 4: an ideological conservative made it much less likely that he
Speaker 4: would have his views of all the way other justices did.
Speaker 4: We'll never know whether he would have been more moderate
Speaker 4: if he hadn't had this relationship with mister Crow.
Speaker 3: Democratic senators on the Judiciary Committee have called on the
Speaker 3: Chief Justice to investigate this. First of all, do you
Speaker 3: think he'll even do that? And second I would or
Speaker 3: what the point of it is? When the leak investigation
Speaker 3: ended in either not finding out who leaked the draft
Speaker 3: of the DABS decision or not telling us who leaked
Speaker 3: the draft, the.
Speaker 4: Call for anyone other than the House Judiciary Committey to
Speaker 4: investigate is absurd because other than the House Judiciary Committee
Speaker 4: has any authority over this. As you say, the Chief
Speaker 4: Justice has limited capacity to investigate and even more limited
Speaker 4: interest in embarrassing the court. The Chief Justice, more than
Speaker 4: any other justice, has spoken fervently about the importance of
Speaker 4: maintaining the Court's public image, and it's hard to see
Speaker 4: how an investigation of this kind would support that. But
Speaker 4: even if he found things that were deeply disturbing, there's
Speaker 4: nothing that the Chief Justice has the authority to do.
Speaker 4: The other eight justices have no authority to exclude one
Speaker 4: of their own from the court or to deny them
Speaker 4: the ability to vote on cases. So the Chief Justice
Speaker 4: perhaps could investigate more gently than outsiders, but as you say,
Speaker 4: it's not clear that he would, and it's not clear
Speaker 4: that he would disclose the result, And whatever he found,
Speaker 4: he has very little authority to do anything about it.
Speaker 3: The lawmakers also asked Roberts to take the lead in
Speaker 3: adopting a code of conduct that would, for the first time,
Speaker 3: subject the justices to the types of standards that are
Speaker 3: now applied to other federal judges. Roberts in the past
Speaker 3: has not embraced that idea. Neither have the justices. Might
Speaker 3: this move them?
Speaker 4: I think it might because the Court is being so
Speaker 4: severely embarrassed by this and wouldn't deal with the problems
Speaker 4: with Justice Thomas, but it would give them something to
Speaker 4: say back to the concerns about how corrupt this certainly looks.
Speaker 4: There've been a number of incidents of this kind over
Speaker 4: the last number of years, but this is by far
Speaker 4: the worst, and I think this could well drive the
Speaker 4: Justice to want to do something. My suspicion is that
Speaker 4: if they did an act to new code of conduct,
Speaker 4: it would have plenty of loopholes in it, but that
Speaker 4: there would at least be the appearance of typening things up.
Speaker 3: Thanks so much for being on the show, Bes, Professor
Speaker 3: David super of Georgetown Law School. Coming up next, The
Speaker 3: Manhattan DA sues Congressman Jim Jordan and the Judiciary Committee
Speaker 3: you're listening to Bloomberg. Senators have also vowed to consider
Speaker 3: legislation to resolve this issue. If the Supreme Court doesn't
Speaker 3: act on its own. That doesn't seem likely because they'd
Speaker 3: need at least nine Senate Republicans and the House is
Speaker 3: controlled by Republicans. But even if it succeeds, the Chief
Speaker 3: has suggested that Congress might not have the constitutional power
Speaker 3: to impose ethics rules on the justices. Do you think
Speaker 3: that is the case or not.
Speaker 4: If five Supreme Court justices say it's unconstitutional, then for
Speaker 4: practical purposes it's unconstitutional. I would find that a bizarre holding. However,
Speaker 4: because Congress has imposed numerous ethics requirements on the executive branch,
Speaker 4: it cannot pass a law saying that the president must
Speaker 4: resign or loses office if they don't do X or Y,
Speaker 4: but they can and have imposed various disclosure requirements on presidents.
Speaker 4: The Presidential Documents Act that's been in the news quite
Speaker 4: a bit lately is a limitation on how the President
Speaker 4: conducts him self designed to lead to transparency. And I
Speaker 4: would have trouble seeing how Congress would be barred from
Speaker 4: imposing similar standards on justices. Now it's a justice chose
Speaker 4: to disregard those standards, the only remedy would be impeachment
Speaker 4: and removal. But Congress clearly could put standards like that
Speaker 4: out there.
Speaker 3: You refer to this, but the Supreme Court has had
Speaker 3: one problem after the other, one ethical issue after the other,
Speaker 3: several involving Justice Thomas. Do you think that this will
Speaker 3: lead to less public confidence in the Court than even now?
Speaker 4: I think the combination of substantive rulings that are upsetting
Speaker 4: to a large fraction of the public and a sense
Speaker 4: that the Court's ethics are in bad shape is quite lethal.
Speaker 4: I think either one of those by itself might not
Speaker 4: be a problem, But the Court has made several radical
Speaker 4: decisions lately. There's indications it has several more in store
Speaker 4: for us later this year, and when you combine that
Speaker 4: with a sense that the Court is receiving large sums
Speaker 4: from private parties, that justice are ruling on cases in
Speaker 4: which their family members are highly interested, that justices are
Speaker 4: crafting their opinions through the news media with leak, that
Speaker 4: is certainly going to persuade the public that these decisions
Speaker 4: are not reasoned attempts to get at the correct answer,
Speaker 4: but rather the response of interest group, politics, and ideology.
Speaker 4: One thought I have I sort of alluded to earlier
Speaker 4: is that I would really love to hear people who
Speaker 4: are defending Justice Thomas explain how this is different than
Speaker 4: Justice Fortis. It's actually much worse than Justice Fortis. And
Speaker 4: I would like them either to say that Justice Fortis
Speaker 4: was improperly forced off the court or explain why removing
Speaker 4: Justice Fortas was appropriate and Justice Thomas should stay.
Speaker 3: Thanks so much for being on the show. It's always
Speaker 3: a pleasure to have you. That's Professor David super of
Speaker 3: Georgetown Law School. Attorney Stephen Donziger is an environmental activist
Speaker 3: who took on Chevron and ended up disbarred and imprisoned
Speaker 3: for contempt of court. It's the conviction for contempt of
Speaker 3: Court that ended up before the Supreme Court. New York
Speaker 3: Federal Judge Lewis Kaplan charged Donziger with contempt in twenty
Speaker 3: nineteen after he refused to turn over his electronic devices
Speaker 3: for Chevron's forensic experts to review. When the U. S.
Speaker 3: Attorney of Manhattant declined to prosecute Donziger, the judge appointed
Speaker 3: a private attorney to prosecute him, ending in a six
Speaker 3: month sentence for Donziger. The Supreme Court refused to hear
Speaker 3: Donziger's appeal, and Justice Neil Gorsich wrote a blistering dissent,
Speaker 3: joined by Justice Brett Kavanaugh. Gorsech wrote, in this country,
Speaker 3: judges have no more power to initiate a prosecution of
Speaker 3: those who come before them than prosecutors have to sit
Speaker 3: in judgment of those they charge. Joining me is Professor
Speaker 3: Harold Krant of the Chicago Kent College of Law, hell
Speaker 3: tell us about Donziger in his case, this case.
Speaker 5: Is an incredible story of environmental activism likely gone bad.
Speaker 5: The environmental activist Stephen Donziger represented indigenous groups who protested
Speaker 5: against Chevron the oil companies despoiling of the earth in
Speaker 5: letting effluence go wild. In Ecuador, and there was wrangling
Speaker 5: about where this lawsuit would take place, and Chevron sought
Speaker 5: to have the trial be decided in Ecuador. It got
Speaker 5: its wish, and Donziger was able to get eight billion
Speaker 5: dollar verdict on half of his clients. Chevron then turned
Speaker 5: around and said that the eight billion dollar verdict was
Speaker 5: produced by fraud and convinced a New York court that
Speaker 5: that in fact was the case. This then series of
Speaker 5: events followed that finding a fraud because then Chevron tried
Speaker 5: to find whether Donziger hidden some of them that it
Speaker 5: had been paid pursuing to the judgment, and in looking
Speaker 5: at his bank statements, looking at his emails, and Donziger
Speaker 5: then refused to turn over all of his private information
Speaker 5: to the New York court. That's what starts this case,
Speaker 5: because then the question is did Donziger in effect commit
Speaker 5: a contempt on the court by refusing to abide by
Speaker 5: its turnover order to give them all the personal documents?
Speaker 5: And the court in New York asked the Justice Department
Speaker 5: to bring a case to prosecute Donziger for failure to
Speaker 5: abide by the order, and the Justice Department considered it
Speaker 5: and decided it was not a good use of its
Speaker 5: resources and so declined to prosecute Donziger for violating the
Speaker 5: court order. Thereupon, the judge decided to appoint the prosecutor
Speaker 5: to champion the event and prosecute Donziger for violating the
Speaker 5: court's order, and that gave rise to the decision of
Speaker 5: the Second Circuit, which in a two to one vote
Speaker 5: upheld the court's decision to appoint a special private prosecutor
Speaker 5: to determine whether Donziger had violated the court order. And
Speaker 5: the Second Circuit held that the district Court's decision to
Speaker 5: impose a six month sentence and a fine was entirely
Speaker 5: appropriate over a vigorous descent, and that led to the curpetition,
Speaker 5: which was recently rejected by the Supreme Court over the
Speaker 5: descents of both Justice Gorsuch and Justice Kavanaugh.
Speaker 3: That was an extraordinary thing for a judge to do.
Speaker 3: That doesn't often happen.
Speaker 5: So the theory is that a court must have the
Speaker 5: authority to vindicate its own power by punishing those who
Speaker 5: have tried to interfere with this process, and that those
Speaker 5: are called sort of contempt orders in court. So if
Speaker 5: someone screams and yells or insults the judge that the
Speaker 5: judge has the power to issue a contempt and to
Speaker 5: prosecute it if it happened before him or her. In addition,
Speaker 5: the Supreme Court did decide case a number of years
Speaker 5: ago in which a court appointed a special prosecutor to
Speaker 5: prosecute not a contempt flowing from an in court conduct,
Speaker 5: but a contempt flowing from a violation of a court's order.
Speaker 5: This is rare. Rule forty two allows a court to
Speaker 5: appoint a special prosecutor in an extraordinary case. And so,
Speaker 5: although this case is not on all fours with that,
Speaker 5: this case does involve how to apply rule forty two
Speaker 5: and ask whether Rule forty two is constitutional for a
Speaker 5: variety of reasons.
Speaker 3: So Justice Neil Gorsitch wrote the Descent. He is joined
Speaker 3: by Justice Kavanaugh. He says, this prosecution raises grave constitutional questions.
Speaker 3: Quote the Constitution gives courts the power to serve as
Speaker 3: a neutral adjudicator in a criminal case, not the power
Speaker 3: to prosecute crimes. Tell us about his descent.
Speaker 5: So, Justice course, it really raises two fundamental challenges to
Speaker 5: what happened here in New York with respect to the
Speaker 5: Donziger prosecution. One is a formal argument, and the other
Speaker 5: is a functional argument. The functional argument, I think will
Speaker 5: make the most powerful because it says a judge is
Speaker 5: an independent and neutral. Here the judge appointed a prosecutor
Speaker 5: after the Justice Department the executive branch refused to appoint
Speaker 5: a prosecutor. So one of the protections for an individual
Speaker 5: is the fact that a politically accountable prosecutor will make
Speaker 5: a determination of whether to pursue a prosecution. And in
Speaker 5: this case that didn't happen because the independent, politically accountable
Speaker 5: the executive branch decided not to prosecutor, that it wasn't
Speaker 5: worth the resources to do so. So was the interested
Speaker 5: court that appointed the prosecutor, sort of deviating from the
Speaker 5: usual judicial robes to become a prosecutor himself. So that
Speaker 5: was one level in terms of the functional separation of
Speaker 5: powers problem. Those were the sort of i'll call the
Speaker 5: functional separation of powers issues that Justice Courtshi's mentioned, But
Speaker 5: there's a formal one as well. Under the appointment's clause
Speaker 5: and Article two of the Constitution, the Constitution says that
Speaker 5: a inferior officer may be appointed by the courts of law,
Speaker 5: or by the President, or by a head of Department
Speaker 5: when Congress so decides. In this case, Congress only indirectly
Speaker 5: decided upon appointment of a special prosecutor who's considered an
Speaker 5: inferior officer, because Congress, through the Rules Enabling Act, allowed
Speaker 5: the Supreme Court to decide on what rules to adopt,
Speaker 5: and this appointment provision was only housed in a rule
Speaker 5: that the Supreme Court articulated, not one that was provided
Speaker 5: by Congress. So therefore, on its face, it appears that
Speaker 5: this is not the type of appointment that is consistent
Speaker 5: with Article two of the Constitution, and the courts in
Speaker 5: the past have held that those kinds of special prosecutors,
Speaker 5: as in the Independent Council Act, are acting like inferior
Speaker 5: officers within the meaning of the Constitution, and so this
Speaker 5: special Prosecutor, like the Independent Council, should be so characterized
Speaker 5: and therefore could only be appointed by if Congresso determined
Speaker 5: again by the President of the Heads of the Department
Speaker 5: or the Courts of Law, so that would be the
Speaker 5: formal separation of powers. Objection that there was appointments Clause
Speaker 5: violation in this case is.
Speaker 3: Concern about the potential that rogue judges will initiate prosecutions
Speaker 3: where the executive branch wouldn't or is his concern more
Speaker 3: that it's a violation of separation of powers.
Speaker 5: I think they're connected. That separation of powers is intended
Speaker 5: to protect liberty, and it seemed to fall apart here
Speaker 5: because this individual, Stephen Donziger, was not given the benefit
Speaker 5: of sort of an independent decision of whether to prosecute.
Speaker 5: And I think Justice Gorsus was right to raise these concerns.
Speaker 5: And most people think that if there is an exception here,
Speaker 5: that judges do need to have the ability to punish
Speaker 5: contempts in their presence. And again, if someone stands up
Speaker 5: and starts yelling at the judge or starts attacking somebody
Speaker 5: else in the courtroom, that the judge simply cannot continue
Speaker 5: with his or her case with that kind of obstruction.
Speaker 5: Has to have the ability to punish for contempt within
Speaker 5: the presence of the judge, But for violating a court order,
Speaker 5: that just seems like a context for any other kind
Speaker 5: of crime that should be prosecuted by the independent executive branch.
Speaker 5: So I think that the issue here is that when
Speaker 5: a special prosecutor is appointed to look into whether or
Speaker 5: not a individual violated a court order, that is simply
Speaker 5: not a case where there should be a special prosecutor.
Speaker 5: It should be determined by the Department of Justice itself.
Speaker 3: So what surprising is, so you had these two justices dissent,
Speaker 3: you need four in order to take a case. Doesn't
Speaker 3: this seem like an issue that the liberal justices would
Speaker 3: be on board with.
Speaker 5: It is interesting that there were not two other justices
Speaker 5: to agree with, particularly given the fact that obviously controversial,
Speaker 5: but Stephen donzon Or, the defendant in this case, is
Speaker 5: considered a environmental liberal activist and might have garnered some
Speaker 5: sympathy from some of the liberal justices itself. But it
Speaker 5: also has to do with judicial power, and it may
Speaker 5: well be that other justices are not as eager to
Speaker 5: whittle away judicial power as Justices Kavanaugh and Courses said
Speaker 5: they were interested in doing, because taking away the ability
Speaker 5: to appoint a special prosecutor does undermine some of the
Speaker 5: authority that judges not often but occasionally have wielded in
Speaker 5: the past.
Speaker 3: Thanks Hal, That's Professor Harrold Krant of Chicago Kent College
Speaker 3: of Law. And that's it for this edition of the
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