Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. A Supreme Court
Speaker 1: justice has cleared the way for a congressional voting map
Speaker 1: in Pennsylvania that could give Democrats a boost as they
Speaker 1: try to take control of the US House in the
Speaker 1: November elections. Justice Samuel Alito left in force a Pennsylvania
Speaker 1: Supreme Court ruling requiring the Republican controlled legislature to draw
Speaker 1: new lines for approval by the Democratic governor. The Pennsylvania
Speaker 1: Supreme Court had said the old map violated the state
Speaker 1: constitution because it was too skewed toward Republicans. Joining me,
Speaker 1: as an expert on election law, Josh Douglas of the
Speaker 1: University of Kentucky Law School, Josh, Republicans really faced an
Speaker 1: uphill adeline trying to get the Supreme Court to intervene
Speaker 1: explain why. Yeah, And they did face an uphill battle,
Speaker 1: and that was because the Pennsylvania Supreme Court decision was
Speaker 1: based solely on the Pennsylvania Constitution UH and in fact
Speaker 1: and to order. The Pennsylvania Supreme Court said that it
Speaker 1: was deciding the issues solely based on Pennsylvania law and
Speaker 1: the Pennsylvania Constitution, And typically the U. S. Supreme Court
Speaker 1: has no authority or jurisdiction here issues involving solely state law.
Speaker 1: So the request for a stay went to Justice Alito,
Speaker 1: who hears emergency requests from Pennsylvania. What goes into a
Speaker 1: justice's calculations when he decides not to even refer the
Speaker 1: case to other members of the court, You know, that
Speaker 1: was a little bit surprising. After Justice Alito did ask
Speaker 1: for a sponse to the stay motion, many people thought
Speaker 1: that he would refer to at least to the full Court.
Speaker 1: I think what goes into the decision is simply whether
Speaker 1: he thinks that there would be five votes UH to
Speaker 1: issue you to stay. And if he's not even convinced
Speaker 1: to issue to stay, then I think he surmised that
Speaker 1: the other justices will be very unlikely to do so
Speaker 1: as well. How significant is this Pennsylvania Court ruling for
Speaker 1: the Democrats in the elections. I think it's very significant
Speaker 1: on a couple of levels. On the election You're going
Speaker 1: to have a new map in Pennsylvania that's going to
Speaker 1: be a lot more fair. That is to say, it's
Speaker 1: going to be a lot less hued in the Republicans favor,
Speaker 1: which is what the court found on this map. So
Speaker 1: that's important for the short term. For the long term,
Speaker 1: I think it's important because it demonstrates the power of
Speaker 1: state constitutions to do a lot of work in protecting
Speaker 1: voting rights. Uh. And so regardless of what the Supreme
Speaker 1: Court does and the other part of the gerrymandering cases,
Speaker 1: do releas have one path for people who want to
Speaker 1: oppose partisan gerrymandering by going to state courts and invokes
Speaker 1: in the state constitution. So, and the Republicans won the
Speaker 1: challenge to the map in federal court. So you think
Speaker 1: that the next thing will be more challenges to jerrymandering
Speaker 1: in state courts? I do. I mean it will partially
Speaker 1: depend on what the U. S. Supreme Court does in
Speaker 1: the Wisconsin and the Maryland cases on partisan jerrymandering that
Speaker 1: it's hearing this term, um, but assume it. Let's say
Speaker 1: that the Supreme Court rejects those challenges or at least
Speaker 1: narrows their scope. I think you could see more challenges
Speaker 1: in other states using the state constitutions as more protective
Speaker 1: of voting rights and more skeptical of extreme partisan jerry manders.
Speaker 1: Republicans still haven't given up the state Senate president and
Speaker 1: the state House speaker trying to block the Court's decision.
Speaker 1: The Pennsylvania Courts decision other ways. They file papers with
Speaker 1: the High Court to invalidate the votes of two justices.
Speaker 1: Explain the basis there, well, I guess they're they're saying
Speaker 1: that the to these two Pennsylvania Supreme Court justices are
Speaker 1: biased and should have for used themselves. Um. I think
Speaker 1: that's a pretty long shot argument, and there's really no
Speaker 1: basis for doing so. I didn't find it strange that,
Speaker 1: you know, normally we think of the U Supreme Courts
Speaker 1: decisions as final, and and yet they're still trying to
Speaker 1: attack it, even after the Supreme Court refused to stay
Speaker 1: potensively in the Supreme Court position. So they're they're arguing
Speaker 1: that these two justice were biased. I don't think it's
Speaker 1: going to go anywhere If the Republicans don't get a
Speaker 1: map to the governor by Thursday of next week. The
Speaker 1: Pennsylvania Supreme Court said it would adopt its own map,
Speaker 1: and it's appointed Nate Personally, who's a Stanford law professor
Speaker 1: and a redistricting expert that we've had on many times.
Speaker 1: Do you think voting maps should be drawn by experts
Speaker 1: rather than legislatures. Well, I think it's a much better
Speaker 1: process to have an expert who knows what he or
Speaker 1: she is doing, and certainly Nate Personally has done this
Speaker 1: before and is very good at it. That's much better
Speaker 1: than having the politicians draw the lines. There's you know,
Speaker 1: other paths, which include independent redistricting commissions, which some states
Speaker 1: are using, and that's an also good way. Anything to
Speaker 1: get the politicians out of the drawing process, in my view,
Speaker 1: is a good thing because there have incentives to view
Speaker 1: the mass in their favors, and we see that both
Speaker 1: political parties do it. The Republicans have said the Court
Speaker 1: set them up because it failed. It gave them less
Speaker 1: than three weeks to redraw the congressional lines, and it
Speaker 1: didn't issue a full opinion in the case. What do
Speaker 1: you what's your take on those arguments. Well, you know,
Speaker 1: I think the Court was acting quickly because we need
Speaker 1: new match in place for people to know web districts
Speaker 1: they're in and candidates to file their nomination papers. Um.
Speaker 1: And so I do think you know there was a
Speaker 1: reason for the Court to replier the legislature to act quickly, um,
Speaker 1: in terms of not issuing an opinion. Yet I do
Speaker 1: think it's a little strange, and it would be helpful
Speaker 1: for the Pennsylvania Stream Court to issue it's full reasoning
Speaker 1: as opposed to just an order. I don't think that
Speaker 1: impacts what the legislature is tasked to do in terms
Speaker 1: of drawing a new map. It knows that the map
Speaker 1: it drew was way too skewed politically, and so it's
Speaker 1: task is to not do so the next time around.
Speaker 1: You mentioned the two Gerryman daring cases from Wisconsin and
Speaker 1: Maryland before the Supreme Court explain the broad issues there.
Speaker 1: So the wisconsinant case, it involves a statewide challenge for
Speaker 1: the map as a whole, and it's using this new
Speaker 1: standard called the efficiency gap, which essentially measures the partisans
Speaker 1: view in the map as a whole. The problem is
Speaker 1: that the Supreme Court hasn't been able to find a
Speaker 1: good standard for testing when politics has infiltrated the mast
Speaker 1: drawing process too much. The Maryland case is a little
Speaker 1: bit different because it's challenged in just one district in
Speaker 1: the state as opposed to the map as a whole,
Speaker 1: and it's invoking the First Amendment, something that Justice Kennedy
Speaker 1: has said he might be favorable in terms of looking
Speaker 1: to the root out partisan jerry manders. So they have
Speaker 1: different approaches. The Wisconsin cases broader and the Maryland cases
Speaker 1: narrower and in different legal uh. Folk Guy as well.
Speaker 1: Even if the Supreme Court says to the Wisconsin legislators,
Speaker 1: you have to redraw this map and they do find
Speaker 1: that it was partisan gerrymandering, would they say you have
Speaker 1: to do it before the mid term elections. It's really
Speaker 1: going to depend on when the decision comes out. You know,
Speaker 1: if we don't have a decision until the end of
Speaker 1: the tournam in June, then it might be very hard
Speaker 1: to get a new map in place before the election.
Speaker 1: So you might have one more election cycle under a
Speaker 1: map that is unconstitutional. We've seen that happen before, so
Speaker 1: it wouldn't be unprecedented. It certainly unfortunate, though, where just
Speaker 1: because election cycles happen and the interests of time, a
Speaker 1: map has to stay in place for one more cycle. Yeah,
Speaker 1: it's not often that a court tells you you have
Speaker 1: a just a few weeks to change the whole map.
Speaker 1: Thanks so much for being here, Josh. That's Josh Douglass
Speaker 1: of the University of Kentucky Law School. That current Pennsylvania
Speaker 1: map includes the sprawling seventh District, which you might have
Speaker 1: heard critics say resembles the cartoon character Goofy kicking Donald Duck.
Speaker 1: The saga of the dueling memos continues. President Donald Trump
Speaker 1: has received the Democratic memo countering the Republican memo, which
Speaker 1: claims FBI and Justice Department misconduct in the surveillance of
Speaker 1: a former Trump campaign advisor. Trump now has five days
Speaker 1: to decide whether to release it, make redactions, or block it.
Speaker 1: He backed disclosure of the GOP memo, and he classified it.
Speaker 1: The man at the center of the controversy over the
Speaker 1: surveillance warrant, Carter Page, said today in an interview with
Speaker 1: ABC News is George Stephanopolis that the work he was
Speaker 1: doing for the Kremlin was above board and part of
Speaker 1: a G twenty conference. He also claimed that he's never
Speaker 1: spoken to President Trump in his life. I never spoke
Speaker 1: with him since I never spoke with him any time
Speaker 1: in my life. You've never spoken to Donald Trump in
Speaker 1: your life? No email, no text, nothing like that. Never.
Speaker 1: My guest is Jimmy Grula, professor at the University of
Speaker 1: Notre Dame Law School. Jimmy, let me ask you for
Speaker 1: your you know, your reaction to hearing from Carter Page
Speaker 1: and who says he never spoke to President Trump. He's
Speaker 1: been distanced by the Trump administration. From the administration, is
Speaker 1: it odd that they're using a surveillance memo about him
Speaker 1: to fight this fight? Well, a couple of things that
Speaker 1: it's certainly odd that Carter Page has never spoken with
Speaker 1: with President Trump, despite the fact that President Trump, when
Speaker 1: he was candidate Trump, UH selected Carter Page to be
Speaker 1: a foreign affairs advisor to UH to then candidate candidate Trump.
Speaker 1: And so it seems rather strange that he would that
Speaker 1: Trump would appoint someone to such a prestigious position in
Speaker 1: the campaign, you know, foreign advisor without ever having formally
Speaker 1: met met the person. So so I find that that
Speaker 1: claim curious at the least. The Intelligence Committee voted unanimously
Speaker 1: to release the memo. What's your guests as to what
Speaker 1: the president will do? Well, I'm hoping that that he
Speaker 1: will treat the Democratic Memo the way that he treated
Speaker 1: the Republican Memo, the Neonist Memo, and release it in
Speaker 1: its entirety without any redactions. But that's the concern. I
Speaker 1: think the concerned by the Democrats is whether or not
Speaker 1: a the President is going to release the memo at all,
Speaker 1: and be if he releases the memo is going to
Speaker 1: be released with substantial redactions and sections completely blocked out.
Speaker 1: And if that's the case, then then it really kind
Speaker 1: of undercuts it will under cut his claim of transparency
Speaker 1: and newness, his claim of transparency and wanting to get
Speaker 1: to the bottom of the issues respect with respect to
Speaker 1: the device and warrants with respect to Carter Page. The
Speaker 1: House could Committee could then seek a very rare closed
Speaker 1: door vote of all the House members to over ride
Speaker 1: the president and still release it. What's the likelihood that
Speaker 1: that might work. I think probably zero? Zero, Yeah, I
Speaker 1: think zero. I mean, I don't have any confidence that
Speaker 1: that there would be a majority of Republicans that that
Speaker 1: would um seek to override the president. I mean, so
Speaker 1: if the President decides not to release it for for
Speaker 1: whatever reason, I have no confidence. So there would be
Speaker 1: a majority of Republican members of Congress of the House
Speaker 1: that would override or seek to override the president's will
Speaker 1: on the on the issue. Now. Separately, former ye How
Speaker 1: strategists Steve Bannon is planning to skip a closed door
Speaker 1: interview with the committee today despite being subpoena to appear.
Speaker 1: That's according to two people familiar with the matter in
Speaker 1: Bloomberg News, he has talked to mother. What does this show.
Speaker 1: Is there a lack of fear that the committee will
Speaker 1: do anything? Is it a disrespect for a committee that's
Speaker 1: in disarray? Well, it could be. You know, it's certainly
Speaker 1: very telling that the despite the fact that he has
Speaker 1: been requested or that the committee has requested to have
Speaker 1: him speaking for the committee, that now this is the
Speaker 1: you know that that basically he's kind of thumbing their
Speaker 1: nose at them, unless you know, there's some compelling reason
Speaker 1: why he's unable to appear. But but if there is
Speaker 1: such a compelling reason, it hasn't been articulated either by
Speaker 1: by banning himself or by any members of the of
Speaker 1: the committee. So perhaps it does suggest that, as he stated,
Speaker 1: it's a committee in disarray, it's a committee that perhaps
Speaker 1: has lost because it's become so partisan that has lost
Speaker 1: all credibility, and maybe a Bannon doesn't think it's deserving
Speaker 1: of his time. How often do these House committees actually
Speaker 1: go forward and if someone refuses a subpoena try to
Speaker 1: enforce it by seeking you know, going to a judge
Speaker 1: and trying to get contempt orders. How often do they
Speaker 1: actually push these issues? I think it's rare. I think typically,
Speaker 1: of course, going to the court is going to be
Speaker 1: an action of last resort, not first resort. And so
Speaker 1: I think that there will be negotiations behind the scenes
Speaker 1: to find out what's the objection to appearing me for
Speaker 1: the committee, and can those objections or concerns be allayed
Speaker 1: in some way short of going to the to a court.
Speaker 1: And and further, I think on the other side, I
Speaker 1: think courts are reluctant to intervene in these types of
Speaker 1: and these types of matters and leave it to the
Speaker 1: to to Congress to try to resolve resolve the matter
Speaker 1: itself very quickly. President Trump's lawyers, several of them, have
Speaker 1: advised him against a wide ranging interview with Special Counsel
Speaker 1: Robert Mueller. According to The New York Times, aids and
Speaker 1: lawyers believe Mueller might be unwilling to subpoena Trump and
Speaker 1: spark a White House battle. Do you, in about forty
Speaker 1: five seconds, do you have any doubt that the Special
Speaker 1: Counsel will subpoena Trump? Well, I think that that of course,
Speaker 1: first they're they're going to try to gain his co operations,
Speaker 1: see if they if he will just respond positively to
Speaker 1: a request to appear before before Bob Muller. And and
Speaker 1: again the question is going to be if the answer
Speaker 1: to that is no, then what are the concerns and
Speaker 1: can those concerns be addressed in some way that's that's
Speaker 1: acceptable to both parties. But I think at the end
Speaker 1: of the day, if there's no agreement, I think that
Speaker 1: the Muller will go the next step and and try
Speaker 1: to force the president's hand through through the courts. Thanks
Speaker 1: so much. That's Jimmy Rule, a professor at the University
Speaker 1: of Notre Dame Law School. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I am June Brosso. This is Bloomberg