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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: The Federal Judiciary is considering whether there should be more

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Speaker 2: guidance for judges about hiring law clerks after two judges

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Speaker 2: hired a clerk who was reported to have sent racist texts,

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Speaker 2: and that clerk then went on to get a clerkship

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Speaker 2: with Supreme Court Justice Clarence Thomas joining me is an

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Speaker 2: expert in legal ethics. Arthur Hellman, a professor at the

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Speaker 2: University of Pittsburgh Law School. So House Democrats in twenty

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Speaker 2: twenty one had filed a complaint against Chief Judge William

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Speaker 2: Pryor of the Eleventh Circuit and District Judge Corey Mays

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Speaker 2: of the Northern District of Alabama into the hiring of

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Speaker 2: this clerk. Tell us about the controversy and what ended

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Speaker 2: up happening well.

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Speaker 1: The controversy centers around the investigations that judges Prior and

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Speaker 1: May's the circuit judge and the district judge carried out

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Speaker 1: with respect to this individual. Because I understand it, the

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Speaker 1: question is whether they adequately vetted her before hiring her.

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Speaker 1: And the chief Judge of the second Circuit, to which

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Speaker 1: the proceeding was transferred, found that they did all they

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Speaker 1: were required to and dismissed the complaint, and the Judicial

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Speaker 1: Council of the Circuit affirmed that dismiss So the proceeding

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Speaker 1: was completed, but the Committee of the Judicial Conference of

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Speaker 1: the United States what it should be reopened, and that's

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Speaker 1: what gave rise to one of the requests at the

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Speaker 1: March meeting of the Judicial Conference to look into that

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Speaker 1: review process. So we have two separate issues here, one

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Speaker 1: that involves the Committee on Codes of Conduct and the

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Speaker 1: other that involves the Committee on Judicial Conduct and Disability.

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Speaker 2: How much investigation of clerks should judges be doing well?

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Speaker 1: I think that's one of the issues that the Committee

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Speaker 1: on Codes of Conduct will be looking into. What is

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Speaker 1: due diligence in this respect and what are the ethical

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Speaker 1: obligations of a federal judge. It's important to emphasize that

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Speaker 1: the Committee on Codes of Conduct is tasked with interpreting

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Speaker 1: and giving guidance based on the Code of Conduct. It

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Speaker 1: is not otherwise in the business of telling judges how

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Speaker 1: to run their chambers or here the two overlap a

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Speaker 1: little bit, But for example, is it enough that the

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Speaker 1: judge asks the clerk Is there anything you've done in

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Speaker 1: the past that would embarrass you or me if it

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Speaker 1: came out now, or should the judge carry out is

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Speaker 1: it her own investigation? Now? I don't do much social

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Speaker 1: media myself, so I'm not really the person to talk

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Speaker 1: about that in detail. But my sense is that a

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Speaker 1: thorough background investigation of that time will be very time

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Speaker 1: consuming and laborious, and I'm not sure a judge should

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Speaker 1: be expected to do that. A judge should be able

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Speaker 1: to ask the law clerk if there is any such

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Speaker 1: material in the works past, and take the clerk's word

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Speaker 1: about that. But the Committee on Codes of Conduct might

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Speaker 1: decide that something something more than that is required. But

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Speaker 1: their task at this point is to consider the process

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Speaker 1: by which judges hire their law clerks, law clerks who

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Speaker 1: may have something in their past that cast doubt on

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Speaker 1: the fitness of the clerk presence service as a law

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Speaker 1: clerk to a federal judge.

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Speaker 2: How long might this process take?

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Speaker 1: That I think is one of the issues that the

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Speaker 1: committee will have to consider. I mean, this is not

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Speaker 1: the major thing that a judge does. I mean, it's

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Speaker 1: a very important part of the judges work. But the

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Speaker 1: judges nominated and confirmed to decide cases. So every minute

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Speaker 1: that is taken away from those tasks, the judges not

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Speaker 1: doing what or she was nominated and confirmed to do so.

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Speaker 1: Figuring out how thorough the investigation should be and whether

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Speaker 1: there are any particular things a judge should do in

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Speaker 1: checking on a law clerk is one of the questions

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Speaker 1: that the Committee and Codes of Conduct will now be

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Speaker 1: looking into.

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Speaker 2: They also wanted to get your position on the conservative

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Speaker 2: federal judges who announced they were going to boycott and

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Speaker 2: clerks from particular law schools where there were demonstrations and

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Speaker 2: disruptions on campuses. These are law schools that would be

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Speaker 2: considered liberal. So just eliminating a whole block of students

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Speaker 2: because of what happened on their campuses.

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Speaker 1: Well, that raises some related but distinct and very interesting

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Speaker 1: and important issues. Actually, I think our key to this

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Speaker 1: is why the federal judges are taking that possession. For example,

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Speaker 1: a judge might say, if a student has gotten his

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Speaker 1: or her legal education at a law school that discourages

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Speaker 1: dissent and allows raucous intrusions on presentation of unpopular views,

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Speaker 1: that environment diminishes the quality of the education that the

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Speaker 1: student gets. Because an important part of legal education, important

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Speaker 1: part of legal reasoning is listening to other views and

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Speaker 1: processing them and responding to them in a professional way.

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Speaker 1: So a judge might think the person in his chambers

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Speaker 1: should be somebody who's gotten a legal education that is

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Speaker 1: not tainted in that way. And you know, maybe we

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Speaker 1: should back up a minute, because it really relates to

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Speaker 1: both of these topics very were Judges today have very

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Speaker 1: very heavy workloads, and they're very heavily dependent on their

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Speaker 1: law clerks. So it's important that these clerks have gotten

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Speaker 1: the best possible training. So as I say, if the

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Speaker 1: judge believes that some of the practices at a particular

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Speaker 1: law school diminish the quality of the training, I think

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Speaker 1: that would be a legitimate job related reason for not

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Speaker 1: hiring students from that law school, even though it is

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Speaker 1: in a sense to the students. Although you know, if

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Speaker 1: you look at it more broadly, you talk about boycotts. No,

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Speaker 1: there are many judges who are their law clerks only

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Speaker 1: from let's say top fourteen or top twenty, whatever it

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Speaker 1: is law schools. Are they boycotting the other one hundred

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Speaker 1: and eighty? I don't think we would ordinarily say that,

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Speaker 1: would say that the judges decided, rightly or wrongly, that

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Speaker 1: the most effective way of finding good law clerks is

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Speaker 1: to stick with a small number of elite law schools

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Speaker 1: where they know some faculty and can rely on recommendations.

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Speaker 1: So if the reason is related to the carrying out

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Speaker 1: of the judge's adjudicated responsibilities, I'm not sure I see

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Speaker 1: a problem in them.

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Speaker 2: Choosing law clerks from the best law schools because you

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Speaker 2: think that they'll be the best clerks. Seems different to

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Speaker 2: me than not choosing students from top schools like Stanford

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Speaker 2: and Yale because some conservative speakers face blowbacks on campus.

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Speaker 1: It may be problematic if the judges are doing this

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Speaker 1: to change the culture in the law schools. I say, maybe,

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Speaker 1: because judges are allowed to write and speak out on

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Speaker 1: the improvement in the legal profession, and maybe it's part

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Speaker 1: of that, or a small step further to say that

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Speaker 1: judges can hire their law clerks in a way that

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Speaker 1: they believe will improve the culture at law schools. But

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Speaker 1: that's a very different kind of motivation or purpose, and

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Speaker 1: that when I think, would be more controversial. As I say,

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Speaker 1: I think you can make a case that that is

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Speaker 1: legitimate within the code of conduct. But other people might

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Speaker 1: say that it looks like using the judge's position to

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Speaker 1: advance the judge's personal interests, which is one of the

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Speaker 1: things that the code explicitly prohibits. So it's a question

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Speaker 1: of how you view that. Is it a way of

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Speaker 1: improving the legal profession, which is something the judge is

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Speaker 1: explicitly allowed to do under the code, or is it

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Speaker 1: advancing a personal interest, which is something the judge is

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Speaker 1: explicitly prohibited from going.

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Speaker 2: I'll just note these conservative judges were Trump appointees. Did

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Speaker 2: they face any consequences because of this?

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Speaker 1: I think possibly a complaint has been filed a while

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Speaker 1: that I'm pretty sure no order has been issued. Certainly

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Speaker 1: there have been criticisms from other judges about the so

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Speaker 1: called boycott. The grounds have been along the lines that

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Speaker 1: I suggested that the judges are using their position to

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Speaker 1: change the culture at law schools, and that's a misuse

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Speaker 1: of the judicial position, that judges should be concerned in

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Speaker 1: their hiring only with getting the people for their chambers.

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Speaker 2: Let's turn out of the resignation last week of a

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Speaker 2: judge in Alaska over allegations of sexual misconduct. A federal

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Speaker 2: judge in Alaska Joshua Kindred resigned and could face impeachment

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Speaker 2: after an investigation found that he had an inappropriate sexual

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Speaker 2: relationship with a female law clerk, and that he created

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Speaker 2: a hostile work environment and appeared to have no filter

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Speaker 2: in his discussions with clerks, discussing his romantic preferences, his

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Speaker 2: sex life, his divorce, the law clerk's boyfriends and dating lives,

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Speaker 2: on and on. The investigation by the judiciary into the

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Speaker 2: Trump appointee resulted in a one hundred and five page

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Speaker 2: report with more than one thousand pages of exhibits, including

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Speaker 2: seven hundred pages of text messages between the judge and

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Speaker 2: his clerks. The inquiry could lead to the reopening of

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Speaker 2: multiple criminal cases that came before Kendrick during his more

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Speaker 2: than four years on the bench. I've been talking to

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Speaker 2: legal ethics expert Arthur Hellman, a professor at the University

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Speaker 2: of Pittsburgh Law School. So there was this outrageous conduct,

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Speaker 2: but it took almost two years after the chief Judge

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Speaker 2: learned about it for the judiciary to complete its investigation.

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Speaker 2: And in those two years there were criminal cases that

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Speaker 2: came before Kindred, And now these findings could lead to

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Speaker 2: the reopening of many of those cases.

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Speaker 1: And others well, it is somewhat caauseling because the evidence

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Speaker 1: has presented in the Judicial Council report is so strong.

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Speaker 1: You would think it would not have taken almost two

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Speaker 1: years to find all that evidence and to come to

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Speaker 1: a conclusion that this individual was unfit to serve as

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Speaker 1: a federally the conclusion they reached when they referred the

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Speaker 1: matter to Judicial Conference at the United States for a

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Speaker 1: consideration of possible recommendation to Congress for consideration of impeachment,

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Speaker 1: that is a little hard to understand. What maybe is

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Speaker 1: that the people they talk to were initially reluctant to

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Speaker 1: speak out, and if that's so, it really raises some

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Speaker 1: very troubling issues because, as you know, it was it

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Speaker 1: five or six years ago now, the Judiciary completely revamped

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Speaker 1: its procedures regarding the workplace in the wake of the

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Speaker 1: accusations against pulling the judge Alex Kozinski, and I have

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Speaker 1: to say I thought they had done a pretty good

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Speaker 1: job and that they were really trying to create, as

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Speaker 1: Chief Justice Roberts put it, an exemplary workplace in every

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Speaker 1: judicial chamber, and particularly in the Ninth Circuit, which has

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Speaker 1: been a leader in this as in so many other

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Speaker 1: administrative aspects of the federal judicial that this took that

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Speaker 1: long to get resolved is very troubling, and I think

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Speaker 1: it does call lass for another look at how the

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Speaker 1: judiciary is handling this very important aspect of the administration

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Speaker 1: of the federal courts.

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Speaker 2: The repercussions from this are going to be enormous. Federal

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Speaker 2: prosecutors in Alaska have identified nearly two dozen criminal cases

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Speaker 2: with potentially undisclosed conflicts of interest involving former Judge Kindred

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Speaker 2: and the attorneys who worked on the cases before him.

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Speaker 2: Three of those are in the US Attorney's office.

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Speaker 1: Well, I'm not an expert on federal criminal prosecutions, but

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Speaker 1: what I will say is that that aspect of this

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Speaker 1: particular case underscores the point you made initially that there

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Speaker 1: was a particular reason here for proceeding with some swiftness,

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Speaker 1: giving all due process to the judge. But there were

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Speaker 1: some particular reasons here why the matter should have been

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Speaker 1: resolved as quickly as possible so that these repercussions would

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Speaker 1: be minimized.

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Speaker 2: The judge did recuse himself in some cases. How is

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Speaker 2: it determined whether there was a conflict of interest?

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Speaker 1: Well, what the statute says is apart from some specific

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Speaker 1: circumstances where a judge must recuse, for example, where the

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Speaker 1: judge has a financial interest in the outcome of the case,

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Speaker 1: the more general provision says that a judge must accuse

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Speaker 1: if a reasonable person would doubt the judge's impartiality, and

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Speaker 1: judicial interpretations of that statute set from four fifty five

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Speaker 1: have said that you look at that question from the

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Speaker 1: standpoint of a re reasonable person outside the court, but

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Speaker 1: informed of all the circumstances. So those are the elements

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Speaker 1: of the test. It's an objective test. Again, it's a

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Speaker 1: reasonable person, but not a person within the judiciary, because

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Speaker 1: the courts have said that people within the judiciary may

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Speaker 1: be too inclined to discount the possibility that the judge

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Speaker 1: would look partial or biased. So you look at the

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Speaker 1: reasonable person outside the judiciary. But at the same time,

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Speaker 1: the reasonable person is fully informed of the circumstances, and

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Speaker 1: so the judge has to put himself or herself in

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Speaker 1: the position of that reasonable person.

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Speaker 2: Can you think of another case where there was misconduct

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Speaker 2: like this by a judge and criminal cases got thrown

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Speaker 2: out or retried.

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Speaker 1: No, nothing comes to mind. I mean, you do have

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Speaker 1: a somewhat parallel situation with the bankruptcy judge in Texas,

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Speaker 1: don't you where they are in the process of upsetting

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Speaker 1: I think, or at least questioning some of the decisions

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Speaker 1: made by the bankruptcy judge who was in a romantic

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Speaker 1: relationship with a bankruptcy lawyer. So I think that is comparable.

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Speaker 1: You mentioned the repercussions going forward. I think one of

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Speaker 1: the most interesting questions and important questions about the Alaska

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Speaker 1: judge is how did a person get to be a

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Speaker 1: federal judge. I mean, this is a young guy, and

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Speaker 1: this kind of behavior seems to me not the sort

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Speaker 1: of thing that suddenly happens that a person suddenly engages in,

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Speaker 1: and you would think that there would be some evidence

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Speaker 1: of this in his career and his behavior as a lawyer. Now,

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Speaker 1: as you know, before somebody is appointed to the federal bench,

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Speaker 1: there's a very intense investigation. As it's more than one.

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Speaker 1: There's the FBI, there's the White House, there's the ABA.

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Speaker 1: The FBI in particular is very thorough. For example, I've

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Speaker 1: gotten calls about people who worked for me briefly thirty

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Speaker 1: years earlier because the nominee is required to list every

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Speaker 1: person he or she has ever worked for. So how

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Speaker 1: did Joshua Kindred get through that process where there are

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Speaker 1: no warning signals in any of the conversations that FBI

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Speaker 1: agents or the ABA committee members had members of the

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Speaker 1: Alaska legal community that would have alerted them to the

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Speaker 1: very real possibility, which turned out to be the reality

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Speaker 1: that this that you or just did not have the

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Speaker 1: temperament to be a federal judge. Now, by the way,

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Speaker 1: you had a similar failing twenty five years ago with

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Speaker 1: Judge Fortius, who was impeached and convicted for actual bribery

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Speaker 1: and other criminal activity that he had engaged in for

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Speaker 1: many years in Louisiana and which has to have been

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Speaker 1: known by many of the people in Louisiana legal community.

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Speaker 1: That was another failure in my view, the vetting process,

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Speaker 1: as far as I know, nobody has ever looked into

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Speaker 1: or written about. But I think there's a serious concern

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Speaker 1: here that the vetting process at the nomination slash confirmation,

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Speaker 1: and it's really a nomination, you don't expect the Senate

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Speaker 1: Judiciary Committee to carry out the kind of in depth

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Speaker 1: investigation that the FBI, with all of its resources can

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Speaker 1: do or that the a BA can do with its

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Speaker 1: members in every state and every legal community. Those two

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Speaker 1: organizations have the resources to carry out in depth investigations,

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Speaker 1: and we really have to depend on them. In a

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Speaker 1: likelihood they missed this. You know, it's possible that you know,

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Speaker 1: that he had a complete personality change on the belt,

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Speaker 1: and there's some suggestion that the isolation in the COVID

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Speaker 1: lockdowns had some influence. But you know, isolation doesn't turn

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Speaker 1: a man into this, this course speaking individual who harasses

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Speaker 1: women in the way he did. You know, even to

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Speaker 1: read about his behavior, it's an embarrassment, and behavior of

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Speaker 1: that extreme, it seems to me doesn't start overnight or

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Speaker 1: when a man takes the oath as a federal judge.

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Speaker 1: To have been some signals in his earlier behavior that

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Speaker 1: should have been called. So I would hope that one

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Speaker 1: of the consequences of this very sad and unfortunate proceeding

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Speaker 1: is that there will be a look not only at

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Speaker 1: the procedures within the federal judiciary we haven't talked about,

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Speaker 1: but within the executive branch and the vetting of judicial nominees.

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Speaker 2: Considering all the information out there about hostile work environments

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Speaker 2: and the legal case is over. It it's almost hard

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Speaker 2: to believe that this judge didn't recognize what he was doing.

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Speaker 1: Going back to our prior discussion of the Ninth Circuit

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Speaker 1: and the Federal Judiciary putting new procedures in place, is

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Speaker 1: that it may be that the panoply of procedures is

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Speaker 1: possibly part of the problem now because one of the

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Speaker 1: things I think that is absolutely essential is that there'd

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Speaker 1: be one person who is responsible. You know, if everybody

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Speaker 1: is responsible, then nobody is responsible. And here it's the

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Speaker 1: Chief Judge. And I don't know if the Chief Judge

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Speaker 1: addedly conveyed the message that if federal judge is misbehaving,

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Speaker 1: I want to know about it. I will take action

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Speaker 1: and I will make sure there's no retaliation.

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Speaker 2: Thanks so much for coming on the show, Arthur as

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Speaker 2: Professor Arthur Hellman of the University of Pittsburgh Law School

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Speaker 2: coming up next on The Bloomberg Law Show. Articles of

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Speaker 2: impeachment have been filed against Justice Clarence Thomas and Justice

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Speaker 2: Samuel Alito. You're sure to fail, So what are the repercussions.

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Speaker 2: I'm June Grosso. When you're listening to Bloomberg, New York

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Speaker 2: Representative Alexandria Zeo Cortes has filed articles of impeachment against

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Speaker 2: Supreme Court Justices Clarence Thomas and Samuel Alito for what

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Speaker 2: she said was their failure to report gifts and refusal

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Speaker 2: to recuse from cases in which they were conflicted. Progressives

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Speaker 2: and others have criticized both justices over reports they accepted

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Speaker 2: vacations from wealthy people and failed to recuse from cases

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Speaker 2: despite conflicts they said were created by their spouses. The

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Speaker 2: success of either resolution against arguably the Court's two most

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Speaker 2: conservative justices is unlikely given the Republican control of the House.

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Speaker 2: The New York Democrat and Maryland Democratic Representative Jamie Raskin

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Speaker 2: wrote to Chief Justice John Roberts on June twentieth, urging

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Speaker 2: him to investigate Thomas and Alito. Democratic senators have sent

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Speaker 2: similar requests to the Chief Justice. Of course, the Chief

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Speaker 2: has taken no action. Joining me is an expert in impeachment.

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Speaker 2: Frank Bowman, a professor at the University of Missouri Law School,

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Speaker 2: so tell us about the articles against Thomas well.

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Speaker 3: There are three articles that have been filed by Representative

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Speaker 3: Ocasio Cortes and some of her colleagues, Essentially they allege

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Speaker 3: that Justice Thomas really improperly refused to recuse himself from

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Speaker 3: a variety of matters based on three things. The first

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Speaker 3: article has to do with his receipt of gifts from

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Speaker 3: Harlan Crow and other folks broadly associated with the American

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Speaker 3: Enterprise Institute and other conservative entities, the argument there being

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Speaker 3: that these entities at least file Amiekus briefs in matters

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Speaker 3: that appeared before the court, even if they're not parties,

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Speaker 3: and thus they have an ongoing interest in the outcome

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Speaker 3: of cases in the court. The second article has to

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Speaker 3: do with Missus Thomas's professional activity. She has, over the

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Speaker 3: years had various consulting arrangements or consulting entities which are

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Speaker 3: through interwoven in the conservative legal political movement, and various

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Speaker 3: folks in that constellation of people and enterprises and think

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Speaker 3: tanks and so forth have funneled money to Jenny Thomas

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Speaker 3: through her entities, And here too, the argument is that

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Speaker 3: Thomas should have refused himself in any matters in which

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Speaker 3: any of the various entities that have funneled money to

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Speaker 3: his wife might have filed a brief more habit some

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Speaker 3: sort of interest, and the third one is the one

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Speaker 3: which probably has the most bite to me, and that's

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Speaker 3: one in which the argument is that Justice Thomas should

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Speaker 3: have recused himself essentially in all the cases that had

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Speaker 3: anything to do with Trump's effort to overturn the twenty

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Speaker 3: twenty election results, because his wife was involved in the

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Speaker 3: Trump coup attempt. Now, the degree of her involvement is

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Speaker 3: a little bit unclear, but she certainly was actively advising

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Speaker 3: various people in clinical staff and others about how to

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Speaker 3: proceed during Trump's effort to overturn the election between November

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Speaker 3: twenty twenty and January twenty twenty one. And the argument

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Speaker 3: there is, you know, your wife, Justice Thomas, is actually,

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Speaker 3: you know, directly involved, albeit not at the center, but

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Speaker 3: directly involved in this effect conspiracy to overturn an election,

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Speaker 3: And you have no business ruling on the merits of

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Speaker 3: any cases involving in involving that coup, whether they involve Trump,

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Speaker 3: whether they involve neither other people were charged, or just

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Speaker 3: the general issues that are raised by that coup attempt,

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Speaker 3: because there's certainly a reasonable inference to be drawn that

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Speaker 3: you're not impartial in these cases because a your wife

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Speaker 3: was directly involved in this she was potentially at least

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Speaker 3: a witness, indeed was a witness in front of the

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Speaker 3: January sixth committee. Arguably she could have been a defendant.

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Speaker 3: She has not been charged, of course, but she was

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Speaker 3: certainly potentially a defendant in any case charging a criminal

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Speaker 3: conspiracy arising from January sixth in its antecedents. So those

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Speaker 3: are the three arguments against Thomas. I think the first

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Speaker 3: two are at least undeveloped. The third one is a

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Speaker 3: stronger case for recusal certainly, and thus maybe as fractionally

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Speaker 3: stronger case for impeachment.

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Speaker 2: By contrast, the allegations against Justice Samuel Alito are shorter.

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Speaker 3: Explain those well, I mean, I think they're really really

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Speaker 3: released in both actually and on a constitutional basis. I mean,

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Speaker 3: in essence, they arise out of the flag controversy. In essence,

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Speaker 3: the argument is, well, Alito or somebody and his family

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Speaker 3: flew an upside down US flag and the appeal to

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Speaker 3: Heaven revolutionary flag, which are in some circles associated with Trump,

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Speaker 3: or the effort to overturn the twenty twenty election. That,

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Speaker 3: by extension is said to indicate that Lee to himself

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Speaker 3: had some sympathy with the effort to overturn the election,

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Speaker 3: and therefore you have to refuse himself and so forth

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Speaker 3: and so on. And the two problems with that, I mean,

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Speaker 3: one is that the facts as to who flew what flags, when,

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Speaker 3: and you know why, are extremely unclear, and you don't

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Speaker 3: go around impeaching people on webs of supposition like that.

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Speaker 3: And the second issue is a more difficult constitutional one.

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Speaker 3: We've only impeached one Supreme Court justice in our history,

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Speaker 3: and he was acquitted of Samuel Chase in eighteen oh

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Speaker 3: four eighteen oh five. And Chase was essentially an impeached

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Speaker 3: for being a vocal Federalist and therefore an opponent of

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Speaker 3: Thomas Jefferson's Republicans, and of saying and doing some things

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Speaker 3: on the bench that suggested he had a very strong

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Speaker 3: affinity for the Federalists. And he was essentially impeached for

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Speaker 3: statements that he made from some rulings he made in

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Speaker 3: some cases, but the real argument was that he was

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Speaker 3: an ardent federalist and was letting that effect are his rulings,

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Speaker 3: his statements, and he was acquitted by the Senate. And

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Speaker 3: we've generally thought the meaning of that acquittal was that

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Speaker 3: Supreme court justes and other judges should not be impeached

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Speaker 3: for their opinions. Now, they certainly could be impeached if

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Speaker 3: they were overtly basing their rulings on partisan political affinity,

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Speaker 3: and there was they ruled for Republicans because their Republicans

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Speaker 3: are against Democrats, because of Democrats. But there was no

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Speaker 3: proof that that was true in just Jase's case, and

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Speaker 3: the Senate finally concluded not going tompeach people just because,

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Speaker 3: you know, of the other party were appointed by the

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Speaker 3: other party. Indeed, there were arguments in that impeachment. One

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Speaker 3: Center basically stood up and said, no, we we think

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Speaker 3: and this is a Remember this is very early in

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Speaker 3: the Republic, not quite twenty years after the Constitution has

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Speaker 3: been ratified, and weren't quite sure how we were going

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Speaker 3: to treat impeachments. But the congressman stands up and says, no,

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Speaker 3: we think that impeachment is to be used for precisely

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Speaker 3: this purpose. You know, you people have bad opinions, and

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Speaker 3: we're going to get rid of you to put in

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Speaker 3: your place. This is Jason, others like you, people who

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Speaker 3: have good opinions. And that view was essentially rejected, and

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Speaker 3: ever since we just don't have impeached justices for their opinions.

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Speaker 3: Coming back to Justice Alido, you know, has he perhaps

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Speaker 3: behaved intemperately at times? You bet, in my view, But

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Speaker 3: you know, has he in any provable way acted? Can

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Speaker 3: we prove that he ruled in a particular case based

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Speaker 3: on his partisan political affinity rather than you know, he's

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Speaker 3: genuinely held jurisprudential convictions? Well, I don't think so. And

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Speaker 3: so I think the article against him is both factually

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Speaker 3: weak because it's based on disputed facts, and I think

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Speaker 3: it's constitutionally extremely extremely thin, if not non existent.

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Speaker 2: So, with a Republican majority in the House, this impeachment effort,

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Speaker 2: I mean, there's no chance that will even be voted on,

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Speaker 2: let alone pass. So what's the point of doing this?

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Speaker 3: Well, you know, I think this is this is a

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Speaker 3: purely performative exercise, right because not only is the Republican

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Speaker 3: House not going to impeach either Thomas or Alito, they're

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Speaker 3: not even going to investigate the allegation. Now, I think that,

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Speaker 3: you know, there may be time when it's clear to

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Speaker 3: a majority of remembers the House that the Senate perhaps

438
00:31:06,160 --> 00:31:08,560
Speaker 3: is not going to convict or is unlikely to convict

439
00:31:08,600 --> 00:31:13,080
Speaker 3: on a particular set of impeachment allegations, but nonetheless makes

440
00:31:13,920 --> 00:31:17,040
Speaker 3: a logical and constitutional sense to embark on an impeachment

441
00:31:18,000 --> 00:31:20,640
Speaker 3: inquiry into the House because it gives you an opportunity

442
00:31:20,680 --> 00:31:25,480
Speaker 3: to investigate, to bring forward facts about official wrongdoing. And

443
00:31:25,560 --> 00:31:28,400
Speaker 3: I think that in essence the justification, and certainly for

444
00:31:28,440 --> 00:31:32,640
Speaker 3: the first Trump engagement, where it was at least reasonably

445
00:31:32,800 --> 00:31:37,200
Speaker 3: probable that the Senate would not convict, but the Democrats felt,

446
00:31:37,640 --> 00:31:41,160
Speaker 3: at a minimum, we need to use the special powers

447
00:31:41,200 --> 00:31:45,160
Speaker 3: of investigation that arise in an impeachment situation to unearth

448
00:31:45,240 --> 00:31:48,360
Speaker 3: the facts regarding Trump's and connections with Ukraine and his

449
00:31:48,400 --> 00:31:51,840
Speaker 3: effort to use Ukraine to secure good on his political

450
00:31:51,920 --> 00:31:55,800
Speaker 3: pont I think that's arguably justifiable, even if you're not

451
00:31:55,800 --> 00:31:57,960
Speaker 3: going to get a conviction in the end. But in

452
00:31:58,000 --> 00:32:01,080
Speaker 3: this case, not only do we know that the Senate

453
00:32:01,480 --> 00:32:05,840
Speaker 3: would never convict either Alito or Thomas, we know that

454
00:32:05,920 --> 00:32:09,680
Speaker 3: the House is presently constituted isn't even going to open

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00:32:09,680 --> 00:32:14,160
Speaker 3: an investigation into these allegations. I think, particularly when the

456
00:32:14,240 --> 00:32:18,400
Speaker 3: allegations are themselves I think constitutionally pretty weak. As I said,

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00:32:18,440 --> 00:32:22,240
Speaker 3: I think the Alito case is in the non existent

458
00:32:22,800 --> 00:32:27,280
Speaker 3: constitutionally the case made against Thomas, particularly the first two

459
00:32:27,360 --> 00:32:30,200
Speaker 3: articles I think are very very tho and the third

460
00:32:30,280 --> 00:32:34,040
Speaker 3: article is borderline. I think it makes very very very

461
00:32:34,080 --> 00:32:37,960
Speaker 3: little sense to launch into impeachments where you're not even

462
00:32:37,960 --> 00:32:44,080
Speaker 3: getting an investigation. I personally, I disapprove of using a

463
00:32:44,160 --> 00:32:49,840
Speaker 3: constitutional mechanism as serious as impeachment as a means of

464
00:32:50,240 --> 00:32:53,600
Speaker 3: political signaling or it has no other function. I think

465
00:32:53,600 --> 00:32:59,360
Speaker 3: that trivializes impeachment, and I think trivializing impeachment is itself dangerous,

466
00:33:00,080 --> 00:33:02,960
Speaker 3: rapidly reaching that point if we haven't passed it in

467
00:33:03,080 --> 00:33:06,360
Speaker 3: days gone by, certainly in the days of my relative youth,

468
00:33:07,360 --> 00:33:10,080
Speaker 3: you know, somebody brought an impeachment allegation. You know that

469
00:33:10,240 --> 00:33:14,000
Speaker 3: was serious business, and people who pay the content in

470
00:33:14,200 --> 00:33:17,400
Speaker 3: national government picked up their ears and said, Mogley, if

471
00:33:17,440 --> 00:33:21,479
Speaker 3: you know this, if somebody is seriously maintaining that this

472
00:33:21,640 --> 00:33:24,840
Speaker 3: or that conduct by an officials impeachable, well that's something

473
00:33:24,880 --> 00:33:26,720
Speaker 3: we ought to pay attention to. We ought at least

474
00:33:26,960 --> 00:33:31,520
Speaker 3: listen to the to the case for impeachment, impeaching people

475
00:33:32,000 --> 00:33:36,560
Speaker 3: or you know, filing impeachment resolutions when it can't accomplish anything.

476
00:33:36,680 --> 00:33:40,880
Speaker 3: Not even getting an investigation seems to me a very

477
00:33:40,920 --> 00:33:46,120
Speaker 3: bad idea. It just trivializes the mechanism of impeachment. It

478
00:33:46,160 --> 00:33:50,120
Speaker 3: creates a situation where where nobody even cares, and I

479
00:33:50,160 --> 00:33:53,520
Speaker 3: think that's bad. We've already gone a long distance to

480
00:33:53,640 --> 00:33:59,680
Speaker 3: rendering impeachment effectively useless against official misconduct, and I think

481
00:33:59,760 --> 00:34:02,360
Speaker 3: this kind of thing goes further in that direction.

482
00:34:02,640 --> 00:34:05,760
Speaker 2: Thanks so much for joining us. That's Professor Frank Bowman

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00:34:05,840 --> 00:34:09,160
Speaker 2: of the University of Missouri Law School, and that's it

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00:34:09,200 --> 00:34:11,799
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

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00:34:11,800 --> 00:34:14,280
Speaker 2: can always get the latest legal news on our Bloomberg

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00:34:14,360 --> 00:34:18,000
Speaker 2: Law podcasts. You can find them on Apple Podcasts, Spotify,

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00:34:18,160 --> 00:34:23,200
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

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00:34:23,600 --> 00:34:26,200
Speaker 2: and remember to tune into The Bloomberg Law Show every

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00:34:26,239 --> 00:34:30,160
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

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00:34:30,280 --> 00:34:31,880
Speaker 2: and you're listening to Bloomberg