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Speaker 1: Welcome to the Boomberg Law Show. I'm June Grosso. Ahead

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Speaker 1: in this hour the Colorado Supreme Court's historic decision kicking

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Speaker 1: Trump off the ballot, the new Texas law allowing police

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Speaker 1: to arrest migrants here illegally. Corporate bankruptcies were on the

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Speaker 1: rise in twenty twenty three, and federal public defenders take

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Speaker 1: their place at the Supreme Court lectern. On Tuesday, the

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Speaker 1: Colorado Supreme Court made an unprecedented and stunning decision removing

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Speaker 1: Donald Trump from the state's March fifth primary ballot. The

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Speaker 1: court ruled that Trump's efforts to overturn the twenty twenty

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Speaker 1: election results disqualify him from serving as president again under

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Speaker 1: Section three of the fourteenth Amendment, which bans insurrectionists from

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Speaker 1: holding public office. Trump's rivals for the Republican presidential nomination,

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Speaker 1: like former New Jersey Governor Chris Christi and former UN

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Speaker 1: Ambassador Nicky Haley, criticized the decision.

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Speaker 2: I do not believe Donald Trump should be prevented from

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Speaker 2: being president United States by any court. I think he

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Speaker 2: should be prevented from being president United States by the

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Speaker 2: voters of this country.

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Speaker 1: So I want to say this in the hands of

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Speaker 1: the voters. We're going to win this the right way.

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Speaker 1: We're going to do what we need to do. But

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Speaker 1: the last thing we want is judge just telling us

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Speaker 1: who can and can't be on that. Trump's campaign immediately

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Speaker 1: said it would appeal the decision to the US Supreme Court.

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Speaker 1: Joining me is Harold Krant, a professor at the Chicago

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Speaker 1: Kent College of Law. The text of the fourteenth Amendment

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Speaker 1: doesn't actually define an insurrection or spell out what it

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Speaker 1: means to engage in insurrection. Yet the court upheld the

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Speaker 1: trial judge's conclusion that the January sixth assault was an

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Speaker 1: insurrection that Trump engaged in that insurrection. Is that a

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Speaker 1: big jump for the court?

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Speaker 3: I think the jump is more about who gets to

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Speaker 3: make the call as to whether President Trump engaged an

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Speaker 3: insurrection or not. The definition of insurrection has to be

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Speaker 3: balanced with free speech rights. And now the Colorado Court,

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Speaker 3: not based upon a healing but based largely upon the

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Speaker 3: transcript of the January sixth Congressional investigation, held that President

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Speaker 3: Trump's talk went over the line to actually cite imminent

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Speaker 3: violence and not just to speak more generally about the

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Speaker 3: importance of being vigilant and showing your voice. In my view,

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Speaker 3: I think the Corlado Supreme Court had a very persuasive

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Speaker 3: decision on that ground that there was in fact more

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Speaker 3: than just talk, but rather the talk was inextricably linked

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Speaker 3: with imminent action on that day to stop the electors

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Speaker 3: from certifying Joe Biden as the next president. But the

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Speaker 3: real question in my mind is who makes that call.

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Speaker 3: Is this to be made after a trial? Is this

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Speaker 3: to be made after an evidentiary hearing? And that's the

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Speaker 3: thicket that the Colorado Supreme Court has entered into.

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Speaker 1: Section three doesn't mention the presidency, and the Colorado Justices

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Speaker 1: broke from the trial judge on this one key issue

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Speaker 1: which makes the difference. They reversed her decision that the

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Speaker 1: insurrection ban applies to every office except the presidency. Where

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Speaker 1: do you stand on that?

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Speaker 3: I think that the Carlos Supreme Court was on very

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Speaker 3: strong ground in rejecting the Trial Court's decision that all

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Speaker 3: other officers of the United States are covered by the

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Speaker 3: insurrection clause except for the president. To be sure, the

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Speaker 3: president is not named explicitly, but the president is an

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Speaker 3: officer in the United States in common parlance, the president

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Speaker 3: does take an oath to uphold the Constitution like other officers.

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Speaker 3: And indeed, one of the principal reasons for the fourteenth

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Speaker 3: Amendment was to prevent people like Jefferson Davis, who was

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Speaker 3: the President of Confederacy, from ever being able to hold

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Speaker 3: office again. And under the trial court's reasoning, Jefferson Davis

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Speaker 3: could have run for president. And that just seems to

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Speaker 3: be so far afieled from what the framers of the

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Speaker 3: fourteenth Amendment thought that I think it's on very weak round.

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Speaker 3: So I think on this particular issue, the Chilote Supreme

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Speaker 3: Court at the far stronger decision.

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Speaker 1: All seven justices were appointed by democratic governors. It was

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Speaker 1: a four to three ruling, and the three justices who

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Speaker 1: dissented did so on procedural grounds. Do the descents offer

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Speaker 1: a sort of framework for arguments that Trump can make

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Speaker 1: to try to overturn the ruling?

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Speaker 3: The arguments were connected in this sense. The question really focused,

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Speaker 3: in different language, on whether a challenge to a ballot

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Speaker 3: listing is the proper procedure to determine whether someone engage

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Speaker 3: in insurrection. Viewed at the most sort of global level,

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Speaker 3: the question is whether number fourteen is self executing, and

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Speaker 3: by that we mean can any voter trigger a question

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Speaker 3: as to the qualification under the fourteenth Amendment, or rather,

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Speaker 3: does Congress have to set a procedure out in which

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Speaker 3: the question of insurrection and qualification can be measured. So,

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Speaker 3: for instance, in eighteen seventy the Congress did pass an

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Speaker 3: Insurrection Act under which the attorneys of the United States

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Speaker 3: could go to court to challenge the ability of a

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Speaker 3: former Confederate officer to serve a federal office. That was

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Speaker 3: repealed in nineteen forty eight. And so the question would

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Speaker 3: be whether we have to await another congressional sort of

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Speaker 3: decision as to how to enforce the terms of Lement fourteen,

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Speaker 3: Section three. And that's the very fraught issue which has

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Speaker 3: obviously never been clearly determined one way or the other,

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Speaker 3: because there is a kind of logic to the sense

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Speaker 3: that we should wait for Congress to tell us how

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Speaker 3: to enforce this provision, as opposed to just individual voters

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Speaker 3: triggering an election board to make this very complicated decision

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Speaker 3: based upon almost no precedence whatsoever. I should also add

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Speaker 3: that Congress does have a criminal provision which provides for

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Speaker 3: disqualification from office as well for eighteen insurrection, but that

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Speaker 3: was replete with all the protections of the criminal trial,

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Speaker 3: and Jack Smith, the Special Council has not charged President

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Speaker 3: Trump under this section, whether he's chosen other provisions to

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Speaker 3: charging with. So we do have a process now implicitly

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Speaker 3: in order to determine whether someone's engage in insurrection and

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Speaker 3: therefore disqualified, but that has not been pursued. And so

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Speaker 3: the major question I think, looking under all of this

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Speaker 3: is whether, again under different formats, whether this Colorado election

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Speaker 3: challenge with the appropriate vehicle for determining whether or not

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Speaker 3: a insurrection indeed took place which would lead to the

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Speaker 3: disqualification of the candidates.

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Speaker 1: Do you think it's a close call?

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Speaker 4: Though, so at.

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Speaker 3: Least odd if not inconsistent with the Constitution to say

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Speaker 3: that this incredibly important decision made on an expertity basis,

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Speaker 3: without a jury and without many of the safeguards of

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Speaker 3: a criminal trial. Now, if indeed the framers of the

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Speaker 3: amendment thought that that was appropriate, so be it. But

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Speaker 3: you'd have to have, I think, in my mind, for

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Speaker 3: the clear evidence that that's what the framers had in mind.

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Speaker 3: The other issue that was raised in descent was want

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Speaker 3: to due process, that this is not a full and

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Speaker 3: fair trial, and the former president did not have those

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Speaker 3: kind of procedure protections before being thrown off the ballot.

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Speaker 3: I don't think that argument's going to hold up at all.

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Speaker 3: I think the real issue is not one of protecting

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Speaker 3: former President Trump, but one of protecting the electorate. And

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Speaker 3: so I think the extent that the dissenting justice made

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Speaker 3: this point in the case, the real argument is we

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Speaker 3: want to make surely a very careful process before we

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Speaker 3: deny the will of the people. And so to the

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Speaker 3: extent that there were concerns about this truncated process that

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Speaker 3: would go to making sure we have full and adequate

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Speaker 3: protection for the electorate, not for the individual who's seeking office.

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Speaker 3: But altogether, I think it's a very close case, not

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Speaker 3: because of whether or not President Trust engaged in the insurrection,

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Speaker 3: and there was no dissenting justice on that point, but

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Speaker 3: rather on the question is this the form? Is this

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Speaker 3: the time to make the determination in each of the

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Speaker 3: states as to whether from vision insurrection, because obviously that's

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Speaker 3: just going to lead to a different result in different states.

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Speaker 1: The Supreme Court, of course, has a conservative supermajority. Is

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Speaker 1: there anything you can conclude from that lineup that tells

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Speaker 1: you about how they'll approach the case.

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Speaker 3: My guess is they won't touch the question of whether

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Speaker 3: President Trump engaged in insurrection, but rather they will decide

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Speaker 3: that whatever the proper procedure is to determine whether someone

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Speaker 3: engaged in insurrection, that this process is wanting and therefore

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Speaker 3: cannot stand. But of course, at the same time, they

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Speaker 3: will be forced to make a call as to what

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Speaker 3: the proper process would be and whether or not it's

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Speaker 3: up to Congress to set the guidelines for any kind

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Speaker 3: of inquiry that would be this qualification.

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Speaker 1: The conservatives on the Court ar textualists, So do you

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Speaker 1: think they'll analyze this by looking at the language of

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Speaker 1: the fourteenth Amendment?

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Speaker 3: The language in this case is simply not clear. No

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Speaker 3: one can say for certain that the language forces a

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Speaker 3: particular outcome. The Court will be grappling with the history

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Speaker 3: of the fourteenth Amendment. That has to be center of

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Speaker 3: any kind of analysis. And we know the issue that

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Speaker 3: the Congress fased was what to do about all of

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Speaker 3: those Confederate officers to make sure they didn't resume positions

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Speaker 3: of authority, and this clause was aim the preventing that.

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Speaker 3: And the question is how the Court can make sense

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Speaker 3: of that without agreeing with the Kalauado Supreme Court. And

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Speaker 3: I think again, the way they can try to put

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Speaker 3: those two competing sort of vectors together is by saying absolutely,

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Speaker 3: that's what Congress intended through the fourteenth Amendment, but it's

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Speaker 3: failed after appealing the eighteen seventy Insurrection Act of giving

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Speaker 3: another procedure that is adequate to make that include possible.

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Speaker 3: And so I guess now that's what I would think

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Speaker 3: the US Supreme Court would say.

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Speaker 1: The Court did decide on Friday not to grant Special

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Speaker 1: Counsel Jack Smith's request to fast track the question of

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Speaker 1: whether Trump is immune from prosecution in the January sixth case.

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Speaker 1: Thanks so much, Hal. That's Professor Harold Krant of the

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Speaker 1: Chicago Kent College of Law. Coming up next. Texas's new

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Speaker 1: law is a challenge to federal immigration authority. This is Bloomberg.

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Speaker 5: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 6: Cinder Bill four is now law in the state of Texas.

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Speaker 1: As record numbers of migrants are crossing the US Mexico

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Speaker 1: border illegally. Texas has passed a new law that allows

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Speaker 1: police to arrest the migrants and empowers local judges to

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Speaker 1: order them to leave the country.

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Speaker 6: The goal of CITEBEL four is to stop the title

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Speaker 6: wave of illegal entry into Texas. It creates a criminal

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Speaker 6: offense for illegal entry into Texas from a foreign nation.

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Speaker 1: Governor Greg Abbott signed the bill into law on Monday,

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Speaker 1: setting up a challenge to the federal government's exclusive enforcement

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Speaker 1: of immigration laws. Less than twenty four hours later, civil

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Speaker 1: rights groups and Texas's largest border county filed a suit

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Speaker 1: to stop the law from going into effect, calling it unconstitutional.

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Speaker 1: Joining me is immigration law expertly on Fresco, a partner

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Speaker 1: at Holland and Knight, Leon tell us about this new

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Speaker 1: Texas law, Well.

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Speaker 4: The law does two things. So the first one, which

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Speaker 4: is not controversial, devotes more money toward border security, and

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Speaker 4: that's for me that in terms of border security resources

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Speaker 4: for their officers, et cetera. There is some question about

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Speaker 4: some border barriers. That's the money is fun things to

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Speaker 4: see whether those border barriers are going to be deployed

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Speaker 4: in an unconstitutional manner. But that's one aspect. The more

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Speaker 4: controversial aspect is three new state law offenses that are

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Speaker 4: created by the statue. One is illegal entry from a

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Speaker 4: foreign nation, the second is illegal re entry, and third

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Speaker 4: is refusal to comply with an order to return to

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Speaker 4: the foreign nation.

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Speaker 1: And how would this work on the ground, so to speak.

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Speaker 4: So here's how basically this is going to work. Texas

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Speaker 4: will now have the authority to have its officers arrest

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Speaker 4: people that it thinks have illegally crossed from Mexico into

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Speaker 4: the United States. Now, what's interesting is the law doesn't

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Speaker 4: require a visual in order to arrest the person, so

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Speaker 4: it could be that the person was here a week

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Speaker 4: or two. And then this is where that's going to

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Speaker 4: get complicated, is it's almost certain they're going to get

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Speaker 4: some of those wrong if they actually make arrests like that.

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Speaker 4: But let's say they only limit the arrest the people

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Speaker 4: they've visually seen and illegally. The next step is those

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Speaker 4: people can be arrested and charged for a misdemeanor. And

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Speaker 4: the way it will work is they will go into

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Speaker 4: a court hearing where the judge will say, look, you

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Speaker 4: don't have to have this criminal conviction, but what you

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Speaker 4: have to agree to do is to go back to

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Speaker 4: Mexico and then we'll just call it even and there

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Speaker 4: won't be any conviction. If the person refuses to do that,

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Speaker 4: then the person will be charged and placed in prison

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Speaker 4: for up to six months under this Texas offense. And

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Speaker 4: then what Texas actually says is if they refuse to

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Speaker 4: comply with a condition that says after this release they

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Speaker 4: have to go back into Mexico, then they can actually

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Speaker 4: be re arrested and charged with a felony that would

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Speaker 4: put them in prison for up to twenty years. And

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Speaker 4: so this raises a whole bunch of questions such as

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Speaker 4: what happens if the person's asking for asylum and they

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Speaker 4: just get ensnared in this web in Texas when they

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Speaker 4: actually have to leave the country and lose their asylum claim,

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Speaker 4: or would they be able to have some sort of

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Speaker 4: way through this without having to potentially face twenty years

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Speaker 4: in prison. And that is pretty much the most egregious

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Speaker 4: unresolved aspects of the Texas law. But the main complaint

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Speaker 4: is that we have gone through this before with Arizona

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Speaker 4: doing something very similar, and at the end of the day,

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Speaker 4: the Arizona law being fricken down as being an illegal

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Speaker 4: state law encroachment into federal immigration enforcement.

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Speaker 1: Crossing between ports of entry is already a crime under

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Speaker 1: federal law. Isn't it aren't federal agents supposed to be

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Speaker 1: arresting migrants for that.

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Speaker 4: Absolutely, crossing the border illegally is a criminal offense under

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Speaker 4: federal law at the misdemeanor. The problem is the federal

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Speaker 4: government does not have anywhere near the resources it needs

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Speaker 4: to prosecute every single person who did this. We're on

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Speaker 4: paced currently to have something like three point six million

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Speaker 4: unlawful border crossings in twenty twenty three, twenty twenty four.

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Speaker 4: And what that would mean is you'd have to have

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Speaker 4: prison space, prison beds to put those people in the custody,

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Speaker 4: and there's nothing like that. So what the federal government

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Speaker 4: does is it only prosecutes people who are either criminals

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Speaker 4: who have re entered the United States or people who

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Speaker 4: are doing some other dangerous thing like drug smuggling or

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Speaker 4: something else while they're crossing the border. But just a

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Speaker 4: simple first time border crosser very rarely gets prosecuted at

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Speaker 4: the moment for unlawful entry in between the ports of entry.

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Speaker 1: Civil rights organizations sued less than twenty four hours after

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Speaker 1: Abbott signed the law. They're challenging the constitutionality of it,

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Speaker 1: and they cite that Supreme Court case in twenty twelve

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Speaker 1: in Arizona.

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Speaker 4: The ACLU sued in the Western District of Texas in Austin,

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Speaker 4: and they are suing on behalf of certain immigrant rights

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Speaker 4: groups and also on behalf of Elpaso County, and they're

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Speaker 4: suing the State of Texas. Public officials saying that at

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Speaker 4: the end of the day, they need injunctive relief from

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Speaker 4: this SB four in Texas because this is the exact

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Speaker 4: same scenario as Arizona. That a state cannot criminalize being

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Speaker 4: unlawfully present, because that is a federal immigration enforcement prerogative

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Speaker 4: and it is not something that the State of Texas

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Speaker 4: can do. The State of Texas is preempted by federal

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Speaker 4: law from doing it.

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Speaker 1: If or when this gets to the Supreme Court, how

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Speaker 1: do you think that justices will line up.

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Speaker 4: It is expected that there will be three justices, you know,

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Speaker 4: the liberal three Soto, Mayor, Jackson, and Kagan who will

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Speaker 4: be sympathetic to such a claim, and Justice Roberts also

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Speaker 4: voted on the side of the federal government and against Arizona.

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Speaker 4: In the Arizona case. There will be two justices Alito

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Speaker 4: and Thomas, who voted on the side of Arizona during

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Speaker 4: the Arizona case, And so what we do not know

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Speaker 4: is what about the remaining three new ones, Kavanaugh, Gorsiz,

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Speaker 4: and Amy Cony Barrett. Are they going to side with

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Speaker 4: the state of Texas and overturn the Arizona case and

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Speaker 4: say that states can indeed do prosecutions if they're literally

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Speaker 4: prosecuting the exact same thing that the federal government is

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Speaker 4: prosecuting and that's something different.

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Speaker 3: Or will they.

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Speaker 4: Rule to keep the Arizona president and say that this

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Speaker 4: cannot be done and we're not going to overturn that president.

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Speaker 4: And so we will see. There's good arguments on both

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Speaker 4: sides of this. Certainly, the federal government prosecutes drug offenses

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Speaker 4: as the state government, so both do that, but by

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Speaker 4: the same token, states don't prosecute things such as failing

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Speaker 4: to file your federal tax return that's not only by

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Speaker 4: the federal government. And so we're going to see where

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Speaker 4: along the line does immigration fall.

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Speaker 1: There's also a question about whether Texas can process all

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Speaker 1: these people if they do make arrests, because some border

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Speaker 1: sheriffs have expressed concerns that this would overwhelm the local

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Speaker 1: jails and courts.

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Speaker 4: That's correct, The purpose of this law would not actually

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Speaker 4: be to arrest the border crossers coming into Texas in

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Speaker 4: sort of a massive scale. It would be just to

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Speaker 4: create fear that you could be one of the people

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Speaker 4: that get stuck in this Texas web and so don't

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Speaker 4: come into Texas. And I think what they would try

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Speaker 4: to do is create enough examples to scare enough people

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Speaker 4: to try to move people out from Texas and into

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Speaker 4: other locations, and that would be their goal. But you're

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Speaker 4: correct to say that in the actual goal was to

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Speaker 4: arrest every person coming into Texas, and there wasn't a

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Speaker 4: reduction based off of fear. There was no way they

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Speaker 4: could do it. They Texas would have no way to

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Speaker 4: actually arrest and detain a million people or a million

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Speaker 4: and a half people coming into Texas. But what they

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Speaker 4: could do is if they get enough stories out there

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Speaker 4: of just terrible circumstances face by people that entered Texas,

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Speaker 4: their ideal scenario would be that people stop entering because

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Speaker 4: they heard of these terrible scenarios.

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Speaker 1: And Governor Abbott is continuing with his Buzzing operation, which

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Speaker 1: has sent more than eighty thousand migrants this year to

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Speaker 1: democratic led cities. He sent a plane with one hundred

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Speaker 1: and twenty migrants to Chicago this week. Thanks so much. Leon.

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Speaker 1: That's Leon Fresco of Holland and Knight. Coming up next

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Speaker 1: on the Bloomberg Launch Show. Why more federal public defenders

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Speaker 1: are taking the lectern at the Supreme Court. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg.

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Speaker 5: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 3: Mister Adler, mister Chief Justice, and may it please the Court.

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Speaker 3: The nine to twenty two g offense is what triggers

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Speaker 3: acus penalties.

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Speaker 1: Assistant Federal public defender Andrew Adler made his third trip

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Speaker 1: to the US Supreme Court lector in last month, arguing

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Speaker 1: that his client should not be subject to a fifteen

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Speaker 1: year mandatory minimum. Adler is one of a handful of

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Speaker 1: federal public defenders who've argued more than once before the justices.

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Speaker 1: With a Supreme Court hearing fewer and fewer cases each term,

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Speaker 1: the criminal defense attorneys face intense pressure from elite law

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Speaker 1: firms to turn over their Supreme Court cases to experienced advocates.

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Speaker 1: Joining me is Bloomberg. Last Supreme Court reporter Kimberly Robinson.

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Speaker 1: Kimberly tell us about the pressure put on first time

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Speaker 1: advocates before the court.

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Speaker 7: Well, it's not a secret that whenever a case is

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Speaker 7: granted by the justices, the advocate, if they're not a

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Speaker 7: court veteran, will face intense pressure. You know, they'll get calls,

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Speaker 7: emails from large law firms from Scotis veterans offering to

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Speaker 7: take their case for free, to help them out. But

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Speaker 7: the help often means to argue the case. And so

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Speaker 7: it's one way that you know, as the justices are

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Speaker 7: granting and fewer cases, it's one way for advocates to

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Speaker 7: show their faces in front of the justices frequently, and

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Speaker 7: this one that sometimes gets a lot of people to

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Speaker 7: turn over their cases. But the federal defenders have tried

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Speaker 7: to keep their cases when it makes sense within the

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Speaker 7: offices themselves.

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Speaker 1: There's even been criticism from some justices. You wrote about

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Speaker 1: Justice Sonya Sotomayor in twenty fourteen said it was malpractice

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Speaker 1: for any lawyer who thinks this is my one shot

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Speaker 1: before the Supreme Court and I have to take it.

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Speaker 1: Have other justices commented as well.

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Speaker 7: Yes, there was similar criticism from Justice Kagan around the

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Speaker 7: same time, where she talked about, you know, the one

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Speaker 7: group consistently who is getting for advocacy in front of

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Speaker 7: the justices were criminal defendants, and that of course includes

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Speaker 7: federal public defenders. She talked about the same thing that

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Speaker 7: people wanting to have their one shot in front of

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Speaker 7: the Supreme Court. And we've seen a lot of first

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Speaker 7: time advocates, a lot of advocates of these criminal cases

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Speaker 7: who do not do you know, the best job for

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Speaker 7: their clients. But that's not always the case. And again,

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Speaker 7: you know that that's something that the federal defenders are

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Speaker 7: trying to make sure it doesn't happen in their cases.

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Speaker 1: And the Supreme Court bar is an elite group? Is

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Speaker 1: it an elitist group too?

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Speaker 7: Well, that's what you know. One of the federal defenders

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Speaker 7: told me, is that there is a bit of elitism

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Speaker 7: that goes on this idea that you know, only certain

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Speaker 7: people can do this. I mean, you know, these federal defenders,

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Speaker 7: they are appellate specialists, they are criminal specialists. They argue

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Speaker 7: in from a lot of the other courts of appeals.

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Speaker 7: So it's not as if they don't have experience. But

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Speaker 7: one thing that they do often have is a real

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Speaker 7: clear understanding of the criminal law and the way that

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Speaker 7: happens practically, and we actually saw that in action when

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Speaker 7: a federal defender took the lectern this week and argued

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Speaker 7: a case. He was able to give the justice this

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Speaker 7: is really a practical on the ground look about. You

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Speaker 7: know what it is that criminal defense attorneys advised their

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Speaker 7: clients of and what sort of those interactions look like

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Speaker 7: something that you know, a Supreme Court veteran, for all

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Speaker 7: the wonderful things they can do, probably couldn't do.

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Speaker 1: That was that Andrew Adler, That was yes.

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Speaker 7: And this was actually his third time at the Supreme

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Speaker 7: Court lecturn, So he's one of a few federal defenders

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Speaker 7: that have gone to the Supreme Court and argued more

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Speaker 7: than one.

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Speaker 1: Yeah, and a few people mentioned that right off the

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Speaker 1: bat he presented this hypothetical to the justices that really

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Speaker 1: grabbed them.

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Speaker 7: It did, and so you know, it was in his

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Speaker 7: opening two minutes the Supreme Court. It doesn't sound like

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Speaker 7: a long time, but the Supreme Court has said they're

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Speaker 7: going to give advocates an uninterrupted two minutes, and it's

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Speaker 7: kind of when the advocates can make their best arguments

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Speaker 7: without getting interrupted. And in that two minutes he mentioned

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Speaker 7: this specific hypothetical and it came up again and again

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Speaker 7: and again from the justices. They asked the other attorney

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Speaker 7: about it, showed he was really making good use of

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Speaker 7: that first two minutes of uninterrupted time. And you know, ultimately,

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Speaker 7: I think it'll probably will be the way that the

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Speaker 7: case goes and could end up in the opinions.

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Speaker 1: There are some advocates that have been up there so

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Speaker 1: many times. The justices know them and perhaps know them

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Speaker 1: even because you know, they attend functions with them and

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Speaker 1: things like that. I mean, do you think that's an

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Speaker 1: advantage when the Supreme Court knows who you are, like

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Speaker 1: for example, former solicitor generals.

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Speaker 8: You know, it can be.

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Speaker 7: I think one of the things that people tell me

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Speaker 7: it's the biggest advantage of you know, those repeat players

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Speaker 7: at the Supreme Court, is that they know what the

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Speaker 7: justices are looking for. They know that. You know, when

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Speaker 7: a justice gives you a hypothetical, you don't fight the hypothetical.

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Speaker 7: You answer the question no matter how ridiculous it is,

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Speaker 7: no matter how much it hurst your argument. I need

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Speaker 7: to sort of do the best you can. And so

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Speaker 7: it's sort of like having a home field advantage. There

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Speaker 7: is the way that one advocate put it to me,

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Speaker 7: is that you you just know what to expect from

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Speaker 7: them and know what's going to be the most helpful

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Speaker 7: to them.

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Speaker 1: Tell us about the Defender Supreme Court Resource and Assistance Panel.

441
00:25:13,440 --> 00:25:14,200
Speaker 1: What is it doing.

442
00:25:14,560 --> 00:25:19,320
Speaker 7: So this is probably the worst acronym name is called

443
00:25:19,440 --> 00:25:23,439
Speaker 7: the Scrap, But the Scrap is really just a group

444
00:25:23,480 --> 00:25:26,720
Speaker 7: of federal defenders that do have some high court experience.

445
00:25:26,840 --> 00:25:29,080
Speaker 7: You know, it started out very informally, but after some

446
00:25:29,160 --> 00:25:31,520
Speaker 7: of the criticism that we talked about, you know, from

447
00:25:31,560 --> 00:25:35,160
Speaker 7: the justices, federal defenders from around the country is sort

448
00:25:35,200 --> 00:25:37,240
Speaker 7: of said, Okay, we need to do something about this.

449
00:25:37,359 --> 00:25:39,159
Speaker 7: We need to make sure that we aren't you know,

450
00:25:39,200 --> 00:25:41,760
Speaker 7: these people who the justices that are talking about giving

451
00:25:41,760 --> 00:25:44,879
Speaker 7: poor advocacy, and so, you know what they do is,

452
00:25:45,040 --> 00:25:48,159
Speaker 7: to varying degrees, they will reach out to the person

453
00:25:48,400 --> 00:25:51,960
Speaker 7: whose case got granted. They will help with strategizing a bit,

454
00:25:52,320 --> 00:25:55,399
Speaker 7: they'll help with brief writing, they'll do moot courts and

455
00:25:55,520 --> 00:25:58,639
Speaker 7: just sort of give advice to help them alleviate that

456
00:25:58,720 --> 00:26:00,840
Speaker 7: home field advantage and let them know what it is

457
00:26:00,840 --> 00:26:04,119
Speaker 7: that the justices expect. And so it's sort of like

458
00:26:04,359 --> 00:26:07,720
Speaker 7: a home grown support group. But if Andrew Adler's argument

459
00:26:07,840 --> 00:26:09,720
Speaker 7: is any indication it seems to be doing a really

460
00:26:09,720 --> 00:26:10,160
Speaker 7: good job.

461
00:26:10,560 --> 00:26:13,119
Speaker 1: You point out something which I hadn't thought about that

462
00:26:13,200 --> 00:26:16,919
Speaker 1: it seems often like a David and Goliath situation because

463
00:26:17,000 --> 00:26:21,320
Speaker 1: the federal public defenders are almost always facing attorneys from

464
00:26:21,359 --> 00:26:25,520
Speaker 1: the Solicitor General's Office who get a lot of chances.

465
00:26:25,119 --> 00:26:26,640
Speaker 4: To argue they do.

466
00:26:26,760 --> 00:26:29,160
Speaker 7: I mean, you know these are people. You know, there

467
00:26:29,160 --> 00:26:32,280
Speaker 7: are maybe three or four people who currently argue at

468
00:26:32,280 --> 00:26:34,800
Speaker 7: the Court who have argued more than one hundred cases,

469
00:26:35,160 --> 00:26:38,280
Speaker 7: all of them spent time in the Solicitor General's office

470
00:26:38,320 --> 00:26:40,440
Speaker 7: because that's the place you go if you want to

471
00:26:40,480 --> 00:26:44,000
Speaker 7: get a lot of experience with Supreme Court advocacy. You know,

472
00:26:44,040 --> 00:26:47,000
Speaker 7: they can argue to three four cases in a term

473
00:26:47,400 --> 00:26:50,800
Speaker 7: each individual attorney in that office, whereas you know, some

474
00:26:50,960 --> 00:26:54,920
Speaker 7: advocates who are we consider veterans can go years without

475
00:26:54,920 --> 00:26:56,920
Speaker 7: having a case before the Supreme Court. So it really

476
00:26:57,000 --> 00:26:59,919
Speaker 7: is a lot like David Goliath in that sense.

477
00:27:00,400 --> 00:27:02,520
Speaker 1: I know there are a lot of Supreme Court clinics

478
00:27:02,680 --> 00:27:05,440
Speaker 1: at law schools around the country. Do any other clinics

479
00:27:05,520 --> 00:27:09,400
Speaker 1: offer the same kind of help to federal public defenders?

480
00:27:09,760 --> 00:27:12,280
Speaker 7: They do? And actually, you know d scrap hooks up

481
00:27:12,320 --> 00:27:14,240
Speaker 7: with a lot of these clinics. So, you know, the

482
00:27:14,280 --> 00:27:16,600
Speaker 7: case that we've been talking about, they hooked up with

483
00:27:16,720 --> 00:27:19,280
Speaker 7: the Supreme Court clinic out in Stanford. A lot of

484
00:27:19,359 --> 00:27:23,000
Speaker 7: law firms to wal Office support. Sidley Austin, who actually

485
00:27:23,080 --> 00:27:26,600
Speaker 7: argued the companion case to this case that we're talking about, often,

486
00:27:26,800 --> 00:27:29,480
Speaker 7: you know, is involved with D scrap and federal defenders,

487
00:27:29,480 --> 00:27:31,560
Speaker 7: so they get a lot of support from the outside

488
00:27:31,640 --> 00:27:34,439
Speaker 7: as well. And you know, I think it's really about

489
00:27:34,480 --> 00:27:38,000
Speaker 7: finding people who are willing to help you out, but

490
00:27:38,359 --> 00:27:41,640
Speaker 7: not mean help, means take the argument away. So there

491
00:27:41,760 --> 00:27:42,920
Speaker 7: is that outside help too.

492
00:27:43,119 --> 00:27:45,600
Speaker 1: Yeah, I'm going to say that d scrap is for

493
00:27:45,800 --> 00:27:50,840
Speaker 1: scrappy defense lawyers. That's what it stands for. Let's talk

494
00:27:50,880 --> 00:27:55,040
Speaker 1: about the case that Andrew Adler argued in and the

495
00:27:55,119 --> 00:27:59,240
Speaker 1: cases involving the Arm Career Criminal Act always seem to

496
00:27:59,240 --> 00:28:03,840
Speaker 1: be what's so technical that I often ignore them, but

497
00:28:03,960 --> 00:28:07,399
Speaker 1: they're important. Tell us about this one. What the issue was?

498
00:28:07,800 --> 00:28:10,640
Speaker 7: Sure, So the Arm Career Criminal Act, you know, has

499
00:28:10,640 --> 00:28:14,320
Speaker 7: some really stiff senses for people who illegally possess a gun.

500
00:28:14,400 --> 00:28:18,720
Speaker 7: So think Sellen or somebody who is convicted of major

501
00:28:19,000 --> 00:28:21,399
Speaker 7: you know, drug crimes. And that's actually what's at issue

502
00:28:21,440 --> 00:28:25,000
Speaker 7: here is that if you are convicted of three quote,

503
00:28:25,040 --> 00:28:29,320
Speaker 7: serious drug crimes and then you're convicted of illegally possessing

504
00:28:29,359 --> 00:28:33,400
Speaker 7: a firearm under AGA, there's a fifteen year mandatory minimum.

505
00:28:33,560 --> 00:28:37,000
Speaker 7: I mean that's a lot. And so the question here

506
00:28:37,359 --> 00:28:41,200
Speaker 7: is how do we decide who's eligible for that fifteen

507
00:28:41,280 --> 00:28:44,240
Speaker 7: year minimum. And it's really a temporal question, you know,

508
00:28:44,760 --> 00:28:46,840
Speaker 7: is the relevant time period that we're trying to see

509
00:28:46,840 --> 00:28:50,040
Speaker 7: if these crimes are serious? Is it when those crimes

510
00:28:50,040 --> 00:28:53,080
Speaker 7: were committed or is it now today as we're deciding

511
00:28:53,120 --> 00:28:55,920
Speaker 7: your firearms case. So it is really a technical question.

512
00:28:56,600 --> 00:28:59,600
Speaker 1: It certainly is Thanks so much, Kimberly. That's Bloomberg lat

513
00:28:59,640 --> 00:29:04,320
Speaker 1: Supreme Court reporter Kimberly Robinson coming up. Corporate bankruptcies were

514
00:29:04,320 --> 00:29:06,680
Speaker 1: on the rise this year. This is Bloomberg.

515
00:29:07,200 --> 00:29:07,720
Speaker 2: What do you.

516
00:29:07,800 --> 00:29:15,280
Speaker 8: Think when I say workspace cubicles, ugly furniture, bad fluorescent

517
00:29:15,360 --> 00:29:17,600
Speaker 8: lighting exactly?

518
00:29:18,680 --> 00:29:22,360
Speaker 5: The future of work looks different for selling an experience.

519
00:29:23,440 --> 00:29:26,720
Speaker 5: If we need a name, we we live, we dream,

520
00:29:27,160 --> 00:29:27,640
Speaker 5: we work.

521
00:29:29,440 --> 00:29:31,959
Speaker 1: It's not often that you have a TV drama series

522
00:29:32,000 --> 00:29:36,200
Speaker 1: about corporate bankruptcy, but this year there was we Crashed

523
00:29:36,240 --> 00:29:39,480
Speaker 1: on Apple TV about the rise and fall of We Work,

524
00:29:39,840 --> 00:29:43,920
Speaker 1: Painkiller on Netflix about Perdue pharma and the opioid epidemic,

525
00:29:44,240 --> 00:29:47,160
Speaker 1: and In the Making is an Amazon series about the

526
00:29:47,200 --> 00:29:52,040
Speaker 1: collapse of FTX. US corporate bankruptcies are at the highest

527
00:29:52,120 --> 00:29:55,000
Speaker 1: level since twenty twenty. There have been five hundred and

528
00:29:55,080 --> 00:29:58,920
Speaker 1: ninety one US corporate bankruptcy filings in the first eleven

529
00:29:58,960 --> 00:30:01,640
Speaker 1: months of the year, according to data from S and

530
00:30:01,680 --> 00:30:06,520
Speaker 1: P Global Market Intelligence. Joining me is bankruptcy expert Joseph Acosta,

531
00:30:06,800 --> 00:30:10,440
Speaker 1: a partner at Dorsey and Whitney. So why all these

532
00:30:10,520 --> 00:30:15,080
Speaker 1: corporate bankruptcies? Is it the end of super low interest rates,

533
00:30:15,360 --> 00:30:16,440
Speaker 1: the rise of inflation?

534
00:30:17,080 --> 00:30:19,840
Speaker 8: Well, I think we're realizing the government can't support the

535
00:30:19,880 --> 00:30:22,520
Speaker 8: economy for that long. We had a lot of government

536
00:30:22,600 --> 00:30:25,360
Speaker 8: aid after the pandemic, and that has worn out, So

537
00:30:25,800 --> 00:30:29,800
Speaker 8: companies are now facing less government aid. Individuals are facing

538
00:30:29,880 --> 00:30:32,800
Speaker 8: less government as to pump money into the economy, and

539
00:30:32,960 --> 00:30:37,560
Speaker 8: there's inflationary pressures that cause industries to suffer from just

540
00:30:37,640 --> 00:30:39,120
Speaker 8: the debt servicing obligation.

541
00:30:39,320 --> 00:30:43,440
Speaker 1: The past several years have been tumultuous for retailers. In

542
00:30:43,520 --> 00:30:47,400
Speaker 1: twenty twenty, JC Penny Nieman Marcus and j Crew all

543
00:30:47,480 --> 00:30:52,320
Speaker 1: file for bankruptcy. What factors allow some retailers to continue

544
00:30:52,320 --> 00:30:52,800
Speaker 1: to hang on.

545
00:30:53,360 --> 00:30:55,560
Speaker 8: Party City is an example. They were able to hang

546
00:30:55,600 --> 00:30:59,080
Speaker 8: on for a while, but eventually they realized they weren't

547
00:30:59,120 --> 00:31:03,560
Speaker 8: generated enough. They suffered enough from the pandemics effects, and

548
00:31:03,880 --> 00:31:06,720
Speaker 8: to boot that, inflation came up, which made the best

549
00:31:06,800 --> 00:31:10,400
Speaker 8: servicing obligations higher. So they survived for a while, but

550
00:31:10,840 --> 00:31:13,320
Speaker 8: you know, they all suffered a con from the pandemic,

551
00:31:13,480 --> 00:31:16,640
Speaker 8: so there was less demands. If people aren't gathering, there's

552
00:31:16,680 --> 00:31:19,800
Speaker 8: less demands for balloons, less demands for parties, less demands

553
00:31:19,840 --> 00:31:22,240
Speaker 8: for everything. They were able to hang on for a while.

554
00:31:22,120 --> 00:31:23,120
Speaker 4: And they're still going to hang on.

555
00:31:23,320 --> 00:31:25,880
Speaker 8: It's just a matter of their feeling the effect from

556
00:31:25,920 --> 00:31:27,640
Speaker 8: the pandemic tell us about.

557
00:31:27,400 --> 00:31:31,320
Speaker 1: The We Work bankruptcy, which was a stunning fall from grace.

558
00:31:31,800 --> 00:31:35,520
Speaker 8: We were expanded too fast and it was focused more

559
00:31:35,560 --> 00:31:39,240
Speaker 8: on getting more space and building it out than actually

560
00:31:39,520 --> 00:31:43,000
Speaker 8: being profitable. So the concept of office there is you know,

561
00:31:43,040 --> 00:31:45,239
Speaker 8: if you take a bigger lease in a building and

562
00:31:45,280 --> 00:31:47,600
Speaker 8: you top it up to the smaller pieces and offer

563
00:31:47,640 --> 00:31:50,400
Speaker 8: it to the smaller tenant, the problem is that you're

564
00:31:50,440 --> 00:31:52,880
Speaker 8: on the hook for the entire leak, and you also

565
00:31:52,920 --> 00:31:55,240
Speaker 8: have to manage all those sub leases and pay the land,

566
00:31:55,480 --> 00:31:57,800
Speaker 8: so it's a lot of work. It's an interesting concept

567
00:31:57,800 --> 00:32:00,080
Speaker 8: that grew quickly. A lot of it was with the

568
00:32:00,160 --> 00:32:04,080
Speaker 8: help of venture capital, so it wasn't necessarily something that

569
00:32:04,120 --> 00:32:07,600
Speaker 8: they raised a lot of debt for. It was venture capital.

570
00:32:07,680 --> 00:32:11,000
Speaker 8: SoftBank supported them for a long time and they became

571
00:32:11,120 --> 00:32:13,360
Speaker 8: very popular. I like to say they became like the

572
00:32:13,480 --> 00:32:17,480
Speaker 8: MTV of office there they popularized the concept. What happened

573
00:32:17,520 --> 00:32:19,960
Speaker 8: is they were focused too much on getting locations. You know,

574
00:32:20,000 --> 00:32:22,760
Speaker 8: they grew up to seven hundred locations in thirty four countries.

575
00:32:22,800 --> 00:32:25,680
Speaker 8: They spent billions of dollars improving the properties, but they

576
00:32:25,720 --> 00:32:29,160
Speaker 8: didn't ever worry about bottom line. Am I profitable or not?

577
00:32:29,520 --> 00:32:32,560
Speaker 8: They just wanted to dominate the market and then worry

578
00:32:32,560 --> 00:32:36,560
Speaker 8: about profitability. Towards the end, they switched gear and started

579
00:32:36,560 --> 00:32:39,320
Speaker 8: focusing on profitability, but it was too late. They suffered

580
00:32:39,360 --> 00:32:42,440
Speaker 8: from the traditional pandemic loss of people coming to work,

581
00:32:42,600 --> 00:32:45,680
Speaker 8: and their membership suffered, so they couldn't raise enough revenue

582
00:32:45,800 --> 00:32:48,320
Speaker 8: to meet their debt service. So they had to restructure.

583
00:32:48,960 --> 00:32:51,800
Speaker 1: So when you look forward to twenty twenty four, do

584
00:32:51,840 --> 00:32:54,800
Speaker 1: you see sort of the headwinds changing. Do you think

585
00:32:54,920 --> 00:32:58,120
Speaker 1: bankruptcies will be on the rise or on the decline?

586
00:32:58,680 --> 00:33:02,240
Speaker 8: That is a million dollar question. But I believe inflation

587
00:33:02,320 --> 00:33:04,640
Speaker 8: is not going to go down anytime, so so more

588
00:33:04,680 --> 00:33:07,320
Speaker 8: companies are going to suffer from the same that people

589
00:33:07,320 --> 00:33:09,880
Speaker 8: have suffered in twenty twenty three, the Rite aids, the

590
00:33:10,160 --> 00:33:13,080
Speaker 8: WE Works, the Party City. If you're going to see

591
00:33:13,080 --> 00:33:17,240
Speaker 8: that in twenty twenty four, you're going to see real

592
00:33:17,320 --> 00:33:20,640
Speaker 8: estate suffering the trickle effects of the we works coming down.

593
00:33:20,840 --> 00:33:24,280
Speaker 8: More real estate suffer, as I mentioned before, than other

594
00:33:24,800 --> 00:33:28,200
Speaker 8: real estate investment trust while bankruptcy two years ago. So

595
00:33:28,440 --> 00:33:32,560
Speaker 8: mals are suffering because they're still change from regular brick

596
00:33:32,600 --> 00:33:36,200
Speaker 8: and mortar retail to more e commerce. I would say

597
00:33:36,560 --> 00:33:38,959
Speaker 8: the trend is going to stay the same. It's going

598
00:33:39,000 --> 00:33:42,520
Speaker 8: to be an upward trend towards more restructuring, more bankruptcy

599
00:33:42,560 --> 00:33:45,480
Speaker 8: in the future because of the macroeconomic issues and the

600
00:33:45,520 --> 00:33:47,719
Speaker 8: microeconomic issues that are facing these company.

601
00:33:48,040 --> 00:33:51,080
Speaker 1: Thanks for being on the show. That's Joseph Acosta of

602
00:33:51,200 --> 00:33:54,080
Speaker 1: Dorsey and Whitney, and that's it for this edition of

603
00:33:54,080 --> 00:33:56,720
Speaker 1: The Bloomberg Law Show. Remember you can always get the

604
00:33:56,800 --> 00:34:00,440
Speaker 1: latest legal news on our Bloomberg Law Podcast. Find them

605
00:34:00,440 --> 00:34:05,480
Speaker 1: on Apple Podcasts, Spotify, and at www dot bloomberg dot com,

606
00:34:05,520 --> 00:34:08,880
Speaker 1: slash podcast, slash Law, and remember to tune into The

607
00:34:08,880 --> 00:34:12,879
Speaker 1: Bloomberg Law Show every weeknight at ten pm Wall Street Time.

608
00:34:13,480 --> 00:34:16,160
Speaker 1: I'm June Grosso and you're listening to Bloomberg