1 00:00:01,200 --> 00:00:04,600 Speaker 1: Welcome to Bloomberg Lawn. I'm June Grosso. Ahead in this hour, 2 00:00:04,880 --> 00:00:09,400 Speaker 1: the Supreme Court appears ready to restore South Carolina's Republican 3 00:00:09,480 --> 00:00:12,840 Speaker 1: John Mapp, the star witness and former girlfriend, takes the 4 00:00:12,920 --> 00:00:16,160 Speaker 1: stand in the Sam Bankman Freed trial. Trump is looking 5 00:00:16,200 --> 00:00:19,360 Speaker 1: for a get out of jail free card, claiming absolute 6 00:00:19,480 --> 00:00:27,120 Speaker 1: presidential immunity and what is a legal hot tub. Prosecutors 7 00:00:27,120 --> 00:00:30,600 Speaker 1: have built their criminal fraud case against Sam Bankman Freed 8 00:00:30,880 --> 00:00:34,880 Speaker 1: by tapping into his inner circle and reaching cooperation deals 9 00:00:34,880 --> 00:00:38,160 Speaker 1: with three of his closest confidants, and one of them 10 00:00:38,240 --> 00:00:43,200 Speaker 1: is undoubtedly the government's star witness, Caroline Ellison, the former 11 00:00:43,320 --> 00:00:48,240 Speaker 1: CEO of Alameda Research and Sam Bankman Freed's former girlfriend. 12 00:00:48,479 --> 00:00:51,800 Speaker 1: She took the stand this week and testified that Bankman 13 00:00:51,920 --> 00:00:55,560 Speaker 1: Freed was the mastermind behind the scheme to use FTX 14 00:00:55,640 --> 00:01:00,880 Speaker 1: customer funds for speculative illegal trading at Alameda. Prosecutor has 15 00:01:00,920 --> 00:01:04,360 Speaker 1: played clips of the all hands meeting days before Alameda 16 00:01:04,400 --> 00:01:05,600 Speaker 1: file for bankruptcy. 17 00:01:05,959 --> 00:01:09,040 Speaker 2: Then, with Crypto being down, the crash the like credit 18 00:01:09,160 --> 00:01:13,360 Speaker 2: crunch this year, most of Alia's loans got called. In 19 00:01:13,440 --> 00:01:16,880 Speaker 2: order to meet those loan recalls, we ended up like 20 00:01:17,160 --> 00:01:19,480 Speaker 2: borrowing a bunch of funds on NTX, which led to 21 00:01:19,640 --> 00:01:22,360 Speaker 2: FTX having a shortfall in user funds. 22 00:01:22,600 --> 00:01:26,080 Speaker 1: In the tape ubchained by Business Insider, Ellison admitted that 23 00:01:26,120 --> 00:01:29,839 Speaker 1: she and bankman Freed knew Alameda was taking funds from 24 00:01:29,840 --> 00:01:32,720 Speaker 1: customers on FTX without their permission. 25 00:01:33,480 --> 00:01:36,479 Speaker 3: Did Alameda have the ability to touch user funds without 26 00:01:37,680 --> 00:01:39,639 Speaker 3: getting approval from FTX each time? 27 00:01:40,520 --> 00:01:41,959 Speaker 1: Uh? 28 00:01:42,040 --> 00:01:44,320 Speaker 2: Yeah, I mean I think basically the structure was that, 29 00:01:44,400 --> 00:01:49,080 Speaker 2: like Alameda could like kind of go negatives in coins 30 00:01:49,160 --> 00:01:51,160 Speaker 2: without needing to actually borrow. 31 00:01:50,920 --> 00:01:51,919 Speaker 4: Them on the stock market. 32 00:01:52,840 --> 00:01:55,960 Speaker 1: Joining me is Bloomberg legal reporter Chrys Dolmesh, who's been 33 00:01:55,960 --> 00:01:59,200 Speaker 1: covering the trial. Chris tell us about Ellison's demeanor on 34 00:01:59,240 --> 00:01:59,760 Speaker 1: the stand. 35 00:02:00,440 --> 00:02:02,880 Speaker 5: So she was pretty calm. She didn't raise her voice 36 00:02:02,920 --> 00:02:06,440 Speaker 5: really at all. She did get emotional near the end 37 00:02:06,480 --> 00:02:09,680 Speaker 5: of her direct testimony when she started talking about the 38 00:02:09,760 --> 00:02:13,120 Speaker 5: collapse of FPX and Alomatia in November twenty twenty two, 39 00:02:13,480 --> 00:02:16,160 Speaker 5: kind of recounting how she had been extremely stressed out 40 00:02:16,440 --> 00:02:19,040 Speaker 5: and worrying before that and was just kind of relieved 41 00:02:19,080 --> 00:02:21,440 Speaker 5: to be able to tell the truth about the whole situation. 42 00:02:21,800 --> 00:02:24,400 Speaker 5: And they played some audio clips of the all hands 43 00:02:24,440 --> 00:02:27,000 Speaker 5: meeting that she held on November ninth, after kind of 44 00:02:27,040 --> 00:02:29,440 Speaker 5: it had been revealed that Alameta's balance sheet was kind 45 00:02:29,440 --> 00:02:33,040 Speaker 5: of not accurate, and in that she's nervously laughing, but 46 00:02:33,200 --> 00:02:36,240 Speaker 5: she testified she really felt just reliefed at being able 47 00:02:36,280 --> 00:02:38,280 Speaker 5: to tell the truth. She seems just as calm on 48 00:02:38,320 --> 00:02:42,120 Speaker 5: that it's very straightforward. She really never raised her voice 49 00:02:42,240 --> 00:02:44,840 Speaker 5: or got upset except when she started to cry. 50 00:02:45,040 --> 00:02:50,400 Speaker 1: Were there texts or notes or documents that they used 51 00:02:50,400 --> 00:02:52,520 Speaker 1: to support her testimony. 52 00:02:52,040 --> 00:02:54,400 Speaker 5: Yeah, so there were quite a few. She and FBF 53 00:02:54,720 --> 00:02:58,040 Speaker 5: kind of communicated through the obvious ways that people communicate 54 00:02:58,120 --> 00:03:01,360 Speaker 5: nowadays in business, like slat, signaled, those sort of things. 55 00:03:01,480 --> 00:03:04,240 Speaker 5: You know, they had auto delete on their signal messages, 56 00:03:04,360 --> 00:03:06,799 Speaker 5: which she turned off in November and as things started 57 00:03:06,800 --> 00:03:09,679 Speaker 5: to get bad, but there were plenty of other documents. 58 00:03:09,760 --> 00:03:12,160 Speaker 5: They kind of talked about their relationship through a Google 59 00:03:12,240 --> 00:03:15,600 Speaker 5: docs and discussed, you know, how she was uncomfortable with 60 00:03:15,639 --> 00:03:17,960 Speaker 5: the relationship and she said that that made her feel 61 00:03:17,960 --> 00:03:20,160 Speaker 5: like an unequal partner. So, you know, a lot of 62 00:03:20,240 --> 00:03:23,360 Speaker 5: these communications between them, even though they were in the 63 00:03:23,400 --> 00:03:27,239 Speaker 5: same penthouse in the Bahamas, were going through electronic means 64 00:03:27,280 --> 00:03:31,000 Speaker 5: through chaps and Signal and Google docs, and they presented 65 00:03:31,040 --> 00:03:33,440 Speaker 5: quite a few, you know, of her documents. She had 66 00:03:33,480 --> 00:03:36,400 Speaker 5: one document she kept it called things that Sam is 67 00:03:36,440 --> 00:03:39,360 Speaker 5: freaking out about, and there was time spent on that. 68 00:03:39,520 --> 00:03:41,400 Speaker 5: It's one of the things he felt that it would 69 00:03:41,400 --> 00:03:43,440 Speaker 5: be a good thing that if there was an enforcement 70 00:03:43,560 --> 00:03:46,560 Speaker 5: regulatory action against Finance, because that would help FPX get 71 00:03:46,600 --> 00:03:47,440 Speaker 5: more customers. 72 00:03:47,600 --> 00:03:50,760 Speaker 1: The prosecutors seemed to spend some time on, you know, 73 00:03:50,880 --> 00:03:56,160 Speaker 1: Sam Bankman Freed personally and his desire to shape his image. 74 00:03:56,440 --> 00:03:59,160 Speaker 5: Sure, yeah, she said his image was pretty important to him. 75 00:03:59,200 --> 00:04:00,920 Speaker 5: At one point she said that if he felt his 76 00:04:01,000 --> 00:04:03,120 Speaker 5: hair was very important and that it was kind of 77 00:04:03,160 --> 00:04:06,520 Speaker 5: a calling card and that it helped him get visibility. 78 00:04:06,720 --> 00:04:09,480 Speaker 5: So at times when he wanted to use publicity to 79 00:04:09,600 --> 00:04:12,800 Speaker 5: kind of improve their image or to improve the amount 80 00:04:12,800 --> 00:04:15,040 Speaker 5: of publicity they got or get more customers, he did. 81 00:04:15,080 --> 00:04:17,599 Speaker 5: And at times when he kind of wanted to downplay 82 00:04:17,920 --> 00:04:20,719 Speaker 5: everything he did. That also like switching from a luxury 83 00:04:20,720 --> 00:04:21,960 Speaker 5: car to Toyota Corolla. 84 00:04:22,480 --> 00:04:26,000 Speaker 1: From the prosecution's point of view, what was the most 85 00:04:26,040 --> 00:04:28,560 Speaker 1: important part of her testimony, I think it. 86 00:04:28,520 --> 00:04:31,880 Speaker 5: Was then getting her to say that while she was 87 00:04:31,960 --> 00:04:34,560 Speaker 5: co CEO and CEO. At one point she was still 88 00:04:34,640 --> 00:04:38,200 Speaker 5: kind of taking orders from Sam, and she took orders 89 00:04:38,240 --> 00:04:41,080 Speaker 5: from Sam throughout. She consulted him on nearly every decision 90 00:04:41,480 --> 00:04:44,839 Speaker 5: that she made, and that you know, while he was 91 00:04:44,880 --> 00:04:48,800 Speaker 5: not always day to day involved in Alameda, he was 92 00:04:49,040 --> 00:04:51,919 Speaker 5: the owner. He had control, and he would dip in 93 00:04:51,960 --> 00:04:54,440 Speaker 5: from time to time, especially in May of twenty two 94 00:04:54,440 --> 00:04:57,400 Speaker 5: when things started to get intent and kind of direct 95 00:04:57,440 --> 00:05:00,479 Speaker 5: trading strategies. There was testimony from another witness that he 96 00:05:00,680 --> 00:05:02,240 Speaker 5: just kind of came in and said, well, we're an 97 00:05:02,240 --> 00:05:05,520 Speaker 5: avidents all Japanese bonds and by currency as a hedge. 98 00:05:05,560 --> 00:05:08,120 Speaker 5: So he was clearly involved in the day to day 99 00:05:08,400 --> 00:05:10,840 Speaker 5: I would say the defense scored some points just kind 100 00:05:10,839 --> 00:05:14,479 Speaker 5: of getting her to admit that he wasn't there every day, 101 00:05:14,560 --> 00:05:17,440 Speaker 5: that he wasn't always hands on, that she was running 102 00:05:17,440 --> 00:05:19,320 Speaker 5: the show at least for part of the time. 103 00:05:19,680 --> 00:05:24,440 Speaker 1: So she admitted that she altered documents. You know, she 104 00:05:24,880 --> 00:05:27,559 Speaker 1: knew what she was doing was wrong, but kept saying 105 00:05:27,560 --> 00:05:29,440 Speaker 1: that Sam Bankman Free directed it. 106 00:05:30,000 --> 00:05:32,680 Speaker 5: Yeah, that's pretty much the narrative that she gave. She 107 00:05:32,800 --> 00:05:35,280 Speaker 5: made it clear that you know, sometimes she made decisions, 108 00:05:35,480 --> 00:05:38,360 Speaker 5: you know, after consulting him, and that those decisions were hers, 109 00:05:38,360 --> 00:05:41,640 Speaker 5: but ultimately she said that Sam made most decisions. And 110 00:05:41,839 --> 00:05:44,640 Speaker 5: one powerful part of her testimony I would say was 111 00:05:44,760 --> 00:05:48,400 Speaker 5: when things started to go bad in the summer, there 112 00:05:48,480 --> 00:05:51,120 Speaker 5: was one meeting that they had in the penthouse in 113 00:05:51,160 --> 00:05:54,120 Speaker 5: the study or he basically blamed her and said that 114 00:05:54,160 --> 00:05:56,040 Speaker 5: the reason that they were in the situation that they 115 00:05:56,080 --> 00:05:59,440 Speaker 5: were in was because she hadn't hedged enough. And she said, yeah, 116 00:05:59,560 --> 00:06:01,400 Speaker 5: I could have done more. There's definitely I could have 117 00:06:01,400 --> 00:06:03,320 Speaker 5: done more. She admitted she could have been a better leader, 118 00:06:03,360 --> 00:06:05,719 Speaker 5: and she could have pushed people to do more innovative things. 119 00:06:05,800 --> 00:06:08,200 Speaker 5: But in the end, she said this was Sam making 120 00:06:08,200 --> 00:06:08,680 Speaker 5: the decision. 121 00:06:09,000 --> 00:06:13,240 Speaker 1: And so on cross examination, how much headway did the 122 00:06:13,279 --> 00:06:16,360 Speaker 1: defense make? Were they able to poke holes in her testimony? 123 00:06:16,560 --> 00:06:19,000 Speaker 5: A little bit? They had a tough time, mostly because 124 00:06:19,040 --> 00:06:21,359 Speaker 5: there were a lot of objections from the prosecution. I 125 00:06:21,360 --> 00:06:23,719 Speaker 5: mean you could even characterize it as almost every time 126 00:06:23,720 --> 00:06:26,360 Speaker 5: they started to ask a question that the prosecution would 127 00:06:26,360 --> 00:06:29,479 Speaker 5: object due to form or some other problem. So in 128 00:06:29,560 --> 00:06:31,839 Speaker 5: the end, you know, during a full day on the stand, 129 00:06:31,920 --> 00:06:34,559 Speaker 5: she started around nine thirty and ended around three thirty 130 00:06:34,640 --> 00:06:38,200 Speaker 5: or four, she only really spent three full hours on 131 00:06:38,240 --> 00:06:41,680 Speaker 5: the stands there were a few sidebars. There were debates about, 132 00:06:41,839 --> 00:06:44,560 Speaker 5: you know, admissibility of some of these audio clips of 133 00:06:44,560 --> 00:06:48,160 Speaker 5: the November ninth meeting. So while they made a little headway, 134 00:06:48,240 --> 00:06:50,560 Speaker 5: like I said, and kind of driving a wedge between 135 00:06:51,040 --> 00:06:54,320 Speaker 5: management of Alameda and Sam Bankman Freed, it was definitely 136 00:06:54,360 --> 00:06:57,080 Speaker 5: a slog for them, and how much progress they made 137 00:06:57,120 --> 00:06:59,200 Speaker 5: the can only really be measured at the end of 138 00:06:59,200 --> 00:06:59,599 Speaker 5: the trial. 139 00:07:00,040 --> 00:07:02,599 Speaker 1: She's been billed as the star witness. Do you think 140 00:07:02,640 --> 00:07:04,320 Speaker 1: her testimony lived up to that? 141 00:07:04,800 --> 00:07:08,080 Speaker 5: I would say so. Gary Wong spent a similar amount 142 00:07:08,120 --> 00:07:10,760 Speaker 5: of time on the span. She's a key witness. She 143 00:07:10,880 --> 00:07:12,640 Speaker 5: was there for a lot of it. She was obviously 144 00:07:12,720 --> 00:07:15,000 Speaker 5: his partner for a good amount of time. There's a 145 00:07:15,000 --> 00:07:18,960 Speaker 5: lot of testimony as to their personal relationship, so she 146 00:07:19,080 --> 00:07:20,040 Speaker 5: was certainly crucial. 147 00:07:20,360 --> 00:07:24,840 Speaker 1: Thanks Chris. That's Bloomberg Legal reporter Chrystal Mesh. Joining me 148 00:07:24,880 --> 00:07:28,680 Speaker 1: now to analyze the prosecution's case is former federal prosecutor 149 00:07:28,760 --> 00:07:32,840 Speaker 1: Jordan Estez, a partner Kramer Levin. It seems like the 150 00:07:32,880 --> 00:07:37,440 Speaker 1: government here has an overwhelming amount of evidence against Bankman Freed. 151 00:07:37,960 --> 00:07:41,200 Speaker 1: Witnesses who were in on the alleged fraud code that 152 00:07:41,320 --> 00:07:46,360 Speaker 1: was altered balance sheets, texts, internal documents. As a defense attorney, 153 00:07:46,400 --> 00:07:49,200 Speaker 1: how do you defend against that kind of a case. 154 00:07:50,000 --> 00:07:54,560 Speaker 6: It's certainly very challenging in these circumstances. The one thing 155 00:07:54,640 --> 00:07:57,760 Speaker 6: I think the defense is trying to do is create 156 00:07:57,760 --> 00:08:01,760 Speaker 6: a record that this was actually legitimate business. Nobody thought 157 00:08:01,800 --> 00:08:04,320 Speaker 6: they were doing anything wrong. So they're going to try 158 00:08:04,360 --> 00:08:07,160 Speaker 6: to do that through the cross examination of the witnesses 159 00:08:07,160 --> 00:08:09,640 Speaker 6: of the company. I do think it's a real challenge 160 00:08:09,680 --> 00:08:13,560 Speaker 6: in a case where witnesses like Caroline Ellison seem to 161 00:08:13,840 --> 00:08:18,360 Speaker 6: have fully embraced that the conduct was wrongful. So if 162 00:08:18,400 --> 00:08:20,560 Speaker 6: you have a witness like that, they're really going to 163 00:08:20,600 --> 00:08:24,640 Speaker 6: have to attack her credibility. But I do think from 164 00:08:24,640 --> 00:08:28,120 Speaker 6: my read of her testimony it was very overwhelming. It 165 00:08:28,160 --> 00:08:31,040 Speaker 6: seemed very dramatic and compelling. So they're going to have 166 00:08:31,120 --> 00:08:33,440 Speaker 6: to do a lot of work and discrediting her, which 167 00:08:33,480 --> 00:08:34,240 Speaker 6: will be hard. 168 00:08:34,520 --> 00:08:37,319 Speaker 1: I mean, she is the state star witness. How much 169 00:08:37,320 --> 00:08:39,080 Speaker 1: depends on the jury believing her. 170 00:08:39,679 --> 00:08:42,880 Speaker 6: So I think in a cooperator case, the government really 171 00:08:42,920 --> 00:08:46,680 Speaker 6: does need the jury to believe the cooperators. They need 172 00:08:46,720 --> 00:08:51,040 Speaker 6: them to believe not necessarily every cooperator, but at least 173 00:08:51,200 --> 00:08:54,040 Speaker 6: one of the principal wanes like Caroline Ellison, They're certainly 174 00:08:54,040 --> 00:08:56,400 Speaker 6: going to have to believe her, but you can imagine 175 00:08:56,440 --> 00:09:00,760 Speaker 6: the government has documents that support her testimony. Often, as 176 00:09:00,800 --> 00:09:05,080 Speaker 6: the cooperator testifies, you then introduce exhibits that confirm what 177 00:09:05,120 --> 00:09:09,679 Speaker 6: the cooperating witness is saying, or perhaps another witness from 178 00:09:10,080 --> 00:09:14,400 Speaker 6: FTX who testifies later may say something that's consistent with 179 00:09:14,520 --> 00:09:17,400 Speaker 6: Caroline Ellison's testimony. So there are a number of ways 180 00:09:17,520 --> 00:09:20,040 Speaker 6: to try to get the jury to believe the witness, 181 00:09:20,080 --> 00:09:22,800 Speaker 6: but that is ultimately it's very critical to the case. 182 00:09:23,280 --> 00:09:27,080 Speaker 1: The first four witnesses, one is his former girlfriend, another 183 00:09:27,160 --> 00:09:31,160 Speaker 1: is one of his oldest friends, another an mit friend. 184 00:09:31,559 --> 00:09:34,839 Speaker 1: Does that help or hurt their credibility that they were 185 00:09:34,920 --> 00:09:38,120 Speaker 1: friends who turned on him when things fell apart? 186 00:09:38,480 --> 00:09:42,359 Speaker 6: The government's view is typically that that helps their credibility. 187 00:09:42,480 --> 00:09:45,439 Speaker 6: These were the people who were closest to the defendant. 188 00:09:45,920 --> 00:09:49,320 Speaker 6: They were inside the conspiracy, and they're the ones who 189 00:09:49,320 --> 00:09:52,720 Speaker 6: can tell you every detail of what happened. If you 190 00:09:52,800 --> 00:09:56,120 Speaker 6: have an outsider, it's easier to distance them from the 191 00:09:56,200 --> 00:09:58,880 Speaker 6: defendant and suggest how would they actually know what he 192 00:09:58,960 --> 00:10:01,640 Speaker 6: intended or what was really going on. But because they 193 00:10:01,679 --> 00:10:04,840 Speaker 6: have people that were right on the inside that worked 194 00:10:04,880 --> 00:10:07,760 Speaker 6: side by side with him, that have admitted their guilt. 195 00:10:08,240 --> 00:10:09,720 Speaker 6: That's really tough for the defense. 196 00:10:10,280 --> 00:10:16,360 Speaker 1: Was there anything about Caroline Allison's testimony that struck you? So? 197 00:10:16,440 --> 00:10:19,600 Speaker 6: I thought a lot of the anecdotes he provided are 198 00:10:19,600 --> 00:10:22,720 Speaker 6: the kinds of things that really dick out to a juror. 199 00:10:22,760 --> 00:10:25,040 Speaker 6: They may not be direct evidence of fraud, but their 200 00:10:25,120 --> 00:10:28,240 Speaker 6: dramatic moments, like when she said that he said there 201 00:10:28,280 --> 00:10:30,800 Speaker 6: was a five percent chance that he would be president. 202 00:10:31,000 --> 00:10:34,080 Speaker 6: I'm sure that's something that stands out and just I 203 00:10:34,120 --> 00:10:37,800 Speaker 6: think raises questions about his judgment. But she seemed to 204 00:10:37,800 --> 00:10:40,640 Speaker 6: have a lot of dramatic moments in her testimony. I think, 205 00:10:40,679 --> 00:10:44,600 Speaker 6: in particular, given their relationships, there's this added drama on 206 00:10:44,679 --> 00:10:47,400 Speaker 6: top of what you have in a fraud case. So 207 00:10:47,880 --> 00:10:50,040 Speaker 6: it's very good for the government and that when there 208 00:10:50,120 --> 00:10:53,520 Speaker 6: is drama when you have a complicated case, jurors can 209 00:10:53,520 --> 00:10:56,240 Speaker 6: go to sleep if you're talking about code and cryptocurrency 210 00:10:56,280 --> 00:10:58,120 Speaker 6: and things like that. But when you have a witness 211 00:10:58,160 --> 00:11:01,320 Speaker 6: who was in a romantic, really relationship, when there was 212 00:11:01,360 --> 00:11:05,120 Speaker 6: this power dynamic, that's something that certainly captures the jury's 213 00:11:05,120 --> 00:11:09,520 Speaker 6: attention and I think creates this extra element there that 214 00:11:10,000 --> 00:11:14,480 Speaker 6: her boss and her former boyfriend is also asking her 215 00:11:14,840 --> 00:11:18,040 Speaker 6: to commit fraud, committing fraud with her. It's an interesting 216 00:11:18,080 --> 00:11:20,880 Speaker 6: power dynamic that I think will stand out to a jury. 217 00:11:20,760 --> 00:11:24,080 Speaker 1: A lot more trial ahead. Thanks so much, Jordan. That's 218 00:11:24,160 --> 00:11:27,760 Speaker 1: Jordan Esdez of Kramer Levin. Coming up next. A lower 219 00:11:27,800 --> 00:11:31,640 Speaker 1: court throughout South Carolina's congressional map, But will the Supreme 220 00:11:31,679 --> 00:11:35,160 Speaker 1: Court restore it. I'm June Grosso and you're listening to Bloomberg. 221 00:11:38,679 --> 00:11:43,800 Speaker 4: This is Bloomberg Law with June Grosso from Bloomberg Radio. 222 00:11:44,800 --> 00:11:48,040 Speaker 7: We have said that the burden that you're assuming of 223 00:11:48,120 --> 00:11:53,560 Speaker 7: disentangling race and politics in a situation like this is very, 224 00:11:53,679 --> 00:11:54,360 Speaker 7: very difficult. 225 00:11:54,679 --> 00:11:57,840 Speaker 1: The Chief Justice described the key problem in the case 226 00:11:57,880 --> 00:12:01,480 Speaker 1: before the Supreme Court how to determine whether South Carolina's 227 00:12:01,520 --> 00:12:06,400 Speaker 1: congressional map was the result of racial gerrymandering, which is unconstitutional, 228 00:12:06,720 --> 00:12:09,559 Speaker 1: or part is in jerrymandering, which has been okayed by 229 00:12:09,559 --> 00:12:14,360 Speaker 1: the court. The court's conservative justices expressed skepticism about a 230 00:12:14,440 --> 00:12:18,680 Speaker 1: lower court's decision finding that Republican lawmakers had engaged in 231 00:12:18,920 --> 00:12:24,840 Speaker 1: unconstitutional racial jerrymandering in drawing South Carolina's first congressional district. 232 00:12:25,280 --> 00:12:28,880 Speaker 1: Here are Chief Justice John Roberts and Justice Samuel Alito. 233 00:12:29,320 --> 00:12:32,160 Speaker 7: But we've never had a case where there's been no 234 00:12:32,320 --> 00:12:38,920 Speaker 7: direct evidence, no map, no strangely configured districts, a very 235 00:12:39,040 --> 00:12:40,800 Speaker 7: large amount of political evidence. 236 00:12:42,240 --> 00:12:44,960 Speaker 8: Well, the clear error standard, if that's the standard that 237 00:12:45,000 --> 00:12:48,760 Speaker 8: we are required to reply, is a very demanding standard. 238 00:12:49,280 --> 00:12:52,480 Speaker 8: But it is not an impossible standard. And it doesn't 239 00:12:52,520 --> 00:12:58,640 Speaker 8: mean that we simply rubber stamp findings by a district court. 240 00:12:59,080 --> 00:13:02,199 Speaker 1: But the liberal justice has suggested the lower court had 241 00:13:02,280 --> 00:13:07,079 Speaker 1: enough evidence to conclude that South Carolina lawmakers improperly relied 242 00:13:07,120 --> 00:13:10,080 Speaker 1: on race to get to their target of seventeen percent 243 00:13:10,200 --> 00:13:13,800 Speaker 1: black voters in the first district by moving thirty thousand 244 00:13:13,840 --> 00:13:17,040 Speaker 1: black voters out of the district. Here Justice is Elena 245 00:13:17,120 --> 00:13:19,160 Speaker 1: Kagan and Sonya so to Mayor. 246 00:13:19,360 --> 00:13:23,000 Speaker 9: Is this gerrymander based on politics or is it a 247 00:13:23,040 --> 00:13:26,480 Speaker 9: way to get to an ultimate goal? An ultimate political goal? 248 00:13:26,800 --> 00:13:29,280 Speaker 9: But the gerrymandarin is based on race. And what the 249 00:13:29,280 --> 00:13:31,880 Speaker 9: two of them do is that they show that black 250 00:13:31,920 --> 00:13:36,640 Speaker 9: Democrats are excluded from District one at a far greater 251 00:13:36,800 --> 00:13:42,839 Speaker 9: percentage than white Democrats are. I think Cooper was petulutely 252 00:13:42,960 --> 00:13:47,040 Speaker 9: clear that you don't need a smoking gun, and if 253 00:13:47,040 --> 00:13:48,800 Speaker 9: you don't need a smoking gun, you don't need to 254 00:13:48,840 --> 00:13:49,600 Speaker 9: wreck evidence. 255 00:13:49,840 --> 00:13:52,920 Speaker 1: Joining me is elections law expert Richard Brofald, a professor 256 00:13:52,960 --> 00:13:56,160 Speaker 1: at Columbia Law School. Rich tell us about the issues 257 00:13:56,160 --> 00:14:00,200 Speaker 1: in this case where the NAACP is challenging the South 258 00:14:00,280 --> 00:14:00,880 Speaker 1: Carolina that. 259 00:14:01,240 --> 00:14:04,800 Speaker 10: So this case is about a challenge to the redistricting 260 00:14:04,840 --> 00:14:09,000 Speaker 10: of South Carolina's congressional plan in twenty twenty two following 261 00:14:09,000 --> 00:14:12,880 Speaker 10: the twenty twenty census. The major development affected District one, 262 00:14:12,920 --> 00:14:16,280 Speaker 10: which is basically around Charleston, and it made the district 263 00:14:16,320 --> 00:14:18,880 Speaker 10: more Republican by moving out of a significant number of 264 00:14:18,920 --> 00:14:22,520 Speaker 10: black voters into an adjacent black majority district. District one 265 00:14:22,560 --> 00:14:25,160 Speaker 10: had been a Republican district, but in recent years had 266 00:14:25,160 --> 00:14:28,600 Speaker 10: been more closely contested, and in twenty eighteen the Democrats 267 00:14:28,600 --> 00:14:31,320 Speaker 10: actually won it for one term. Twenty twenty, the Republicans 268 00:14:31,320 --> 00:14:33,800 Speaker 10: wanted that, but very narrowly. So one of the things 269 00:14:33,800 --> 00:14:36,720 Speaker 10: the legislature did in twenty twenty two was changed the 270 00:14:36,720 --> 00:14:39,800 Speaker 10: composition to make it more Republican, and in so doing 271 00:14:40,160 --> 00:14:43,840 Speaker 10: it basically moved about thirty thousand black voters from Charleston 272 00:14:44,080 --> 00:14:46,680 Speaker 10: out of the district into an adjacent district. By the way, 273 00:14:46,720 --> 00:14:49,480 Speaker 10: District one is the district that elects Nancy Mace, who 274 00:14:49,520 --> 00:14:52,520 Speaker 10: had been previously considered a moderate that since our district 275 00:14:52,600 --> 00:14:55,000 Speaker 10: was change, seems to become more conservative. So the question 276 00:14:55,040 --> 00:14:58,000 Speaker 10: before the core, it's a tough question, is whether the 277 00:14:58,120 --> 00:15:02,200 Speaker 10: legislature was motivated by race or by party. You might 278 00:15:02,280 --> 00:15:04,440 Speaker 10: say that in a state where race and party are 279 00:15:04,480 --> 00:15:07,600 Speaker 10: so intertwined, that's an impossible question answers. It's the same thing, 280 00:15:07,840 --> 00:15:10,280 Speaker 10: but it's crucial because the Supreme Court has said that 281 00:15:10,400 --> 00:15:14,200 Speaker 10: racial gerrymandering, that is to say, the intentional movement of 282 00:15:14,280 --> 00:15:17,120 Speaker 10: voters because of their race from one district to another, 283 00:15:17,600 --> 00:15:21,000 Speaker 10: is unconstitutional. But partisan jerrymandering, as we all know since 284 00:15:21,000 --> 00:15:24,320 Speaker 10: the Ruco decision in twenty nineteen, is not on constitutional, 285 00:15:24,360 --> 00:15:27,360 Speaker 10: it's notn justiciable. So it's okay for the state to 286 00:15:27,440 --> 00:15:30,520 Speaker 10: engage in partisan gerrymandering, it's not okay for the state 287 00:15:30,560 --> 00:15:33,960 Speaker 10: to engage in racial gerrymandering. South Carolina says it was 288 00:15:34,000 --> 00:15:37,160 Speaker 10: both the following traditional district lines but also had a 289 00:15:37,160 --> 00:15:40,640 Speaker 10: partisan political purpose. What the lower court found was that 290 00:15:40,760 --> 00:15:45,200 Speaker 10: actually the movements of voters did exhibit racial predominance. That 291 00:15:45,440 --> 00:15:48,680 Speaker 10: given away the voters, which voters were targeted, and relying 292 00:15:48,720 --> 00:15:51,520 Speaker 10: on the testimony of experts, they basically said that a 293 00:15:51,560 --> 00:15:55,440 Speaker 10: disproportionate number of Black Democrats relative to white Democrats for 294 00:15:55,560 --> 00:15:57,880 Speaker 10: the ones who were moved, and therefore the District Court 295 00:15:58,280 --> 00:16:01,720 Speaker 10: was able to conclude that this was a racial gerry manager. 296 00:16:02,080 --> 00:16:04,360 Speaker 10: That's what's being tested in the Supreme Court right now. 297 00:16:04,760 --> 00:16:08,240 Speaker 1: The three judge federal panel referred to the revised map 298 00:16:08,320 --> 00:16:11,640 Speaker 1: as effective bleaching of African American voters out of the 299 00:16:11,720 --> 00:16:14,920 Speaker 1: Charleston County portion of the district. And they came to 300 00:16:14,960 --> 00:16:18,880 Speaker 1: that conclusion after an extensive eight day trial featuring forty 301 00:16:18,880 --> 00:16:22,800 Speaker 1: two witnesses and six hundred and fifty two exhibits. So 302 00:16:23,120 --> 00:16:26,920 Speaker 1: doesn't the court usually defer to the factual findings of 303 00:16:27,040 --> 00:16:28,120 Speaker 1: lower court judges. 304 00:16:28,520 --> 00:16:30,880 Speaker 10: Yes, I mean, indeed, that is the standard. They're supposed 305 00:16:30,880 --> 00:16:33,840 Speaker 10: to apply, what's called the clearly erroneous standard. Not just 306 00:16:33,960 --> 00:16:36,680 Speaker 10: but the district court right on balance. But as long 307 00:16:36,720 --> 00:16:39,280 Speaker 10: as the district court did was plausible, long as they 308 00:16:39,280 --> 00:16:42,280 Speaker 10: didn't something which was clearly wrong as opposed to debatably wrong, 309 00:16:42,480 --> 00:16:45,360 Speaker 10: they're supposed to defer. And you definitely heard the liberal 310 00:16:45,440 --> 00:16:48,920 Speaker 10: justices emphasizing the importance of adhering to the clearly erroneous 311 00:16:48,920 --> 00:16:51,480 Speaker 10: standard that there was evidence to support with the district 312 00:16:51,520 --> 00:16:53,880 Speaker 10: court found and indeed, the United States had not been 313 00:16:53,880 --> 00:16:56,240 Speaker 10: a party to the case originally, but this listener General's 314 00:16:56,280 --> 00:16:59,320 Speaker 10: office came if the United States had actually emphasized importance 315 00:16:59,360 --> 00:17:01,160 Speaker 10: of following the court of the erroneous standard. 316 00:17:02,000 --> 00:17:05,800 Speaker 1: Chief Justice John Roberts said that the challengers of the 317 00:17:05,840 --> 00:17:09,919 Speaker 1: map had no direct evidence that race had predominated in 318 00:17:09,960 --> 00:17:13,960 Speaker 1: the decision making process, just circumstantial evidence. This would be 319 00:17:14,000 --> 00:17:18,520 Speaker 1: breaking new ground in our voting rights jurisprudence. Is that true? 320 00:17:18,720 --> 00:17:21,160 Speaker 1: I mean, isn't circumstantial evidence enough? 321 00:17:21,920 --> 00:17:22,120 Speaker 5: Right? 322 00:17:22,320 --> 00:17:25,960 Speaker 10: They've often relied on circumstantial evidence, But Hill said it 323 00:17:26,000 --> 00:17:28,280 Speaker 10: was not an oddly shaped district. In the number of 324 00:17:28,359 --> 00:17:30,760 Speaker 10: the early other cases in which the Court has found 325 00:17:31,040 --> 00:17:35,159 Speaker 10: racial gerrymandering, the district was oddly shaped. On this one, 326 00:17:35,280 --> 00:17:37,520 Speaker 10: there was a big change the district. People were moved 327 00:17:37,520 --> 00:17:40,720 Speaker 10: around a lot, but the district itself didn't flunk any 328 00:17:40,920 --> 00:17:43,560 Speaker 10: kind of test of odd shape, which is somethings the 329 00:17:43,560 --> 00:17:46,680 Speaker 10: Court has sometimes used. And the other issue that came 330 00:17:46,760 --> 00:17:50,560 Speaker 10: up was the fact that the plaintiffs had not presented 331 00:17:50,680 --> 00:17:54,479 Speaker 10: an alternative map. Basically, the question was could the state 332 00:17:54,600 --> 00:17:58,280 Speaker 10: have gotten its partisan goals without moving as many black 333 00:17:58,359 --> 00:18:01,560 Speaker 10: voters around? And the question came up, should the plaintiffs 334 00:18:01,600 --> 00:18:04,879 Speaker 10: have been required to present an alternative map showing that 335 00:18:04,920 --> 00:18:07,679 Speaker 10: the state could have made the district just as Republican 336 00:18:08,080 --> 00:18:10,480 Speaker 10: without moving as many black voters. And there was a 337 00:18:10,480 --> 00:18:12,880 Speaker 10: debate in the court as to whether the plaintiffs had 338 00:18:12,880 --> 00:18:15,399 Speaker 10: to do that, and the President is that they don't 339 00:18:15,440 --> 00:18:18,080 Speaker 10: have to. Indeed, Justice Kagan was quite strong on that, 340 00:18:18,119 --> 00:18:20,320 Speaker 10: because she'd actually written the case that said that, a 341 00:18:20,359 --> 00:18:23,600 Speaker 10: case called Cooper about five years ago. But nonetheless, the 342 00:18:23,680 --> 00:18:26,240 Speaker 10: other justices sort of came back and said, well, maybe 343 00:18:26,280 --> 00:18:29,440 Speaker 10: you didn't have to, but why didn't you Why wouldn't 344 00:18:29,480 --> 00:18:31,879 Speaker 10: that have helped your case if you could have shown 345 00:18:31,880 --> 00:18:34,960 Speaker 10: that they could obtain their partisan goals without using race 346 00:18:35,040 --> 00:18:36,960 Speaker 10: quite as much. I mean, it really went into this 347 00:18:37,000 --> 00:18:39,920 Speaker 10: difficulty of separating out race and party. In effect, the 348 00:18:40,000 --> 00:18:43,840 Speaker 10: conservative justices were sort of creating even though the prior 349 00:18:43,920 --> 00:18:46,840 Speaker 10: case Cooper had said there's no such requirement, you saw 350 00:18:46,880 --> 00:18:50,040 Speaker 10: some of them basically suggesting either that there is, or 351 00:18:50,080 --> 00:18:52,240 Speaker 10: that there should be, or that it's a problem when 352 00:18:52,280 --> 00:18:52,840 Speaker 10: there isn't. 353 00:18:53,320 --> 00:18:57,119 Speaker 1: So after the oral arguments, most legal experts concluded that 354 00:18:57,200 --> 00:19:01,200 Speaker 1: the conservative majority is going to uphold Republican drawn mapp. 355 00:19:01,560 --> 00:19:02,600 Speaker 1: What's your take on it? 356 00:19:03,040 --> 00:19:05,560 Speaker 10: There were certainly a lot of negative questioning, even from 357 00:19:05,560 --> 00:19:09,280 Speaker 10: some of the so called more moderate conservative justices. Remember 358 00:19:09,400 --> 00:19:12,520 Speaker 10: the most recent case involving race and voting, Allen versus 359 00:19:12,520 --> 00:19:15,840 Speaker 10: Milligan went off five to four, with two of the conservatives, 360 00:19:16,080 --> 00:19:20,040 Speaker 10: Roberts and Kavanaugh joining the liberals. Roberts was clearly pretty 361 00:19:20,080 --> 00:19:23,280 Speaker 10: skeptical about the lower courts finding in this case. He 362 00:19:23,359 --> 00:19:26,360 Speaker 10: seemed less likely. Kavanaugh's questions were a little bit harder 363 00:19:26,359 --> 00:19:28,399 Speaker 10: to read. I mean, some of it was again about 364 00:19:28,400 --> 00:19:30,800 Speaker 10: the evidence, but some of it also seemed to indicate 365 00:19:30,840 --> 00:19:33,200 Speaker 10: that he was thinking about what's the burden on the 366 00:19:33,240 --> 00:19:35,879 Speaker 10: defendants in this case? Showed that the district court was 367 00:19:35,920 --> 00:19:38,399 Speaker 10: clearly wrong. It was certainly a tough argument for the 368 00:19:38,520 --> 00:19:41,399 Speaker 10: NAACP defending the lower courts finding. I think if they 369 00:19:41,440 --> 00:19:43,600 Speaker 10: have any chance, it's going to be the extent that 370 00:19:43,640 --> 00:19:47,080 Speaker 10: the court decides to rally around the idea that unless 371 00:19:47,080 --> 00:19:50,040 Speaker 10: it's clearly erroneous, there should be difference in lower courts finding. 372 00:19:50,160 --> 00:19:52,840 Speaker 10: On the other hand, this is the court's first sort 373 00:19:52,880 --> 00:19:57,040 Speaker 10: of race party intertwine case since Rucho four years ago, 374 00:19:57,080 --> 00:20:00,920 Speaker 10: when the Court said that partisan jerrymandering is not on constitutional, 375 00:20:00,960 --> 00:20:03,720 Speaker 10: it's not justiciable. So it's the first time that they 376 00:20:03,760 --> 00:20:06,680 Speaker 10: will speak to the how do you separate out race 377 00:20:06,800 --> 00:20:10,080 Speaker 10: and party? And one could imagine they may want to 378 00:20:10,119 --> 00:20:13,080 Speaker 10: shut down the idea that you could get around Rucho 379 00:20:13,440 --> 00:20:16,159 Speaker 10: by reframing things around race. Now, the Court in the 380 00:20:16,160 --> 00:20:19,239 Speaker 10: past has said, even if there's a partisan factor, that 381 00:20:19,320 --> 00:20:21,200 Speaker 10: the state can't use the race as a proxy for 382 00:20:21,359 --> 00:20:23,720 Speaker 10: party when I trys lines to favor a party. But 383 00:20:24,040 --> 00:20:26,040 Speaker 10: one could imagine this is a case where the Court 384 00:20:26,320 --> 00:20:29,439 Speaker 10: might want to address how do you disentangle race and 385 00:20:29,520 --> 00:20:32,600 Speaker 10: party in a world in which racial jerry mannering is 386 00:20:32,680 --> 00:20:35,439 Speaker 10: unconstitutional but partisan jerry mannering is not. 387 00:20:35,840 --> 00:20:39,000 Speaker 1: It just doesn't seem like the NAACP has the numbers 388 00:20:39,000 --> 00:20:41,800 Speaker 1: here to win, But you never know. Thanks so much, 389 00:20:41,880 --> 00:20:45,680 Speaker 1: rich that's Professor Richard Brofault of Columbia Law School. Coming 390 00:20:45,760 --> 00:20:49,439 Speaker 1: up next. Donald Trump says he's immune from prosecution in 391 00:20:49,520 --> 00:20:52,919 Speaker 1: the federal trial over January sixth. I'm June Grosso and 392 00:20:52,960 --> 00:20:54,280 Speaker 1: you're listening to Bloomberg. 393 00:20:57,560 --> 00:21:02,680 Speaker 4: This is Bloomberg Law with you from Bloomberg Radio. 394 00:21:03,720 --> 00:21:07,600 Speaker 11: And did you see today that deranged Jack Smith. He's 395 00:21:07,600 --> 00:21:11,040 Speaker 11: the prosecutor, He's a deranged person, wants to take away 396 00:21:11,080 --> 00:21:14,080 Speaker 11: my rights under the First Amendment, wants to take away 397 00:21:14,160 --> 00:21:17,400 Speaker 11: my right of speaking freely and openly. 398 00:21:18,000 --> 00:21:21,879 Speaker 1: Donald Trump never seems to miss an opportunity to ridicule 399 00:21:22,000 --> 00:21:25,800 Speaker 1: Jack Smith, the special counsel who's bringing charges against him 400 00:21:25,880 --> 00:21:28,600 Speaker 1: in d C and Florida. The trial date in d 401 00:21:28,840 --> 00:21:31,800 Speaker 1: C on charges of trying to overturn the twenty twenty 402 00:21:31,840 --> 00:21:35,760 Speaker 1: election is less than five months away, but Trump is 403 00:21:35,840 --> 00:21:39,280 Speaker 1: looking for a complete pass by arguing that he has 404 00:21:39,440 --> 00:21:44,560 Speaker 1: absolute presidential immunity from criminal prosecution, and he's asking federal 405 00:21:44,640 --> 00:21:48,720 Speaker 1: Judge Tanya Chutkin to toss out the indictment. Here to 406 00:21:48,760 --> 00:21:52,040 Speaker 1: discuss the issue which courts have never settled, is former 407 00:21:52,080 --> 00:21:56,159 Speaker 1: federal prosecutor Jessica Roth, a professor at Cardozo Law School. 408 00:21:56,880 --> 00:22:01,000 Speaker 1: Jessica tell us about Trump's claim of president immunity. 409 00:22:01,600 --> 00:22:07,440 Speaker 12: So their argument is that Trump enjoys absolute presidential immunity 410 00:22:07,880 --> 00:22:12,320 Speaker 12: from prosecution because he claims that the indictment brought by 411 00:22:12,359 --> 00:22:15,840 Speaker 12: the Social Council related to January sixth is based on 412 00:22:16,160 --> 00:22:19,720 Speaker 12: what they contend are his official acts while president. I 413 00:22:19,760 --> 00:22:22,480 Speaker 12: would submit this is the most significant motion that Trump 414 00:22:22,520 --> 00:22:24,520 Speaker 12: has filed to date in all of the cases that 415 00:22:24,560 --> 00:22:27,919 Speaker 12: are pending against him, and that the court's decisions on 416 00:22:28,000 --> 00:22:31,480 Speaker 12: this motion could establish new law regarding whether a president 417 00:22:31,560 --> 00:22:33,960 Speaker 12: is beyond the reach of the criminal law for acts 418 00:22:33,960 --> 00:22:37,160 Speaker 12: taken while president, even after he leaves the office. 419 00:22:37,320 --> 00:22:39,720 Speaker 1: What do you make of his attorney's arguments? They make 420 00:22:39,800 --> 00:22:43,080 Speaker 1: several levels of arguments. Are they convincing? 421 00:22:43,560 --> 00:22:46,239 Speaker 12: Unlike some arguments we've seen from Trump's counsel and some 422 00:22:46,280 --> 00:22:48,840 Speaker 12: of the cases brought against him. This motion is well 423 00:22:48,840 --> 00:22:52,960 Speaker 12: written and it does present a very important issue of law, 424 00:22:53,240 --> 00:22:54,800 Speaker 12: one that the courts will have. 425 00:22:54,800 --> 00:22:55,640 Speaker 3: To take seriously. 426 00:22:55,960 --> 00:22:58,760 Speaker 12: No court has ever squarely decided the question of whether 427 00:22:58,880 --> 00:23:04,280 Speaker 12: a president enjoys absolute immunity from prosecution at all, because 428 00:23:04,320 --> 00:23:07,120 Speaker 12: there's never been a precedent for criminal charges being filed 429 00:23:07,240 --> 00:23:10,560 Speaker 12: against a former president. But there are two issues that 430 00:23:10,600 --> 00:23:13,359 Speaker 12: the courts will have to address in ruling on the motion. 431 00:23:13,520 --> 00:23:17,440 Speaker 12: The first is whether, in fact, presidents do enjoy absolute 432 00:23:17,440 --> 00:23:21,760 Speaker 12: immunity from criminal prosecution for acts taken during the presidency, 433 00:23:22,200 --> 00:23:25,120 Speaker 12: and if they find that there is such a thing 434 00:23:25,200 --> 00:23:29,080 Speaker 12: as absolute immunity for president from criminal prosecution, then they 435 00:23:29,080 --> 00:23:32,399 Speaker 12: would have to apply that doctrine of immunity to the 436 00:23:32,440 --> 00:23:35,679 Speaker 12: facts presented in this case. If the court told that 437 00:23:35,720 --> 00:23:39,719 Speaker 12: there is no absolute immunity for a president from prosecution 438 00:23:39,880 --> 00:23:43,080 Speaker 12: even after they leave office, then they don't necessarily have 439 00:23:43,160 --> 00:23:46,560 Speaker 12: to address this second question of whether or not Trump's 440 00:23:46,600 --> 00:23:49,440 Speaker 12: actions fall within the scope of such immunity. 441 00:23:49,880 --> 00:23:53,760 Speaker 1: This motion was just filed last Thursday, so prosecutors haven't 442 00:23:53,760 --> 00:23:56,680 Speaker 1: had time to respond. But what do you envision their 443 00:23:56,920 --> 00:24:00,480 Speaker 1: argument will be against the claims of presidentiality. 444 00:24:00,960 --> 00:24:03,679 Speaker 12: I imagine what they're going to argue is first that 445 00:24:03,720 --> 00:24:06,480 Speaker 12: the courts should not extend the doctrine. It's a judge 446 00:24:06,560 --> 00:24:10,440 Speaker 12: made doctrine of immunity for presidents to the criminal context, 447 00:24:10,480 --> 00:24:13,520 Speaker 12: and I think they have very good arguments. But secondarily, 448 00:24:13,600 --> 00:24:15,800 Speaker 12: they will argue that even if the court were to 449 00:24:15,840 --> 00:24:19,440 Speaker 12: find that in some cases a president could enjoy immunity 450 00:24:19,440 --> 00:24:23,000 Speaker 12: from criminal prosecution for actions taken while president, that it 451 00:24:23,040 --> 00:24:25,919 Speaker 12: would not apply to the conduct that is alleged in 452 00:24:26,000 --> 00:24:29,719 Speaker 12: this case, because if the courts were to follow the 453 00:24:29,760 --> 00:24:33,000 Speaker 12: doctrine they have applied in the context of civil suits 454 00:24:33,000 --> 00:24:36,920 Speaker 12: for damages, brought against a former president, which asks whether 455 00:24:37,000 --> 00:24:39,520 Speaker 12: or not the conduct in question falls within the outer 456 00:24:39,680 --> 00:24:44,080 Speaker 12: perimeter of the president's official responsibility. The Special Council would 457 00:24:44,200 --> 00:24:47,880 Speaker 12: argue that these actions do not fall within that outer perimeter. 458 00:24:48,320 --> 00:24:52,080 Speaker 1: This is uncharted territory. What has the Supreme Court ruled 459 00:24:52,119 --> 00:24:55,399 Speaker 1: in the past in the area of presidential immunity. 460 00:24:55,920 --> 00:24:59,560 Speaker 12: So, the Supreme Court has ruled on presidential immunity in 461 00:24:59,600 --> 00:25:03,040 Speaker 12: the content textive damages, actions and civil suits. In the 462 00:25:03,080 --> 00:25:06,800 Speaker 12: most important cases a case called Nixon versus Fitzgerald, in 463 00:25:06,800 --> 00:25:09,639 Speaker 12: which the Court said, there is a doctrine of absolute 464 00:25:09,680 --> 00:25:14,200 Speaker 12: presidential immunity that shields the president even after he leaves 465 00:25:14,280 --> 00:25:19,280 Speaker 12: office from damages actions brought by individuals for actions taken 466 00:25:19,320 --> 00:25:23,960 Speaker 12: within the outer perimeter of the president's official responsibilities. The 467 00:25:24,040 --> 00:25:27,760 Speaker 12: Court in that case drew on precedents those cases that 468 00:25:27,960 --> 00:25:32,080 Speaker 12: recognized absolute immunity for prosecutors and judges said, essentially, if 469 00:25:32,119 --> 00:25:36,080 Speaker 12: we don't adopt this doctrine, these individuals who perform these 470 00:25:36,160 --> 00:25:40,200 Speaker 12: very public and important duties will be distracted and concerned 471 00:25:40,240 --> 00:25:43,320 Speaker 12: as they perform their duties about the potential of being 472 00:25:43,359 --> 00:25:48,160 Speaker 12: subject to innumerable suits. And so in Nixon versus Fitzgerald, 473 00:25:48,200 --> 00:25:50,920 Speaker 12: the Court said, essentially, we're going to adopt that reasoning 474 00:25:50,960 --> 00:25:54,560 Speaker 12: which applies with great force to the president of the 475 00:25:54,640 --> 00:25:57,040 Speaker 12: United States, who, in addition, as to whom there's real 476 00:25:57,080 --> 00:26:01,000 Speaker 12: separation of powers concerns if the courts were intrude upon 477 00:26:01,359 --> 00:26:05,560 Speaker 12: the executive's ability to perform his functions as president. But 478 00:26:05,640 --> 00:26:08,840 Speaker 12: the Court, again in Nixon versus Fitzgerald, talked about how 479 00:26:09,119 --> 00:26:14,360 Speaker 12: those cases did not opine on the availability of criminal prosecution, 480 00:26:14,960 --> 00:26:17,399 Speaker 12: And in fact, in Nixon versus Fitzgerald, the Court was 481 00:26:17,560 --> 00:26:20,440 Speaker 12: very clear to say, and it has said in subsequent 482 00:26:20,480 --> 00:26:23,520 Speaker 12: cases on the question of absolute presidential immunity, that those 483 00:26:23,560 --> 00:26:27,359 Speaker 12: cases are limited to the question of civil damages in 484 00:26:27,440 --> 00:26:30,640 Speaker 12: civil suits brought by private parties. So I think there's 485 00:26:30,640 --> 00:26:33,600 Speaker 12: a very strong argument to be made that the Court 486 00:26:33,680 --> 00:26:37,879 Speaker 12: would not extend that doctrine of immunity to criminal prosecution. 487 00:26:38,640 --> 00:26:42,040 Speaker 1: What about the case of Trump the Vance, where the 488 00:26:42,040 --> 00:26:46,280 Speaker 1: Supreme Court ruled on the Manhattan DA's grand jury subpoena 489 00:26:46,480 --> 00:26:49,600 Speaker 1: to Mazar's Trump's accounting firm. 490 00:26:50,240 --> 00:26:52,879 Speaker 12: I think that's instructive as well, and that builds on 491 00:26:52,960 --> 00:26:56,440 Speaker 12: this idea that the Court sees a distinction between criminal cases, 492 00:26:56,760 --> 00:27:01,760 Speaker 12: including investigations and prosecutions and civil lawsuits. In the Trump 493 00:27:01,840 --> 00:27:04,159 Speaker 12: Vizance case, I mean that involved a subpoena from a 494 00:27:04,200 --> 00:27:08,440 Speaker 12: state grand jury seeking documents from Trump while he was president, 495 00:27:08,880 --> 00:27:11,679 Speaker 12: and he asserted absolute immunity and that he shouldn't have 496 00:27:11,720 --> 00:27:15,399 Speaker 12: to respond to that state grand jury subpoena, and the 497 00:27:15,440 --> 00:27:21,640 Speaker 12: Court said the public interest in criminal investigations is really paramount. 498 00:27:21,960 --> 00:27:24,679 Speaker 12: It's a similar interest that the Court talked about in 499 00:27:24,720 --> 00:27:28,440 Speaker 12: the United States versus Nixon when President Nixon as president 500 00:27:28,520 --> 00:27:30,800 Speaker 12: was ordered to comply with a subpoena from the grand 501 00:27:30,880 --> 00:27:35,800 Speaker 12: jury working with the special prosecutor Archibald Cox, seeking evidence 502 00:27:35,840 --> 00:27:39,600 Speaker 12: in the grand jury's investigation related to Watergate. So in 503 00:27:39,640 --> 00:27:43,080 Speaker 12: both cases, the Court has talked about essentially the paramount 504 00:27:43,240 --> 00:27:47,440 Speaker 12: public interest in criminal prosecutions and investigations and how that 505 00:27:47,560 --> 00:27:51,199 Speaker 12: is really quite distinct from the private interests involved in 506 00:27:51,359 --> 00:27:53,720 Speaker 12: civil lawsuits against former president. 507 00:27:54,240 --> 00:27:58,120 Speaker 1: So Trump is all about delay with these cases, and 508 00:27:58,280 --> 00:28:00,880 Speaker 1: his lawyer said they'll try to take to the Supreme 509 00:28:00,960 --> 00:28:05,000 Speaker 1: Court if they lose at the DC's Circuit rulings, denying 510 00:28:05,320 --> 00:28:09,920 Speaker 1: motions to dismiss an indictment normally wouldn't be appealable until 511 00:28:09,920 --> 00:28:12,400 Speaker 1: after a verdict, right, But is this different? 512 00:28:13,040 --> 00:28:15,160 Speaker 12: This is different, And that's one of the reasons why 513 00:28:15,200 --> 00:28:17,679 Speaker 12: I think this motion is so significant, not just on 514 00:28:17,800 --> 00:28:20,560 Speaker 12: the merits and for the new law that it could establish, 515 00:28:20,800 --> 00:28:22,960 Speaker 12: but for the fact that the motion, because of its 516 00:28:23,040 --> 00:28:24,840 Speaker 12: nature and the fact that I think it is going 517 00:28:24,920 --> 00:28:29,360 Speaker 12: to be deemed immediately appealable, could derail the trial simply 518 00:28:29,400 --> 00:28:32,159 Speaker 12: by going through the appellate process and the time it 519 00:28:32,200 --> 00:28:35,160 Speaker 12: will take for the matter to be decided, and how 520 00:28:35,160 --> 00:28:38,120 Speaker 12: that may well go beyond the March twenty twenty four 521 00:28:38,240 --> 00:28:39,880 Speaker 12: trial date that's been established. 522 00:28:40,320 --> 00:28:43,440 Speaker 1: We don't have the prosecutions brief yet, but does this 523 00:28:43,520 --> 00:28:45,680 Speaker 1: seem like an upheal battle for Trump? 524 00:28:46,240 --> 00:28:49,280 Speaker 12: I expect that the trial court and the DC Circuit 525 00:28:49,280 --> 00:28:52,160 Speaker 12: will rule against Trump, But when it gets to the 526 00:28:52,280 --> 00:28:55,200 Speaker 12: US Supreme Court, and I do anticipate the Supreme Court 527 00:28:55,240 --> 00:28:59,120 Speaker 12: would take this case, then it's a much harder outcome 528 00:28:59,160 --> 00:29:02,200 Speaker 12: to predict. I think on the merits that the Supreme 529 00:29:02,240 --> 00:29:05,800 Speaker 12: Court should rule against him, but it's hard to predict 530 00:29:05,840 --> 00:29:08,720 Speaker 12: how this Supreme Court will rule and if they get 531 00:29:08,760 --> 00:29:11,120 Speaker 12: to the second question, which is whether or not these 532 00:29:11,160 --> 00:29:15,560 Speaker 12: acts fall within the outer perimeter of the presidential functions 533 00:29:15,600 --> 00:29:18,520 Speaker 12: and duties. Then again, it's going to turn on how 534 00:29:18,560 --> 00:29:22,760 Speaker 12: the court chooses to characterize the acts, what level of generality, 535 00:29:23,080 --> 00:29:25,920 Speaker 12: and whether they look at them collectively and in context 536 00:29:26,160 --> 00:29:30,480 Speaker 12: or essentially separate them out individually the ways the former 537 00:29:30,520 --> 00:29:34,600 Speaker 12: president has invited them to. I also think that there's 538 00:29:34,600 --> 00:29:38,800 Speaker 12: a sort of a larger context here decisions about recognizing 539 00:29:38,840 --> 00:29:42,400 Speaker 12: immunity and to what extent do require courts to consider 540 00:29:42,440 --> 00:29:46,040 Speaker 12: the consequences of ruling one way or the other. Here 541 00:29:46,120 --> 00:29:49,400 Speaker 12: we have the former president who says that he should 542 00:29:49,440 --> 00:29:53,480 Speaker 12: not be subject to prosecution in part because of the 543 00:29:53,600 --> 00:29:57,200 Speaker 12: impact on future presidents and thinking about their ability to 544 00:29:57,240 --> 00:30:00,320 Speaker 12: carry out their duties without being distracted by worries they 545 00:30:00,400 --> 00:30:04,120 Speaker 12: themselves would be hauled into court subsequently and charge. And 546 00:30:04,360 --> 00:30:07,280 Speaker 12: he is saying on the campaign trail that if re elected, 547 00:30:07,320 --> 00:30:11,360 Speaker 12: he would direct his attorney general to prosecute his political enemies, 548 00:30:11,680 --> 00:30:15,680 Speaker 12: including now President Behiden. And so I do think that 549 00:30:15,800 --> 00:30:18,760 Speaker 12: part of the mix and the court evaluating the consequences 550 00:30:18,760 --> 00:30:21,120 Speaker 12: of its ruling would be if they do rule that 551 00:30:21,200 --> 00:30:24,240 Speaker 12: a former president can be subject to criminal prosecution will 552 00:30:24,280 --> 00:30:28,320 Speaker 12: acts while president will that mean that we would subsequently 553 00:30:28,440 --> 00:30:32,440 Speaker 12: see future prosecutions of former presidents sort of ramp up 554 00:30:32,480 --> 00:30:34,720 Speaker 12: in the way that we are seeing essentially an escalation 555 00:30:34,960 --> 00:30:37,720 Speaker 12: in the threat of impeachment for presidents while in office. 556 00:30:37,880 --> 00:30:42,880 Speaker 1: This presidential immunity claim presents so many issues. Thanks so much, Jessica. 557 00:30:43,160 --> 00:30:47,160 Speaker 1: That's Professor Jessica Roth of Cardozo Law School coming up next. 558 00:30:47,440 --> 00:30:50,040 Speaker 1: It's a hot tub, but it's a legal hot tub. 559 00:30:50,400 --> 00:30:53,080 Speaker 1: Just what does that mean? I'm June Grosso. When you're 560 00:30:53,120 --> 00:30:54,240 Speaker 1: listening to Bloomberg. 561 00:30:57,560 --> 00:31:05,400 Speaker 4: This is Bloomberg Law with Russo from Bloomberg Radio. 562 00:31:08,120 --> 00:31:09,040 Speaker 5: I don't want to say how. 563 00:31:11,320 --> 00:31:15,440 Speaker 4: Must be some kind of hot tub turchine. 564 00:31:15,880 --> 00:31:18,680 Speaker 1: We all know what hot tubs are, and we even 565 00:31:18,760 --> 00:31:21,880 Speaker 1: know what hot tub time machines are from the movies. 566 00:31:22,240 --> 00:31:25,960 Speaker 1: But what exactly is a legal hot tub. Well, it's 567 00:31:26,000 --> 00:31:28,800 Speaker 1: not as exciting as it may sound, and it really 568 00:31:28,880 --> 00:31:32,560 Speaker 1: has nothing to do with hot tubs. It's formally called 569 00:31:32,800 --> 00:31:38,400 Speaker 1: concurrent expert testimony or a concurrent expert evidence proceeding, and 570 00:31:38,440 --> 00:31:42,080 Speaker 1: it's like a discussion among experts. But it's not very 571 00:31:42,120 --> 00:31:45,560 Speaker 1: popular in US courts, at least so far. Here to 572 00:31:45,560 --> 00:31:47,800 Speaker 1: tell us about it and how it got that name 573 00:31:48,120 --> 00:31:52,600 Speaker 1: is Bloomberg Law reporter Dan papskin So tell us exactly 574 00:31:52,640 --> 00:31:54,320 Speaker 1: what this legal hot tub is. 575 00:31:54,400 --> 00:31:54,600 Speaker 7: Dan. 576 00:31:55,000 --> 00:31:56,479 Speaker 3: You can kind of think of it as a debate 577 00:31:56,640 --> 00:32:01,120 Speaker 3: between experts, often economic experts, but not necessary boroughly, where 578 00:32:01,240 --> 00:32:04,040 Speaker 3: instead of one sitting on the stands in a trial 579 00:32:04,280 --> 00:32:06,960 Speaker 3: or in the pre trial hearing and getting examined and 580 00:32:07,000 --> 00:32:09,520 Speaker 3: then cross examined by one size attorneys and then the other, 581 00:32:09,760 --> 00:32:13,160 Speaker 3: both or all of the witnesses sit together before the 582 00:32:13,240 --> 00:32:15,840 Speaker 3: judge and are basically prompted to debate each other on 583 00:32:15,920 --> 00:32:18,719 Speaker 3: a series of predetermined topics or questions. 584 00:32:18,760 --> 00:32:20,880 Speaker 1: And where did they get the name hot tub for this? 585 00:32:21,480 --> 00:32:25,160 Speaker 3: Australia. These originated pretty much right around the beginning of 586 00:32:25,160 --> 00:32:28,840 Speaker 3: the decade and it was deployed originally by the Australian 587 00:32:28,880 --> 00:32:32,840 Speaker 3: Competition Tribunal. They're kind of anti trust dedicated port system 588 00:32:33,280 --> 00:32:36,160 Speaker 3: basically to get a clear understanding of what experts we're 589 00:32:36,200 --> 00:32:38,840 Speaker 3: talking about and make them really drill down on their 590 00:32:38,840 --> 00:32:41,960 Speaker 3: agreements and their disagreements. It was pretty successful there and 591 00:32:42,000 --> 00:32:44,640 Speaker 3: it's taken off in a bunch of other countries in Europe, 592 00:32:44,800 --> 00:32:48,720 Speaker 3: in South Africa, Canada has used it, mostly been unpopular 593 00:32:48,760 --> 00:32:50,920 Speaker 3: in the US. We've only found a little less than 594 00:32:50,920 --> 00:32:54,160 Speaker 3: two dozen instances of federal judges using on it hasn't 595 00:32:54,200 --> 00:32:55,040 Speaker 3: it hasn't taken off. 596 00:32:55,200 --> 00:32:57,560 Speaker 1: Maybe the name has something to do with that. I 597 00:32:57,600 --> 00:33:00,200 Speaker 1: know you witness one of these legal hot tubs when 598 00:33:00,240 --> 00:33:04,040 Speaker 1: federal Judge James Denado held one in San Francisco. So 599 00:33:04,080 --> 00:33:04,840 Speaker 1: tell us about that. 600 00:33:05,080 --> 00:33:08,440 Speaker 3: So Donato held the second hot tub he's held in 601 00:33:08,480 --> 00:33:12,320 Speaker 3: this case. This is a lawsuit alleging Google basically has 602 00:33:12,360 --> 00:33:16,720 Speaker 3: anti competitive control over the payment systems in his playstore, 603 00:33:17,000 --> 00:33:20,360 Speaker 3: and so the second hot tub was to basically determine 604 00:33:20,400 --> 00:33:25,320 Speaker 3: whether the plaintiffs experts have reached kind of valid models 605 00:33:25,360 --> 00:33:29,160 Speaker 3: for figuring out how much consumers were harmed by these 606 00:33:29,200 --> 00:33:32,440 Speaker 3: playstore policies and what the impact was on the market. 607 00:33:32,800 --> 00:33:35,600 Speaker 1: Is the judge the only one asking questions or are 608 00:33:35,640 --> 00:33:40,239 Speaker 1: the lawyers asking questions? Is their cross talk between the experts. 609 00:33:40,040 --> 00:33:43,280 Speaker 3: There's a lot of crosstalk. It's almost exclusively Tonato asking 610 00:33:43,320 --> 00:33:46,040 Speaker 3: the questions. He allows a couple of attorneys to sit 611 00:33:46,120 --> 00:33:49,240 Speaker 3: with the experts in the hot tub, but they're really 612 00:33:49,240 --> 00:33:51,120 Speaker 3: only allowed to ask questions right at the end if 613 00:33:51,200 --> 00:33:54,520 Speaker 3: they have kind of clarifying questions for either expert. Otherwise 614 00:33:54,560 --> 00:33:58,880 Speaker 3: Donato prompts one side or the other. We'll say like, yeah, 615 00:33:58,880 --> 00:34:01,560 Speaker 3: I read your report, this question about this, you know, 616 00:34:02,120 --> 00:34:04,880 Speaker 3: one part of the model, and then we'll prompt the 617 00:34:04,920 --> 00:34:07,240 Speaker 3: other expert to be like, do you disagree with that? 618 00:34:07,680 --> 00:34:10,960 Speaker 3: So why it got pretty heated several times if there was, 619 00:34:11,160 --> 00:34:12,680 Speaker 3: I don't know if you would call it yelling, but 620 00:34:12,680 --> 00:34:16,520 Speaker 3: definitely raised voices. The court reporter had to interrupt I 621 00:34:16,520 --> 00:34:20,360 Speaker 3: think three separate times because two experts and the judge 622 00:34:20,360 --> 00:34:23,319 Speaker 3: were talking over each other and she couldn't transcribe that 623 00:34:23,400 --> 00:34:25,520 Speaker 3: in real time. So it definitely is a little more 624 00:34:25,600 --> 00:34:27,880 Speaker 3: chaotic than your average court oral testimony. 625 00:34:28,560 --> 00:34:32,880 Speaker 1: Is this because the expert testimony is so complex for 626 00:34:32,960 --> 00:34:37,920 Speaker 1: the judge to understand? Or is it because this is quicker? 627 00:34:38,000 --> 00:34:39,840 Speaker 1: I mean, what's the real reason behind this? 628 00:34:40,239 --> 00:34:42,799 Speaker 3: The reason do not outheld the hants up was to 629 00:34:42,840 --> 00:34:46,000 Speaker 3: answer this Google motion over whether the experts should be 630 00:34:46,040 --> 00:34:49,160 Speaker 3: allowed to testify or not. And Nato told me in 631 00:34:49,160 --> 00:34:53,480 Speaker 3: an interview afterwards that it's very useful for him understanding 632 00:34:53,680 --> 00:34:56,239 Speaker 3: their testimony and their models. It is really complicated and 633 00:34:56,320 --> 00:35:00,000 Speaker 3: that's a big reason why judges are deploying hot tubs. 634 00:35:00,280 --> 00:35:02,880 Speaker 3: Haven't deployed too many of them. But it's not just 635 00:35:02,920 --> 00:35:06,440 Speaker 3: as a complexity it's also faster to another side. It's 636 00:35:06,440 --> 00:35:10,439 Speaker 3: a lot cleaner compared normal expert testimony, non hot tub 637 00:35:10,480 --> 00:35:12,880 Speaker 3: testimony to a game of telephone. Right, You've got the 638 00:35:12,920 --> 00:35:15,120 Speaker 3: expert on the stand, you've got their attorney questioning them, 639 00:35:15,200 --> 00:35:17,400 Speaker 3: and then you've got the judge hearing their answers. So 640 00:35:17,400 --> 00:35:20,200 Speaker 3: it's kind of filtered through what questions the attorney wants 641 00:35:20,200 --> 00:35:23,080 Speaker 3: to ask, and then how the economist in this case 642 00:35:23,239 --> 00:35:26,480 Speaker 3: answers those questions. The judge might not necessarily be getting 643 00:35:26,760 --> 00:35:28,759 Speaker 3: the exact answers they're looking for. 644 00:35:29,000 --> 00:35:31,080 Speaker 1: Well, we'll see if the use of these legal hot 645 00:35:31,080 --> 00:35:33,520 Speaker 1: tubs picks up, but I think a name change is 646 00:35:33,520 --> 00:35:37,080 Speaker 1: in order. Thanks so much, Dan. That's Bloomberg Legal reporter 647 00:35:37,239 --> 00:35:39,719 Speaker 1: Dan Paskin, and that's it for this edition of The 648 00:35:39,719 --> 00:35:42,680 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 649 00:35:42,760 --> 00:35:45,879 Speaker 1: legal news on our Bloomberg Law Podcast. You can find 650 00:35:45,880 --> 00:35:50,480 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg 651 00:35:50,520 --> 00:35:54,319 Speaker 1: dot com, slash podcast slash Law, and remember to tune 652 00:35:54,320 --> 00:35:57,600 Speaker 1: into The Bloomberg Law Show every weeknight at ten pm 653 00:35:57,600 --> 00:36:01,759 Speaker 1: Wall Street Time. I'm June Grass and you're listening to Bloomberg. 654 00:36:02,840 --> 00:36:07,000 Speaker 1: M mm hmm,