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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The legal teams

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Speaker 1: in the money laundering case of former Trump campaign chair

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Speaker 1: Paul Manafort got a bit of scolding from the federal

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Speaker 1: trial judge yesterday. Federal Judge Amy Berman Jackson said that

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Speaker 1: there had been too many secret filings in the high

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Speaker 1: profile criminal prosecution and that she would make several of

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Speaker 1: them public. But several minutes later, she closed the courtroom

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Speaker 1: to the public for two hours to talk privately with

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Speaker 1: prosecutors and defense lawyers reviewing manaforts bail package and request

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Speaker 1: by lawyers for his co defendant Rick Gates to leave

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Speaker 1: the case. Joining me, as William Banks, professor at Syracuse

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Speaker 1: University Law School, built, many defendants would like to keep

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Speaker 1: their proceedings and papers private, but they're not allowed to.

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Speaker 1: What would justify all the sealed documents in this case?

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Speaker 1: You know, it's a little bit hard to tell since

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Speaker 1: we can't ourselves see that information. Right now. But from

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Speaker 1: the what the judge said and the reporting so far,

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Speaker 1: it sounds like much of it was ordinary bank account

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Speaker 1: information and perhaps names of family members associated with the defendants,

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Speaker 1: And those things are of course routinely kept private, and

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Speaker 1: it's possible to redact the pertinent documents and then let

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Speaker 1: them become public, and I imagine Judge Jackson will see

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Speaker 1: to it that that sort of thing is done. If

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Speaker 1: there are others that are secret on account of sensitive

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Speaker 1: information pertaining to national security, we would probably learn about

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Speaker 1: that as a category, But I haven't seen any indication

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Speaker 1: that that's so. The judges said, the lawyers are arguing

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Speaker 1: that the details should be kept private because of media attention.

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Speaker 1: It's the legal fight. And so she did instruct Man

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Speaker 1: of for its attorneys to file a redacted version of

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Speaker 1: their latest submission regarding financial assets to secure his release

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Speaker 1: on bail. I take it that he doesn't want his

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Speaker 1: finances being revealed. But is media attention to this a

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Speaker 1: good enough reason in a case involving money laundering and

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Speaker 1: hiding off shore bank accounts. No, it's not. And then

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Speaker 1: Judge Jackson, I think, expressed public dissatisfaction with that tactic,

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Speaker 1: yesterday and will continue to do so. The fact that

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Speaker 1: the media as well as the American people are interested

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Speaker 1: in this prosecution is all the more reason for them

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Speaker 1: for the information to be made public. Recently, as you know,

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Speaker 1: there was there was a charge made that Manifold himself

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Speaker 1: might have been tied to Russia in his previous dealings

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Speaker 1: and perhaps to someone who was involved in the Russian

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Speaker 1: collusion potential conclusion or at least the inter errants with

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Speaker 1: the sixteen election, so that the case against them could

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Speaker 1: be broadening at the very time that each fighting to

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Speaker 1: make it go away. When you look at the docket

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Speaker 1: in this case, you see one thing after another, motion

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Speaker 1: to seal, motion to seal, seal document, sealed document. But

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Speaker 1: as far as the you know, there is apparently going

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Speaker 1: to be a change in Gates legal team, but it

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Speaker 1: seems to be taking quite a while. Why would that

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Speaker 1: information be under seal. It would only be under seal

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Speaker 1: until such time as the new appointment is officially made.

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Speaker 1: I thought that they were close to doing that yesterday. Uh,

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Speaker 1: you know, to protect the confidentiality of any negotiations that

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Speaker 1: are ongoing between one of the defendants and potential council

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Speaker 1: that's a protected, uh conversation or communication. But I'm sure

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Speaker 1: once new council is appointed, I think we know who

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Speaker 1: it's going to be, then that'll be as public as

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Speaker 1: his maniflorts. I want to look at a different topic

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Speaker 1: now in the Mueller investigation, and that is regarding Mueller's

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Speaker 1: request to interview the president. His presidence lawyers are fighting

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Speaker 1: this request, and here are the arguments that they've apparently

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Speaker 1: been making against an interview. Broadly, that the White House

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Speaker 1: has given Mueller unprecedented access to the White House documents

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Speaker 1: and people, that there's no stated crime, and that seven

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Speaker 1: decision by US Court of Appeals for the d C

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Speaker 1: Circuit during the Clinton administration puts the burden on prosecutors

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Speaker 1: to exhaust all evidence avenues before turning to the president.

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Speaker 1: Do any of these strike you as being winning arguments.

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Speaker 1: I don't think so. They're all credible arguments. And indeed,

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Speaker 1: as we'll recall, President Clinton was subjected to an interview

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Speaker 1: by special counsel, part of it being done on video conference,

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Speaker 1: and I think some kind of arrangement along those lines

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Speaker 1: might be made for President Trump, but he may decide

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Speaker 1: to let his lawyers call the shots, there and fight

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Speaker 1: this every step of the way, or he may, as

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Speaker 1: he said publicly before, be perfectly willing to talk to

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Speaker 1: Mr Mullock. I think if, if, if it becomes a

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Speaker 1: legal fight over whether or not he testifies, he may

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Speaker 1: want some delay. But I think, ultimately, because the Special

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Speaker 1: Council has every right to learn whether what the President

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Speaker 1: knows and whether anything that he knows might be uh

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Speaker 1: tied the culpability of anyone in his staff is certainly

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Speaker 1: a worthwhile pursuit for Mr Mohler's teeth bill. One uh

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Speaker 1: defense that I hear often, and I'd like your take

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Speaker 1: on it, is that since the President has the power

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Speaker 1: to fire the FBI director for any reason, that can't

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Speaker 1: be obstruction of justice. I mean, can you have a

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Speaker 1: legal right to do something and it still is obstruction

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Speaker 1: of justice? Yes, I think clearly so. He does have

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Speaker 1: the right to dismiss the FBI director, but he may

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Speaker 1: have on a prior occasion in dealing with Mr Comen

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Speaker 1: or someone else, attempted to influence the direction or outcome

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Speaker 1: of the investigation into Russian election interference. I'm doing so

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Speaker 1: would be obstruction of justice independent of his authority to

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Speaker 1: deal with his personnel. So in about thirty seconds here,

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Speaker 1: Mueller hasn't forced the issue with a subpoena, but that

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Speaker 1: could change. Will this case end up at the Supreme Court?

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Speaker 1: If there is a subpoena and a fight, it's theoretically possible.

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Speaker 1: I think all parties would like to avoid that. I

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Speaker 1: think Mueller's team will do everything they can to reach

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Speaker 1: a negotiated agreement with the White House concerning residence, testimony,

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Speaker 1: and many other things that are likely to come up

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Speaker 1: along the way, and a lot of steps to this

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Speaker 1: investigation there certainly are hard to keep up with it sometimes.

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Speaker 1: Thanks so much, Bill. That's William Banks, to professor at

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Speaker 1: Syracuse University Law School. Coming up on Bloomberg Politics, policy, power,

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Speaker 1: and law. Steve Bannon meets with White House lawmakers with

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Speaker 1: What House lawmakers as he fights efforts to participate in

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Speaker 1: the Russia pro This is Bloomberg. You often hear about

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Speaker 1: the conservatives versus liberals on the Supreme Court and that

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Speaker 1: five four split down idiological lines. What you don't hear

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Speaker 1: about is four justices who are building a consensus in

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Speaker 1: this time of sharp divides in our nation. Bloomberg Supreme

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Speaker 1: Court reporter Greg Store has written about the consensus builders.

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Speaker 1: Chief Justice John Roberts, Justices Stephen Bryer, Elana Kagan and

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Speaker 1: Anthony Kennedy greg the four justices are on different sides

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Speaker 1: of the ideological spectrum. So tell us first just how

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Speaker 1: different they are, Hi June. Yeah, they're they're They're definitely

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Speaker 1: coming from different places in terms of the ultimate answers

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Speaker 1: about what the Constitution protects. So when you see the

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Speaker 1: big cases like the Albergia Fell Rights case, uh, the

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Speaker 1: Citizens United Campaign Finance ruling, UH, the Shelby County Voting

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Speaker 1: Rights Act ruling, those are all cases where these four

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Speaker 1: justice has ended up on different sides, with Stephen Bryan,

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Speaker 1: Elane Okagan taking the liberal side and uh, John Roberts,

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Speaker 1: Nancy Anthony Kennedy generally taking the conservative side, but not always.

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Speaker 1: So what makes for this consensus, Well, they all seem

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Speaker 1: to have a commitment to the institutional integrity of the court.

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Speaker 1: That's at least how they would describe it. They um

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Speaker 1: are uh, they they recognize and John Roberts has talked

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Speaker 1: about this, uh, that that there's a real cost when

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Speaker 1: the court looks like it is split five to four.

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Speaker 1: Were on some of the biggest issues and that it

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Speaker 1: is merely a bunch of political actors, and they all

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Speaker 1: four of them, do you know, share a desire to

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Speaker 1: have something other than a five four split, to have

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Speaker 1: a bigger group of justices in the majority? Greg, is

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Speaker 1: this talked about in their meetings? Do they meet separately even?

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Speaker 1: Um that that's a great question, and I wish I

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Speaker 1: could tell you the exact answer. They know as a

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Speaker 1: general matter, they do most of their talking to one

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Speaker 1: another in a group altogether in one room. But certainly

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Speaker 1: when they get to the point that they're writing opinions,

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Speaker 1: they do a lot of trading back and forth, and

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Speaker 1: there is a lot of communication that goes on there. Uh,

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Speaker 1: So it's hard to imagine there isn't a lot of

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Speaker 1: back and forth within this this group. Before you mentioned

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Speaker 1: an interchange during oral arguments between Chief Justice John Roberts

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Speaker 1: and Elena Kagan. Is there some chemistry with these four

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Speaker 1: as well? There certainly is. Yeah. The extent I talked

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Speaker 1: about in the courtroom was in this big case involving um, uh,

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Speaker 1: the Colorado baker who didn't want to make cakes for

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Speaker 1: same sex weddings and uh Justice Kagan want to ask

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Speaker 1: another question saw that that the lawyer's time was running out,

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Speaker 1: and she said, uh, so you know, said, well, I'm

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Speaker 1: sure you'll be given more time, and that's a prerogative

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Speaker 1: of the Chief Justice, and so she um, uh, she

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Speaker 1: looked sheepiously over at the Chief Justice and she said,

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Speaker 1: is that okay? And he kind of gave her an

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Speaker 1: exasperated look, and of course he did give the lawyer

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Speaker 1: some more time. So so, um, there is that chemistry.

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Speaker 1: What about the other justices? Are they just not willing

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Speaker 1: to compromise that? They are much less willing to compromise,

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Speaker 1: no doubt. And we can't always see what's going on

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Speaker 1: behind closed doors, of course, but no doubt they are

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Speaker 1: uh willing to compromise on occasion, but much more frequently

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Speaker 1: the other five and three of them are on the

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Speaker 1: right and two of them are on the left. Are

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Speaker 1: are going to say, I fundamentally disagree with the court,

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Speaker 1: with what the Court is doing here, and I'm not

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Speaker 1: willing to compromise those fundamental beliefs. And I will often

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Speaker 1: write an opinion to tell you why I think they're wrong.

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Speaker 1: You say that Justice, you write that Justice Scalia's death

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Speaker 1: sort of set the groundwork for this consensus building how

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Speaker 1: well they That was a time when you know, there

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Speaker 1: was a fourteen month period after Justice Scaliad died before

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Speaker 1: Justice course it's got confirmed, where they only had eight

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Speaker 1: justices and they have a lot of cases that left

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Speaker 1: some divisions there and they wanted to didn't want to

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Speaker 1: be stuck four to four and in very many of them,

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Speaker 1: so they had to work together to find find some

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Speaker 1: way to to get the five um And that is

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Speaker 1: a time where um uh Justice Kagan has talked about

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Speaker 1: this some publicly, where they had to work extra hard

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Speaker 1: to try to uh, you know, build some bridges and

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Speaker 1: and come up with something that would would let them

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Speaker 1: resolve the case. It was often very very narrow if

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Speaker 1: you were a call back. And when they were dealing

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Speaker 1: with the issue of what religious groups like Little Sisters

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Speaker 1: of the Poor head to to do with regard to

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Speaker 1: the contraceptive mandate from the Obama administration, uh, they issued

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Speaker 1: a ruling that was somewhat inscrutable, but it at least

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Speaker 1: was a consensus that that resolved the case without just

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Speaker 1: saying we're divided forward to four on this is that

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Speaker 1: the way that they often managed to reach a consensus

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Speaker 1: by making the opinion more narrow that that is generally

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Speaker 1: a yes. Uh you know it is can is the

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Speaker 1: process of can you live with this? Um? It may

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Speaker 1: not be exactly what what you want, but if it

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Speaker 1: is narrower, it makes it easier to get a larger

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Speaker 1: number of justices. The other way it happens sometimes is

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Speaker 1: when you're dealing with an emergency application and um, uh

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Speaker 1: you know, some justices want to publicly say I disagree

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Speaker 1: with how this is taken care of, you know, maybe

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Speaker 1: a death penalty, maybe um, you know, whether some some

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Speaker 1: voting changes go into effect. Um, And by not publicly

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Speaker 1: dissenting from a decision like that, you suggest there's that

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Speaker 1: there's a little broader agreement even though there's not actually

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Speaker 1: an opinion sometimes in those cases, so there are a

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Speaker 1: lot of hot button issues that they have to face.

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Speaker 1: This term. Is the consensus going to hold or do

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Speaker 1: you think it might break down in the face of

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Speaker 1: these really controversial issues. It is certainly going to be challenged.

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Speaker 1: There are some issues, for example, UM, very soon the

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Speaker 1: Supreme Court is going to take up the issue of

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Speaker 1: whether public sector workers have a right to uh not

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Speaker 1: pay the fees that support the union that represents them.

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Speaker 1: And that's an issue where we have seen this court

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Speaker 1: in an earlier version when they only had eight justices

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Speaker 1: divide four to four. So that's an issue where we

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Speaker 1: know it's a sharply divided court and no matter how

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Speaker 1: well those four justices get along, and no matter how

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Speaker 1: how good their chemistry is, uh, it may well be

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Speaker 1: im sible for them to get together on a on

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Speaker 1: a decision like that. The Chief has been criticized by

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Speaker 1: some conservatives for this consensus attitude. Tell us about that. Yeah, well,

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Speaker 1: the you know, the Chief in some ways, and it

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Speaker 1: really goes back to the first decision on President Obama's

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Speaker 1: health care law. You know, it's really disappointed conservatives who

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Speaker 1: would like him to be more like a Clarence Thomas

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Speaker 1: or it increasingly appears a Neil Gorst' and uh, it's

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Speaker 1: talk a little more bit more about first principles and

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Speaker 1: not be willing to compromise. And their argument is, in part, look,

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Speaker 1: we need clarity in the law, and these narrow decisions

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Speaker 1: don't provide that that sort of clarity. The Chief has

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Speaker 1: always had a respect and a feeling for the Court

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Speaker 1: as an institution, and is it also because it is

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Speaker 1: called Robert's Court. Well, I think it would be a

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Speaker 1: great thought experiment. Are a great parallel universe to see

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Speaker 1: what the world would be like, if what John Roberts

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Speaker 1: would be like if you weren't the Chief Justice. Uh,

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Speaker 1: there's no question that he feels a certain responsibility to

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Speaker 1: look out for the institutional interests of the Court as

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Speaker 1: he sees sees them. Whether you would do that as

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Speaker 1: an associate justice, that'd be a great thing to think about.

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Speaker 1: We could go on forever. Unfortunately we can. Thanks so much, Gregg.

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Speaker 1: That's Greg Store, Bloomberg New Supreme Court reporter. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple podcast, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Brasso. This is

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Speaker 1: Bloomberg