1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio. 2 00:00:09,160 --> 00:00:13,360 Speaker 1: Amazon and the five largest US publishing houses are free 3 00:00:13,560 --> 00:00:18,720 Speaker 1: for now of antitrust litigation overclaims they manipulated online book 4 00:00:18,760 --> 00:00:21,680 Speaker 1: and e book markets. But the case may not be 5 00:00:21,840 --> 00:00:26,439 Speaker 1: over just yet. My guest is antitrust law expert Harry First, 6 00:00:26,720 --> 00:00:29,840 Speaker 1: a professor at n y U Law School. Harry tell 7 00:00:29,880 --> 00:00:34,239 Speaker 1: us about these lawsuits. So so let's just, um, will 8 00:00:34,320 --> 00:00:38,479 Speaker 1: you just explain what this what this class action, what 9 00:00:38,520 --> 00:00:43,800 Speaker 1: they was about. Okay, this is a fun case, as 10 00:00:43,840 --> 00:00:47,800 Speaker 1: all anti trust cases are. They are so um. First 11 00:00:47,840 --> 00:00:50,600 Speaker 1: of all, it's a class action which, as you know, 12 00:00:50,880 --> 00:00:53,080 Speaker 1: is brought on behalf of a lot of people, and 13 00:00:53,479 --> 00:00:57,680 Speaker 1: this is brought on behalf of buyers of e books 14 00:00:57,840 --> 00:01:02,080 Speaker 1: against Amazon and five Age your book publishers. So that's 15 00:01:02,120 --> 00:01:05,280 Speaker 1: presumably a lot of the books a lot of money 16 00:01:05,480 --> 00:01:08,960 Speaker 1: writing on this. Damages in these cases are not just 17 00:01:09,720 --> 00:01:13,080 Speaker 1: what the consumers might have paid over what they should 18 00:01:13,080 --> 00:01:16,040 Speaker 1: have paid the overcharge, which is what they're alleging, but 19 00:01:16,200 --> 00:01:20,160 Speaker 1: it's that trebled, so damages are three times that. So 20 00:01:20,240 --> 00:01:24,840 Speaker 1: a lot of buyers the book publishers published almost of 21 00:01:24,880 --> 00:01:28,839 Speaker 1: the books published in the United States, and of course 22 00:01:29,280 --> 00:01:33,160 Speaker 1: we've heard of Amazon, an interesting little factoy. They sell 23 00:01:33,280 --> 00:01:37,600 Speaker 1: more books than any other single retail outlet in history, 24 00:01:38,000 --> 00:01:41,319 Speaker 1: in history, you know, I'm not sure how far back 25 00:01:41,400 --> 00:01:46,920 Speaker 1: that goes, but they have tremendous power in this industry. 26 00:01:47,160 --> 00:01:50,840 Speaker 1: Is it a monopoly, Well, that's a great question, and 27 00:01:50,960 --> 00:01:54,440 Speaker 1: it's a question the Federal Trade Commission has been investigating. 28 00:01:54,960 --> 00:01:57,280 Speaker 1: They've been assigned the task, I guess you could say, 29 00:01:57,280 --> 00:02:02,640 Speaker 1: of investigating Amazon for men balizing conduct. It's not a 30 00:02:02,720 --> 00:02:05,200 Speaker 1: violation of US law just to be a monopoly. They 31 00:02:05,200 --> 00:02:08,600 Speaker 1: have to do byad things to keep their monopoly or 32 00:02:08,600 --> 00:02:11,359 Speaker 1: to have gotten it. And so they are under investigation. 33 00:02:11,400 --> 00:02:13,480 Speaker 1: They've always been under a lot of fire. They're under 34 00:02:13,520 --> 00:02:17,240 Speaker 1: fire here, they're under fire in Europe, in Asia, I 35 00:02:17,280 --> 00:02:20,440 Speaker 1: mean everywhere. And you know, instinctively we know they've got 36 00:02:20,480 --> 00:02:25,160 Speaker 1: tremendous power over the book publishers. They do some publishing 37 00:02:25,639 --> 00:02:28,160 Speaker 1: of books, but they haven't really made a go of it, 38 00:02:28,560 --> 00:02:33,040 Speaker 1: and their powers mainly as the distributor, the retailer that 39 00:02:33,120 --> 00:02:38,480 Speaker 1: has great power in the change of distribution, so very powerful, 40 00:02:38,720 --> 00:02:42,760 Speaker 1: and you know, the book publishers aren't not powerful. Without them, 41 00:02:42,760 --> 00:02:46,680 Speaker 1: we don't have books. So these are parties on both 42 00:02:46,720 --> 00:02:51,240 Speaker 1: sides with a lot of market power. So the problem 43 00:02:51,280 --> 00:02:53,959 Speaker 1: in this case, the reason why the buyers are bringing 44 00:02:54,040 --> 00:02:58,040 Speaker 1: is they allege that the five publishers and Amazon have 45 00:02:58,280 --> 00:03:03,040 Speaker 1: conspired to fix the prices of e books roughly I 46 00:03:03,040 --> 00:03:09,680 Speaker 1: guess from twenty onward and raise the price above what 47 00:03:09,800 --> 00:03:13,640 Speaker 1: it would be in a competitive market without this agreement. 48 00:03:13,960 --> 00:03:17,239 Speaker 1: So how did they do it? And this is where, 49 00:03:17,280 --> 00:03:20,079 Speaker 1: of course it gets complicated, because you know, the planiffs 50 00:03:20,120 --> 00:03:23,360 Speaker 1: have to prove that they actually agreed. So each of 51 00:03:23,600 --> 00:03:27,560 Speaker 1: the publishers has an agreement with Amazon. They have these 52 00:03:27,600 --> 00:03:31,960 Speaker 1: agreements individually with Amazon for how their books are sold. 53 00:03:32,360 --> 00:03:35,760 Speaker 1: The arrangement is something that they call the agency model. 54 00:03:36,600 --> 00:03:39,680 Speaker 1: So you know, if you if you sell your house, 55 00:03:39,760 --> 00:03:42,640 Speaker 1: then you have a real estate agent. The real estate 56 00:03:42,680 --> 00:03:45,160 Speaker 1: agent doesn't own your house and then sell its m 57 00:03:45,280 --> 00:03:47,600 Speaker 1: for more money or less money, whatever they can get. 58 00:03:48,000 --> 00:03:51,000 Speaker 1: They just act on your behalf and you tell them 59 00:03:51,000 --> 00:03:53,440 Speaker 1: how much you want, what price do you want. That's 60 00:03:53,560 --> 00:03:56,520 Speaker 1: an agency model, and that's the model they took with 61 00:03:56,720 --> 00:04:00,240 Speaker 1: e books. Of course, e books aren't physical, they're US 62 00:04:00,360 --> 00:04:03,960 Speaker 1: zeroes and ones. They're just computer code. But the fiction 63 00:04:04,120 --> 00:04:07,760 Speaker 1: is well, Amazon's their agents. They don't really own the books, 64 00:04:08,160 --> 00:04:10,160 Speaker 1: not that there are books, they don't own the files. 65 00:04:10,200 --> 00:04:12,480 Speaker 1: I guess you could say they're just the agent. And 66 00:04:13,240 --> 00:04:17,400 Speaker 1: each publisher tells Amazon what to sell the book at 67 00:04:18,120 --> 00:04:21,359 Speaker 1: and then Amazon takes a cut. The cut is I 68 00:04:21,440 --> 00:04:24,760 Speaker 1: think thirty of the sale price. Is that high? It 69 00:04:24,880 --> 00:04:29,000 Speaker 1: sounds high. I think it's This has been the standards, 70 00:04:29,000 --> 00:04:32,200 Speaker 1: thanks frankly to Steve Jobs. But we'll get to that 71 00:04:32,240 --> 00:04:35,440 Speaker 1: in a minute, because that's behind all of this. So 72 00:04:35,600 --> 00:04:40,240 Speaker 1: each agreed to this agency model, and when they did, individually, 73 00:04:40,279 --> 00:04:44,040 Speaker 1: they issued press releases or letters to their authors, you know, 74 00:04:44,400 --> 00:04:48,000 Speaker 1: explaining what that they were doing this, but each individually. 75 00:04:48,080 --> 00:04:51,479 Speaker 1: And there's another wrinkle to this, which is often referred 76 00:04:51,480 --> 00:04:56,720 Speaker 1: to as a price parody, cause not paro d as amusing, 77 00:04:57,120 --> 00:05:03,040 Speaker 1: but equal so um in these agreements required each publisher 78 00:05:03,640 --> 00:05:08,120 Speaker 1: to tell Amazon if their books were available through a 79 00:05:08,160 --> 00:05:11,920 Speaker 1: different retailer at a lower price, So to inform them 80 00:05:11,960 --> 00:05:15,440 Speaker 1: if let's say that they were allowing Barnes and Noble 81 00:05:15,560 --> 00:05:19,719 Speaker 1: to sell the book at a lower retail price, and 82 00:05:19,800 --> 00:05:24,880 Speaker 1: then Amazon could react and could say we want the 83 00:05:24,920 --> 00:05:28,599 Speaker 1: same price, which is, you know, what they would do 84 00:05:29,279 --> 00:05:32,120 Speaker 1: and what they did and This included not just the 85 00:05:32,160 --> 00:05:35,360 Speaker 1: same price, but promotional deals, whatever sorts of things they 86 00:05:35,400 --> 00:05:38,120 Speaker 1: worked out. They gave other retailers a little better deal 87 00:05:38,200 --> 00:05:40,680 Speaker 1: they had to tell Amazon about and Amazon would tell 88 00:05:41,040 --> 00:05:43,719 Speaker 1: them where we want that deal. Now, if the publisher's ball, 89 00:05:43,960 --> 00:05:47,040 Speaker 1: then Amazon could retaliate for threatened to retaliate, and they 90 00:05:47,080 --> 00:05:49,279 Speaker 1: had lots of ways to do that, some of which 91 00:05:49,320 --> 00:05:51,640 Speaker 1: had become public. I mean, they sell a lot of 92 00:05:51,640 --> 00:05:55,640 Speaker 1: physical books, so they can retaliate against the physical book division, 93 00:05:55,640 --> 00:05:58,279 Speaker 1: and they threatened to st with that at one point, 94 00:05:58,520 --> 00:06:02,680 Speaker 1: you know, to force these publishers who in the end, 95 00:06:02,920 --> 00:06:05,960 Speaker 1: I mean, they need Amazon to distribute their books. So 96 00:06:06,680 --> 00:06:11,839 Speaker 1: the allegation is that the price parity clause, for the 97 00:06:11,920 --> 00:06:17,719 Speaker 1: price informational parity clause that combined with the agreement, you know, 98 00:06:17,800 --> 00:06:21,919 Speaker 1: the agency model, was an agreement that effectively fixed the 99 00:06:21,960 --> 00:06:26,960 Speaker 1: price and prevented discounting. And the plaintiffs back this up with. 100 00:06:27,200 --> 00:06:31,039 Speaker 1: You know that they all had these press releases sort 101 00:06:31,040 --> 00:06:34,320 Speaker 1: of telling everyone in the world, including their competitors, what 102 00:06:34,400 --> 00:06:38,279 Speaker 1: they did. And the week after these agency agreements were signed, 103 00:06:38,640 --> 00:06:43,320 Speaker 1: everyone increased their e book prices, some by quite a bit, Penguin, 104 00:06:43,400 --> 00:06:48,640 Speaker 1: for example, by so that they argue the PLANETFS argue 105 00:06:48,880 --> 00:06:51,839 Speaker 1: shows it was an agreement to fix prices. Now for 106 00:06:51,880 --> 00:06:56,800 Speaker 1: the background in a prior case involving Steve Jobs. Now 107 00:06:56,920 --> 00:06:59,919 Speaker 1: I said, there's background in this, and the background is 108 00:07:00,400 --> 00:07:02,919 Speaker 1: what makes it more interesting is that it's not the 109 00:07:02,960 --> 00:07:06,320 Speaker 1: first time we've seen a problem with price fixing of 110 00:07:06,400 --> 00:07:11,720 Speaker 1: e books. And the first time actually involved litigation with 111 00:07:11,920 --> 00:07:17,240 Speaker 1: the Justice Department and the States and the European Union actually, 112 00:07:17,760 --> 00:07:21,480 Speaker 1: and it involved Apple. And this dated back to two 113 00:07:21,520 --> 00:07:24,960 Speaker 1: thousand seven, believe it or not, when the Kindle came 114 00:07:24,960 --> 00:07:28,640 Speaker 1: out and Amazon releases the Kindle with a low e 115 00:07:28,840 --> 00:07:34,960 Speaker 1: book price of At that time, publishers distributed e books 116 00:07:34,960 --> 00:07:39,360 Speaker 1: like they distributed hardcover books wholesale, so they would sell 117 00:07:39,480 --> 00:07:42,080 Speaker 1: them to the retailer and then the retailer can sell 118 00:07:42,120 --> 00:07:45,440 Speaker 1: whatever price they wanted. So they were selling books e 119 00:07:45,680 --> 00:07:51,080 Speaker 1: books to Amazon for roughly nine dollars or something close 120 00:07:51,120 --> 00:07:55,040 Speaker 1: to and Amazon wasn't taking very much of a profit. 121 00:07:55,200 --> 00:07:58,600 Speaker 1: They were giving the consumer a great deal in part 122 00:07:58,680 --> 00:08:02,600 Speaker 1: to get the Kindle to be adopted, and the publishers 123 00:08:02,600 --> 00:08:09,320 Speaker 1: were just they hated this. So they actually started meeting together. 124 00:08:09,920 --> 00:08:14,400 Speaker 1: And that's a key difference so far between the case. 125 00:08:14,480 --> 00:08:17,800 Speaker 1: We're talking about the current class action and the old case. 126 00:08:18,360 --> 00:08:21,520 Speaker 1: So the publishers met quite a bit, including a well 127 00:08:21,560 --> 00:08:25,120 Speaker 1: known meeting at a very fancy restaurant where they had 128 00:08:25,400 --> 00:08:30,120 Speaker 1: a private room to themselves, restaurant called p Sholeen on 129 00:08:30,160 --> 00:08:33,360 Speaker 1: the Upper East Side, and you know, they met and 130 00:08:33,400 --> 00:08:38,360 Speaker 1: they decided to approach Steve Jobs, who was coming out 131 00:08:38,760 --> 00:08:41,719 Speaker 1: with his own you know, the Eye Books, the Eye 132 00:08:41,760 --> 00:08:46,640 Speaker 1: Book Store on the iPad. So they agreed, and Jobs 133 00:08:46,640 --> 00:08:49,120 Speaker 1: didn't want a still, he wanted to get a lot 134 00:08:49,160 --> 00:08:52,280 Speaker 1: more money, so they agreed with him on this agency 135 00:08:52,360 --> 00:08:55,160 Speaker 1: model that's they came up with and said, Okay, we'll 136 00:08:55,160 --> 00:08:58,440 Speaker 1: give you the thirty cut, you can have a higher price, 137 00:08:58,800 --> 00:09:00,480 Speaker 1: and we'll work out of the all. We can go 138 00:09:00,480 --> 00:09:03,920 Speaker 1: into the mechanics if you want to how we're basically 139 00:09:03,960 --> 00:09:07,079 Speaker 1: going to force Amazon and all of us to move 140 00:09:07,120 --> 00:09:10,960 Speaker 1: from the sole sale model to the agency model where 141 00:09:10,960 --> 00:09:13,080 Speaker 1: we can dictate the price and we're gonna push it 142 00:09:13,640 --> 00:09:19,480 Speaker 1: up past point. So they constructed this agreement, which eventually 143 00:09:19,520 --> 00:09:23,400 Speaker 1: resulted in their being sued. All the publishers settled that 144 00:09:23,520 --> 00:09:29,760 Speaker 1: case with consent agreements, except for Apple, which litigated to 145 00:09:29,880 --> 00:09:33,760 Speaker 1: the Court of Appeals and lost. So this case that 146 00:09:33,800 --> 00:09:38,559 Speaker 1: we're talking about comes about once the remedies that were 147 00:09:38,600 --> 00:09:43,880 Speaker 1: imposed in the earlier case expired. So under the earlier case, 148 00:09:44,040 --> 00:09:48,800 Speaker 1: the publishers were not permitted to stop retail discounting. Once 149 00:09:48,880 --> 00:09:54,560 Speaker 1: that expired, they entered into new agreements with Amazon that effectively, 150 00:09:54,679 --> 00:09:59,920 Speaker 1: they say, ended the discounting. So this is round two, 151 00:10:00,600 --> 00:10:04,960 Speaker 1: and this is the case that actually the district court 152 00:10:05,120 --> 00:10:09,800 Speaker 1: just throw out. Yeah, so it sounds like what they're 153 00:10:09,800 --> 00:10:14,679 Speaker 1: doing is an agreement and it's driving prices up. So 154 00:10:15,040 --> 00:10:18,560 Speaker 1: why did the court throw it out? You asked the 155 00:10:18,679 --> 00:10:22,000 Speaker 1: perfect question. This is the kicker, and this is one 156 00:10:22,040 --> 00:10:26,360 Speaker 1: of the really hard legal issues for anti trust's law. 157 00:10:26,960 --> 00:10:30,520 Speaker 1: So in the first case, remember I mentioned something about 158 00:10:30,840 --> 00:10:34,880 Speaker 1: meeting in a private restaurant, and there was a lot 159 00:10:34,920 --> 00:10:37,800 Speaker 1: of communication there were there were a lot of emails, 160 00:10:37,840 --> 00:10:40,880 Speaker 1: phone calls back and forth among the publishers. None of 161 00:10:40,920 --> 00:10:46,559 Speaker 1: that apparently exists in this case. So in the first case, 162 00:10:46,880 --> 00:10:51,920 Speaker 1: when competitors get together on the same level of production distribution, 163 00:10:52,240 --> 00:10:56,640 Speaker 1: their agreement is called a horizontal agreement, and the horizontal 164 00:10:56,679 --> 00:11:00,679 Speaker 1: agreement on prices is considered the absolute worst thing in 165 00:11:00,760 --> 00:11:05,000 Speaker 1: any trust illegal per se in and of itself. No defense. 166 00:11:05,400 --> 00:11:08,640 Speaker 1: People often go to jail for it. So if it's horizontal, 167 00:11:09,280 --> 00:11:13,160 Speaker 1: it's a big problem. But there's no clear proof in 168 00:11:13,200 --> 00:11:19,000 Speaker 1: this case that they agreed, and the plaintiffs try to argue, 169 00:11:19,520 --> 00:11:24,040 Speaker 1: you can infer they agreed by some of their behavior, 170 00:11:24,360 --> 00:11:28,280 Speaker 1: there must be an agreement. He announced. On the same day. 171 00:11:28,520 --> 00:11:32,679 Speaker 1: Three of the five CEOs were around for the prior case. 172 00:11:33,000 --> 00:11:35,520 Speaker 1: They know how this goes, you know. Now they're better 173 00:11:35,679 --> 00:11:38,800 Speaker 1: counsel and they're listening to their lawyers. Apparently they did 174 00:11:38,840 --> 00:11:42,360 Speaker 1: not the last time, and they're much more cautious. But 175 00:11:42,600 --> 00:11:46,040 Speaker 1: there aren't that many players, and they know what's happening, 176 00:11:46,320 --> 00:11:48,840 Speaker 1: and they all come up with the same deal. So 177 00:11:49,840 --> 00:11:54,760 Speaker 1: the argument goes, a jury could infer that they agreed, 178 00:11:55,360 --> 00:12:00,560 Speaker 1: but the court said, no, you haven't pleaded enough. We 179 00:12:00,640 --> 00:12:03,920 Speaker 1: won't allow a jury. It's what we have is consistent 180 00:12:04,040 --> 00:12:09,120 Speaker 1: with individual action, as it is with conspiracy. And there's 181 00:12:09,160 --> 00:12:12,640 Speaker 1: the Supreme Court decision that says that's not good enough 182 00:12:13,160 --> 00:12:17,240 Speaker 1: for you know, in any trust conspiracy. And so that's 183 00:12:17,280 --> 00:12:21,240 Speaker 1: why the basically why the district court rejected the complaint. 184 00:12:21,240 --> 00:12:24,079 Speaker 1: Oor at a very early stage. This is just really 185 00:12:24,120 --> 00:12:27,880 Speaker 1: the initial stage of this litigation. They filed their complaint. 186 00:12:28,240 --> 00:12:31,079 Speaker 1: That's all that's been done. They haven't you know, had 187 00:12:31,080 --> 00:12:33,960 Speaker 1: a chance to you know, go through the emails to 188 00:12:34,040 --> 00:12:38,160 Speaker 1: do discovery, um, all sorts of things. So it's very 189 00:12:38,160 --> 00:12:42,400 Speaker 1: early stage. But this is a problem. Competitors often announced 190 00:12:42,480 --> 00:12:45,640 Speaker 1: things and others say, hey, okay, we'll do that. To 191 00:12:46,200 --> 00:12:50,640 Speaker 1: think airlines for raising prices, and the other airlines do it. 192 00:12:51,520 --> 00:12:55,960 Speaker 1: So do you think the next step is to refile 193 00:12:56,559 --> 00:12:59,960 Speaker 1: the complaint? The court gave them permission. Sometimes courts don't 194 00:13:00,559 --> 00:13:04,720 Speaker 1: give permission to replead the case, but this district court 195 00:13:04,800 --> 00:13:09,760 Speaker 1: judge did. But unless they have some new allegations of 196 00:13:09,880 --> 00:13:12,840 Speaker 1: some kind of behavior, it's hard to know. It seems 197 00:13:12,840 --> 00:13:15,480 Speaker 1: to me that it's more on a legal point at 198 00:13:15,520 --> 00:13:19,040 Speaker 1: this point, unless they come up with other factual allegations, 199 00:13:19,400 --> 00:13:22,679 Speaker 1: you know, unless they do, they don't have the opportunity 200 00:13:22,720 --> 00:13:27,720 Speaker 1: to look further and do discovery of documents, particularly emails, 201 00:13:28,280 --> 00:13:32,360 Speaker 1: things like that that ended up thinking the parties in 202 00:13:32,360 --> 00:13:34,840 Speaker 1: the first case. So I'm not certain how they're going 203 00:13:34,920 --> 00:13:37,600 Speaker 1: to do this. They may just decide to appeal directly 204 00:13:37,679 --> 00:13:40,200 Speaker 1: to the Court of Appeals, but it's going to be 205 00:13:40,240 --> 00:13:46,240 Speaker 1: difficult because courts have become more and more cautious about 206 00:13:46,840 --> 00:13:52,120 Speaker 1: allowing plaintiffs to go forward and discoveries expensive. And you know, 207 00:13:52,760 --> 00:13:57,120 Speaker 1: Supreme Court's taken a somewhat negative view of just allowing 208 00:13:57,160 --> 00:13:59,760 Speaker 1: plaintiffs to, as they view it, I think, go on 209 00:13:59,800 --> 00:14:04,600 Speaker 1: some sort of fishing expedition through gigabytes of data. So 210 00:14:04,640 --> 00:14:07,000 Speaker 1: I guess we'll see. I'm I'm sure that they will 211 00:14:07,040 --> 00:14:10,760 Speaker 1: try to move the case ahead, but it does I 212 00:14:10,800 --> 00:14:13,760 Speaker 1: think rest on this key point about whether they have 213 00:14:13,920 --> 00:14:18,559 Speaker 1: enough evidence from which a jury or the judge could 214 00:14:18,559 --> 00:14:23,000 Speaker 1: infer that the party soul agreed. So we'll be watching 215 00:14:23,040 --> 00:14:27,880 Speaker 1: this to see whether the plaintiffs refile they're complaint or 216 00:14:27,920 --> 00:14:31,840 Speaker 1: perhaps taken appeal. Thanks so much as always, Harry. That's 217 00:14:31,840 --> 00:14:36,840 Speaker 1: Professor Harry First of n y U Law School. Former 218 00:14:36,880 --> 00:14:40,640 Speaker 1: President Donald Trump is asking the Supreme Court to intervene 219 00:14:40,760 --> 00:14:45,120 Speaker 1: in the seemingly never ending legal fight over government papers 220 00:14:45,200 --> 00:14:48,040 Speaker 1: seized at his Moral Logo home. He now wants the 221 00:14:48,120 --> 00:14:51,800 Speaker 1: justices to appoint a court ordered special master to review 222 00:14:51,960 --> 00:14:56,280 Speaker 1: one documents with classified markings. I'm joined by Bloomberg News 223 00:14:56,280 --> 00:15:00,640 Speaker 1: Supreme Court reporter Greg Store. Former President hump is back 224 00:15:00,640 --> 00:15:03,760 Speaker 1: at the Supreme Court asking the Court to intervene in 225 00:15:03,800 --> 00:15:07,440 Speaker 1: the fight over government documents seized at mar Lago. What 226 00:15:07,560 --> 00:15:11,240 Speaker 1: exactly is he asking them? Well, in some ways, June, 227 00:15:11,320 --> 00:15:15,200 Speaker 1: it's a very narrow request. All that he's asking is 228 00:15:15,240 --> 00:15:18,600 Speaker 1: that the court appointed special master who's going through all 229 00:15:18,640 --> 00:15:22,320 Speaker 1: these documents that were retrieved from our lago, that that 230 00:15:22,480 --> 00:15:27,080 Speaker 1: special master be allowed to review these or so documents 231 00:15:27,120 --> 00:15:30,960 Speaker 1: that have classified markings on them. Right now, the judge 232 00:15:31,000 --> 00:15:35,440 Speaker 1: is not not allowed to review those documents. Are Trump's 233 00:15:35,480 --> 00:15:39,280 Speaker 1: lawyers making a jurisdictional argument about whether the Eleventh Circuit 234 00:15:39,280 --> 00:15:44,200 Speaker 1: had jurisdiction? Yeah, that's exactly it. Essentially, they say that 235 00:15:44,320 --> 00:15:47,920 Speaker 1: the Eleventh Circuit the appointment of a special Master is 236 00:15:47,960 --> 00:15:51,080 Speaker 1: the kind of thing and the special master's duties is 237 00:15:51,120 --> 00:15:54,880 Speaker 1: the kind of thing that can't be immediately appealed. And 238 00:15:54,920 --> 00:15:57,360 Speaker 1: so they say that the Eleventh Circuit never should have 239 00:15:57,440 --> 00:16:01,680 Speaker 1: even entertained the request to restrict what sorts of things 240 00:16:01,680 --> 00:16:04,840 Speaker 1: the special Master could do in the lower court. Trump's 241 00:16:04,920 --> 00:16:09,320 Speaker 1: lawyers make these arguments about Trump's role or a president's 242 00:16:09,440 --> 00:16:13,080 Speaker 1: role in classifying documents and broad arguments. We've heard Trump 243 00:16:13,120 --> 00:16:15,520 Speaker 1: even say that, you know, he can just say it, 244 00:16:15,640 --> 00:16:19,280 Speaker 1: he can even think it, and declassify arguments. Are they 245 00:16:19,280 --> 00:16:24,040 Speaker 1: still making that argument here? They're not, And in fact, 246 00:16:24,080 --> 00:16:27,080 Speaker 1: they completely stay away from that subject. That's what they 247 00:16:27,120 --> 00:16:30,520 Speaker 1: didn't the lawyers did in the lower courts too. They 248 00:16:30,520 --> 00:16:34,520 Speaker 1: stay away from declaring that the president actually did something, 249 00:16:34,600 --> 00:16:39,120 Speaker 1: actually declassified these documents, even as they argue that he 250 00:16:39,200 --> 00:16:42,760 Speaker 1: would have had sweeping authority to do that. So, just 251 00:16:42,880 --> 00:16:46,120 Speaker 1: to set the stage, this is an appeal from an 252 00:16:46,120 --> 00:16:50,600 Speaker 1: eleven Circuit panel that had to Trump appointees on it. 253 00:16:50,600 --> 00:16:54,320 Speaker 1: It is, and it was an opinion that came out 254 00:16:54,440 --> 00:16:58,400 Speaker 1: very quickly and was very definitive about essentially letting this 255 00:16:58,520 --> 00:17:02,680 Speaker 1: investigation go forward. Uh. One other thing the Elevens did 256 00:17:03,600 --> 00:17:07,760 Speaker 1: was to say that the Justice Department and National Security 257 00:17:08,200 --> 00:17:12,000 Speaker 1: personnel could go ahead and start looking at these documents, 258 00:17:12,000 --> 00:17:15,280 Speaker 1: start using them. And that is not something that Trump 259 00:17:15,400 --> 00:17:19,000 Speaker 1: is asking the Supreme Court to intervene on. It's only 260 00:17:19,440 --> 00:17:22,760 Speaker 1: asking the court to do that rather narrow thing of 261 00:17:22,840 --> 00:17:25,360 Speaker 1: letting the Special Master look at them to see if 262 00:17:25,520 --> 00:17:28,960 Speaker 1: some sort of privilege claim with these classified documents. Not 263 00:17:28,960 --> 00:17:31,680 Speaker 1: clear what that what that might be, but there's some 264 00:17:31,720 --> 00:17:35,000 Speaker 1: sort of privilege claim there. This is an emergency appeal, 265 00:17:35,119 --> 00:17:38,679 Speaker 1: But where's the emergency Yeah, it's a good question. The 266 00:17:38,680 --> 00:17:41,840 Speaker 1: former president waited more than two weeks to go up 267 00:17:41,880 --> 00:17:46,280 Speaker 1: to the Supreme Court with this, and Justice Thomas, who's 268 00:17:46,320 --> 00:17:49,840 Speaker 1: the justice who handles emergency matters out of the eleven Circuit, 269 00:17:50,119 --> 00:17:53,040 Speaker 1: also didn't suggest there was any massive rush. He gave 270 00:17:53,119 --> 00:17:56,920 Speaker 1: the government a week to respond to it, so I 271 00:17:56,960 --> 00:17:59,439 Speaker 1: wouldn't expect anything coming out of the Supreme Court for 272 00:17:59,640 --> 00:18:03,200 Speaker 1: at least the week. Yeah. So does that signal that 273 00:18:03,760 --> 00:18:07,359 Speaker 1: Justice Thomas doesn't think this is much of an emergency either, 274 00:18:07,440 --> 00:18:10,160 Speaker 1: that he's giving the Justice Department so long to respond 275 00:18:10,160 --> 00:18:13,280 Speaker 1: in an emergency matter? Yeah, I think that much is. 276 00:18:13,400 --> 00:18:15,480 Speaker 1: I wouldn't want to go any further than that and 277 00:18:15,800 --> 00:18:19,240 Speaker 1: suggest it says anning about Justice Thomas's views on the matter. 278 00:18:19,320 --> 00:18:21,760 Speaker 1: But in terms of the timing of it, and that 279 00:18:21,800 --> 00:18:23,800 Speaker 1: makes sense, there's not you know, sometimes you see an 280 00:18:23,840 --> 00:18:26,959 Speaker 1: emergency request and and and a party says, you know, 281 00:18:27,119 --> 00:18:30,240 Speaker 1: we need something by you know, ex date or something 282 00:18:30,359 --> 00:18:33,080 Speaker 1: some particular bad things going to happen. There was nothing 283 00:18:33,119 --> 00:18:35,639 Speaker 1: like that in the Trump filing, and in fact, it 284 00:18:35,760 --> 00:18:40,720 Speaker 1: was rather unclear as to exactly what the particular urgency 285 00:18:40,920 --> 00:18:45,040 Speaker 1: was for for the former president. The eleven Circuit yesterday 286 00:18:45,280 --> 00:18:48,520 Speaker 1: approved an expedited appeal of the appointment of the Special 287 00:18:48,560 --> 00:18:51,359 Speaker 1: Master to review the documents. Will that play in it 288 00:18:51,400 --> 00:18:54,560 Speaker 1: all here? That now, that's on an expedited track, that 289 00:18:54,800 --> 00:18:58,600 Speaker 1: is certainly possible. You know, the Supreme Court when it 290 00:18:58,600 --> 00:19:02,240 Speaker 1: gets the government's response, the government may probably will mention 291 00:19:02,320 --> 00:19:05,240 Speaker 1: that and and sort of suggests, Hey, there's there's even 292 00:19:05,320 --> 00:19:07,520 Speaker 1: less reason for the Supreme Court to get involved here 293 00:19:07,520 --> 00:19:10,560 Speaker 1: because the Eleventh Circuit is moving quickly to get all 294 00:19:10,640 --> 00:19:14,840 Speaker 1: this stuff resolved. Hard to say exactly how all those 295 00:19:14,880 --> 00:19:18,240 Speaker 1: things will intersect, and no doubt will have various other 296 00:19:18,280 --> 00:19:21,119 Speaker 1: developments happening between now and the time the Supreme Court rules. 297 00:19:21,480 --> 00:19:25,200 Speaker 1: Trump's record at the Supreme Court is not that great, 298 00:19:25,280 --> 00:19:28,800 Speaker 1: despite his three appointees. Remind us of some of his 299 00:19:29,359 --> 00:19:32,840 Speaker 1: past endeavors. Yeah, well, he's of course had those big 300 00:19:32,880 --> 00:19:37,040 Speaker 1: fights about subpoenas for his financial records that the Supreme 301 00:19:37,040 --> 00:19:40,879 Speaker 1: Court ruled on and didn't give him nearly everything he 302 00:19:40,960 --> 00:19:45,280 Speaker 1: was seeking. And then, perhaps more relevant to the current controversy, 303 00:19:45,320 --> 00:19:50,119 Speaker 1: there was the issue of whether papers we're going to 304 00:19:50,200 --> 00:19:54,440 Speaker 1: be turned over to the committee investigating the January six 305 00:19:54,480 --> 00:19:58,880 Speaker 1: attack on the Capitol and the Supreme Court rejected Trump's 306 00:19:58,880 --> 00:20:01,440 Speaker 1: effort to try to block records from being turned over 307 00:20:01,520 --> 00:20:04,800 Speaker 1: from the Archives to the Committee, and only just as 308 00:20:04,840 --> 00:20:07,800 Speaker 1: Clarence Thomas dissented there. How long do you think this 309 00:20:07,840 --> 00:20:10,320 Speaker 1: is going to take? A matter of days? Weeks? The 310 00:20:10,359 --> 00:20:12,960 Speaker 1: Court will wait until they get that response. Normally, the 311 00:20:13,000 --> 00:20:15,880 Speaker 1: court then waits to give the applying party a chance 312 00:20:15,920 --> 00:20:17,840 Speaker 1: to follow a reply brief. That will probably take a 313 00:20:17,840 --> 00:20:19,919 Speaker 1: couple of days. Then it could be any time after that. 314 00:20:20,400 --> 00:20:22,800 Speaker 1: Thanks so much for being on the show. That's Bloomberg 315 00:20:22,840 --> 00:20:25,920 Speaker 1: News Supreme Court Reporter Greg Store and that's it for 316 00:20:25,960 --> 00:20:28,600 Speaker 1: this edition of the Bloomberg Law Show. Remember you can 317 00:20:28,600 --> 00:20:31,840 Speaker 1: always get the latest legal news on our Bloomberg Law podcast. 318 00:20:32,119 --> 00:20:35,160 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 319 00:20:35,320 --> 00:20:40,359 Speaker 1: www dot Bloomberg dot com, slash podcast, Slash Law, and 320 00:20:40,400 --> 00:20:42,879 Speaker 1: remember to tune in to The Bloomberg Law Show every 321 00:20:42,920 --> 00:20:46,800 Speaker 1: week night at ten pm Wall Street Time. I'm June Grosso, 322 00:20:46,960 --> 00:20:48,560 Speaker 1: and you're listening to Bloomberg