WEBVTT - Weekend Law: Bolton Indicted, Voting Rights & Reagan Judges 0:00:02.759 --> 0:00:07.480 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.680 --> 0:00:13.440 Three weeks and three perceived political enemies of President Donald 0:00:13.480 --> 0:00:19.240 Trump indicted. Former Trump administration National security advisor John Bolton 0:00:19.600 --> 0:00:23.319 was charged on Thursday with eighteen counts of retention and 0:00:23.400 --> 0:00:29.160 transmission of national defense information. The outspoken critic of President 0:00:29.240 --> 0:00:32.840 Trump is accused of sharing with his wife and daughter 0:00:33.159 --> 0:00:36.159 more than a thousand pages of notes about his day 0:00:36.200 --> 0:00:42.800 to day activities as national security advisor, including classified information. Trump, 0:00:42.840 --> 0:00:47.159 who's repeatedly called for Bolton to face criminal charges, had 0:00:47.200 --> 0:00:49.840 a rather muted reaction to the indictment. 0:00:50.400 --> 0:00:52.520 I didn't know that. You told me for the first time. 0:00:52.600 --> 0:00:54.560 But I think he's a bad person. 0:00:55.400 --> 0:00:58.520 I think he's a bad guy. 0:00:58.640 --> 0:01:01.560 Yeah, he's a bad guy, too bad. But that's the 0:01:01.560 --> 0:01:03.880 way it goes the way it goes, right. 0:01:04.440 --> 0:01:08.360 Bolton pleaded not guilty to the charges on Friday and 0:01:08.440 --> 0:01:11.480 said he's the latest target in the weaponization of the 0:01:11.720 --> 0:01:15.880 Justice Department to charge people Trump deems to be his enemies. 0:01:16.240 --> 0:01:20.399 My guest is National security attorney Mark Zaid. So Mark 0:01:20.560 --> 0:01:24.040 is the heart of this indictment. The diary entries he 0:01:24.080 --> 0:01:26.360 made when he was national security advisor. 0:01:26.560 --> 0:01:29.640 I think there's two things that this indictment really throws 0:01:29.680 --> 0:01:34.000 out there that is significant. One, there is no indication 0:01:34.400 --> 0:01:38.200 that any one of these charges pertains to any marked 0:01:38.600 --> 0:01:41.959 classified documents. You know, folks may remember that it was 0:01:42.000 --> 0:01:44.640 indicated that there were documents that were retrieved from his 0:01:44.720 --> 0:01:47.880 home that were still marked as classified. Yet none of 0:01:47.920 --> 0:01:50.960 that shows up in the indictment. And then the second 0:01:50.960 --> 0:01:55.000 thing is that no count in this indictment actually deals 0:01:55.040 --> 0:01:59.280 with information that was published in Bolton's book, The Room 0:01:59.360 --> 0:02:03.040 Where It Happened. And that's really key because it was 0:02:03.120 --> 0:02:07.000 the contents of the book that Judge Lambert, the Federal 0:02:07.040 --> 0:02:11.919 District judge, had identified as actually having contained classified information. 0:02:12.400 --> 0:02:17.359 So this indictment eighteen counts in all, looks to solely 0:02:17.400 --> 0:02:22.840 be limited to this diary that John Bolton maintained that 0:02:22.919 --> 0:02:26.079 he would send daily to his wife and daughter. 0:02:27.120 --> 0:02:30.760 Is it problematic for Bolton that, according to the indictment, 0:02:31.520 --> 0:02:35.160 some of the notes indicated that he was getting the 0:02:35.200 --> 0:02:39.520 information in a secured environment. For example, one began with 0:02:39.800 --> 0:02:43.400 while in the situation room, I learned that and another 0:02:43.960 --> 0:02:44.920 the intel. 0:02:44.560 --> 0:02:49.919 Briefer said, I have represented other national security advisors and 0:02:50.120 --> 0:02:54.919 secretaries of Defense, and dozens of other federal employees who 0:02:54.919 --> 0:02:58.000 have written books, who have come out of the intelligence community, 0:02:58.040 --> 0:03:02.359 the military, law enforcement. I will say every single one 0:03:02.400 --> 0:03:05.520 of them always comes to me and says, I wrote 0:03:05.520 --> 0:03:08.840 this book to make sure it had no classified information 0:03:08.960 --> 0:03:11.720 in it. They always think that, and they always want that, 0:03:12.160 --> 0:03:14.840 But the reality is, when you're not the one making 0:03:14.880 --> 0:03:19.280 the decisions any longer, it's the government that makes that decision, 0:03:19.760 --> 0:03:25.520 and the government can really very broadly interpret information to 0:03:25.720 --> 0:03:29.800 constitute something that is classified. Literally anything that deals with 0:03:29.840 --> 0:03:33.320 foreign relations if it mentions a foreign country, could be 0:03:33.440 --> 0:03:38.400 classified by a classifier in the US government. I have 0:03:38.440 --> 0:03:42.000 been warning for a long time, long before Trump, but 0:03:42.120 --> 0:03:46.200 now especially concerning because of Trump, that the Espionage Act 0:03:46.320 --> 0:03:51.080 could be exploited and used as a weapon against individuals 0:03:51.080 --> 0:03:54.000 because of how easy it is to charge someone who 0:03:54.120 --> 0:03:59.320 had previously access to classified information with its mishandling. So 0:03:59.600 --> 0:04:03.320 I'm not surprised that this is where the administration is going, 0:04:03.640 --> 0:04:06.520 and it will be some time before we find out 0:04:06.680 --> 0:04:10.640 whether or not this information was really classified or more 0:04:10.760 --> 0:04:12.760 appropriately properly classified. 0:04:13.320 --> 0:04:15.720 So then one of his challenges, you think, will be 0:04:15.760 --> 0:04:17.880 a challenge to the classifications. 0:04:18.520 --> 0:04:22.080 Very few espionage ZACK cases go to trial, and there's 0:04:22.120 --> 0:04:25.719 a reason for that because the defenses are usually very 0:04:26.080 --> 0:04:29.440 limited in nature. Every attempt, for the most part, that 0:04:29.480 --> 0:04:35.480 has gone to try and challenge the classification determination generally fails. 0:04:35.720 --> 0:04:39.120 So it is usually through pre trial motions, particularly through 0:04:39.520 --> 0:04:43.120 what we call SIPA, the Classified Information Procedures Act, where 0:04:43.160 --> 0:04:47.120 you gray mail the government in the sense of well, 0:04:47.160 --> 0:04:50.600 I need this information to be publicized for my defense, 0:04:50.920 --> 0:04:53.400 and if the government's not willing to do that, then 0:04:53.440 --> 0:04:56.719 they have to dismiss the indictment. John Bolton, of course, 0:04:56.760 --> 0:05:00.000 will have similar motions, as we'll see in the James 0:05:00.080 --> 0:05:03.200 Homie case and the Letitia James case of selective and 0:05:03.360 --> 0:05:08.479 vindictive prosecution. Both of those motions are always incredibly difficult 0:05:08.520 --> 0:05:13.599 as well. But if any case was poised for potential success, 0:05:13.680 --> 0:05:17.279 it would be this type of weaponized case. But John 0:05:17.360 --> 0:05:22.200 Bolton will have trouble with this indictment. It has nothing 0:05:22.240 --> 0:05:25.760 to do with the specifics of his case, of which 0:05:25.800 --> 0:05:29.160 I know nothing about. It has to do with just 0:05:29.279 --> 0:05:34.640 how espionageac cases generally go, which is to oftentimes end 0:05:34.720 --> 0:05:35.680 up in a plea. 0:05:35.760 --> 0:05:38.279 Is there another case that seems similar to you, perhaps 0:05:38.400 --> 0:05:40.119 the General Portrayus case. 0:05:40.839 --> 0:05:44.839 I do think the Portrayus case is very similar for 0:05:45.000 --> 0:05:48.359 folks who don't go that far back. General Portraeus, the 0:05:48.400 --> 0:05:52.440 former director of the Central Intelligence Agency, was writing a 0:05:52.480 --> 0:05:55.880 book and he had a ghostwriter who happened to be 0:05:55.960 --> 0:05:59.799 his mistress as well, and he was sharing classified information 0:06:00.600 --> 0:06:03.520 with her. Now, she at least had a security clearance, 0:06:03.560 --> 0:06:07.120 unlike John Bolton's wife and daughter, but it doesn't really 0:06:07.160 --> 0:06:11.280 matter because she wasn't authorized to receive the information. And 0:06:11.560 --> 0:06:16.120 as in both cases, there's no indication of any dissemination 0:06:16.279 --> 0:06:21.000 of that information beyond the people who it was disseminated 0:06:21.040 --> 0:06:25.000 to originally. Obviously there might have been a hack by 0:06:25.200 --> 0:06:28.400 Iranian government officials, but I don't know of any evidence 0:06:28.400 --> 0:06:32.920 that actually they did anything with the information, presumably because 0:06:33.000 --> 0:06:37.240 perhaps there wasn't anything that really made any valuable contribution 0:06:37.480 --> 0:06:40.600 to disseminate it. But General Petraeus, although this was a 0:06:40.680 --> 0:06:43.600 decade ago and it was very different times, he only 0:06:43.640 --> 0:06:47.000 got two years probation and one hundred thousand dollars. Fine, 0:06:47.120 --> 0:06:49.520 you know, I would take that as a win in 0:06:49.600 --> 0:06:52.520 this type of case. Easy, But we're not going to 0:06:52.600 --> 0:06:56.039 get there until a whole number of pre trial motions 0:06:56.080 --> 0:06:58.240 will be brought by Bolton's legal team. 0:06:58.640 --> 0:07:02.240 I'm curious as to what you think about the government 0:07:02.320 --> 0:07:07.320 putting in the indictment some of Bolton's commentary on for example, 0:07:07.440 --> 0:07:11.960 Hillary Clinton and the email server or secretary hegset then 0:07:12.080 --> 0:07:13.800 signal the. 0:07:13.720 --> 0:07:18.440 Government included all these quotes from Bolton to demonstrate that 0:07:18.560 --> 0:07:22.600 he as is well known because he's been around forever. 0:07:23.120 --> 0:07:25.240 I first met him in nineteen ninety two when I 0:07:25.320 --> 0:07:28.400 was in law school. He's had so many senior level 0:07:28.440 --> 0:07:32.680 positions at the highest levels of classified access as well. 0:07:33.200 --> 0:07:36.600 He knows what is classified and how to protect it, 0:07:36.600 --> 0:07:39.360 et cetera. But this is what I see all the time, 0:07:39.840 --> 0:07:43.920 no matter what level, they always think that they are 0:07:43.960 --> 0:07:48.600 not revealing classified information. And he maybe one hundred percent correct. 0:07:48.720 --> 0:07:53.000 Maybe at some point we'll find out, but it was 0:07:53.200 --> 0:07:57.840 a sort of in your face attempt or pr effort 0:07:57.880 --> 0:08:01.560 by the government to throw his own quotes him. It 0:08:01.640 --> 0:08:05.240 might not make any difference, and likely doesn't as a 0:08:05.280 --> 0:08:08.600 matter of law, but perhaps if he got to a jury, 0:08:09.280 --> 0:08:12.320 this might have some impact on them of hey, you 0:08:12.320 --> 0:08:15.720 should have known better. But the reality is, you know, 0:08:16.080 --> 0:08:19.600 most of these cases are very factually different. I mean 0:08:19.640 --> 0:08:22.280 you can come up with some analogies, but there's still 0:08:22.280 --> 0:08:25.680 going to be some facts that distinguish one case from 0:08:25.720 --> 0:08:26.080 the other. 0:08:26.720 --> 0:08:29.680 Finally, do you think that there'll be a plea deal 0:08:29.720 --> 0:08:31.880 in the case or it will actually go to trial. 0:08:32.800 --> 0:08:37.760 He's the third perceived Trump enemy who's been indicted, But 0:08:37.960 --> 0:08:41.720 do you see his case as very different from the 0:08:41.800 --> 0:08:46.440 cases against former FBI director James Comy and New York 0:08:46.480 --> 0:08:48.200 Attorney General Letitia James. 0:08:48.400 --> 0:08:51.439 The Bolton indictment has more meat on its bones than 0:08:51.480 --> 0:08:55.520 the Komy and James indictments, and that has to do 0:08:55.640 --> 0:08:59.120 with who brought it. For one thing, Lindsay Halligan the 0:08:59.800 --> 0:09:02.680 point to US attorney in the Eastern District of Virginia, 0:09:02.720 --> 0:09:06.280 who has zero criminal experience. She's an insurance lawyer and 0:09:06.360 --> 0:09:10.480 not even a very experienced insurance lawyer, and she did 0:09:10.480 --> 0:09:14.319 the case herself with no experience and apparently no help. 0:09:14.480 --> 0:09:18.200 And career professionals refuse to sign on. We're not seeing 0:09:18.240 --> 0:09:21.800 that in the Bolton case. There are career national security 0:09:21.800 --> 0:09:25.000 attorneys who have signed on to this case. It is 0:09:25.080 --> 0:09:28.480 a much more detailed indictment, twenty six pages in length, 0:09:28.920 --> 0:09:31.520 and there's a lot in there because they've brought these 0:09:31.600 --> 0:09:35.199 cases many, many times. There aren't a ton of the 0:09:35.320 --> 0:09:38.960 Espionagack cases when it really comes down to it, because 0:09:38.960 --> 0:09:42.240 those are reserved for cases where the government knows they 0:09:42.280 --> 0:09:45.880 can generally win. But this is a very similar on 0:09:46.080 --> 0:09:50.160 paper case that we see very often, although I will 0:09:50.240 --> 0:09:54.000 say the nature of it is very, very concerning, and 0:09:54.040 --> 0:09:57.679 I'm not even talking about the vindictiveness. I'm talking about 0:09:57.679 --> 0:10:01.680 what really is on trial in this indictment, and that 0:10:01.880 --> 0:10:06.040 is the pre publication review process. In some ways, how 0:10:06.120 --> 0:10:09.240 do senior officials or anyone in the government who had 0:10:09.280 --> 0:10:12.400 access to classified information, how do they write a book? 0:10:12.559 --> 0:10:16.120 Because I will say, what John Bolton is alleged to 0:10:16.240 --> 0:10:21.720 have done is done every single day by government officials, 0:10:21.720 --> 0:10:24.440 both Democrat and Republican. And if you're going to go 0:10:24.559 --> 0:10:27.160 down that path one time, then you're going to have 0:10:27.200 --> 0:10:30.240 to go down that path a lot more times if 0:10:30.240 --> 0:10:33.520 you want to keep any type of consistency, and that 0:10:33.600 --> 0:10:37.840 will involve and include Frump administration officials who are in 0:10:37.920 --> 0:10:40.680 office right now who I guarantee you will do the 0:10:40.720 --> 0:10:41.199 same thing. 0:10:41.480 --> 0:10:46.560 Bolton's attorney, Abby Lowell, who also represents Letitia James, said 0:10:46.640 --> 0:10:49.760 that the underlying facts in the case were investigated and 0:10:49.840 --> 0:10:53.360 resolved years ago. And also that keeping diaries is not 0:10:53.440 --> 0:10:53.840 a crime. 0:10:54.360 --> 0:10:56.880 I will say first out front. Abby Lowell is also 0:10:56.920 --> 0:11:01.000 my attorney representing me and a colleague and a friend, 0:11:01.240 --> 0:11:04.960 and he's right, and he's a little bit not necessarily right. 0:11:05.520 --> 0:11:09.440 For one thing. Sure, everyone can keep a diary. It 0:11:09.520 --> 0:11:12.880 has to do with whether or not there is classified 0:11:13.080 --> 0:11:16.400 or more precisely, national defense information in it that you 0:11:16.520 --> 0:11:19.880 can't do. And I don't judge whether that's what happened, 0:11:19.880 --> 0:11:24.720 because I don't know. But Abby is absolutely right that 0:11:25.120 --> 0:11:29.160 the timing of this is incredibly suspect. This was all 0:11:29.200 --> 0:11:31.840 known years ago. Now I suppose the government will say, well, 0:11:31.880 --> 0:11:34.600 we didn't know about the diary, but they knew about 0:11:34.600 --> 0:11:38.120 the book, and the diary is what comprised the book, 0:11:38.280 --> 0:11:42.400 even though surprisingly none of the information published in the 0:11:42.440 --> 0:11:46.920 book is at issue here, and I find that incredibly intriguing. 0:11:47.240 --> 0:11:52.400 So the notion of what Balton did to write his book, 0:11:52.679 --> 0:11:56.600 the Trump administration knew that four or five years ago, 0:11:56.920 --> 0:12:00.680 and could have found out that fame information. They went 0:12:00.720 --> 0:12:05.240 to court in an almost unprecedented civil action to try 0:12:05.280 --> 0:12:09.199 and enjoin the book, meaning to make sure it wasn't published, 0:12:09.480 --> 0:12:13.760 which they failed in doing because the standard to enjoin 0:12:13.840 --> 0:12:17.000 a book dates back to the Watergate time in the 0:12:17.040 --> 0:12:21.520 Pentagon Papers case, where the Supreme Court did not allow 0:12:21.559 --> 0:12:24.400 the government to block the publication of the Pentagon Papers, 0:12:24.440 --> 0:12:27.800 which was the secret war history of the Vietnam War 0:12:27.840 --> 0:12:30.960 and the US involvement. No one has tried to enjoin 0:12:31.000 --> 0:12:34.000 a book since because the standard is so high, And 0:12:34.040 --> 0:12:36.800 I was very surprised that Trump administration tried to do 0:12:36.880 --> 0:12:39.560 that because of how easy it was that they were 0:12:39.600 --> 0:12:42.640 going to lose. But where they could have succeeded had 0:12:42.720 --> 0:12:46.359 they wanted to, was to go after John Bolton criminally 0:12:46.760 --> 0:12:51.040 back then, and they had far more evidence just what 0:12:51.280 --> 0:12:54.560 existed at the time, because you had a federal district 0:12:54.640 --> 0:12:59.640 judge say outright that there was classified information in the 0:12:59.720 --> 0:13:03.400 man script in the book, and they chose not to 0:13:03.440 --> 0:13:07.800 do it. So to do it now five years later, 0:13:08.280 --> 0:13:13.440 and on the heels of a rant multiple times by 0:13:13.480 --> 0:13:15.840 the President of the United States that he wants to 0:13:15.880 --> 0:13:19.880 go after his enemies, calls into question the integrity of 0:13:19.920 --> 0:13:22.600 this indictment, and that will be a factor in pre 0:13:22.640 --> 0:13:23.200 trial motion. 0:13:23.760 --> 0:13:26.040 Do you think that there'll be a plea deal in 0:13:26.080 --> 0:13:28.640 the case or it will actually go to trial, or 0:13:29.040 --> 0:13:32.120 third choice, will it be dismissed before trial. 0:13:32.640 --> 0:13:36.600 There are some very good motions that will happen pre 0:13:36.720 --> 0:13:41.559 trial that could definitely impact the structure of this prosecution. 0:13:42.480 --> 0:13:46.319 Once the party start to get into discovery, particularly Bolton, 0:13:46.360 --> 0:13:49.120 starts to get information from the government, you know, we'll 0:13:49.160 --> 0:13:52.520 start to have a better picture of whether a selective 0:13:52.600 --> 0:13:57.440 or vindictive prosecution effort or motion could work. Beyond that, 0:13:57.800 --> 0:14:02.280 we've got two very stubborn parties here, both John Bolton 0:14:02.360 --> 0:14:05.880 and President Trump and Pam Bonde as the Attorney General. 0:14:06.320 --> 0:14:12.240 I doubt we will see a plea discussion anytime soon, 0:14:12.760 --> 0:14:15.880 but down the line it could totally happen, especially if 0:14:16.040 --> 0:14:19.520 one or both parties believe they're going to have egg 0:14:19.600 --> 0:14:22.400 on their face and that in order to avoid that 0:14:23.000 --> 0:14:26.160 is going to require some sort of plea deal. I 0:14:26.160 --> 0:14:28.840 think at the end of the day, the Trump administration 0:14:28.960 --> 0:14:33.119 could care less if John Bolton is convicted or acquitted. 0:14:33.600 --> 0:14:37.600 It's far more about putting him Leticia James, James Comy 0:14:37.840 --> 0:14:42.280 and others who are forthcoming through the ringer the way 0:14:42.400 --> 0:14:46.960 he feels he was pulled through as well. So at 0:14:46.960 --> 0:14:48.960 the end of the day, it probably won't matter. He 0:14:49.120 --> 0:14:51.120 just wants them to suffer along the way. 0:14:51.320 --> 0:14:54.840 So apparently a tough road ahead for Bolton. Thanks so much, Mark. 0:14:55.040 --> 0:14:59.600 That's National Security Attorney Mark Zaid. Coming up next, will 0:14:59.640 --> 0:15:03.160 the Supper Court gut the Voting Rights Act. I'm June 0:15:03.200 --> 0:15:05.400 Grosso and you're listening to Bloomberg. 0:15:09.080 --> 0:15:13.320 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:15:14.560 --> 0:15:17.880 The Voting Rights Act is a landmark civil rights law 0:15:18.040 --> 0:15:20.640 that for more than half a century has been a 0:15:20.680 --> 0:15:25.280 guardrail against gerrymanderd congressional maps that discriminate on the basis 0:15:25.280 --> 0:15:29.040 of race. In a complicated case involving a challenge to 0:15:29.120 --> 0:15:33.320 a black majority district in Louisiana, one thing seemed clear 0:15:33.400 --> 0:15:36.320 after two and a half hours of oral arguments, the 0:15:36.400 --> 0:15:41.680 six conservative justices are ready to limit or potentially eliminate 0:15:41.880 --> 0:15:45.360 the most important remaining provision of the Voting Rights Act. 0:15:45.840 --> 0:15:50.160 Justice Brett Kavanaugh questioned whether the law was warranted sixty 0:15:50.280 --> 0:15:50.920 years later. 0:15:51.600 --> 0:15:56.160 Race based remedies are permissible for a period of time, 0:15:56.480 --> 0:16:01.800 sometimes for a long period of time decades in some cases, 0:16:02.080 --> 0:16:06.880 but that they should not be indefinite and should have 0:16:06.920 --> 0:16:11.440 an endpoint, and what exactly do you think the endpoint 0:16:11.600 --> 0:16:14.560 should be or how do we know? For the intentional 0:16:14.760 --> 0:16:17.760 use of race to create districts. 0:16:17.760 --> 0:16:21.480 But liberal Justice Elaina Kagan pointed out that the remedy 0:16:21.520 --> 0:16:25.640 of redrawing districts only happens if a court has actually 0:16:25.760 --> 0:16:29.760 found a specific current proved discrimination by the state. 0:16:30.200 --> 0:16:34.240 What these Section two suits do is they ask about 0:16:34.600 --> 0:16:39.600 current conditions, and they ask whether those current conditions show 0:16:40.120 --> 0:16:45.160 vote dilution, which is violative of Section two. So they say, 0:16:45.320 --> 0:16:51.000 is there racial segregation, racial residential segregation now? Is there 0:16:51.120 --> 0:16:57.960 racially polarized voting now? And when the state fails with 0:16:58.040 --> 0:17:02.600 respect to those issues, and those conditions obtain now. 0:17:03.160 --> 0:17:08.840 However, some conservative justices like Neil Gorsuch, suggested that any 0:17:08.960 --> 0:17:12.720 use of race and redistricting, even to correct a state's 0:17:12.800 --> 0:17:17.320 discriminatory dilution of minority votes, is unconstitutional. 0:17:17.760 --> 0:17:21.240 I'm asking is it acceptable under Section two? Is you 0:17:21.359 --> 0:17:25.800 understand it? Given our precedents, for a court to intentionally 0:17:25.840 --> 0:17:29.040 discriminate in a remedial map on the basis of race. 0:17:29.080 --> 0:17:32.240 How quickly the Court hands down its decision could determine 0:17:32.280 --> 0:17:35.760 whether or not states have enough time to redraw maps 0:17:35.840 --> 0:17:40.200 before the midterms. Joining me is elections law expert Richard Breflt, 0:17:40.480 --> 0:17:43.880 a professor at Columbia Law School. Rich tell us about 0:17:43.880 --> 0:17:48.760 the impact of this decision. If the Justices decide as 0:17:48.800 --> 0:17:53.159 expected to limit or even eliminate Section two of the 0:17:53.240 --> 0:17:54.440 Voting Rights Act. 0:17:54.640 --> 0:17:56.320 Clock clear are they going to do away with Section 0:17:56.359 --> 0:18:00.000 two tholthough they will clearly change how they interpret it. 0:18:00.240 --> 0:18:03.240 I think it's tricky because it's not clear how many 0:18:03.240 --> 0:18:05.840 districts it's going to effect. It clearly will affect some districts. 0:18:06.240 --> 0:18:10.520 It clearly will mean that certain lawsuits to improve minority 0:18:10.560 --> 0:18:14.119 representation won't be brought. Probably the harder thing to figure 0:18:14.160 --> 0:18:17.879 out is to what extent certain districts that have already 0:18:17.880 --> 0:18:21.840 been created as minority opportunity districts, even if they weren't 0:18:21.880 --> 0:18:25.439 a result of litigation. But we're done either defensively as 0:18:25.480 --> 0:18:28.160 a way of a forestalling litigation or because the local 0:18:28.240 --> 0:18:31.000 legislatures follow is the right thing to do. Whether those 0:18:31.040 --> 0:18:34.520 can now be attacked as reflecting an excessive attention to race. 0:18:34.800 --> 0:18:36.720 We don't know what the Court's going to say, and 0:18:36.880 --> 0:18:39.560 we don't know how far this will go in terms 0:18:39.560 --> 0:18:44.360 of unraveling pre existing districting practices. But certainly, whatever they do, 0:18:44.640 --> 0:18:47.760 it will definitely have an impact on minority representation and 0:18:47.800 --> 0:18:50.359 potentially on partisan representation as well. 0:18:50.800 --> 0:18:53.280 Explain the central issue in the case. 0:18:53.640 --> 0:18:55.480 It's very hard to explain what the issues is a 0:18:55.520 --> 0:18:58.960 very complicated case. I mean, the underlying issue is to 0:18:59.000 --> 0:19:03.560 what extent can or must states take race into account 0:19:03.640 --> 0:19:06.480 in drawing their districts. This case grew out of an 0:19:06.480 --> 0:19:10.600 earlier case in Louisiana, where the plaintiffs argued under Section 0:19:10.600 --> 0:19:13.040 tip with a Voting Rights Act that a minority, in 0:19:13.040 --> 0:19:17.600 this case, black voter representation was illegally reduced. That the 0:19:17.640 --> 0:19:20.840 state is approximately a third block but only one out 0:19:20.840 --> 0:19:25.000 of the six congressional districts had a majority minority population, 0:19:25.440 --> 0:19:27.920 and the plaintiffs were able to persuade a lower court 0:19:28.000 --> 0:19:31.119 that it was relatively easy to draw a second majority 0:19:31.119 --> 0:19:33.800 minority district and that the state's failure to do so 0:19:34.160 --> 0:19:37.159 under the totality of the circumstances, including the nature of 0:19:37.240 --> 0:19:39.960 racial block voting in the state and historical factors in 0:19:40.000 --> 0:19:43.920 the state, constituted a denial of equal representation. The state 0:19:43.960 --> 0:19:45.879 went ahead and did that, but they did it in 0:19:45.920 --> 0:19:49.080 such a way that by taking certain partisan factors into account, 0:19:49.080 --> 0:19:51.720 they created a very strange looking district that kind of 0:19:51.720 --> 0:19:54.520 goes across much of the state. Well, now another set 0:19:54.520 --> 0:19:56.639 of voters in this new district have brought alow suit 0:19:56.720 --> 0:19:59.919 saying that this district is drawn predominantly for racial res 0:20:00.600 --> 0:20:03.160 and drawing on older Supreme Court president. They are because 0:20:03.160 --> 0:20:07.400 that that's unconstitutional. The plaintiffs in the original case are 0:20:07.520 --> 0:20:10.360 trying to defend the district by saying that it's okay 0:20:10.400 --> 0:20:13.880 to use race, even in this significant way when it's 0:20:13.920 --> 0:20:17.600 being used as a remedy for prior racial discrimination. Really 0:20:17.680 --> 0:20:20.840 the issue here is when is it okay to use 0:20:21.080 --> 0:20:24.639 race in drawing districts. In some sense, this case raises 0:20:24.640 --> 0:20:26.720 the question of whether a compliance with the Voting Rights 0:20:26.720 --> 0:20:29.560 Act is a compelling state interest or it could be 0:20:29.600 --> 0:20:32.760 turned out to what chem of Voting Rights Act permissively require. 0:20:33.240 --> 0:20:35.560 How is the court interple the Voting Rights Act. There 0:20:35.560 --> 0:20:38.600 are a lot of questions all could have tied up 0:20:38.640 --> 0:20:40.680 in a not in this case, and it could come 0:20:40.680 --> 0:20:43.280 out in many different ways. One thing that seems pretty 0:20:43.280 --> 0:20:46.080 clear is that the original plaintiffs, the black voters who 0:20:46.160 --> 0:20:49.120 suit for change, are likely to lose. But on what 0:20:49.359 --> 0:20:52.320 theory it could be any from a relatively narrow theory 0:20:52.359 --> 0:20:53.800 to an extremely broad theory. 0:20:53.840 --> 0:20:57.560 And now the conservative justice is would you say they're 0:20:57.840 --> 0:21:01.720 sort of on a spectrum from a position of there 0:21:01.720 --> 0:21:06.000 should be no consideration of race at all in redistricting 0:21:06.440 --> 0:21:08.240 to something less. 0:21:08.800 --> 0:21:10.560 I think I would phrase in terms of how big 0:21:10.600 --> 0:21:13.160 a change do they want to make in the law 0:21:13.240 --> 0:21:14.920 and when could race be used? And I do think 0:21:15.000 --> 0:21:17.000 that some didn't think race could be used at all. 0:21:17.040 --> 0:21:19.720 Others I think were open to the use of race, 0:21:19.920 --> 0:21:22.800 but only in a relatively narrow set of circumstances. And 0:21:22.840 --> 0:21:24.600 I think a lot of it had to do with 0:21:24.720 --> 0:21:28.320 how do they fit this decision with an earlier Supreme 0:21:28.359 --> 0:21:30.920 Court decision, one that is now almost forty years old, 0:21:31.400 --> 0:21:34.240 in which they interpreted the Voting Rights Act. Section two 0:21:34.240 --> 0:21:37.119 of the Voting Rights Act laid down a case called Jingles, 0:21:37.200 --> 0:21:39.919 which set the pattern for Voting Rights Act enforcement for 0:21:39.960 --> 0:21:43.040 the last forty years, including just two years ago with 0:21:43.119 --> 0:21:45.840 the Supreme Court in a case coming out of Alabama, 0:21:45.920 --> 0:21:50.040 which on fairly similar facts to this one, sustained the 0:21:50.160 --> 0:21:52.480 use of race and drawing a remedial district. And so 0:21:52.600 --> 0:21:55.720 I think what you saw what's called them the more 0:21:55.840 --> 0:22:00.760 moderate conservatives, Justice Barrett, maybe Justice Kavanaugh, maybe the Chief 0:22:00.880 --> 0:22:04.080 Justice looking for ways of squaring this case with that 0:22:04.160 --> 0:22:08.240 Alabama case known as Milligan, or explaining why this case 0:22:08.280 --> 0:22:11.360 could come out differently, and maybe explaining how this case 0:22:11.400 --> 0:22:14.439 fits with the older precedent Jingles, And are they going 0:22:14.480 --> 0:22:16.959 to overturn Jingles? Are they going to say this as 0:22:17.000 --> 0:22:20.199 a clarification of Jingles, which would be a way of 0:22:20.520 --> 0:22:24.679 changing it without flat out changing it. So my guess 0:22:24.760 --> 0:22:27.080 is less likely that you're going to see a majority 0:22:27.440 --> 0:22:30.040 striking down the voting right staff, but you're going to 0:22:30.040 --> 0:22:33.680 definitely see a new interpretation of how it applies and 0:22:33.800 --> 0:22:36.600 what it requires, at least based on the ural argument. 0:22:36.640 --> 0:22:39.359 And it's always tricky to rely on the ural argument. 0:22:39.600 --> 0:22:42.200 But you did see at least some of the justices 0:22:42.960 --> 0:22:45.720 trying to figure out how to square this with the 0:22:45.800 --> 0:22:49.080 decision that's just two years old and with the precedent 0:22:49.160 --> 0:22:50.320 that is forty years. 0:22:50.119 --> 0:22:53.560 Old, and what were the best arguments that the liberal 0:22:53.800 --> 0:22:58.720 justices made. Not that they'll have any persuasive effect on 0:22:58.840 --> 0:23:00.679 their conservative colleagues. 0:23:01.080 --> 0:23:04.280 The liberal justices, i think primarily basically relying heavily on 0:23:04.320 --> 0:23:08.000 story decisives. That is, we've decided this before, including two 0:23:08.040 --> 0:23:11.320 years ago, that this case is on all fours with 0:23:11.400 --> 0:23:15.359 the Alabama case, So that's one two. Another version of 0:23:15.359 --> 0:23:18.200 story decisis is there is a doctrine that says that 0:23:18.400 --> 0:23:23.480 court opinions interpreting statutes get super strong story decisives have 0:23:23.560 --> 0:23:27.840 super strong presidential effect because whereas court decisions interpreting the 0:23:27.880 --> 0:23:31.800 Constitution really can't be overturned except through an extraordinary process 0:23:31.800 --> 0:23:36.080 of constitutional amendment, court decisions interpreting a statute, Congress can 0:23:36.119 --> 0:23:39.119 always overturn them. And Congress has not tampered with the 0:23:39.160 --> 0:23:42.560 Bonia Rights Accents nineteen eighty two third argument and didn't 0:23:42.560 --> 0:23:44.879 come up as much in this argument as people might 0:23:44.920 --> 0:23:47.400 have thought. If you go back to the Alabama case. 0:23:47.600 --> 0:23:51.360 Kavanaugh wrote a concurrence. He echoed some of the language 0:23:51.440 --> 0:23:53.920 Justice of Connor had used many years earlier in dealing 0:23:53.960 --> 0:23:56.080 with affirmative action and saying there's got to be some 0:23:56.280 --> 0:23:58.960 time limit for this, that it's not clear how much 0:23:59.000 --> 0:24:02.280 longer you can keep taking effects into account in remedies, 0:24:02.600 --> 0:24:05.119 and much of the argument of the lawyer for the 0:24:05.200 --> 0:24:08.280 NAACP and the liberal justices is, well, actually there is 0:24:08.320 --> 0:24:11.240 a built in time limit in Section two, plaintiffs have 0:24:11.320 --> 0:24:15.040 to show that there is current racial block voting, that 0:24:15.080 --> 0:24:18.360