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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Voters and advocacy groups in more than half the states

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Speaker 2: are fighting to remove former President Donald Trump from state

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Speaker 2: ballots under the disqualification clause of Section three of the

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Speaker 2: fourteenth Amendment, which states that no person shall hold office

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Speaker 2: if they have previously taken an oath as a member

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Speaker 2: of Congress or as an officer of the United States,

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Speaker 2: and engaged in insurrection or rebellion against the Constitution. But

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Speaker 2: secretaries of state like Minnesota's Steve Simon, say they can

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Speaker 2: enforce the fourteenth Amendment on their own.

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Speaker 3: The ones who are going to make the legal cause

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Speaker 3: about who engaged in what conduct and whether it rises

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Speaker 3: to the level of constitutional disqualification, that's what a court

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Speaker 3: will do.

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Speaker 2: But so far courts in Colorado, Michigan, and Minnesota have

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Speaker 2: refused to disqualified Trump. In fact, after a five days trial,

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Speaker 2: Colorado Judge Sarah Wallace found that Trump did engage in

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Speaker 2: insurrection during the January sixth attack on the US Capitol,

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Speaker 2: but said he was not covered by Section three. Here

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Speaker 2: to help explain it all is elections law expert Richard Brofald,

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Speaker 2: a professor at Columbia Law School, Rich tell us about

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Speaker 2: these legal challenges under Section three of the fourteenth Amendment.

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Speaker 4: So there is a series of challenges of being brought

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Speaker 4: to former President Trump's eligibility to be a candidate for

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Speaker 4: president because of his actions during the course of the

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Speaker 4: January sixth and attack on the Capitol and the real

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Speaker 4: questions whether or not that is an insurrection. This has

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Speaker 4: to do with a provision of the Fourteenth Amendment that

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Speaker 4: was adopted in the aftermath of the Civil War that

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Speaker 4: was intended to keep former US officials who then joined

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Speaker 4: the Confederacy from being eligible to serve in US office again.

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Speaker 4: It specifically says that for certain people, and one question

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Speaker 4: is who's covered by it engaged in insurrection, that's the

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Speaker 4: key language. If they engage in insurrection against the Constitution

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Speaker 4: of the United States, they are ineligible to hold certain

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Speaker 4: offices in the United States. And so number of people

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Speaker 4: have argued that former President Trump, because of his activities

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Speaker 4: and inactivities on January sixth, falls within that prohibition of

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Speaker 4: being eligible to be president again. And so this has

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Speaker 4: led to extended academic arguments and now a series of lawsuits.

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Speaker 4: And these lawsuits raise a bunch of questions is what

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Speaker 4: happened on January sixth and insurrection? Did the President engage

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Speaker 4: in the insurrection by various speeches he gave, in statements

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Speaker 4: he made, and actions he took and didn't take going

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Speaker 4: up to and on January sixth, And another question that

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Speaker 4: turns out to be surprisingly complicated is whether he's one

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Speaker 4: of the people who is prohibited from holding office again,

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Speaker 4: because the language section three of the fourteenth of them

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Speaker 4: and uses is no person shall be a senator or

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Speaker 4: representative in Congress, or an elector for president to vice president,

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Speaker 4: or hold any office under the United States. And the

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Speaker 4: question that has come up as with the president is

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Speaker 4: somebody who holds an office under the United States. And

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Speaker 4: although it may seem pretty obvious that the president obviously

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Speaker 4: holds an office under the United States, many people have

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Speaker 4: argued that the presidency is distinct and is not simply

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Speaker 4: an office under the United States, but is its own thing.

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Speaker 2: This Colorado Judge Wallace issued the first legal ruling that

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Speaker 2: concluded that the former president had incited insurrection through his

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Speaker 2: actions on January sixth, and that the First Amendment doesn't

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Speaker 2: protect his actions. But then she went on to find

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Speaker 2: that Section three doesn't cover presidents.

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Speaker 4: That's correct, that's right. So yes, that's absolutely right. She

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Speaker 4: basically said that what happened on January sixth was an insurrection,

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Speaker 4: which is a violent attack on the government the United States,

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Speaker 4: an official action the United States, which is counting the

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Speaker 4: electoral votes. That President Trump engaged in the insurrection through

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Speaker 4: the speeches he gave in citing the activity and his

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Speaker 4: general build up in the days before January sixth of

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Speaker 4: a sense amongst his supporters that something needs to be

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Speaker 4: done to block accounting the electoral vote. And yes, the

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Speaker 4: various statements he made, she concluded were not protected by

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Speaker 4: the First Amendment because they were intended to incite violence.

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Speaker 4: But then she concluded that he's not somebody subject to

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Speaker 4: section three of a fourteenth Amendment because Section three the

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Speaker 4: fourteenth Amendment refers to a senator, a representative in Congress,

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Speaker 4: an elector for a president, or any other office civil

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Speaker 4: or military under the United States or under any state.

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Speaker 4: And the question comes up is whether or not the

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Speaker 4: presidency is an office under the United States. And although

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Speaker 4: intuitively it might seem that presidency of the ultimate office

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Speaker 4: under the United States, she concluded that the the presidency

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Speaker 4: is not, and she gave a couple of reasons for that.

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Speaker 4: One is the way the Amendment is written and kind

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Speaker 4: of written by naming some specific offices and kind of

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Speaker 4: level of seniority for senator than representative, and sort it's

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Speaker 4: noteworthy it doesn't actually stay president. And then she notes

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Speaker 4: that there are several other provisions in the Constitution that

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Speaker 4: distinguished between the president as a distinctive position and various

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Speaker 4: kinds of offices in civil offices, and so she concluded

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Speaker 4: that the presidency is itself not covered by the Fourteenth

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Speaker 4: Amendment Section three.

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Speaker 2: Trump's lawyer Scott Goessler, referring to the judge's conclusion that

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Speaker 2: Trump engaged in insurrection, said it was a little bit

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Speaker 2: unusual for her to spend a lot of time talking

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Speaker 2: about that and then at the end rule that the

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Speaker 2: Fourteenth Amendment didn't apply.

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Speaker 4: It is interesting the opinion is one hundred and two

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Speaker 4: pages long, and some of that is just there of

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Speaker 4: procedural stuff, but she doesn't actually get to this question

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Speaker 4: whether or not the presidency is an office under the

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Speaker 4: United States or in office covered by section three of

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Speaker 4: the Fourteenth Amendment until about page ninety five of this

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Speaker 4: one hundred and two page opinion. So it does seem

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Speaker 4: a bit odd. I guess you could say that obviously

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Speaker 4: she's not the final say she is just the lower

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Speaker 4: court judge. It's going to go up through the Colorado

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Speaker 4: court system and maybe ultimately to the US Supreme Court.

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Speaker 4: And so maybe in defense of what she did is

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Speaker 4: she basically says, well, if you reverse me on the

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Speaker 4: question of whether or not the presidency is an office

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Speaker 4: covered by this, I've made findings on everything else that's relevant.

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Speaker 4: Because other people have argued either that January sixth didn't

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Speaker 4: rise at the level of an insurrection. It was a

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Speaker 4: riot but not as serious an insurrection, or that President

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Speaker 4: Trump didn't engage in the insurrection, that all he did

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Speaker 4: was give speeches by make statements, but he didn't actually

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Speaker 4: engage in the insurrection. So she basically said, you know,

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Speaker 4: in some sense, if you look at the text of

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Speaker 4: the amendment, it really requires thinks that there be an insurrection,

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Speaker 4: that the person had to be engaged in it, and

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Speaker 4: that it applied to the presidency. And so she has

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Speaker 4: made rulings that it was an insurrection and that he

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Speaker 4: did engage in it, but that the Fourteenth Amendment doesn't

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Speaker 4: apply to him. So conceivably a higher court, an appeals court,

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Speaker 4: or the Colorado Supreme Court or the US Supreme Court

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Speaker 4: could conclude that the presidency is covered, in which case

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Speaker 4: they'd have her findings on the other two issues.

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Speaker 2: All the cases, you know, trying to get him off

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Speaker 2: the ballot via the fourteenth Amendment, have they all failed?

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Speaker 4: They're all at the early stages that maybe it's more

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Speaker 4: accurate to say none has succeeded. Okay, but they're all

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Speaker 4: at fairly early stages. I mean, the elections coming up soon,

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Speaker 4: and right now the only real question is is being

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Speaker 4: on the primary ballot. And some people have argued, well,

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Speaker 4: the primary is premature. It's really on about the general election.

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Speaker 4: But yeah, there are there are challenges percolating in a

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Speaker 4: number of states. Certainly, nothing has succeeded yet, but I

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Speaker 4: don't think there's has been a definitive ruling by the

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Speaker 4: highest court of any state yet either.

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Speaker 2: And does this seem like something the Supreme Court should

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Speaker 2: take up.

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Speaker 4: It's obviously an incredibly important question at the moment, given

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Speaker 4: the lack of any law on this. You know, some

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Speaker 4: great usually only comes in after there's been a you know,

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Speaker 4: a final lower court judgment, and especially if there's been

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Speaker 4: some disagreement, this is something that they might want to settle.

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Speaker 4: I mean, I think the real anxiety that many people

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Speaker 4: have is what happens when let's say Trump wins, but

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Speaker 4: members of Congress don't think that they should certify his

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Speaker 4: election because there's some members of Congress think that he

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Speaker 4: violated the fourteenth Amendment. And what happens if this becomes

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Speaker 4: an issue. January sixth to twenty twenty five.

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Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue

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Speaker 2: this conversation with Columbia Law School professor Richard Brofault, and

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Speaker 2: we'll talk about the Eighth Circuit Startling decision that would

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Speaker 2: be a death blow to the Voting Rights Act. I'm

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Speaker 2: June Grosso and you're listening to Bloomberg. One of the

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Speaker 2: most important pieces of civil rights legislation in our history,

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Speaker 2: the Voting Rights Act, was signed into law in August

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Speaker 2: of nineteen sixty five by President Lyndon Johnson.

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Speaker 3: Today is a triumph for freedom, as huge as any

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Speaker 3: victory that's ever been won on any battle field.

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Speaker 2: But the Supreme Court gotted a core part of that

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Speaker 2: landmark law in twenty thirteen and now are ruling by

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Speaker 2: the Eighth Circuit Court of Appeals threatens to deal a

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Speaker 2: death blow to the Act. I've been talking to Columbia

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Speaker 2: Law School professor Richard breflt Rich. Would you say the

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Speaker 2: Voting Rights Act is the most important piece of federal

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Speaker 2: legislation protecting voting rights today?

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Speaker 4: Oh? Yes, a Voting Rights Act of nineteen sixty five,

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Speaker 4: as it meant in nineteen eighty two is the number

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Speaker 4: one federal statute protecting voting rights.

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Speaker 2: And tell us what happened in twenty thirteen and what's

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Speaker 2: left of the Act before we get to what's happened

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Speaker 2: to it recently.

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Speaker 4: So the Voting Rights Act of sixty five has significally

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Speaker 4: mind in eighty two had many preditions, but two of

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Speaker 4: them really stood out. One was what's called Section five,

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Speaker 4: which had this concept of preclearance, and it basically said

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Speaker 4: that for certain problem jurisdictions of jurisdictions which have a

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Speaker 4: serious track record of violating voting rights, as proven by

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Speaker 4: certain tests in the statute, when they change their voting laws,

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Speaker 4: that has to be pre approved, pre cleared, as the

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Speaker 4: language the statue uses, either by the Department of Justice

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Speaker 4: or by a federal court before they it comes into effect,

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Speaker 4: and it kind of reverses the presumption. It says for

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Speaker 4: those problem jurisdictions, they have to prove that their new

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Speaker 4: law or their new change in voting practice or procedure

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Speaker 4: does not burden minority voting rights. So the burden is

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Speaker 4: actually on the state of the local government to show

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Speaker 4: that they're not clicting any harm. In twenty thirteen, the

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Speaker 4: Supreme Court struck down the part of the statute that

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Speaker 4: provided the definition of the jurisdictions that were subject to

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Speaker 4: this special treatment. They were called cover jurisdictions, and the

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Speaker 4: Court said that Congress basically had failed to update the

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Speaker 4: formula that decides what a cover jurisdiction is. It was

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Speaker 4: last updated in the nineteen seventies, and the Court said

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Speaker 4: it simply cannot be right that that's the right formula

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Speaker 4: now in a statute which the substance of the statute

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Speaker 4: was as most recently updated in two thousand and six.

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Speaker 4: So what the Court said in twenty thirteen is that provision,

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Speaker 4: that preclearance provision, it is technically still on the books,

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Speaker 4: but it has nothing to operate on because the provision

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Speaker 4: that it works with which is the definition of the

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Speaker 4: cover jurisdictions is invalid. So with that decision in twenty thirteen,

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Speaker 4: the Supreme Court eliminated clearance to Clarence is technically on

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Speaker 4: the books, but there's nothing for it to do. The

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Speaker 4: other major provision of the Act is called Section two,

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Speaker 4: and that's the one that basically is used to challenge

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Speaker 4: voting rules around the country which are either intentionally discriminatory

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Speaker 4: or have a discriminatory impact. And really for the parts

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Speaker 4: of the country that were never under Section five, section

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Speaker 4: two is where the action was, and since twenty thirteen

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Speaker 4: now is for all of the country. Section two is

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Speaker 4: where the action is. Now. In Section two, the burden

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Speaker 4: is on a plaintiff to show that a state or

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Speaker 4: local law is discriminatory, either in intent or in effect

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Speaker 4: against We're protected by the Act, which are primarily based

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Speaker 4: on race or language minority status. But nonetheless Section two

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Speaker 4: has been particularly after the twenty thirteen decision that's known

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Speaker 4: as Shelby County. Section two is clearly the major, by far,

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Speaker 4: the major provision of the Act for enforcing voting rights.

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Speaker 2: Now, I would say, out of the blue, a two

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Speaker 2: to one ruling of the Eighth Circuit by a Trump

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Speaker 2: appointee and a George W. Bush appointe with another Bush

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Speaker 2: appoint in descent says that only the federal government can

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Speaker 2: bring suits to vindicate voting rights under Section two.

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Speaker 1: Right where did this come from?

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Speaker 4: So their argument is that Section two, which makes all

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Speaker 4: sorts of voting practices and procedures illegal, doesn't explicitly say

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Speaker 4: that people who are injured by these practices and procedures

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Speaker 4: have a right to bring a lawsuit what's known as

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Speaker 4: a private right of action. The statute prohibits that basically

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Speaker 4: declares that various kinds of voting practices and procedures which

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Speaker 4: are discriminatory are illegal, but it doesn't explicitly literally say

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Speaker 4: that people who are injured by that can bring a lawsuit. Now,

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Speaker 4: since the time of the enactment of this statute, especially

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Speaker 4: since it was beefed up. The statute was actually significantly

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Speaker 4: beaced up by Congress in reaction to a Supreme Court

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Speaker 4: decision in nineteen eighty two, this statue has been used

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Speaker 4: for private claims. I don't know it's hundreds of times,

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Speaker 4: which have been adjudicated by courts, including by the Supreme

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Speaker 4: Court as recently as earlier this year, the Allen b.

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Speaker 4: Milligan decision. So it has been used many, many, many,

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Speaker 4: many times. But according to the Eighth Circuit majority, the

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Speaker 4: Supreme Court has never literally said that there's a private

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Speaker 4: right of action. They've just assumed it. And in that

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Speaker 4: Allen case, Justice Thomas in his descent also raised this

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Speaker 4: as a question about whether or not there really is

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Speaker 4: a private right of action. So I think he in

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Speaker 4: that case in some earlier cases, may have planted the

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Speaker 4: seeds of doubt. But as I say, until now, I

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Speaker 4: think there have been hundreds of cases in the district

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Speaker 4: courts and the courts of appeals which have assumed that

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Speaker 4: there's a private right of action, and even at least

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Speaker 4: a number of cases, and it's probably, I'm not sure

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Speaker 4: if it's single digits or double digits of cases in

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Speaker 4: the Supreme Court which have assumed a private right of action.

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Speaker 4: And this is the first case that has literally said, no,

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Speaker 4: we don't think it's there. And the fact that there

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Speaker 4: have been these many, many, many cases assuming that it's there,

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Speaker 4: we don't care about those because nobody ever literally worked

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Speaker 4: it through and held that there's a private right of action.

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Speaker 2: And Justice Gorsich has also referred to whether private plaintiffs

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Speaker 2: could sue under section two as quote an open question.

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Speaker 2: Wendy Wiser of the Brendan Center for Justice has called

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Speaker 2: these comments by the two justices bats signals that they're

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Speaker 2: open to considering novel theories to undermine voting rights. And

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Speaker 2: maybe the lower court judge, a Trump appointee, who came

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Speaker 2: up with this, got the signal. Now, are these judges

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Speaker 2: claiming that they're following precedent because this wasn't specifically addressed,

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Speaker 2: even though you know there's case after case after case

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Speaker 2: after case where private groups sue.

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Speaker 4: Right, I think I would rephrase that to say they

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Speaker 4: claim that they're following the text of the statute, the

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Speaker 4: text of the statute and nothing more, and that they're

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Speaker 4: not bound by any inconsistent precedent because there's no precedent

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Speaker 4: that literally says the statute does create a private right

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Speaker 4: of action. So I think that's how they would put it.

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Speaker 4: This is consistent with kind of the dominant approach to

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Speaker 4: statue interpretation in the current Supreme Court in federal courts,

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Speaker 4: which is what's called textualism. We're just going to read

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Speaker 4: the statute and see what's there and they don't see

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Speaker 4: this literal language there as opposed to seeing that the

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Speaker 4: structure of the statute. It's the purpose of the statue

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Speaker 4: was designed to enable people to protect their voiding rights.

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Speaker 4: Their view, there is not a specific little bit of

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Speaker 4: text that says it.

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Speaker 2: It seems like a very very narrow argument that ignores

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Speaker 2: everything going around.

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Speaker 4: Yeah, it's a very technical or argument, but it is

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Speaker 4: an argument that I'd say resonates with some of the

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Speaker 4: arguments that have that have really persuaded the Streme Court

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Speaker 4: in other areas not voting rights. This idea of the

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Speaker 4: private right of actions that I mean this has come

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Speaker 4: up in other settings where Congress passes a law that

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Speaker 4: prohibits certain activity or provides for certain benefits, but doesn't

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Speaker 4: literally give people the right to sue if those are denied.

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Speaker 4: Maybe theerception is that the Attorney general will sue or

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Speaker 4: that rel agency will sue. And for a long time,

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Speaker 4: the Supreme Court was willing to imply private rights of

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Speaker 4: actions as necessary to vindicate the rights provide the benefits

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Speaker 4: that Congress authorized. In more recent years, the Supreme Court

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Speaker 4: has cut back on that and has been less inclined

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Speaker 4: to find a private right of action in a statute

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Speaker 4: that doesn't literally say that.

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Speaker 2: Now, if this decision is affirmed, it would leave it

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Speaker 2: to the Justice Department or state agees to bring these cases.

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Speaker 2: And in Republican states, it doesn't seem likely that an

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Speaker 2: age would bring an action to enforce the Voting Rights Act.

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Speaker 2: So does the Justice Department have enough people and resources

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Speaker 2: to bring these kinds of actions?

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Speaker 4: Right? I mean, it's not clear that the Just Department

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Speaker 4: would have enough staff to bring it. And then there

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Speaker 4: might be justice departments that are not interested, that their

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Speaker 4: philosophy is not inclined to bring these cases. I can

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Speaker 4: imagine that happening too. So, yeah, this is a real

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Speaker 4: This is a real body blow to any effectiveness of

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Speaker 4: the Voting Rights Act. If people can't sue if they

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Speaker 4: believe that there's a violation, the opportunities to enforce these

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Speaker 4: rights will be drastically diminished.

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Speaker 1: What's the next step for the plaintiffs here?

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Speaker 4: It's certainly likely that the plaintiffs in this case will

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Speaker 4: ask for what's called an on bank, which is to

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Speaker 4: say this was a panel of the Eighth Circuit. You know,

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Speaker 4: the course of appeals generally have a dozen or fifteen

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Speaker 4: or more judges, but they sit in groups of three,

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Speaker 4: and so this was a group of three judges from

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Speaker 4: the Eighth Circuit to split two to one on this.

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Speaker 4: This is a kind of issue that certainly is likely

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Speaker 4: or certainly is a great candidate to go to an

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Speaker 4: on bank decision where the entire Eight Circuit sits and decides.

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Speaker 4: This is a certainly sort of issue that go to

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Speaker 4: the Supreme Court ultimately, but I think before it even

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Speaker 4: gets to the Supreme Court, there's a good chance that

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Speaker 4: it'll be subject to an on bank reviewed by the

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Speaker 4: entire Rate Circuit.

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Speaker 2: And the Eighth Circuit is a very conservative circuit, with

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Speaker 2: sixteen of its seventeen judges being Republican appointees. Thanks so much,

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Speaker 2: rich That's Professor Richard Rafault of Columbia Law School coming

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Speaker 2: up next. Federal public defenders are combining their forces to

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Speaker 2: make arguments at the Supreme Court. I'm Juan Grass when

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Speaker 2: you're listening to Bloomberg, mis Radler.

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Speaker 3: Mister Chief Justice, and may please the Court. The nine

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Speaker 3: to twenty two g offense is what triggers Acus penalties.

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Speaker 3: The government therefore agrees that courts must apply Acus criteria

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Speaker 3: in effect at the time of the nine to twenty

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Speaker 3: two g offense not the prior conviction.

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Speaker 2: Assistant Federal public defender Andrew Adler made his third trip

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Speaker 2: to the U. S. Supreme Court lectern on Monday to

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Speaker 2: argue that his client, Eugene Jackson, should not be subject

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Speaker 2: to a fifteen year mandatory minimum because of his previous

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Speaker 2: state cocaine related conviction. Adler is just one of the

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Speaker 2: federal public defenders who have argued more than once before

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Speaker 2: the justices. That's because with the Supreme Court hearing fewer

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Speaker 2: and fewer cases each term, the criminal defense attorneys, like

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Speaker 2: most first time Supreme Court advocates, face a lot of

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Speaker 2: pressure from elite law firms to turn over their cases

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Speaker 2: to advocates who are more experienced before the court. Joining

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Speaker 2: me is Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson,

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Speaker 2: who's written about this. Tell us about the pressure that

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Speaker 2: federal public defenders and other first time advocates have to

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Speaker 2: turn their Supreme Court cases over to experienced advocates.

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Speaker 5: Well, it's not a very good kept secret that whenever

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Speaker 5: a case is granted by the Justices, the advocate, if

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Speaker 5: they're not a sume Court veteran will face intense pressure.

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Speaker 5: You know, they'll get calls, emails from large law firms

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Speaker 5: from gootis veterans offering to take their case for free

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Speaker 5: to help them out. But the help often means to

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Speaker 5: argue the case. And so it's one way that you know,

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Speaker 5: as the justices are granting and fewer cases, it's one

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Speaker 5: way for advocates to you know, show their faces and

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Speaker 5: for the justices frequently, and it's one that sometimes gets

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Speaker 5: a lot of people to turn over their cases. But

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Speaker 5: the federal defenders have tried to keep their cases when

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Speaker 5: it makes sense within the offices themselves.

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

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Speaker 2: You wrote about Justice Sonya Sotomayor in twenty fourteen said

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Speaker 2: it was malpractice for any lawyer who thinks, this is

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Speaker 2: my one shot before the Supreme Court and I have

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Speaker 2: to take it. Have other justices commented as well.

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Speaker 5: Yes, there was similar criticism from Justice Kagan around the

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Speaker 5: same time, where she talked about, you know, the one

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Speaker 5: group consistently who is getting or advocacy in front of

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Speaker 5: the justices were criminal defendants, and that of course includes

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Speaker 5: federal public defenders. She talked about the same thing that

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Speaker 5: people wanting to have their one shot in front of

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Speaker 5: the Supreme Court. And we've seen a lot of first

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Speaker 5: time advocates, a lot of advocates of these criminal cases

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Speaker 5: who do not do, you know, the best job for

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Speaker 5: their clients. But that's not always the case. And again,

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Speaker 5: you know, that's something that the federal defenders are trying

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Speaker 5: to make sure it doesn't happen in their cases.

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Speaker 2: And the Supreme Court bar is an elite group? Is

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Speaker 2: it an elitist group too?

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Speaker 5: Well, that's what you know, one of the federal defenders

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Speaker 5: told me, is that there is a bit of elitism

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Speaker 5: that goes on this idea that you know, only people

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Speaker 5: can do this. I mean, you know, these federal defenders,

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Speaker 5: they are appellate specialists, they are criminal specialists. They argue

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Speaker 5: in from a lot of the other courts of appeals,

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Speaker 5: so it's not as if they don't have experience. But

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Speaker 5: one thing that they do often have is a real

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Speaker 5: clear understanding of the criminal law and the way that

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Speaker 5: happens practically. And we actually saw that in action when

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Speaker 5: a federal defender took the lectern this week and argued

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Speaker 5: a case he was able to give the justice. This

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Speaker 5: is really a practical on the ground look about you

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Speaker 5: know what it is that criminal defense attorneys advise their

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Speaker 5: clients of and what sort of those interactions look like

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Speaker 5: something that you know, a Supreme Court veteran, for all

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Speaker 5: the wonderful things they can do, probably couldn't do.

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Speaker 1: That was that Andrew Adler.

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Speaker 5: That was yes. And this was actually his third time

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Speaker 5: at the Supreme Court lecturn. So he's one of a

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Speaker 5: few federal defenders that have gone to the Supreme Court

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Speaker 5: and argued more than one.

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Speaker 2: Yeah, and a few people mentioned that right off the

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Speaker 2: bat he presented this hypothetical to the justices that really

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Speaker 2: grab them.

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Speaker 5: It did, and so you know, it was in his

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Speaker 5: opening two minutes the Supreme Court. It doesn't sound like

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Speaker 5: a long time, but the Supreme Court has said they're

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Speaker 5: going to give advocates an uninterrupted two minutes, and it's

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Speaker 5: kind of when the advocates can make their best arguments

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Speaker 5: without getting interrupted. And in that two minutes he mentioned

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Speaker 5: the specific hypothetical, and it came up again and again

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Speaker 5: and again from the justices. They asked the other attorney

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Speaker 5: about it. So he was really making good use of

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Speaker 5: that first two minutes of uninterrupted time and you know, ultimately,

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Speaker 5: I think it'll probably will be the way that the

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Speaker 5: case goes and could end up in the opinions.

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Speaker 1: And we will talk about that in a moment.

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Speaker 2: So, Kimberly, do you think that there's an advantage? There

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Speaker 2: are some advocates that have been up there so many times.

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Speaker 2: The justices know them and perhaps know them even because

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Speaker 2: you know, they attend functions with them and things like that.

439
00:24:53,880 --> 00:24:56,560
Speaker 1: I mean, do you think that's an advantage when.

440
00:24:56,359 --> 00:24:59,200
Speaker 2: The Supreme Court knows who you are, like for example,

441
00:24:59,240 --> 00:25:00,840
Speaker 2: former solicitor generals.

442
00:25:01,560 --> 00:25:03,359
Speaker 5: You know, it can be. I think one of the

443
00:25:03,440 --> 00:25:06,760
Speaker 5: things that people tell me it's the biggest advantage of

444
00:25:06,920 --> 00:25:09,359
Speaker 5: you know, those repeat players at the Supreme Court is

445
00:25:09,359 --> 00:25:12,400
Speaker 5: that they know what the justices are looking for. They

446
00:25:12,440 --> 00:25:15,000
Speaker 5: know that you know, when a justice gives you a hypothetical,

447
00:25:15,280 --> 00:25:17,800
Speaker 5: you don't fight the hypothetical. You answer their question no

448
00:25:17,840 --> 00:25:19,840
Speaker 5: matter how ridiculous it is, no matter how much it

449
00:25:19,960 --> 00:25:21,920
Speaker 5: hurst your argument, and you just sort of do the

450
00:25:21,960 --> 00:25:24,359
Speaker 5: best you can. And so it's sort of like having

451
00:25:24,600 --> 00:25:27,040
Speaker 5: a home field advantage. There's the way that one advocate

452
00:25:27,160 --> 00:25:30,080
Speaker 5: put it to me is that you you just know

453
00:25:30,200 --> 00:25:32,840
Speaker 5: what to expect from them and know what's going to

454
00:25:32,880 --> 00:25:34,760
Speaker 5: be the most helpful to them.

455
00:25:35,160 --> 00:25:39,119
Speaker 2: Tell us about the Defender Supreme Court Resource and Assistance Panel.

456
00:25:39,200 --> 00:25:39,960
Speaker 1: What is it doing.

457
00:25:40,280 --> 00:25:44,760
Speaker 5: So this is probably the the worst acronym name is

458
00:25:44,840 --> 00:25:48,840
Speaker 5: called d scrap, But d scrap is really just a

459
00:25:48,840 --> 00:25:52,440
Speaker 5: group of federal defenders that do have some high court experience.

460
00:25:52,560 --> 00:25:52,760
Speaker 2: You know.

461
00:25:52,800 --> 00:25:55,000
Speaker 5: It started out very informally, but after some of the

462
00:25:55,080 --> 00:25:58,000
Speaker 5: criticism that we talked about, you know, from the justices,

463
00:25:58,520 --> 00:26:01,639
Speaker 5: federal defenders from around the couindes sort of said, Okay,

464
00:26:01,640 --> 00:26:03,680
Speaker 5: we need to do something about this. We need to

465
00:26:03,720 --> 00:26:05,840
Speaker 5: make sure that we aren't you know, these people who

466
00:26:05,880 --> 00:26:09,080
Speaker 5: the justices that are talking about giving poor advocacy, and so,

467
00:26:09,480 --> 00:26:12,320
Speaker 5: you know, what they do is, to varying degrees, they

468
00:26:12,320 --> 00:26:15,400
Speaker 5: will reach out to the person whose case got granted.

469
00:26:15,720 --> 00:26:18,639
Speaker 5: They will help with strategizing a bit, they'll help with

470
00:26:18,680 --> 00:26:21,679
Speaker 5: brief writing, they'll do moot courts and just sort of

471
00:26:21,680 --> 00:26:25,400
Speaker 5: give advice to help them alleviate that home field advantage

472
00:26:25,440 --> 00:26:28,280
Speaker 5: and let them know what it is that the justices expect.

473
00:26:28,359 --> 00:26:31,399
Speaker 5: And so it's it's sort of like a homegrown support group.

474
00:26:31,480 --> 00:26:34,760
Speaker 5: But if Andrew Adler's argument is any indication, it seems

475
00:26:34,760 --> 00:26:35,920
Speaker 5: to be doing a really good job.

476
00:26:36,280 --> 00:26:38,879
Speaker 2: You point out something which I hadn't thought about that

477
00:26:38,960 --> 00:26:42,639
Speaker 2: it seems often like a David and Goliath situation because

478
00:26:42,760 --> 00:26:47,080
Speaker 2: the federal public defenders are almost always facing attorneys from

479
00:26:47,080 --> 00:26:50,840
Speaker 2: the Solicitor General's Office who get a lot of chances

480
00:26:50,880 --> 00:26:52,360
Speaker 2: to argue they do.

481
00:26:52,520 --> 00:26:54,920
Speaker 5: I mean, you know these are people. You know, there

482
00:26:54,920 --> 00:26:58,000
Speaker 5: are maybe three or four people who currently argue at

483
00:26:58,000 --> 00:27:00,520
Speaker 5: the Court who have argued more than one hundred cases,

484
00:27:00,880 --> 00:27:04,040
Speaker 5: all of them spent time in the Solicitor General's office,

485
00:27:04,040 --> 00:27:06,200
Speaker 5: because that's the place you go if you want to

486
00:27:06,240 --> 00:27:09,720
Speaker 5: get a lot of experience with Supreme Court advocacy. You know,

487
00:27:09,800 --> 00:27:12,760
Speaker 5: they can argue to three four cases in a term

488
00:27:13,119 --> 00:27:16,520
Speaker 5: each individual attorney in that office, whereas you know, some

489
00:27:16,720 --> 00:27:20,640
Speaker 5: advocates who are we consider veterans can go years without

490
00:27:20,640 --> 00:27:22,680
Speaker 5: having a case before the Supreme Court. So it really

491
00:27:22,760 --> 00:27:25,679
Speaker 5: is a lot like David Goliath in that sense.

492
00:27:26,160 --> 00:27:28,240
Speaker 2: I know there are a lot of Supreme Court clinics

493
00:27:28,440 --> 00:27:31,200
Speaker 2: at law schools around the country. Do any other clinics

494
00:27:31,240 --> 00:27:35,359
Speaker 2: offer the same kind of help to federal public defenders?

495
00:27:36,320 --> 00:27:38,920
Speaker 5: They do? And actually, you know Dscrap hooks up with

496
00:27:38,960 --> 00:27:41,040
Speaker 5: a lot of these clinics, so you know, the case

497
00:27:41,080 --> 00:27:43,359
Speaker 5: that we've been talking about, they hooked up with the

498
00:27:43,359 --> 00:27:46,160
Speaker 5: Supreme Court Clinic out in Stanford, a lot of law

499
00:27:46,200 --> 00:27:49,960
Speaker 5: firms to will office support. Sidley Austin, who actually argued

500
00:27:50,080 --> 00:27:53,160
Speaker 5: the companion case to this case that we're talking about, often,

501
00:27:53,320 --> 00:27:56,000
Speaker 5: you know, is involved with the scrap and federal defenders,

502
00:27:56,040 --> 00:27:58,119
Speaker 5: so they get a lot of support from the outside

503
00:27:58,200 --> 00:28:00,520
Speaker 5: as well. And you know, I think it's it's really

504
00:28:00,680 --> 00:28:04,120
Speaker 5: about finding people who are willing to help you out,

505
00:28:04,440 --> 00:28:07,560
Speaker 5: but not mean help, means take the argument away. So

506
00:28:08,000 --> 00:28:09,480
Speaker 5: there is that outside help too.

507
00:28:09,680 --> 00:28:12,160
Speaker 2: Yeah, I'm going to say the d scrap is for

508
00:28:12,359 --> 00:28:14,080
Speaker 2: scrappy defense lawyers.

509
00:28:14,160 --> 00:28:15,119
Speaker 1: That's what it stands for.

510
00:28:16,800 --> 00:28:20,639
Speaker 2: Let's talk about the case that Andrew Adler argued in.

511
00:28:21,040 --> 00:28:24,280
Speaker 2: And you know, the cases involving the Arm Career Criminal

512
00:28:24,280 --> 00:28:29,960
Speaker 2: Act always seem to be so technical that I often.

513
00:28:29,760 --> 00:28:33,840
Speaker 1: Ignore them, but they're important. Tell us about this one.

514
00:28:33,920 --> 00:28:34,840
Speaker 1: What the issue was?

515
00:28:36,000 --> 00:28:38,800
Speaker 5: Sure, So the Arm Career Criminal Act, you know, has

516
00:28:38,880 --> 00:28:42,520
Speaker 5: some really stiff senses for people who illegally possess a gun.

517
00:28:42,600 --> 00:28:46,960
Speaker 5: So I think Sellen or somebody who is convicted of major,

518
00:28:47,200 --> 00:28:49,920
Speaker 5: you know, drug crimes, and that's actually what's at issue here.

519
00:28:50,320 --> 00:28:53,520
Speaker 5: Is that you know, if you are convicted of three quote,

520
00:28:53,560 --> 00:28:57,880
Speaker 5: serious drug crimes and then you're convicted of illegally possessing

521
00:28:57,880 --> 00:29:02,000
Speaker 5: a firearm under AKA, there's a fifteen year mandatory minimum,

522
00:29:02,040 --> 00:29:05,080
Speaker 5: which is I mean, that's a lot. And so the

523
00:29:05,200 --> 00:29:09,720
Speaker 5: question here is how do we decide who's eligible for

524
00:29:09,760 --> 00:29:12,440
Speaker 5: that fifteen year minimum. And it's really a question a

525
00:29:12,480 --> 00:29:15,920
Speaker 5: temporal question, you know, is the relevant time period that

526
00:29:15,960 --> 00:29:18,600
Speaker 5: we're trying to see if these crimes are serious? Is

527
00:29:18,640 --> 00:29:21,400
Speaker 5: it when those crimes were committed or is it now

528
00:29:21,440 --> 00:29:24,280
Speaker 5: today as we're deciding your firearms case. So it is

529
00:29:24,360 --> 00:29:27,160
Speaker 5: really a technical question, but at a very high level

530
00:29:27,160 --> 00:29:29,400
Speaker 5: of generality that's that is too.

531
00:29:29,800 --> 00:29:33,720
Speaker 2: And so the Justice has had basically three choices.

532
00:29:34,320 --> 00:29:37,880
Speaker 5: They did, and you know, just to make it even

533
00:29:38,000 --> 00:29:42,200
Speaker 5: more convoluted, all three of these choices are being employed

534
00:29:42,560 --> 00:29:44,880
Speaker 5: to some extent in the lower Federal Pellet Court. So

535
00:29:45,200 --> 00:29:47,400
Speaker 5: that's probably one of the major reasons that the court

536
00:29:47,480 --> 00:29:50,760
Speaker 5: took this case was just to provide some clarity. But

537
00:29:50,840 --> 00:29:53,400
Speaker 5: the different times it can either be, you know, do

538
00:29:53,480 --> 00:29:56,080
Speaker 5: we look to see if this crime was serious when

539
00:29:56,160 --> 00:29:58,760
Speaker 5: the drug crime occurred, or do we look to see

540
00:29:58,840 --> 00:30:02,479
Speaker 5: if the crime is serious when the firearms conviction occurred,

541
00:30:02,600 --> 00:30:04,840
Speaker 5: or do we look to see if the drug crime

542
00:30:05,000 --> 00:30:07,400
Speaker 5: was serious at the time of the sentence thing? And

543
00:30:07,440 --> 00:30:09,680
Speaker 5: as I said, all of those rules are sort of

544
00:30:09,720 --> 00:30:12,160
Speaker 5: being employed, you know, throughout the country, and so the

545
00:30:12,160 --> 00:30:14,560
Speaker 5: Supreme Court is going to have to pick one, and

546
00:30:14,680 --> 00:30:16,880
Speaker 5: it really seems like they're not going to side with

547
00:30:16,880 --> 00:30:20,160
Speaker 5: the government who was arguing for you know, the most

548
00:30:20,200 --> 00:30:23,160
Speaker 5: backward facing that is looking at whether or not this

549
00:30:23,360 --> 00:30:25,960
Speaker 5: was serious when the person committed the drug crime.

550
00:30:26,520 --> 00:30:28,240
Speaker 2: And so it seems like they're not going to go

551
00:30:28,320 --> 00:30:31,360
Speaker 2: for the most serious or the least, They're going to

552
00:30:31,400 --> 00:30:32,040
Speaker 2: go in the middle.

553
00:30:32,240 --> 00:30:35,400
Speaker 1: Is that the point that Adler was arguing.

554
00:30:35,920 --> 00:30:40,000
Speaker 5: That was so you know, him and another attorney were

555
00:30:40,040 --> 00:30:43,000
Speaker 5: sort of arguing on the same side, but for different standards.

556
00:30:43,280 --> 00:30:45,360
Speaker 5: It looks like that's it is going to win. But

557
00:30:45,440 --> 00:30:47,920
Speaker 5: which standard they choose, you know, it's probably going to

558
00:30:47,960 --> 00:30:50,760
Speaker 5: be something that Justice has sort out in conference. One

559
00:30:50,760 --> 00:30:53,640
Speaker 5: thing I thought was really interesting about the argument that

560
00:30:53,800 --> 00:30:56,320
Speaker 5: Justice course has pointed out is that none of those

561
00:30:56,400 --> 00:31:00,880
Speaker 5: rules are necessarily better for criminal defendants, because you know,

562
00:31:00,960 --> 00:31:04,120
Speaker 5: the laws can change either favorably to defendants or they

563
00:31:04,120 --> 00:31:07,200
Speaker 5: could change unfavorably to them. So you know, it's not

564
00:31:07,320 --> 00:31:10,880
Speaker 5: as if one rule is better for criminal defendants as

565
00:31:10,880 --> 00:31:12,840
Speaker 5: a whole, and as just as Cource has put it,

566
00:31:12,880 --> 00:31:14,400
Speaker 5: you just kind of have to take the bidder with

567
00:31:14,520 --> 00:31:15,120
Speaker 5: the suite.

568
00:31:15,680 --> 00:31:18,640
Speaker 2: Is there a reason why the Arm Career Criminal Act

569
00:31:18,960 --> 00:31:19,560
Speaker 2: comes up?

570
00:31:19,760 --> 00:31:21,360
Speaker 1: There are so many issues about it.

571
00:31:22,080 --> 00:31:24,920
Speaker 5: Yeah, the on Career Criminal Act, I mean every term

572
00:31:24,960 --> 00:31:29,360
Speaker 5: we have, you know, several cases about it. The Supreme Court,

573
00:31:29,480 --> 00:31:32,080
Speaker 5: you know, several years ago. Eventually it just kind of

574
00:31:32,120 --> 00:31:34,880
Speaker 5: threw up its hand and said, look, this is so vague.

575
00:31:35,040 --> 00:31:36,960
Speaker 5: We don't know what it means. It's just it's it's

576
00:31:37,040 --> 00:31:39,720
Speaker 5: unconstitutional to a major part of the Act. You know,

577
00:31:40,200 --> 00:31:42,600
Speaker 5: it's a really serious act. And you and I are

578
00:31:42,600 --> 00:31:45,280
Speaker 5: talking right now about a case for their mandatory minimum

579
00:31:45,480 --> 00:31:47,840
Speaker 5: of fifteen years. That's a lot of time and so

580
00:31:48,280 --> 00:31:50,280
Speaker 5: got a lot of skin in the game to you know,

581
00:31:50,320 --> 00:31:52,760
Speaker 5: bring these cases up to the Supreme Court. But you know,

582
00:31:52,800 --> 00:31:55,040
Speaker 5: another thing that's changing is really the way that we

583
00:31:55,560 --> 00:31:58,880
Speaker 5: view drug crimes and the you know, changes to federal

584
00:31:58,920 --> 00:32:02,920
Speaker 5: and state drug laws are changing pretty rapidly. The Congress

585
00:32:02,960 --> 00:32:05,520
Speaker 5: a couple of years past the bipartisan First Step Act,

586
00:32:05,520 --> 00:32:08,280
Speaker 5: which changed a lot of the you know, these drunk crimes,

587
00:32:08,480 --> 00:32:11,600
Speaker 5: and so a lot of that is tied into the

588
00:32:11,720 --> 00:32:14,880
Speaker 5: Arm Career Criminal Act, which is about firearms but sort

589
00:32:14,880 --> 00:32:18,480
Speaker 5: of touches on every bit of criminal law, particularly drug crimes.

590
00:32:18,520 --> 00:32:20,200
Speaker 5: So I think that's why it's coming up, and I

591
00:32:21,000 --> 00:32:23,200
Speaker 5: don't expect it to end anytime soon.

592
00:32:23,560 --> 00:32:26,480
Speaker 2: Do you think that the you know, the Supreme Court's

593
00:32:26,720 --> 00:32:30,720
Speaker 2: recent expansion of the Second Amendment has an effect on

594
00:32:30,800 --> 00:32:32,880
Speaker 2: this or not at this point.

595
00:32:33,840 --> 00:32:36,560
Speaker 5: Well, you know, that's sort of in the background of

596
00:32:36,640 --> 00:32:39,680
Speaker 5: this case is the Arm Career Criminal Act really does

597
00:32:39,800 --> 00:32:43,080
Speaker 5: deal a lot with individuals who can't possess the firearm

598
00:32:43,080 --> 00:32:46,520
Speaker 5: because they're a felon, and the Supreme Court the case

599
00:32:46,560 --> 00:32:49,560
Speaker 5: that they just heard Rahimi really sort of brought up

600
00:32:49,600 --> 00:32:51,760
Speaker 5: a lot of these issues that the justices are having.

601
00:32:51,840 --> 00:32:55,720
Speaker 5: Is is that, you know, the idea of incapacitating or

602
00:32:55,760 --> 00:32:58,560
Speaker 5: taking away guns from these people is that they're dangerous.

603
00:32:59,080 --> 00:33:02,040
Speaker 5: But if your fellow is for something like you know,

604
00:33:02,320 --> 00:33:05,200
Speaker 5: wire fraud, or your felony is something that's not violent,

605
00:33:05,640 --> 00:33:08,800
Speaker 5: is it really constitutional to take their guns away? You know,

606
00:33:08,840 --> 00:33:11,280
Speaker 5: that's their Second Amendment right, And so you know, this

607
00:33:11,360 --> 00:33:14,320
Speaker 5: is very much in the background of these cases. But

608
00:33:14,520 --> 00:33:16,720
Speaker 5: it wasn't mentioned at all during arguments.

609
00:33:17,080 --> 00:33:20,120
Speaker 2: Kimberly, I really enjoyed your story about the federal public

610
00:33:20,160 --> 00:33:23,560
Speaker 2: defenders because we rarely hear about them and they don't

611
00:33:23,560 --> 00:33:27,200
Speaker 2: get enough credit. Thanks so much. That's Bloomberg Law Supreme

612
00:33:27,240 --> 00:33:30,680
Speaker 2: Court Reporter Kimberly Strawbridge Robinson and that's it for this

613
00:33:30,840 --> 00:33:33,560
Speaker 2: edition of The Bloomberg Law Show. Remember you can always

614
00:33:33,560 --> 00:33:36,480
Speaker 2: get the latest legal news on our Bloomberg Law Podcast.

615
00:33:36,760 --> 00:33:39,800
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

616
00:33:39,960 --> 00:33:45,000
Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And

617
00:33:45,080 --> 00:33:48,120
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

618
00:33:48,200 --> 00:33:51,680
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and

619
00:33:51,720 --> 00:33:53,200
Speaker 2: you're listening to Bloomberg