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

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

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

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

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Speaker 1: and on Bloomberg dot com slash Podcasts. In a speech

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Speaker 1: to the Heritage Foundation last week, Attorney General Jeff's Sessions

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Speaker 1: lamented about a string of court losses, blaming the losing

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Speaker 1: decisions on judicial activism. An activist judge has traditionally been

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Speaker 1: defined as one who goes beyond the law in a

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Speaker 1: given case and in jack's his or her personal opinion

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Speaker 1: or policy preferences or judicial ruins. This improperly takes the

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Speaker 1: policy submit policy making prerogative away from the democratically accountable branches.

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Speaker 1: Joining me is Charles j professor at Indiana University's Mora

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Speaker 1: School of Law. Uh So, people blame the umpire in baseball,

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Speaker 1: the referee in football, and the judge in court. And

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Speaker 1: there have been a slew of opinions against the administration.

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Speaker 1: But is it correct to say that judges who have

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Speaker 1: been ruling against the administration are activists who are making policy?

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Speaker 1: Not necessarily? I think that that that complaint is going

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Speaker 1: to be one that is always in play, and sometimes

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Speaker 1: it's true. But I think it's also important to understand

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Speaker 1: that we're talking about a string of defeats that the

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Speaker 1: administration is faces face that are coming from Republican and

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Speaker 1: Democratic appointees alike, and uh, you know, and I think

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Speaker 1: it's a little simplistic to suggest that the reason that

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Speaker 1: these defeats are occurring is is because of the ideology

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Speaker 1: of the judges involved, rather than because the laws against

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Speaker 1: the administration. Let's talk about in a lot of these cases,

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Speaker 1: issues like sanctuary, these data, transgender service in the military,

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Speaker 1: the administration and federal agencies have changed positions from the

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Speaker 1: prior administration, and they, according to the judges, they haven't

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Speaker 1: given a good enough explanation. Do you agree with that? Yes?

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Speaker 1: I do, And I think that that for the most part,

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Speaker 1: you know, whether whether there is a constitutional justification for

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Speaker 1: changes in policy or not is critical because we are

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Speaker 1: talking about in effect and I'm using discrimination in the

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Speaker 1: small dy sense of the word. But but these are

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Speaker 1: measures that are being felt, uh, disproportionately by folks who

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Speaker 1: are transgendered, folks who are immigrants, folks who are you know,

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Speaker 1: and and the like, and so to the extent that

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Speaker 1: that the equal Protection Clause and the due process clause

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Speaker 1: protects them and it does. Uh. The explanation for why

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Speaker 1: these changes are being made, and whether they're being made

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Speaker 1: for a purpose that falls within the zone of constitutional

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Speaker 1: is is front and center to the judges, to the

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Speaker 1: judge's job. Six years ago you wrote an article for

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Speaker 1: the Cornell Law Review entitled can the rule of law Survived?

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Speaker 1: Judicial politics? So this is not a new concern, I

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Speaker 1: take it then, no, And I think what's important is

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Speaker 1: to understand that that we see a complete, uh, almost

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Speaker 1: disintegration of norms at the Supreme Court appointment process level,

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Speaker 1: where one can fairly argue that Supreme Court justices who

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Speaker 1: hear eighty ideologically charged cases a year are indeed inevitably

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Speaker 1: going to be influenced by their ideology and trying to

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Speaker 1: figure out what the right answer is to open ended

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Speaker 1: questions that are difficult to answer, and that our ideologically charged.

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Speaker 1: What we learn about lower court judges is that it's

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Speaker 1: a very different ballgame. There's nowhere near the evidence that

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Speaker 1: the average judge in the average district is deciding cases

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Speaker 1: in ideological ways because those issues rarely are eies because

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Speaker 1: when they do arise, the judge is subject to the

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Speaker 1: precedent of the Supreme Court. Um. And so yeah, I

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Speaker 1: think we do have a problem with judges being ideological

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Speaker 1: and and the perception that when they are ideological, if

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Speaker 1: there's somehow doing something, uh, that isn't appropriate. And sometimes

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Speaker 1: I think that's true. But to say, and it's something

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Speaker 1: to be worried about, partly because we you know, we

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Speaker 1: we like to pretend that judges aren't ideological at all

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Speaker 1: when they can be. But that sort of issue is

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Speaker 1: most acute when it comes to the Supreme Court, and

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Speaker 1: what what information we have suggests it's a very different

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Speaker 1: different world among the lower court, despite the fact that

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Speaker 1: the justices, all the justice including Chief Justice John Roberts,

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Speaker 1: says of the Supreme Court is not partisan and is independent. Yeah,

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Speaker 1: I mean, I think that's a that's a really good point.

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Speaker 1: I think the problem here is that the Supreme Court

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Speaker 1: sort of seems hell bent to preserve a kind of fiction,

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Speaker 1: which is that ideology doesn't matter to us at all, um.

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Speaker 1: And the reality of it is that when you have

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Speaker 1: five to four decisions over and over again and which

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Speaker 1: you can clearly see voting blocks along ideological grounds. Something

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Speaker 1: is going on there, and I think that a little

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Speaker 1: bit of candor would be would be helpful. I am

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Speaker 1: not suggesting that anyone on the Supreme Court routinely says,

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Speaker 1: you know, I don't give a damn about the law.

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Speaker 1: What I care about is whether you know my my

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Speaker 1: partisan inclinations become law. It seems to me that these

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Speaker 1: folks begin their legal education and law school where they

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Speaker 1: are trained to take law seriously, but they confront these

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Speaker 1: very difficult questions where you know, there are two plausible

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Speaker 1: interpretations of say, the First Amendment, and conservatives and liberals

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Speaker 1: will both be doing their best to apply the law,

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Speaker 1: and they will both be bringing to bear their understanding

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Speaker 1: of the law, their backgrounds, experience, their educations in an

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Speaker 1: effort to figure out which interpretation is direct. And it's

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Speaker 1: inevitable that their ideological orientation, their worldview will influence that

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Speaker 1: that interpretation. And to my way of thinking, that's not

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Speaker 1: something to be ashamed of. It's okay they're doing their

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Speaker 1: best to follow the law. But let's not pretend that

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Speaker 1: ideology has nothing to do with what happens. Because the

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Speaker 1: American public looks at it. They know better. Charles, You've

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Speaker 1: studied this for a long time, and when you look

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Speaker 1: at the Supreme Court, is the court of recent years

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Speaker 1: stuck with the bigger issues because the Congress is not

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Speaker 1: acting as much as it should. Sometimes that can be

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Speaker 1: the case. I think it's it's more to me, it's

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Speaker 1: more likely. Back in the nineteenth century, the Supreme Court

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Speaker 1: had an average of cases on its docket at a

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Speaker 1: given point in time, and most of those were routine,

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Speaker 1: grinded out correct the errors of the lower court kinds

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Speaker 1: of cases. So if you had fifty uh routine cases

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Speaker 1: and fifty controversial ones, it created the perception that the

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Speaker 1: Court was basically just doing its job. Over the years,

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Speaker 1: the Court has limited jurisdiction to cases it decides to hear,

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Speaker 1: and right now, if here's fewer than eight cases a year,

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Speaker 1: and those tend to be the ones where the circuits

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Speaker 1: can't agree, where the issues are are very heavily charged,

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Speaker 1: and so I think it creates that's what really creates

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Speaker 1: the perception that the Court is a largely ideological body,

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Speaker 1: even though even though within that sphere, half the cases

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Speaker 1: are decided by consensus, half the cases are unanimous decisions,

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Speaker 1: but we don't hear about those because they're too boring,

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Speaker 1: you know, Thanks so much. That's Charles j. He's a

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Speaker 1: professor at Indiana University Marris School of Law. And Chief

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Speaker 1: Justice John Roberts and Justice Elena cake And have also

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Speaker 1: pointed out that many of the decisions of the court

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Speaker 1: are not five to four, but they are on a

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Speaker 1: lot of mundane issues, a lot of administrative law things

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Speaker 1: like that. On Priday, the Justice Department brought the first

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Speaker 1: criminal charges over meddling in this year's mid term elections,

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Speaker 1: charging a Russian woman with conspiring to interfere in both

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Speaker 1: the twenty sixteen elections and the midterms. Speaking with CBS News,

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Speaker 1: former Assistant Attorney General John Carlin said Russia is spending

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Speaker 1: millions to undermine US elections. Joining me is Brad Moss,

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Speaker 1: a partner at mark Zad so Brad. These charges were

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Speaker 1: brought by prosecutors in the Eastern District of Virginia Night,

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Speaker 1: not by Mueller's prosecutors. But she was an accountant for

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Speaker 1: the company owned by one of the Russian oligarchs indicted

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Speaker 1: by Mueller in February. So if you can keep track

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Speaker 1: of that, tell us more about the charges and this

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Speaker 1: seeming disconnect between which office is handling them. Sure, so

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Speaker 1: the charges are actually rather simple of straightforward. It's conspiracy

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Speaker 1: to defraud the United States. That's a federal provision in

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Speaker 1: criminal law that allows the US government to prosecute someone

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Speaker 1: if they find a way to interfere in the government's

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Speaker 1: lawful administration of its duties, in this case, UH administering

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Speaker 1: federal elections and the ability for the American voter to

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Speaker 1: elect who's going to represent them in Congress and as

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Speaker 1: the president. So with respect this particular foreign national, this UH,

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Speaker 1: an individual whose name I cannot pronounce properly. Kusha, Yeah,

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Speaker 1: your Nova, We'll try that. I will let you handle

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Speaker 1: out absolutely with respect that with sex Elena, she was

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Speaker 1: basically the accountant. She was the bookkeeper for this entire

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Speaker 1: project being run out of Russia that was working with

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Speaker 1: the Russian oligarch who had ties to the Kremlin. And

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Speaker 1: you've had these companies and had states concord management that

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Speaker 1: have also been brought into some of the litigation brought

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Speaker 1: by the Muller team for crimes all tied all linked

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Speaker 1: to this issue with the Russian disinformation campaign both in

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Speaker 1: which is when it was in full force, but also

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Speaker 1: what they've continued to do over the last two years

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Speaker 1: leading up to the terms that are now in fifteen days,

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Speaker 1: and it's just extensive effort to create proxy service, to

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Speaker 1: create fake accounts, to spread disinformation, anything and everything they

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Speaker 1: can do to defraud the United States to prevent American

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Speaker 1: voters from having correct and accurate information when they go

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Speaker 1: to the voting boats fifteen days and decide who's going

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Speaker 1: to represent them in Congress. So that was who they

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Speaker 1: brought the charges on it. She's the she's the money,

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Speaker 1: She's the one who handled ledgers, who itemized everything that

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Speaker 1: this entire team of Russian trolls was overseeing. And the

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Speaker 1: reason it wasn't done by Mueller's team as far as

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Speaker 1: I can tell, and this goes back to the d

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Speaker 1: o J doing things properly, is because of the narrow

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Speaker 1: scope of his mandate. This doesn't necessarily fall specifically within

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Speaker 1: the question of whether there was collusion between the Trump

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Speaker 1: campaign and the Russian nationals. So when he came across

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Speaker 1: the information he had, it was filtered back up to

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Speaker 1: the d o J leadership. They said, no, we'll handle

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Speaker 1: this one separately. You keep doing what you're doing, and

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Speaker 1: they handed it off to the Eastern District of Virginia

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Speaker 1: to prosecute. Let's discuss the timing. After all the talk

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Speaker 1: we've heard about the Justice Department refraining from taking actions

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Speaker 1: around the mid terms which could influence them, you have

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Speaker 1: this indictment coming less than three weeks before the mid terms.

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Speaker 1: Is there a message here? Would? I would be hesitata

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Speaker 1: to read too much into it. So the unwritten policy

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Speaker 1: which referred to is that they won't bring indictments deck

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Speaker 1: that possibly interfere in the election, And that certainly is

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Speaker 1: probably why Robert Mueller hasn't taken any action against Roger Stone,

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Speaker 1: which everyone's pretty much assuming will be indicted sometime after

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Speaker 1: the election for his article criminal actions and lead up

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Speaker 1: to sixteen. That's why he hasn't gone after anyone else,

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Speaker 1: particularly Uh, any of the other individuals who may or

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Speaker 1: may not have been willingly coordinating with these Russian trolls.

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Speaker 1: What he did, what he's limited this to, sorry, what

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Speaker 1: the Eastern District limited it to was only the Russian nationals.

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Speaker 1: They did not bring anything against the U S national

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Speaker 1: anything that could possibly influence the way people look at it.

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Speaker 1: If it had been somewhat tied to the Trump campaign,

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Speaker 1: if it had been a Trump associated advice or even

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Speaker 1: a peripheral player. They specifically limited only to a foreign national,

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Speaker 1: with the idea in mind that that would not play

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Speaker 1: upon people's views of the president and the party over

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Speaker 1: which he presides one way or the other. So the

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Speaker 1: Justice Department, the Office of the Director of National Intelligence,

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Speaker 1: the FBI, and the Department of Homeland Security all joined

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Speaker 1: together in a press release talking about foreign interference in

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Speaker 1: US elections being a threat to democracy. Is anything actually

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Speaker 1: being done about the mid terms and possible actions like

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Speaker 1: this one? I think that they're all kind of on

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Speaker 1: higher alert than they were in twenty six game. I mean, look,

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Speaker 1: even you know, the Obama folks will say they've not

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Speaker 1: caught blind They were blindside in twenty sixteen. They didn't

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Speaker 1: quite see it coming the way it did. Everybody knew

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Speaker 1: that there's always you know, attempts by foreign players too,

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Speaker 1: you know, so disinformation and to interfere in the elections,

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Speaker 1: but they saw in was on a level they've never

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Speaker 1: seen before. Did not anticipate. They were caught flat footed,

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Speaker 1: and so, you know, even putting the politics aside, in

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Speaker 1: the president's commentary about whether or not there's actually meddling

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Speaker 1: or whether it was with collusion or anything like that.

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Speaker 1: The agencies involved, DHS, C, I, A, N, s A,

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Speaker 1: they're all very much on high alert watching out for this.

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Speaker 1: Whether or not it is going to be enough remains

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Speaker 1: to be seen. There certainly is a lot of concern.

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Speaker 1: There's been a lot of very good reporting about how

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Speaker 1: the states haven't done enough to shore up their election systems.

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Speaker 1: A lot of them have continued to be vulnerable to

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Speaker 1: exploitation and penetration. Side that they're Brad, we'll pick up

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Speaker 1: with this, I'm sure again before the mid terms. That's

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Speaker 1: Brad mass Apartment Mark say thanks for listening to the

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

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Speaker 1: show on Apple podcast, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg m