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

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Speaker 2: Hunter Biden is now the first child of a sitting

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Speaker 2: president to be convicted of a crime. Special Counsel David Weiss,

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Speaker 2: who brought the federal case against the president's son for

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Speaker 2: lying on a form to get a gun, defended his prosecution,

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Speaker 2: saying the case was not about prosecuting addiction.

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Speaker 3: This case was about the illegal choice's defendant made while

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Speaker 3: in the throes of addiction, his choice to lie on

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Speaker 3: a government form when he bought a gun, and the

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Speaker 3: choice to then possess that gun.

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Speaker 2: But several of the jurors who found Biden guilty of

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Speaker 2: all three felony charges said they thought the case should

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Speaker 2: never have been brought to trial.

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Speaker 1: A waste of text fer scholars. I think they should

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Speaker 1: have victus.

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Speaker 2: Find joining me is former Manhattan prosecutor Duncan Levin of

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Speaker 2: leven In Associates. Doug and the Special Council said the

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Speaker 2: prosecution was about the rule of law, but it's not

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Speaker 2: a law that many people in similar circumstances are prosecuted for.

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Speaker 4: It's very hard to escape the politics of this case.

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Speaker 4: The case that shouldn't have gone to trial. In the

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Speaker 4: first place, this was supposed to be resolved on a

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Speaker 4: pleaded two misdemeanor tax charges. He's facing unrelated tax charges

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Speaker 4: that are coming up for trial in September in California,

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Speaker 4: basically related to a million four in foreign business income,

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Speaker 4: and he's facing three felony counts there and six other

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Speaker 4: misdemeanor counts, and they're, you know, pretty serious charges, their

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Speaker 4: evasion of an assessment and filing false returns and not

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Speaker 4: paying his taxes. And so this was all supposed to

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Speaker 4: be wrapped up with a plea deal that was going

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Speaker 4: to resolve in absolutely no jail time. And the gun

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Speaker 4: charges which just went to trial and that he was

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Speaker 4: just convicted on, was supposed to be resolved with pre

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Speaker 4: trial diversions, so no real penalty other than having no

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Speaker 4: firearms and staying drug free for two years. When that

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Speaker 4: plea deal fell apart, it went to trial. And this

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Speaker 4: is a trial that really shouldn't have been. It fell apart,

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Speaker 4: I think in some part because of politics, maybe in

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Speaker 4: large part because the politics. The judge, who is a

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Speaker 4: Trump appointee, Judge Norieika, basically felt the choosing put in

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Speaker 4: a position where she was going to have to decide

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Speaker 4: whether hunter Biden was in compliance with the diversion agreement,

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Speaker 4: because the parties didn't really want DOJ to be the

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Speaker 4: party in charge of whether to revoke his compliance or not,

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Speaker 4: given the fact that Donald Trump couldn't win the presidency,

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Speaker 4: and hunter Biden did not want Justice Department under a

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Speaker 4: President Trump in his next term if he won to

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Speaker 4: be in charge of deciding whether he was compliant with

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Speaker 4: the pre trial diversions. And so they tried to put

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Speaker 4: this on the judge and said, well, you should be

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Speaker 4: the one to decide, and Jude Norieka said, well, I'm

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Speaker 4: not going to decide that. So that's why the plea

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Speaker 4: deal fell apart. But the plea also fell apart in

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Speaker 4: large measure because of politics. The congressional Republicans were saying

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Speaker 4: it was a sweetheart deal and calling for the judge

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Speaker 4: to deny it. And I think that it may have

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Speaker 4: been window dressing that it fell apart because Judge Norrieka

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Speaker 4: didn't want to be in charge of deciding whether hunter

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Speaker 4: Biden was in compliance. It may have really fallen apart

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Speaker 4: because of political pressure. But I think this was a

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Speaker 4: comment that was heard by a lot of the jurors

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Speaker 4: who were interviewed after the trial, they said that they

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Speaker 4: felt that the case was strong, that the evidence was compelling,

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Speaker 4: but they felt that this was the case that was

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Speaker 4: really unnecessary for the government to bring.

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Speaker 5: That.

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Speaker 4: All being said, I think that if you're going to

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Speaker 4: put in a case like this, the witnesses that they

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Speaker 4: called were necessary witnesses. They were, at the core of it,

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Speaker 4: trying to prove that he was a user where addicted

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Speaker 4: to controlled substance at the time that he filled out

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Speaker 4: this form to buy the gun, and they had to

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Speaker 4: call witnesses who were going to testify to that.

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Speaker 2: And what about bringing through are you felony charges all

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Speaker 2: connected with lying on the gun form in a case

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Speaker 2: where there was no crime committed with a gun.

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Speaker 4: The politics of this case are unmistakable because the charges

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Speaker 4: themselves are ones that are rarely, if ever brought. Lying

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Speaker 4: to a gun dealer is brought, probably fewer than three

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Speaker 4: hundred times a year, and that's out of twenty five

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Speaker 4: to thirty million background checks that are conducted around the

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Speaker 4: nation every single year. The false claims on a federal

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Speaker 4: firearms application is a form called the ETF four four

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Speaker 4: seven three. I have never heard of a case being

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Speaker 4: brought as a standalone case for lying on a federal

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Speaker 4: firearms application never standalone. It's usually brought in connection with

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Speaker 4: another more serious crime, maybe somebody illegally using a gun

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Speaker 4: or a felon in possession. This is a gun that

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Speaker 4: was never used, it was never loaded, and Hunter Biden

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Speaker 4: possessed it for eleven days, just to put it in perspective,

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Speaker 4: and he possessed it from October twelfth to October twenty third,

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Speaker 4: twenty eighteen. It was possessed for an incredibly short period

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Speaker 4: of time. And the other sort of I think mitigating

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Speaker 4: factor here is that this was a gun that Hunter

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Speaker 4: Biden possessed for eleven days and was actually thrown into

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Speaker 4: a dumpster by his then girlfriend who was also his

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Speaker 4: sister in law, Hailey Bidens. And when he came to

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Speaker 4: find out that it was thrown into the dumpster, he

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Speaker 4: took steps to alert the authority to it who found it,

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Speaker 4: and it was started as a case because they found

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Speaker 4: the gun in the dumpster. This was a case that

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Speaker 4: really should never have gone to trial and got completely

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Speaker 4: derailed because of the politics, to a point where the

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Speaker 4: jurors were forced to sit through this extremely emotional testimony

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Speaker 4: that really, I think at the end of the day,

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Speaker 4: served nobody and resulted in a guilty verdict that you know,

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Speaker 4: maybe scored the protcutors some points and maybe had some

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Speaker 4: political points, but really was utterly away of everybody's time.

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Speaker 2: The three jurors who spoke and said that they had

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Speaker 2: no choice but to find him guilty, but they question

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Speaker 2: whether the criminal case should.

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Speaker 1: Ever have been brought.

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Speaker 2: One said the case seem like a waste of taxpayer dollars.

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Speaker 2: Aren't those the jurors that the defense was targeting to

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Speaker 2: nullify to know, to say this case isn't worth it,

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Speaker 2: We're not going to find him guilty.

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Speaker 4: The jury obviously took the case very seriously, and it

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Speaker 4: sounds like politics really did not play a role in it,

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Speaker 4: and they didn't nullify, and the defense is clearly not

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Speaker 4: allowed to argue jury nullification to them. Remember, this is

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Speaker 4: a defendant who is well known to everybody in Delaware,

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Speaker 4: particularly the jurors walked through the lobby of the courthouse

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Speaker 4: every day to get to the trial, and the defendant's

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Speaker 4: father's photograph is hanging in the lobby. This is somebody

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Speaker 4: who is well known. The Biden name is well known.

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Speaker 4: The First Lady of the United States is sitting in

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Speaker 4: attention at the trial. And they took their job seriously.

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Speaker 4: They didn't nullify. They looked at the evidence and they convicted.

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Speaker 4: The case itself was strong, and the defense really just

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Speaker 4: that at the time he filled out this ATS form

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Speaker 4: at the gun dealership, he was not at the moment

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Speaker 4: he filled the form out addicted to drugs. But there

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Speaker 4: was evidence that you know, right before and right after

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Speaker 4: he was, you know, texting with a drug dealer, and

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Speaker 4: that he was clearly addicted to drugs. You know, this

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Speaker 4: is a case that was a waste of taxpayer dollars.

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Speaker 4: On the other hand, the government was kind of forced

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Speaker 4: into going a trial on it when the plea deal

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Speaker 4: fell apart. So everybody's right here. It's the case that

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Speaker 4: was strong. The jury did a very thorough job and

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Speaker 4: obviously took the evidence very seriously. They didn't nullify because

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Speaker 4: the case it self was worthy of a conviction. It's

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Speaker 4: a case where, you know, jurors looking at it without

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Speaker 4: a political lens and without looking through the lens of nullification,

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Speaker 4: would convict because it was a strong case. There are

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Speaker 4: a lot of cases that you could question the motives

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Speaker 4: behind prosecutors bringing them in the first place. This case,

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Speaker 4: I questioned the motives of the special prosecutor bringing the charges, frankly,

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Speaker 4: because these charges are never brought as a standalone case

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Speaker 4: without something more serious. So I do question whether the

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Speaker 4: case was brought because it was Hunter Biden. But at

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Speaker 4: the end of the day, it's unlikely to result in

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Speaker 4: any jail time, and I think the more serious charges

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Speaker 4: that he's facing are in September, with these tax crimes,

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Speaker 4: which we're supposed to be disposed of without any jail time,

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Speaker 4: and now he actually has some significant exposure to an

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Speaker 4: incarceratory sentence in September if he's convicted on those charges.

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Speaker 1: Well, I was surprised.

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Speaker 2: The special counsel made a statement afterwards, and he said.

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Speaker 1: This case wasn't about addiction.

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Speaker 2: It was about the illegal choices the defendant made while

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Speaker 2: in the quote throes of addiction, which sounds contradictory to me.

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Speaker 2: But how unusual that he has another case pending and

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Speaker 2: he decided to make a public statement.

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Speaker 4: I think it's problematic any time a prosecutor or someone

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Speaker 4: in law enforcement speaks out of court, and this was

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Speaker 4: one where I think his words were poorly chosen and

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Speaker 4: frankly wrong. I mean, this is a case that is

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Speaker 4: very sad, and it's a sad case about addiction. You know,

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Speaker 4: people who are addicted to all sorts of things, and

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Speaker 4: it doesn't mean they shouldn't be held criminally responsible. And

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Speaker 4: it's a legally correct verdict. It's not that it's wrong.

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Speaker 4: The verdict itself was based on evidence. It's legally correct.

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Speaker 4: But this case is a human tragedy and to say

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Speaker 4: that it's anything other than that is just flat out wrong.

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Speaker 2: Is there anything the defense could have done to change

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Speaker 2: the verdict? I mean, should Hunter Biden, despite the problems,

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Speaker 2: have taken the stand.

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Speaker 4: So Judge j Rieka really, I thought, went out of

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Speaker 4: her way to hobble the defense, and I would describe

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Speaker 4: part of it to politics, and given the posture of

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Speaker 4: the case, fact that she scuttled the plea deal. There

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Speaker 4: were two instances where the defense tried to get very

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Speaker 4: evidence into the trial. One of which is that this

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Speaker 4: ATS four four seven three form was altered. It was

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Speaker 4: altered by the gun dealer at some point after the fact,

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Speaker 4: and that is because it is a requirement when the

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Speaker 4: gun dealer has this form filled out that they get

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Speaker 4: identifications that has the purchaser's address on it. At the

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Speaker 4: time that they got the form in the first place,

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Speaker 4: they got Hunter Biden's passport, which did not have his

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Speaker 4: address on it, and later at a point they filled

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Speaker 4: out the form again to say that they'd gotten his

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Speaker 4: driver's life. The judge barred the defense from introducing evidence

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Speaker 4: of the altered form and said that it was a

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Speaker 4: quote unquote conspiracy theory and unsupported rhetoric. I find that

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Speaker 4: hard to believe and just a ruling that really has

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Speaker 4: no merit, because this is a case all about who

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Speaker 4: filled out the form and when they filled out the form.

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Speaker 4: The fact that the form was altered, for the fact

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Speaker 4: is very key evidence, and frankly, I think is some

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Speaker 4: grounds for appeal that that was not allowed to be

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Speaker 4: introduced at trial. The other thing is that the defense

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Speaker 4: tried to call a Columbia psychiatrist named doctor l Eiun

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Speaker 4: to testify at trial about hunter Biden's state of mind

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Speaker 4: at the time that he filled out the form. There

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Speaker 4: is a knowledge requirement here, and the defense was trying

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Speaker 4: to show to the jury that at the time he

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Speaker 4: filled out the form he did not believe himself to

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Speaker 4: be an addict, and I think there's some support to

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Speaker 4: that in the evidence, because Hunter Biden had just finished

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Speaker 4: an eleven day rehab program and also was living with

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Speaker 4: a sober companion. And I think that anyone who's been

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Speaker 4: through addiction or understands addiction knows that you take it

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Speaker 4: one day at a time, and so somebody who is

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Speaker 4: sober for even one day or two days or eleven

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Speaker 4: days may not consider themselves to be an addict. And

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Speaker 4: it's something that I think the defense should have been

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Speaker 4: allowed to argue and was precluded from arguing, and that

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Speaker 4: really gutted the defense case in many ways. So they

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Speaker 4: were really left with this very narrow argument that at

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Speaker 4: the time of filling out the form he was not

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Speaker 4: addicted to drugs, because there's no evidence he was doing

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Speaker 4: drugs that day. So I think the judgment really out

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Speaker 4: of her way to recap the defense, and so they

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Speaker 4: do have some appeals here that they can pursue as

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Speaker 4: to whether Hunter Biden should have testified. The conventional wisdom

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Speaker 4: is that it is never a good idea for a

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Speaker 4: defendant to testify. In this particular case, it was difficult

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Speaker 4: for him because of these pending tax charges. The judge

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Speaker 4: had again made a ruling that the prosecutors would be

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Speaker 4: allowed to cross examine him on these tax charges, which

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Speaker 4: would have exposed him to incredibly grave legal danger in

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Speaker 4: this trial that he had coming up. So there was

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Speaker 4: really no choice but to make the strategic decision not

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Speaker 4: to testify even if he could have testified convincingly about

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Speaker 4: these charges that would have put him at grave legal

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Speaker 4: risk with his upcoming trial in September coming.

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Speaker 2: Up next on the Bloomberg Law Show, I'll continue this

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Speaker 2: conversation with Duncan Levin talk more about the possible appellate

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Speaker 2: issues and the next trial for Hunter Biden.

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Speaker 1: This is Bloomberg.

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Speaker 2: Now that Hunter Biden has been convicted of three felony

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Speaker 2: gun charges, he faces sentencing and another trial in California

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Speaker 2: on tax charges in September. I've been talking to former

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Speaker 2: Manhattan prosecutor Duncan Levin of Leven and Associates. I want

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Speaker 2: to go over some of the other appellate issues they

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Speaker 2: may be able to raise. They may use some of

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Speaker 2: the same arguments they made prior to trial to try

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Speaker 2: to get the case dismissed.

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Speaker 1: They argued the gun law.

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Speaker 2: Was unconstitutional following a ruling by the US Supreme Court

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Speaker 2: in twenty twenty two, the New York case that expanded

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Speaker 2: gun rights, and the Fifth Circuit has struck down the

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Speaker 2: law barring users of illegal drugs from possessing firearms, ruling

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Speaker 2: it was unconstitutional. So could that be a good appellate argument?

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Speaker 4: I think this is a great suppellent argument, and we

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Speaker 4: can all expect to see it. Frankly, it may at

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Speaker 4: some point win. At the point that it wins, however,

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Speaker 4: he will have already been branded a sellon and done

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Speaker 4: time if he does time or served out a sentence,

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Speaker 4: because this is unlikely to wind his way through the

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Speaker 4: course anytime soon. But if you look at the statute itself,

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Speaker 4: which is nine twenty two G. Three, it basically makes

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Speaker 4: it unlawful to possess a gun if you are a

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Speaker 4: user or addicted to any controlled substance. And the terms

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Speaker 4: are ill defined. And you know, anyone who's gone through

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Speaker 4: addiction and is understanding of the challenges facing addicts knows

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Speaker 4: that this is something that is a day by day struggle.

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Speaker 4: And the term addict is one that is very loaded,

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Speaker 4: and the term user is one that's very loaded. And

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Speaker 4: it's unclear whether it means that you have to be

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Speaker 4: a user at the time you're filling out the form,

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Speaker 4: or what that even means. If somebody does crack or

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Speaker 4: some controlled substance and two days later goes to fill

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Speaker 4: out this application, are they a user? Are they an addict?

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Speaker 4: The terms are ill defined, They're very vague, and I

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Speaker 4: think as a result of it, the statute is really

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Speaker 4: subject to being struck down as unconstitutional.

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Speaker 2: They also argued that the plea deal that he struck

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Speaker 2: last year remains in effect even though prosecutors rescinded it.

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Speaker 4: A plea deal is not a plea deal until it

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Speaker 4: is approved by all the parties and approved by the judge,

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Speaker 4: And in this case, the judge refused to approve it.

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Speaker 4: And just because the parties agree on it, it's all

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Speaker 4: still subject to approval by the United States District Court.

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Speaker 4: And in this case, Judge Noria got struck it down.

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Speaker 4: And so just because it was a signed plea agreement

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Speaker 4: between the parties, it is not so ordered, as they say,

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Speaker 4: until the judge orders it. So I don't think that

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Speaker 4: argument is likely to carry any weight, even though it

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Speaker 4: was something that was agreed upon by the Department of Justice,

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Speaker 4: and by Hunter Biden with his attorneys. Now, I do

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Speaker 4: think that that is going to play into sentencing, because

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Speaker 4: it's hard to believe that when the Department of Justice

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Speaker 4: feels it is appropriate for a defendant to get pre

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Speaker 4: trial diversion and no jail time, for them to turn

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Speaker 4: around and issue some kind of trial penalty. This is

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Speaker 4: a trial that Hunter Biden did not want, he did

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Speaker 4: not ask for, It was poisted upon him, and so

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Speaker 4: I don't think there should be any trial penalty. And

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Speaker 4: as a result of the Department of Justice agreeing that

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Speaker 4: this case should be subject to pre trial diversion, I

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Speaker 4: would find it shocking if they now turned around and

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Speaker 4: asked for any kind of jail time on this Really, do.

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Speaker 2: You really think that this Special Council, with all the

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Speaker 2: political pressures, won't ask.

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Speaker 1: For jail time.

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Speaker 4: I think it's going to be shocking if he does

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Speaker 4: ask for jail time, given the fact that they have

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Speaker 4: also already basically offered him no jail time. This is

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Speaker 4: a trial that he did not ask for, he did

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Speaker 4: not want, it was poisted upon him, and I think

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Speaker 4: if the Special Council turns around and asks for jail

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Speaker 4: time now, his politics will be showing.

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Speaker 1: Fair enough, Let's turn to what happens next.

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Speaker 2: There's the probation interview, the sentencing memos, and Biden friends

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Speaker 2: and families sending in letter after letterature the judge. Which

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Speaker 2: part of that is most important.

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Speaker 4: The probation interview is meant to give the judge a

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Speaker 4: sense of who he is as a person that may

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Speaker 4: not emerge from the trial, and the same thing for

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Speaker 4: the sentencing memo. In large measure, it's meant to educate

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Speaker 4: the judge on who a defendant is, who their friends are,

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Speaker 4: to character references and explain any mitigating circumstances. Here, the

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Speaker 4: judge is very familiar with this defendant, and so it

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Speaker 4: may be of less weight to have a probation officer

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Speaker 4: interviewing him and giving any information to the court. A

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Speaker 4: parallel to be drawn to Donald Trump and his criminal

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Speaker 4: hush money trial in New York, where there was a

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Speaker 4: probation interview recently. These are probation interviews that are highly

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Speaker 4: vetted people, and so it may not sway the judge,

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Speaker 4: who's likely very familiar. But this judge may see how

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Speaker 4: Biden is an addict, and that is how she sees

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Speaker 4: him and views him, and I think that both the

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Speaker 4: sentencing memo process and the probation interview are meant to

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Speaker 4: give a much more holistic view of some of the

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Speaker 4: good things he's done, the work he's done his family,

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Speaker 4: and educates her on all of the other parts of

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Speaker 4: his personality and being that have not come through so

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Speaker 4: far in any of the brief thing in the trial.

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Speaker 2: So he technically faces twenty five years. Do you think

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Speaker 2: he'll even be sent to prison.

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Speaker 4: I think he will not be sent to prison on

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Speaker 4: this case because the case merits no prison. It's a

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Speaker 4: case involving nothing violent. Even though there was a gun.

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Speaker 4: This was a gun that he possessed for eleven days.

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Speaker 4: It was never loaded. The charges are never really brought

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Speaker 4: a standalone cases. He had no other offenses. This is

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Speaker 4: his first criminal offense. The cases are brought fewer than,

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Speaker 4: as I say, three hundred times a year out of

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Speaker 4: twenty five million background checks. It's a very minor case

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Speaker 4: in terms of the federal sentencing guidelines, and DOJ is

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Speaker 4: really already on record with their recommendation to the judge

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Speaker 4: that he should not go to jail over this. Frankly,

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Speaker 4: over the tax case either, there was no jail requirement involved,

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Speaker 4: and so there's been some outcry from Congressional Republicans that

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Speaker 4: he should see jail time, but DOJ and the parties

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Speaker 4: have already all been agreed that he should not see

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Speaker 4: jail time in this case. I will find it highly

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Speaker 4: unlikely that prosecutor is going to turn around and all

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Speaker 4: of a sudden recommend it. And the only thing calling

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Speaker 4: for that is the outcry and public political pressure from

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Speaker 4: Congressional Republicans. So that's really the only thing mitigating in

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Speaker 4: favor of any kind of jail term for this case.

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Speaker 2: So he's going to trial in September in California. The

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Speaker 2: judge said sometime within the next four months. I mean,

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Speaker 2: should this sentencing be held off until the case in

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Speaker 2: California is over? Is there any kind of coordination?

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Speaker 4: Now? The cases are standalone, they're in different courts, different judges,

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Speaker 4: and I think it's unlikely that he's going to serve

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Speaker 4: any jail time anyway. So the process will probably move

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Speaker 4: along on two different schedules. And this is not the

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Speaker 4: first time there's been a defendent with multiple cases open. Obviously,

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Speaker 4: I'm on't familiar with the fact that Donald Trump has

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Speaker 4: four cases open at this time, and he's being sentenced

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Speaker 4: in the New York case in the next few weeks.

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Speaker 4: That is not going to be waiting for any of

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Speaker 4: the other cases to wind their way through the court system.

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Speaker 4: So no one knows what's going to happen with the

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Speaker 4: California case. Maybe it's put off for more months, or

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Speaker 4: maybe it actually gets tried on time. But they operate

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Speaker 4: very independently from one another, and I think that you'd

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Speaker 4: likely see him get sentenced on this case either before

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Speaker 4: contemporaneous to that September case.

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Speaker 2: Thanks so much for sharing your insights with us.

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Speaker 1: Duncan.

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Speaker 2: That's former Manhattan prosecutor Duncan Levin. Coming up next on

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Speaker 2: the Bloomberg Lawn Show, we're going to be looking at

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Speaker 2: the controversial case the Supreme Court has yet to decide on.

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Speaker 2: I'm June Grosse and you're listening to Bloomberg. The Supreme

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Speaker 2: Court is moving at a glacial pace. With just a

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Speaker 2: few weeks left in the term, Nearly half of the

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Speaker 2: cases argued remain undecided, and among those are the expected

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Speaker 2: blockbusters on abortion, guns, and presidential immunity, where we may

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Speaker 2: see ideological splits on the court. Joining me is someone

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Speaker 2: who is watching for those decisions. Bloomberg News Supreme Court

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Speaker 2: reporter Greg Storr, Greg, the justices are going to be

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Speaker 2: handing down these high stakes cases in the midst of

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Speaker 2: so much controversy for the Court. In your time covering

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Speaker 2: the Court, have you ever seen the court embroiled in

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Speaker 2: so many controversies and such turmoil.

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Speaker 5: Well, let's may set a new standard in terms of

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Speaker 5: the variety of issues that are going on with the

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Speaker 5: Supreme Court. You have issues about justices or perhaps their wives,

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Speaker 5: flying flags that are tied to ideological causes. You have

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Speaker 5: secret tape recordings that people are making at the events.

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Speaker 5: You have calls for recusal, and all that's happening against

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Speaker 5: the backdrop of some very big, ideologically divisive cases, including

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Speaker 5: cases involving Donald Trump.

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Speaker 2: They're moving very, very slowly. I thought for sure last

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Speaker 2: Thursday one of the big cases we've been waiting for

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Speaker 2: would come out. So we're about two and a half

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Speaker 2: weeks till the end of the term. How many cases

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Speaker 2: are outstanding.

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Speaker 5: It depends on how you count them, but it's in

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Speaker 5: the upper twenty. There are a few cases that may

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Speaker 5: come out as one opinion or may come out as

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Speaker 5: two opinion. And that's about half their docket. And you know,

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Speaker 5: of those twenty something cases, you know a good half

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Speaker 5: of them are I would say big news. And you

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Speaker 5: know cases that we have Bloomberg will probably for those

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Speaker 5: who are Bloomberg subscribers, will be putting red headlines out on.

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Speaker 5: So there's gonna be a lot going on in the

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Speaker 5: next couple of weeks.

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Speaker 1: So let's talk about some of the ones that are outstanding.

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Speaker 2: A lot of folks right now is on the case

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Speaker 2: involving Trump's bid for presidential immunity, which is delaying the

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Speaker 2: Special Council's case against him for election interference.

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Speaker 1: That one, maybe we'll see the last day of the term.

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Speaker 1: It's expected to be very controversial.

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Speaker 5: Yeah, that may well be one that comes out at

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Speaker 5: the very very end. Of course, it was the last

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Speaker 5: case that was argued. They actually added a special argument

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Speaker 5: day to hear that case. The arguments suggested the court

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Speaker 5: was prepared to say that Donald Trump and other former

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Speaker 5: presidents do have some immunity from criminal charges, and they

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Speaker 5: might well kick this case back to the lower court

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Speaker 5: to look more closely at these allegations, see which ones

440
00:23:42,400 --> 00:23:46,760
Speaker 5: involve official actions by the president and therefore he has immunity,

441
00:23:46,800 --> 00:23:49,760
Speaker 5: and which ones involve private actions that might be the

442
00:23:49,760 --> 00:23:55,919
Speaker 5: subject of an indictment, and you know, barring something highly unexpected,

443
00:23:56,440 --> 00:23:59,520
Speaker 5: that will essentially run out the clock until the November

444
00:23:59,520 --> 00:24:02,679
Speaker 5: election and make it impossible for this case to go

445
00:24:02,720 --> 00:24:03,879
Speaker 5: to trial before the election.

446
00:24:04,480 --> 00:24:07,119
Speaker 2: Greg it seems to me that the Justices just don't

447
00:24:07,160 --> 00:24:12,440
Speaker 2: care at all about appearing apolitical anymore, because in December,

448
00:24:12,840 --> 00:24:16,720
Speaker 2: Special Counsel Jack Smith asked them to expedite the case,

449
00:24:17,200 --> 00:24:19,679
Speaker 2: and then they waited for weeks and they heard it

450
00:24:19,720 --> 00:24:22,479
Speaker 2: on the last argument day of the term. I mean,

451
00:24:22,520 --> 00:24:26,280
Speaker 2: do they have any concern for the appearance that they're

452
00:24:26,400 --> 00:24:28,920
Speaker 2: presenting of being political.

453
00:24:29,760 --> 00:24:31,399
Speaker 5: I think the answer to that is that some of

454
00:24:31,440 --> 00:24:34,159
Speaker 5: them care a lot more than others. That's certainly something

455
00:24:34,240 --> 00:24:37,639
Speaker 5: that Chief Justice John Roberts has indicated he cares a

456
00:24:37,640 --> 00:24:39,680
Speaker 5: lot about. But he's just one vote on the court

457
00:24:39,720 --> 00:24:43,399
Speaker 5: and he doesn't necessarily control what they do. You know,

458
00:24:43,440 --> 00:24:47,480
Speaker 5: the Trump case was complicated in part because nobody was

459
00:24:47,520 --> 00:24:51,080
Speaker 5: actually talking about the impact on this upcoming election. Jack

460
00:24:51,119 --> 00:24:53,360
Speaker 5: Smith certainly made the case that we need to get

461
00:24:53,359 --> 00:24:57,080
Speaker 5: this resolved quickly, but nobody was actually asking the Supreme

462
00:24:57,160 --> 00:25:00,919
Speaker 5: Court to ensure that there could be a tr before

463
00:25:00,960 --> 00:25:05,399
Speaker 5: the election, so the court certainly could have handled it differently.

464
00:25:06,040 --> 00:25:08,520
Speaker 5: We may learn a lot more about what was going

465
00:25:08,560 --> 00:25:11,159
Speaker 5: on behind the scenes when we finally get some opinion

466
00:25:11,200 --> 00:25:13,600
Speaker 5: from the Court by the end of the month. You know,

467
00:25:13,680 --> 00:25:15,879
Speaker 5: my guess is we will see a lot of the

468
00:25:15,920 --> 00:25:18,879
Speaker 5: same sorts of things from the liberal justices that you

469
00:25:19,040 --> 00:25:21,760
Speaker 5: just said there that the Court has, you know, sort

470
00:25:21,760 --> 00:25:25,040
Speaker 5: of engineered a result that's going to be very much

471
00:25:25,119 --> 00:25:27,040
Speaker 5: politically advantageous to Donald Trump.

472
00:25:27,640 --> 00:25:32,480
Speaker 2: And there's also the case involving the obstruction charges that

473
00:25:32,600 --> 00:25:37,000
Speaker 2: January sixth defendants are facing, and that too could have

474
00:25:37,040 --> 00:25:40,560
Speaker 2: an impact on the case against Donald Trump. The Court

475
00:25:40,760 --> 00:25:45,399
Speaker 2: is poised to decide the first two abortion cases since

476
00:25:45,680 --> 00:25:50,800
Speaker 2: that twenty twenty two opinion overturning Row one is over

477
00:25:50,840 --> 00:25:54,840
Speaker 2: the most widely used abortion pill, MiFi Pristone.

478
00:25:55,640 --> 00:25:58,000
Speaker 5: Yeah, and that case is the one that's gotten more

479
00:25:58,000 --> 00:26:00,639
Speaker 5: attention a lower court of Federal Pier Court, the very

480
00:26:00,640 --> 00:26:05,800
Speaker 5: conservative Fith Circuit essentially said MiFi Pristone cannot be dispensed

481
00:26:05,840 --> 00:26:09,720
Speaker 5: by mail. They set aside some changes that were made

482
00:26:09,800 --> 00:26:12,880
Speaker 5: under the Obama and then the Biden administrations that had

483
00:26:12,920 --> 00:26:16,159
Speaker 5: expanded access to MEFI pristone, and in the arguments, the

484
00:26:16,200 --> 00:26:20,199
Speaker 5: Supreme Court suggested they were likely to reverse that ruling

485
00:26:20,359 --> 00:26:24,159
Speaker 5: and keep MiFi pristone fully available. We'll see if the

486
00:26:24,200 --> 00:26:27,320
Speaker 5: decision ends up working out that way. But this may

487
00:26:27,359 --> 00:26:29,240
Speaker 5: be a case where the this Circuit took us up

488
00:26:29,240 --> 00:26:31,159
Speaker 5: a hill and the Supreme Court takes us back down.

489
00:26:31,359 --> 00:26:33,800
Speaker 2: Yes, we're going to have to keep track of how

490
00:26:33,840 --> 00:26:37,720
Speaker 2: many times the Fifth Circuit gets reversed this term. In

491
00:26:37,760 --> 00:26:40,840
Speaker 2: another abortion case, it didn't get as much publicity, but

492
00:26:41,200 --> 00:26:44,359
Speaker 2: is really critical the Idaho case.

493
00:26:45,119 --> 00:26:48,000
Speaker 5: Yes, this is the case about what can happen in

494
00:26:48,040 --> 00:26:51,320
Speaker 5: a hospital emergency room in a state with a really

495
00:26:51,359 --> 00:26:55,000
Speaker 5: strict ban, and so Idaho has a near total ban.

496
00:26:55,760 --> 00:26:58,560
Speaker 5: The law says the only exception is when the life

497
00:26:58,640 --> 00:27:02,640
Speaker 5: of the mother is at risk. And the Biden administration

498
00:27:02,760 --> 00:27:05,280
Speaker 5: is arguing that there is this federal law that requires

499
00:27:05,280 --> 00:27:08,720
Speaker 5: hospitals to treat people who come in emergency situations. And

500
00:27:08,800 --> 00:27:11,960
Speaker 5: the Biden administration is arguing back by abortion rights groups

501
00:27:12,240 --> 00:27:16,520
Speaker 5: that if somebody needs an abortion in an emergency situation

502
00:27:16,760 --> 00:27:20,320
Speaker 5: because there's a risk to health, risk to fertility, or

503
00:27:20,480 --> 00:27:24,600
Speaker 5: some other serious damage to organs, for example, that doctors

504
00:27:24,640 --> 00:27:28,440
Speaker 5: under this federal law, not only can but must perform

505
00:27:28,640 --> 00:27:31,359
Speaker 5: the abortion. So the question is whether that federal law

506
00:27:31,440 --> 00:27:35,919
Speaker 5: essentially supersedes the Idaho law in that particular context. The

507
00:27:36,080 --> 00:27:40,119
Speaker 5: arguments suggested the Supreme Court was maybe trying to find

508
00:27:40,160 --> 00:27:42,760
Speaker 5: a way to issue some sort of narrow ruling that

509
00:27:42,800 --> 00:27:46,439
Speaker 5: didn't defindily answer that question, but sort of relied on

510
00:27:46,520 --> 00:27:50,960
Speaker 5: the way the Idaho Solicitor General was characterizing the Idaho law.

511
00:27:51,359 --> 00:27:53,720
Speaker 5: We'll see what happened in that case. The outcome was

512
00:27:53,720 --> 00:27:54,600
Speaker 5: not entirely clear.

513
00:27:55,280 --> 00:27:59,560
Speaker 2: Then you have the court's first Second Amendment dispute, since

514
00:27:59,600 --> 00:28:03,920
Speaker 2: the conservative majority, in an opinion by Justice Clarence Thomas,

515
00:28:04,000 --> 00:28:07,119
Speaker 2: established a tough test for gun restrictions in the New

516
00:28:07,200 --> 00:28:10,400
Speaker 2: York Gun case back in twenty twenty two. So two

517
00:28:10,480 --> 00:28:13,680
Speaker 2: gun cases tell us about those, Yeah.

518
00:28:13,480 --> 00:28:15,199
Speaker 5: So one of them is the Second Amendment case. The

519
00:28:15,200 --> 00:28:18,040
Speaker 5: other one is a statutory case. The Second Amendment case

520
00:28:18,320 --> 00:28:21,520
Speaker 5: is whether this federal law that says if you are

521
00:28:21,520 --> 00:28:24,600
Speaker 5: subject to a domestic violence restraining order you can't have

522
00:28:24,640 --> 00:28:27,800
Speaker 5: a gun, whether that is a violation of the Second Amendment.

523
00:28:28,320 --> 00:28:32,280
Speaker 5: And the arguments last year very much suggested the Court

524
00:28:32,440 --> 00:28:35,320
Speaker 5: was not willing to go that far, even though it

525
00:28:35,359 --> 00:28:38,440
Speaker 5: has really expanded Second Amendment rights in recent years, and

526
00:28:38,480 --> 00:28:41,920
Speaker 5: even though the Fifth Circuit, again the very conservative appeals court,

527
00:28:42,360 --> 00:28:46,000
Speaker 5: said that the federal law was unconstitutional, the Supreme Court

528
00:28:46,200 --> 00:28:48,960
Speaker 5: seemed to be suggesting that if there's a case where

529
00:28:48,960 --> 00:28:52,280
Speaker 5: there's somebody who's very likely dangerous, that is a situation

530
00:28:52,400 --> 00:28:55,280
Speaker 5: where the government does have a right to disarm them.

531
00:28:55,720 --> 00:28:59,960
Speaker 5: The second case is about the federal ban on machine

532
00:29:00,160 --> 00:29:04,000
Speaker 5: guns and whether that can be used to ban so

533
00:29:04,080 --> 00:29:08,040
Speaker 5: called bump stocks, which are devices that gain from notoriety

534
00:29:08,120 --> 00:29:10,960
Speaker 5: after a lot of notoriety after the very deadly shooting

535
00:29:11,000 --> 00:29:15,000
Speaker 5: in Las Vegas. A bump stock essentially converts a semi

536
00:29:15,080 --> 00:29:18,400
Speaker 5: automatic rifle into something that fires as rapidly as a

537
00:29:18,440 --> 00:29:21,400
Speaker 5: machine gun. And so the question is whether the Bureau

538
00:29:21,440 --> 00:29:25,960
Speaker 5: of Alcohol, Tobacco, and Firearms can classify rifles equipped with

539
00:29:26,000 --> 00:29:29,720
Speaker 5: bump stocks as machine guns and therefore ban them. That

540
00:29:29,760 --> 00:29:32,560
Speaker 5: one your arguments were a little tougher to call. I

541
00:29:32,680 --> 00:29:34,600
Speaker 5: wouldn't be shocked either way on that one.

542
00:29:34,800 --> 00:29:39,680
Speaker 2: Then we have several cases involving federal regulations and the

543
00:29:39,760 --> 00:29:43,400
Speaker 2: conservative war on the so called administrative state, and these

544
00:29:43,680 --> 00:29:47,520
Speaker 2: fly under the radar for most of the public because frankly,

545
00:29:47,560 --> 00:29:50,440
Speaker 2: they're not that interesting when you hear about them, But

546
00:29:50,720 --> 00:29:53,720
Speaker 2: as you write, sweeping legal changes might come the most

547
00:29:53,720 --> 00:29:57,479
Speaker 2: sweeping from this group of federal regulation cases.

548
00:29:57,760 --> 00:29:59,120
Speaker 1: Do you want to talk about them as a.

549
00:29:59,040 --> 00:30:02,920
Speaker 5: Group, Sure, and I'll try to make them somewhat interesting

550
00:30:02,960 --> 00:30:07,040
Speaker 5: because they really matter a lot for things like environmental regulation,

551
00:30:07,160 --> 00:30:10,840
Speaker 5: securities regulations, consumer protection, and the like. The biggest one

552
00:30:10,880 --> 00:30:13,720
Speaker 5: of these is a case, actually two cases that are

553
00:30:13,800 --> 00:30:18,240
Speaker 5: challenging something called the Chevron doctrine. Now don't fall asleep listeners,

554
00:30:18,480 --> 00:30:21,680
Speaker 5: very important doctrine. It basically says, hey, if there's a statute,

555
00:30:21,720 --> 00:30:24,360
Speaker 5: timers passes a statute and it's not totally clear whether

556
00:30:24,600 --> 00:30:27,360
Speaker 5: you know it, lets an agency do a certain thing.

557
00:30:27,840 --> 00:30:30,960
Speaker 5: If an agency comes up with a reasonable interpretation of

558
00:30:31,000 --> 00:30:32,920
Speaker 5: that statute and says, yeah, we're able to do this

559
00:30:33,000 --> 00:30:37,560
Speaker 5: certain thing, courts will defer to the agency and say, okay,

560
00:30:37,880 --> 00:30:41,760
Speaker 5: we'll go with that interpretation. And conservatives have been pushing

561
00:30:42,120 --> 00:30:45,560
Speaker 5: in the last decade or two to overturn this doctrine.

562
00:30:45,880 --> 00:30:49,240
Speaker 5: It's from a nineteen eighty four case involving Chevron, and

563
00:30:49,480 --> 00:30:53,400
Speaker 5: the Supreme Court in the conservative majority seems very very

564
00:30:53,400 --> 00:30:57,600
Speaker 5: interested in doing that, and if they do overturn it,

565
00:30:57,600 --> 00:31:01,640
Speaker 5: it will open up a host of questions about existing regulations,

566
00:31:01,680 --> 00:31:03,400
Speaker 5: ones that have been on the books for quite a while,

567
00:31:03,920 --> 00:31:07,600
Speaker 5: and questions about whether it's like a fast changing field

568
00:31:07,800 --> 00:31:10,920
Speaker 5: like AI and climate change and things like that. It

569
00:31:10,960 --> 00:31:14,360
Speaker 5: could put new constraints on what agencies are able to

570
00:31:14,360 --> 00:31:16,120
Speaker 5: do when they take kind of an old statute and

571
00:31:16,160 --> 00:31:18,760
Speaker 5: try to apply it to a new circumstance.

572
00:31:19,320 --> 00:31:23,560
Speaker 2: Greg you spoke to Professor Josh Blackman, who teaches constitutional

573
00:31:23,600 --> 00:31:27,680
Speaker 2: law at South Texas College of Law, and he said

574
00:31:27,800 --> 00:31:30,640
Speaker 2: that he thought this term may be a mixed bag

575
00:31:30,720 --> 00:31:32,280
Speaker 2: for conservative causes.

576
00:31:33,480 --> 00:31:35,800
Speaker 5: He did, and he was talking about some of those

577
00:31:35,800 --> 00:31:38,880
Speaker 5: Fifth Circuit cases that we talked about earlier. So, you know,

578
00:31:38,920 --> 00:31:41,400
Speaker 5: the myth Apristone case that may well end up being

579
00:31:41,480 --> 00:31:44,440
Speaker 5: a put it in quote liberal outcome where they reverse

580
00:31:44,560 --> 00:31:47,320
Speaker 5: the Fifth Circuit and don't restrict the abortion pill. There

581
00:31:47,360 --> 00:31:50,520
Speaker 5: was another case the Court already decided that really could

582
00:31:50,560 --> 00:31:54,680
Speaker 5: have undercut the Consumer Financial Protection Bureau involving how it

583
00:31:54,680 --> 00:31:58,040
Speaker 5: gets its funding, and the Supreme Court in that case

584
00:31:58,080 --> 00:32:01,760
Speaker 5: sided with the CFPB ruled against the Fifth Circuit. There

585
00:32:02,280 --> 00:32:04,920
Speaker 5: the same thing with the gun case, the domestic violence

586
00:32:04,960 --> 00:32:08,040
Speaker 5: case and they will be ruling against the conservative Fifth Circuit.

587
00:32:08,160 --> 00:32:10,600
Speaker 5: So there are enough cases in the mix there that

588
00:32:10,920 --> 00:32:13,160
Speaker 5: it's pretty clear that conservatives are not going to win

589
00:32:13,320 --> 00:32:14,800
Speaker 5: all of them, and they may not even win a

590
00:32:14,800 --> 00:32:17,480
Speaker 5: majority of them. But that's in part because the lower

591
00:32:17,520 --> 00:32:20,000
Speaker 5: courts have been pushing the law in some cases so

592
00:32:20,080 --> 00:32:23,040
Speaker 5: far to the right that even this conservative Supreme Court

593
00:32:23,560 --> 00:32:25,960
Speaker 5: every now and then steps in and says, no, that's

594
00:32:26,040 --> 00:32:26,640
Speaker 5: too far.

595
00:32:26,640 --> 00:32:29,200
Speaker 1: Hello, Fifth Circuit, we're talking about you.

596
00:32:29,560 --> 00:32:33,480
Speaker 2: So I always question why the most controversial cases over

597
00:32:33,520 --> 00:32:36,280
Speaker 2: the hot button social issues come in the very last

598
00:32:36,360 --> 00:32:39,520
Speaker 2: days of the term, despite whether they're heard early in

599
00:32:39,520 --> 00:32:42,760
Speaker 2: the term or late in the term. But perhaps something

600
00:32:43,000 --> 00:32:47,720
Speaker 2: startling that Justice Sonya Soto Mayor said gives us a

601
00:32:47,840 --> 00:32:50,400
Speaker 2: hint about what's going on at the court.

602
00:32:50,600 --> 00:32:54,160
Speaker 5: Yeah, she mentioned at an appearance a week or two

603
00:32:54,240 --> 00:32:58,600
Speaker 5: ago that sometimes after opinions come out, she goes back

604
00:32:58,600 --> 00:33:01,200
Speaker 5: into her chambers and closes the door and cries, and

605
00:33:01,240 --> 00:33:03,320
Speaker 5: then she say kind of as an aside, and there

606
00:33:03,360 --> 00:33:06,680
Speaker 5: will be more of those. Wasn't clear she was talking

607
00:33:07,040 --> 00:33:10,400
Speaker 5: necessarily about this term, but it would be a shock

608
00:33:10,560 --> 00:33:13,800
Speaker 5: that has to do with this term. This conservative majority

609
00:33:13,800 --> 00:33:16,560
Speaker 5: has done an awful lot in a very short period

610
00:33:16,560 --> 00:33:19,920
Speaker 5: of time, and undoubtedly we'll do a significant amount more

611
00:33:19,960 --> 00:33:23,000
Speaker 5: in the next few weeks. And for the rest of

612
00:33:23,120 --> 00:33:25,960
Speaker 5: Justice Soto Maria's time on the Supreme Court, it must be.

613
00:33:25,880 --> 00:33:29,120
Speaker 2: So difficult to be one of the three liberals when

614
00:33:29,160 --> 00:33:33,640
Speaker 2: the numbers are just overwhelmingly against you. Thanks so much, Greg.

615
00:33:34,080 --> 00:33:38,080
Speaker 2: That's Bloomberg New Supreme Court reporter Greg Store And that's

616
00:33:38,120 --> 00:33:40,360
Speaker 2: it for this edition of the Bloomberg Law Podcast.

617
00:33:40,720 --> 00:33:43,200
Speaker 1: Remember you can always get the latest legal news.

618
00:33:42,920 --> 00:33:46,960
Speaker 2: By subscribing and listening to the show on Apple Podcasts, Spotify,

619
00:33:47,240 --> 00:33:50,560
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law.

620
00:33:50,920 --> 00:33:53,600
Speaker 1: I'm June Grosso and this is Bloomberg