Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Hunter Biden is now the first child of a sitting
Speaker 2: president to be convicted of a crime. Special Counsel David Weiss,
Speaker 2: who brought the federal case against the president's son for
Speaker 2: lying on a form to get a gun, defended his prosecution,
Speaker 2: saying the case was not about prosecuting addiction.
Speaker 3: This case was about the illegal choice's defendant made while
Speaker 3: in the throes of addiction, his choice to lie on
Speaker 3: a government form when he bought a gun, and the
Speaker 3: choice to then possess that gun.
Speaker 2: But several of the jurors who found Biden guilty of
Speaker 2: all three felony charges said they thought the case should
Speaker 2: never have been brought to trial.
Speaker 1: A waste of text fer scholars. I think they should
Speaker 1: have victus.
Speaker 2: Find joining me is former Manhattan prosecutor Duncan Levin of
Speaker 2: leven In Associates. Doug and the Special Council said the
Speaker 2: prosecution was about the rule of law, but it's not
Speaker 2: a law that many people in similar circumstances are prosecuted for.
Speaker 4: It's very hard to escape the politics of this case.
Speaker 4: The case that shouldn't have gone to trial. In the
Speaker 4: first place, this was supposed to be resolved on a
Speaker 4: pleaded two misdemeanor tax charges. He's facing unrelated tax charges
Speaker 4: that are coming up for trial in September in California,
Speaker 4: basically related to a million four in foreign business income,
Speaker 4: and he's facing three felony counts there and six other
Speaker 4: misdemeanor counts, and they're, you know, pretty serious charges, their
Speaker 4: evasion of an assessment and filing false returns and not
Speaker 4: paying his taxes. And so this was all supposed to
Speaker 4: be wrapped up with a plea deal that was going
Speaker 4: to resolve in absolutely no jail time. And the gun
Speaker 4: charges which just went to trial and that he was
Speaker 4: just convicted on, was supposed to be resolved with pre
Speaker 4: trial diversions, so no real penalty other than having no
Speaker 4: firearms and staying drug free for two years. When that
Speaker 4: plea deal fell apart, it went to trial. And this
Speaker 4: is a trial that really shouldn't have been. It fell apart,
Speaker 4: I think in some part because of politics, maybe in
Speaker 4: large part because the politics. The judge, who is a
Speaker 4: Trump appointee, Judge Norieika, basically felt the choosing put in
Speaker 4: a position where she was going to have to decide
Speaker 4: whether hunter Biden was in compliance with the diversion agreement,
Speaker 4: because the parties didn't really want DOJ to be the
Speaker 4: party in charge of whether to revoke his compliance or not,
Speaker 4: given the fact that Donald Trump couldn't win the presidency,
Speaker 4: and hunter Biden did not want Justice Department under a
Speaker 4: President Trump in his next term if he won to
Speaker 4: be in charge of deciding whether he was compliant with
Speaker 4: the pre trial diversions. And so they tried to put
Speaker 4: this on the judge and said, well, you should be
Speaker 4: the one to decide, and Jude Norieka said, well, I'm
Speaker 4: not going to decide that. So that's why the plea
Speaker 4: deal fell apart. But the plea also fell apart in
Speaker 4: large measure because of politics. The congressional Republicans were saying
Speaker 4: it was a sweetheart deal and calling for the judge
Speaker 4: to deny it. And I think that it may have
Speaker 4: been window dressing that it fell apart because Judge Norrieka
Speaker 4: didn't want to be in charge of deciding whether hunter
Speaker 4: Biden was in compliance. It may have really fallen apart
Speaker 4: because of political pressure. But I think this was a
Speaker 4: comment that was heard by a lot of the jurors
Speaker 4: who were interviewed after the trial, they said that they
Speaker 4: felt that the case was strong, that the evidence was compelling,
Speaker 4: but they felt that this was the case that was
Speaker 4: really unnecessary for the government to bring.
Speaker 5: That.
Speaker 4: All being said, I think that if you're going to
Speaker 4: put in a case like this, the witnesses that they
Speaker 4: called were necessary witnesses. They were, at the core of it,
Speaker 4: trying to prove that he was a user where addicted
Speaker 4: to controlled substance at the time that he filled out
Speaker 4: this form to buy the gun, and they had to
Speaker 4: call witnesses who were going to testify to that.
Speaker 2: And what about bringing through are you felony charges all
Speaker 2: connected with lying on the gun form in a case
Speaker 2: where there was no crime committed with a gun.
Speaker 4: The politics of this case are unmistakable because the charges
Speaker 4: themselves are ones that are rarely, if ever brought. Lying
Speaker 4: to a gun dealer is brought, probably fewer than three
Speaker 4: hundred times a year, and that's out of twenty five
Speaker 4: to thirty million background checks that are conducted around the
Speaker 4: nation every single year. The false claims on a federal
Speaker 4: firearms application is a form called the ETF four four
Speaker 4: seven three. I have never heard of a case being
Speaker 4: brought as a standalone case for lying on a federal
Speaker 4: firearms application never standalone. It's usually brought in connection with
Speaker 4: another more serious crime, maybe somebody illegally using a gun
Speaker 4: or a felon in possession. This is a gun that
Speaker 4: was never used, it was never loaded, and Hunter Biden
Speaker 4: possessed it for eleven days, just to put it in perspective,
Speaker 4: and he possessed it from October twelfth to October twenty third,
Speaker 4: twenty eighteen. It was possessed for an incredibly short period
Speaker 4: of time. And the other sort of I think mitigating
Speaker 4: factor here is that this was a gun that Hunter
Speaker 4: Biden possessed for eleven days and was actually thrown into
Speaker 4: a dumpster by his then girlfriend who was also his
Speaker 4: sister in law, Hailey Bidens. And when he came to
Speaker 4: find out that it was thrown into the dumpster, he
Speaker 4: took steps to alert the authority to it who found it,
Speaker 4: and it was started as a case because they found
Speaker 4: the gun in the dumpster. This was a case that
Speaker 4: really should never have gone to trial and got completely
Speaker 4: derailed because of the politics, to a point where the
Speaker 4: jurors were forced to sit through this extremely emotional testimony
Speaker 4: that really, I think at the end of the day,
Speaker 4: served nobody and resulted in a guilty verdict that you know,
Speaker 4: maybe scored the protcutors some points and maybe had some
Speaker 4: political points, but really was utterly away of everybody's time.
Speaker 2: The three jurors who spoke and said that they had
Speaker 2: no choice but to find him guilty, but they question
Speaker 2: whether the criminal case should.
Speaker 1: Ever have been brought.
Speaker 2: One said the case seem like a waste of taxpayer dollars.
Speaker 2: Aren't those the jurors that the defense was targeting to
Speaker 2: nullify to know, to say this case isn't worth it,
Speaker 2: We're not going to find him guilty.
Speaker 4: The jury obviously took the case very seriously, and it
Speaker 4: sounds like politics really did not play a role in it,
Speaker 4: and they didn't nullify, and the defense is clearly not
Speaker 4: allowed to argue jury nullification to them. Remember, this is
Speaker 4: a defendant who is well known to everybody in Delaware,
Speaker 4: particularly the jurors walked through the lobby of the courthouse
Speaker 4: every day to get to the trial, and the defendant's
Speaker 4: father's photograph is hanging in the lobby. This is somebody
Speaker 4: who is well known. The Biden name is well known.
Speaker 4: The First Lady of the United States is sitting in
Speaker 4: attention at the trial. And they took their job seriously.
Speaker 4: They didn't nullify. They looked at the evidence and they convicted.
Speaker 4: The case itself was strong, and the defense really just
Speaker 4: that at the time he filled out this ATS form
Speaker 4: at the gun dealership, he was not at the moment
Speaker 4: he filled the form out addicted to drugs. But there
Speaker 4: was evidence that you know, right before and right after
Speaker 4: he was, you know, texting with a drug dealer, and
Speaker 4: that he was clearly addicted to drugs. You know, this
Speaker 4: is a case that was a waste of taxpayer dollars.
Speaker 4: On the other hand, the government was kind of forced
Speaker 4: into going a trial on it when the plea deal
Speaker 4: fell apart. So everybody's right here. It's the case that
Speaker 4: was strong. The jury did a very thorough job and
Speaker 4: obviously took the evidence very seriously. They didn't nullify because
Speaker 4: the case it self was worthy of a conviction. It's
Speaker 4: a case where, you know, jurors looking at it without
Speaker 4: a political lens and without looking through the lens of nullification,
Speaker 4: would convict because it was a strong case. There are
Speaker 4: a lot of cases that you could question the motives
Speaker 4: behind prosecutors bringing them in the first place. This case,
Speaker 4: I questioned the motives of the special prosecutor bringing the charges, frankly,
Speaker 4: because these charges are never brought as a standalone case
Speaker 4: without something more serious. So I do question whether the
Speaker 4: case was brought because it was Hunter Biden. But at
Speaker 4: the end of the day, it's unlikely to result in
Speaker 4: any jail time, and I think the more serious charges
Speaker 4: that he's facing are in September, with these tax crimes,
Speaker 4: which we're supposed to be disposed of without any jail time,
Speaker 4: and now he actually has some significant exposure to an
Speaker 4: incarceratory sentence in September if he's convicted on those charges.
Speaker 1: Well, I was surprised.
Speaker 2: The special counsel made a statement afterwards, and he said.
Speaker 1: This case wasn't about addiction.
Speaker 2: It was about the illegal choices the defendant made while
Speaker 2: in the quote throes of addiction, which sounds contradictory to me.
Speaker 2: But how unusual that he has another case pending and
Speaker 2: he decided to make a public statement.
Speaker 4: I think it's problematic any time a prosecutor or someone
Speaker 4: in law enforcement speaks out of court, and this was
Speaker 4: one where I think his words were poorly chosen and
Speaker 4: frankly wrong. I mean, this is a case that is
Speaker 4: very sad, and it's a sad case about addiction. You know,
Speaker 4: people who are addicted to all sorts of things, and
Speaker 4: it doesn't mean they shouldn't be held criminally responsible. And
Speaker 4: it's a legally correct verdict. It's not that it's wrong.
Speaker 4: The verdict itself was based on evidence. It's legally correct.
Speaker 4: But this case is a human tragedy and to say
Speaker 4: that it's anything other than that is just flat out wrong.
Speaker 2: Is there anything the defense could have done to change
Speaker 2: the verdict? I mean, should Hunter Biden, despite the problems,
Speaker 2: have taken the stand.
Speaker 4: So Judge j Rieka really, I thought, went out of
Speaker 4: her way to hobble the defense, and I would describe
Speaker 4: part of it to politics, and given the posture of
Speaker 4: the case, fact that she scuttled the plea deal. There
Speaker 4: were two instances where the defense tried to get very
Speaker 4: evidence into the trial. One of which is that this
Speaker 4: ATS four four seven three form was altered. It was
Speaker 4: altered by the gun dealer at some point after the fact,
Speaker 4: and that is because it is a requirement when the
Speaker 4: gun dealer has this form filled out that they get
Speaker 4: identifications that has the purchaser's address on it. At the
Speaker 4: time that they got the form in the first place,
Speaker 4: they got Hunter Biden's passport, which did not have his
Speaker 4: address on it, and later at a point they filled
Speaker 4: out the form again to say that they'd gotten his
Speaker 4: driver's life. The judge barred the defense from introducing evidence
Speaker 4: of the altered form and said that it was a
Speaker 4: quote unquote conspiracy theory and unsupported rhetoric. I find that
Speaker 4: hard to believe and just a ruling that really has
Speaker 4: no merit, because this is a case all about who
Speaker 4: filled out the form and when they filled out the form.
Speaker 4: The fact that the form was altered, for the fact
Speaker 4: is very key evidence, and frankly, I think is some
Speaker 4: grounds for appeal that that was not allowed to be
Speaker 4: introduced at trial. The other thing is that the defense
Speaker 4: tried to call a Columbia psychiatrist named doctor l Eiun
Speaker 4: to testify at trial about hunter Biden's state of mind
Speaker 4: at the time that he filled out the form. There
Speaker 4: is a knowledge requirement here, and the defense was trying
Speaker 4: to show to the jury that at the time he
Speaker 4: filled out the form he did not believe himself to
Speaker 4: be an addict, and I think there's some support to
Speaker 4: that in the evidence, because Hunter Biden had just finished
Speaker 4: an eleven day rehab program and also was living with
Speaker 4: a sober companion. And I think that anyone who's been
Speaker 4: through addiction or understands addiction knows that you take it
Speaker 4: one day at a time, and so somebody who is
Speaker 4: sober for even one day or two days or eleven
Speaker 4: days may not consider themselves to be an addict. And
Speaker 4: it's something that I think the defense should have been
Speaker 4: allowed to argue and was precluded from arguing, and that
Speaker 4: really gutted the defense case in many ways. So they
Speaker 4: were really left with this very narrow argument that at
Speaker 4: the time of filling out the form he was not
Speaker 4: addicted to drugs, because there's no evidence he was doing
Speaker 4: drugs that day. So I think the judgment really out
Speaker 4: of her way to recap the defense, and so they
Speaker 4: do have some appeals here that they can pursue as
Speaker 4: to whether Hunter Biden should have testified. The conventional wisdom
Speaker 4: is that it is never a good idea for a
Speaker 4: defendant to testify. In this particular case, it was difficult
Speaker 4: for him because of these pending tax charges. The judge
Speaker 4: had again made a ruling that the prosecutors would be
Speaker 4: allowed to cross examine him on these tax charges, which
Speaker 4: would have exposed him to incredibly grave legal danger in
Speaker 4: this trial that he had coming up. So there was
Speaker 4: really no choice but to make the strategic decision not
Speaker 4: to testify even if he could have testified convincingly about
Speaker 4: these charges that would have put him at grave legal
Speaker 4: risk with his upcoming trial in September coming.
Speaker 2: Up next on the Bloomberg Law Show, I'll continue this
Speaker 2: conversation with Duncan Levin talk more about the possible appellate
Speaker 2: issues and the next trial for Hunter Biden.
Speaker 1: This is Bloomberg.
Speaker 2: Now that Hunter Biden has been convicted of three felony
Speaker 2: gun charges, he faces sentencing and another trial in California
Speaker 2: on tax charges in September. I've been talking to former
Speaker 2: Manhattan prosecutor Duncan Levin of Leven and Associates. I want
Speaker 2: to go over some of the other appellate issues they
Speaker 2: may be able to raise. They may use some of
Speaker 2: the same arguments they made prior to trial to try
Speaker 2: to get the case dismissed.
Speaker 1: They argued the gun law.
Speaker 2: Was unconstitutional following a ruling by the US Supreme Court
Speaker 2: in twenty twenty two, the New York case that expanded
Speaker 2: gun rights, and the Fifth Circuit has struck down the
Speaker 2: law barring users of illegal drugs from possessing firearms, ruling
Speaker 2: it was unconstitutional. So could that be a good appellate argument?
Speaker 4: I think this is a great suppellent argument, and we
Speaker 4: can all expect to see it. Frankly, it may at
Speaker 4: some point win. At the point that it wins, however,
Speaker 4: he will have already been branded a sellon and done
Speaker 4: time if he does time or served out a sentence,
Speaker 4: because this is unlikely to wind his way through the
Speaker 4: course anytime soon. But if you look at the statute itself,
Speaker 4: which is nine twenty two G. Three, it basically makes
Speaker 4: it unlawful to possess a gun if you are a
Speaker 4: user or addicted to any controlled substance. And the terms
Speaker 4: are ill defined. And you know, anyone who's gone through
Speaker 4: addiction and is understanding of the challenges facing addicts knows
Speaker 4: that this is something that is a day by day struggle.
Speaker 4: And the term addict is one that is very loaded,
Speaker 4: and the term user is one that's very loaded. And
Speaker 4: it's unclear whether it means that you have to be
Speaker 4: a user at the time you're filling out the form,
Speaker 4: or what that even means. If somebody does crack or
Speaker 4: some controlled substance and two days later goes to fill
Speaker 4: out this application, are they a user? Are they an addict?
Speaker 4: The terms are ill defined, They're very vague, and I
Speaker 4: think as a result of it, the statute is really
Speaker 4: subject to being struck down as unconstitutional.
Speaker 2: They also argued that the plea deal that he struck
Speaker 2: last year remains in effect even though prosecutors rescinded it.
Speaker 4: A plea deal is not a plea deal until it
Speaker 4: is approved by all the parties and approved by the judge,
Speaker 4: And in this case, the judge refused to approve it.
Speaker 4: And just because the parties agree on it, it's all
Speaker 4: still subject to approval by the United States District Court.
Speaker 4: And in this case, Judge Noria got struck it down.
Speaker 4: And so just because it was a signed plea agreement
Speaker 4: between the parties, it is not so ordered, as they say,
Speaker 4: until the judge orders it. So I don't think that
Speaker 4: argument is likely to carry any weight, even though it
Speaker 4: was something that was agreed upon by the Department of Justice,
Speaker 4: and by Hunter Biden with his attorneys. Now, I do
Speaker 4: think that that is going to play into sentencing, because
Speaker 4: it's hard to believe that when the Department of Justice
Speaker 4: feels it is appropriate for a defendant to get pre
Speaker 4: trial diversion and no jail time, for them to turn
Speaker 4: around and issue some kind of trial penalty. This is
Speaker 4: a trial that Hunter Biden did not want, he did
Speaker 4: not ask for, It was poisted upon him, and so
Speaker 4: I don't think there should be any trial penalty. And
Speaker 4: as a result of the Department of Justice agreeing that
Speaker 4: this case should be subject to pre trial diversion, I
Speaker 4: would find it shocking if they now turned around and
Speaker 4: asked for any kind of jail time on this Really, do.
Speaker 2: You really think that this Special Council, with all the
Speaker 2: political pressures, won't ask.
Speaker 1: For jail time.
Speaker 4: I think it's going to be shocking if he does
Speaker 4: ask for jail time, given the fact that they have
Speaker 4: also already basically offered him no jail time. This is
Speaker 4: a trial that he did not ask for, he did
Speaker 4: not want, it was poisted upon him, and I think
Speaker 4: if the Special Council turns around and asks for jail
Speaker 4: time now, his politics will be showing.
Speaker 1: Fair enough, Let's turn to what happens next.
Speaker 2: There's the probation interview, the sentencing memos, and Biden friends
Speaker 2: and families sending in letter after letterature the judge. Which
Speaker 2: part of that is most important.
Speaker 4: The probation interview is meant to give the judge a
Speaker 4: sense of who he is as a person that may
Speaker 4: not emerge from the trial, and the same thing for
Speaker 4: the sentencing memo. In large measure, it's meant to educate
Speaker 4: the judge on who a defendant is, who their friends are,
Speaker 4: to character references and explain any mitigating circumstances. Here, the
Speaker 4: judge is very familiar with this defendant, and so it
Speaker 4: may be of less weight to have a probation officer
Speaker 4: interviewing him and giving any information to the court. A
Speaker 4: parallel to be drawn to Donald Trump and his criminal
Speaker 4: hush money trial in New York, where there was a
Speaker 4: probation interview recently. These are probation interviews that are highly
Speaker 4: vetted people, and so it may not sway the judge,
Speaker 4: who's likely very familiar. But this judge may see how
Speaker 4: Biden is an addict, and that is how she sees
Speaker 4: him and views him, and I think that both the
Speaker 4: sentencing memo process and the probation interview are meant to
Speaker 4: give a much more holistic view of some of the
Speaker 4: good things he's done, the work he's done his family,
Speaker 4: and educates her on all of the other parts of
Speaker 4: his personality and being that have not come through so
Speaker 4: far in any of the brief thing in the trial.
Speaker 2: So he technically faces twenty five years. Do you think
Speaker 2: he'll even be sent to prison.
Speaker 4: I think he will not be sent to prison on
Speaker 4: this case because the case merits no prison. It's a
Speaker 4: case involving nothing violent. Even though there was a gun.
Speaker 4: This was a gun that he possessed for eleven days.
Speaker 4: It was never loaded. The charges are never really brought
Speaker 4: a standalone cases. He had no other offenses. This is
Speaker 4: his first criminal offense. The cases are brought fewer than,
Speaker 4: as I say, three hundred times a year out of
Speaker 4: twenty five million background checks. It's a very minor case
Speaker 4: in terms of the federal sentencing guidelines, and DOJ is
Speaker 4: really already on record with their recommendation to the judge
Speaker 4: that he should not go to jail over this. Frankly,
Speaker 4: over the tax case either, there was no jail requirement involved,
Speaker 4: and so there's been some outcry from Congressional Republicans that
Speaker 4: he should see jail time, but DOJ and the parties
Speaker 4: have already all been agreed that he should not see
Speaker 4: jail time in this case. I will find it highly
Speaker 4: unlikely that prosecutor is going to turn around and all
Speaker 4: of a sudden recommend it. And the only thing calling
Speaker 4: for that is the outcry and public political pressure from
Speaker 4: Congressional Republicans. So that's really the only thing mitigating in
Speaker 4: favor of any kind of jail term for this case.
Speaker 2: So he's going to trial in September in California. The
Speaker 2: judge said sometime within the next four months. I mean,
Speaker 2: should this sentencing be held off until the case in
Speaker 2: California is over? Is there any kind of coordination?
Speaker 4: Now? The cases are standalone, they're in different courts, different judges,
Speaker 4: and I think it's unlikely that he's going to serve
Speaker 4: any jail time anyway. So the process will probably move
Speaker 4: along on two different schedules. And this is not the
Speaker 4: first time there's been a defendent with multiple cases open. Obviously,
Speaker 4: I'm on't familiar with the fact that Donald Trump has
Speaker 4: four cases open at this time, and he's being sentenced
Speaker 4: in the New York case in the next few weeks.
Speaker 4: That is not going to be waiting for any of
Speaker 4: the other cases to wind their way through the court system.
Speaker 4: So no one knows what's going to happen with the
Speaker 4: California case. Maybe it's put off for more months, or
Speaker 4: maybe it actually gets tried on time. But they operate
Speaker 4: very independently from one another, and I think that you'd
Speaker 4: likely see him get sentenced on this case either before
Speaker 4: contemporaneous to that September case.
Speaker 2: Thanks so much for sharing your insights with us.
Speaker 1: Duncan.
Speaker 2: That's former Manhattan prosecutor Duncan Levin. Coming up next on
Speaker 2: the Bloomberg Lawn Show, we're going to be looking at
Speaker 2: the controversial case the Supreme Court has yet to decide on.
Speaker 2: I'm June Grosse and you're listening to Bloomberg. The Supreme
Speaker 2: Court is moving at a glacial pace. With just a
Speaker 2: few weeks left in the term, Nearly half of the
Speaker 2: cases argued remain undecided, and among those are the expected
Speaker 2: blockbusters on abortion, guns, and presidential immunity, where we may
Speaker 2: see ideological splits on the court. Joining me is someone
Speaker 2: who is watching for those decisions. Bloomberg News Supreme Court
Speaker 2: reporter Greg Storr, Greg, the justices are going to be
Speaker 2: handing down these high stakes cases in the midst of
Speaker 2: so much controversy for the Court. In your time covering
Speaker 2: the Court, have you ever seen the court embroiled in
Speaker 2: so many controversies and such turmoil.
Speaker 5: Well, let's may set a new standard in terms of
Speaker 5: the variety of issues that are going on with the
Speaker 5: Supreme Court. You have issues about justices or perhaps their wives,
Speaker 5: flying flags that are tied to ideological causes. You have
Speaker 5: secret tape recordings that people are making at the events.
Speaker 5: You have calls for recusal, and all that's happening against
Speaker 5: the backdrop of some very big, ideologically divisive cases, including
Speaker 5: cases involving Donald Trump.
Speaker 2: They're moving very, very slowly. I thought for sure last
Speaker 2: Thursday one of the big cases we've been waiting for
Speaker 2: would come out. So we're about two and a half
Speaker 2: weeks till the end of the term. How many cases
Speaker 2: are outstanding.
Speaker 5: It depends on how you count them, but it's in
Speaker 5: the upper twenty. There are a few cases that may
Speaker 5: come out as one opinion or may come out as
Speaker 5: two opinion. And that's about half their docket. And you know,
Speaker 5: of those twenty something cases, you know a good half
Speaker 5: of them are I would say big news. And you
Speaker 5: know cases that we have Bloomberg will probably for those
Speaker 5: who are Bloomberg subscribers, will be putting red headlines out on.
Speaker 5: So there's gonna be a lot going on in the
Speaker 5: next couple of weeks.
Speaker 1: So let's talk about some of the ones that are outstanding.
Speaker 2: A lot of folks right now is on the case
Speaker 2: involving Trump's bid for presidential immunity, which is delaying the
Speaker 2: Special Council's case against him for election interference.
Speaker 1: That one, maybe we'll see the last day of the term.
Speaker 1: It's expected to be very controversial.
Speaker 5: Yeah, that may well be one that comes out at
Speaker 5: the very very end. Of course, it was the last
Speaker 5: case that was argued. They actually added a special argument
Speaker 5: day to hear that case. The arguments suggested the court
Speaker 5: was prepared to say that Donald Trump and other former
Speaker 5: presidents do have some immunity from criminal charges, and they
Speaker 5: might well kick this case back to the lower court
Speaker 5: to look more closely at these allegations, see which ones
Speaker 5: involve official actions by the president and therefore he has immunity,
Speaker 5: and which ones involve private actions that might be the
Speaker 5: subject of an indictment, and you know, barring something highly unexpected,
Speaker 5: that will essentially run out the clock until the November
Speaker 5: election and make it impossible for this case to go
Speaker 5: to trial before the election.
Speaker 2: Greg it seems to me that the Justices just don't
Speaker 2: care at all about appearing apolitical anymore, because in December,
Speaker 2: Special Counsel Jack Smith asked them to expedite the case,
Speaker 2: and then they waited for weeks and they heard it
Speaker 2: on the last argument day of the term. I mean,
Speaker 2: do they have any concern for the appearance that they're
Speaker 2: presenting of being political.
Speaker 5: I think the answer to that is that some of
Speaker 5: them care a lot more than others. That's certainly something
Speaker 5: that Chief Justice John Roberts has indicated he cares a
Speaker 5: lot about. But he's just one vote on the court
Speaker 5: and he doesn't necessarily control what they do. You know,
Speaker 5: the Trump case was complicated in part because nobody was
Speaker 5: actually talking about the impact on this upcoming election. Jack
Speaker 5: Smith certainly made the case that we need to get
Speaker 5: this resolved quickly, but nobody was actually asking the Supreme
Speaker 5: Court to ensure that there could be a tr before
Speaker 5: the election, so the court certainly could have handled it differently.
Speaker 5: We may learn a lot more about what was going
Speaker 5: on behind the scenes when we finally get some opinion
Speaker 5: from the Court by the end of the month. You know,
Speaker 5: my guess is we will see a lot of the
Speaker 5: same sorts of things from the liberal justices that you
Speaker 5: just said there that the Court has, you know, sort
Speaker 5: of engineered a result that's going to be very much
Speaker 5: politically advantageous to Donald Trump.
Speaker 2: And there's also the case involving the obstruction charges that
Speaker 2: January sixth defendants are facing, and that too could have
Speaker 2: an impact on the case against Donald Trump. The Court
Speaker 2: is poised to decide the first two abortion cases since
Speaker 2: that twenty twenty two opinion overturning Row one is over
Speaker 2: the most widely used abortion pill, MiFi Pristone.
Speaker 5: Yeah, and that case is the one that's gotten more
Speaker 5: attention a lower court of Federal Pier Court, the very
Speaker 5: conservative Fith Circuit essentially said MiFi Pristone cannot be dispensed
Speaker 5: by mail. They set aside some changes that were made
Speaker 5: under the Obama and then the Biden administrations that had
Speaker 5: expanded access to MEFI pristone, and in the arguments, the
Speaker 5: Supreme Court suggested they were likely to reverse that ruling
Speaker 5: and keep MiFi pristone fully available. We'll see if the
Speaker 5: decision ends up working out that way. But this may
Speaker 5: be a case where the this Circuit took us up
Speaker 5: a hill and the Supreme Court takes us back down.
Speaker 2: Yes, we're going to have to keep track of how
Speaker 2: many times the Fifth Circuit gets reversed this term. In
Speaker 2: another abortion case, it didn't get as much publicity, but
Speaker 2: is really critical the Idaho case.
Speaker 5: Yes, this is the case about what can happen in
Speaker 5: a hospital emergency room in a state with a really
Speaker 5: strict ban, and so Idaho has a near total ban.
Speaker 5: The law says the only exception is when the life
Speaker 5: of the mother is at risk. And the Biden administration
Speaker 5: is arguing that there is this federal law that requires
Speaker 5: hospitals to treat people who come in emergency situations. And
Speaker 5: the Biden administration is arguing back by abortion rights groups
Speaker 5: that if somebody needs an abortion in an emergency situation
Speaker 5: because there's a risk to health, risk to fertility, or
Speaker 5: some other serious damage to organs, for example, that doctors
Speaker 5: under this federal law, not only can but must perform
Speaker 5: the abortion. So the question is whether that federal law
Speaker 5: essentially supersedes the Idaho law in that particular context. The
Speaker 5: arguments suggested the Supreme Court was maybe trying to find
Speaker 5: a way to issue some sort of narrow ruling that
Speaker 5: didn't defindily answer that question, but sort of relied on
Speaker 5: the way the Idaho Solicitor General was characterizing the Idaho law.
Speaker 5: We'll see what happened in that case. The outcome was
Speaker 5: not entirely clear.
Speaker 2: Then you have the court's first Second Amendment dispute, since
Speaker 2: the conservative majority, in an opinion by Justice Clarence Thomas,
Speaker 2: established a tough test for gun restrictions in the New
Speaker 2: York Gun case back in twenty twenty two. So two
Speaker 2: gun cases tell us about those, Yeah.
Speaker 5: So one of them is the Second Amendment case. The
Speaker 5: other one is a statutory case. The Second Amendment case
Speaker 5: is whether this federal law that says if you are
Speaker 5: subject to a domestic violence restraining order you can't have
Speaker 5: a gun, whether that is a violation of the Second Amendment.
Speaker 5: And the arguments last year very much suggested the Court
Speaker 5: was not willing to go that far, even though it
Speaker 5: has really expanded Second Amendment rights in recent years, and
Speaker 5: even though the Fifth Circuit, again the very conservative appeals court,
Speaker 5: said that the federal law was unconstitutional, the Supreme Court
Speaker 5: seemed to be suggesting that if there's a case where
Speaker 5: there's somebody who's very likely dangerous, that is a situation
Speaker 5: where the government does have a right to disarm them.
Speaker 5: The second case is about the federal ban on machine
Speaker 5: guns and whether that can be used to ban so
Speaker 5: called bump stocks, which are devices that gain from notoriety
Speaker 5: after a lot of notoriety after the very deadly shooting
Speaker 5: in Las Vegas. A bump stock essentially converts a semi
Speaker 5: automatic rifle into something that fires as rapidly as a
Speaker 5: machine gun. And so the question is whether the Bureau
Speaker 5: of Alcohol, Tobacco, and Firearms can classify rifles equipped with
Speaker 5: bump stocks as machine guns and therefore ban them. That
Speaker 5: one your arguments were a little tougher to call. I
Speaker 5: wouldn't be shocked either way on that one.
Speaker 2: Then we have several cases involving federal regulations and the
Speaker 2: conservative war on the so called administrative state, and these
Speaker 2: fly under the radar for most of the public because frankly,
Speaker 2: they're not that interesting when you hear about them, But
Speaker 2: as you write, sweeping legal changes might come the most
Speaker 2: sweeping from this group of federal regulation cases.
Speaker 1: Do you want to talk about them as a.
Speaker 5: Group, Sure, and I'll try to make them somewhat interesting
Speaker 5: because they really matter a lot for things like environmental regulation,
Speaker 5: securities regulations, consumer protection, and the like. The biggest one
Speaker 5: of these is a case, actually two cases that are
Speaker 5: challenging something called the Chevron doctrine. Now don't fall asleep listeners,
Speaker 5: very important doctrine. It basically says, hey, if there's a statute,
Speaker 5: timers passes a statute and it's not totally clear whether
Speaker 5: you know it, lets an agency do a certain thing.
Speaker 5: If an agency comes up with a reasonable interpretation of
Speaker 5: that statute and says, yeah, we're able to do this
Speaker 5: certain thing, courts will defer to the agency and say, okay,
Speaker 5: we'll go with that interpretation. And conservatives have been pushing
Speaker 5: in the last decade or two to overturn this doctrine.
Speaker 5: It's from a nineteen eighty four case involving Chevron, and
Speaker 5: the Supreme Court in the conservative majority seems very very
Speaker 5: interested in doing that, and if they do overturn it,
Speaker 5: it will open up a host of questions about existing regulations,
Speaker 5: ones that have been on the books for quite a while,
Speaker 5: and questions about whether it's like a fast changing field
Speaker 5: like AI and climate change and things like that. It
Speaker 5: could put new constraints on what agencies are able to
Speaker 5: do when they take kind of an old statute and
Speaker 5: try to apply it to a new circumstance.
Speaker 2: Greg you spoke to Professor Josh Blackman, who teaches constitutional
Speaker 2: law at South Texas College of Law, and he said
Speaker 2: that he thought this term may be a mixed bag
Speaker 2: for conservative causes.
Speaker 5: He did, and he was talking about some of those
Speaker 5: Fifth Circuit cases that we talked about earlier. So, you know,
Speaker 5: the myth Apristone case that may well end up being
Speaker 5: a put it in quote liberal outcome where they reverse
Speaker 5: the Fifth Circuit and don't restrict the abortion pill. There
Speaker 5: was another case the Court already decided that really could
Speaker 5: have undercut the Consumer Financial Protection Bureau involving how it
Speaker 5: gets its funding, and the Supreme Court in that case
Speaker 5: sided with the CFPB ruled against the Fifth Circuit. There
Speaker 5: the same thing with the gun case, the domestic violence
Speaker 5: case and they will be ruling against the conservative Fifth Circuit.
Speaker 5: So there are enough cases in the mix there that
Speaker 5: it's pretty clear that conservatives are not going to win
Speaker 5: all of them, and they may not even win a
Speaker 5: majority of them. But that's in part because the lower
Speaker 5: courts have been pushing the law in some cases so
Speaker 5: far to the right that even this conservative Supreme Court
Speaker 5: every now and then steps in and says, no, that's
Speaker 5: too far.
Speaker 1: Hello, Fifth Circuit, we're talking about you.
Speaker 2: So I always question why the most controversial cases over
Speaker 2: the hot button social issues come in the very last
Speaker 2: days of the term, despite whether they're heard early in
Speaker 2: the term or late in the term. But perhaps something
Speaker 2: startling that Justice Sonya Soto Mayor said gives us a
Speaker 2: hint about what's going on at the court.
Speaker 5: Yeah, she mentioned at an appearance a week or two
Speaker 5: ago that sometimes after opinions come out, she goes back
Speaker 5: into her chambers and closes the door and cries, and
Speaker 5: then she say kind of as an aside, and there
Speaker 5: will be more of those. Wasn't clear she was talking
Speaker 5: necessarily about this term, but it would be a shock
Speaker 5: that has to do with this term. This conservative majority
Speaker 5: has done an awful lot in a very short period
Speaker 5: of time, and undoubtedly we'll do a significant amount more
Speaker 5: in the next few weeks. And for the rest of
Speaker 5: Justice Soto Maria's time on the Supreme Court, it must be.
Speaker 2: So difficult to be one of the three liberals when
Speaker 2: the numbers are just overwhelmingly against you. Thanks so much, Greg.
Speaker 2: That's Bloomberg New Supreme Court reporter Greg Store And that's
Speaker 2: it for this edition of the Bloomberg Law Podcast.
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