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Speaker 1: Brought you by Bank of America, Mary Lynch. Investing in

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Speaker 1: local communities, economies and a sustainable future. That's the power

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Speaker 1: of global connections, Mary Lynch, Pierce Fenner and Smith Incorporated

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Speaker 1: Member s I p C. Welcome to the Bloomberg Surveillance Podcast.

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Speaker 1: I'm Tom Keene with David Gura. Daily we bring you

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Speaker 1: insight from the best in economics, finance, investment and international relations.

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Speaker 1: Find Bloomberg Surveillance on iTunes, SoundCloud, Bloomberg dot Com, and

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Speaker 1: of course on the Bloomberg. Tom's going to be back.

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Speaker 1: The missed the Pierre Breakfast. Breakfast at the Pierre Hotel

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Speaker 1: with an amazing turnout. We've given the snow on fifth

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Speaker 1: alf new pim Fox yeoman's duty is Gura called in

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Speaker 1: from what do you have like eight ft of snow

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Speaker 1: in Brooklyn mcale. You were out there brush Russian snow

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Speaker 1: off the Kale bushes, right, This is this is a

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Speaker 1: great pleasure and privileged folks. Abby Joseph Cohen has had

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Speaker 1: decades of work not only for the CFA Institute and

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Speaker 1: for the academics of finance and investment, for her Golden

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Speaker 1: Sex as well. She puts it, it's a Golden Sex retirement,

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Speaker 1: which means she will be exceptionally active in her eighty

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Speaker 1: hour work week. Still with Goldman Sex, what kind of retirement?

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Speaker 1: When Steve strongand talks to you about a Goldman Sex retirement,

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Speaker 1: what does that exactly? Abby? Tom? What that basically means

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Speaker 1: As I'm becoming an advisory director and I'm giving up

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Speaker 1: my managerial and administrative responsibilities, but I am still senior

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Speaker 1: investment strategist. I'll be working with our clients around the world,

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Speaker 1: and our clients include governments, not just here in the

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Speaker 1: United States, but it also in various places. And I

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Speaker 1: just had a thought that maybe Mr Cohn is a

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Speaker 1: little occupying Washington. Abbey chose of Cohen could go down

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Speaker 1: and help Gary con help the President of the United States,

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Speaker 1: and be that much closer to her beloving agency capital. Yeah,

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Speaker 1: let's let me just point out I'm not related to

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Speaker 1: Gary Code. But but Tom is right that I am

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Speaker 1: a big fan of the Washington capitals, So that would

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Speaker 1: be a good work. Abbey. Optimism is easy when there's

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Speaker 1: a bear market. There has not been when you've been

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Speaker 1: a resilient bull, aw can you stay optimistic on the

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Speaker 1: development of cash flow? Tom I think the issue right

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Speaker 1: now is more murky than usual because the fundamentals are good,

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Speaker 1: including the cash flow data. The economy is growing, we

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Speaker 1: had some acceleration coming into two thousand seventeen. Labor markets

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Speaker 1: are stronger, wages are in fact rising, running about two

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Speaker 1: and a half to three percent year on year growth.

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Speaker 1: The question really becomes the overlay of government policy, and

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Speaker 1: as everybody knows and you have focused on so well,

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Speaker 1: there is no clarity in terms of what those new

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Speaker 1: policies will look like. We have some idea of what

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Speaker 1: the President indicated he would like to do during the campaign,

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Speaker 1: but we now we of course need to see what

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Speaker 1: the legislation looks like, what will the Congress pass and

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Speaker 1: when will it be implemented. Some of the things that

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Speaker 1: many investors are hoping for, including changes in the tax code,

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Speaker 1: may be delayed quite a while while the Congress gets

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Speaker 1: its act together in terms of actually putting things down

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Speaker 1: on paper. What's your sense of the timetable here? We

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Speaker 1: had the President saying yesterday we're going to get a

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Speaker 1: in his words, phenomenal tax plan here in the next

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Speaker 1: few weeks. He said, You mentioned the legislative wrangling that's

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Speaker 1: that's sure to follow. Uh, how what's the time to

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Speaker 1: would look like to you? And how important is that

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Speaker 1: to you as an investor? Sort of waiting to see

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Speaker 1: these things. March is an important month because that's the

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Speaker 1: point at which the president the new administration will release

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Speaker 1: for the first time their draft of a budget. However,

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Speaker 1: we then will go into what does the Congress do

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Speaker 1: with it? Um, My colleagues in Goldman Sachs Investment Research

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Speaker 1: believe that even if something is passed by the end

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Speaker 1: of two thousand seventeen, important pieces of it won't be

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Speaker 1: implemented until next year. You know, I we hear so

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Speaker 1: much about regulatory reform, both in financial services but also

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Speaker 1: with the Affordable Care Act? How much of how much

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Speaker 1: is that affecting sort of your your outlook the prospect

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Speaker 1: there of of saying scaling back Todd Frank for instance,

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Speaker 1: We're not quite sure what will happen. Obviously, there has

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Speaker 1: been a notable increase in the price levels of financial

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Speaker 1: services stocks as many people are anticipating a less onerous

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Speaker 1: regulatory environment. Let me point out and say that some

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Speaker 1: regulation is very good regulation because it protects us, whether

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Speaker 1: it's financial services, the f D A, and many of

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Speaker 1: the environmental rigs as well, So it really depends upon

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Speaker 1: which regulations are being changed. The other thing that everyone

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Speaker 1: is looking for are the adjustments to the A C

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Speaker 1: A UM. It now looks like in Congress there's not

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Speaker 1: very much appetite for repeal well in advance of replace,

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Speaker 1: and there's not yet a plan that has come forward.

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Speaker 1: We're hearing that there are four separate plans that are

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Speaker 1: being discussed by the Republicans in Congress. It's not really

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Speaker 1: clear to us which way the Congress will decide to go.

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Speaker 1: What do we know of the potential economic ramifications of

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Speaker 1: a repeal or replacement or a picture we were different

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Speaker 1: to put in there? But how would that affect the economy?

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Speaker 1: One thing that I believe is not being adequately discussed

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Speaker 1: is that this period of confusion about what will happen

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Speaker 1: to UH the A C A is actually a dampener

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Speaker 1: for consumers spending. Many of the families that were most

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Speaker 1: benefited by Obamacare are middle income families UH. And these

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Speaker 1: are people who don't ullify for Medicaid. UH. They're not

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Speaker 1: able to afford their insurance without help. And it may

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Speaker 1: in fact be these middle income Americans who are most afflicted.

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Speaker 1: They may get nervous, They may begin to spend less,

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Speaker 1: save more, and obviously spend more on medical expenses rather

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Speaker 1: than other items. You'll forgive us for being a little

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Speaker 1: retrospective furiously announced your your retirement, but looking back, has

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Speaker 1: there been a moment like gold, not like a John

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Speaker 1: Tucker retirement? John Tucking retirement is here's a door with jury, Abby,

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Speaker 1: will you adopt me? Have we seen a moment like

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Speaker 1: this though, where politics has been as big a driver

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Speaker 1: as it seems to be right now, it's providing as

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Speaker 1: much uncertainty or driver as you see it. Clearly, this

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Speaker 1: is the most that we have seen in many decades.

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Speaker 1: I think if we go back over history, and Tom

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Speaker 1: and I love to reminisce because of our CIFA backgrounds,

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Speaker 1: of the nineteen thirties would have been a period where

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Speaker 1: politics had an enormous impact. There was also a period

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Speaker 1: when there was the big we shifting of political parties

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Speaker 1: in the nineties, sixties and early seventies as a consequence

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Speaker 1: of the Democrats um moving forward on things like voting

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Speaker 1: rights and civil rights and so on. But this is

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Speaker 1: certainly the biggest change that we have seen in several decades.

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Speaker 1: Now that we have a golden Sax retirement, maybe she

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Speaker 1: can go on the short short list for the new

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Speaker 1: chair of the Fed. Here here, not that I would

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Speaker 1: want to start any speculation or rumors will continue with

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Speaker 1: Abbe Joseph Cohen and speak of global central banks, of course,

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Speaker 1: with Mr Abbe visiting uh today, Uh, well, we'll talk

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Speaker 1: to Abby about not only global central banks, but of

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Speaker 1: course the Federal Reserve system. David Gerr and Tom Keane

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Speaker 1: with Abby Joseph Cohen, this moment in time, after a

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Speaker 1: story career in management, that golden section moves on to

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Speaker 1: an advisory role makes very clear it's a golden Sas retirement,

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Speaker 1: which is I think she gets to expand from seventy

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Speaker 1: hours a week to seventy two. You should add way

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Speaker 1: way too too young to retire. Yes, how kind of

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Speaker 1: you first? Are you? Okay? I just I don't know.

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Speaker 1: You know, this is the gear the Washington. She probably

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Speaker 1: went to Lloyd and said, Lloyd, I gotta see more,

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Speaker 1: old Vetchkan. I mean, it's probably what happened. Abby. I

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Speaker 1: want to get to the Fed. And David Brooks has

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Speaker 1: a great single sentence today among all that's going on

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Speaker 1: in Washington. He doesn't have to begin each day by

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Speaker 1: making enemies, says Mr Brooks in The New York Times,

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Speaker 1: is chair yelling President Trump's enemy? Based upon public commentary,

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Speaker 1: It's a little hard to tell. Um. Clearly he made

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Speaker 1: some unpleasant comments during the campaign, but has been more

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Speaker 1: quiet recently. I believe that the Federal reserves independence is

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Speaker 1: crucial to its success and therefore the success of the

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Speaker 1: U S economy. One of the things I'm concerned about

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Speaker 1: our movements in the Congress. For example, Senator Paul has

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Speaker 1: indicated he would like the feds dece visions to be audited. UM,

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Speaker 1: and I think to have somebody at the General Accounting Office.

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Speaker 1: Second guests, the dedicated staff at the FED on policy

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Speaker 1: changes is not a good idea. Maybe you can answer

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Speaker 1: this question, because I couldn't answer it myself, and I

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Speaker 1: can't find somebody answer for me. We're all becoming an

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Speaker 1: expert on Guantanamo, Cuba, Ninth Circuit Court. All this law

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Speaker 1: does a judicial process intrude in any threat to central

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Speaker 1: bank independence, not to my knowledge. And I believe that

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Speaker 1: what we're all getting over the last few days is

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Speaker 1: a terrific lesson in civics, and dare I say it's

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Speaker 1: some members of the administration are receiving that lesson as well,

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Speaker 1: but as a nation, our knowledge of basic civics has

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Speaker 1: declined in recent decades. When Sandra Day O'Connor retired from

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Speaker 1: the Supreme Court, this was her number one focus. She

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Speaker 1: developed something called ice Civics, which was an online curriculum,

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Speaker 1: which is now, as I understand it, being used in

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Speaker 1: half of the junior high schools throughout the United States.

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Speaker 1: It's a huge deal. DA. Absolutely. Let's talk a little

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Speaker 1: bit about the dollar as well. Obviously, that is something

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Speaker 1: that Donald Trump has been paying attention to and talking about,

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Speaker 1: or at least tweeting about where do you see the

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Speaker 1: dollar headed? And what do you make of the tweets

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Speaker 1: of the of the report that he's calling up General

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Speaker 1: Mike Flynn to ask sort of what's better a stronger dollar,

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Speaker 1: a weeker dollars. That's an administration that understands currency flux exactly.

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Speaker 1: I think most market participants understand that there are pros

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Speaker 1: and cons of a strong dollar. A strong dollar all

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Speaker 1: of the things being equal, suggests that there's confidence in

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Speaker 1: the United States, especially relative to other nations because the

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Speaker 1: dollar is a relative price. On the other hand, a

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Speaker 1: strong currency all by itself is something that could impede

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Speaker 1: export growth. The United States, however, is not as sensitive

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Speaker 1: to a strong currency as other nations would be, because

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Speaker 1: so much of what we export is high value added

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Speaker 1: goods and services, not all that that price depending. This

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Speaker 1: is critical. This goes down to terms of traits. I mean,

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Speaker 1: this is just absolutely critical that a third world agricultural,

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Speaker 1: single product nation can't really be compared in FX dynamics

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Speaker 1: to a high value added US. Right, that's exactly every day,

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Speaker 1: That's exactly right, Tom. The other thing that's very different

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Speaker 1: about the US is that our dollar is the main currency,

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Speaker 1: it is the reserve currency, and it is the safe

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Speaker 1: haven currency in this world. Whenever something goes wrong, including

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Speaker 1: in the United States, there's a rush of foreign capital

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Speaker 1: into the US UM. And we have to understand that

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Speaker 1: there are large amounts of reserves sitting around the world. UM.

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Speaker 1: The two largest holders outside the US China and Japan,

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Speaker 1: and we have seen that China has been reducing its

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Speaker 1: level of reserves of US dollars as interestingly, they have

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Speaker 1: been trying to manipulate their currency, but manipulating it to

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Speaker 1: the side, not to the down side. Babby, thank you,

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Speaker 1: thank you, thank you for coming in Emmy, Joseph Cohe

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Speaker 1: of Goldman Sachs and not enough market talk there for

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Speaker 1: those who want to know what Abby thinks about the SMP.

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Speaker 1: But certainly there was a sense of caution versus alright, bullish.

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Speaker 1: She may have more time to join us in the future. Yeah, back,

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Speaker 1: maybe she she she can, she can she do traffic, Yes,

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Speaker 1: particularly in Queen's now your Queen's traffic board. There they flow, queens.

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Speaker 1: They did very late last night, very like four in

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Speaker 1: the morning. Joseph Cohen with Goldman Sachs at the point,

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Speaker 1: Thank you, Greg Belly Horizon, Greg eight ways to go here.

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Speaker 1: It's just been an extraordinary twenty four hours for all

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Speaker 1: of us and our president. The certitude of his tweet

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Speaker 1: last night assumes we vault to the Supreme Court. I

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Speaker 1: have seen this morning alone, three or four experts say

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Speaker 1: maybe not. What is the path from the Ninth Circuit

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Speaker 1: Court And to begin the discussion, why don't they just

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Speaker 1: go to a larger appeals court decision? Well, I think

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Speaker 1: you're right, good morning time. I think that, uh, if

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Speaker 1: if he's going to lose in the Supreme Court with

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Speaker 1: a four or four tie, which would uphold the Ninth Circuit,

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Speaker 1: or loses five to three in the Supreme Court. He

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Speaker 1: doesn't like to lose. So I think the White House

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Speaker 1: now is considering other options. Maybe they modify the immigration man,

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Speaker 1: maybe they seek another court. So all of a sudden,

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Speaker 1: that's a little cloudy within this in the greeting today

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Speaker 1: and all the emotion of the Prime Minister of Japan

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Speaker 1: visiting Arlington and the tomb of the unknown soldier folks,

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Speaker 1: one steps, the salute, the second pause by the the

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Speaker 1: officers and enlisted people there at the tomb. Within the

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Speaker 1: drama and the picture is chaos. What is the part

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Speaker 1: of the cacophony, Greg that you're focused on right now? Well,

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Speaker 1: I don't want to be contrarian this morning with you, Tom.

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Speaker 1: I think that they do things like this masterfully. It'll

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Speaker 1: be well orchestrated. There's going to be talk of Japanese

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Speaker 1: jobs coming to the US. They won't talk about currency issues.

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Speaker 1: They're going to play golf this weekend. It will be

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Speaker 1: labeled as a success. This guy, for all of his

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Speaker 1: flaws for this horrible week he's had, can still manipulate

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Speaker 1: the news cycle and brand himself brilliantly. Let me ask

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Speaker 1: last night at President Trump calling Chinese president She's and

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Speaker 1: being reaffirming the US commitment to the One China policy. Greg,

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Speaker 1: what precipitated this and how important is it that the

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Speaker 1: President made that call. I think it's a big deal, David,

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Speaker 1: and it shows once again he can manipulate the news cycle.

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Speaker 1: But a financial markets, this really alleviates fears of the U. S.

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Speaker 1: China trade war. It's a good story, just like Japanese

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Speaker 1: jobs are a good story, just like his talk yesterday

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Speaker 1: about tax cuts is good. So he knows how to

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Speaker 1: push the right buttons to change the subject when the

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Speaker 1: subject gets pretty ugly, like it did yesterday. You mentioned

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Speaker 1: the symbolism that we'll see today at Arlington at the

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Speaker 1: White House. How about in the budget. Are we going

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Speaker 1: to see a budget from this White House that's going

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Speaker 1: to be replete with a lot of symbolism? And we've

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Speaker 1: heard about cuts to the National Endowment of the Arts,

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Speaker 1: National Endowment for the Humanities, et cetera. A small budget

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Speaker 1: line items, but as I said, replete with symbolism. Is

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Speaker 1: that what you're expecting when we get that document, it's

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Speaker 1: going to be an epic battle. It will. It will

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Speaker 1: far far surpass the fights we had with Ronald Reagan

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Speaker 1: and his budget. The cuts he will propose will be enormous.

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Speaker 1: Defense will get a boost, but everything else I think

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Speaker 1: would get a severe cut. And of course he's now

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Speaker 1: going to start talking about taxes. We've got a long

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Speaker 1: way to go on that, but he he will start

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Speaker 1: talking about that as well. Greg, I know on the

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Speaker 1: shortlist David Gura comparely, he had to be medicated yesterday.

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Speaker 1: The Kale Council will be cut back there subsiden Yeah, Gregg,

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Speaker 1: thank you so much for perspective. I you know, I

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Speaker 1: think I said last time, Gregg, I can't get crazier. Well,

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Speaker 1: guess what, folks, it did last night was extraordinary. Gregg

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Speaker 1: Valier with Horizon brought you by Bank of America. Mary Lynch,

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Speaker 1: dedicated to bringing our clients insights and solutions to meet

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Speaker 1: the challenges of a transforming world. That's the power of

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Speaker 1: global connections. Mary Lynch, Pierce Federan Smith Incorporated, Member s

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Speaker 1: I p C. This is the most important interview of

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Speaker 1: the day for all of you. Across America and worldwide.

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Speaker 1: Noah Feldman in Moments from Harvard University and Harvard Law,

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Speaker 1: with careful, non political, non angled discussion of what we

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Speaker 1: observed in American history yesterday. He's our most valuable players.

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Speaker 1: Since January, Noah Feldman has brought clarity to the complexity

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Speaker 1: of American law. Now let me start with the announcement,

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Speaker 1: and everybody's punded this thing to death. You go back

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Speaker 1: to eighteen sixties six. Daniel day Lewis saved the day

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Speaker 1: for Abraham Lincoln late in eighteen sixty five, a tragic assassination.

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Speaker 1: And then in Milligan we pick up the story of

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Speaker 1: what we observed yesterday in San Francisco. Why does a

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Speaker 1: Ninth Circuit court care about Milligan of eighteen sixty six.

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Speaker 1: The reason is that after Lincoln's death, the federal government

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Speaker 1: kept on trying to use the same military courts that

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Speaker 1: Lincoln himself had put into place during the Civil War

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Speaker 1: against civilians, including civilians who were seen as having been

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Speaker 1: sympathetic to the Southern cause. And Lambdon p. Million was

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Speaker 1: just such a person, a Southern Democrat, and he was

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Speaker 1: put on trial for his life in a military court.

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Speaker 1: Despite being a civilian, and the Supreme Court said no.

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Speaker 1: It was a landmark decision holding that the criminal courts

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Speaker 1: are open, and if they are open, then they have

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Speaker 1: to be used to try civilians. The President United States

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Speaker 1: is not the commander in chief ultimately of the country.

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Speaker 1: He's the commander chief of the armed forces. And in

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Speaker 1: this instance the Court struck down the use of the

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Speaker 1: miliary courts. And then you moved to two thousand and

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Speaker 1: eight with a sitting Judge Anthony Kennedy, and this is

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Speaker 1: Guantanamo Bay in Cuba, where the courts said to President

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Speaker 1: Bush what they said basically to President Trump yesterday discuss

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Speaker 1: is it Boomadian exactly? Yea, just us so and so.

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Speaker 1: In the Boden case, which is the last, the culminating

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Speaker 1: case of the Guantanamo Bay cases, Congress with the signature

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Speaker 1: of the President, had officially said the basic right of

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Speaker 1: habeas corpus just doesn't apply to the detainees in Guantanamo.

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Speaker 1: There there they can be tried by a military tribunal

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Speaker 1: and the courts don't get to review the tribunal with

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Speaker 1: the tribunal did and Justice Kennedy, writing for a majority

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Speaker 1: of the Supreme Court, said more or less I'm quoting here.

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Speaker 1: It's not up to Congress and the President to treat

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Speaker 1: the Constitution like an on off switch. The Constitution is there,

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Speaker 1: and therefore we're going to apply the Constitution even in

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Speaker 1: Guantanamo Bay, which less we've forgotten, isn't actually part of

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Speaker 1: the United States. But Justice Kennedy says, we're going to

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Speaker 1: treat it as though it is in order to make

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Speaker 1: the point that nobody is outside the reach of the Constitution.

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Speaker 1: And the Court gets to say that. And as you say,

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Speaker 1: that's exactly what the Ninth Circuit panel said yesterday to

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Speaker 1: President Trump. Now, how did these attorneys channel deal with

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Speaker 1: the issue of standing in this case in particular? Well,

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Speaker 1: as you know, it's an open question whether states rather

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Speaker 1: than individuals could bring a suit challenging President Trump's executive

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Speaker 1: order on immigration, and the Ninth Circuit said that the

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Speaker 1: reason the states of Washington and Minnesota were allowed to

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Speaker 1: bring that suit is that they basically have a job

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Speaker 1: of running universities, and through their state universities, they hire

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Speaker 1: professors from abroad, they bring in visiting speakers from abroad,

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Speaker 1: they have students who come from abroad. And the court

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Speaker 1: bought the argument that the states in that job, essentially

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Speaker 1: as university proprietors, are affected by the immigration order and

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Speaker 1: therefore can come into court not only on their own behalf,

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Speaker 1: but also on behalf of their students. And then went

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Speaker 1: all the way back to the beginning of the twentieth

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Speaker 1: century to site cases where schools were able to bring

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Speaker 1: claims on behalf of their students, including a particularly important

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Speaker 1: education case called Pierce against Society of Sisters, which is

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Speaker 1: all the question of whether a private religious school was

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Speaker 1: allowed to teach German, which actually been prohibited as part

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Speaker 1: of the anti German legislation at the time of World

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Speaker 1: War One. And it's a famous case and every law

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Speaker 1: student reads it. The court ultimately said that you can

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Speaker 1: teach your kids any damn thing you please. And the

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Speaker 1: Supreme Court side of this for the unusual proposition that

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Speaker 1: the case is actually brought by the nuns who ran

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Speaker 1: the school. Help me understand how many parallel tracks we

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Speaker 1: have here. There's talk of this case not going to

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Speaker 1: the Supreme Court, of course, said remember the night of

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Speaker 1: this band going into place. There is a decision in Brooklyn,

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Speaker 1: another one shortly followed in in Massachusetts. How do you

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Speaker 1: how do you make sense of all of this stuff?

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Speaker 1: How does it all fit together? You're absolutely right. There

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Speaker 1: are those cases, and then there are more. There's a

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Speaker 1: Maryland case, there's another case now in Dallas. You know,

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Speaker 1: there are many many approaches. If you were the you know,

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Speaker 1: if you were the Department of Justice right now, you'd

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Speaker 1: be looking around the country and thinking that you're you know,

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Speaker 1: you're like the swordswoman in Kill Bill. You've got attackers

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Speaker 1: coming you from all directions, and you've got to wield

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Speaker 1: that sword and you've gotta keep on going after each

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Speaker 1: and every one of them. That, unfortunately, is the reality,

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Speaker 1: that's the legal reality from the perspective of the Department

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Speaker 1: of Justice and the Trump administration. Because of our system

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Speaker 1: of courts, we are the only person, or the only

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Speaker 1: institution rather that can impose uniformity on the federal courts

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Speaker 1: is the Supreme Court. And you can't get to the

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Speaker 1: Supreme Court right away. You've got to work your way

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Speaker 1: up through the lower courts. And so that's what happens

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Speaker 1: when an administration gets challenged. You know, something similar happened

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Speaker 1: in the Obama administration when there were various challenges across

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Speaker 1: the country to the Affordable Care Act. They happened all

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Speaker 1: over the country, and they gradually made their way up

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Speaker 1: to the Supreme Court. So that's the That's the way

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Speaker 1: the game is played. It's not how you or I

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Speaker 1: would probably design the game from scratch, but that is

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Speaker 1: how the several court system has devolved in US history,

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Speaker 1: for better or worse. What's your sense of how equipped

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Speaker 1: the Justice Department is to deal with with that? To

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Speaker 1: be a swordsman fighting so many adversaries here, Remember how

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Speaker 1: on the night of this argument in Seattle, how that

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Speaker 1: telephone argument that the lawyers who were assigned of the

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Speaker 1: case were removed from it because of their previous affiliation

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Speaker 1: with Jones Day and a backup I think we can

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Speaker 1: say was was shifted into to argue the case. Now

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Speaker 1: the Justice Department has a new Attorney General, Jeff Sessions,

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Speaker 1: sworn in, confirmed and sworn in. How how prepared, how

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Speaker 1: ready is this Justice Department to defend this in so

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Speaker 1: many venues? Well under normal circumstances, my answer would be

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Speaker 1: extremely ready. You know, the d o J is not

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Speaker 1: just an institution run from the top by an Attorney

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Speaker 1: in General, though it of course is that. It's also

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Speaker 1: got a huge deep bench of excellent lawyers who are

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Speaker 1: what are called career employees, that is to say, they're

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Speaker 1: not political employees hired and fired by each new president.

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Speaker 1: There are people who have devoted their lives and also

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Speaker 1: their pocketbooks because they make a lot less money in

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Speaker 1: the Department of Justice than they would in private practice

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Speaker 1: to defending whatever positions the federal government takes, and also

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Speaker 1: to litigating issues on behalf of the government, and those

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Speaker 1: professionals are ordinarily often the best people for the job.

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Speaker 1: You also often you almost never see the Department of

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Speaker 1: Justice outsmarted or outguns in their litigation. What makes this

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Speaker 1: case a little different is that, in a way, the

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Speaker 1: position of the administration is a bit of a moving target.

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Speaker 1: And I'm trying to say this is objectively as I can.

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Speaker 1: Because of the way this executive order was rolled out

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Speaker 1: without first being vetted through the usual d J channels,

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Speaker 1: there wasn't a kind of fully developed defense of every

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Speaker 1: last aspect of this order that you would usually have

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Speaker 1: when a government plan was put out. And you've seen

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Speaker 1: this in the court challenges, and it actually was an

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Speaker 1: important factor in the Ninth Circus decision yesterday as well.

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Speaker 1: So where we are this morning. Do they go back

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Speaker 1: and do it right, or did they barrel forward all

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Speaker 1: of the style of our president. Go to the Supreme

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Speaker 1: Court and confront Justice Kennedy and the rest. If the

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Speaker 1: real goal was or is, to get some version of

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Speaker 1: the executive order in place that will survive judicial review

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Speaker 1: and make it through the Supreme Court, and if I

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Speaker 1: were saying they're advising the presidents on that, I would say,

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Speaker 1: that's your goal. Go back and do it again. Write

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Speaker 1: a new order that says it doesn't cover green cardholders,

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Speaker 1: it doesn't apply to anyone inside the US. You can

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Speaker 1: keep on talking about these countries, but make it very

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Speaker 1: clear that it's not a ban on Muslims. Take out

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Speaker 1: the part that says that once we restart immigration, we're

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Speaker 1: going to favor religious minorities, which means Christians. And then

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Speaker 1: you have a very good chance of getting this to

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Speaker 1: the courts. Without that, the odds seems very high that

436
00:25:41,119 --> 00:25:43,879
Speaker 1: this will go down, both on its merits and also

437
00:25:44,000 --> 00:25:46,880
Speaker 1: because you know, the courts are just like anybody else.

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00:25:46,920 --> 00:25:49,480
Speaker 1: They don't like somebody stepping on their toes. They don't

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00:25:49,520 --> 00:25:53,199
Speaker 1: like the president stepping to them, and Justice Kennedy and

440
00:25:53,200 --> 00:25:56,239
Speaker 1: the rest of the liberal justices, regardless of what they

441
00:25:56,240 --> 00:25:59,720
Speaker 1: think of the executive order itself, are going to experience

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00:26:00,320 --> 00:26:03,040
Speaker 1: the White House statements as a as a threat. A

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00:26:03,080 --> 00:26:05,280
Speaker 1: tweet crossing the transom, just a moment to go from

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00:26:05,320 --> 00:26:08,280
Speaker 1: real Donald Trump, the president's personal account, he writes, citing

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00:26:08,359 --> 00:26:11,600
Speaker 1: law Fair, the National Security Law website run by Benjamin

446
00:26:11,600 --> 00:26:14,760
Speaker 1: Wittes in cooperation with the Brook Institution, saying law Fair

447
00:26:14,840 --> 00:26:17,400
Speaker 1: remarkably in the entire opinion, the panel did not bother

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00:26:17,480 --> 00:26:20,679
Speaker 1: even to cite this the statute. He then writes, a

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00:26:20,760 --> 00:26:23,359
Speaker 1: disgraceful decision. Want to bring a Feldman again. He is

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00:26:23,680 --> 00:26:27,680
Speaker 1: professor of law at Harvard University and the Twitter two

451
00:26:27,680 --> 00:26:31,080
Speaker 1: oh two at Harvard Law. We'll have to ask Noah

452
00:26:31,080 --> 00:26:33,760
Speaker 1: Felton joining us here on the Special Enterprise phone line,

453
00:26:33,760 --> 00:26:38,280
Speaker 1: Special Enterprise nationwide fiber based networking I T infrastructure solutions. Now,

454
00:26:38,320 --> 00:26:40,120
Speaker 1: I'll just have your react to this. You can tell

455
00:26:40,160 --> 00:26:42,480
Speaker 1: us if there is Twitter two out two at Harvard Law.

456
00:26:42,520 --> 00:26:44,399
Speaker 1: But I guess the broader question here is we have

457
00:26:44,440 --> 00:26:48,640
Speaker 1: the President waiting and very vociferously on this decision. Well,

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00:26:48,840 --> 00:26:50,639
Speaker 1: I think it would be great to offer Twitter two

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00:26:50,720 --> 00:26:52,359
Speaker 1: or two, But first I'd have to take it. I'm

460
00:26:52,400 --> 00:26:54,760
Speaker 1: just learning how to use the darn thing myself. However,

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00:26:54,800 --> 00:26:56,840
Speaker 1: at this point it's part of our It's gonna have

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00:26:56,880 --> 00:26:58,920
Speaker 1: to be part of the curriculum. Since the president's litigating

463
00:26:58,960 --> 00:27:01,840
Speaker 1: this case on Twitter. You know, my short answer is,

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00:27:02,240 --> 00:27:04,159
Speaker 1: had I written the opinion, I think I would have

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00:27:04,200 --> 00:27:07,360
Speaker 1: spent a little bit more time addressing specifically the statute.

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00:27:07,400 --> 00:27:10,880
Speaker 1: And there are legal arguments to be made on both sides.

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00:27:10,920 --> 00:27:13,440
Speaker 1: The Statute on one level, does appear to give discretion

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00:27:14,040 --> 00:27:17,600
Speaker 1: to the president. On the other hand, the Supreme the

469
00:27:17,840 --> 00:27:21,280
Speaker 1: Ninth Circuit made it really clear that that that statute

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00:27:21,320 --> 00:27:24,800
Speaker 1: is still trumped by the Constitution and that the President

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00:27:24,800 --> 00:27:28,320
Speaker 1: can only exercise this authority pursuant to the Statute through

472
00:27:28,320 --> 00:27:32,280
Speaker 1: the lens of not violating people's rights to do process

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00:27:32,480 --> 00:27:35,840
Speaker 1: and against religiou discrimination. But yeah, if I had written it,

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00:27:35,840 --> 00:27:37,640
Speaker 1: I would have put a lot more discussion of those

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00:27:37,640 --> 00:27:41,919
Speaker 1: issues into the opinion. That said, I do teach my

476
00:27:41,960 --> 00:27:44,360
Speaker 1: students that the way to litigated cases through your briefs

477
00:27:44,840 --> 00:27:48,800
Speaker 1: and not through public communication, primarily because it tends to

478
00:27:48,800 --> 00:27:51,320
Speaker 1: get the judges back up, and judges are human beings

479
00:27:51,920 --> 00:27:54,800
Speaker 1: and this is not historically the best way to convince

480
00:27:54,840 --> 00:27:56,800
Speaker 1: judges to be sympathetic and the onlyad to try to

481
00:27:56,840 --> 00:28:00,159
Speaker 1: bully and insult them using Twitter. Maybe the president has

482
00:28:00,200 --> 00:28:01,800
Speaker 1: some idea that's going to be different this time, but

483
00:28:01,920 --> 00:28:04,880
Speaker 1: at least so far, he's discovered that the courts are

484
00:28:04,880 --> 00:28:08,600
Speaker 1: pretty different from other people whom you can sometimes pressure

485
00:28:08,680 --> 00:28:11,119
Speaker 1: through external media. The courts tend to react the other way.

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00:28:11,160 --> 00:28:12,960
Speaker 1: We had Happy Joseph Cohen of Goldman sax Here a

487
00:28:12,960 --> 00:28:15,040
Speaker 1: few minutes ago. She was talking about the lesson in

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00:28:15,119 --> 00:28:18,160
Speaker 1: civics we're getting right now. When you look at the

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00:28:18,160 --> 00:28:21,160
Speaker 1: the integrity of these three branches of government right now,

490
00:28:21,160 --> 00:28:24,080
Speaker 1: are you are you confident in how how great the

491
00:28:24,080 --> 00:28:29,520
Speaker 1: integrity is. I would say that I am enthusiastic, but

492
00:28:29,640 --> 00:28:33,760
Speaker 1: not utterly confident. The Republic has been tested before, and

493
00:28:33,800 --> 00:28:38,560
Speaker 1: our record is mixed. Sometimes, especially in wartime, the executive

494
00:28:38,560 --> 00:28:40,800
Speaker 1: branch has been able to get away with some pretty

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00:28:40,800 --> 00:28:44,960
Speaker 1: outrageous things in recent memory. You know, even great presidents

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00:28:44,960 --> 00:28:47,640
Speaker 1: like Franklin Delano Roosevelt, who, regardless of what you think

497
00:28:47,680 --> 00:28:49,480
Speaker 1: about the New Deal, was great in terms of winning

498
00:28:49,480 --> 00:28:53,200
Speaker 1: World War Two, managed to suppress Japanese American rights and

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00:28:53,240 --> 00:28:56,200
Speaker 1: in turn, a couple hundred people and the courts let

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00:28:56,280 --> 00:28:58,120
Speaker 1: him get away with it because they were loyal to

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00:28:58,120 --> 00:29:00,200
Speaker 1: the president. So you know, we shouldn't pat us us

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00:29:00,200 --> 00:29:01,920
Speaker 1: on the back and say the courts will always work.

503
00:29:02,320 --> 00:29:04,120
Speaker 1: On the other hand, we also have a consistent line

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00:29:04,120 --> 00:29:06,360
Speaker 1: of cases, some of which were sided by the Ninth Circuit,

505
00:29:07,040 --> 00:29:08,920
Speaker 1: in which the courts have stood up to the president.

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00:29:09,120 --> 00:29:11,560
Speaker 1: And since we're not I mean, we have wars going

507
00:29:11,560 --> 00:29:13,320
Speaker 1: on in the world, but we're not in a kind

508
00:29:13,320 --> 00:29:14,800
Speaker 1: of war that we were in in World War Two,

509
00:29:15,160 --> 00:29:17,400
Speaker 1: my guess is that the courts will sufficiently send up

510
00:29:17,400 --> 00:29:21,800
Speaker 1: to the president on this one. Give us a civics lesson, Professor. Finally, here,

511
00:29:22,640 --> 00:29:26,920
Speaker 1: where does Judge Roberts fit into the debate, the dialogue,

512
00:29:27,080 --> 00:29:30,920
Speaker 1: the process if we go to the Supreme Court very soon.

513
00:29:32,200 --> 00:29:35,120
Speaker 1: You know, the Chief Justice, to my mind, is a

514
00:29:35,160 --> 00:29:39,880
Speaker 1: follower of the great Justice Felix Frankfurter, who was significant

515
00:29:39,920 --> 00:29:42,360
Speaker 1: because he started his career as a liberal arguing for

516
00:29:42,440 --> 00:29:45,200
Speaker 1: judicial restraint, which was a liberal position, and then when

517
00:29:45,240 --> 00:29:47,800
Speaker 1: the Court got a majority of liberals, the rest of

518
00:29:47,840 --> 00:29:49,920
Speaker 1: them said, okay, well, let's let's get beyond that judicial

519
00:29:49,920 --> 00:29:52,440
Speaker 1: restraint business. Let's just start deciding cases the way we

520
00:29:52,480 --> 00:29:54,680
Speaker 1: want to decide them, and he said, well, wait a minute,

521
00:29:54,680 --> 00:29:56,760
Speaker 1: that's not how we got here. We believe in judicial restraint.

522
00:29:57,040 --> 00:29:59,720
Speaker 1: And so then he became a conservative and by the

523
00:29:59,760 --> 00:30:02,240
Speaker 1: end of his career he had no friends. I have

524
00:30:02,320 --> 00:30:05,600
Speaker 1: the feeling that that is where Chief does Is Roberts himself,

525
00:30:05,680 --> 00:30:09,240
Speaker 1: maybe maybe headed. He believes in judicial restraint, and he's

526
00:30:09,280 --> 00:30:11,800
Speaker 1: exercised it more or less when the chips were down

527
00:30:11,840 --> 00:30:14,280
Speaker 1: in the important cases before him, including the Obamacare case,

528
00:30:14,680 --> 00:30:17,960
Speaker 1: and that has made the conservatives very, very very skeptical

529
00:30:18,000 --> 00:30:20,000
Speaker 1: of him, even though he began as a conservative hero.

530
00:30:20,120 --> 00:30:22,160
Speaker 1: And you know, that's to me, that's what a judicial

531
00:30:22,160 --> 00:30:23,800
Speaker 1: hero is is someone in the middle of his sticks

532
00:30:23,840 --> 00:30:27,080
Speaker 1: by his guns, no matter which side is against him.

533
00:30:27,160 --> 00:30:29,280
Speaker 1: And I have faith in the Chief does Is Roberts,

534
00:30:29,320 --> 00:30:31,080
Speaker 1: that that's the direction he's headed. It's not the way

535
00:30:31,120 --> 00:30:34,000
Speaker 1: to be loved, but it is the way to be honored. Professor,

536
00:30:34,040 --> 00:30:35,480
Speaker 1: we are on it that you've been with us here

537
00:30:35,520 --> 00:30:38,200
Speaker 1: a number of days recently, somehow, I think will speak

538
00:30:38,240 --> 00:30:41,320
Speaker 1: again soon. I should point out that Noah Feldman is

539
00:30:41,360 --> 00:30:45,880
Speaker 1: the Felix Frankfurt Professor of Law at Harvard Law School,

540
00:30:45,920 --> 00:30:50,240
Speaker 1: bringing full circle uh important law of the twentieth century

541
00:30:50,280 --> 00:30:54,720
Speaker 1: into the cacophony known as UH February two thousand seventeen,

542
00:30:54,720 --> 00:30:58,600
Speaker 1: I urge you to consider Noah Feldman's Bloomberg View columns.

543
00:30:58,680 --> 00:31:03,000
Speaker 1: They are exceptional valued and you can tell David There's

544
00:31:03,120 --> 00:31:08,760
Speaker 1: killing himself not to have a political angle yesterday, So

545
00:31:08,800 --> 00:31:11,720
Speaker 1: addressing this the ninth Circumcision and then also the the

546
00:31:12,080 --> 00:31:15,800
Speaker 1: ethics concern Serna, Kelly and Conway, and there's been very good,

547
00:31:15,880 --> 00:31:18,560
Speaker 1: very very good coverage on other networks. I mean, we

548
00:31:18,560 --> 00:31:22,200
Speaker 1: were very fortunate to have a lot of actual legal

549
00:31:22,280 --> 00:31:28,560
Speaker 1: talent with background in depth a pontificating. Unfortunately, wrapped around

550
00:31:28,560 --> 00:31:32,120
Speaker 1: it is a fair amount of punditry, David there is,

551
00:31:32,200 --> 00:31:34,520
Speaker 1: so we stray away from that as much as we can.

552
00:31:41,640 --> 00:31:46,040
Speaker 1: Thanks for listening to the Bloomberg Surveillance podcast. Subscribe and

553
00:31:46,080 --> 00:31:51,160
Speaker 1: listen to interviews on iTunes, SoundCloud, or whichever podcast platform

554
00:31:51,280 --> 00:31:54,840
Speaker 1: you prefer. I'm out on Twitter at Tom Keene. David

555
00:31:54,840 --> 00:31:58,520
Speaker 1: Gura is at David Gura. Before the podcast, you can

556
00:31:58,640 --> 00:32:14,880
Speaker 1: always catch us world. I'm Bloomberg Radio, brought you by

557
00:32:15,120 --> 00:32:18,840
Speaker 1: Bank of America Mary Lynch, dedicated to bringing our clients

558
00:32:18,920 --> 00:32:23,120
Speaker 1: insights and solutions to meet the challenges of a transforming world.

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00:32:23,560 --> 00:32:27,280
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00:32:27,360 --> 00:32:30,840
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