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

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Speaker 2: I am Stormy Daniels, adult film star, mom idiot who

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Speaker 2: can't keep.

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Speaker 3: Her mouth shut.

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Speaker 2: Stormy Daniels has told the story of a sexual encounter

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Speaker 2: with Donald Trump in two thousand and six over and

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Speaker 2: over and over again in the last eighteen years, including

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Speaker 2: in a documentary. But this week it was different because

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Speaker 2: she told that story under oath on the witness stand

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Speaker 2: in Trump's hush money trial, and she had to defend

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Speaker 2: her account under tough pushback from a defense attorney who

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Speaker 2: said she'd made it all up. The tawdry, embarrassing details

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Speaker 2: were cringeworthy, causing the former president to curse audibly and

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Speaker 2: shake his head. Joining me is Jessica Levinson, a professor

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Speaker 2: at Loyola Law School and host of the Passing Judgment podcast.

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Speaker 2: Picture did Stormy Daniel's testimony move the prosecution's case forward?

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Speaker 3: I think Stormy daniels testimony did actually move the prosecution's

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Speaker 3: case forward, because, well, I know, there's been a lot

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Speaker 3: of discussion about whether or not she went into too

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Speaker 3: much detail and whether it's actually beyond the scope of

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Speaker 3: the trial. When I take a step back and think

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Speaker 3: about what the trial is about. Part of the trial

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Speaker 3: it's about whether or not she got this touch money

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Speaker 3: payment to try and make sure that the voters didn't

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Speaker 3: hear her story. So hearing the details of her story

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Speaker 3: I think does matter because I think what the prosecution

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Speaker 3: is going to say is that was pretty hard, that

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Speaker 3: was pretty taudry. That really would have hurt President Trump's

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Speaker 3: chances when he was candidate Trump. So now you understand

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Speaker 3: why he made this payment to her. It was because

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Speaker 3: he didn't want the voters to hear that right after

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Speaker 3: the access Hollywood type, right before voting.

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Speaker 2: Technically, the prosecution could have presented its case without her testimony.

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Speaker 3: Right absolutely, you could have had a prosecutor that decides,

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Speaker 3: we don't want Stormy Daniels. She was I think, in

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Speaker 3: some ways one of the riskier witnesses because you don't

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Speaker 3: know exactly what she's going to say. It's not like

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Speaker 3: somebody who's testifying to bank records and transfers and emails.

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Speaker 3: Having said that, if you think about the chase without

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Speaker 3: Stormy Daniels, it has a lot of consequences, but not

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Speaker 3: a lot of causes. And so Stormy daniels story about

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Speaker 3: her alleged affair with the former president and the details

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Speaker 3: of that and why she felt it was pressing to

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Speaker 3: get that payment before the election. I think all sets

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Speaker 3: into motion the story that we ended up hearing about

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Speaker 3: and continue to hear about from the prosecution. I mean,

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Speaker 3: this is the speed that started this whole chain of events.

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Speaker 2: Did the salacious and tawdry details dirty up Trump? Do

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Speaker 2: you think in the jury's eyes?

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Speaker 3: So, this jury, I think has certainly already heard a

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Speaker 3: lot about Trump in the sense that he was our

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Speaker 3: former president. We've all heard a lot of accusations about him.

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Speaker 3: But I think that her testimony did dirty up Trump,

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Speaker 3: so to speak, in part because she's bringing you into

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Speaker 3: this very intimate encounter, and it doesn't paint Trump in

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Speaker 3: a good picture. It makes it sound like there was

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Speaker 3: maybe something on the edge of non consensual about this

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Speaker 3: particular interaction. And she described blacking out, and while she said,

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Speaker 3: you know, she wasn't drunk and she wasn't drugs, it

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Speaker 3: doesn't sound like the type of encounter where she really

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Speaker 3: wanted to be with the former president, who was then

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Speaker 3: just a private citizen. So I think it was emotionally

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Speaker 3: impactful for the jury. Does that go to any specific

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Speaker 3: question in this case, maybe not.

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Speaker 2: Trump's lawyer Todd Blanche, asked for a mistrial twice, saying

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Speaker 2: the judge had allowed Daniels to give far too many

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Speaker 2: intimate details for a case involving business records. The judge

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Speaker 2: agreed that Daniels shouldn't have been asked about some of

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Speaker 2: these things, but said the defense hadn't objected to these

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Speaker 2: questions when they were asked, which is true. The defense

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Speaker 2: didn't object to a lot of these details that I

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Speaker 2: now say are tawdry.

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Speaker 3: That's right. I think that judge, in saying that he

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Speaker 3: would not grant the mistrials, really did put some blame

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Speaker 3: on the defense, both before the testimony happened and while

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Speaker 3: it happened. So before it happened, what I heard the

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Speaker 3: judge saying, in part was that the defense had focused

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Speaker 3: part of their energy on whether or not there was

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Speaker 3: an alleged affair between Trump and Daniels, and so the

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Speaker 3: only person other than Trump who can really testify to

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Speaker 3: that is Daniels. So in part of here, the judge saying,

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Speaker 3: we should really understand that the defense is the one

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Speaker 3: who almost necessitated putting her on the stand, that it's

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Speaker 3: an invitation to have for testify and testify in some

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Speaker 3: detail about having sex with Trump. The other thing is

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Speaker 3: that the defense did not vigorously object at the time

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Speaker 3: at all while she was testifying. So for some of

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Speaker 3: the allegations here at the allegations that there should have

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Speaker 3: been a mistrial, that it was too prejudicial, there's more

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Speaker 3: prejudicial than probative. I really heard the judge saying this

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Speaker 3: isn't on me, and he'll try and do the best

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Speaker 3: that he can do in terms of cleaning this up

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Speaker 3: in jury instructions, and that the defense has a lot

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Speaker 3: of blame for what happened.

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Speaker 2: The cross examination was long and drawn out, and the

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Speaker 2: defense attorney, who's a very experienced attorney, grill Daniels over

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Speaker 2: what i'd call small inconsistencies in the accounts that she's

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Speaker 2: given of this over the last eighteen years, like details

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Speaker 2: like whether they actually ate dinner together, whether Trump's security

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Speaker 2: man was standing outside the suite. Does impeaching on those

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Speaker 2: little details help impact her credibility?

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Speaker 3: So I don't know. I think the prosecution still has

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Speaker 3: a good theory of the case in terms of explaining

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Speaker 3: why Daniels really doesn't have a motivation to lie at

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Speaker 3: this point, and little inconsistencies, I think are things that

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Speaker 3: the jury would understand, particularly when you've told a story

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Speaker 3: over and over again over a course of years, that

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Speaker 3: there are certain things with just with respect to memory

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Speaker 3: that might change. But the overall picture, I think the

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Speaker 3: details of the story that Dormy Daniels has told over

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Speaker 3: these years, the big details are all the same. I

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Speaker 3: expect the prosecution will emphasize that, and I think what

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Speaker 3: the defense was trying to do in part is, you

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Speaker 3: know you made this up. The details change. Part of

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Speaker 3: what the defense is arguing is you made this up

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Speaker 3: because you just hated Trump. You made this up because

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Speaker 3: that's part of what you do. You make up stories

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Speaker 3: about people having sex, and you know you've written adult

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Speaker 3: films and directed adult films. But ultimately it's up to

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Speaker 3: the jury to determine it and if any of that

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Speaker 3: really undermines the bulk of her testimony here.

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Speaker 2: Trump has reportedly been closing his eyes during some of

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Speaker 2: the testimony, and during Stormy Daniel's testimony, the judge said

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Speaker 2: Trump was cursing audibly, and in a sidebar, he said,

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Speaker 2: I understand that your client is upset at this point.

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Speaker 2: But he's cursing audibly and he's shaking his head visually,

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Speaker 2: and that's contemptuous. The jury's watching Trump closely, as they

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Speaker 2: watch every defendant. Do you think this kind of behavior

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Speaker 2: has an impact on them?

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Speaker 3: I think everything affects the jury. And that's why, as

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Speaker 3: a jury consultant, you would tell a defendant to dress

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Speaker 3: a certain way, to act a certain way, to sit

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Speaker 3: with their posture in a certain way, to you know,

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Speaker 3: look straight ahead, take notes diligently. Whatever it is that

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Speaker 3: the attorneys or the jury consultants think are useful. But

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Speaker 3: it just drains common sense to think that the jury

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Speaker 3: isn't intently washing, particularly this defendant. And you know, to

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Speaker 3: the extent that it looks like he can't control himself

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Speaker 3: in the courtroom or he's otherwise behaving badly, you know,

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Speaker 3: in the jury's mind. I think they just can't forget that. Now,

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Speaker 3: Will that mean that they absolutely convict him, No, they

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Speaker 3: still have to look at the facts that are separate

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Speaker 3: and apart from Trump shaking his head and Trump, you know,

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Speaker 3: swearing audibly under his breast. But all of this paints

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Speaker 3: a picture for the jury, and they are humans and

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Speaker 3: they will remember how he behaved.

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Speaker 2: If Trump had a problem with Stormy Daniels, then get

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Speaker 2: ready for Monday, when Michael Cohen is expected to take

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Speaker 2: the witness stand. What do you think about the way

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Speaker 2: the prosecution has tried to prepare the jury for Cohen,

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Speaker 2: where they've placed him in the trial, and how they've

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Speaker 2: sort of built up to him in different ways.

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Speaker 3: So I think the prosecution has done a good job

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Speaker 3: of putting Cohen not right in the beginning and not

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Speaker 3: right at the end, but where we've already heard a

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Speaker 3: lot of testimony that will overlap with the story that

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Speaker 3: Cohen is going to tell. And that's what's key for

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Speaker 3: the prosecution, I think, which is to back every piece

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Speaker 3: of evidence or testimony up as much as possible in

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Speaker 3: a way that's almost duplicative, so that the jury could say,

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Speaker 3: you know, we're not sure that we really believe everything

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Speaker 3: that Stormy Daniel said, but that there's enough of what

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Speaker 3: she said that overlaps with other documents or other testimony

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Speaker 3: that you can still link every piece in the chain

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Speaker 3: to a conviction. And I think that's part of what

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Speaker 3: we saw with respect to some of the more mundane

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Speaker 3: testimony over the last few days, about bank transfers and

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Speaker 3: about the logistics of the hush money payment. Where once

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Speaker 3: you have Michael Cohen, I think what you really want

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Speaker 3: is for the jury to almost anticipate much of what

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Speaker 3: he's going to say. So that doesn't sound surprising. It

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Speaker 3: sounds like so much of the case that they've already

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Speaker 3: put on is just leading up to this moment, and

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Speaker 3: it makes sense for the jury.

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Speaker 2: Intuitively, Michael Cohen comes with so much baggage. Probably the

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Speaker 2: defense is salivating it at the prospect of cross examining him.

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Speaker 2: Does the jury have to believe Cohen in order to

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Speaker 2: convict Trump, or does the prosecution have enough other evidence?

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Speaker 3: The jury has to believe some of what Michael Cohen

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Speaker 3: is going to testify to If they think that they

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Speaker 3: can't believe Michael Cohen, but that there's other testimony or

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Speaker 3: evidence that can bring them there, then that's okay. So,

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Speaker 3: for instance, the jury, of course, step one is that

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Speaker 3: these business records were in fact falsified. Step two is

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Speaker 3: that they were falsified for a specific purpose because Trump

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Speaker 3: had the intent to commit or conceal another crime, and

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Speaker 3: that other crime I think will either fall within the

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Speaker 3: state or federal election law. Bucket or the tax fraud bucket.

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Speaker 3: And so is it important for the jury to hear

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Speaker 3: Michael Cohen and see him as a consistent part of

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Speaker 3: the overall narrative that the prosecution is putting forward. I

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Speaker 3: think it is. But again, if the jury can get

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Speaker 3: to a conviction by looking at evidence separate from Michael Cohen,

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Speaker 3: then that's okay. The prosecution knows who they have on

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Speaker 3: the stand, they know he has tons of baggage, they

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Speaker 3: know he has credibility issues, and they're going to try

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Speaker 3: and do everything they can to make sure that the

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Speaker 3: jury could convict without believing everything he's saying. Now, the

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Speaker 3: other thing is you can find Michael Cohen to be

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Speaker 3: a liar but still think he's not lying under oath

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Speaker 3: about these particular statements and circumstances.

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Speaker 2: We'll see if there are any fireworks in the courtroom

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Speaker 2: on Monday. Thanks Jessica. That's Professor Jessica Levinson of Loyola

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Speaker 2: Law School, host of the Passing Judgment podcast. Coming up,

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Speaker 2: TikTok sues the Government. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg.

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Speaker 4: Hi everyone the show here. As you may have heard,

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Speaker 4: Congress passed the bill that the presidents signed in the

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Speaker 4: law that is designed to ban TikTok in the United States.

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Speaker 4: That will take TikTok away from you and one hundred

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Speaker 4: and seventy million Americans.

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Speaker 2: TikTok Ceo show Too wasted no time in announcing that

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Speaker 2: the company was going to fight in the courts to

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Speaker 2: challenge a new law banning the popular app unless it's

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Speaker 2: sold to an approved buyer.

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Speaker 4: Rest assured, we aren't going anywhere. We are confident and

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Speaker 4: we will keep fighting for your rights in the courts.

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Speaker 4: The facts and the Constitution are on our side, and

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Speaker 4: we expect to prevail again.

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Speaker 2: Again because TikTok has indeed been successful at blocking a

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Speaker 2: te to ban the app before. But this new legal battle,

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Speaker 2: which will pit free speech rights against national security interests,

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Speaker 2: will be protracted and will likely end up at the

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Speaker 2: Supreme Court. Joining me is Professor Eric Golman, co director

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Speaker 2: of the High Tech Law Institute at Santa Clara University

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Speaker 2: School of Law. So TikTok ensuing said, for the first

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Speaker 2: time in history, Congress has enacted a law that subjects

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Speaker 2: a single name speech platform to a permanent national ban.

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Speaker 2: That's true, is and it this is unprecedented.

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Speaker 5: To my knowledge, it is, and it's really important for

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Speaker 5: your listeners to understand that the legislation specifically names TikTok

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Speaker 5: as a company and says this company cannot exist in

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Speaker 5: its current format, and that's a pretty rare thing for

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Speaker 5: a legislature to do.

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Speaker 2: Tell us about the complaint the main reasons why TikTok

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Speaker 2: says this is unconstitutional.

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Speaker 5: Tika claims that the divestiture requirement at harold of being

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Speaker 5: banned violates the Constitution, violates its First Amendment rights, is

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Speaker 5: an unconstitutional bill of a tainder, and it violates its

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Speaker 5: equal protection rights. But the real payload is about the

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Speaker 5: First Amendment. That's where everyone expects the action to be

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Speaker 5: that Congress is shutting down TikTok speech.

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Speaker 2: As far as Congress shutting down TikTok speech, which seems

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Speaker 2: pretty obvious, what are the defenses that the government can use?

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Speaker 5: The primary rebuttal will be that Congress active based on

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Speaker 5: national security concerns, that there are serious concerns about the

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Speaker 5: ways of which TikTok operates that jeopardize national interests here

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Speaker 5: in the United States. The problem with that argument is

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Speaker 5: that we as the public haven't seen that data. To

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Speaker 5: extent that the data has been made available to Congress,

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Speaker 5: it was done so in large part under seal, which

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Speaker 5: means that Congress has seen information that the public hasn't.

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Speaker 5: It's possible that we would agree that the evidence is

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Speaker 5: significant and troubling. It's also possible that it's completely fictional.

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Speaker 5: So we don't know how to evaluate this national security

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Speaker 5: justification for the band I mean part because we don't

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Speaker 5: have the evidence that Congress has been relied upon.

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Speaker 2: That's something that the complaint alleges. The government has yet

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Speaker 2: to provide evidence of the Chinese government misusing TikTok, and

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Speaker 2: they also say that the concern is just about a

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Speaker 2: hypothetical possibility that TikTok could be misused in the future.

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Speaker 2: I mean, has there been any evidence at all in

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Speaker 2: the public that TikTok has been misused or that the

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Speaker 2: Chinese government is using it.

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Speaker 5: There have been some whistleblower type complaints that have provided

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Speaker 5: some evidents suggesting that those complaints have been subject to

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Speaker 5: their own critical scrutiny, so a little hard to know

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Speaker 5: how reliable they are. But I think that it's important

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Speaker 5: to reinforce the hypothetical nature of this, that the evidence

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Speaker 5: show that the Chinese government is actually undermining our national

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Speaker 5: security using TikTok is vanishingly thin, if not non existent,

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Speaker 5: And so it's uncomfortable and perhaps in permissile one to

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Speaker 5: the First Amendment for Congress to ban an app on

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Speaker 5: the potential that it might cause some future harm. If

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Speaker 5: that's the grounds for banning speech, then of course legislators

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Speaker 5: can always manufacture those types of hypothetical concerns.

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Speaker 2: So if this goes to trial, what a court, or

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Speaker 2: even before trial, would a court ask the government to

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Speaker 2: provide evidence that their concerns are real and not just speculation.

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Speaker 5: Yeah, there will be no doubt that in order for

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Speaker 5: the government to prevail, they're going to have to show

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Speaker 5: some of the evidence that was shown to Congress, and

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Speaker 5: they'll likely do that under steal. And I believe in fact,

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Speaker 5: that's why this case is being litigated in the particular

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Speaker 5: venue is being litigated in because I think that court

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Speaker 5: regularly deals with national security concerns, so they may have

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Speaker 5: the clearance is necessary in order for the government to

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Speaker 5: even share.

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Speaker 2: The evidence the DC Circuit.

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Speaker 5: Correct, that's an unusual thing, is you know, normally litigation

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Speaker 5: starts at a district court with a single judge, But

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Speaker 5: instead this is going to an appellate court, which is

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Speaker 5: likely to have multiple judges on the panel. And that's

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Speaker 5: a weird place for a case like this to start

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Speaker 5: because the appellate court's not in the business normally of

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Speaker 5: doing evidence gathering in review, and they're going to have

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Speaker 5: to do that in this case.

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Speaker 2: Content based restrictions have to meet a higher level of scrutiny.

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Speaker 2: So will the government have to explain why it didn't

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Speaker 2: pursue less speech restrictive alternatives to address its concerns.

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Speaker 5: One of the ways that the government can justify the

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Speaker 5: interventions that made this divest or ban is by saying

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Speaker 5: that there were no better other options that would have

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Speaker 5: preserved speech and still accomplish the government's goals. So we've

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Speaker 5: used the phraseology, were there less restrictive alternatives to the government.

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Speaker 5: If so, then the method that they chose impact speech

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Speaker 5: too greatly. There was a way of doing it without

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Speaker 5: impacting speech quite as much, and the constitution would require

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Speaker 5: that lesser alternative.

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Speaker 2: The complaint argues that a sale from ByteDance is impossible

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Speaker 2: and that the law would force a shutdown. Is that

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Speaker 2: because of the Chinese government's restrictions on the sale of

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Speaker 2: certain technologies like algorithms.

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Speaker 5: The complaint makes a number of arguments about why it

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Speaker 5: would be impossible to divest. There are some concerns about

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Speaker 5: transferring the algorithm, and there may be limit from the

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Speaker 5: Chinese government on the transference of the algorithm. And also

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Speaker 5: the complaint describes how the overall platform has this massive

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Speaker 5: code base that can't easily be carved off or segregated

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Speaker 5: to a new buyer. That the buyer could then just

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Speaker 5: step in and start running, that it needs a lot

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Speaker 5: of attention from developers who understand the code in order

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Speaker 5: to keep it running and to keep improving on it.

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Speaker 5: And so there are arguments that it would take a

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Speaker 5: long time for a buyer to get up to speed

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Speaker 5: sufficient enough to be able to take on the codebase,

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Speaker 5: and so the codebase is a practical limitation on the

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Speaker 5: sale in addition to whatever technical or legal restrictions are.

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Speaker 2: Steve Imminution, the former US Treasury Secretary, told Bloomberg that

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Speaker 2: he's still interested in buying TikTok's US operations.

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Speaker 6: I've actually started to throw a lot of tech companies

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Speaker 6: on working about rebuilding this. I do believe the algorithms

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Speaker 6: could be rebuilt, So my plan if we were to

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Speaker 6: purchase it would be to rebuild the technology under US leadership.

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Speaker 2: I mean, is that doable to replicate their algorithm?

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Speaker 5: I guess serious possible that US ingenuity could catch up

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Speaker 5: to and maybe even surpass the existing technology. The reality

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Speaker 5: is that the US competitors to TikTok have not been

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Speaker 5: able to crack that nut, despite the fact that they're

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Speaker 5: extremely well financed and highly motivated. Turns out that TikTok's

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Speaker 5: secret sauce has worked really, really well and isn't easily replicated.

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Speaker 5: So any buyer who thinks that they can step in

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Speaker 5: and with a snap of a finger keep doing what

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Speaker 5: TikTok is doing is not reading the lessons from the

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Speaker 5: existing competitors.

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Speaker 2: And is that secret sauce the algorithm's ability to learn

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Speaker 2: about your interests and deliver more items like that to

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Speaker 2: you in a sort of uncanny way.

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Speaker 5: I think that's the main secret sauce. I'm sure there

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Speaker 5: are others, but it's the for you options on TikTok,

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Speaker 5: where they're able to deliver videos that are customized for

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Speaker 5: each user that the users really respond to, and then

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Speaker 5: it actually speaks to them, and it turns out that's

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Speaker 5: a really hard thing to do. Lots and lots of

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Speaker 5: people who tried that over the years, and TikTok has

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Speaker 5: found a magic to being able to do that for

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Speaker 5: its users.

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Speaker 2: TikTok also argues that a band would devastate seven million

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Speaker 2: businesses and shutter a platform that contributes twenty four billion

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Speaker 2: annually to the US economy. Do you think those figures

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Speaker 2: are accurate?

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Speaker 5: They're obviously self interested calculation, so I don't know if

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Speaker 5: they're right, but they don't have to be right to

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Speaker 5: still be helpful. The bottom line is that there's a

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Speaker 5: lot of economic activity taking place here in the United

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Speaker 5: States that's being driven by TikTok, and in theory, Congress

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Speaker 5: has said we want all of that to shut down. Now,

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Speaker 5: some of them might migrate to other services, so it's

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Speaker 5: not like it would be completely lost. But in a

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Speaker 5: time when we're concerned about employment and we're concerned about

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Speaker 5: the economy, the idea that we would take a major

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Speaker 5: step back it's a huge opportunity cost and it really

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Speaker 5: makes me wonder if the people who voted for the

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Speaker 5: band really understood who they might be benefiting and who they

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Speaker 5: might be hurting. Chances are that people who voted for

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Speaker 5: the band are going to be hurting their own constituents.

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Speaker 2: Eric, where does it fit in that TikTok complains that

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Speaker 2: Congress ignored its work to protect US data from far

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Speaker 2: in government influence.

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Speaker 5: TikTok has undertaken extensive efforts to try to please the

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Speaker 5: US government, and they were negotiating a very lengthy document

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Speaker 5: that would allow the government to have oversight into the

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Speaker 5: ability of the Chinese government to influence TikTok's operation and

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Speaker 5: to base all the content here in the United States.

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Speaker 5: TikTok has said that it's going to implement the number

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Speaker 5: of those pieces irrespective of the law and whatever the

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Speaker 5: court holdings are. But the bottom line is TikTok is

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Speaker 5: saying that they're comfortable with having the government monitor their

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Speaker 5: behavior and oversee their behavior. They just don't want to

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Speaker 5: be regulated in this other way. And it's weird for me,

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Speaker 5: as someone who's interested in the free speech rights of

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Speaker 5: TikTok and its users, for TikTok to say, it's not

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Speaker 5: like we are opposed to regulation, just do it in

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Speaker 5: a way that we can live with. As opposed to

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Speaker 5: saying there really should be no reason why the government

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Speaker 5: gets this oversight at all. The First Amendment prohibits it.

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Speaker 5: So it's really an interesting position by TikTok.

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Speaker 2: The deadline for the sale is January nineteenth. Do you

399
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Speaker 2: think the DC Court will speed up the proceedings and

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Speaker 2: even if it does, can this matter be resolved by then?

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Speaker 5: I think one of the reasons why the Congress specified

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Speaker 5: that the Challenges law would go through this DC Circuit

403
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Speaker 5: review was to accelerate the answers to try and speed

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Speaker 5: up getting a resolution to whether or not the band

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Speaker 5: was permissible. So there's no guarantee that the d C

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Speaker 5: Circuit wilds want that pass, but I'm sure they get

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Speaker 5: the point, They know the deadline, and I would expect

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Speaker 5: them to do everything they could to try and get

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Speaker 5: an answer before then.

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Speaker 2: But this might end up at the Supreme Court.

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Speaker 5: Seems inevitable that it will end up with the Supreme Court.

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Speaker 5: But if we get the initial court ruling in favor

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Speaker 5: of TikTok, there will be a staining of the law

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Speaker 5: until there's appellet review, And even if the government wins,

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Speaker 5: there might still be a stain of the law where

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Speaker 5: the DC Circuit request to deserve the status quo until

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Speaker 5: the Supreme Court can weigh in. But there's no question

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Speaker 5: that this ban, whichever way it's ruled on, is going

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Speaker 5: to go to the Supreme Court. Now they have a

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Speaker 5: discresson whether or not to take it. They might not

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Speaker 5: take the case, but it seems likely that this band's

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Speaker 5: going to end up at the Supreme Court and get

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Speaker 5: a ruling non end.

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Speaker 2: From our conversation, it sounds like you think TikTok has

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Speaker 2: the advantage in this lawsuit over the government.

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Speaker 5: This is not a new question. This question has been

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Speaker 5: litigated several times in the last few years, and the

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00:24:29,560 --> 00:24:34,600
Speaker 5: court have universally held in favor of TikTok. So it's

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Speaker 5: possible that this ban is better than all the other

430
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Speaker 5: ones have been challenged, But more likely the same problems

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Speaker 5: that doomed those other bands are going to also doom

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Speaker 5: this one as well. So Yeah, if I were a

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Speaker 5: betting man, I would be putting my money on TikTok,

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Speaker 5: not on the government.

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Speaker 2: We'll see if the government's ods improve when it files

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Speaker 2: its answer. Thanks Eric. That's Professor Eric Goldman of Santa

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Speaker 2: Clara University Law School coming up why do Supreme Court's

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Speaker 2: record on unanim opinions is about to evaporate? I'm June

439
00:25:03,040 --> 00:25:04,720
Speaker 2: Grosso and you're listening to Bloomberg.

440
00:25:06,800 --> 00:25:07,800
Speaker 5: The Supreme Court.

441
00:25:07,680 --> 00:25:11,640
Speaker 2: Has issued twenty opinions in argued cases so far this term,

442
00:25:12,160 --> 00:25:15,640
Speaker 2: and fifteen of them have been unanimous. That may seem

443
00:25:15,800 --> 00:25:19,760
Speaker 2: unusual for a court that, with its super conservative majority,

444
00:25:20,200 --> 00:25:24,840
Speaker 2: often splits down ideological lines six to three in major cases.

445
00:25:25,400 --> 00:25:28,920
Speaker 2: The unanimity is something many of the justices like to

446
00:25:29,000 --> 00:25:33,480
Speaker 2: emphasize in public appearances. Here's Justice Amy Cony Barrett this

447
00:25:33,600 --> 00:25:34,440
Speaker 2: past February.

448
00:25:34,920 --> 00:25:37,879
Speaker 1: You hear so much about our deeply divided court or

449
00:25:37,920 --> 00:25:40,080
Speaker 1: the six to three court, But when you looked at

450
00:25:40,119 --> 00:25:42,080
Speaker 1: the docket from last year, I think that might have

451
00:25:42,200 --> 00:25:44,800
Speaker 1: been true in five cases or so. I mean that

452
00:25:44,960 --> 00:25:50,680
Speaker 1: the vast number of cases are unanimous or almost unanimous.

453
00:25:50,480 --> 00:25:53,720
Speaker 2: But those six to three decisions are usually in cases

454
00:25:53,880 --> 00:25:57,680
Speaker 2: involving divisive issues. Last term, that split was seen in

455
00:25:57,840 --> 00:26:01,919
Speaker 2: cases on affirmative action, student loan forgiveness, and gay rights.

456
00:26:02,560 --> 00:26:05,600
Speaker 2: So in the next seven weeks, as decisions are handed

457
00:26:05,680 --> 00:26:12,480
Speaker 2: down in controversial cases involving abortion, guns, racial gerrymandering, presidential immunity,

458
00:26:12,560 --> 00:26:17,680
Speaker 2: and more, you can expect that unanimity to evaporate. In fact,

459
00:26:17,840 --> 00:26:21,399
Speaker 2: it's already starting. The Court issued its first six to

460
00:26:21,520 --> 00:26:24,960
Speaker 2: three decision of the term on Thursday in a case

461
00:26:25,040 --> 00:26:28,240
Speaker 2: you may have heard little about. Joining me is John Elwood,

462
00:26:28,280 --> 00:26:31,560
Speaker 2: head of the Appelladan Supreme Court practice at Arnold and Porter.

463
00:26:32,000 --> 00:26:35,679
Speaker 2: He's argued before the justices many times. For those who

464
00:26:35,720 --> 00:26:39,480
Speaker 2: are not familiar, will you explain the process that justices

465
00:26:39,640 --> 00:26:44,440
Speaker 2: go through in making these decisions once they've heard oral arguments?

466
00:26:45,040 --> 00:26:45,280
Speaker 6: Sure?

467
00:26:45,520 --> 00:26:49,360
Speaker 7: Well, the Supreme Court here is argument for basically two

468
00:26:49,440 --> 00:26:52,760
Speaker 7: weeks every month between October and April, and at the

469
00:26:53,000 --> 00:26:56,800
Speaker 7: end of I think each week of argument, they vote

470
00:26:57,119 --> 00:27:01,040
Speaker 7: on which position everyone's going to take every case. And

471
00:27:01,240 --> 00:27:03,760
Speaker 7: I believe that at the end of the whole sitting

472
00:27:04,200 --> 00:27:07,720
Speaker 7: there's a kind of a final tally where the person

473
00:27:07,800 --> 00:27:12,119
Speaker 7: who is presiding, that is the senior most justice in

474
00:27:12,240 --> 00:27:16,520
Speaker 7: the majority, assigns opinions to all of the justices in

475
00:27:16,600 --> 00:27:18,879
Speaker 7: a way that tries to give them kind of an

476
00:27:18,920 --> 00:27:22,560
Speaker 7: equal share of cases, an equal number of authorships.

477
00:27:22,800 --> 00:27:27,760
Speaker 2: Twenty opinions in argued cases this term fifteen have been unanimous.

478
00:27:28,359 --> 00:27:32,160
Speaker 2: I know the Chief Justice and Justice Barrett have talked

479
00:27:32,200 --> 00:27:36,040
Speaker 2: about how the Court is unanimous in a majority of cases,

480
00:27:36,440 --> 00:27:39,680
Speaker 2: but tell us about the kinds of cases they're unanimous on.

481
00:27:40,119 --> 00:27:42,520
Speaker 7: Well, most of the cases that have been decided so

482
00:27:42,680 --> 00:27:45,760
Speaker 7: far are not the kind of read letter, big ticket

483
00:27:45,840 --> 00:27:49,760
Speaker 7: to mix metaphors cases for the term. They're more generally

484
00:27:50,240 --> 00:27:53,760
Speaker 7: duller cases. There are a few cases that are more noteworthy,

485
00:27:53,840 --> 00:27:59,040
Speaker 7: which were nonetheless unanimous, which were likely unanimous because they

486
00:27:59,080 --> 00:28:02,040
Speaker 7: were so narrow like, for example, there were the social

487
00:28:02,160 --> 00:28:05,560
Speaker 7: media blocking cases link Keepers is Freedom, O'Connor, rat clippersus Garner,

488
00:28:05,960 --> 00:28:10,120
Speaker 7: which involved a fairly big ticket issue about whether when

489
00:28:10,440 --> 00:28:14,639
Speaker 7: public officials block people on social media, that is essentially

490
00:28:14,720 --> 00:28:17,200
Speaker 7: state acts and it is regulated by the First Amendment.

491
00:28:17,440 --> 00:28:20,359
Speaker 7: And that was the case that really the justices seemed

492
00:28:20,359 --> 00:28:22,760
Speaker 7: to have some trouble grappling with an argument, but they

493
00:28:22,800 --> 00:28:25,760
Speaker 7: decided very little of it. They decided a fairly narrow

494
00:28:25,920 --> 00:28:28,800
Speaker 7: rule and left most of the applications for remand. And

495
00:28:28,920 --> 00:28:30,879
Speaker 7: so I think that would have been a very easy

496
00:28:31,200 --> 00:28:34,119
Speaker 7: case to not be unanimous if they had decided it

497
00:28:34,240 --> 00:28:36,000
Speaker 7: any more broadly than they did.

498
00:28:36,760 --> 00:28:39,440
Speaker 2: And Chief Justice John Roberts has talked about the goal

499
00:28:39,520 --> 00:28:44,040
Speaker 2: of achieving a unanimous opinion by narrowing the issues, as you.

500
00:28:44,080 --> 00:28:48,280
Speaker 8: Say, I still think it's an important objective one because

501
00:28:48,320 --> 00:28:51,600
Speaker 8: I think judicial decisions should be narrower rather than broader,

502
00:28:52,040 --> 00:28:53,760
Speaker 8: And the way to do that is to try to

503
00:28:53,800 --> 00:28:55,240
Speaker 8: get as many people on board.

504
00:28:55,080 --> 00:28:56,280
Speaker 9: As you can that.

505
00:28:57,440 --> 00:28:59,440
Speaker 8: You know, if you're going to reach a broad decision

506
00:28:59,480 --> 00:29:03,000
Speaker 8: that's going to for all sorts of different factional scenarios,

507
00:29:03,000 --> 00:29:04,440
Speaker 8: a lot of people are going to say, well, WHOA,

508
00:29:04,520 --> 00:29:07,560
Speaker 8: I'm not quite sure I agree with that, and then

509
00:29:07,600 --> 00:29:10,160
Speaker 8: they might write something narrower. But if you keep it

510
00:29:10,280 --> 00:29:13,720
Speaker 8: narrow that it only decides what's absolutely necessary to be decided,

511
00:29:13,840 --> 00:29:16,360
Speaker 8: usually you can get more people to agree with that one.

512
00:29:17,000 --> 00:29:19,720
Speaker 2: So are they trying to present a picture of this

513
00:29:19,960 --> 00:29:24,160
Speaker 2: court that's in agreement and unanimous by narrowing the issues

514
00:29:24,520 --> 00:29:28,520
Speaker 2: or choosing cases that don't involve divisive issues.

515
00:29:29,120 --> 00:29:31,280
Speaker 7: Well, to begin with, one of the things I like

516
00:29:31,360 --> 00:29:35,160
Speaker 7: to emphasize is that when you're dealing with such small numbers,

517
00:29:35,800 --> 00:29:39,040
Speaker 7: it doesn't take much for things to seem like outliers.

518
00:29:39,240 --> 00:29:41,400
Speaker 7: You know, when you're dealing with just like eighteen cases,

519
00:29:42,000 --> 00:29:45,920
Speaker 7: it only takes something like four extra cases to go

520
00:29:46,120 --> 00:29:50,000
Speaker 7: from an ordinary term to an really unusual high water mark.

521
00:29:50,040 --> 00:29:52,880
Speaker 7: Of unanimity, and so this is something that I always

522
00:29:52,880 --> 00:29:55,400
Speaker 7: try to emphasize when you're dealing with the Supreme Court.

523
00:29:55,480 --> 00:29:57,840
Speaker 7: The numbers are so small that it doesn't take much

524
00:29:58,160 --> 00:30:00,720
Speaker 7: for things to look like you have some real outlier

525
00:30:00,880 --> 00:30:03,520
Speaker 7: term or real weird trend. But with that, you know,

526
00:30:03,880 --> 00:30:06,480
Speaker 7: I do think that the Roberts Court does try to

527
00:30:06,600 --> 00:30:10,480
Speaker 7: emphasize unanimity. Also, there may be a different dynamic in that,

528
00:30:10,800 --> 00:30:13,680
Speaker 7: you know, they're trying to get cases out because they

529
00:30:13,720 --> 00:30:17,800
Speaker 7: are relatively behind in getting opinions out, and so they

530
00:30:17,840 --> 00:30:21,280
Speaker 7: may just you know, be writing opinions narrowly so they

531
00:30:21,320 --> 00:30:23,480
Speaker 7: can clear those cases out, get them out so they

532
00:30:23,520 --> 00:30:25,880
Speaker 7: can focus on the remaining cases. So there are a

533
00:30:25,960 --> 00:30:27,920
Speaker 7: number of reasons why they might be doing it this way.

534
00:30:28,360 --> 00:30:31,720
Speaker 7: I do think that they try to be unanimous whenever

535
00:30:31,760 --> 00:30:34,000
Speaker 7: they can. It's kind of part of the ethos of

536
00:30:34,040 --> 00:30:36,600
Speaker 7: the Roberts Court. John Roberts cares about it, and I

537
00:30:36,680 --> 00:30:38,840
Speaker 7: think he tries to job own other people into feeling

538
00:30:38,920 --> 00:30:42,360
Speaker 7: the same way. That maybe that they're taking relatively few cases.

539
00:30:42,720 --> 00:30:45,600
Speaker 7: There are very low number of grants this term, and

540
00:30:45,960 --> 00:30:47,840
Speaker 7: it may be that they are you know, picking out

541
00:30:47,880 --> 00:30:50,160
Speaker 7: cases that they feel there's a fair amount of unanimity end,

542
00:30:50,320 --> 00:30:52,160
Speaker 7: and it may be that they're you know, kind of

543
00:30:52,240 --> 00:30:56,000
Speaker 7: clearing the wave for more contentious issues which have yet

544
00:30:56,040 --> 00:30:56,680
Speaker 7: to be decided.

545
00:30:57,200 --> 00:31:01,480
Speaker 2: Every year, the cases that we're waiting for involving hot

546
00:31:01,560 --> 00:31:05,720
Speaker 2: button issues come down at the end of June, sometimes

547
00:31:05,840 --> 00:31:09,480
Speaker 2: the last two days of June. Is there a reason

548
00:31:09,600 --> 00:31:13,760
Speaker 2: for that or is it just dropping the hot potato

549
00:31:13,960 --> 00:31:17,600
Speaker 2: cases that are going to cause controversy lest and then

550
00:31:17,880 --> 00:31:18,600
Speaker 2: you're on vacation.

551
00:31:19,440 --> 00:31:21,920
Speaker 7: I think a lot is just explained by the practicality

552
00:31:22,040 --> 00:31:25,320
Speaker 7: of it, which is that the descending opinions take more time,

553
00:31:26,040 --> 00:31:29,520
Speaker 7: and sometimes in the most contentious cases, there's back and

554
00:31:29,680 --> 00:31:33,400
Speaker 7: forth between the descent and the majority opinion, and when

555
00:31:33,400 --> 00:31:36,920
Speaker 7: people are fine tuning opinions, you know, in draft after

556
00:31:37,040 --> 00:31:39,640
Speaker 7: draft after draft, it can go kind of down to

557
00:31:39,720 --> 00:31:42,640
Speaker 7: the wire. So I think much of it is explained

558
00:31:42,640 --> 00:31:46,920
Speaker 7: simply by the practicality of you know, more opinions, more drafts,

559
00:31:46,960 --> 00:31:47,600
Speaker 7: take more time.

560
00:31:48,320 --> 00:31:52,560
Speaker 2: And will you explain the process of circulating the opinions

561
00:31:53,120 --> 00:31:56,360
Speaker 2: so all the justices see what others have written and

562
00:31:56,680 --> 00:31:57,560
Speaker 2: can respond to it.

563
00:31:58,000 --> 00:32:02,000
Speaker 7: That's right. A majority opinions circular. Descending opinions then circulate

564
00:32:02,640 --> 00:32:06,520
Speaker 7: and each subsequent draft is then circulated to the entire group,

565
00:32:07,080 --> 00:32:10,440
Speaker 7: and then you know, Justices who are joining opinions may

566
00:32:10,560 --> 00:32:14,280
Speaker 7: ask for changes. Justices who are joining descent may ask

567
00:32:14,360 --> 00:32:17,959
Speaker 7: for changes. Authors of both majority opinions and the authors

568
00:32:18,000 --> 00:32:21,760
Speaker 7: of sense may tweak their opinions to respond to the

569
00:32:21,840 --> 00:32:24,520
Speaker 7: opinions on the other side, and each of those opinions

570
00:32:24,560 --> 00:32:27,000
Speaker 7: will be circulated as a whole group with a red line,

571
00:32:27,280 --> 00:32:29,760
Speaker 7: so everyone knows what's new and what's been changed is

572
00:32:29,840 --> 00:32:30,520
Speaker 7: the last draft.

573
00:32:30,800 --> 00:32:32,760
Speaker 2: I guess that does show why it takes so long.

574
00:32:33,200 --> 00:32:35,920
Speaker 2: Now as far as the oral arguments go, and everyone says,

575
00:32:35,960 --> 00:32:38,040
Speaker 2: you can tell what the decision will be from the

576
00:32:38,240 --> 00:32:41,520
Speaker 2: oral arguments, but can you sort of figure out the

577
00:32:41,680 --> 00:32:45,920
Speaker 2: broad strokes of the decision from the oral arguments? Have

578
00:32:46,040 --> 00:32:50,400
Speaker 2: you ever been totally surprised by a decision like? Wow?

579
00:32:50,560 --> 00:32:51,560
Speaker 2: I never expected that.

580
00:32:52,520 --> 00:32:55,520
Speaker 7: There have been some that surprised me. There was a

581
00:32:55,600 --> 00:32:58,200
Speaker 7: case many years ago when the oral argument was still

582
00:32:58,240 --> 00:33:02,000
Speaker 7: in a pretty rigidly one hour format, where there was

583
00:33:02,040 --> 00:33:04,720
Speaker 7: actually kind of a reversal of position. The position that

584
00:33:04,880 --> 00:33:07,800
Speaker 7: Justice Stevens seem to be advocating wound up being taken

585
00:33:07,880 --> 00:33:11,360
Speaker 7: up by Justice Scalia and Vice versa. But I think,

586
00:33:11,520 --> 00:33:15,080
Speaker 7: especially under the new format, which essentially goes on as

587
00:33:15,160 --> 00:33:18,320
Speaker 7: long as the justices have questions, I think oral argument

588
00:33:18,400 --> 00:33:20,920
Speaker 7: is a much better predictor of where people are going

589
00:33:21,000 --> 00:33:23,080
Speaker 7: to come out in the end that there are fewer surprises,

590
00:33:23,080 --> 00:33:25,360
Speaker 7: I think under this sort of format, because all of

591
00:33:25,400 --> 00:33:28,360
Speaker 7: the issues are thoroughly ventilated the court.

592
00:33:28,440 --> 00:33:31,000
Speaker 2: It's been said a million times, but it's at its

593
00:33:31,080 --> 00:33:35,280
Speaker 2: lowest approval rating since they've been taking those polls. Do

594
00:33:35,400 --> 00:33:38,920
Speaker 2: you think that that matters to the justices or not.

595
00:33:39,280 --> 00:33:40,560
Speaker 2: They're there for life, so.

596
00:33:41,400 --> 00:33:43,760
Speaker 7: Yeah, I don't think that they're unmindful of it. But

597
00:33:43,880 --> 00:33:46,320
Speaker 7: I think that they kind of do the same thing

598
00:33:46,520 --> 00:33:48,760
Speaker 7: year in and year out. They go in and they

599
00:33:48,960 --> 00:33:51,280
Speaker 7: decide the cases, you know, the way they feel that

600
00:33:51,320 --> 00:33:53,680
Speaker 7: they should be decided. You know, they may try to

601
00:33:53,720 --> 00:33:55,960
Speaker 7: be more unanimous in a particular case or decide an

602
00:33:56,000 --> 00:33:59,120
Speaker 7: issue more narrowly. And I do think that they're generally

603
00:33:59,240 --> 00:34:02,240
Speaker 7: kind of an incrame mental and minimalist court in the

604
00:34:02,280 --> 00:34:04,240
Speaker 7: sense that I think that many times they try to

605
00:34:04,280 --> 00:34:07,400
Speaker 7: decide the least that they can decide. So well, I

606
00:34:07,440 --> 00:34:09,279
Speaker 7: don't think that they're unmindful of it. They read the

607
00:34:09,320 --> 00:34:12,280
Speaker 7: newspapers I don't think that they let it shape their behavior.

608
00:34:12,320 --> 00:34:14,759
Speaker 7: I think that they I'm kind of one of those

609
00:34:14,880 --> 00:34:18,440
Speaker 7: Pollyannas who think that they really try to just do

610
00:34:18,760 --> 00:34:21,720
Speaker 7: justice or they try to follow the law in every case.

611
00:34:21,920 --> 00:34:24,840
Speaker 2: As you're talking about the oral arguments as someone who's argued,

612
00:34:25,000 --> 00:34:28,160
Speaker 2: I mean, do the lawyers like the arguments that often

613
00:34:28,239 --> 00:34:29,360
Speaker 2: do go on for hours?

614
00:34:29,600 --> 00:34:31,920
Speaker 7: You know? I actually had a conversation with several other

615
00:34:32,000 --> 00:34:35,000
Speaker 7: kind of repeat players the other day on this, and

616
00:34:35,080 --> 00:34:37,520
Speaker 7: I think generally one thing we like about it is

617
00:34:37,640 --> 00:34:41,920
Speaker 7: that it really does allow everybody to be kind of

618
00:34:42,000 --> 00:34:44,640
Speaker 7: heard fully, and I think that that generally is a

619
00:34:44,680 --> 00:34:47,799
Speaker 7: favorable thing. The downside is that it makes it harder

620
00:34:47,840 --> 00:34:51,719
Speaker 7: to argue more cases. That you can essentially fully ventilate

621
00:34:52,000 --> 00:34:56,160
Speaker 7: one controversial case per day, but if you have a

622
00:34:56,239 --> 00:34:59,480
Speaker 7: second argument, it's going to get much more summary treatment.

623
00:35:00,000 --> 00:35:01,880
Speaker 7: And you know that that makes it kind of more

624
00:35:01,920 --> 00:35:04,000
Speaker 7: difficult for the court to hear more cases.

625
00:35:04,400 --> 00:35:07,360
Speaker 2: And they've been cutting down on the number of cases.

626
00:35:07,040 --> 00:35:09,360
Speaker 7: That they take each year, and it's kind of a

627
00:35:09,560 --> 00:35:12,000
Speaker 7: low low ep right now. You know, it's kind of

628
00:35:12,040 --> 00:35:13,880
Speaker 7: more in the sixty case range. But I don't know

629
00:35:13,920 --> 00:35:16,480
Speaker 7: if they're related or not. Since they don't explain what

630
00:35:16,520 --> 00:35:18,719
Speaker 7: they're doing. I don't know if they're related, but one

631
00:35:18,800 --> 00:35:22,440
Speaker 7: consequence of the longer world argument format is that it

632
00:35:22,520 --> 00:35:24,080
Speaker 7: makes it harder to hear two cases.

633
00:35:24,360 --> 00:35:26,040
Speaker 2: It would be nice if we had a little more

634
00:35:26,120 --> 00:35:30,280
Speaker 2: transparency from the justices. Thanks so much for your insights

635
00:35:30,320 --> 00:35:33,440
Speaker 2: on the court. That's John Elwood of Arnold and Porter.

636
00:35:34,080 --> 00:35:37,439
Speaker 2: The Supreme Court handed down just two decisions this week,

637
00:35:37,640 --> 00:35:42,080
Speaker 2: and neither was unanimous. Indeed, the justices split six to three,

638
00:35:42,480 --> 00:35:45,080
Speaker 2: with the Conservatives in the majority and the Liberals in

639
00:35:45,160 --> 00:35:48,160
Speaker 2: the minority. In one of those cases, the Court rule

640
00:35:48,239 --> 00:35:50,920
Speaker 2: that authorities do not have to provide a quick hearing

641
00:35:51,080 --> 00:35:54,680
Speaker 2: when they seize cars and other property used in drug crimes,

642
00:35:55,160 --> 00:35:58,520
Speaker 2: even when the property belongs to so called innocent owners,

643
00:35:59,040 --> 00:36:02,200
Speaker 2: rejecting the claim of two Alabama women who had to

644
00:36:02,280 --> 00:36:04,720
Speaker 2: wait more than a year for their cars to be returned.

645
00:36:05,280 --> 00:36:07,759
Speaker 2: It may be the first six to three decision of

646
00:36:07,800 --> 00:36:11,040
Speaker 2: the term, but it certainly won't be the last. In

647
00:36:11,160 --> 00:36:14,719
Speaker 2: other legal news, the dramatic twenty twenty one collapse of

648
00:36:14,760 --> 00:36:18,800
Speaker 2: our Kago's capital management will be replayed in a criminal

649
00:36:18,920 --> 00:36:22,239
Speaker 2: trial over the next two months, as prosecutors try to

650
00:36:22,360 --> 00:36:27,320
Speaker 2: convict founder Bill Huang, for market manipulation, racketeering, and fraud.

651
00:36:27,920 --> 00:36:31,200
Speaker 2: In announcing the charges a year ago, the US Attorney

652
00:36:31,280 --> 00:36:34,760
Speaker 2: for the Southern District of New York, Damian Williams, called

653
00:36:34,800 --> 00:36:39,400
Speaker 2: it a market manipulation scheme that nearly jeopardized our financial system.

654
00:36:39,920 --> 00:36:43,800
Speaker 9: The scheme was a story scope. We alleged that defendants

655
00:36:43,840 --> 00:36:47,880
Speaker 9: and their con conspirators live banks to obtain billions of

656
00:36:47,960 --> 00:36:51,040
Speaker 9: dollars that they then used to inflete the sock price

657
00:36:51,480 --> 00:36:56,040
Speaker 9: of a number of public retreated companies. The lies that

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Speaker 9: the inflation, and the inflation that more lives.

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Speaker 2: A jury was selected this week and opening statements will

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Speaker 2: begin on Monday. And that's it for this edition of

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Speaker 2: the Bloomberg Law Podcast. Remember you can always get the

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Speaker 2: latest legal news by subscribing and listening to the show

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Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,

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Speaker 2: Slash Law. I'm June Grosso and this is Bloomberg