WEBVTT - Supreme Court Adopts Ethics Code 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.720 --> 0:00:12.959 For the first time, the US Supreme Court has adopted 0:00:13.000 --> 0:00:16.280 a code of conduct. It's a response to months of 0:00:16.360 --> 0:00:20.560 pressure after a stream of ethics controversies that have undercut 0:00:20.600 --> 0:00:23.599 the Court's public standing and showe new light on the 0:00:23.840 --> 0:00:28.920 Justice's friendships and financial dealings. The revelations include reports that 0:00:29.160 --> 0:00:33.800 Justice Clarence Thomas got lavish vacations, private jet flights, and 0:00:33.920 --> 0:00:37.879 other gifts funded by Republican megadoner Harlan Crowe. But the 0:00:37.960 --> 0:00:41.720 code won't necessarily mean significant changes in how the nine 0:00:42.000 --> 0:00:46.320 Justices conduct themselves. The rules are mostly a codification of 0:00:46.400 --> 0:00:50.559 existing principles, and the Justices stop short of creating a 0:00:50.600 --> 0:00:53.680 system for the public to lodge complaints or for an 0:00:53.760 --> 0:00:58.080 outside review of alleged violations. The rules are mostly a 0:00:58.160 --> 0:01:01.760 codification of existing rules that apply to the rest of 0:01:01.800 --> 0:01:05.840 the federal judiciary, but without the type of complaint system 0:01:06.000 --> 0:01:09.240 that applies to other federal judges. Joining me is an 0:01:09.280 --> 0:01:13.200 expert on the judiciary, Carl Tobias, professor at the University 0:01:13.200 --> 0:01:16.760 of Richmond Law School. Carl, what's your initial reaction to 0:01:16.840 --> 0:01:18.880 this code of conduct? Well? 0:01:18.959 --> 0:01:24.640 I think it pretty much applies the same ethics rules 0:01:24.959 --> 0:01:29.160 to the Supreme Court, with some limited exceptions, and basically 0:01:29.520 --> 0:01:32.920 adopts twenty at USC four fifty five, which applies to 0:01:33.319 --> 0:01:37.240 all lower federal court judges, magistrate judges, district judges, appeals 0:01:37.240 --> 0:01:38.000 court judges. 0:01:38.200 --> 0:01:39.800 Is there anything special in there? 0:01:40.000 --> 0:01:40.080 Like? 0:01:40.120 --> 0:01:44.080 Would anything there tell you if Justice Thomas has to 0:01:44.160 --> 0:01:48.760 recuse himself in a case involving let's say, Harlan Crow. 0:01:49.280 --> 0:01:51.360 Yes, I mean, I think there are provisions in there. 0:01:51.640 --> 0:01:56.920 If a justice has knowledge of a financial interests of 0:01:57.120 --> 0:02:00.840 someone like Crow, then I think the Justice would need 0:02:00.840 --> 0:02:04.080 to seriously consider recusing. But that doesn't change what we've 0:02:04.120 --> 0:02:07.440 had before. But I do think that's relatively clear from 0:02:07.440 --> 0:02:07.960 what's there. 0:02:08.520 --> 0:02:13.440 Didn't the justices always say that they followed this judicial code? 0:02:13.960 --> 0:02:17.120 Yes? Yes, But I mean I think reasonable people could 0:02:17.120 --> 0:02:20.200 differ about whether they actually did. I think it's valuable 0:02:20.840 --> 0:02:23.640 in order to be able to say they are subject 0:02:23.720 --> 0:02:26.320 to it. Now have signed on to this, but it 0:02:26.320 --> 0:02:29.280 will be difficult to enforce in certain situations. I assume 0:02:29.440 --> 0:02:32.560 if other people don't know of some kind of conflict, 0:02:33.200 --> 0:02:36.519 and so it's still going to be dependent substantially on 0:02:36.560 --> 0:02:42.880 the justices themselves and recognizing potential conflicts and then either 0:02:42.919 --> 0:02:47.120 decided to recuse or causing with their colleagues and deciding 0:02:47.120 --> 0:02:48.240 whether they should or should not. 0:02:49.200 --> 0:02:53.000 So there's no enforcement mechanism. Say a group says, oh, 0:02:53.200 --> 0:02:58.360 I think that Justice Alito shouldn't sit or shouldn't have 0:02:58.440 --> 0:03:01.680 sat on that tax case where one of the lawyers 0:03:01.720 --> 0:03:05.600 involved interviewed him for the Wall Street Journal. Is there 0:03:05.639 --> 0:03:07.280 any mechanism to enforce that. 0:03:07.919 --> 0:03:11.160 It doesn't seem like it, though. I suppose someone could 0:03:11.200 --> 0:03:15.040 try to petition the justices on something that they thought 0:03:15.160 --> 0:03:19.320 was irregular or inappropriate, and always lawyers have been able 0:03:19.360 --> 0:03:23.600 to suggest refusal, right, And I don't think that changes. 0:03:24.280 --> 0:03:27.320 Then the justice can respond to that, and they do, 0:03:27.520 --> 0:03:30.840 and certainly Justice Kalia did on many occasions, and others 0:03:30.880 --> 0:03:31.160 have to. 0:03:31.600 --> 0:03:34.760 Does it seem like this really moves the ball forward? 0:03:34.840 --> 0:03:36.560 Does it really change things? 0:03:37.160 --> 0:03:40.880 Not substantially? No, I don't think so. But we can't 0:03:40.880 --> 0:03:43.280 really know because we don't know what has gone on 0:03:43.360 --> 0:03:46.480 internally in the court among the justices. Some of that's 0:03:46.520 --> 0:03:47.240 just not public. 0:03:47.360 --> 0:03:48.840 What do you mean by that? What could have gone on? 0:03:49.400 --> 0:03:51.760 Well, any justice could say to the other justice, I 0:03:51.760 --> 0:03:54.200 think I have a conflict, let's talk about it, or 0:03:54.320 --> 0:03:56.880 you know, I can't decide what to do in this situation, 0:03:57.280 --> 0:03:59.040 and they may have thrashed it out. We just don't 0:03:59.080 --> 0:04:00.040 know about that. 0:04:00.400 --> 0:04:03.720 With this code, it leaves it up to the individual justice, 0:04:03.720 --> 0:04:08.160 for example, to decide whether to recuse himself or herself. 0:04:08.640 --> 0:04:12.000 I think basically, yes, that doesn't preclude the fact that 0:04:12.520 --> 0:04:15.480 a well intentioned justice would bring it up with his 0:04:15.600 --> 0:04:18.719 or her colleagues and hopefully that would happen seek guidance 0:04:18.760 --> 0:04:19.839 from them. Perhaps. 0:04:20.080 --> 0:04:23.280 Do you think it was the public pressure or the 0:04:23.279 --> 0:04:26.440 pressure from Senate Democrats? What do you think it was 0:04:26.520 --> 0:04:30.120 that got them to finally do this? Well? 0:04:30.160 --> 0:04:32.400 I think discretion was the better part of valor, and 0:04:32.560 --> 0:04:35.800 I think they realized that it wasn't going to calm 0:04:35.839 --> 0:04:40.279 down until something happened, and so they needed to act. 0:04:40.440 --> 0:04:42.640 And I think you know that that is a good 0:04:42.680 --> 0:04:44.280 thing in some ways, because there was going to be 0:04:44.320 --> 0:04:47.960 a huge subpoena fight already has been in Judiciary committee, 0:04:48.520 --> 0:04:50.640 and I don't know that that was going to really 0:04:50.680 --> 0:04:54.480 help that much. But again, it doesn't have an enforcement 0:04:54.480 --> 0:04:57.320 mechanism you suggests, and so we'll have to see how 0:04:57.360 --> 0:05:01.440 it works in practice. May difficult to detect. 0:05:02.000 --> 0:05:04.719 Yes, the Supreme Court is not what you'd call a 0:05:04.800 --> 0:05:10.280 transparent institution. Well, let's turn now to judicial confirmations. And 0:05:10.440 --> 0:05:14.600 President Joe Biden reached a milestone last week. He secured 0:05:14.640 --> 0:05:18.120 as one hundred and fiftieth federal judicial appointment with a 0:05:18.240 --> 0:05:21.000 record breaking number of women named to the bench. 0:05:21.760 --> 0:05:24.680 Well, the milestone is important of one hundred and fifty 0:05:24.920 --> 0:05:27.440 and now actually it's up to one hundred and fifty 0:05:27.480 --> 0:05:32.920 three and will be higher today after judge and at 0:05:33.040 --> 0:05:36.839 the Alba of the Eastern District of California is confirmed 0:05:36.839 --> 0:05:39.800 to the Ninth Circuit. So in that one hundred and 0:05:39.880 --> 0:05:45.240 fifty or so, one hundred of those appointees are women, 0:05:46.240 --> 0:05:52.600 approximately one hundred are ethnic minorities, in fifty or so 0:05:53.160 --> 0:05:59.360 are black appointees. So he's broken all kinds of records 0:05:59.440 --> 0:06:06.320 in turn of ethnic minority appointments. And what is also 0:06:06.480 --> 0:06:11.839 very important is experiential diversity. So you're seeing a number 0:06:12.080 --> 0:06:16.800 of federal public defenders, state public defenders, as well as 0:06:16.920 --> 0:06:21.360 civil rights attorneys, people who've worked for the ACLU, legal 0:06:21.400 --> 0:06:25.320 aid lawyers in the mix. And all of that is 0:06:25.760 --> 0:06:28.840 what Biden pledged to do and has kept his word 0:06:29.120 --> 0:06:32.039 and is continuing to do that with new nominees and 0:06:32.120 --> 0:06:32.919 new appointees. 0:06:33.480 --> 0:06:38.039 Confirmations have slowed, haven't they compared to earlier in his tenure? 0:06:38.480 --> 0:06:41.640 A little bit? Yes, And part of the issue is 0:06:41.800 --> 0:06:47.080 nominations because there are not very many vacancies in states 0:06:47.120 --> 0:06:51.960 represented by two senators, and most of them now are 0:06:52.120 --> 0:06:55.479 in states where at least one senator is a Republican. 0:06:55.760 --> 0:06:58.920 But there's been some breakthroughs. For example, there were four 0:06:59.000 --> 0:07:05.839 vacancies in Florida last week. All four people were nominated, 0:07:06.120 --> 0:07:09.920 three were women of color, and three were magistrate judges. 0:07:10.240 --> 0:07:14.760 And I think they'll easily be confirmed and hopefully relatively soon. 0:07:15.400 --> 0:07:19.280 So that's a promising sign. But there are other red states. 0:07:19.280 --> 0:07:22.800 For example, Texas, there're seven vacancies there, I think almost 0:07:22.840 --> 0:07:28.400 all emergencies, and Missouri has Eastern District has three emergencies 0:07:28.480 --> 0:07:32.840 and no nominees, and so we'll be looking at those. 0:07:32.920 --> 0:07:36.160 There two in the Northern District of Indiana. The Indiana 0:07:36.480 --> 0:07:39.880 Senators have been very good about moving two people to 0:07:40.160 --> 0:07:43.760 the appeals courts and filling district vacancies. 0:07:44.160 --> 0:07:48.240 Do you think you'll be able to match former President 0:07:48.480 --> 0:07:53.080 Donald Trump's two hundred and thirty four judicial nominations, especially 0:07:53.120 --> 0:07:57.720 because it seems like the Democrats' control of the Senate 0:07:58.680 --> 0:08:00.000 is in jeopardy. 0:08:00.440 --> 0:08:03.160 Well, I think so, because if you look at the 0:08:03.360 --> 0:08:07.679 comparable date in twenty nineteen, Trump had confirmed forty six 0:08:07.880 --> 0:08:13.560 as opposed to Biden's thirty seven appellate conferenes. But Biden 0:08:13.680 --> 0:08:16.960 is ahead on district nominees one hundred and sixteen to 0:08:17.040 --> 0:08:21.840 one hundred and twelve. And so, depending of course on 0:08:22.040 --> 0:08:27.040 the shutdown if that comes, and what else happens this 0:08:27.200 --> 0:08:29.280 year and next year, which of course is an election 0:08:29.440 --> 0:08:33.240 year when it may slow somewhat, we'll see, but I 0:08:33.280 --> 0:08:36.960 think he's on track and could do that, but needs 0:08:36.960 --> 0:08:39.520 to have a few more nominees, and the nominees to 0:08:39.559 --> 0:08:42.800 be in sync with the Judiciary Committee shared. Durbin has 0:08:42.800 --> 0:08:46.400 said he would have hearings every two weeks the Senate 0:08:46.520 --> 0:08:48.680 is in session, and of course he has the holidays 0:08:48.720 --> 0:08:51.040 coming up, but when they come back in January, I 0:08:51.160 --> 0:08:55.839 think they will have more nominees, and there's still many 0:08:55.880 --> 0:08:59.600 on the floor, and so I think he is on 0:08:59.679 --> 0:09:04.240 track to surpass what Trump did. But we'll see what happened. 0:09:03.960 --> 0:09:07.440 Coming up next. Those gag orders on Donald Trump. This 0:09:07.520 --> 0:09:10.800 is Bloomberg. I've been talking professor Carl Tobias at the 0:09:10.880 --> 0:09:15.439 University of Richmond Law School about judicial appointments. Carl, we've 0:09:15.480 --> 0:09:22.319 spoken before about how Republicans and Republican voters have always 0:09:22.360 --> 0:09:27.640 seemed to be more concerned about judicial appointments and Supreme 0:09:27.720 --> 0:09:32.560 Court appointments than Democrats. Has that changed in any respect 0:09:32.720 --> 0:09:36.959 in light of recent Supreme Court decisions and lower court 0:09:37.000 --> 0:09:40.040 decisions that don't follow precedent. 0:09:41.000 --> 0:09:44.679 Well, I think Chair Durbin and the President and all 0:09:44.800 --> 0:09:48.640 the Democratic members of the Senate Judiciary Committee are painfully 0:09:48.640 --> 0:09:54.040 aware of that history, and so rules about blue slips 0:09:54.360 --> 0:09:58.720 for circuit nominees they've retained the ones that the Republicans 0:09:58.800 --> 0:10:03.200 used and to their benefit in terms of confirming people. 0:10:03.960 --> 0:10:09.280 And Durbin has expressly said in committee publicly that we're 0:10:09.280 --> 0:10:11.840 not going to have different rules for Democrats and Republicans. 0:10:11.880 --> 0:10:14.880 So I think Democrats have learned their lesson to the 0:10:14.960 --> 0:10:19.840 extent that there were different standards, different requirements, and so 0:10:20.120 --> 0:10:24.480 now I think Democrats are pushing just as aggressively as 0:10:24.559 --> 0:10:27.640 Republicans did, But of course they're getting pushed back from 0:10:27.800 --> 0:10:31.319 a number of GOP senators too, who are not always 0:10:31.360 --> 0:10:34.680 in sync with the nominees of the president. 0:10:34.960 --> 0:10:39.400 Do you think that Democratic voters are recognizing the importance 0:10:39.640 --> 0:10:43.400 of the judiciary when they cast their ballots. 0:10:44.440 --> 0:10:46.560 I think so. That's certainly what we saw in Virginia, 0:10:46.679 --> 0:10:49.160 and I'm in the middle of that. And so the 0:10:49.200 --> 0:10:53.760 abortion issue was I think the driver in the Democrats 0:10:53.760 --> 0:10:58.320 retaining this Senate in Virginia and then also regaining a 0:10:58.400 --> 0:11:02.840 House majority here. And you saw similar things, and for example, 0:11:02.880 --> 0:11:07.520 even red states like Ohio with the abortion issue on 0:11:07.600 --> 0:11:10.520 the ballot, and a number of other states around the country. 0:11:10.600 --> 0:11:13.600 So I think yes, And I think going to twenty 0:11:13.600 --> 0:11:16.640 twenty four, with the chaos in the House of Representatives 0:11:16.960 --> 0:11:20.920 and with the abortion issue and other hot button issues, 0:11:21.440 --> 0:11:26.400 that Democrats are doing relatively well. And especially people are 0:11:26.440 --> 0:11:31.079 cognizant of the judges because of the pushback on overturning 0:11:31.160 --> 0:11:32.679 Rod versus Way. 0:11:32.800 --> 0:11:35.880 Speaking of judges and being cognizant of the judges, one 0:11:36.200 --> 0:11:39.240 judge who's been in the news a great deal is 0:11:39.880 --> 0:11:45.360 the New York trial judge Arthur and Gorin because of 0:11:45.400 --> 0:11:49.880 the problems he's had with former President Trump in the 0:11:49.920 --> 0:11:53.640 New York Attorney General civil fraud trial against him. So 0:11:54.000 --> 0:12:00.320 already the judge has fined Trump twice for violent a 0:12:00.320 --> 0:12:03.640 gag order on him making any kind of comments about 0:12:03.720 --> 0:12:06.840 court staff. How often do you hear about gag orders 0:12:07.360 --> 0:12:07.719 like that? 0:12:08.360 --> 0:12:11.960 Well, not very often, fortunately in the past. But I 0:12:12.000 --> 0:12:14.280 think in the short term we're likely to hear about 0:12:14.320 --> 0:12:19.280 it more. And I think the judges are perfectly within 0:12:19.360 --> 0:12:25.120 their rights to take measures to protect themselves and protect 0:12:25.679 --> 0:12:30.319 their staff, because you do not want those court employees, 0:12:30.720 --> 0:12:35.840 much less jurors or witnesses, to feel that their safety 0:12:36.040 --> 0:12:39.720 is threatened by litigants in the court. You just can't 0:12:39.760 --> 0:12:41.119 have that kind of situation. 0:12:41.679 --> 0:12:44.880 When Trump was on the stand last week, the judge 0:12:44.960 --> 0:12:48.320 was just pushed to the limit. He said things like, 0:12:49.160 --> 0:12:52.320 can't you control your client? You can say whatever you 0:12:52.360 --> 0:12:54.959 want about me, but just answer the question. I mean, 0:12:55.000 --> 0:12:59.040 he was just uncontrollable. Now, this is a trial where 0:12:59.080 --> 0:13:01.280 the judge is going to make the decision. But what 0:13:01.520 --> 0:13:04.040 happens if Jump decides to take the stand in a 0:13:04.120 --> 0:13:07.240 criminal trial. There'll be a jury in that case, And 0:13:07.320 --> 0:13:09.520 how does a judge keep him under control. 0:13:10.480 --> 0:13:13.080 Well, I think it's difficult, but I think you're right. 0:13:13.080 --> 0:13:17.480 The New York judge was a model of restraint and 0:13:18.200 --> 0:13:22.040 pleaded with the lawyers to try to bring their client 0:13:22.160 --> 0:13:26.000 under control. And so I think that is the best 0:13:26.000 --> 0:13:30.400 way to proceed, and I think he showed substantial patience 0:13:30.960 --> 0:13:33.360 in the face of that. And that's what you want 0:13:33.360 --> 0:13:35.560 a judge to do, is to be restrained, but to 0:13:35.720 --> 0:13:41.160 keep the process moving along and to protect court personnel, witnesses, 0:13:41.520 --> 0:13:45.880 jurors in that situation. And that's one reason for the 0:13:45.920 --> 0:13:49.480 gag orders and then the penalties. Judges have broad discretion 0:13:49.760 --> 0:13:54.480 to sanction litigants who disobey any kind of order that 0:13:54.520 --> 0:13:55.480 the judge issues. 0:13:56.200 --> 0:13:59.640 I'm wondering is this a tactic because the attorneys have 0:13:59.720 --> 0:14:03.880 also have been very aggressive in that courtroom and very 0:14:03.920 --> 0:14:06.960 critical of the judge to the judge's face. 0:14:07.520 --> 0:14:09.000 So is that a. 0:14:08.840 --> 0:14:12.120 Tactic for an appellate issue? But I mean, what kind 0:14:12.120 --> 0:14:14.199 of an appellate issue would it be? The judge lost 0:14:14.200 --> 0:14:16.040 his temper? Is that an appellate issue? 0:14:16.800 --> 0:14:19.640 Doesn't seem like it. But the other thing, of course, 0:14:19.720 --> 0:14:23.400 is that lawyers are officers of the court, and the 0:14:23.560 --> 0:14:29.120 court can ask them to try to keep conduct appropriate 0:14:29.280 --> 0:14:33.400 for a courtroom, and they can do that in any 0:14:33.480 --> 0:14:36.440 number of ways. But I don't think an appellate court 0:14:36.880 --> 0:14:40.120 is going to have much patience with arguments based on 0:14:40.160 --> 0:14:43.760 the fact that the judge overreached, especially if it's extreme 0:14:43.840 --> 0:14:47.120 behavior on the part of the client or of the attorney. 0:14:47.840 --> 0:14:52.040 The judge in DC, Judge Tanya Chuckin also issued a 0:14:52.080 --> 0:14:56.520 gag order. None of these gag orders prevent Trump from 0:14:56.560 --> 0:14:58.960 talking about the judges in the case, but this was 0:14:59.000 --> 0:15:02.160 to prevent him from t talking about the witnesses, the 0:15:02.200 --> 0:15:06.760 special counsel, and his staff, and that's being criticized as 0:15:06.840 --> 0:15:10.920 being unconstitutionally vague. The problem is that Donald Trump is 0:15:11.000 --> 0:15:13.440 running for president, So even in the New York case, 0:15:14.000 --> 0:15:16.480 the lawyers contended that he could say whatever he wants 0:15:16.480 --> 0:15:17.880 because he's running for president. 0:15:18.320 --> 0:15:22.920 Well, Tanya Jacobe, in Your Own Publication wrote a piece 0:15:23.120 --> 0:15:27.760 responding to that and criticizing the view that it was 0:15:27.880 --> 0:15:31.960 unconstitutionally vague, and she makes a pretty strong argument saying 0:15:32.040 --> 0:15:34.840 it's observed on its faith. Trump has made bald threats 0:15:35.320 --> 0:15:39.000 if you go after me, I'm coming after you, and 0:15:39.120 --> 0:15:42.760 that kind of language is inappropriate or gag order picks 0:15:42.840 --> 0:15:45.680 up on that. It says that we just can't have 0:15:45.720 --> 0:15:50.960 that threatening of witnesses or staff or judges. 0:15:50.920 --> 0:15:54.920 That injunction in DC is going to be litigated, perhaps 0:15:54.920 --> 0:15:57.520 all the way to the Supreme Court. We'll see, Thanks 0:15:57.560 --> 0:16:00.360 so much, Carl. That's Professor Carlton by Yes of the 0:16:00.440 --> 0:16:03.200 University of Richmond Law School. Coming up next on the 0:16:03.200 --> 0:16:07.720 Bloomberg Law Show, the issue of reporters privilege. A judge 0:16:07.720 --> 0:16:12.239 in DC has ordered a reporter to reveal her confidential sources, 0:16:12.680 --> 0:16:16.200 and the plaintiff has asked for some stiff sanctions. I'm 0:16:16.280 --> 0:16:23.000 June Grosso and you're listening to Bloomberg. This is Bloomberg 0:16:23.120 --> 0:16:28.640 Law with June Brusso from Bloomberg Radio. Almost all federal 0:16:28.680 --> 0:16:32.400 and state courts have found that state and federal constitutions 0:16:32.440 --> 0:16:36.600 provide a qualified privilege to allow journalists to refuse to 0:16:36.640 --> 0:16:40.600 reveal the names of their confidential sources and the unpublished 0:16:40.640 --> 0:16:44.600 information provided by the sources. There is currently a case 0:16:44.680 --> 0:16:49.240 in DC that's testing that privilege. Catherine Herriage is refusing 0:16:49.240 --> 0:16:52.160 to reveal her source for a series of stories she 0:16:52.240 --> 0:16:55.560 reported on in twenty seventeen when she was a reporter 0:16:55.640 --> 0:16:59.240 at Fox News. Joining me is an expert in media law. 0:16:59.360 --> 0:17:03.000 John Eppsy, a partner at Hall Still, So tell us 0:17:03.040 --> 0:17:06.040 about this case where the reporter is facing the possibility 0:17:06.080 --> 0:17:07.760 of some serious sanctions. 0:17:08.440 --> 0:17:11.879 From time to time we have situations in the country 0:17:11.960 --> 0:17:16.879 where the important policies of the free press and the 0:17:16.920 --> 0:17:20.600 freedom of litigant in order to get discovery clash, and 0:17:20.600 --> 0:17:22.199 that's what we had in this case. This is a 0:17:22.240 --> 0:17:27.200 case where a scientist filed a lawsuit against the FBI 0:17:28.240 --> 0:17:32.000 claiming that the FBI had breached the Federal Privacy Act 0:17:32.600 --> 0:17:35.840 by disclosing information and in this case, by disclosing information 0:17:35.880 --> 0:17:39.679 to a reporter. The scientists then in the course of 0:17:39.680 --> 0:17:45.200 the lawsuit, subpoenaed the reporter in order to get information 0:17:46.240 --> 0:17:50.760 about who actually disclosed the information that she claims was 0:17:50.760 --> 0:17:55.280 a violation of the Act. Importantly, she got the federal 0:17:55.400 --> 0:17:59.480 judge to order the reporter to sit for a deposition 0:17:59.600 --> 0:18:03.440 and provide that information. The reporter, Catherine Herridge, who was 0:18:03.560 --> 0:18:07.680 originally had done the story for Fox and is currently 0:18:07.800 --> 0:18:11.480 a CBS reporter, but the report was done in twenty sixteen. 0:18:12.040 --> 0:18:16.480 Miss Herridge sat for the deposition and politely declined to 0:18:16.560 --> 0:18:20.320 provide that information. And so now what the Miss Chen's 0:18:20.359 --> 0:18:24.600 council has done has filed a motion for sanctions, asking 0:18:24.640 --> 0:18:28.240 the court to require Miss Hendridge to finally disclose that information, 0:18:28.600 --> 0:18:32.040 and those sanctions could be in the form of severe 0:18:32.119 --> 0:18:35.920 monetary penalties or even potentially jail. 0:18:36.440 --> 0:18:39.439 Did Jen subpoena the FBI as well? 0:18:39.680 --> 0:18:41.960 That's an important question because it's one of the things 0:18:41.960 --> 0:18:45.720 that goes into whether or not the information should be disclosed. 0:18:45.760 --> 0:18:49.200 It's what information has she sought in the litigation? Has 0:18:49.240 --> 0:18:52.080 she done whatever she could in order to get alternative sources? 0:18:52.359 --> 0:18:55.199 And so I don't know to what extent she has 0:18:55.240 --> 0:18:58.119 actually gone to get that information from the FBI, but 0:18:58.200 --> 0:19:01.119 the judge has determined that she is done enough to 0:19:01.160 --> 0:19:05.800 seek information from alternative sources in order to require this 0:19:05.920 --> 0:19:07.520 reporter to disclose the information. 0:19:07.960 --> 0:19:10.760 Tell us about the reporter's privilege in general. 0:19:11.440 --> 0:19:16.159 So the reporter's privilege is different with respect to each state, 0:19:16.240 --> 0:19:19.280 except for one has its own reporter's privilege, and then 0:19:19.320 --> 0:19:24.040 the federal law has its own different set of reporter's privileges, 0:19:24.320 --> 0:19:26.119 so that it becomes a little bit confusing as to 0:19:26.320 --> 0:19:28.639 in which jurisdiction you find it in. But most of 0:19:28.640 --> 0:19:33.800 the reporter's privileges provide it's a qualified privilege, which means 0:19:33.920 --> 0:19:38.200 that the reporter may be forced to disclose confidential source 0:19:38.240 --> 0:19:42.720 information or unpublished information if certain things apply, one of 0:19:42.760 --> 0:19:45.280 which is does the information go to the heart of 0:19:45.320 --> 0:19:48.639 the matter, is it absolutely necessary for the lidy to 0:19:48.680 --> 0:19:51.440 have The other is has the litigant tried to get 0:19:51.440 --> 0:19:54.560 the information from alternative sources, and of course is that 0:19:54.600 --> 0:19:57.960 information available from alternative sources. Then the court would then 0:19:58.080 --> 0:20:02.160 have to balance the interest between whether or not the 0:20:02.280 --> 0:20:05.000 litigant should be able to get the information, or whether 0:20:05.080 --> 0:20:07.480 or not, even if there is no alternative source, whether 0:20:07.520 --> 0:20:10.760 the reporter should be able to withhold that information because 0:20:11.119 --> 0:20:13.840 the policy reasons behind the reporter's privilege. 0:20:14.280 --> 0:20:17.840 So in this case, the judge then did what he 0:20:18.040 --> 0:20:20.520 was supposed to do. He balanced the interests, and in 0:20:20.600 --> 0:20:24.680 his opinion, the interest weighed in favor of the disclosure. 0:20:25.720 --> 0:20:28.119 That's what he'd said, and that's what he said initially. 0:20:28.160 --> 0:20:32.119 So initially what happened was the subpoena was issued and 0:20:32.200 --> 0:20:35.120 immediately the reporter said, no, I'm not going to comply 0:20:35.200 --> 0:20:38.040 with a subpoena. They went and the judge ordered her 0:20:38.160 --> 0:20:41.119 to at least sit for the deposition. She sat for 0:20:41.160 --> 0:20:43.640 the deposition, and then when the questions were asked about 0:20:43.880 --> 0:20:47.160 who her sources were. She declined to provide that information, 0:20:47.640 --> 0:20:51.320 and so then the litigant, the scientist Chen and her 0:20:51.400 --> 0:20:53.840 counsel had to go back to the judge and say, okay, 0:20:53.880 --> 0:20:57.280 she's now declined. Now we want you to issue sanctions. 0:20:57.440 --> 0:20:59.960 So the judge has not yet issued any sanctions yet, 0:21:00.080 --> 0:21:03.560 that's still pending, but that is likely to happen. There's 0:21:03.600 --> 0:21:06.640 going to be some sanctions that will happen. The question 0:21:06.720 --> 0:21:09.800 is what are those sanctions. So the judge believes that 0:21:09.880 --> 0:21:14.680 based on what he heard, that the balancing required disclosure. 0:21:15.080 --> 0:21:20.000 Of course that that was met with some serious backlash 0:21:20.080 --> 0:21:23.879 from media advocates and free speech and free press advocates. 0:21:24.359 --> 0:21:27.119 And the reason is because even if there were no 0:21:27.200 --> 0:21:31.800 alternative sources, you've got a situation where if this reporter 0:21:32.160 --> 0:21:37.040 is sanctioned, whether it's severe monetary sanctions or prison, you're 0:21:37.040 --> 0:21:39.720 going to put this reporter and the next reporter on 0:21:39.760 --> 0:21:43.040 the next important case in a position to whether they 0:21:43.040 --> 0:21:47.080 have to choose between whether to sit in jail and 0:21:47.800 --> 0:21:50.439 wait for something to happen, or pay a hot, high fine, 0:21:51.000 --> 0:21:55.040 or to basically burn the source. The reporter had agreed 0:21:55.119 --> 0:21:58.120 to give confidentiality to the source so that the source 0:21:58.119 --> 0:22:02.240 would come forward, so that choice will have to be made. 0:22:02.480 --> 0:22:06.840 If that choice is made, and for instance, and the 0:22:06.880 --> 0:22:09.840 source is disclosed, then what happens in the next case 0:22:10.320 --> 0:22:13.359 when the next reporter seeks to get information from a source, 0:22:13.640 --> 0:22:15.679 that source may not be willing to give it if 0:22:15.720 --> 0:22:19.239 they're concerned that the confidentiality will be breached. And so 0:22:19.320 --> 0:22:21.840 these are unfaced. You would think, Okay, this is a 0:22:21.880 --> 0:22:25.160 litigant that wants to get information, they should be entitled 0:22:25.240 --> 0:22:27.000 that information so that they can live to get the case. 0:22:27.400 --> 0:22:30.760 But it has ramifications, and the ramifications are it may 0:22:30.840 --> 0:22:35.879 be that if future witnesses or whistleblowers are afraid to 0:22:35.920 --> 0:22:40.120 come forward, then important information will not reach the public. 0:22:40.560 --> 0:22:44.600 Are there any circumstances in which the judge would be 0:22:44.680 --> 0:22:48.840 correct in ordering a reporter to reveal his or her sources. 0:22:49.359 --> 0:22:52.920 There is an important case years ago called the Brandsburg case, 0:22:53.400 --> 0:22:55.359 which a lot of this comes from, at least with 0:22:55.400 --> 0:23:00.560 respect to federal jurisdiction. And in Brandsburg, a third party 0:23:00.640 --> 0:23:04.440 or a witness was subpoenaed by the government to appear 0:23:04.520 --> 0:23:07.359 at a grand jury proceeding and to testify, and the 0:23:07.480 --> 0:23:10.920 reporter that that was a reporter, and the reporter fought that, 0:23:11.480 --> 0:23:15.120 and the United States Supreme Court determined that no, under 0:23:15.160 --> 0:23:19.320 those circumstances. In that case, the reporter was required to 0:23:19.359 --> 0:23:22.840 testify at the grand jury. And so a lot of 0:23:22.840 --> 0:23:25.600 times that comes into place when the reporter is actually 0:23:25.720 --> 0:23:30.160 a witness to a particular crime, you know, in that case, 0:23:30.280 --> 0:23:33.600 courts sometimes say, well, you know, a journalist, a journalist 0:23:33.600 --> 0:23:35.239 should be treated just like any other person, and if 0:23:35.240 --> 0:23:36.720 you're a witness to a crime, you should have to 0:23:36.760 --> 0:23:39.960 testify before the grand jury. Where a lot of these 0:23:40.000 --> 0:23:43.560 cases come in is not necessarily when the journalist is 0:23:43.560 --> 0:23:45.720 a witness of the crime, but when the journalist is 0:23:45.800 --> 0:23:48.600 actually you know, as a private citizen. But it's when 0:23:48.760 --> 0:23:51.960 the journalist is actually serving as a reporter and getting 0:23:52.000 --> 0:23:55.560 information about a crime that has already happened. Then the 0:23:55.640 --> 0:23:57.840 question is should that journalists have to come forward and 0:23:57.920 --> 0:24:03.199 testify about what that journalist learned from its sources. And 0:24:03.840 --> 0:24:06.720 I've explained why, you know, I think that it's really 0:24:06.760 --> 0:24:09.199 important to be able to protect your sources and your 0:24:09.240 --> 0:24:13.560 unpublished information because you know, it could lock down. You know, 0:24:13.600 --> 0:24:16.679 there's been so many important stories over the years that 0:24:16.760 --> 0:24:21.880 have only been told because the witnesses or the sources 0:24:21.920 --> 0:24:26.359 came forward and required confidentiality. Had that information had that 0:24:26.440 --> 0:24:30.199 confidentiality not been promised and protected, than those witnesses wouldn't 0:24:30.200 --> 0:24:32.600 have come forward and the public would never have learned 0:24:32.600 --> 0:24:33.760 about these important things. 0:24:34.200 --> 0:24:37.440 Where does the importance of the story weigh in here? 0:24:38.080 --> 0:24:42.200 The more important the story is, that's one more argument 0:24:42.320 --> 0:24:46.000 in favor of not disclosing. But I would argue also 0:24:46.119 --> 0:24:49.840 that even in what you or I might determine to 0:24:49.840 --> 0:24:52.919