1 00:00:02,720 --> 00:00:06,800 Speaker 1: This is Bloomberg Law. A divided Supreme Court rejects a 2 00:00:06,920 --> 00:00:09,800 Speaker 1: religious challenge, tell us a little about the facts of 3 00:00:09,800 --> 00:00:13,600 Speaker 1: the case. Interviews with prominent attorneys in Bloomberg Legal experts 4 00:00:13,680 --> 00:00:16,919 Speaker 1: I guess his former federal prosecutor Jimmy Grula joining me 5 00:00:16,960 --> 00:00:20,760 Speaker 1: is Bloomberg Law reporter Jordan Ruben. And analysis of important 6 00:00:20,800 --> 00:00:24,160 Speaker 1: legal issues, cases and headlines. The Supreme Court takes on 7 00:00:24,239 --> 00:00:28,560 Speaker 1: state secrets. Multiple lawsuits were filed against the emergency rule. 8 00:00:28,800 --> 00:00:32,599 Speaker 1: Is this lawsuit? For real? Bloomberg Law with June Grasso 9 00:00:32,960 --> 00:00:39,319 Speaker 1: from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm 10 00:00:39,400 --> 00:00:42,960 Speaker 1: Kimberly Robinson and I'm Vidio Wheeler. We're in for June Grasso. 11 00:00:43,560 --> 00:00:45,640 Speaker 1: Coming up on the show. We're going to discuss the 12 00:00:45,680 --> 00:00:48,720 Speaker 1: latest battle between first a meenment rights and anti discrimination 13 00:00:48,760 --> 00:00:50,960 Speaker 1: laws to hit the U. S. Supreme Court. But first 14 00:00:51,120 --> 00:00:52,800 Speaker 1: we're going to talk about how the public could soon 15 00:00:52,840 --> 00:00:55,640 Speaker 1: see portions of the affidavit the FBI used to justify 16 00:00:55,680 --> 00:00:58,640 Speaker 1: its search of former President Donald Trump's Mari Lago estate. 17 00:00:59,040 --> 00:01:01,680 Speaker 1: A federal judge week gave the Justice Department a week 18 00:01:01,720 --> 00:01:04,640 Speaker 1: to propose what parts of this highly sensitive document should 19 00:01:04,640 --> 00:01:07,679 Speaker 1: be redacted. Media outlets pushed for the documents to be 20 00:01:07,760 --> 00:01:10,679 Speaker 1: unsealed after the FBI rated Trump's Palm Beach, Florida home 21 00:01:10,720 --> 00:01:13,400 Speaker 1: on August eight. The search was part of an investigation 22 00:01:13,440 --> 00:01:16,120 Speaker 1: into whether President Trump took classified documents from the White 23 00:01:16,120 --> 00:01:19,120 Speaker 1: House when he left office. Joining us as the Honorable 24 00:01:19,240 --> 00:01:22,720 Speaker 1: Alberto Gonzalez, who served as the country's eightieth Attorney General 25 00:01:22,800 --> 00:01:25,600 Speaker 1: during the George W. Bush administration. He's now dean of 26 00:01:25,680 --> 00:01:29,800 Speaker 1: Belmont University College of Law. Honorable Gonzalez, can you explain 27 00:01:29,880 --> 00:01:33,680 Speaker 1: what an affidavit is and what information it typically contains? Well? 28 00:01:34,000 --> 00:01:39,199 Speaker 1: In this particular, an affidavit is a sworn statement by 29 00:01:39,319 --> 00:01:45,080 Speaker 1: someone affirming the truthfulness of certain facts. In this particular 30 00:01:45,120 --> 00:01:49,440 Speaker 1: case and a criminal prosecution, typically you provide an affidavit 31 00:01:49,480 --> 00:01:56,120 Speaker 1: that lays out the information that supports finding a probable cause. Uh. 32 00:01:56,560 --> 00:02:00,240 Speaker 1: That can be quite detailed, quite extensive, because of course 33 00:02:00,240 --> 00:02:02,000 Speaker 1: you want to make the case, you want to meet 34 00:02:02,040 --> 00:02:06,120 Speaker 1: the burden, the standard of probable calls and um. So 35 00:02:06,160 --> 00:02:09,760 Speaker 1: that's what an affidavit typically would entail and include in 36 00:02:09,800 --> 00:02:13,919 Speaker 1: connection with a with a criminal prosecution. So this dispute 37 00:02:14,040 --> 00:02:16,000 Speaker 1: is all about, you know, whether or not the public 38 00:02:16,080 --> 00:02:18,520 Speaker 1: is to see this affidavit, and I'm just wondering, what 39 00:02:18,600 --> 00:02:21,600 Speaker 1: does that matter. We've already seen the surcharrant itself, and 40 00:02:21,919 --> 00:02:24,120 Speaker 1: you know it includes a description of some of the 41 00:02:24,160 --> 00:02:27,480 Speaker 1: items that were seized. What other information does the affidavit 42 00:02:27,560 --> 00:02:30,920 Speaker 1: have that we don't already know about. Well, without seeing 43 00:02:30,960 --> 00:02:34,200 Speaker 1: the affidavit, I'm going to be just speculating here. But 44 00:02:34,360 --> 00:02:39,560 Speaker 1: for example, an affidavit might include the name the identity 45 00:02:39,639 --> 00:02:44,160 Speaker 1: of a witness who provides information. Perhaps the affidavit would 46 00:02:44,160 --> 00:02:46,600 Speaker 1: say on some and so day, we met with this 47 00:02:46,680 --> 00:02:50,880 Speaker 1: individual and this individual provided this information, or so so date, 48 00:02:51,400 --> 00:02:55,840 Speaker 1: this individual provided an email that included certain information that 49 00:02:55,880 --> 00:02:58,640 Speaker 1: would form the basis of possibly evidence that crime has 50 00:02:58,639 --> 00:03:01,960 Speaker 1: been committed. So it can be quite detailed, quite frankly, 51 00:03:02,000 --> 00:03:04,240 Speaker 1: because you do want to meet the standard before the judge, 52 00:03:04,320 --> 00:03:07,280 Speaker 1: and you want to persuade the judge that yes, there's 53 00:03:07,400 --> 00:03:09,560 Speaker 1: enough here to conduct the search, because of course a 54 00:03:09,680 --> 00:03:13,880 Speaker 1: very contrusive investigatory tool, and so the information can be 55 00:03:13,960 --> 00:03:16,399 Speaker 1: quite detailed. And I think part of the concern here 56 00:03:16,600 --> 00:03:20,520 Speaker 1: is that there are two concerns primarily for the prosecution. Generally, 57 00:03:20,560 --> 00:03:23,280 Speaker 1: one is particularly if you have a witness that you 58 00:03:23,280 --> 00:03:25,680 Speaker 1: don't want to have that identity is closed at this 59 00:03:25,720 --> 00:03:29,480 Speaker 1: particular time, particularly there's a concern about safety or public harassment. 60 00:03:29,639 --> 00:03:32,440 Speaker 1: You want to protect the identity of that witness, of course, 61 00:03:32,480 --> 00:03:36,119 Speaker 1: and there are other reason you want to protect information 62 00:03:36,200 --> 00:03:39,040 Speaker 1: that is enclosed in an affidavit is that it does 63 00:03:39,160 --> 00:03:42,400 Speaker 1: provide somewhat of a roadmap, not a very I wouldn't 64 00:03:42,400 --> 00:03:47,119 Speaker 1: say a definitive roadmap, but does provide a hint indication 65 00:03:47,920 --> 00:03:51,560 Speaker 1: of how the prosecution is going to use information or 66 00:03:51,600 --> 00:03:55,280 Speaker 1: evidence or what evidence it has gathered in connection with 67 00:03:55,400 --> 00:03:58,480 Speaker 1: a roadmap to strategy about how to prosecute the crime. 68 00:03:59,000 --> 00:04:01,840 Speaker 1: That's interesting the Justice Department set in one of the 69 00:04:01,840 --> 00:04:04,200 Speaker 1: court filings that it actually wants to keep this affidate 70 00:04:04,280 --> 00:04:07,000 Speaker 1: that sealed, you know, to protect the integrity of an 71 00:04:07,040 --> 00:04:10,320 Speaker 1: ongoing law enforcement investigation. But can you explain for us 72 00:04:10,720 --> 00:04:13,400 Speaker 1: how releasing it could harm the integrity of that investigation. 73 00:04:13,440 --> 00:04:16,080 Speaker 1: I mean, I understand wanting to protect witnesses, but what 74 00:04:16,160 --> 00:04:18,279 Speaker 1: is it about the integrity of the investigation that could 75 00:04:18,279 --> 00:04:22,039 Speaker 1: be harmed. Well, it will provide more information about the 76 00:04:22,279 --> 00:04:29,000 Speaker 1: specific charges and the evidence that the prostitution already has. 77 00:04:29,120 --> 00:04:32,920 Speaker 1: And if you know what evidence and what potential witnesses 78 00:04:33,120 --> 00:04:36,400 Speaker 1: may be called to testify. As a defense lawyer, you're 79 00:04:36,560 --> 00:04:39,480 Speaker 1: better able to prepare for it. The other thing that 80 00:04:40,240 --> 00:04:42,440 Speaker 1: there would be concerned about is, of course, is that 81 00:04:42,960 --> 00:04:46,960 Speaker 1: your case may may hinge in large part upon upon 82 00:04:47,000 --> 00:04:50,040 Speaker 1: the cooperation of a witness, and that witness may be 83 00:04:50,120 --> 00:04:54,479 Speaker 1: discouraged from participating and cooperating if in fact, this identity 84 00:04:54,560 --> 00:04:57,320 Speaker 1: that witnesses to publicize the witnesses or ass and the 85 00:04:57,360 --> 00:05:00,120 Speaker 1: witnesses forget it. I'm not going to cooperate any in 86 00:05:00,120 --> 00:05:02,880 Speaker 1: any way, and so it would force the government to 87 00:05:03,040 --> 00:05:06,040 Speaker 1: try to compel the witness to testify to cooperate. Of course, 88 00:05:06,040 --> 00:05:09,280 Speaker 1: that's never an ideal situation. So you really do want 89 00:05:09,400 --> 00:05:12,280 Speaker 1: to work with and protect the identity of witnesses, There's 90 00:05:12,279 --> 00:05:15,520 Speaker 1: no question about it. So you know, this dispute comes 91 00:05:15,720 --> 00:05:18,960 Speaker 1: as media groups have asked for the judge to make 92 00:05:19,000 --> 00:05:22,039 Speaker 1: the affidavit here public. I'm just wondering, you know, how 93 00:05:22,120 --> 00:05:24,840 Speaker 1: common is it for the press to try to intervene 94 00:05:24,960 --> 00:05:28,200 Speaker 1: in cases like this. Well, no, it's unusual because we 95 00:05:28,320 --> 00:05:32,120 Speaker 1: have an unprecedented search, we have an unprecedented set of 96 00:05:32,160 --> 00:05:35,840 Speaker 1: circumstances here, and so typically the press would not weigh in. 97 00:05:36,000 --> 00:05:39,159 Speaker 1: I think the press would generally is more understanding of 98 00:05:39,160 --> 00:05:41,600 Speaker 1: the fact that they don't want to do anything or 99 00:05:41,640 --> 00:05:43,520 Speaker 1: they shouldn't want to do anything to put it that 100 00:05:43,560 --> 00:05:47,039 Speaker 1: way that would compromise or hurt an investigation that would 101 00:05:47,080 --> 00:05:50,200 Speaker 1: make it more difficult to prosecute wrongdoing, for example. And 102 00:05:50,279 --> 00:05:53,480 Speaker 1: so I understand the great public interests in this uh 103 00:05:53,480 --> 00:05:56,040 Speaker 1: And maybe perhaps this is a press feeling like you 104 00:05:56,160 --> 00:05:57,960 Speaker 1: need to at least appear to want to have this 105 00:05:58,040 --> 00:06:01,360 Speaker 1: information make public. But I have to believe that responsible 106 00:06:01,600 --> 00:06:07,039 Speaker 1: journalists understand that it's important to keep certain information confidential 107 00:06:07,160 --> 00:06:10,520 Speaker 1: as long as possible, if in the judgment of the prosecution, 108 00:06:10,720 --> 00:06:14,680 Speaker 1: that's important to have a successful prosecution of actual criminal wrongdoing. 109 00:06:15,240 --> 00:06:17,000 Speaker 1: You know, I think when the judge makes the comment 110 00:06:17,160 --> 00:06:20,479 Speaker 1: or discloses that perhaps certain parts of this affidavit is 111 00:06:20,480 --> 00:06:23,440 Speaker 1: going to be disclosed, I can't imagine that on a 112 00:06:23,480 --> 00:06:26,920 Speaker 1: case this sensitive and it's important for the government because 113 00:06:26,920 --> 00:06:28,880 Speaker 1: it is important. But it took a huge step in 114 00:06:28,920 --> 00:06:32,400 Speaker 1: doing this search that the judge is going to allow 115 00:06:32,880 --> 00:06:36,280 Speaker 1: any kind of meaningful disclosure of information in his affidavit, 116 00:06:36,360 --> 00:06:38,840 Speaker 1: so that the press maybe you know, they're jumping up 117 00:06:38,839 --> 00:06:41,440 Speaker 1: and down screaming for this information, and they're now look 118 00:06:41,520 --> 00:06:43,880 Speaker 1: like they're going to get something. I think they're gonna 119 00:06:43,880 --> 00:06:46,279 Speaker 1: be disappointed in what the judge actually allows to be 120 00:06:46,360 --> 00:06:50,000 Speaker 1: released that is not redacted. Quite frankly, that's the honorable 121 00:06:50,080 --> 00:06:53,520 Speaker 1: Alberto Gonzalez. You're listening to Bloomberg Law. Up next, we 122 00:06:53,600 --> 00:06:56,280 Speaker 1: continue our conversation with the former U. S Attorney General. 123 00:06:56,520 --> 00:07:00,000 Speaker 1: I'm Lidia Wheeler and I'm kimber Le Robinson. This is Bloomberg. 124 00:07:07,640 --> 00:07:12,400 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 125 00:07:13,080 --> 00:07:15,840 Speaker 1: I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for 126 00:07:15,920 --> 00:07:19,040 Speaker 1: June Grasso. We've been talking with the Honorable Alberto Gonzalez, 127 00:07:19,040 --> 00:07:21,320 Speaker 1: who served as the country's eightieth Attorney General during the 128 00:07:21,320 --> 00:07:25,880 Speaker 1: George W. Bush administration. Honorable Gonzalez Trump said publicly and 129 00:07:25,920 --> 00:07:29,200 Speaker 1: that the judge should unseal the affidavit, but his attorney 130 00:07:29,200 --> 00:07:31,200 Speaker 1: has never actually filed a motion to ask for the 131 00:07:31,280 --> 00:07:33,880 Speaker 1: judge to do that. So why do you think that is? 132 00:07:35,400 --> 00:07:39,040 Speaker 1: I have no idea why it is. You know, typically 133 00:07:39,520 --> 00:07:42,480 Speaker 1: someone who has actually committed a crime, they want to 134 00:07:42,480 --> 00:07:44,720 Speaker 1: get away with it. They don't want to disclose and 135 00:07:44,800 --> 00:07:48,280 Speaker 1: so they would typically not want to disclose the fact 136 00:07:48,320 --> 00:07:51,080 Speaker 1: that bet it Starts occurred, and if in fact it 137 00:07:51,240 --> 00:07:54,120 Speaker 1: was Cromwell wrongdoing, you know, they may not want that 138 00:07:54,160 --> 00:07:57,400 Speaker 1: disclose as well. In this particular case, I think former 139 00:07:57,440 --> 00:08:00,160 Speaker 1: President Trump rather an orthodox in the way and he 140 00:08:00,280 --> 00:08:03,520 Speaker 1: deals with the media and law enforcement in our court system, 141 00:08:03,640 --> 00:08:06,400 Speaker 1: and uh, you know, I have no idea much of 142 00:08:06,400 --> 00:08:09,360 Speaker 1: the rational reason behind some of the things that he's doing, 143 00:08:09,640 --> 00:08:12,080 Speaker 1: some of the things that he's saying. Well, without you know, 144 00:08:12,200 --> 00:08:14,600 Speaker 1: being able to get inside the head of the former 145 00:08:14,640 --> 00:08:18,640 Speaker 1: president and his attorneys, what could be the endgame here 146 00:08:18,840 --> 00:08:22,600 Speaker 1: for the formal president? What about the Affidavid would give 147 00:08:22,880 --> 00:08:26,440 Speaker 1: a defendant an advantage if there are any charges brought 148 00:08:27,080 --> 00:08:31,160 Speaker 1: that would benefit from having this affidavit unsealed. Well, again, 149 00:08:31,240 --> 00:08:34,480 Speaker 1: depending what's in the affidavit, of course, he would be 150 00:08:34,559 --> 00:08:39,400 Speaker 1: able to learn what witnesses had come forward and might 151 00:08:39,440 --> 00:08:44,120 Speaker 1: be willing to testify, and uh, he would know have 152 00:08:44,240 --> 00:08:48,439 Speaker 1: more information about what documents they actually the government has 153 00:08:48,440 --> 00:08:50,839 Speaker 1: in its position, and so they would have a much 154 00:08:50,840 --> 00:08:54,280 Speaker 1: better sense of the strength of their case. And so 155 00:08:54,440 --> 00:08:57,480 Speaker 1: it would then at that point I think he would 156 00:08:57,559 --> 00:09:00,400 Speaker 1: use that to gauge, well, what should I do here? 157 00:09:00,480 --> 00:09:03,520 Speaker 1: Should I not be worried about this moving forward? And 158 00:09:03,559 --> 00:09:06,280 Speaker 1: I'll use this as an opportunity to embarrass the government 159 00:09:06,480 --> 00:09:11,560 Speaker 1: and to bolster my chances of winning the nominee four. 160 00:09:11,840 --> 00:09:13,679 Speaker 1: I can continue to say that this is all po 161 00:09:13,679 --> 00:09:17,160 Speaker 1: local witch hunt, knowing that, in fact, if they move forward, 162 00:09:17,200 --> 00:09:19,800 Speaker 1: that I'm not gonna be prosecuted. On the other hand, 163 00:09:20,080 --> 00:09:22,559 Speaker 1: if it looks like they've got some pretty strong evidence, 164 00:09:22,920 --> 00:09:24,960 Speaker 1: I don't think he would calculate that he could deter 165 00:09:25,320 --> 00:09:28,559 Speaker 1: he could bully his way out of its prosecution moving forward, 166 00:09:29,280 --> 00:09:31,840 Speaker 1: but it may encourage him to perhaps have his lawyers 167 00:09:31,840 --> 00:09:35,280 Speaker 1: sit down with the department and maybe negotiate some kind of, 168 00:09:35,400 --> 00:09:38,040 Speaker 1: you know, plea deal or something like that. There's been 169 00:09:38,040 --> 00:09:40,320 Speaker 1: a lot of talking, even you mentioned it, about how 170 00:09:40,400 --> 00:09:44,560 Speaker 1: unprecedented this investigation is. But is there any case in 171 00:09:44,640 --> 00:09:48,680 Speaker 1: history or investigation that even comes close in comparison or 172 00:09:48,720 --> 00:09:54,679 Speaker 1: that you would compare this to not really, because, um, 173 00:09:54,720 --> 00:09:56,800 Speaker 1: you know, in the history of our country, there's never 174 00:09:56,880 --> 00:10:02,439 Speaker 1: been a former president that's had their home search. Um. Now, 175 00:10:02,600 --> 00:10:06,280 Speaker 1: there may have been Polemary investigations of someone that you know, 176 00:10:06,320 --> 00:10:09,160 Speaker 1: we just don't know about, but we're not aware of 177 00:10:09,160 --> 00:10:12,480 Speaker 1: anything like like a search that occurred with respect to 178 00:10:12,480 --> 00:10:16,240 Speaker 1: the Florida's state and it's for that reason you had 179 00:10:16,240 --> 00:10:19,280 Speaker 1: the Attorney General make this decision. You know, total searches 180 00:10:19,360 --> 00:10:23,000 Speaker 1: go on every day throughout this country and the Attorney 181 00:10:23,080 --> 00:10:26,040 Speaker 1: jenial is not involved. In fact that there are many 182 00:10:26,040 --> 00:10:29,280 Speaker 1: senior officials within main Justice in Washington were gone involved. 183 00:10:29,280 --> 00:10:31,920 Speaker 1: Typically it's going to be a senior person at the U. S. 184 00:10:31,920 --> 00:10:35,760 Speaker 1: Attorney's office somewhere in one of the states. But in 185 00:10:35,800 --> 00:10:39,640 Speaker 1: this particular case, UM, this was because it was so unprecedented, 186 00:10:40,440 --> 00:10:43,320 Speaker 1: UH and involved the former president who may be thinking 187 00:10:43,320 --> 00:10:46,920 Speaker 1: about running for president, the Attorney general weighed end. When 188 00:10:46,960 --> 00:10:50,720 Speaker 1: I was the Attorney General, I had the same situation 189 00:10:50,880 --> 00:10:53,040 Speaker 1: where I had to make a call on a search 190 00:10:53,400 --> 00:10:56,800 Speaker 1: that that was unprecedented and that involved the search of 191 00:10:56,960 --> 00:11:01,840 Speaker 1: Congston William Jefferson's Congressional Hill office. UM. We can suspected 192 00:11:01,960 --> 00:11:07,120 Speaker 1: Hill of bribery, influence peddling, and money laundering. And I 193 00:11:07,160 --> 00:11:09,520 Speaker 1: was approached by senior members of my team at the 194 00:11:09,520 --> 00:11:12,920 Speaker 1: Department of Justice who informed me that they believed that 195 00:11:13,000 --> 00:11:16,680 Speaker 1: there was evidence in Connorsman Jefferson's Capitol Hill office and 196 00:11:16,679 --> 00:11:19,079 Speaker 1: they wanted to conduct the search in the heretory of 197 00:11:19,120 --> 00:11:22,000 Speaker 1: our country. Best ever been done before, where you had 198 00:11:22,040 --> 00:11:26,640 Speaker 1: the FBI on Capitol Hill going through Congress in congressman's office. Now, 199 00:11:26,679 --> 00:11:31,680 Speaker 1: we've conducted searches in the district offices of congressman's we've 200 00:11:31,679 --> 00:11:35,240 Speaker 1: conducted searches in the cars of a congressman, but never 201 00:11:35,320 --> 00:11:38,720 Speaker 1: in a Capitol Hill office. And they my team knew 202 00:11:38,720 --> 00:11:40,840 Speaker 1: it was unprecedented and they wanted to make sure I 203 00:11:40,880 --> 00:11:43,880 Speaker 1: was okay with it. In the same situation occurred with 204 00:11:43,920 --> 00:11:47,080 Speaker 1: General Garland. The team knew this was unprecedented, and so 205 00:11:47,160 --> 00:11:49,040 Speaker 1: they knew this was a decision had to be made 206 00:11:49,040 --> 00:11:52,319 Speaker 1: by the Attorney General because it is so unprecedented, and 207 00:11:52,440 --> 00:11:54,200 Speaker 1: quite frankly, the attorney you know, would want to know 208 00:11:54,240 --> 00:11:57,000 Speaker 1: any advance that they're about to do this because the 209 00:11:57,000 --> 00:11:59,839 Speaker 1: attorney you'll needs to weigh in. And very one final 210 00:12:00,320 --> 00:12:04,480 Speaker 1: point that's very important. When we did our search UM, 211 00:12:04,520 --> 00:12:06,760 Speaker 1: I did not notify the wine House because it's a 212 00:12:06,840 --> 00:12:11,040 Speaker 1: law enforcement matter. You don't want to have this um 213 00:12:11,360 --> 00:12:16,360 Speaker 1: characterized as politics by opponents, and so we just did 214 00:12:16,360 --> 00:12:19,320 Speaker 1: what we do every day. And and my understanding is 215 00:12:19,360 --> 00:12:22,520 Speaker 1: based upon the comments from General Garland, is that they 216 00:12:22,520 --> 00:12:25,440 Speaker 1: didn't notify the White House either, because it's a law 217 00:12:25,520 --> 00:12:28,920 Speaker 1: enforcement matter and they did it by the book and 218 00:12:29,000 --> 00:12:31,760 Speaker 1: that's the way that they should be. That's really interesting. 219 00:12:32,320 --> 00:12:35,840 Speaker 1: Does having the weight of the Attorney General's office behind 220 00:12:35,880 --> 00:12:38,840 Speaker 1: an investigation room, backing an investigation like this, does that 221 00:12:38,880 --> 00:12:41,559 Speaker 1: bolster your case that you could potentially bring. I mean, 222 00:12:41,600 --> 00:12:45,839 Speaker 1: what advantage does that serve any Well? Well, it may 223 00:12:45,880 --> 00:12:48,760 Speaker 1: at the outset in terms of rulings by the judge, 224 00:12:48,960 --> 00:12:50,839 Speaker 1: but at the end of the day, it's going to 225 00:12:50,920 --> 00:12:56,199 Speaker 1: be based you know, the charging decision and the decision 226 00:12:56,640 --> 00:13:00,640 Speaker 1: decisions at the trial, strategy and the and the presentations 227 00:13:00,679 --> 00:13:03,720 Speaker 1: at trial will be made based on the evidence. That's 228 00:13:03,720 --> 00:13:05,680 Speaker 1: all you have. I mean, that's what you that's what 229 00:13:05,760 --> 00:13:08,520 Speaker 1: you use, and that's what you flye upon the fact 230 00:13:08,559 --> 00:13:10,920 Speaker 1: that the Attorney General has signed off on the search 231 00:13:11,400 --> 00:13:13,640 Speaker 1: and he will sign off on the charging decision, I'm 232 00:13:13,679 --> 00:13:15,400 Speaker 1: sure as well. I mean, if they don't decide to 233 00:13:15,400 --> 00:13:20,480 Speaker 1: go forward, he will sign off on that. You know, again, 234 00:13:20,559 --> 00:13:22,440 Speaker 1: it's all gonna be based on the evidence, not whether 235 00:13:22,520 --> 00:13:24,680 Speaker 1: or not the Attorney General beliefs in fact that the 236 00:13:24,720 --> 00:13:27,719 Speaker 1: crime has been committed here. But Canada Department, does the 237 00:13:27,720 --> 00:13:31,160 Speaker 1: Department feel comfortable confident as it will a will persuade 238 00:13:31,600 --> 00:13:36,760 Speaker 1: twelve independent um unbiased jurors that in fact, all the 239 00:13:36,800 --> 00:13:40,240 Speaker 1: elements of a crime can be proved beyond a reasonable doubt. 240 00:13:40,920 --> 00:13:43,840 Speaker 1: And then just really briefly, on a final note, the 241 00:13:43,880 --> 00:13:46,560 Speaker 1: Justice Department has a week under the course order to 242 00:13:46,600 --> 00:13:49,679 Speaker 1: propose what parts of the documents should be redacted and 243 00:13:49,720 --> 00:13:52,839 Speaker 1: withheld from public view. How much information do you think 244 00:13:52,880 --> 00:13:54,560 Speaker 1: at the end of the day the public is really 245 00:13:54,559 --> 00:13:59,280 Speaker 1: going to learn from from this APPA, David, Well, as 246 00:13:59,320 --> 00:14:02,360 Speaker 1: I said in sponsor and earlier question, I think that 247 00:14:02,520 --> 00:14:05,240 Speaker 1: the public and in particular the press is going to 248 00:14:05,320 --> 00:14:10,080 Speaker 1: be disappointed. I think they're not gonna learn much. Quite frankly, 249 00:14:11,040 --> 00:14:14,920 Speaker 1: I think what will be release will be a very 250 00:14:14,960 --> 00:14:18,560 Speaker 1: heavily redacted document that will not provide that will not 251 00:14:18,600 --> 00:14:24,600 Speaker 1: be very satisfying to UM, Donald Trump and not satisfying 252 00:14:24,640 --> 00:14:27,440 Speaker 1: to the media. I just because I do believe the 253 00:14:27,480 --> 00:14:31,000 Speaker 1: course will be very sensitive protecting had any of witnesses 254 00:14:31,080 --> 00:14:35,200 Speaker 1: and to protecting the integrity of the investigation going forward, 255 00:14:35,240 --> 00:14:38,920 Speaker 1: despite the great public interest in this in in this manner, 256 00:14:39,800 --> 00:14:42,680 Speaker 1: honorable Gonzoz, thank you so much for being here. You're 257 00:14:42,720 --> 00:14:46,160 Speaker 1: listening to Bloomberg Law. I'm Lidia Wheeler and I'm Kimberly Robinson. 258 00:14:46,560 --> 00:14:49,040 Speaker 1: Coming up, we speak with former Federal Appellate Court judge 259 00:14:49,040 --> 00:14:51,880 Speaker 1: Michael McConnell about the latest LGBT battle at the U. S. 260 00:14:51,880 --> 00:14:54,800 Speaker 1: Supreme Court and the ongoing clash for First Amendment rights. 261 00:14:55,320 --> 00:15:06,640 Speaker 1: This is Bloomberg. This is Bloomberg Law with June Grasso 262 00:15:07,080 --> 00:15:11,800 Speaker 1: from Bloomberg Radio. I'm Lidia Wheeler and I'm Kimberly Robinson. 263 00:15:12,200 --> 00:15:14,920 Speaker 1: We're in for June Grasso. We're joined now by a 264 00:15:14,960 --> 00:15:17,600 Speaker 1: former federal judge, Michael McConnell, to talk about Three or 265 00:15:17,640 --> 00:15:20,520 Speaker 1: Three Creative, a Supreme Court case of the justices will 266 00:15:20,520 --> 00:15:23,520 Speaker 1: take up in the upcoming term. The case pits a 267 00:15:23,600 --> 00:15:26,640 Speaker 1: state anti discrimination law meant to protect same sex couples 268 00:15:26,840 --> 00:15:29,840 Speaker 1: against free speech rights. And we've seen a version of 269 00:15:29,880 --> 00:15:32,120 Speaker 1: this dispute at the High Court before in the case 270 00:15:32,160 --> 00:15:35,240 Speaker 1: of a Colorado baker who said his religious beliefs prevented 271 00:15:35,320 --> 00:15:38,280 Speaker 1: him from making a custom wedding cake for same sex couple. 272 00:15:38,960 --> 00:15:41,920 Speaker 1: This time around, though, the dispute, also out of the 273 00:15:41,960 --> 00:15:45,240 Speaker 1: Centennial State, involves a web designer who says she can't 274 00:15:45,520 --> 00:15:49,120 Speaker 1: design custom websites for same sex couples without violating her 275 00:15:49,160 --> 00:15:52,800 Speaker 1: sincerely held religious beliefs. Briefing from both sides and their 276 00:15:52,840 --> 00:15:55,480 Speaker 1: so called friends or amichi wrapped up last week, setting 277 00:15:55,560 --> 00:15:58,600 Speaker 1: up the case to be heard sometime in late or 278 00:15:58,600 --> 00:16:02,560 Speaker 1: early Judge McConnell as I mentioned, this case is very 279 00:16:02,600 --> 00:16:06,000 Speaker 1: similar to Masterpiece Cake Shop, which the Justice is decided in, 280 00:16:07,040 --> 00:16:10,480 Speaker 1: but it differs in one really important way, and that's 281 00:16:10,520 --> 00:16:13,560 Speaker 1: that this dispute is framed as one about free speech 282 00:16:13,640 --> 00:16:17,000 Speaker 1: instead of religious liberty. What if any difference is that 283 00:16:17,040 --> 00:16:19,920 Speaker 1: going to make this time around. Well, I think it 284 00:16:20,040 --> 00:16:25,360 Speaker 1: greatly simplifies and narrows the case because a free exercise 285 00:16:25,440 --> 00:16:31,840 Speaker 1: claim might be brought by anyone whose beliefs prevent them 286 00:16:32,000 --> 00:16:36,920 Speaker 1: working with same sex wedding. This as a speech case, 287 00:16:37,320 --> 00:16:42,160 Speaker 1: this is combined just to people whose activities are expressive 288 00:16:42,200 --> 00:16:45,120 Speaker 1: in nature, people are actually speaking, so it's a much 289 00:16:45,200 --> 00:16:48,080 Speaker 1: narrow work case. This didn't start out as just a 290 00:16:48,120 --> 00:16:50,640 Speaker 1: free speech case though. In the beginning, the web designer 291 00:16:50,680 --> 00:16:54,160 Speaker 1: asked the justices to consider whether the state's anti discrimination 292 00:16:54,240 --> 00:16:57,360 Speaker 1: law violated her religious freedom um. But the Justice has 293 00:16:57,400 --> 00:17:00,360 Speaker 1: actually changed the question they were asked to sign and 294 00:17:00,480 --> 00:17:03,960 Speaker 1: honed in exclusively on this speech right. So I'm curious 295 00:17:04,000 --> 00:17:06,080 Speaker 1: how often do you see the court do something like 296 00:17:06,080 --> 00:17:09,760 Speaker 1: that where they rewrite the question and what does that signal? 297 00:17:10,800 --> 00:17:13,000 Speaker 1: So it doesn't happen very often. I mean, this is 298 00:17:13,000 --> 00:17:15,919 Speaker 1: not a unicorn. It happens from time to time, but 299 00:17:16,040 --> 00:17:19,480 Speaker 1: this is somewhat unusual, and it indicates that the Court 300 00:17:19,560 --> 00:17:22,560 Speaker 1: really wants to focus in on the speech claim, which, 301 00:17:22,560 --> 00:17:26,040 Speaker 1: as I say, is narrower uh, and not the broader 302 00:17:26,119 --> 00:17:29,880 Speaker 1: free exercise client m. So we've seen the Roberts Court 303 00:17:30,000 --> 00:17:33,280 Speaker 1: under Chief Justice John Roberts issue ruling after ruling that 304 00:17:33,359 --> 00:17:36,679 Speaker 1: a pretty protective of religious rights, particularly the right to 305 00:17:36,880 --> 00:17:40,479 Speaker 1: freely exercise uh, your religion. And that was so just 306 00:17:40,560 --> 00:17:44,399 Speaker 1: his last term in cases involving educational funding and school prayer. 307 00:17:44,920 --> 00:17:47,880 Speaker 1: I'm wondering, does the Court's reframing of this case as 308 00:17:47,920 --> 00:17:51,040 Speaker 1: one involving only speech signal that the Court is kind 309 00:17:51,040 --> 00:17:55,320 Speaker 1: of shifting away from robustly protecting religious rights. Have we 310 00:17:55,440 --> 00:17:58,440 Speaker 1: reached kind of the high water mark there? I don't 311 00:17:58,440 --> 00:18:00,960 Speaker 1: think so. I don't think it indicates anything of the sort. 312 00:18:01,320 --> 00:18:04,600 Speaker 1: It indicates that the facts of this case seemed to 313 00:18:04,640 --> 00:18:08,600 Speaker 1: map more clearly onto free speech doctrine than anything else, 314 00:18:09,400 --> 00:18:11,520 Speaker 1: and then so can you just give our listeners a 315 00:18:11,560 --> 00:18:14,880 Speaker 1: brief rundown about what the major issues here are as 316 00:18:14,920 --> 00:18:18,080 Speaker 1: the justices are set to decide this case. This case 317 00:18:18,160 --> 00:18:21,840 Speaker 1: is simpler in many ways than the earlier cases that 318 00:18:21,920 --> 00:18:25,920 Speaker 1: have gone up to the court, especially the one about 319 00:18:25,960 --> 00:18:29,920 Speaker 1: the baker. The main reason it's simpler is that there 320 00:18:30,040 --> 00:18:34,000 Speaker 1: is no dispute in this case that the conduct is 321 00:18:34,080 --> 00:18:36,679 Speaker 1: expressive and you know when when when looking at a 322 00:18:36,720 --> 00:18:40,280 Speaker 1: wedding cake. The justices were somewhat uncertain as to how 323 00:18:40,359 --> 00:18:44,160 Speaker 1: to view that, and during the oral argument, Justice Soda 324 00:18:44,200 --> 00:18:48,399 Speaker 1: Mayor said that the cake was just food, indicating that 325 00:18:48,480 --> 00:18:51,800 Speaker 1: it didn't really have an expressive component to it. But 326 00:18:51,880 --> 00:18:56,480 Speaker 1: in this case, the lower court specifically held that web 327 00:18:56,520 --> 00:19:00,720 Speaker 1: design is speech and treated it as such. And secondly, 328 00:19:01,160 --> 00:19:03,400 Speaker 1: there is no dispute in the case that the web 329 00:19:03,400 --> 00:19:07,040 Speaker 1: designer does not discriminate on the basis of sexual orientation. 330 00:19:07,400 --> 00:19:11,760 Speaker 1: She does not refuse to provide services to same sex couples. 331 00:19:12,000 --> 00:19:15,439 Speaker 1: What she refuses to do is to provide services to 332 00:19:15,520 --> 00:19:20,160 Speaker 1: any event that she believes is contrary to her beliefs. 333 00:19:20,160 --> 00:19:25,119 Speaker 1: So it's specifically not a case about discrimination on the 334 00:19:25,119 --> 00:19:29,280 Speaker 1: basis of orientation. It's discrimination on the basis of the message, 335 00:19:29,680 --> 00:19:32,919 Speaker 1: and that makes this a much clearer case of a 336 00:19:33,000 --> 00:19:37,000 Speaker 1: free speech violation than the earlier decisions that had gone 337 00:19:37,080 --> 00:19:40,000 Speaker 1: up to the court. It doesn't seem like this a 338 00:19:40,080 --> 00:19:42,840 Speaker 1: case is going to end this tension between you know, 339 00:19:42,880 --> 00:19:46,600 Speaker 1: the First Amendment and LGBT issues. I'm curious as to 340 00:19:46,840 --> 00:19:50,560 Speaker 1: what other disputes could be on the horizon here. Well, 341 00:19:50,560 --> 00:19:53,840 Speaker 1: the Supreme Court decisions never end disputes that they could 342 00:19:53,840 --> 00:19:57,480 Speaker 1: sometimes make them worse, and I am hoping that this 343 00:19:57,520 --> 00:20:00,119 Speaker 1: would be an occasion for the Court to try to 344 00:20:00,200 --> 00:20:05,200 Speaker 1: calm the waters rather than boil them. I think transgender 345 00:20:05,240 --> 00:20:09,520 Speaker 1: issues are probably the biggest issue that are coming down 346 00:20:09,760 --> 00:20:14,040 Speaker 1: the pike in terms of forcing people to say things 347 00:20:14,080 --> 00:20:17,639 Speaker 1: that are affirming. There was a six Circuit decision not 348 00:20:17,760 --> 00:20:23,800 Speaker 1: long ago about a tenure college professor who refused to 349 00:20:23,920 --> 00:20:29,280 Speaker 1: use students selected pronouns in class, and the court held 350 00:20:29,320 --> 00:20:32,560 Speaker 1: that he had a right not to be forced to 351 00:20:32,680 --> 00:20:37,760 Speaker 1: use pronouns that reflected a view that he disbelieved them. Well, 352 00:20:37,800 --> 00:20:39,919 Speaker 1: that's Michael McConnell who said on the US Court of 353 00:20:39,920 --> 00:20:42,639 Speaker 1: Appeals for the tense Circuit, which here's disputes like this 354 00:20:42,680 --> 00:20:46,040 Speaker 1: one out of Colorado. McConnell is now professor at Stanford 355 00:20:46,119 --> 00:20:48,680 Speaker 1: Law and the director of the school's Constitutional Law Center. 356 00:20:49,320 --> 00:20:51,879 Speaker 1: You're listening to Bloomberg Law. Up next, we continue our 357 00:20:51,920 --> 00:20:56,920 Speaker 1: conversation with Judge McConnell. I'm Kimberly Robinson and I'm Lidio Wheeler. 358 00:20:57,160 --> 00:21:09,240 Speaker 1: This is Bloomberg. This is Bloomberg Law with June Grasso 359 00:21:09,680 --> 00:21:14,520 Speaker 1: from Bloomberg Radio. I'm Kimberly Robinson and I'm Lydia Wheeler. 360 00:21:14,680 --> 00:21:18,119 Speaker 1: We're in Virjune Grasso. We've been talking with former federal 361 00:21:18,200 --> 00:21:21,440 Speaker 1: judge Michael McConnell about the latest battle between LGBT rights 362 00:21:21,480 --> 00:21:23,240 Speaker 1: and the first Amendment to come before the U. S. 363 00:21:23,240 --> 00:21:25,880 Speaker 1: Supreme Court. So I wanted to get into the legal 364 00:21:25,960 --> 00:21:29,119 Speaker 1: arguments of this case. Three or three creative Uh. The 365 00:21:29,160 --> 00:21:31,199 Speaker 1: court below, the court that you yourself set on for 366 00:21:31,240 --> 00:21:35,240 Speaker 1: a number of years, said that Colorado's antidiscrimination law compels 367 00:21:35,280 --> 00:21:38,760 Speaker 1: citizens to speak and at the same time prevents them 368 00:21:38,760 --> 00:21:42,600 Speaker 1: from saying certain things. Typically, such findings would doom the 369 00:21:42,680 --> 00:21:46,119 Speaker 1: law under what's known in the legal world as strict scrutiny. 370 00:21:46,160 --> 00:21:48,600 Speaker 1: But that's not what happened here. Can you tell us 371 00:21:48,600 --> 00:21:51,320 Speaker 1: a little bit about the various levels of scrutiny that 372 00:21:51,400 --> 00:21:54,199 Speaker 1: courts will apply when looking to see whether or not 373 00:21:54,240 --> 00:21:58,119 Speaker 1: a law passes constitutional muster and what happened in this case. 374 00:21:58,920 --> 00:22:02,040 Speaker 1: This is an over simple apification, but there are basically 375 00:22:02,119 --> 00:22:06,680 Speaker 1: three levels of scrutiny. Rational basis scrutiny is a case 376 00:22:06,760 --> 00:22:09,320 Speaker 1: where yes, there may be a right involved, but it's 377 00:22:09,359 --> 00:22:14,000 Speaker 1: not a fundamental right, it's not a clearly established right, 378 00:22:14,160 --> 00:22:16,199 Speaker 1: and all that the government needs to do is to 379 00:22:16,280 --> 00:22:19,840 Speaker 1: show that it has a rational basis for its action. 380 00:22:20,480 --> 00:22:23,720 Speaker 1: Then there is that the opposite in strict scrutiny, which 381 00:22:23,760 --> 00:22:27,480 Speaker 1: is where there is a presumptive violation of an important 382 00:22:27,520 --> 00:22:31,280 Speaker 1: constitutional right and the government is not permitted to do 383 00:22:31,359 --> 00:22:35,639 Speaker 1: that unless it has what's called a compelling governmental interests, 384 00:22:35,680 --> 00:22:38,720 Speaker 1: which is an extremely powerful interest that could not be 385 00:22:38,840 --> 00:22:44,200 Speaker 1: satisfied in a less restrictive manner. In between is something 386 00:22:44,240 --> 00:22:48,560 Speaker 1: called intermediate scrutiny, which requires uh an important though not 387 00:22:48,760 --> 00:22:55,240 Speaker 1: compelling interests, and narrow tailoring but not the least restrictive means. 388 00:22:55,680 --> 00:22:59,280 Speaker 1: Free speech claims, where the government is actually regulating on 389 00:22:59,320 --> 00:23:03,480 Speaker 1: the basis of the content of what someone says says 390 00:23:03,920 --> 00:23:08,960 Speaker 1: are always governed by strict scrutiny, and quite frankly, they're 391 00:23:09,280 --> 00:23:13,520 Speaker 1: almost as is automatic invalidation. I mean when one scholar 392 00:23:13,560 --> 00:23:17,199 Speaker 1: famously described it a strict in theory, but fatal in fact. 393 00:23:17,280 --> 00:23:20,600 Speaker 1: It would be highly unusual for the court to hold 394 00:23:21,000 --> 00:23:24,480 Speaker 1: that strict scrutiny applies in this case, but that the 395 00:23:24,560 --> 00:23:29,199 Speaker 1: state wins anyway. But that's what happened in the court below, right, 396 00:23:29,240 --> 00:23:33,600 Speaker 1: And so was that a bit surprising. The decision below 397 00:23:33,760 --> 00:23:39,080 Speaker 1: was really quite surprising. The logic of the decision was that, yes, 398 00:23:39,359 --> 00:23:43,640 Speaker 1: this was compelled speech. That web designer was being forced 399 00:23:43,800 --> 00:23:46,640 Speaker 1: to say something that she didn't believe in, and that's 400 00:23:46,760 --> 00:23:51,199 Speaker 1: ordinarily a clear violation of the First Amendment. But in 401 00:23:51,240 --> 00:23:54,800 Speaker 1: this case, the state had a compelling interest, according to 402 00:23:54,840 --> 00:24:00,040 Speaker 1: the court, because her web designs are unique. Uh. This 403 00:24:00,200 --> 00:24:02,120 Speaker 1: is not like you know, going to the grocery store 404 00:24:02,119 --> 00:24:05,320 Speaker 1: and buying a commodity. It's not like buying a cake 405 00:24:05,400 --> 00:24:09,280 Speaker 1: off the shelf of the bakery. Uh. Each web design 406 00:24:09,440 --> 00:24:13,560 Speaker 1: is unique, and the web designer is highly skilled and 407 00:24:13,680 --> 00:24:17,359 Speaker 1: artistic and so forth. And so what the court held 408 00:24:17,960 --> 00:24:23,560 Speaker 1: was that the state has a compelling interest to protect 409 00:24:23,880 --> 00:24:30,760 Speaker 1: LBGT couples UH seeking same sex marriage. Website designs that 410 00:24:31,040 --> 00:24:34,480 Speaker 1: they need to be protected because they are entitled to 411 00:24:34,800 --> 00:24:40,439 Speaker 1: this highly unique service. Now, this is very surprising because 412 00:24:40,440 --> 00:24:45,160 Speaker 1: it's it actually flips the usual argument. The usual argument 413 00:24:45,400 --> 00:24:49,040 Speaker 1: is that um and when when you talk about somebody 414 00:24:49,119 --> 00:24:52,640 Speaker 1: like a baker, which was the last case, that if 415 00:24:53,040 --> 00:24:56,560 Speaker 1: the person is simply buying goods off the shelf like 416 00:24:56,720 --> 00:25:01,119 Speaker 1: pre made cakes, that the discrimination laws apply, but that 417 00:25:01,200 --> 00:25:04,640 Speaker 1: they don't apply when an artistic or expressive person has 418 00:25:04,720 --> 00:25:10,280 Speaker 1: to has to do a unique um item and the 419 00:25:10,440 --> 00:25:12,640 Speaker 1: tent circuit in this case that it was the other 420 00:25:12,680 --> 00:25:16,119 Speaker 1: way around. That it's when you're seeking the unique services 421 00:25:16,160 --> 00:25:20,560 Speaker 1: of an artist that the discrimination laws apply. That is 422 00:25:21,200 --> 00:25:28,399 Speaker 1: highly counterintuitive conclusion. Interesting, Honorable McConnelly. Do you have an 423 00:25:28,440 --> 00:25:31,200 Speaker 1: idea of how the Supreme Court will approach this case? 424 00:25:31,480 --> 00:25:34,640 Speaker 1: You know? And are there any particular justices that you're 425 00:25:34,680 --> 00:25:40,240 Speaker 1: watching clufully here. Well, it's very hard to predict a 426 00:25:40,400 --> 00:25:44,919 Speaker 1: court that this This looks like it's a case it's 427 00:25:44,960 --> 00:25:49,919 Speaker 1: destined to be reversed at least six to three. And 428 00:25:50,160 --> 00:25:53,640 Speaker 1: I wonder if it might be This is total speculation 429 00:25:53,720 --> 00:25:55,919 Speaker 1: and I could be wrong, but I wonder if it 430 00:25:56,000 --> 00:25:59,320 Speaker 1: might be that the court reached out for this especially 431 00:25:59,400 --> 00:26:03,080 Speaker 1: powerful case and narrowed it in the way that they 432 00:26:03,160 --> 00:26:06,520 Speaker 1: did in order to produce a unanimous decision. It would 433 00:26:06,600 --> 00:26:11,920 Speaker 1: be very good for our culture for the Supreme Court 434 00:26:11,960 --> 00:26:15,719 Speaker 1: to speak unanimously on an issue that is this fraught 435 00:26:15,800 --> 00:26:20,160 Speaker 1: and contentious, and it might help establish the idea that 436 00:26:20,240 --> 00:26:24,200 Speaker 1: the decisions creating a right the same sex marriage we're 437 00:26:24,240 --> 00:26:28,040 Speaker 1: really intended to be freedom decisions to allow people the 438 00:26:28,119 --> 00:26:33,520 Speaker 1: freedom to marriage, to engage in marriage, but not an 439 00:26:33,520 --> 00:26:38,439 Speaker 1: oppressive decision that forces everyone else to be as to 440 00:26:38,480 --> 00:26:42,359 Speaker 1: how they uh speak about it. And so I wonder 441 00:26:42,440 --> 00:26:46,280 Speaker 1: if maybe this is a prelude to a unanimous decision 442 00:26:46,960 --> 00:26:53,080 Speaker 1: that would help calm the waters of this uh devisive issue. Well, 443 00:26:53,119 --> 00:26:55,160 Speaker 1: that's interesting. You know. We we talked a bit about 444 00:26:55,160 --> 00:26:58,320 Speaker 1: how this case is like the Masterpiece cake Shop that 445 00:26:58,359 --> 00:27:00,879 Speaker 1: the Justice has heard before, and they were able to 446 00:27:01,040 --> 00:27:05,240 Speaker 1: avoid kind of the regular split in that case by 447 00:27:05,400 --> 00:27:07,679 Speaker 1: taking sort of an off ramp, And that is to 448 00:27:07,720 --> 00:27:10,800 Speaker 1: say that they decided a really narrow factual issue in 449 00:27:10,840 --> 00:27:13,400 Speaker 1: that case and send the dispute back to the lower 450 00:27:13,400 --> 00:27:16,199 Speaker 1: courts to deal with. I'm wondering, do you think this 451 00:27:16,240 --> 00:27:19,119 Speaker 1: time around will actually get an answer as to how 452 00:27:19,520 --> 00:27:22,640 Speaker 1: these state and A discrimination laws are meant to interact 453 00:27:22,720 --> 00:27:24,480 Speaker 1: with First Amendment rights or do you think the court 454 00:27:24,600 --> 00:27:27,080 Speaker 1: is going to look for and take another one of 455 00:27:27,119 --> 00:27:30,520 Speaker 1: these kind of off roads. I don't see any obvious 456 00:27:30,560 --> 00:27:34,919 Speaker 1: off ramp here. Again, it's hard to predict, but I 457 00:27:34,960 --> 00:27:37,600 Speaker 1: think we'll get a real answer to the underlying question, 458 00:27:37,960 --> 00:27:40,960 Speaker 1: and I think the answer is most likely to be yes. 459 00:27:41,040 --> 00:27:45,760 Speaker 1: People have a constitutional right to UM marry whom they want. 460 00:27:46,000 --> 00:27:50,440 Speaker 1: The same sex marriage is constitutionally protected, but private citizens 461 00:27:50,480 --> 00:27:54,359 Speaker 1: are not required to speak in support of that that 462 00:27:55,200 --> 00:27:58,640 Speaker 1: people who don't approve of same sex marriage are entitled 463 00:27:58,640 --> 00:28:02,439 Speaker 1: to have their opinion. Who So, it strikes me that 464 00:28:02,480 --> 00:28:05,719 Speaker 1: both of these cases UM come out of Colorado, and 465 00:28:05,760 --> 00:28:08,800 Speaker 1: there is discussion in the corporlo about this masterpiece take 466 00:28:08,840 --> 00:28:11,879 Speaker 1: shop and how the commission there and how a commission 467 00:28:11,880 --> 00:28:16,320 Speaker 1: here would be kind of drawing off of that previous case. 468 00:28:16,560 --> 00:28:18,840 Speaker 1: I wonder is it a coincidence that both of these 469 00:28:18,840 --> 00:28:21,679 Speaker 1: cases come out of Colorado or is there something in 470 00:28:21,720 --> 00:28:24,760 Speaker 1: particular about Colorado's law and the way that it's being 471 00:28:24,880 --> 00:28:30,120 Speaker 1: enforced that is bringing these issues really UM to the forefront. Well, 472 00:28:30,160 --> 00:28:34,440 Speaker 1: other states have similar laws, and some of somewhat parallel 473 00:28:35,119 --> 00:28:38,520 Speaker 1: cases have come off out of Arizona in the state 474 00:28:38,560 --> 00:28:42,720 Speaker 1: of Washington, and I think they're bubbling up elsewhere. My 475 00:28:42,920 --> 00:28:46,440 Speaker 1: guess is that this is not quite a coincidence, though 476 00:28:46,600 --> 00:28:49,080 Speaker 1: it's probably the case, and I really don't know, this 477 00:28:49,240 --> 00:28:52,560 Speaker 1: is speculation, but it's probably the case that the Colorado 478 00:28:52,640 --> 00:28:58,240 Speaker 1: Commission is especially aggressive. Interesting. You know, in the petition, 479 00:28:58,400 --> 00:29:01,880 Speaker 1: the website designer here says that the Colorado law actually 480 00:29:01,880 --> 00:29:06,120 Speaker 1: creates this pro LGBT Jerrymander, and I was hoping that 481 00:29:06,160 --> 00:29:08,560 Speaker 1: you might be able to explain for us how exactly 482 00:29:08,600 --> 00:29:13,800 Speaker 1: it does that. Well, the reason for that argument is 483 00:29:13,840 --> 00:29:19,440 Speaker 1: that in general, artists, including web designers, uh, any person 484 00:29:19,520 --> 00:29:24,880 Speaker 1: engaged in an expressive activity, have the right to reserve 485 00:29:25,000 --> 00:29:28,080 Speaker 1: their speech for what they want. And so, you know, 486 00:29:28,120 --> 00:29:33,680 Speaker 1: nobody told Michelangelo that he had to do things that 487 00:29:33,760 --> 00:29:37,720 Speaker 1: were supportive of the church rather than against it. Artists 488 00:29:37,760 --> 00:29:43,280 Speaker 1: are free. The R and D discrimination laws, for the 489 00:29:43,400 --> 00:29:47,000 Speaker 1: for the most part, don't even touch that. It's highly 490 00:29:47,120 --> 00:29:53,520 Speaker 1: unusual a law. But here because of the protection for 491 00:29:54,640 --> 00:30:00,840 Speaker 1: LGBT discrimination. That means that one side in this culture 492 00:30:01,120 --> 00:30:04,960 Speaker 1: dispute is protected and the other isn't. So that if 493 00:30:05,280 --> 00:30:10,280 Speaker 1: a web designer decided to specialize in lb GT weddings 494 00:30:10,280 --> 00:30:14,120 Speaker 1: and same sex weddings. Uh, they would be fine. It 495 00:30:14,280 --> 00:30:18,040 Speaker 1: was perfectly okay to specialize for same sexed weddings, is 496 00:30:18,080 --> 00:30:20,240 Speaker 1: by the way I think it should be. Uh, It's 497 00:30:20,280 --> 00:30:23,000 Speaker 1: just that it's not okay when it's the other way around. 498 00:30:23,120 --> 00:30:27,000 Speaker 1: And that is I believe why the party in this 499 00:30:27,160 --> 00:30:29,680 Speaker 1: case argues that this is a gerryman or it's a 500 00:30:29,760 --> 00:30:34,280 Speaker 1: kind of viewpoint discrimination. M So I want to try 501 00:30:34,280 --> 00:30:38,440 Speaker 1: to understand the implications if the Supreme Court allows the 502 00:30:38,520 --> 00:30:42,640 Speaker 1: lower court ruling to stand. I'm wondering what will states 503 00:30:42,680 --> 00:30:46,200 Speaker 1: be allowed to require, um, not just for website designers, 504 00:30:46,240 --> 00:30:50,200 Speaker 1: but going forward, even out of the wedding business. You know, 505 00:30:50,240 --> 00:30:53,280 Speaker 1: are there things that the government could force people to 506 00:30:53,400 --> 00:30:56,680 Speaker 1: say or do if this case stands the way that 507 00:30:56,720 --> 00:31:01,600 Speaker 1: it is now, The potential and occasions are very broad. 508 00:31:03,520 --> 00:31:05,400 Speaker 1: Should you do it? I don't know. I think that 509 00:31:05,520 --> 00:31:10,000 Speaker 1: the impulse to force uh supportive speech in this particular 510 00:31:10,120 --> 00:31:15,920 Speaker 1: area it is particularly strong. That means so for But 511 00:31:16,040 --> 00:31:18,120 Speaker 1: to use an example sort of from the other side 512 00:31:18,120 --> 00:31:23,440 Speaker 1: of a spectrum, you know, imagine that a a web 513 00:31:23,520 --> 00:31:28,240 Speaker 1: designer or cakemaker or whoever, it was was being asked 514 00:31:28,440 --> 00:31:35,479 Speaker 1: to give a to provide their services to a Roman 515 00:31:35,480 --> 00:31:42,600 Speaker 1: Catholic or Mormon or other Islamic religious meeting at which uh, 516 00:31:42,880 --> 00:31:47,240 Speaker 1: same sex marriages were being condemned, and they say, well, no, 517 00:31:47,360 --> 00:31:49,440 Speaker 1: I'm not going to do that. I disapproval. That's in 518 00:31:49,480 --> 00:31:53,760 Speaker 1: a sense religious discrimination. They're refusing to serve a particular 519 00:31:53,840 --> 00:31:57,840 Speaker 1: religious service, and I think under the logic they could 520 00:31:57,880 --> 00:32:01,400 Speaker 1: be forced to do that thanks to Michael McConnell. And 521 00:32:01,480 --> 00:32:03,920 Speaker 1: that does it for this episode of Bloomberg glob I'm 522 00:32:04,000 --> 00:32:11,880 Speaker 1: Kimberly Robinson and I'm Lydia Wheeler. This is Bloomberg m