WEBVTT - Why DOJ Would Want Mar-a-Lago Affidavit to Remain Sealed 0:00:02.720 --> 0:00:06.800 This is Bloomberg Law. A divided Supreme Court rejects a 0:00:06.920 --> 0:00:09.800 religious challenge, tell us a little about the facts of 0:00:09.800 --> 0:00:13.600 the case. Interviews with prominent attorneys in Bloomberg Legal experts 0:00:13.680 --> 0:00:16.919 I guess his former federal prosecutor Jimmy Grula joining me 0:00:16.960 --> 0:00:20.760 is Bloomberg Law reporter Jordan Ruben. And analysis of important 0:00:20.800 --> 0:00:24.160 legal issues, cases and headlines. The Supreme Court takes on 0:00:24.239 --> 0:00:28.560 state secrets. Multiple lawsuits were filed against the emergency rule. 0:00:28.800 --> 0:00:32.599 Is this lawsuit? For real? Bloomberg Law with June Grasso 0:00:32.960 --> 0:00:39.319 from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm 0:00:39.400 --> 0:00:42.960 Kimberly Robinson and I'm Vidio Wheeler. We're in for June Grasso. 0:00:43.560 --> 0:00:45.640 Coming up on the show. We're going to discuss the 0:00:45.680 --> 0:00:48.720 latest battle between first a meenment rights and anti discrimination 0:00:48.760 --> 0:00:50.960 laws to hit the U. S. Supreme Court. But first 0:00:51.120 --> 0:00:52.800 we're going to talk about how the public could soon 0:00:52.840 --> 0:00:55.640 see portions of the affidavit the FBI used to justify 0:00:55.680 --> 0:00:58.640 its search of former President Donald Trump's Mari Lago estate. 0:00:59.040 --> 0:01:01.680 A federal judge week gave the Justice Department a week 0:01:01.720 --> 0:01:04.640 to propose what parts of this highly sensitive document should 0:01:04.640 --> 0:01:07.679 be redacted. Media outlets pushed for the documents to be 0:01:07.760 --> 0:01:10.679 unsealed after the FBI rated Trump's Palm Beach, Florida home 0:01:10.720 --> 0:01:13.400 on August eight. The search was part of an investigation 0:01:13.440 --> 0:01:16.120 into whether President Trump took classified documents from the White 0:01:16.120 --> 0:01:19.120 House when he left office. Joining us as the Honorable 0:01:19.240 --> 0:01:22.720 Alberto Gonzalez, who served as the country's eightieth Attorney General 0:01:22.800 --> 0:01:25.600 during the George W. Bush administration. He's now dean of 0:01:25.680 --> 0:01:29.800 Belmont University College of Law. Honorable Gonzalez, can you explain 0:01:29.880 --> 0:01:33.680 what an affidavit is and what information it typically contains? Well? 0:01:34.000 --> 0:01:39.199 In this particular, an affidavit is a sworn statement by 0:01:39.319 --> 0:01:45.080 someone affirming the truthfulness of certain facts. In this particular 0:01:45.120 --> 0:01:49.440 case and a criminal prosecution, typically you provide an affidavit 0:01:49.480 --> 0:01:56.120 that lays out the information that supports finding a probable cause. Uh. 0:01:56.560 --> 0:02:00.240 That can be quite detailed, quite extensive, because of course 0:02:00.240 --> 0:02:02.000 you want to make the case, you want to meet 0:02:02.040 --> 0:02:06.120 the burden, the standard of probable calls and um. So 0:02:06.160 --> 0:02:09.760 that's what an affidavit typically would entail and include in 0:02:09.800 --> 0:02:13.919 connection with a with a criminal prosecution. So this dispute 0:02:14.040 --> 0:02:16.000 is all about, you know, whether or not the public 0:02:16.080 --> 0:02:18.520 is to see this affidavit, and I'm just wondering, what 0:02:18.600 --> 0:02:21.600 does that matter. We've already seen the surcharrant itself, and 0:02:21.919 --> 0:02:24.120 you know it includes a description of some of the 0:02:24.160 --> 0:02:27.480 items that were seized. What other information does the affidavit 0:02:27.560 --> 0:02:30.920 have that we don't already know about. Well, without seeing 0:02:30.960 --> 0:02:34.200 the affidavit, I'm going to be just speculating here. But 0:02:34.360 --> 0:02:39.560 for example, an affidavit might include the name the identity 0:02:39.639 --> 0:02:44.160 of a witness who provides information. Perhaps the affidavit would 0:02:44.160 --> 0:02:46.600 say on some and so day, we met with this 0:02:46.680 --> 0:02:50.880 individual and this individual provided this information, or so so date, 0:02:51.400 --> 0:02:55.840 this individual provided an email that included certain information that 0:02:55.880 --> 0:02:58.640 would form the basis of possibly evidence that crime has 0:02:58.639 --> 0:03:01.960 been committed. So it can be quite detailed, quite frankly, 0:03:02.000 --> 0:03:04.240 because you do want to meet the standard before the judge, 0:03:04.320 --> 0:03:07.280 and you want to persuade the judge that yes, there's 0:03:07.400 --> 0:03:09.560 enough here to conduct the search, because of course a 0:03:09.680 --> 0:03:13.880 very contrusive investigatory tool, and so the information can be 0:03:13.960 --> 0:03:16.399 quite detailed. And I think part of the concern here 0:03:16.600 --> 0:03:20.520 is that there are two concerns primarily for the prosecution. Generally, 0:03:20.560 --> 0:03:23.280 one is particularly if you have a witness that you 0:03:23.280 --> 0:03:25.680 don't want to have that identity is closed at this 0:03:25.720 --> 0:03:29.480 particular time, particularly there's a concern about safety or public harassment. 0:03:29.639 --> 0:03:32.440 You want to protect the identity of that witness, of course, 0:03:32.480 --> 0:03:36.119 and there are other reason you want to protect information 0:03:36.200 --> 0:03:39.040 that is enclosed in an affidavit is that it does 0:03:39.160 --> 0:03:42.400 provide somewhat of a roadmap, not a very I wouldn't 0:03:42.400 --> 0:03:47.119 say a definitive roadmap, but does provide a hint indication 0:03:47.920 --> 0:03:51.560 of how the prosecution is going to use information or 0:03:51.600 --> 0:03:55.280 evidence or what evidence it has gathered in connection with 0:03:55.400 --> 0:03:58.480 a roadmap to strategy about how to prosecute the crime. 0:03:59.000 --> 0:04:01.840 That's interesting the Justice Department set in one of the 0:04:01.840 --> 0:04:04.200 court filings that it actually wants to keep this affidate 0:04:04.280 --> 0:04:07.000 that sealed, you know, to protect the integrity of an 0:04:07.040 --> 0:04:10.320 ongoing law enforcement investigation. But can you explain for us 0:04:10.720 --> 0:04:13.400 how releasing it could harm the integrity of that investigation. 0:04:13.440 --> 0:04:16.080 I mean, I understand wanting to protect witnesses, but what 0:04:16.160 --> 0:04:18.279 is it about the integrity of the investigation that could 0:04:18.279 --> 0:04:22.039 be harmed. Well, it will provide more information about the 0:04:22.279 --> 0:04:29.000 specific charges and the evidence that the prostitution already has. 0:04:29.120 --> 0:04:32.920 And if you know what evidence and what potential witnesses 0:04:33.120 --> 0:04:36.400 may be called to testify. As a defense lawyer, you're 0:04:36.560 --> 0:04:39.480 better able to prepare for it. The other thing that 0:04:40.240 --> 0:04:42.440 there would be concerned about is, of course, is that 0:04:42.960 --> 0:04:46.960 your case may may hinge in large part upon upon 0:04:47.000 --> 0:04:50.040 the cooperation of a witness, and that witness may be 0:04:50.120 --> 0:04:54.479 discouraged from participating and cooperating if in fact, this identity 0:04:54.560 --> 0:04:57.320 that witnesses to publicize the witnesses or ass and the 0:04:57.360 --> 0:05:00.120 witnesses forget it. I'm not going to cooperate any in 0:05:00.120 --> 0:05:02.880 any way, and so it would force the government to 0:05:03.040 --> 0:05:06.040 try to compel the witness to testify to cooperate. Of course, 0:05:06.040 --> 0:05:09.280 that's never an ideal situation. So you really do want 0:05:09.400 --> 0:05:12.280 to work with and protect the identity of witnesses, There's 0:05:12.279 --> 0:05:15.520 no question about it. So you know, this dispute comes 0:05:15.720 --> 0:05:18.960 as media groups have asked for the judge to make 0:05:19.000 --> 0:05:22.039 the affidavit here public. I'm just wondering, you know, how 0:05:22.120 --> 0:05:24.840 common is it for the press to try to intervene 0:05:24.960 --> 0:05:28.200 in cases like this. Well, no, it's unusual because we 0:05:28.320 --> 0:05:32.120 have an unprecedented search, we have an unprecedented set of 0:05:32.160 --> 0:05:35.840 circumstances here, and so typically the press would not weigh in. 0:05:36.000 --> 0:05:39.159 I think the press would generally is more understanding of 0:05:39.160 --> 0:05:41.600 the fact that they don't want to do anything or 0:05:41.640 --> 0:05:43.520 they shouldn't want to do anything to put it that 0:05:43.560 --> 0:05:47.039 way that would compromise or hurt an investigation that would 0:05:47.080 --> 0:05:50.200 make it more difficult to prosecute wrongdoing, for example. And 0:05:50.279 --> 0:05:53.480 so I understand the great public interests in this uh 0:05:53.480 --> 0:05:56.040 And maybe perhaps this is a press feeling like you 0:05:56.160 --> 0:05:57.960 need to at least appear to want to have this 0:05:58.040 --> 0:06:01.360 information make public. But I have to believe that responsible 0:06:01.600 --> 0:06:07.039 journalists understand that it's important to keep certain information confidential 0:06:07.160 --> 0:06:10.520 as long as possible, if in the judgment of the prosecution, 0:06:10.720 --> 0:06:14.680 that's important to have a successful prosecution of actual criminal wrongdoing. 0:06:15.240 --> 0:06:17.000 You know, I think when the judge makes the comment 0:06:17.160 --> 0:06:20.479 or discloses that perhaps certain parts of this affidavit is 0:06:20.480 --> 0:06:23.440 going to be disclosed, I can't imagine that on a 0:06:23.480 --> 0:06:26.920 case this sensitive and it's important for the government because 0:06:26.920 --> 0:06:28.880 it is important. But it took a huge step in 0:06:28.920 --> 0:06:32.400 doing this search that the judge is going to allow 0:06:32.880 --> 0:06:36.280 any kind of meaningful disclosure of information in his affidavit, 0:06:36.360 --> 0:06:38.840 so that the press maybe you know, they're jumping up 0:06:38.839 --> 0:06:41.440 and down screaming for this information, and they're now look 0:06:41.520 --> 0:06:43.880 like they're going to get something. I think they're gonna 0:06:43.880 --> 0:06:46.279 be disappointed in what the judge actually allows to be 0:06:46.360 --> 0:06:50.000 released that is not redacted. Quite frankly, that's the honorable 0:06:50.080 --> 0:06:53.520 Alberto Gonzalez. You're listening to Bloomberg Law. Up next, we 0:06:53.600 --> 0:06:56.280 continue our conversation with the former U. S Attorney General. 0:06:56.520 --> 0:07:00.000 I'm Lidia Wheeler and I'm kimber Le Robinson. This is Bloomberg. 0:07:07.640 --> 0:07:12.400 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:07:13.080 --> 0:07:15.840 I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for 0:07:15.920 --> 0:07:19.040 June Grasso. We've been talking with the Honorable Alberto Gonzalez, 0:07:19.040 --> 0:07:21.320 who served as the country's eightieth Attorney General during the 0:07:21.320 --> 0:07:25.880 George W. Bush administration. Honorable Gonzalez Trump said publicly and 0:07:25.920 --> 0:07:29.200 that the judge should unseal the affidavit, but his attorney 0:07:29.200 --> 0:07:31.200 has never actually filed a motion to ask for the 0:07:31.280 --> 0:07:33.880 judge to do that. So why do you think that is? 0:07:35.400 --> 0:07:39.040 I have no idea why it is. You know, typically 0:07:39.520 --> 0:07:42.480 someone who has actually committed a crime, they want to 0:07:42.480 --> 0:07:44.720 get away with it. They don't want to disclose and 0:07:44.800 --> 0:07:48.280 so they would typically not want to disclose the fact 0:07:48.320 --> 0:07:51.080 that bet it Starts occurred, and if in fact it 0:07:51.240 --> 0:07:54.120 was Cromwell wrongdoing, you know, they may not want that 0:07:54.160 --> 0:07:57.400 disclose as well. In this particular case, I think former 0:07:57.440 --> 0:08:00.160 President Trump rather an orthodox in the way and he 0:08:00.280 --> 0:08:03.520 deals with the media and law enforcement in our court system, 0:08:03.640 --> 0:08:06.400 and uh, you know, I have no idea much of 0:08:06.400 --> 0:08:09.360 the rational reason behind some of the things that he's doing, 0:08:09.640 --> 0:08:12.080 some of the things that he's saying. Well, without you know, 0:08:12.200 --> 0:08:14.600 being able to get inside the head of the former 0:08:14.640 --> 0:08:18.640 president and his attorneys, what could be the endgame here 0:08:18.840 --> 0:08:22.600 for the formal president? What about the Affidavid would give 0:08:22.880 --> 0:08:26.440 a defendant an advantage if there are any charges brought 0:08:27.080 --> 0:08:31.160 that would benefit from having this affidavit unsealed. Well, again, 0:08:31.240 --> 0:08:34.480 depending what's in the affidavit, of course, he would be 0:08:34.559 --> 0:08:39.400 able to learn what witnesses had come forward and might 0:08:39.440 --> 0:08:44.120 be willing to testify, and uh, he would know have 0:08:44.240 --> 0:08:48.439 more information about what documents they actually the government has 0:08:48.440 --> 0:08:50.839 in its position, and so they would have a much 0:08:50.840 --> 0:08:54.280 better sense of the strength of their case. And so 0:08:54.440 --> 0:08:57.480 it would then at that point I think he would 0:08:57.559 --> 0:09:00.400 use that to gauge, well, what should I do here? 0:09:00.480 --> 0:09:03.520 Should I not be worried about this moving forward? And 0:09:03.559 --> 0:09:06.280 I'll use this as an opportunity to embarrass the government 0:09:06.480 --> 0:09:11.560 and to bolster my chances of winning the nominee four. 0:09:11.840 --> 0:09:13.679 I can continue to say that this is all po 0:09:13.679 --> 0:09:17.160 local witch hunt, knowing that, in fact, if they move forward, 0:09:17.200 --> 0:09:19.800 that I'm not gonna be prosecuted. On the other hand, 0:09:20.080 --> 0:09:22.559 if it looks like they've got some pretty strong evidence, 0:09:22.920 --> 0:09:24.960 I don't think he would calculate that he could deter 0:09:25.320 --> 0:09:28.559 he could bully his way out of its prosecution moving forward, 0:09:29.280 --> 0:09:31.840 but it may encourage him to perhaps have his lawyers 0:09:31.840 --> 0:09:35.280 sit down with the department and maybe negotiate some kind of, 0:09:35.400 --> 0:09:38.040 you know, plea deal or something like that. There's been 0:09:38.040 --> 0:09:40.320 a lot of talking, even you mentioned it, about how 0:09:40.400 --> 0:09:44.560 unprecedented this investigation is. But is there any case in 0:09:44.640 --> 0:09:48.680 history or investigation that even comes close in comparison or 0:09:48.720 --> 0:09:54.679 that you would compare this to not really, because, um, 0:09:54.720 --> 0:09:56.800 you know, in the history of our country, there's never 0:09:56.880 --> 0:10:02.439 been a former president that's had their home search. Um. Now, 0:10:02.600 --> 0:10:06.280 there may have been Polemary investigations of someone that you know, 0:10:06.320 --> 0:10:09.160 we just don't know about, but we're not aware of 0:10:09.160 --> 0:10:12.480 anything like like a search that occurred with respect to 0:10:12.480 --> 0:10:16.240 the Florida's state and it's for that reason you had 0:10:16.240 --> 0:10:19.280 the Attorney General make this decision. You know, total searches 0:10:19.360 --> 0:10:23.000 go on every day throughout this country and the Attorney 0:10:23.080 --> 0:10:26.040 jenial is not involved. In fact that there are many 0:10:26.040 --> 0:10:29.280 senior officials within main Justice in Washington were gone involved. 0:10:29.280 --> 0:10:31.920 Typically it's going to be a senior person at the U. S. 0:10:31.920 --> 0:10:35.760 Attorney's office somewhere in one of the states. But in 0:10:35.800 --> 0:10:39.640 this particular case, UM, this was because it was so unprecedented, 0:10:40.440 --> 0:10:43.320 UH and involved the former president who may be thinking 0:10:43.320 --> 0:10:46.920 about running for president, the Attorney general weighed end. When 0:10:46.960 --> 0:10:50.720 I was the Attorney General, I had the same situation 0:10:50.880 --> 0:10:53.040 where I had to make a call on a search 0:10:53.400 --> 0:10:56.800 that that was unprecedented and that involved the search of 0:10:56.960 --> 0:11:01.840 Congston William Jefferson's Congressional Hill office. UM. We can suspected 0:11:01.960 --> 0:11:07.120 Hill of bribery, influence peddling, and money laundering. And I 0:11:07.160 --> 0:11:09.520 was approached by senior members of my team at the 0:11:09.520 --> 0:11:12.920 Department of Justice who informed me that they believed that 0:11:13.000 --> 0:11:16.680 there was evidence in Connorsman Jefferson's Capitol Hill office and 0:11:16.679 --> 0:11:19.079 they wanted to conduct the search in the heretory of 0:11:19.120 --> 0:11:22.000 our country. Best ever been done before, where you had 0:11:22.040 --> 0:11:26.640 the FBI on Capitol Hill going through Congress in congressman's office. Now, 0:11:26.679 --> 0:11:31.680 we've conducted searches in the district offices of congressman's we've 0:11:31.679 --> 0:11:35.240 conducted searches in the cars of a congressman, but never 0:11:35.320 --> 0:11:38.720 in a Capitol Hill office. And they my team knew 0:11:38.720 --> 0:11:40.840 it was unprecedented and they wanted to make sure I 0:11:40.880 --> 0:11:43.880 was okay with it. In the same situation occurred with 0:11:43.920 --> 0:11:47.080 General Garland. The team knew this was unprecedented, and so 0:11:47.160 --> 0:11:49.040 they knew this was a decision had to be made 0:11:49.040 --> 0:11:52.319 by the Attorney General because it is so unprecedented, and 0:11:52.440 --> 0:11:54.200 quite frankly, the attorney you know, would want to know 0:11:54.240 --> 0:11:57.000 any advance that they're about to do this because the 0:11:57.000 --> 0:11:59.839 attorney you'll needs to weigh in. And very one final 0:12:00.320 --> 0:12:04.480 point that's very important. When we did our search UM, 0:12:04.520 --> 0:12:06.760 I did not notify the wine House because it's a 0:12:06.840 --> 0:12:11.040 law enforcement matter. You don't want to have this um 0:12:11.360 --> 0:12:16.360 characterized as politics by opponents, and so we just did 0:12:16.360 --> 0:12:19.320 what we do every day. And and my understanding is 0:12:19.360 --> 0:12:22.520 based upon the comments from General Garland, is that they 0:12:22.520 --> 0:12:25.440 didn't notify the White House either, because it's a law 0:12:25.520 --> 0:12:28.920 enforcement matter and they did it by the book and 0:12:29.000 --> 0:12:31.760 that's the way that they should be. That's really interesting. 0:12:32.320 --> 0:12:35.840 Does having the weight of the Attorney General's office behind 0:12:35.880 --> 0:12:38.840 an investigation room, backing an investigation like this, does that 0:12:38.880 --> 0:12:41.559 bolster your case that you could potentially bring. I mean, 0:12:41.600 --> 0:12:45.839 what advantage does that serve any Well? Well, it may 0:12:45.880 --> 0:12:48.760 at the outset in terms of rulings by the judge, 0:12:48.960 --> 0:12:50.839 but at the end of the day, it's going to 0:12:50.920 --> 0:12:56.199 be based you know, the charging decision and the decision 0:12:56.640 --> 0:13:00.640 decisions at the trial, strategy and the and the presentations 0:13:00.679 --> 0:13:03.720 at trial will be made based on the evidence. That's 0:13:03.720 --> 0:13:05.680 all you have. I mean, that's what you that's what 0:13:05.760 --> 0:13:08.520 you use, and that's what you flye upon the fact 0:13:08.559 --> 0:13:10.920 that the Attorney General has signed off on the search 0:13:11.400 --> 0:13:13.640 and he will sign off on the charging decision, I'm 0:13:13.679 --> 0:13:15.400 sure as well. I mean, if they don't decide to 0:13:15.400 --> 0:13:20.480 go forward, he will sign off on that. You know, again, 0:13:20.559 --> 0:13:22.440 it's all gonna be based on the evidence, not whether 0:13:22.520 --> 0:13:24.680 or not the Attorney General beliefs in fact that the 0:13:24.720 --> 0:13:27.719 crime has been committed here. But Canada Department, does the 0:13:27.720 --> 0:13:31.160 Department feel comfortable confident as it will a will persuade 0:13:31.600 --> 0:13:36.760 twelve independent um unbiased jurors that in fact, all the 0:13:36.800 --> 0:13:40.240 elements of a crime can be proved beyond a reasonable doubt. 0:13:40.920 --> 0:13:43.840 And then just really briefly, on a final note, the 0:13:43.880 --> 0:13:46.560 Justice Department has a week under the course order to 0:13:46.600 --> 0:13:49.679 propose what parts of the documents should be redacted and 0:13:49.720 --> 0:13:52.839 withheld from public view. How much information do you think 0:13:52.880 --> 0:13:54.560 at the end of the day the public is really 0:13:54.559 --> 0:13:59.280 going to learn from from this APPA, David, Well, as 0:13:59.320 --> 0:14:02.360 I said in sponsor and earlier question, I think that 0:14:02.520 --> 0:14:05.240 the public and in particular the press is going to 0:14:05.320 --> 0:14:10.080 be disappointed. I think they're not gonna learn much. Quite frankly, 0:14:11.040 --> 0:14:14.920 I think what will be release will be a very 0:14:14.960 --> 0:14:18.560 heavily redacted document that will not provide that will not 0:14:18.600 --> 0:14:24.600 be very satisfying to UM, Donald Trump and not satisfying 0:14:24.640 --> 0:14:27.440 to the media. I just because I do believe the 0:14:27.480 --> 0:14:31.000 course will be very sensitive protecting had any of witnesses 0:14:31.080 --> 0:14:35.200 and to protecting the integrity of the investigation going forward, 0:14:35.240 --> 0:14:38.920 despite the great public interest in this in in this manner, 0:14:39.800 --> 0:14:42.680 honorable Gonzoz, thank you so much for being here. You're 0:14:42.720 --> 0:14:46.160 listening to Bloomberg Law. I'm Lidia Wheeler and I'm Kimberly Robinson. 0:14:46.560 --> 0:14:49.040 Coming up, we speak with former Federal Appellate Court judge 0:14:49.040 --> 0:14:51.880 Michael McConnell about the latest LGBT battle at the U. S. 0:14:51.880 --> 0:14:54.800 Supreme Court and the ongoing clash for First Amendment rights. 0:14:55.320 --> 0:15:06.640 This is Bloomberg. This is Bloomberg Law with June Grasso 0:15:07.080 --> 0:15:11.800 from Bloomberg Radio. I'm Lidia Wheeler and I'm Kimberly Robinson. 0:15:12.200 --> 0:15:14.920 We're in for June Grasso. We're joined now by a 0:15:14.960 --> 0:15:17.600 former federal judge, Michael McConnell, to talk about Three or 0:15:17.640 --> 0:15:20.520 Three Creative, a Supreme Court case of the justices will 0:15:20.520 --> 0:15:23.520 take up in the upcoming term. The case pits a 0:15:23.600 --> 0:15:26.640 state anti discrimination law meant to protect same sex couples 0:15:26.840 --> 0:15:29.840 against free speech rights. And we've seen a version of 0:15:29.880 --> 0:15:32.120 this dispute at the High Court before in the case 0:15:32.160 --> 0:15:35.240 of a Colorado baker who said his religious beliefs prevented 0:15:35.320 --> 0:15:38.280 him from making a custom wedding cake for same sex couple. 0:15:38.960 --> 0:15:41.920 This time around, though, the dispute, also out of the 0:15:41.960 --> 0:15:45.240 Centennial State, involves a web designer who says she can't 0:15:45.520 --> 0:15:49.120 design custom websites for same sex couples without violating her 0:15:49.160 --> 0:15:52.800 sincerely held religious beliefs. Briefing from both sides and their 0:15:52.840 --> 0:15:55.480 so called friends or amichi wrapped up last week, setting 0:15:55.560 --> 0:15:58.600 up the case to be heard sometime in late or 0:15:58.600 --> 0:16:02.560 early Judge McConnell as I mentioned, this case is very 0:16:02.600 --> 0:16:06.000 similar to Masterpiece Cake Shop, which the Justice is decided in, 0:16:07.040 --> 0:16:10.480 but it differs in one really important way, and that's 0:16:10.520 --> 0:16:13.560 that this dispute is framed as one about free speech 0:16:13.640 --> 0:16:17.000 instead of religious liberty. What if any difference is that 0:16:17.040 --> 0:16:19.920 going to make this time around. Well, I think it 0:16:20.040 --> 0:16:25.360 greatly simplifies and narrows the case because a free exercise 0:16:25.440 --> 0:16:31.840 claim might be brought by anyone whose beliefs prevent them 0:16:32.000 --> 0:16:36.920 working with same sex wedding. This as a speech case, 0:16:37.320 --> 0:16:42.160 this is combined just to people whose activities are expressive 0:16:42.200 --> 0:16:45.120 in nature, people are actually speaking, so it's a much 0:16:45.200 --> 0:16:48.080 narrow work case. This didn't start out as just a 0:16:48.120 --> 0:16:50.640 free speech case though. In the beginning, the web designer 0:16:50.680 --> 0:16:54.160 asked the justices to consider whether the state's anti discrimination 0:16:54.240 --> 0:16:57.360 law violated her religious freedom um. But the Justice has 0:16:57.400 --> 0:17:00.360 actually changed the question they were asked to sign and 0:17:00.480 --> 0:17:03.960 honed in exclusively on this speech right. So I'm curious 0:17:04.000 --> 0:17:06.080 how often do you see the court do something like 0:17:06.080 --> 0:17:09.760 that where they rewrite the question and what does that signal? 0:17:10.800 --> 0:17:13.000 So it doesn't happen very often. I mean, this is 0:17:13.000 --> 0:17:15.919 not a unicorn. It happens from time to time, but 0:17:16.040 --> 0:17:19.480 this is somewhat unusual, and it indicates that the Court 0:17:19.560 --> 0:17:22.560 really wants to focus in on the speech claim, which, 0:17:22.560 --> 0:17:26.040 as I say, is narrower uh, and not the broader 0:17:26.119 --> 0:17:29.880 free exercise client m. So we've seen the Roberts Court 0:17:30.000 --> 0:17:33.280 under Chief Justice John Roberts issue ruling after ruling that 0:17:33.359 --> 0:17:36.679 a pretty protective of religious rights, particularly the right to 0:17:36.880 --> 0:17:40.479 freely exercise uh, your religion. And that was so just 0:17:40.560 --> 0:17:44.399 his last term in cases involving educational funding and school prayer. 0:17:44.920 --> 0:17:47.880 I'm wondering, does the Court's reframing of this case as 0:17:47.920 --> 0:17:51.040 one involving only speech signal that the Court is kind 0:17:51.040 --> 0:17:55.320 of shifting away from robustly protecting religious rights. Have we 0:17:55.440 --> 0:17:58.440 reached kind of the high water mark there? I don't 0:17:58.440 --> 0:18:00.960 think so. I don't think it indicates anything of the sort. 0:18:01.320 --> 0:18:04.600 It indicates that the facts of this case seemed to 0:18:04.640 --> 0:18:08.600 map more clearly onto free speech doctrine than anything else, 0:18:09.400 --> 0:18:11.520 and then so can you just give our listeners a 0:18:11.560 --> 0:18:14.880 brief rundown about what the major issues here are as 0:18:14.920 --> 0:18:18.080 the justices are set to decide this case. This case 0:18:18.160 --> 0:18:21.840 is simpler in many ways than the earlier cases that 0:18:21.920 --> 0:18:25.920 have gone up to the court, especially the one about 0:18:25.960 --> 0:18:29.920 the baker. The main reason it's simpler is that there 0:18:30.040 --> 0:18:34.000 is no dispute in this case that the conduct is 0:18:34.080 --> 0:18:36.679 expressive and you know when when when looking at a 0:18:36.720 --> 0:18:40.280 wedding cake. The justices were somewhat uncertain as to how 0:18:40.359 --> 0:18:44.160 to view that, and during the oral argument, Justice Soda 0:18:44.200 --> 0:18:48.399 Mayor said that the cake was just food, indicating that 0:18:48.480 --> 0:18:51.800 it didn't really have an expressive component to it. But 0:18:51.880 --> 0:18:56.480 in this case, the lower court specifically held that web 0:18:56.520 --> 0:19:00.720 design is speech and treated it as such. And secondly, 0:19:01.160 --> 0:19:03.400 there is no dispute in the case that the web 0:19:03.400 --> 0:19:07.040 designer does not discriminate on the basis of sexual orientation. 0:19:07.400 --> 0:19:11.760 She does not refuse to provide services to same sex couples. 0:19:12.000 --> 0:19:15.439 What she refuses to do is to provide services to 0:19:15.520 --> 0:19:20.160 any event that she believes is contrary to her beliefs. 0:19:20.160 --> 0:19:25.119 So it's specifically not a case about discrimination on the 0:19:25.119 --> 0:19:29.280 basis of orientation. It's discrimination on the basis of the message, 0:19:29.680 --> 0:19:32.919 and that makes this a much clearer case of a 0:19:33.000 --> 0:19:37.000 free speech violation than the earlier decisions that had gone 0:19:37.080 --> 0:19:40.000 up to the court. It doesn't seem like this a 0:19:40.080 --> 0:19:42.840 case is going to end this tension between you know, 0:19:42.880 --> 0:19:46.600 the First Amendment and LGBT issues. I'm curious as to 0:19:46.840 --> 0:19:50.560 what other disputes could be on the horizon here. Well, 0:19:50.560 --> 0:19:53.840 the Supreme Court decisions never end disputes that they could 0:19:53.840 --> 0:19:57.480 sometimes make them worse, and I am hoping that this 0:19:57.520 --> 0:20:00.119 would be an occasion for the Court to try to 0:20:00.200 --> 0:20:05.200 calm the waters rather than boil them. I think transgender 0:20:05.240 --> 0:20:09.520 issues are probably the biggest issue that are coming down 0:20:09.760 --> 0:20:14.040 the pike in terms of forcing people to say things 0:20:14.080 --> 0:20:17.639 that are affirming. There was a six Circuit decision not 0:20:17.760 --> 0:20:23.800 long ago about a tenure college professor who refused to 0:20:23.920 --> 0:20:29.280 use students selected pronouns in class, and the court held 0:20:29.320 --> 0:20:32.560 that he had a right not to be forced to 0:20:32.680 --> 0:20:37.760 use pronouns that reflected a view that he disbelieved them. Well, 0:20:37.800 --> 0:20:39.919 that's Michael McConnell who said on the US Court of 0:20:39.920 --> 0:20:42.639 Appeals for the tense Circuit, which here's disputes like this 0:20:42.680 --> 0:20:46.040 one out of Colorado. McConnell is now professor at Stanford 0:20:46.119 --> 0:20:48.680 Law and the director of the school's Constitutional Law Center. 0:20:49.320 --> 0:20:51.879 You're listening to Bloomberg Law. Up next, we continue our 0:20:51.920 --> 0:20:56.920 conversation with Judge McConnell. I'm Kimberly Robinson and I'm Lidio Wheeler. 0:20:57.160 --> 0:21:09.240 This is Bloomberg. This is Bloomberg Law with June Grasso 0:21:09.680 --> 0:21:14.520 from Bloomberg Radio. I'm Kimberly Robinson and I'm Lydia Wheeler. 0:21:14.680 --> 0:21:18.119 We're in Virjune Grasso. We've been talking with former federal 0:21:18.200 --> 0:21:21.440 judge Michael McConnell about the latest battle between LGBT rights 0:21:21.480 --> 0:21:23.240 and the first Amendment to come before the U. S. 0:21:23.240 --> 0:21:25.880 Supreme Court. So I wanted to get into the legal 0:21:25.960 --> 0:21:29.119 arguments of this case. Three or three creative Uh. The 0:21:29.160 --> 0:21:31.199 court below, the court that you yourself set on for 0:21:31.240 --> 0:21:35.240 a number of years, said that Colorado's antidiscrimination law compels 0:21:35.280 --> 0:21:38.760 citizens to speak and at the same time prevents them 0:21:38.760 --> 0:21:42.600 from saying certain things. Typically, such findings would doom the 0:21:42.680 --> 0:21:46.119 law under what's known in the legal world as strict scrutiny. 0:21:46.160 --> 0:21:48.600 But that's not what happened here. Can you tell us 0:21:48.600 --> 0:21:51.320 a little bit about the various levels of scrutiny that 0:21:51.400 --> 0:21:54.199 courts will apply when looking to see whether or not 0:21:54.240 --> 0:21:58.119 a law passes constitutional muster and what happened in this case. 0:21:58.920 --> 0:22:02.040 This is an over simple apification, but there are basically 0:22:02.119 --> 0:22:06.680 three levels of scrutiny. Rational basis scrutiny is a case 0:22:06.760 --> 0:22:09.320 where yes, there may be a right involved, but it's 0:22:09.359 --> 0:22:14.000 not a fundamental right, it's not a clearly established right, 0:22:14.160 --> 0:22:16.199 and all that the government needs to do is to 0:22:16.280 --> 0:22:19.840 show that it has a rational basis for its action. 0:22:20.480 --> 0:22:23.720 Then there is that the opposite in strict scrutiny, which 0:22:23.760 --> 0:22:27.480 is where there is a presumptive violation of an important 0:22:27.520 --> 0:22:31.280 constitutional right and the government is not permitted to do 0:22:31.359 --> 0:22:35.639 that unless it has what's called a compelling governmental interests, 0:22:35.680 --> 0:22:38.720 which is an extremely powerful interest that could not be 0:22:38.840 --> 0:22:44.200 satisfied in a less restrictive manner. In between is something 0:22:44.240 --> 0:22:48.560 called intermediate scrutiny, which requires uh an important though not 0:22:48.760 --> 0:22:55.240 compelling interests, and narrow tailoring but not the least restrictive means. 0:22:55.680 --> 0:22:59.280 Free speech claims, where the government is actually regulating on 0:22:59.320 --> 0:23:03.480 the basis of the content of what someone says says 0:23:03.920 --> 0:23:08.960 are always governed by strict scrutiny, and quite frankly, they're 0:23:09.280 --> 0:23:13.520 almost as is automatic invalidation. I mean when one scholar 0:23:13.560 --> 0:23:17.199 famously described it a strict in theory, but fatal in fact. 0:23:17.280 --> 0:23:20.600 It would be highly unusual for the court to hold 0:23:21.000 --> 0:23:24.480 that strict scrutiny applies in this case, but that the 0:23:24.560 --> 0:23:29.199 state wins anyway. But that's what happened in the court below, right, 0:23:29.240 --> 0:23:33.600 And so was that a bit surprising. The decision below 0:23:33.760 --> 0:23:39.080 was really quite surprising. The logic of the decision was that, yes, 0:23:39.359 --> 0:23:43.640 this was compelled speech. That web designer was being forced 0:23:43.800 --> 0:23:46.640 to say something that she didn't believe in, and that's 0:23:46.760 --> 0:23:51.199 ordinarily a clear violation of the First Amendment. But in 0:23:51.240 --> 0:23:54.800