Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: I was briefed about this discovery and surprise and learned
Speaker 1: that there are any government records that were taken there
Speaker 1: to that office, but I don't know what's in the documents.
Speaker 1: The extraordinary circumstances here require the appointment of a special
Speaker 1: council for this matter. Those extraordinary circumstances began with President
Speaker 1: Biden's lawyers finding classified documents in his former office at
Speaker 1: a Washington think tank on November, two documents that should
Speaker 1: have been turned over to the National Archives. A second
Speaker 1: set of classified documents was found in the garage of
Speaker 1: his Wilmington's home on December and Biden's response was rather glib.
Speaker 1: But by the way, my corvette in the lack karage, Okay,
Speaker 1: so it's not like you're sitting out in the street.
Speaker 1: And as late as this Thursday, yet an another classified
Speaker 1: document was found in the library of his home. The
Speaker 1: initial investigation by the Justice Department has been ongoing since
Speaker 1: early November, when Attorney General Merrick Garland assigned John Laosch,
Speaker 1: the U S Attorney from Chicago and a Trump appointee,
Speaker 1: and laosh determined that further investigation by a special counsel
Speaker 1: was warranted, so, for the second time in two months,
Speaker 1: Garland appointed a special counsel to investigate the possible criminal
Speaker 1: mishandling of classified documents by a president. The document authorizes
Speaker 1: him to investigate whether any person or entity violated the
Speaker 1: law and connection with this matter. John her the former
Speaker 1: U S. Attorney from Maryland and also at Trump appointee,
Speaker 1: is the new special council. But White House Press Secretary
Speaker 1: Kareem Jean Pierre says his investigation will show that no
Speaker 1: crime was committed. We are confident that a thorough review
Speaker 1: will show that these documents were inadvertently misplaced, and the
Speaker 1: president and his lawyers acted promptly upon discovering of this mistake.
Speaker 1: My guess is national security expert Brad Moss, a partner
Speaker 1: Mark Zad Brad, what does the appointment of a special
Speaker 1: council here tell you about what the U S. Attorney
Speaker 1: for Chicago found in his investigation. So it's difficult to
Speaker 1: take too much from it, other than to say it
Speaker 1: appears more than likely there was a least enough evidence
Speaker 1: to raise concerns for the U. S. Attorney North The
Speaker 1: District of Illinois, regarding how the documents were originally stored
Speaker 1: in these different locations, and the extent to which efforts
Speaker 1: were never made to ensure that any government records in general,
Speaker 1: and particularly classified records, had been returned to the National Archives.
Speaker 1: That doesn't necessarily mean there is sufficient evidence to charge
Speaker 1: anyone with a crime. But given the political sensitivities of
Speaker 1: the issue, given that involves the current president and his
Speaker 1: staff of the ongoing Special Council probe in the former
Speaker 1: President Trump, it's not surprising that Attorney General Garland decided
Speaker 1: to appoint this new special Council specific to this issue.
Speaker 1: But this is a criminal investigation, and for criminal charges
Speaker 1: there has to be an intentional or a willful act.
Speaker 1: It's not just accidental mishandling of classified documents, you know,
Speaker 1: like sloppy housekeeping. So does that say that they're looking
Speaker 1: at something that was intentional rather than just inadvertent. It's
Speaker 1: tough to say. It makes me think there might be
Speaker 1: more to this than just accidental mishandling. I don't know
Speaker 1: who it would be by. I don't see any necessarily
Speaker 1: any indication that if there was intentional mishandling, or if
Speaker 1: there was any instruction that was done by Mr Biden
Speaker 1: as opposed to one of the staffers. We'll have to
Speaker 1: let the facts play out on that one, but I
Speaker 1: think this is a just parmament, particularly Attorney General Garland,
Speaker 1: just playing it extremely safe, recognizing the politics of the moment,
Speaker 1: recognizing that Donald Trump has already filed for a third
Speaker 1: bit for the White House, that President Biden is likely
Speaker 1: to file for his reelection, and that the nature of
Speaker 1: the moment requires pulling out all the stops, for lack
Speaker 1: of a better phrase, to protect the institutional integrity of
Speaker 1: the Justice Department. By no. He says he takes security seriously.
Speaker 1: But they've discovered documents in his old office, in his garage,
Speaker 1: and in the library, and that was just discovered on Thursday.
Speaker 1: I think it speaks to how even those who we
Speaker 1: assume are the more careful among us will make mistakes.
Speaker 1: And that's what needs to be discovered here is once
Speaker 1: this a set of mistake, was this loppiness by the
Speaker 1: staffers to put this together or was there something more nefarious?
Speaker 1: Was there a more deliberate intent by someone to remove
Speaker 1: these records to these locations, and was there any effort
Speaker 1: to conceal that from the government. That's what I think
Speaker 1: will be the distinguishing point between this simply being administrative
Speaker 1: flap on the wrist to somebody, as opposed to criminal charges.
Speaker 1: And that's what got Donald Trump in trouble was not
Speaker 1: the original mistake of the relocation of the records, but
Speaker 1: the obstruction and the concealment of those records. How are
Speaker 1: classified documents supposed to be handled should they even have
Speaker 1: been in the Vice President's office for any length of time?
Speaker 1: I mean, aren't they supposed to be handled in a
Speaker 1: special place? So yeah, so depending on the level of classification,
Speaker 1: there may be particular locations they're never supposed to be
Speaker 1: removed from. But let's be clear, Wow, Joe Biden was
Speaker 1: vice president, these materials would have no doubt been brought
Speaker 1: in by the relevant security officials as part of briefing materials,
Speaker 1: as part of information that they need to review in
Speaker 1: advance of certain meetings. That happens all the time. The
Speaker 1: question is who brought them there and why were they
Speaker 1: left behind? That can be done so long as it
Speaker 1: was in the proper location at the Vice President's residents
Speaker 1: But the issue of how did they wind up at
Speaker 1: the think tank is the unresolved question. It should never
Speaker 1: have gotten there in the first place. That is a problem.
Speaker 1: That is a breach of security. Whether or not there's
Speaker 1: any criminal liability is what does not appear to be
Speaker 1: lining up at the moment with respect to President buying
Speaker 1: because of the proper actions to it. Turning, this happened
Speaker 1: November two, so right before the mid terms. Shouldn't have
Speaker 1: been disclosed to the public at that point. There was
Speaker 1: no legal requirement for anyone to notify the public. Just
Speaker 1: Department certainly doesn't comment on ongoing investigation, so they weren't
Speaker 1: going to tell anybody. The National Archives didn't have any
Speaker 1: need to at the time because they had already referred
Speaker 1: things over the JUST Department, and the White House had
Speaker 1: no obvious desire to do so, nor were they required
Speaker 1: to do. And let's remember the ongoing saga at mar
Speaker 1: Lago went on for months and months behind the scenes,
Speaker 1: and no one in the public knew about it, because
Speaker 1: they're not supposed to be talking about that stuff publicly.
Speaker 1: We didn't know about the extended negotiations back and forth
Speaker 1: to get the initial back of documents or the grand
Speaker 1: jury subpoena that was enforced in June, there was a
Speaker 1: sworn declaration given. At the time, we didn't know anything
Speaker 1: about that until August, once there was finally a search
Speaker 1: warrant executed. That's when we learned all the details. And
Speaker 1: so there was no indications for the Just Department, who
Speaker 1: have publicly acknowledged that this was going on in the
Speaker 1: days leading up to mid terms, would have been political
Speaker 1: of interference by the d o J on behalf of
Speaker 1: the Republicans at that point. Do these incidents show that
Speaker 1: there needs to be some reckoning about how classified documents
Speaker 1: are being handled in general? So mishandling, the pure mishandling
Speaker 1: of classified documents happens sadly a lot. The question always
Speaker 1: from a criminal standpoint, and what the Just Department always
Speaker 1: considers is was this accidental or was this something with
Speaker 1: a measure of intent and or obstruction that would warrant
Speaker 1: actually pursuing a criminal prosecution. So for most people, the
Speaker 1: Just Department is happy to just let the administrative process
Speaker 1: play up. Security clearance gets a vote, person gets fired,
Speaker 1: something along those lines. Those aren't options obviously with someone
Speaker 1: like a Donald Trump or Joe Biden, because in their
Speaker 1: roles as constitutional officers their exempt from it. Donald Trump
Speaker 1: is now no longer even working for the federal government
Speaker 1: as president. He's a private citizen, so there's no administrative
Speaker 1: steps to take. It's either criminal or nothing. But by
Speaker 1: and large, with very rare exception, the Justice Departments does
Speaker 1: not prosecute accidental mishandling of class fan information. They prosecute
Speaker 1: if you're looking to sell it, if you're looking to
Speaker 1: actually use it as more forms of espionage. If you
Speaker 1: deliberately took documents and you're storing them for whatever purpose
Speaker 1: you want at home, those are reasons they would pursue
Speaker 1: a criminal prosecution, as well as if you obstructed any
Speaker 1: effort to recover them. So right now, the job of
Speaker 1: their special counsel pro to determine if there was any
Speaker 1: crime committed beyond the breach of security itself, if there's
Speaker 1: any particular criminal liability for anyone up to including obviously
Speaker 1: Joe Biden, though given that the current president, it's obviously
Speaker 1: d o J policy not to bring in indictment anyways.
Speaker 1: But were any of the stafforts that anybody commit a
Speaker 1: crime that needs to be prosecuted at this point, so
Speaker 1: what possible criminal liability is there? What statutes are involved.
Speaker 1: So you're gonna have some of the same legal provisions
Speaker 1: that are in play in the Marlagua saga. You're gonna
Speaker 1: have the Espionage Act provisions concerning the unauthorized retention of
Speaker 1: national defense information. You're gonna have issues of potential obstruction
Speaker 1: if there were efforts by whether it was Mr Biden
Speaker 1: or any of the staffers to conceal or obstruct efforts
Speaker 1: to recover these various records over the last six or
Speaker 1: seven years. We have seen no evidence of that yet,
Speaker 1: but that would be the type of statutory provision that
Speaker 1: would come into play if evidence along those lines is developed.
Speaker 1: Does taking this from an in house Justice Department investigation
Speaker 1: to a special council investigation escalate the inquiry? Special counsel
Speaker 1: don't always, but often do bring criminal charges. So what
Speaker 1: making it into a special council changes more than anything,
Speaker 1: in my view, is increases the likelihood of transparency, where
Speaker 1: usually if the U. S. Attorney is simply investigating it,
Speaker 1: if they choose not to bring charges, that's the end
Speaker 1: of it. There's no public report, there's nothing, They just
Speaker 1: end the investigation. A lot of times they won't even
Speaker 1: make much of a comment, if any, to the public
Speaker 1: about it with a special council. The regulations specifically anticipates
Speaker 1: that a report outlining the entire to the investigation will
Speaker 1: be compiled the presented to the Attorney General, and most
Speaker 1: likely Attorney General Garland would make that public for American
Speaker 1: voters to review and to take any consideration. So it
Speaker 1: doesn't change anything, is my view, in terms of the
Speaker 1: power of the Justice Department to bring charges. It doesn't
Speaker 1: make it necessarily more likely charges are going to be brought,
Speaker 1: but it ensures more transparently. Former President Trump, who has
Speaker 1: claimed that he declassified all the records found his home
Speaker 1: that providing any proof of that, said on his truth
Speaker 1: social account quote, when is the FBI going to raid
Speaker 1: the many homes of Joe Biden, perhaps even the White House?
Speaker 1: These documents were definitely not declassified. Donald Trump is making
Speaker 1: another rant, Like Donald Trump does, it means nothing. Look,
Speaker 1: if Joe Biden starts obstructing the investigation and submitting false
Speaker 1: statements to his lawyers, and the Just Department develops evidence
Speaker 1: that Joe Biden's team is concealing other records with classification
Speaker 1: markings at other facilities, then they can go to the
Speaker 1: magistrate and get a search warrant, just like they had
Speaker 1: to do with Marlaco. But that was an eighteen month
Speaker 1: process and the Trump team constantly obstructed that inquiry. There's
Speaker 1: no indication the Biden team has done anything similar. Not
Speaker 1: to mention this idea, are you going to raid the
Speaker 1: White House? The White House is a government facility authorized
Speaker 1: to hold those records, and Joe Biden, as the current president,
Speaker 1: can do whatever he wants with them, just like Donald
Speaker 1: Trump could do when he was the president. Does this
Speaker 1: second special counsel investigation complicate the investigation of Special Counsel
Speaker 1: Jack Smith of former President Trump and the decision by
Speaker 1: Smith and Garland whether to prosecute. I don't think it
Speaker 1: instily changes their legal calculus. It might alter their political
Speaker 1: calculus of it. If you're Jack Smith and you're compiling
Speaker 1: a potential indictment against the former president, you were already
Speaker 1: on high alert to make sure your case was tight
Speaker 1: in your facts were clean. Now you're gonna be even
Speaker 1: more so worried to make sure that there are no
Speaker 1: gaps in the evidence, that there are no witnesses whose
Speaker 1: credibility you can't be sure of. You're gonna be even
Speaker 1: more sensitive to that idea, because if you choose to
Speaker 1: bring an indictment and the special counsel inted Biden mess
Speaker 1: does not, there will be obvious political implications. And less
Speaker 1: we forget there are actually three special counsels at the
Speaker 1: same time. John d has been investigating potential misconduct in
Speaker 1: the Trump Russia probe for about four years, So the
Speaker 1: special counsel investigations can take on a life of their own.
Speaker 1: Thanks so much, Brad. That's Brad Moss of mark Z
Speaker 1: coming up next. The Supreme Court considers the attorney client
Speaker 1: privilege in a case with special importance for in house counsel.
Speaker 1: You're listening to Bloomberg, I'm wondering if you would just
Speaker 1: comment on, you know, the ancient legal principle of if
Speaker 1: if it ain't broke, don't fix it. There was laughter
Speaker 1: in the courtroom, as just as Elina Kagan suggested, there's
Speaker 1: no need to change the scope of the attorney client privilege,
Speaker 1: which protects the confidentiality of communications. The question that jostices
Speaker 1: are deciding is what tests should courts use when communications
Speaker 1: between a lawyer and a client involve both business and
Speaker 1: legal advice. I mean, we've had the attorney client privilege
Speaker 1: for a long time and until nobody ever uh and
Speaker 1: suggested that the test that you're proposing is the right one.
Speaker 1: Everybody instead used the primary purpose test. Should communications be
Speaker 1: protected only if the primary purpose was to obtain legal advice,
Speaker 1: or also if a significant purpose was to obtain legal advice.
Speaker 1: It sounds like semantics, and many of the justices seemed
Speaker 1: to agree with Justice Kagan that there's no need to
Speaker 1: fix what ain't broke. Here's Chief Justice John Roberts and
Speaker 1: Justice Ainy Coney Barrett to a certain extent. You know,
Speaker 1: I think we're talking about labels rather than analysis, because
Speaker 1: we can't really say tigeres to the runner right when
Speaker 1: the burden is on the person invoking the privilege. We
Speaker 1: can't get into this whole put a percentage on it
Speaker 1: for the reasons that we've already talked about, So maybe
Speaker 1: it's best to say nothing. Joining me is M. C. Sungaila,
Speaker 1: head of the appellate practice at buck Alter. This case
Speaker 1: involves a grand jury subpoena in connection with a criminal
Speaker 1: tax investigation, and the law firm and the client in
Speaker 1: the attorney client privileged to withhold documents, and the case
Speaker 1: is shrouded in mystery in a lot of ways. The
Speaker 1: petitioner isn't even named. Oh gosh, yes, Well, there's the
Speaker 1: mystery having to do with the parties and the fact
Speaker 1: what things are under seal and you know which law
Speaker 1: firms involved, in which companies involved. I think there was
Speaker 1: some reference in the government's briefs of the company involved
Speaker 1: with the privileges involved in the cryptocurrency or something like that.
Speaker 1: But yeah, there's a little bit of mysterious to the
Speaker 1: individual participants, but the larger she's not a mystery, and
Speaker 1: it's definitely one that is of interest, I would say,
Speaker 1: particularly to in house council who often are in the
Speaker 1: position where their communication could be seen as dual purpose.
Speaker 1: So the question here is what is the test to
Speaker 1: apply to communications that have both a legal purpose and
Speaker 1: a business purpose. And is the test the single primary
Speaker 1: purpose is legal and therefore it's subject to attorney client
Speaker 1: privilege or is it sufficient that a significant purpose is enough?
Speaker 1: So that's the question, I think, particularly given that there
Speaker 1: are so many circumstances, especially when you're talking about in
Speaker 1: house counsel in companies, they're often asked business strategy questions
Speaker 1: and legal strategy questions what are really Internet? And so
Speaker 1: they're paying a lot of attention to this case. So
Speaker 1: M see you filed an amigest brief on behalf of
Speaker 1: the Federation of Defense and Corporate Counsel supporting a broad
Speaker 1: application of the privilege. Is the concern that a narrower
Speaker 1: test might chill a client's communications with their attorney. Yeah,
Speaker 1: I mean you want people to be forthcoming so that
Speaker 1: you can give the best legal advice. You also, in
Speaker 1: the course of providing legal advice sometimes to me to
Speaker 1: get a lot of other personal information. So one of
Speaker 1: the examples that came up in the argument was, well,
Speaker 1: if you're asking for advice about property or the family
Speaker 1: home or something like that, and you need to get
Speaker 1: some evaluation information or factual information about the property in
Speaker 1: order to offer google advice about it, you want as
Speaker 1: much information as possible, and you want it as broad
Speaker 1: as possible in doing that, so you can get the
Speaker 1: full information you need to offer the best advice, and
Speaker 1: also can ask a lot of different factual questions that
Speaker 1: you need to render that advice. And sometimes two clients
Speaker 1: don't know they think there might be a legal issue,
Speaker 1: but they don't know, and they think they're asking a
Speaker 1: business question, but it's really also a legal question. So
Speaker 1: if you had this test of a single primary purpose
Speaker 1: being seeking legal advice that they might say, as a client, well,
Speaker 1: we didn't really know at the time we were asking questions,
Speaker 1: but it was actually legal advice that we really should
Speaker 1: be asking about. On the other side, the government argues
Speaker 1: that having that kind of a broad test would allow
Speaker 1: companies to shield documents about accounting and business development without
Speaker 1: a compelling justification. And in this case, the government says,
Speaker 1: the vast majority of the documents in dispute our communications
Speaker 1: between the client and a non lawyer accountant that was
Speaker 1: employed by the law firm to prepare tax returns. So
Speaker 1: the government says that the broader test the significant purpose
Speaker 1: is too broad. It's really interesting. There was a lot
Speaker 1: of stock and forth about what each side position was,
Speaker 1: whether there really was some, you know, significant disagreement by
Speaker 1: the parties about what the tests should in fact be.
Speaker 1: At one point Justice course that said, oh, I think
Speaker 1: both of you might be adjusting your definition of the
Speaker 1: test and might actually be coming to the same test,
Speaker 1: which is not primary purpose but a significant purpose. And
Speaker 1: you know, the government submurdered at one point somethw that
Speaker 1: that's not exactly what we're saying, but it didn't start
Speaker 1: to sound like it. But there were moved and goalposts
Speaker 1: from what you described as you know, the government's positions
Speaker 1: seemed to be moving a little bit scaring arguments. But
Speaker 1: they did state that concerned that, I guess, the improper
Speaker 1: invocation of the privilege or an effort to have everything
Speaker 1: covered by the privilege when it really shouldn't be. And
Speaker 1: they also talked about the specifics of this case, and
Speaker 1: so I think that's really two things at play here.
Speaker 1: One is the overall test which would apply while beyond
Speaker 1: this case, and that's of course at the free court level,
Speaker 1: with the justice is always remind everyone of. And they
Speaker 1: did an argument which was, yeah, yeah, we're very interested
Speaker 1: how this comes out in the particular case, but we're
Speaker 1: most interested in what's the test and why we should
Speaker 1: adopt a certain test, because that's the test is going
Speaker 1: to be applied across multiple cases, so we want to
Speaker 1: make sure it's workable. It seems pretty clear that the
Speaker 1: government was on one side and all the aniquest briefs
Speaker 1: were on the opposite side. From our perspective, from the
Speaker 1: perspective of the bar associations and the business organizations that
Speaker 1: files aniquest PAS in the case there's their cheene of
Speaker 1: those rates. You know, all of those amagists are aligned
Speaker 1: in having a concern about the test that the government
Speaker 1: is avocating for a single primary purpose test, because we
Speaker 1: want a practical, workable test that gives us some sense
Speaker 1: in advance of what would be subject to the privilege,
Speaker 1: and something that in retrospect also is more workable in
Speaker 1: terms of analyzing whether the privilege attaches, and something that
Speaker 1: also just reflects the practical realities of how legal advice
Speaker 1: is given, the circumstances under which is given, and just
Speaker 1: how things operate in the real world. And you know, frankly,
Speaker 1: it's really nice to be on the Supreme Court and
Speaker 1: to be in the position they're in. They don't have
Speaker 1: to deal with those realities. So, you know, we hope
Speaker 1: that the amagas greeps will help illuminate the practicalities of
Speaker 1: that and how the test will be applied. So it
Speaker 1: seems to be semantics the words significant and primary. It
Speaker 1: doesn't seem like there's that much difference between those. Yeah,
Speaker 1: not only some of the questions too, was how do
Speaker 1: you define these terms? So, assuming we adopt a significant
Speaker 1: purpose test, counsel, we do that mean to you? If
Speaker 1: we weren't to define it, we don't have to, But
Speaker 1: if we were, what would we say? And some of
Speaker 1: those answers seemed to really dug tail between the government
Speaker 1: and counsel seeking a broader privilege. So you say, hmmm. Ultimately,
Speaker 1: as discourse is pointed out, I wonder how much light
Speaker 1: there really is between the standards as applied that each
Speaker 1: side's arguing for. So it really was kind of interesting,
Speaker 1: and it did have you maybe stetching your head a
Speaker 1: little bit after argument. But maybe Justine course has had
Speaker 1: something There really isn't a significant you know, divide. So
Speaker 1: where do you think will come out? I mean, if
Speaker 1: you're just listening to the arguments and assuming that folks
Speaker 1: are gonna kind of stick to their guns, and where
Speaker 1: they seem to be mean during arguments, I would say,
Speaker 1: just this course, it's Justice Roberts and Justice Kavanaugh seemed,
Speaker 1: you know, more predisposed to the argument for a significant
Speaker 1: purpose test and something that gave more protection. The rest
Speaker 1: of the court had various degrees of concern or consternation
Speaker 1: about a test that was something different from the primary
Speaker 1: purpose test. So, yeah, it's looking like not great for
Speaker 1: this for the in house council. Is it possible to
Speaker 1: come out with a test that's really clear in this area?
Speaker 1: Is it possible that they come back and they don't
Speaker 1: have a clear test? Yeah? I mean that was one
Speaker 1: of the That was one of the things I thought
Speaker 1: that Justice very kind of floated at one point during argument,
Speaker 1: which was, well, if we can't really reach some kind
Speaker 1: of consensus on the court itself about how do we
Speaker 1: define a test and giving guidance about how to apply it,
Speaker 1: one suggestion she made was well, if we just basically
Speaker 1: say we adopt test X and then let it work
Speaker 1: out afterwards through the system, that might be one way,
Speaker 1: because I think she was reacting to the fact that
Speaker 1: they probably weren't going to get certain people, you know,
Speaker 1: on the court to agree to a particular outcome, so
Speaker 1: she was maybe testing the waters or what if we
Speaker 1: just said something very broad about which testfully adopt and
Speaker 1: that would define and I think, you know, the suggestion
Speaker 1: was if we adopt the primary purpose tests, then we
Speaker 1: wouldn't need to flush it out too much because there
Speaker 1: are state cases that interpret that and everybody could look
Speaker 1: to those with a pre existing law interpreting those cases.
Speaker 1: But in response to that, Jesfics cavan not pointed out, well,
Speaker 1: but they say they apply some tests that they don't
Speaker 1: they really seem to apply another one. So how clear
Speaker 1: is that? Not very clear? So not very clear. Just
Speaker 1: explain how this decision then could impact not only in
Speaker 1: House Council but outside lawyers. Yeah, it was one of
Speaker 1: the suggestions by um, the government at argument one that
Speaker 1: I've seen in you know, previous advice letters or things
Speaker 1: like that from from very well regarded law firms to
Speaker 1: their clients. But how do we deal with this if
Speaker 1: it is more of a primary purpose type test, how
Speaker 1: do we proceed? And it was similar to how the
Speaker 1: government suggested, Well, you have one email or one memo
Speaker 1: that's focused on legal analysis, and you have another memo
Speaker 1: or email that's focused on the business part, and you
Speaker 1: keep them separate so that there's you know, none of
Speaker 1: this kind of questioning having to parish between dual dual purposes. Really, um,
Speaker 1: you would really solve it by keeping the legal completely separate.
Speaker 1: And uh, when I heard that and also seen that
Speaker 1: advice previously, I just I just thought, well, that's just
Speaker 1: reveals how unworkable it is if you're focused on this
Speaker 1: you know, primary purpose question, because I think in reality
Speaker 1: it's just not practical. Oh, everybody stopped that mail chain
Speaker 1: we're on where we're debating with the executives and other
Speaker 1: people in the group about mixed the business and legal things,
Speaker 1: shall we say, and we're gonna have the lawyers going
Speaker 1: to pull out some separate emails. I know, everybody, we
Speaker 1: need to have some separate email chain. That's only about
Speaker 1: the legal advice. It's just it's counterintuitive, and it really
Speaker 1: separates out um that legal advice from them from the
Speaker 1: business concerns of the clients, and also from the property
Speaker 1: question that came up at or larguments. Even for the
Speaker 1: folks who aren't big companies, who who are clients individuals
Speaker 1: those clients. This question of how much information you're giving
Speaker 1: that may deem peripheral to the direct legal questions but
Speaker 1: actually are important for the lawyer to know about in
Speaker 1: order to give the best legal advice. You might be
Speaker 1: a little more concerned, like I don't want to go
Speaker 1: a field of you know, the things that would be
Speaker 1: purely legal advice, because then I'm getting into this you know,
Speaker 1: swampy area. I'm not sure whether things are actually protected
Speaker 1: by the attorney client privilege or not. So those are
Speaker 1: those are things we don't really like to see. We
Speaker 1: want more open communication and transparency between clients an attorney
Speaker 1: in order to have the best compliance, in order to
Speaker 1: understand the legal risk to the utmost and um. It's
Speaker 1: hard to be proactive when you have a test that unclear.
Speaker 1: It seems like there wouldn't be five votes to change
Speaker 1: the test. It doesn't sound like it's to me an argument.
Speaker 1: It doesn't sound like an argument. I mean it might
Speaker 1: be afterwards. What I'm thinking is there may be some
Speaker 1: working out of things afterwards. The people that kind of say, okay,
Speaker 1: if you have to have to write out what this
Speaker 1: test means of how it would apply, maybe you'd have
Speaker 1: some some second thoughts about how that is applied. And
Speaker 1: if it turns out that you end up having some
Speaker 1: kind of primary purpose tests that ultimately really in practice
Speaker 1: ends up seeing something that looks much more like a
Speaker 1: significant purpose test than maybe you don't lose. So I
Speaker 1: think it really in this case, it will turn on
Speaker 1: the details and where the court goes in terms of
Speaker 1: how how much it's going to go beyond just announcing
Speaker 1: some general standards. You've been going to break it down
Speaker 1: a little bit more. It may turn out that the
Speaker 1: tests maybe in name be different, but actually an application
Speaker 1: it might not be. I think that's really kind of
Speaker 1: the best reading of the tea leaves for the thirteen
Speaker 1: guess of which my client is one um before the
Speaker 1: court in the case, but you never know for sure.
Speaker 1: Thanks so much, em C. That's mc sanila of buck Alter.
Speaker 1: Dozens of President Biden's judicial nominees, some of whom waited
Speaker 1: a year or more for a confirmation vote. We're in
Speaker 1: a sort of limbo when the seventeenth Congress came to
Speaker 1: an end in December. Now, Biden has resubmitted twenty five
Speaker 1: of those nominees to the Senate, including lawyers for the
Speaker 1: A c. L U Southern Poverty Law Center and Center
Speaker 1: for Reproductive Rights who previously deadlock in the Senate Judiciary Committee.
Speaker 1: The hundred and eighteenth Congress should be an easier one
Speaker 1: for Biden's judicial nominations, as the Democrats enjoy a newly
Speaker 1: boosted majority. Joining me as an expert in the judiciary,
Speaker 1: Carl Tobias, A professor at the University of Richmond Law School.
Speaker 1: Dozens of Biden judicial nominees were returned to the White House.
Speaker 1: Explain why, Well, that's automatic because the hundred and seventeenth
Speaker 1: Congress ended, and so you cannot carry people over into
Speaker 1: the new Congress, so they need to be renominated if
Speaker 1: they did not have a confirmation vote. That's what happened.
Speaker 1: They came back to the White House to the President.
Speaker 1: About half of them were renominated, and as I understand it,
Speaker 1: during January, the others who were not renominated will be
Speaker 1: There's a lot of paperwork and updating that has to
Speaker 1: be done, and we're just coming off the holidays, and
Speaker 1: so I think that explains why they're going to gradually
Speaker 1: send all of the nominees who are willing to be
Speaker 1: renominated by the end of the month when the standard
Speaker 1: comes back. They actually came in for ceremonial duties and
Speaker 1: swore in the new senators, but then left until the
Speaker 1: three when they'll return and then start in earnest they're working.
Speaker 1: So let's talk about some some of the nominees who
Speaker 1: have been resubmitted. The ones that I saw seemed to
Speaker 1: be candidates who are very progressive. So for the eleventh
Speaker 1: Circuit Nancy A. Voudou of the Southern Poverty Law Center.
Speaker 1: So tell us a little about her and what happened
Speaker 1: to her nomination in the first place. Well, she received
Speaker 1: very rigorous questioning from the GOP centators on the committee,
Speaker 1: especially about her work at the Southern Poverty Law Center,
Speaker 1: which has been at the center of some controversy. But
Speaker 1: she responded to those criticisms by saying I was working
Speaker 1: on helping people who cannot afford legal representation in the
Speaker 1: civil rights and criminal defense areas, and said I didn't
Speaker 1: run that center, which has called the Alliance Defending Freedom
Speaker 1: hate group. And she received specific questions about that from
Speaker 1: Holly and I think Cruiz but answered I think in
Speaker 1: a straightforward way. She had a tie vote in committee
Speaker 1: eleven to eleven, and I do not believe that Democrats
Speaker 1: try to discharge her from committee, which they might have
Speaker 1: been able to do on the floor. But she's now
Speaker 1: renominated and I think with the sent it she will
Speaker 1: be confirmed. It's just a matter of when. And she
Speaker 1: like everyone else who was renominated, the people who had
Speaker 1: committee votes. As I understand, it may have to have
Speaker 1: another committee vote, but That will be easy because the
Speaker 1: Democrats will now have a majority on the committee, so
Speaker 1: there won't be high votes, and the Democrats and Republicans
Speaker 1: to some extent, especially on the Committee, have voted pretty
Speaker 1: much in lock steps. There have been very few departures
Speaker 1: on the Republican side, except for Lindsay Graham, the former
Speaker 1: chair of the Committee, who I think believes that the
Speaker 1: President is entitled to his nominees. Unless Graham thinks that
Speaker 1: someone is too far out of the mainstream, Well, they
Speaker 1: have to have hearings again, or they could just be
Speaker 1: voted out of the committee without a hearing. No, that's
Speaker 1: a good question. They will not have to have hearings again.
Speaker 1: They still would, I think, to have another committee vote,
Speaker 1: but that's pretty perfunctory at this point, sup of people
Speaker 1: who already went through committee on a majority vote when
Speaker 1: there were eleven senators from each party. So it will
Speaker 1: just be at the first or second Executive Business meeting
Speaker 1: when they have the votes on Thursdays. The Republicans may
Speaker 1: hold them over a week, but then there'll be a
Speaker 1: vote for many, many dozens of nominees on the second
Speaker 1: Thursday after they returned. Another nominee who's going to be resubmitted.
Speaker 1: This is for the first Circuit Julie Reichelman, and she
Speaker 1: represented the Mississippi Abortion Clinic in the case that overturned Row.
Speaker 1: So there's a reason why she didn't get out of committee. Yes,
Speaker 1: because abortion has been for forefront in the minds of
Speaker 1: many Senators and many people around the country. Republicans consider
Speaker 1: her to be controversial because she has litigated a number
Speaker 1: of very important cases involving reproductive freedom. But she has
Speaker 1: certainly known her way around the federal courts all the
Speaker 1: way to the Super Court, and has served in capacity
Speaker 1: as a lawyer in the appeals courts around the country
Speaker 1: litigating that issue in many other issues, and so she's
Speaker 1: very experienced. She said, I will apply the law and
Speaker 1: the facts in every case, and I am cognizant of
Speaker 1: Dobbs and will uphold dobs because that's the supreme court
Speaker 1: law of the land. She answered that way on many
Speaker 1: occasions when questioned about whether she would follow precedent. A
Speaker 1: nominee to the Southern District is Dale Hoe of the
Speaker 1: A c l U. Did he ever get a hearing. Yes,
Speaker 1: he had a hearing, and Republicans were concerned about his
Speaker 1: criticisms of some politicians, including some members of the committee
Speaker 1: in his capacity as an advocate, and so they were
Speaker 1: questioning him about whether he could leave behind those concerns
Speaker 1: that the stors had and be a fair minded judge.
Speaker 1: And he had done some I think tweeting and made
Speaker 1: some statements on YouTube and various settings that concerned the
Speaker 1: senators because he has been a strong advocate in context,
Speaker 1: especially involving immigration and civil rights for the A C.
Speaker 1: O You for a number of years, even though the
Speaker 1: Committee was split on these Why didn't Chuck Schumer bring
Speaker 1: it to the floor. Well, I think for some of
Speaker 1: them whom we've been talking about, especially after the election
Speaker 1: and then second election in Georgia where Senator Warnock won
Speaker 1: the runoff, there wasn't a real big reason to bring
Speaker 1: them up because Democrats have a majority and a better
Speaker 1: majority than they had in the U seventeenth Congress now,
Speaker 1: and so there was no reason to press forward and
Speaker 1: risk a loss on the floor. I think now the
Speaker 1: people who need discharge petitions if there are any, and
Speaker 1: I think there are not going to be any given
Speaker 1: the competition of the new Judiciary Committee with the Democratic majority,
Speaker 1: that just would be no reason to force them through
Speaker 1: and make Republicans mad and force Democrats to take a
Speaker 1: vote that they might not want to take. It just
Speaker 1: wasn't necessary. They may have to wait a couple of months,
Speaker 1: but that seemed to be a preferable approach. Why you know,
Speaker 1: force an issue that you know you can win in
Speaker 1: a new Congress, And I think that was the thinking
Speaker 1: by Humor and other leaders on the Democratic side. I mean,
Speaker 1: is there any way that that having an extra committee
Speaker 1: member is going to speed up the committee even more?
Speaker 1: When Durban he's following the same path that other Judiciary
Speaker 1: Committee chairman have followed before him. Well, yes, I think
Speaker 1: that it will speed up the process, especially for people
Speaker 1: who might be more controversial and at least before received
Speaker 1: high votes. But now with the at least eleven ten
Speaker 1: and maybe twelve ten of the Judiciary Committee, they will
Speaker 1: easily go through committee. Hopefully the hearings won't be as
Speaker 1: controversial as some have been, and it also depends partly
Speaker 1: on who the not particular nominee is, but I think
Speaker 1: it will go more smoothly from the Democratic perspective. I
Speaker 1: think the other question you're asking in some progressive groups
Speaker 1: have asked as well is are all those vacancies going
Speaker 1: to be filled in the next two years, And there
Speaker 1: are many seventy two at the district level and ten
Speaker 1: at the pellate level, and then twenty five or so
Speaker 1: future vacancies, and as judges continue to take senior status
Speaker 1: or retire or die, they're going to be additional vacancies.
Speaker 1: And everyone wants to see all of those vacancies felled,
Speaker 1: and it just takes time. I was surprised to see
Speaker 1: that the center, you know, left after one day of
Speaker 1: purely introductory or for a couple of weeks. They went
Speaker 1: home for day work periods until the twenty three you know,
Speaker 1: after that will have President's Day. Um once we'll take
Speaker 1: another week, and so the calendar moves on. So the
Speaker 1: solution to that, which some have proposed, is either to
Speaker 1: have more nominees in specific hearings or to have them
Speaker 1: more often than one every two weeks, which is I
Speaker 1: think the president you were referring to referring to. I
Speaker 1: believe the Republicans under Trump rarely had hearings more often
Speaker 1: than once every two weeks, and that's what Durban has
Speaker 1: done systematically, But he has not scheduled them more often
Speaker 1: than that, and so some progressive groups are urging that
Speaker 1: or the other alternative is to have more nominees and
Speaker 1: specific hearings. Durban usually has had one or two appellate
Speaker 1: nominees and then three or four district nominees, And of
Speaker 1: course if you have more nominees in each hearing, you
Speaker 1: can move more people through, but that limits the time
Speaker 1: for questioning. And so I think he's trying to be
Speaker 1: as fair as he can and not unduly change a
Speaker 1: number of the traditions of the Senate carl Are any
Speaker 1: of the circuits likely to be flipped in the next
Speaker 1: years or so? Perhaps, But there's an interesting question that
Speaker 1: you raise. Most of the appellate vacancies that the president filled,
Speaker 1: and there were twenty eight of them, which is a
Speaker 1: substantial number. Those nominees were mostly replacing appointees of democratic president,
Speaker 1: and that's one measure of the people use, which is
Speaker 1: is relatively crude, but it's used by many observers of
Speaker 1: the federal courts. And so that creates a bit of
Speaker 1: a problem because you can't flip the circuits as you're
Speaker 1: suggesting when you're only replacing democratic appointees. And so there
Speaker 1: are some vacancies now that are held by appointees of
Speaker 1: Republican pressments, and so those will make some difference, for example,
Speaker 1: in the third circuit. But I see that they're not
Speaker 1: very many appeals courts which will flip in the next
Speaker 1: two years unless you have more GOP appointed judges at
Speaker 1: the appellate level decides to take senior status or resigned.
Speaker 1: We haven't seen very many of them, but some have.
Speaker 1: And that's not a rule, that's just a custom or tradition,
Speaker 1: and I think many Democratic and Republican appointees don't honor
Speaker 1: that or honored in the breach and will take senior
Speaker 1: status or retire when they want to. And some don't
Speaker 1: have much choice. I mean, maybe they have a health
Speaker 1: issue or something of that sort, and so it really
Speaker 1: is specific to each judge. But so far the pattern is,
Speaker 1: at least in the Biden years, has been more Democratic
Speaker 1: appointees have assumed senior status than Republicans, and I think
Speaker 1: it's something like three out of every four. So we'll
Speaker 1: see if they'll be changes in the next two years.
Speaker 1: Trump certainly was able to flip some circuits, that's right,
Speaker 1: and partly because Mitch McConnell didn't allow obama Phil vacancies
Speaker 1: in twenty sixteen and held them open for Trump, and
Speaker 1: so that explains how he could appoint four new appellent
Speaker 1: nominees in the four years he was president. And so
Speaker 1: there were many leftover vacancies because they the GOP refused
Speaker 1: to even give hearings to many of Obama's nominees for
Speaker 1: those vacancies. So what will the agenda look like in
Speaker 1: the senator's return. They'll come in and as soon as
Speaker 1: they do, they'll start to move people. They'll finish off
Speaker 1: I think in January renominating everybody and just keep moving
Speaker 1: the process. So we'll see how that goes. But I
Speaker 1: think the Democrats are very much determined to confirm as
Speaker 1: many people as they can and keep moving in. So
Speaker 1: they're committed to it and publicly thanks Carl. That's Professor
Speaker 1: Carl Tobias of the University of Richmond Law School. And
Speaker 1: that's it for this edition of The Bloomberg Law Show.
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Speaker 1: Grosso and you're listening to Bloomberg