Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. Just after signing
Speaker 1: a one point three trillion dollar budget at the White
Speaker 1: House last week, reporters as President Trump if he would
Speaker 1: like to testify in Robert Mueller's Russia investigation, to testify
Speaker 1: the Special counsel Robert Muller, Sir, thank you would like
Speaker 1: for borrow on this story. We're joined now by Greg Ferrell,
Speaker 1: Bloomberg News investigative legal reporter, and Greg, the President says
Speaker 1: he would like to, but it's a it's a it's
Speaker 1: a lot of distance between liking to and actually doing it.
Speaker 1: What's your latest reporting on this story? Yesterday afternoon about
Speaker 1: how negotiates between Trump's legal team, UM What's left of
Speaker 1: It and the Mueller camp are continuing around this as
Speaker 1: you know, UH, Trump's lead outside lawyer, John John Dowd
Speaker 1: quit UM UH last week in part over the issue
Speaker 1: of whether or not the President should sit down with
Speaker 1: UH Special counsel Robert Mueller, and uh, there's a real
Speaker 1: you know, there's there's this happens a lot in legal issues,
Speaker 1: where there's a real divergence or a real contradiction between
Speaker 1: what the legally proper the smartest legal move to take
Speaker 1: and what you know, what the optics of that going
Speaker 1: to are going to be. Uh. John Dowd recommended against
Speaker 1: in any way, shape or form a meeting with Mueller. Um,
Speaker 1: because any kind of slip up or or or you know,
Speaker 1: misstatement or exaggeration, uh, you know, could be construed as uh,
Speaker 1: you know, lying and um. But I think the President
Speaker 1: understands that if he doesn't, if he refused to sit
Speaker 1: down with Mueller, it will look bad. So there's this
Speaker 1: sort of built in contradiction between you know, the optics
Speaker 1: of the White House wanting to you know, appear like
Speaker 1: the cooperating fully and wanting to let you know, and
Speaker 1: they have nothing to be afraid of because, as the
Speaker 1: President has said, he's done nothing wrong and the legal
Speaker 1: imperative of protecting your client sore. Trump Y, you had
Speaker 1: mentioned that, uh, you know, the shrinking legal team, so
Speaker 1: Trump doesn't have a white collar or a government investigations
Speaker 1: lawyer who's experienced in dealing with this type of high profile,
Speaker 1: very sensitive investigation interview and the ramifications. How much of
Speaker 1: a problem is that for him? Well, they say it's
Speaker 1: not much of a problem because they're a big team
Speaker 1: of people under Jay Seculo. Uh and some support from
Speaker 1: you know, the Casuits law firm, which is back. But Uh,
Speaker 1: there's two two issues for them. One, Um, you know,
Speaker 1: they it would help to have someone who specializes in
Speaker 1: criminal white collar defense out and they don't have that
Speaker 1: now Casuits as a superb lawyer, but he's a civil lawyer. Um. Uh.
Speaker 1: And at the same time, Um, you know that they realized,
Speaker 1: from a public relations point of view, it doesn't look
Speaker 1: good for the story to be out there that the
Speaker 1: president is underrepresented by a lawyer. So I think their
Speaker 1: plan is to to bring someone in. They don't need
Speaker 1: someone tomorrow or by Monday, but over the next few
Speaker 1: weeks they want to bring someone in who sort of
Speaker 1: plugs that hall. You know, if you will baseball starting,
Speaker 1: they need a first basement someone who they can put
Speaker 1: in that spot. Um. Even though they say they're fine
Speaker 1: for now, why is the team had such a hard
Speaker 1: time putting the rest of the team together. Well, it's
Speaker 1: another contradiction here. One Uh, most lawyers in general would
Speaker 1: like kill for the opportunity to represent the president of
Speaker 1: the United States and a major constitutional issue um Trump. However,
Speaker 1: and this is proven to be, if not toxic, a
Speaker 1: lot of you know, both face named lawyers in Washington
Speaker 1: are avoiding him some. This in part is I think
Speaker 1: political that they don't necessarily agree with him, But I
Speaker 1: think more importantly is he's a very difficult client. You know,
Speaker 1: you can tell him and try to come up with
Speaker 1: a strategy of what you know should be done, and
Speaker 1: he'll go off and do his own thing. He'll undercut
Speaker 1: himself sometimes by giving an interview or a tweet that
Speaker 1: sort of uh conflicts with what the legal advice is.
Speaker 1: That's one of the reasons Mark Hoswits left last summer
Speaker 1: is that reportedly he was cut out of the decision
Speaker 1: making process, you know, intentionally shut out of what the
Speaker 1: president's response was to a report that his son Don
Speaker 1: Junior met with some Russians at the Trump Tower to
Speaker 1: talk about dirt for Hillary. And you know, he's just
Speaker 1: a difficult client. And Greg, does he do you think
Speaker 1: he has any idea he's used to civil litigation in
Speaker 1: New York. How any idea, how an interview with these experienced, aggressive,
Speaker 1: well prepared lawyers on Mueller's team or Mueller himself would
Speaker 1: be like, right, this is something I think the president
Speaker 1: has never been up against because, as you point out, yes,
Speaker 1: he's a veteran of you know, litigation, litigation wars in
Speaker 1: New York, of a real estate etcetera. Um, And he's
Speaker 1: prone to exaggeration because that's part of the business. He's
Speaker 1: a successful in real estate in part because of his
Speaker 1: he's a good talker, he sells well. Um, that's a compliment. Um.
Speaker 1: But you're entering a world where any false statement is
Speaker 1: potentially like a criminal act. So that's what John Dowd,
Speaker 1: his lawyer, was I'm sure concerned about. And uh, you know,
Speaker 1: and again part of Trump's particular, you know, charizba, is
Speaker 1: that he's irrepressible. He goes off and says things, he
Speaker 1: doesn't stay to the script. Um. And uh, that's for
Speaker 1: the first time. He's in a dangerous place with that
Speaker 1: streightmare for lawyers, a nightmare for his lawyers. Yeah, absolutely,
Speaker 1: absolutely exactly. But let me but there's something let me
Speaker 1: question this premise. I mean, yeah, yeah, you're right. He
Speaker 1: the president has a reputation for being on disciplined and
Speaker 1: tweeting and everything else, but he seems to have shown
Speaker 1: pretty strong discipline in this controversy over Stormy Daniels. Yes,
Speaker 1: but you know that's you know, for a few days,
Speaker 1: I think we've we've seen you know, John Kelly has
Speaker 1: been uh, you know, has had success and then lack
Speaker 1: of success during last summer and getting the President's day
Speaker 1: off reporter, and then it changes. So maybe true, maybe
Speaker 1: he's suddenly gotten religion. Maybe at his age, he's suddenly
Speaker 1: you know, has become the man that his previous lawyers
Speaker 1: want him to be. But you know, let's see, at
Speaker 1: time passes. It's been one week, so well, maybe he
Speaker 1: understands the stakes with Mueller. And that's so that that's
Speaker 1: why I was asking. You know, I still I still think,
Speaker 1: you know, he's facing these lawyers and he has a
Speaker 1: tendency to fill in the gaps and to keep talking.
Speaker 1: And lawyers love that, right opposition lawyers your own lawyer, yes, exactly. Um,
Speaker 1: he loved to build a vacuum. He uh, you know,
Speaker 1: clearly thrives on being the star of the show. And
Speaker 1: that's not what you want, you know, in that type
Speaker 1: of uh circumstance, you want someone who sticks to the script,
Speaker 1: keeps it almost monosyllabic. That's what the negotiations right now
Speaker 1: is about, is like the different areas that Mueller wants
Speaker 1: to talk about. Got it all right, Greig Farrell, Bloomberg
Speaker 1: News investigative legal reporter, Thank you so much. Now let's
Speaker 1: take a look at the Supreme Court. And the Supreme
Speaker 1: Court took its second look at partisan jerrymandering this term.
Speaker 1: But the second look doesn't seem to have clarified the
Speaker 1: issue or the solution for the justices. The Justices expressed
Speaker 1: broad concerns about a Maryland congressional district that Democrats acknowledge
Speaker 1: was drawn to outs to GOP lawmaker. The solution was
Speaker 1: far from clear. Joining me is one of our country's
Speaker 1: leading experts on election law, Rick Hassan, a professor at
Speaker 1: U c Irvin and the author of the Justice of
Speaker 1: Contradictions and nin Scalia and the Politics of Disruption. Rick,
Speaker 1: the Court has never struck down a voting map for
Speaker 1: being so partisan it violates the Constitution. Do the Justices
Speaker 1: at least agree that extreme partisan jerrymandering is a violation
Speaker 1: of the Constitution. I think they actually do agree on
Speaker 1: that point, and you think that that would settle it.
Speaker 1: But back in two thousand four, Justice Scalia wrote a
Speaker 1: plurality opinion in a case called v versus Jubellar involving
Speaker 1: Pennsylvania's redistricting, where he said, even if it's unconstitutional, and
Speaker 1: will assume that it is, the question is whether or
Speaker 1: not the courts have any power to rein it in
Speaker 1: are there any judicially manageable standards to know when taking
Speaker 1: partisanship into account and drawing district lines is too much?
Speaker 1: And it was very clear from the argument yesterday in
Speaker 1: the Maryland jerrymandering case that the Court is still struggling
Speaker 1: with that question. Is there a standard that the Court
Speaker 1: can enunciate that could actually help to decide when too
Speaker 1: much partisanship comes into play in these drawing of district lines.
Speaker 1: Why is partisan jerrymandering different from reach racial jerrymandering in
Speaker 1: this respect? Why why can they one but not the other?
Speaker 1: It's a great question. And so when it comes to
Speaker 1: racial jerrymandering, um, the standard there is one of simply
Speaker 1: making race the predominant factor in drawing district lines. And
Speaker 1: the Court says that that violent secret protection clause that
Speaker 1: sends a message that you're separating voters on the basis
Speaker 1: of race, and this is a pernicious message. That's the
Speaker 1: theory of a case called Shaw versus Reno, and it's
Speaker 1: been from the has been carried through today. UM. Although
Speaker 1: some of the justices had have advanced in an argument
Speaker 1: that if you make race the sole motivator, if you
Speaker 1: make party partisanship the soul motivator or the main motivator
Speaker 1: in drawing district lines, that's unconstitutional. The Court in vis
Speaker 1: rejected that standard. Justice Kennedy was the fifth vote rejected
Speaker 1: that standard and rejected a similar standard in a two
Speaker 1: thousand six case coming out of Texas. So it's got
Speaker 1: to be something different than that. Um. It could be
Speaker 1: some thing like vote dilution, which we see in the
Speaker 1: voting rights context, except diluting the votes of Democrats or Republicans.
Speaker 1: But they're not exactly clear on how you would draw
Speaker 1: the line. And one of the things Justice Brier floated
Speaker 1: an argument yesterday is they've got two or three cases
Speaker 1: involving these issues, maybe they should just hear them again.
Speaker 1: Next term, bringing all the lawyers from all the cases,
Speaker 1: put it on a blackboard and try and sort it
Speaker 1: out and figure out, is there, holy Grail, is there
Speaker 1: a standard they could apply for all of these cases
Speaker 1: that's actually gonna work. And a lot of the justices
Speaker 1: expressed both uncomfortable nous with what Maryland had done in
Speaker 1: drawing this congressional district of favor Democrats and a lack
Speaker 1: of comfort with any standard that they can come up
Speaker 1: with to say what the general rules should be. Well,
Speaker 1: do you think kicking the can or the case down
Speaker 1: the road is going to help them any Well, it
Speaker 1: might help Justice Brier keep Justice Kennedy on the court.
Speaker 1: Some people were suggesting that maybe this was a way
Speaker 1: to say, you know, Kennedy's is seen as a likely
Speaker 1: swing voter here. This is one of his signature issues
Speaker 1: where he's been debating the issue with himself for the
Speaker 1: last decade or so, and you know, if you set
Speaker 1: the case for arguments in the fall, maybe Kennedy sticks around,
Speaker 1: you know, amid all of these retirement rumors. So there
Speaker 1: were there was a case argued about Maryland this week
Speaker 1: and then Wisconsin before. Is Justice Kennedy the swing vote
Speaker 1: in both those cases, and the way one case goes
Speaker 1: is that the way the other case will go. Well,
Speaker 1: the case is different four different ways. One is that
Speaker 1: one involves Democrats doing the chairmanaging. The other involves Republicans
Speaker 1: that shouldn't sway sway. The difference. One involves congressional districts
Speaker 1: and the other involves state legislative districts. Uh. One involves
Speaker 1: a challenge to the entire map, the other involves a
Speaker 1: challenge to just a single district and um uh the uh.
Speaker 1: The last difference is that one involves the three under
Speaker 1: the Equal Protection Clause, the other under the First Amendment.
Speaker 1: These all kind of offer different ways for Justice Kennedy,
Speaker 1: if he's a swing voter, to go and decide these cases.
Speaker 1: We just don't know. We didn't know why the Court
Speaker 1: said argument for in the second cases of the Maryland
Speaker 1: case as opposed to just holding it for the Wisconsin case.
Speaker 1: The answer seems to be after argument that the Justice
Speaker 1: they're just struggling with very basic principles as to whether
Speaker 1: and how they're going to address any of these issues.
Speaker 1: It's it was if you look at the headlines yesterday
Speaker 1: describing your argument befuddlement frustration. The Court really seems like
Speaker 1: it's struggling and does not know what to do, and
Speaker 1: it's not normally what you see coming out of a
Speaker 1: Supreme Court argument. So, Rick, what's your what's your final take? Do?
Speaker 1: Will they come out with it with a decision one
Speaker 1: way or the other? Will they you know, kick it
Speaker 1: to the next term or what what's your take? Well,
Speaker 1: I don't have a good sense after the argument. Nothing
Speaker 1: would surprise me that is there. There are very easy
Speaker 1: ways for them to kick this, to kick the Maryland
Speaker 1: case in particular, because it's up on a preliminary injunction
Speaker 1: and they could just postpone it for a few years.
Speaker 1: But if Kennedy is thinking about leaving the Court in
Speaker 1: the next few years and he's the swing vote, that
Speaker 1: should put some pressure on the Court to actually decide
Speaker 1: the issue this term. But we'll find out in June. So, um,
Speaker 1: just briefly, we have about thirty seconds, so the mid
Speaker 1: term elections will definitely be held using the maps that
Speaker 1: may later be determined to be unconstitutional. Perhaps that is
Speaker 1: seems very likely. There was a whole discussion at the
Speaker 1: beginning of the argument yesterday about whether, given that this
Speaker 1: is up on the Ploomery in junction. Is it too
Speaker 1: late for a remedy in two thousand eighteen. The lawyer
Speaker 1: said no, but Justice Kennedy said, oh, come on, uh.
Speaker 1: Candidates already running, so does not seem likely that anything's
Speaker 1: going to change. Thank you, Rick. That's Rick hass and
Speaker 1: Professor at U c Irvine. His book is The Justice
Speaker 1: of Contradictions, Antonin Scalia and the Politics of Disruption. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple podcast, SoundCloud, and
Speaker 1: on bloomberg dot com slash podcast. I'm June Rosso. This
Speaker 1: is Bloomberg