1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,119 --> 00:00:12,640 Speaker 1: Republican representative Moe Brooks says he was acting in his 3 00:00:12,720 --> 00:00:16,600 Speaker 1: official capacity as a lawmaker when he gave an incendiary 4 00:00:16,640 --> 00:00:19,400 Speaker 1: speech at a pro Trump rally before the attack on 5 00:00:19,440 --> 00:00:24,600 Speaker 1: the Capitol on January six. Today is the day American 6 00:00:24,720 --> 00:00:29,600 Speaker 1: patriots start taking down names and tickets. Brooks wanted the 7 00:00:29,680 --> 00:00:33,279 Speaker 1: Justice Department to defend him against a lawsuit accusing him 8 00:00:33,280 --> 00:00:36,480 Speaker 1: of helping to incite the attack, which would have effectively 9 00:00:36,520 --> 00:00:40,920 Speaker 1: given him immunity, but the Justice Department refused, joining me. 10 00:00:40,960 --> 00:00:44,720 Speaker 1: As constitutional law professor Stephen Vladdock of the University of 11 00:00:44,800 --> 00:00:48,640 Speaker 1: Texas Law School, this involves the west Fall Act. Steve 12 00:00:48,760 --> 00:00:51,440 Speaker 1: tell us about it. So the Westpall Act this part 13 00:00:51,440 --> 00:00:55,880 Speaker 1: of the Federal Tort Claims Act, which is statute where 14 00:00:55,920 --> 00:00:59,000 Speaker 1: the federal government for the first time broadly opened itself 15 00:00:59,080 --> 00:01:02,840 Speaker 1: up to lie at ability when federal officers acted within 16 00:01:02,880 --> 00:01:05,920 Speaker 1: the scope of their employment commit towards negligence in a 17 00:01:05,959 --> 00:01:08,160 Speaker 1: place that and the idea is that the federal government 18 00:01:08,240 --> 00:01:11,600 Speaker 1: would stand in the shoes of its officers, at least 19 00:01:11,640 --> 00:01:14,000 Speaker 1: in those cases where the officers were acting within the 20 00:01:14,080 --> 00:01:16,320 Speaker 1: both of their employment. The west Fall Act, which was 21 00:01:16,360 --> 00:01:21,199 Speaker 1: an accid in, basically expands that to include cases where 22 00:01:21,200 --> 00:01:24,360 Speaker 1: plaintiffs have still tried to sue the officers, so as 23 00:01:24,400 --> 00:01:27,880 Speaker 1: opposed to where the plantiffs suits the United States itself. Now, 24 00:01:27,920 --> 00:01:30,360 Speaker 1: the Westpall Act is a mechanism for officers to say, 25 00:01:30,400 --> 00:01:32,959 Speaker 1: wait a second, you can't sue me. This is the 26 00:01:33,040 --> 00:01:35,479 Speaker 1: kind of suits that has to proceed against the United 27 00:01:35,480 --> 00:01:38,600 Speaker 1: States directly under the sec A. Now, why did mole 28 00:01:38,680 --> 00:01:41,399 Speaker 1: Brooks argue that he should be covered under the west 29 00:01:41,480 --> 00:01:44,880 Speaker 1: Fall Act. So there's sort of two interesting hooks to 30 00:01:44,920 --> 00:01:47,480 Speaker 1: the mob Brooks argument. The first is his claim that 31 00:01:47,560 --> 00:01:50,400 Speaker 1: as a member of Congress, he is an employee of 32 00:01:50,480 --> 00:01:52,320 Speaker 1: the United States. We tend not to think of elected 33 00:01:52,320 --> 00:01:55,360 Speaker 1: officials employees. But second, and more importantly, his claim was 34 00:01:55,400 --> 00:01:59,000 Speaker 1: that he was acting in his official capacity as a 35 00:01:59,080 --> 00:02:01,960 Speaker 1: member of the US House when he made the remarks 36 00:02:02,040 --> 00:02:04,680 Speaker 1: for which he's being shoes, and that therefore they fell 37 00:02:04,760 --> 00:02:07,640 Speaker 1: within the scope of his official employment, such that if 38 00:02:07,680 --> 00:02:09,519 Speaker 1: there's a claim here, it should have to be against 39 00:02:09,560 --> 00:02:12,320 Speaker 1: the United States. And the reason why that's a big deal, students, 40 00:02:12,360 --> 00:02:15,560 Speaker 1: because the west Ball Acts does not allow claims for 41 00:02:15,720 --> 00:02:19,480 Speaker 1: intentional sports against non law enforcement officers. So if in 42 00:02:19,600 --> 00:02:22,760 Speaker 1: fact the west Ball Act substitution were permissive here, not 43 00:02:22,840 --> 00:02:25,320 Speaker 1: only would the United States the substitutents defended, but the 44 00:02:25,400 --> 00:02:28,480 Speaker 1: lawsuit would have to be dismissed. The Justice Department said 45 00:02:28,520 --> 00:02:31,680 Speaker 1: it won't defend Brooks. Explain why they came to that 46 00:02:31,800 --> 00:02:35,040 Speaker 1: decision in any Westball Act case sort of. The first 47 00:02:35,080 --> 00:02:38,200 Speaker 1: question is d o J going to certify that the 48 00:02:38,280 --> 00:02:41,359 Speaker 1: officer in question was in fact acting within socials employment. 49 00:02:41,680 --> 00:02:44,519 Speaker 1: D J did not certify that. Instead, d o J 50 00:02:44,760 --> 00:02:49,200 Speaker 1: said that the exact distinction that the House rules draw 51 00:02:49,480 --> 00:02:54,400 Speaker 1: between official business and campaign activity is exactly why Brooks 52 00:02:54,440 --> 00:02:57,440 Speaker 1: was not acting within the scope of employment here, that 53 00:02:57,720 --> 00:03:01,360 Speaker 1: he himself has said his appearance at the rally, his 54 00:03:01,520 --> 00:03:03,960 Speaker 1: comments on Generous six, he has said those were all 55 00:03:04,040 --> 00:03:07,840 Speaker 1: part of his sort of campaign side, which was actually 56 00:03:07,919 --> 00:03:12,560 Speaker 1: largely designed as an argument to avoid internal consequences within 57 00:03:12,639 --> 00:03:14,720 Speaker 1: the House. The problem is that by making that argument, 58 00:03:14,760 --> 00:03:18,280 Speaker 1: he has also, as d o J explained, fatally undermined 59 00:03:18,320 --> 00:03:19,880 Speaker 1: the claim that it was therefore within the scope of 60 00:03:19,919 --> 00:03:22,880 Speaker 1: his employment. But then DJ said, and in any event, 61 00:03:23,240 --> 00:03:25,440 Speaker 1: in so far as the allegations in the lawsuit are true, 62 00:03:25,440 --> 00:03:30,480 Speaker 1: and so far as wasn't fact inciting violence against Congress, 63 00:03:30,600 --> 00:03:32,840 Speaker 1: it is impossible to imagine how that could be within 64 00:03:33,000 --> 00:03:35,480 Speaker 1: the scope of his employment as a member of Congress 65 00:03:35,520 --> 00:03:38,960 Speaker 1: to incite violence against him and his colleague. Now the 66 00:03:39,200 --> 00:03:43,480 Speaker 1: Justice Department said inciting attack on Congress quote is not 67 00:03:43,600 --> 00:03:46,800 Speaker 1: within the scope of employment of a representative or any 68 00:03:46,960 --> 00:03:51,800 Speaker 1: federal employee. Is this a signal that if former President 69 00:03:51,800 --> 00:03:55,320 Speaker 1: Trump asks to be covered under the Westfall Act, that 70 00:03:55,400 --> 00:03:57,840 Speaker 1: the Justice Department will say no to him as well? 71 00:03:58,240 --> 00:03:59,880 Speaker 1: So maybe? I mean, I think a lot of folks 72 00:04:00,000 --> 00:04:02,120 Speaker 1: have jumped to the you know, what does this mean 73 00:04:02,200 --> 00:04:04,520 Speaker 1: for President Trump? And we've already seen the o J 74 00:04:04,920 --> 00:04:08,320 Speaker 1: controversially takes the position that Trump was acting within the 75 00:04:08,320 --> 00:04:11,800 Speaker 1: schools employment when he defamed DJ and Carol. I think 76 00:04:11,920 --> 00:04:15,960 Speaker 1: the o j's position in the bookcase doesn't necessarily committed 77 00:04:16,040 --> 00:04:18,040 Speaker 1: to take from the same position in Trump case. I mean, 78 00:04:18,080 --> 00:04:20,920 Speaker 1: there's an argument June that they made in the Carol 79 00:04:21,000 --> 00:04:23,799 Speaker 1: case that the president is always on duty. These things 80 00:04:23,880 --> 00:04:27,040 Speaker 1: the President says are actually always within the scopeles employment 81 00:04:27,160 --> 00:04:29,120 Speaker 1: in a way that's not true for members of Congress. 82 00:04:29,200 --> 00:04:31,760 Speaker 1: But I do think there's at least the possibility that 83 00:04:31,960 --> 00:04:35,480 Speaker 1: this line of reasoning that inciting an attack against Congress 84 00:04:35,680 --> 00:04:38,160 Speaker 1: is not and cannot be part of one's official duties 85 00:04:38,320 --> 00:04:40,400 Speaker 1: could show up again if and when this issue rears 86 00:04:40,440 --> 00:04:43,080 Speaker 1: its head and some of the januous tips related lawsuits 87 00:04:43,120 --> 00:04:45,520 Speaker 1: against Trump himself. I mean, I think DJ now has 88 00:04:45,600 --> 00:04:47,880 Speaker 1: left itself the ability to argue I think in both 89 00:04:47,920 --> 00:04:50,560 Speaker 1: directions on that one. Do you think that the Justice 90 00:04:50,600 --> 00:04:55,360 Speaker 1: Department intervening over the years in these cases has made 91 00:04:55,440 --> 00:05:00,240 Speaker 1: it harder for courts to hold government employees account doable 92 00:05:00,360 --> 00:05:04,000 Speaker 1: for wrongdoing? Absolutely? I mean, I think d J has 93 00:05:04,040 --> 00:05:07,800 Speaker 1: historically taken a very broad and capacious understanding of the 94 00:05:07,920 --> 00:05:10,320 Speaker 1: term scope of employment within the Westball app. The case 95 00:05:10,400 --> 00:05:12,680 Speaker 1: it always stands out to me about this June is 96 00:05:12,680 --> 00:05:15,240 Speaker 1: a Guantanamo torture case where d o J took the 97 00:05:15,279 --> 00:05:18,840 Speaker 1: position that torture of a detainee was within the scope 98 00:05:18,920 --> 00:05:21,640 Speaker 1: of d o D officials employment torture, which can never 99 00:05:21,680 --> 00:05:23,640 Speaker 1: be legal. It's hard for me to see how that 100 00:05:23,680 --> 00:05:26,039 Speaker 1: could therefore otherwise be within the scope of employment and 101 00:05:26,080 --> 00:05:30,760 Speaker 1: their institutional reasons. June why politics aside, d j's interests 102 00:05:30,880 --> 00:05:35,000 Speaker 1: invariably tilted in favor of defending officers of a certain 103 00:05:35,120 --> 00:05:38,200 Speaker 1: broad understanding what scope employment means. That's part of why 104 00:05:38,240 --> 00:05:42,520 Speaker 1: I wasn't surprised that d J did certify President Trump 105 00:05:42,600 --> 00:05:45,080 Speaker 1: in the Gene Carrol case. But there is a stopping point, 106 00:05:45,160 --> 00:05:47,840 Speaker 1: and I think that what Congressman Brooks is accused of 107 00:05:47,839 --> 00:05:50,760 Speaker 1: doing on January six, if that were within the scope 108 00:05:50,760 --> 00:05:53,320 Speaker 1: of these employment then it's hard to imagine what wouldn't be. 109 00:05:53,520 --> 00:05:55,680 Speaker 1: Folks may not like where d J has drawn the 110 00:05:55,680 --> 00:05:58,200 Speaker 1: line between these two cases. I actually think, at least 111 00:05:58,200 --> 00:06:01,719 Speaker 1: based on DJ's historical approach to this context, that distinction 112 00:06:01,839 --> 00:06:04,280 Speaker 1: makes a lot of sense. Has the Supreme Court or 113 00:06:04,440 --> 00:06:07,320 Speaker 1: have circuit courts ruled on this, sure, I mean there 114 00:06:07,360 --> 00:06:10,080 Speaker 1: are tons of decisions about what scope of employment is 115 00:06:10,279 --> 00:06:12,000 Speaker 1: and intentionally pretty broad. I mean there's a d C 116 00:06:12,080 --> 00:06:15,800 Speaker 1: Scircuit case that then Circuit Judge kavanat Road where the 117 00:06:15,839 --> 00:06:18,000 Speaker 1: Court held it at least under d C law. So 118 00:06:18,080 --> 00:06:20,480 Speaker 1: for officers who are operating within the District of Columbia, 119 00:06:20,680 --> 00:06:23,160 Speaker 1: scope of employment is almost can amount to gist, are 120 00:06:23,200 --> 00:06:25,520 Speaker 1: you on the job to heck with whether you had 121 00:06:25,560 --> 00:06:27,640 Speaker 1: any legal authority for doing what you were doing, or 122 00:06:27,680 --> 00:06:29,600 Speaker 1: you wearing your uniform at the time you did it. 123 00:06:30,000 --> 00:06:32,320 Speaker 1: So there's a ton of Paseball about the west Ball 124 00:06:32,320 --> 00:06:35,039 Speaker 1: app because this comes up a lot. Obviously there's less 125 00:06:35,040 --> 00:06:37,440 Speaker 1: pace law involving members of Congress and the president, but 126 00:06:37,440 --> 00:06:39,719 Speaker 1: at least remembers of Congress, there's more than none. There's 127 00:06:39,720 --> 00:06:42,400 Speaker 1: an important DC circuit case from the early two thousand's 128 00:06:42,440 --> 00:06:44,840 Speaker 1: about a member of Congress acting within the scope of 129 00:06:44,920 --> 00:06:47,960 Speaker 1: employment when he defamed um. There was a trick and 130 00:06:48,000 --> 00:06:51,000 Speaker 1: he defamed one of the alleged participants, and the claim 131 00:06:51,040 --> 00:06:52,320 Speaker 1: was how could that have anything to do with his 132 00:06:52,400 --> 00:06:54,240 Speaker 1: job at The member of Congress in the court said, well, 133 00:06:54,520 --> 00:06:57,040 Speaker 1: he did it well, speaking to a reporter on Capitol 134 00:06:57,120 --> 00:07:00,480 Speaker 1: Hill as part of a presribution. That's how brass cases are. 135 00:07:00,560 --> 00:07:02,880 Speaker 1: That's why I think the OJ's behavior in the Trump 136 00:07:02,880 --> 00:07:05,480 Speaker 1: cases so far has not been that surprising. What's your 137 00:07:05,520 --> 00:07:09,640 Speaker 1: take on Trump's defense in the Capital Riot suit Absolute 138 00:07:09,680 --> 00:07:13,840 Speaker 1: presidential immunity and nick and verss Gerald The Supreme Court said, Yes, 139 00:07:13,920 --> 00:07:16,679 Speaker 1: presidents are entitled to apps for the immunity for any 140 00:07:17,200 --> 00:07:20,760 Speaker 1: conduct while they are presidents that falls within the outer 141 00:07:20,920 --> 00:07:23,440 Speaker 1: perimeter of their officialty. And so I think it comes 142 00:07:23,480 --> 00:07:27,120 Speaker 1: down to whether President Trump's January six speech and his 143 00:07:27,240 --> 00:07:30,720 Speaker 1: other conduct on January six could plausibly said to be 144 00:07:30,800 --> 00:07:32,760 Speaker 1: within the outer perimeter of his official duties. And I 145 00:07:32,840 --> 00:07:36,000 Speaker 1: think there are large swaps of President Trump content on 146 00:07:36,080 --> 00:07:39,040 Speaker 1: January sixs that clearly are and will be deempity, but 147 00:07:39,080 --> 00:07:41,160 Speaker 1: I'm not sure all that will be. For example, the 148 00:07:41,200 --> 00:07:43,720 Speaker 1: tweets he sent in the afternoon, it did not in 149 00:07:43,840 --> 00:07:47,760 Speaker 1: fact actually tell people, at least initially to stand out 150 00:07:47,840 --> 00:07:49,200 Speaker 1: and go home. I mean, I think it's going to 151 00:07:49,280 --> 00:07:50,520 Speaker 1: be a close call. I think it's going to be 152 00:07:50,600 --> 00:07:52,560 Speaker 1: sort of some of it's protested, but not all of it. 153 00:07:52,640 --> 00:07:54,040 Speaker 1: But I think that's where the fight is going to be, 154 00:07:54,200 --> 00:07:58,160 Speaker 1: not the West ballot. Can Trump in the future ask 155 00:07:58,200 --> 00:08:03,320 Speaker 1: the Justice Department to certify him under the West Fall Act, Yeah, 156 00:08:03,320 --> 00:08:07,040 Speaker 1: I mean he can ask j to certify um. And 157 00:08:07,080 --> 00:08:09,600 Speaker 1: there's a procedure in the West Blast where's DOJ declines 158 00:08:09,640 --> 00:08:11,840 Speaker 1: to certify, he can ask the court to do it. 159 00:08:12,080 --> 00:08:14,480 Speaker 1: And so you know, that's also something that Congressman Brooks 160 00:08:14,600 --> 00:08:17,720 Speaker 1: might now do the West Box. Interestingly, it does not 161 00:08:17,880 --> 00:08:20,240 Speaker 1: impose a time limit on when such a request has 162 00:08:20,280 --> 00:08:22,800 Speaker 1: to be made, so it's still possible that the West 163 00:08:22,800 --> 00:08:25,040 Speaker 1: Ballast issue is going to have to be litigated in 164 00:08:25,080 --> 00:08:27,320 Speaker 1: the Trump case as well. I just think that's a 165 00:08:27,400 --> 00:08:30,960 Speaker 1: much stronger argument that Trump will have is the Nixton 166 00:08:31,040 --> 00:08:34,480 Speaker 1: versus the child argument, which is really gonna require courts 167 00:08:34,480 --> 00:08:37,200 Speaker 1: to sort of break apart different things that he said 168 00:08:37,240 --> 00:08:40,160 Speaker 1: and did leading up to and on January six and 169 00:08:40,280 --> 00:08:46,040 Speaker 1: deciding to represent Trump in the defamation case. I mean, 170 00:08:46,080 --> 00:08:49,080 Speaker 1: the Justice Department really didn't have to do that because 171 00:08:49,080 --> 00:08:52,840 Speaker 1: the judge had already rejected the west Fall Act for 172 00:08:53,040 --> 00:08:57,240 Speaker 1: Trump there and hadn't it's not appeal Well, so it 173 00:08:57,240 --> 00:08:59,559 Speaker 1: hasn't sinful I mean, so it hasn't sinfully litigated. Sod 174 00:08:59,760 --> 00:09:03,680 Speaker 1: J made the west Fall a certification and then the 175 00:09:03,720 --> 00:09:06,320 Speaker 1: court rejected it, and so that's what's being appealed, right. 176 00:09:06,360 --> 00:09:11,680 Speaker 1: The District Court refused to accept the OJ certification um 177 00:09:11,960 --> 00:09:14,520 Speaker 1: in the in the Carol case. That's what the second 178 00:09:14,800 --> 00:09:16,839 Speaker 1: is not considering whether the distrec Court was wrong to 179 00:09:16,920 --> 00:09:20,000 Speaker 1: reject case, whether it should have been accepted. Let's say 180 00:09:20,040 --> 00:09:24,280 Speaker 1: Trump asks for certification under the west Fall Act in 181 00:09:24,320 --> 00:09:29,040 Speaker 1: the Capital Riot cases. What kind of argument could the 182 00:09:29,200 --> 00:09:34,920 Speaker 1: Justice Department make to distinguish the Capital Riot case from 183 00:09:35,000 --> 00:09:38,360 Speaker 1: the defamation case where they agreed to defend him since 184 00:09:38,400 --> 00:09:41,480 Speaker 1: I think the biggest difference is the context June, where 185 00:09:41,920 --> 00:09:45,160 Speaker 1: in the Carol case the defamation claim arises out of 186 00:09:45,280 --> 00:09:48,760 Speaker 1: common Trump made is as part of the press gaggle, 187 00:09:49,200 --> 00:09:53,520 Speaker 1: where he was answering questions in his capacity as president. Now, 188 00:09:53,840 --> 00:09:55,280 Speaker 1: I think there are plenty folks who still think that 189 00:09:55,320 --> 00:09:58,560 Speaker 1: should not be enough, that just because he's answering questions 190 00:09:58,559 --> 00:10:01,880 Speaker 1: doesn't free him from liability for things that have nothing 191 00:10:01,920 --> 00:10:03,880 Speaker 1: to do with the discharge of his duties as president. 192 00:10:04,280 --> 00:10:06,480 Speaker 1: But that's the argument in that case, And I think 193 00:10:06,520 --> 00:10:09,280 Speaker 1: the argument here would be, you know, the president inciting 194 00:10:09,400 --> 00:10:14,520 Speaker 1: violent protests to disrupt the certification of his electoral defeat 195 00:10:14,960 --> 00:10:18,959 Speaker 1: is not remotely within the scope of his official duties 196 00:10:18,960 --> 00:10:21,240 Speaker 1: to nearly the same extent as answering questions in the 197 00:10:21,320 --> 00:10:23,480 Speaker 1: press gradually, you know, I think there are folks who 198 00:10:23,480 --> 00:10:25,240 Speaker 1: are going to think that both cases come out the 199 00:10:25,240 --> 00:10:28,240 Speaker 1: same way, whether for Trump or against him. I just 200 00:10:28,240 --> 00:10:32,240 Speaker 1: think that there's plausible defense to seeing them as different 201 00:10:32,280 --> 00:10:36,840 Speaker 1: in that respect. The House also refused to defend Brooks. 202 00:10:37,600 --> 00:10:40,240 Speaker 1: Is that their own kind of analysis that goes on 203 00:10:40,400 --> 00:10:43,520 Speaker 1: It's not a west fall Aft analysis, No, that's I mean, 204 00:10:43,520 --> 00:10:45,840 Speaker 1: that's sort of the from the Houses. So the Westball 205 00:10:45,880 --> 00:10:48,720 Speaker 1: access is purely about d o J's position, And indeed 206 00:10:48,720 --> 00:10:50,640 Speaker 1: the Act is quite specific about the role of the 207 00:10:50,679 --> 00:10:53,680 Speaker 1: Attorney General and the role of the Justice Department. The 208 00:10:53,760 --> 00:10:56,280 Speaker 1: House is the House. That's more from the perspective from 209 00:10:56,320 --> 00:10:59,640 Speaker 1: the from the House rule purposes. Is this the case 210 00:10:59,679 --> 00:11:03,160 Speaker 1: where book should be represented by House lawyers as opposed 211 00:11:03,200 --> 00:11:07,480 Speaker 1: to private lawyers. There's actually nothing formal legally that turns 212 00:11:07,520 --> 00:11:10,720 Speaker 1: on whether he's represented by House lawyers or not. Um, 213 00:11:10,720 --> 00:11:12,680 Speaker 1: that's more just the question of who pays a legal bill. 214 00:11:13,160 --> 00:11:17,280 Speaker 1: The Select Committee wants to obtain all the communications at 215 00:11:17,320 --> 00:11:21,760 Speaker 1: the White House and conversations with Trump that occurred surrounding 216 00:11:21,880 --> 00:11:26,880 Speaker 1: January six, and the Justice Department formally declined to assert 217 00:11:27,000 --> 00:11:32,280 Speaker 1: executive privilege over testimony related to January six. What does 218 00:11:32,320 --> 00:11:35,200 Speaker 1: that do? Because I think that the head of the committee, 219 00:11:35,679 --> 00:11:40,079 Speaker 1: Congressman Thompson, said that it will make things easier for them, 220 00:11:40,240 --> 00:11:44,000 Speaker 1: and I'm just wondering if it really will make things easier, well, 221 00:11:44,040 --> 00:11:46,679 Speaker 1: I mean sons easier in the sense that you know, 222 00:11:46,720 --> 00:11:49,600 Speaker 1: presumably there will be no one who has the standings 223 00:11:50,040 --> 00:11:53,880 Speaker 1: to assert a privilege claim. The problem that I foresee 224 00:11:53,960 --> 00:11:56,360 Speaker 1: is the you know, the House still has to have 225 00:11:56,520 --> 00:12:00,679 Speaker 1: some mechanism for compelling compliance with the is issued by 226 00:12:00,720 --> 00:12:03,000 Speaker 1: the Select Committee, and it seems like the only way 227 00:12:03,040 --> 00:12:04,840 Speaker 1: to do that is to go to court um. And 228 00:12:04,920 --> 00:12:07,680 Speaker 1: so you know, once you have the Select Committee trying 229 00:12:07,679 --> 00:12:11,960 Speaker 1: to enforce subpoenas against calcitured witnesses, yes, there will be 230 00:12:12,000 --> 00:12:15,160 Speaker 1: no good privilege defense because the OJ is not a 231 00:12:15,200 --> 00:12:18,640 Speaker 1: certain privilege, but it will still take some time, you know, 232 00:12:18,760 --> 00:12:22,040 Speaker 1: and it will still require courts to actually hold that 233 00:12:22,200 --> 00:12:24,880 Speaker 1: there's no privilege defense, a matter that of course could 234 00:12:24,880 --> 00:12:27,400 Speaker 1: itself be appealed. So I guess I'm I'm a little 235 00:12:27,400 --> 00:12:29,960 Speaker 1: more circumspect about how quickly that's going to go and 236 00:12:30,000 --> 00:12:33,640 Speaker 1: how effectively the Committee will be able to enforce subpoenas, 237 00:12:33,720 --> 00:12:37,000 Speaker 1: at least against private actors. Of course, I think subpoenas 238 00:12:37,040 --> 00:12:38,920 Speaker 1: to the executive branch, it sounds like, are going to 239 00:12:39,000 --> 00:12:41,679 Speaker 1: be generally complied with. And that may be what Congressman 240 00:12:41,679 --> 00:12:44,280 Speaker 1: Thompson me is when talking about how much easier it's 241 00:12:44,280 --> 00:12:47,760 Speaker 1: going to go. So you think that if the subpoena 242 00:12:47,880 --> 00:12:53,960 Speaker 1: let's say former Attorney General Bill Barr, that he'll comply. No, Actually, 243 00:12:54,000 --> 00:12:55,880 Speaker 1: I'm not sure that if the former Jurney will comply. 244 00:12:56,080 --> 00:12:57,600 Speaker 1: I think there will be at least some effort by 245 00:12:57,720 --> 00:13:00,240 Speaker 1: private by people who are now private parties. You can 246 00:13:00,280 --> 00:13:03,199 Speaker 1: test these subpoenas and courts even if they are unsuccessful. 247 00:13:03,240 --> 00:13:06,880 Speaker 1: I think the reason why, from the perspective of Commerson Thompson, 248 00:13:06,920 --> 00:13:09,040 Speaker 1: that may not be that a good deal. It's because 249 00:13:09,280 --> 00:13:12,079 Speaker 1: if the Biden administration is going to comply, then it 250 00:13:12,120 --> 00:13:14,679 Speaker 1: may not need that much assistance from those former officials. 251 00:13:14,720 --> 00:13:17,800 Speaker 1: Then it might have everything that needs on government servers 252 00:13:18,040 --> 00:13:21,640 Speaker 1: right in the possession of the current executive branch. Right 253 00:13:21,679 --> 00:13:23,960 Speaker 1: because what did he take about two years to get 254 00:13:24,040 --> 00:13:27,920 Speaker 1: former White House Counsel Don McGan to testify after he 255 00:13:28,080 --> 00:13:31,480 Speaker 1: was no longer the White House counsel? I mean, And 256 00:13:31,480 --> 00:13:34,240 Speaker 1: so I think with private witnesses, it's not hard to 257 00:13:34,240 --> 00:13:37,079 Speaker 1: imagine how that history repeats itself. The big difference is 258 00:13:37,120 --> 00:13:39,480 Speaker 1: that those private witnesses won't be nearly essential to the 259 00:13:39,520 --> 00:13:41,960 Speaker 1: inquiry in a contest in which you have the Justice 260 00:13:42,000 --> 00:13:43,960 Speaker 1: Department and a White House that are willing to cooperate. 261 00:13:44,559 --> 00:13:47,760 Speaker 1: Thanks Steve. That's Professor Stephen Vladdock of the University of 262 00:13:47,840 --> 00:13:54,240 Speaker 1: Texas Law School. Affirmative action was first introduced into this 263 00:13:54,360 --> 00:13:57,200 Speaker 1: country sixty years ago, but it remains one of the 264 00:13:57,240 --> 00:14:01,760 Speaker 1: most contentious issues, constantly little gated and discussed, as in 265 00:14:01,800 --> 00:14:05,199 Speaker 1: the Netflix series Dear White People. Hey, look, you guys 266 00:14:05,200 --> 00:14:10,240 Speaker 1: still got affirmative action. I'm sorry, what exactly are you 267 00:14:10,280 --> 00:14:16,440 Speaker 1: doing here? Alright? Obama right, leader of the free world. 268 00:14:16,520 --> 00:14:22,120 Speaker 1: He gets into Harvard based on you too late affirmative action. 269 00:14:22,680 --> 00:14:26,120 Speaker 1: You know he's not president right now, the guy who 270 00:14:26,200 --> 00:14:29,000 Speaker 1: didn't get in. The goal of the group, Students for 271 00:14:29,160 --> 00:14:33,160 Speaker 1: Fair Admissions is to eliminate race in college admissions decisions. 272 00:14:33,680 --> 00:14:36,160 Speaker 1: S f f A is behind the cases challenging the 273 00:14:36,200 --> 00:14:40,280 Speaker 1: consideration of race and admissions at Harvard, Yale, the University 274 00:14:40,280 --> 00:14:43,680 Speaker 1: of North Carolina, and the University of Texas at Austin. 275 00:14:43,960 --> 00:14:47,040 Speaker 1: But a Texas federal judge has just tossed the case 276 00:14:47,080 --> 00:14:50,280 Speaker 1: against U T. Austin, ruling that the issues had already 277 00:14:50,320 --> 00:14:53,320 Speaker 1: been decided in the famous case of Fisher versus the 278 00:14:53,400 --> 00:14:56,720 Speaker 1: University of Texas at Austin, which the group was behind 279 00:14:57,000 --> 00:15:00,680 Speaker 1: and which reached the Supreme Court twice, which reached the 280 00:15:00,720 --> 00:15:04,920 Speaker 1: Supreme Court twice. Joining me is Andrey Anderson, head of 281 00:15:04,920 --> 00:15:08,880 Speaker 1: the Higher Education practice at Bassbarian SIMS tell us about 282 00:15:08,960 --> 00:15:14,120 Speaker 1: this case. In this case June, it was a second 283 00:15:14,200 --> 00:15:17,760 Speaker 1: case that had been brought against the University of Texas 284 00:15:17,840 --> 00:15:24,160 Speaker 1: at Austin challenging their race conscious admissions policies for undergraduate students. 285 00:15:24,640 --> 00:15:27,920 Speaker 1: The University of Texas had been sued earlier in the 286 00:15:28,000 --> 00:15:31,320 Speaker 1: two thousand and eight two thousand nine time frame about 287 00:15:31,400 --> 00:15:34,520 Speaker 1: their race conscious student admissions policies in that case went 288 00:15:34,520 --> 00:15:37,080 Speaker 1: all the way to the Supreme Court, not once, but twice. 289 00:15:38,160 --> 00:15:41,320 Speaker 1: This suit was a follow on suit that was filed 290 00:15:41,880 --> 00:15:45,440 Speaker 1: within the last couple of years challenging those student admissions 291 00:15:45,440 --> 00:15:51,520 Speaker 1: practices again. Had the admissions practices changed at the University 292 00:15:51,560 --> 00:15:54,480 Speaker 1: of Texas since the Fisher case, Well, that was one 293 00:15:54,520 --> 00:15:57,480 Speaker 1: of the things that the parties in this case disputed 294 00:15:57,560 --> 00:16:00,760 Speaker 1: a little bit. But no, the University Texas had not 295 00:16:00,880 --> 00:16:03,120 Speaker 1: come out and said, oh, we're putting out a new 296 00:16:03,200 --> 00:16:08,440 Speaker 1: students admissions program. We're doing something different, and that caused 297 00:16:08,440 --> 00:16:10,800 Speaker 1: the point of to say, oh, well, we're going to 298 00:16:10,960 --> 00:16:16,000 Speaker 1: challenge this new program. The real reason that the plane 299 00:16:16,080 --> 00:16:19,800 Speaker 1: of that the Students for Fair Admissions group challenged the 300 00:16:19,880 --> 00:16:23,960 Speaker 1: University of Texas admissions policies again is likely that there 301 00:16:24,040 --> 00:16:25,800 Speaker 1: was a change in the people who are now on 302 00:16:25,880 --> 00:16:29,720 Speaker 1: the Supreme Court now as opposed to when they lost 303 00:16:29,840 --> 00:16:33,680 Speaker 1: their earlier suit against the University of Texas. That is 304 00:16:33,720 --> 00:16:36,560 Speaker 1: almost certainly what caused f f f A to bring 305 00:16:36,640 --> 00:16:40,360 Speaker 1: this second suit. Tell us about the Fisher case that 306 00:16:40,400 --> 00:16:43,560 Speaker 1: went to the Supreme Court twice. What happened. Yeah, So, 307 00:16:43,640 --> 00:16:46,200 Speaker 1: in in the Fisher case, it was brought by an 308 00:16:46,240 --> 00:16:49,880 Speaker 1: individual plane I Abigail Fisher, a white woman, who was 309 00:16:49,960 --> 00:16:54,240 Speaker 1: denied admission to the University of Texas, and she alleged 310 00:16:54,280 --> 00:16:58,600 Speaker 1: at the University of Texas admissions program, which does consider 311 00:16:58,760 --> 00:17:01,800 Speaker 1: race in a very limited way as part of a 312 00:17:01,960 --> 00:17:07,480 Speaker 1: holistic review of student applications, that that consideration of race 313 00:17:07,640 --> 00:17:11,639 Speaker 1: violated the Equal Protection Clause. And the Supreme Court looked 314 00:17:11,640 --> 00:17:14,560 Speaker 1: at that case two times. The first time they said 315 00:17:14,600 --> 00:17:18,040 Speaker 1: that the lower courts had used the wrong standards in 316 00:17:18,440 --> 00:17:23,680 Speaker 1: saying that the admissions program was constitutional, So they said, 317 00:17:23,880 --> 00:17:26,399 Speaker 1: use the wrong standards, look at it again. The lower 318 00:17:26,440 --> 00:17:28,880 Speaker 1: courts looked at it again and said, hey, we still 319 00:17:28,920 --> 00:17:31,520 Speaker 1: think this is constitutional. The Supreme Court looked at it 320 00:17:31,600 --> 00:17:35,119 Speaker 1: a second time, and in two thousand sixteen, by a 321 00:17:35,240 --> 00:17:39,320 Speaker 1: five four vote, held that the University of Texas is 322 00:17:39,600 --> 00:17:45,680 Speaker 1: race conscious admissions program was constitutional, and I was surprised 323 00:17:45,720 --> 00:17:48,920 Speaker 1: to learn that Abigail Fisher is also an officer and 324 00:17:49,119 --> 00:17:54,639 Speaker 1: board member of Students for Fair Admissions. Yes, what was 325 00:17:54,680 --> 00:17:57,240 Speaker 1: going on behind the scenes with all of this is 326 00:17:57,880 --> 00:18:04,040 Speaker 1: uh wealthy businessman Edward Blum, who really was the moving 327 00:18:04,160 --> 00:18:09,399 Speaker 1: force behind the Fisher case. He knew Abigail Fisher's father, 328 00:18:10,240 --> 00:18:14,320 Speaker 1: and as he was thinking about ways that he could 329 00:18:14,480 --> 00:18:19,560 Speaker 1: challenge race conscious admissions programs and universities in America, he 330 00:18:19,840 --> 00:18:23,119 Speaker 1: found out that Abigail had been denied admissions to the 331 00:18:23,200 --> 00:18:25,840 Speaker 1: University of Texas, and he decided she would be a 332 00:18:25,880 --> 00:18:30,240 Speaker 1: wonderful plaintiff and Texas would be a wonderful school to sue. 333 00:18:31,000 --> 00:18:35,240 Speaker 1: So he bankrolled the Fisher litigation. He chose the lawyers, 334 00:18:35,600 --> 00:18:38,719 Speaker 1: he helped with the strategy, and then when they lost 335 00:18:38,760 --> 00:18:44,280 Speaker 1: in Fisher, they started this organization called Students for Fair Admissions. 336 00:18:44,359 --> 00:18:48,960 Speaker 1: The original board members were Edward Blum, Abigail Fisher, and 337 00:18:49,040 --> 00:18:51,919 Speaker 1: her father, Robert Fisher. That was the original board of 338 00:18:51,920 --> 00:18:57,639 Speaker 1: the organization, and they then started looking for schools across 339 00:18:57,680 --> 00:19:01,600 Speaker 1: the country that could be sued to further their goal 340 00:19:01,960 --> 00:19:05,840 Speaker 1: of eventual Supreme Court holding that race may not be 341 00:19:05,960 --> 00:19:11,320 Speaker 1: considered by universities in America for purposes of their undergraduate 342 00:19:11,440 --> 00:19:15,320 Speaker 1: or any kind of admissions. So let's talk about the 343 00:19:15,359 --> 00:19:20,040 Speaker 1: court's findings first on the standing issue. Yeah, So, a 344 00:19:20,200 --> 00:19:23,080 Speaker 1: standing is a concept that we have in the United 345 00:19:23,119 --> 00:19:27,320 Speaker 1: States legal system that you cannot bring a lawsuit unless 346 00:19:27,359 --> 00:19:31,320 Speaker 1: you have actually been injured by something that the defendant, 347 00:19:31,359 --> 00:19:35,240 Speaker 1: the person you're doing, has done. And for the suit 348 00:19:35,280 --> 00:19:38,000 Speaker 1: we're talking about here, it was brought by the organization 349 00:19:38,200 --> 00:19:43,879 Speaker 1: Students for Fair Admissions UM that Blum has created. So 350 00:19:43,960 --> 00:19:48,680 Speaker 1: when you're looking at membership organization, which a s f 351 00:19:48,680 --> 00:19:51,879 Speaker 1: f A says it is, they now have members, people 352 00:19:51,880 --> 00:19:54,679 Speaker 1: who have joined the organization who say that, yes, we 353 00:19:54,760 --> 00:19:57,280 Speaker 1: are all in favor of getting rid of the consideration 354 00:19:57,320 --> 00:20:00,440 Speaker 1: of race in college admissions, and they've ay a five 355 00:20:00,480 --> 00:20:03,280 Speaker 1: dollar membership B. When you have an organization like that, 356 00:20:03,640 --> 00:20:07,360 Speaker 1: like then double a CP, the organization can sue if 357 00:20:07,400 --> 00:20:10,360 Speaker 1: they can show that any one of their members has 358 00:20:10,440 --> 00:20:15,160 Speaker 1: been injured by the actions of the defendants. So that's 359 00:20:15,160 --> 00:20:17,080 Speaker 1: how s f f A was bringing the suit. We 360 00:20:17,119 --> 00:20:19,480 Speaker 1: have members. They said two of their members were white 361 00:20:20,080 --> 00:20:23,000 Speaker 1: men who had applied to Texas and been denied admission. 362 00:20:23,800 --> 00:20:26,960 Speaker 1: The university said, hey, wait a minute. First of all, 363 00:20:27,240 --> 00:20:31,080 Speaker 1: you're not really a membership organization. You say you have 364 00:20:31,160 --> 00:20:34,280 Speaker 1: these members, but they're not real members. And they made 365 00:20:34,280 --> 00:20:38,479 Speaker 1: a very technical argument based on um the by laws 366 00:20:38,520 --> 00:20:42,040 Speaker 1: of the organization and the state law that the organization 367 00:20:42,200 --> 00:20:46,720 Speaker 1: is organized under in Virginia, and the court denied that, 368 00:20:46,960 --> 00:20:51,720 Speaker 1: as other courts have denied that argument. They said, no, 369 00:20:52,200 --> 00:20:54,879 Speaker 1: we are going to look at this in a practical way. 370 00:20:54,920 --> 00:20:59,440 Speaker 1: They put forward proof that they really are a membership organization, 371 00:20:59,560 --> 00:21:03,399 Speaker 1: so we are going to allow them to bring this suit. 372 00:21:03,680 --> 00:21:07,800 Speaker 1: I think from a practical perspective, many of these universities say, hey, 373 00:21:07,840 --> 00:21:11,679 Speaker 1: this is really just one guy, Edward Blum, who's on 374 00:21:11,760 --> 00:21:14,960 Speaker 1: this quest to get rid of race conscious admissions, and 375 00:21:15,000 --> 00:21:19,800 Speaker 1: he's kind of twisting this concept of a membership organization 376 00:21:19,880 --> 00:21:23,400 Speaker 1: in order to work his will. And so that standing 377 00:21:23,400 --> 00:21:26,440 Speaker 1: concept has been brought up in I think every one 378 00:21:26,480 --> 00:21:28,960 Speaker 1: of these suits that s f f A has brought, 379 00:21:29,040 --> 00:21:32,280 Speaker 1: and so far it's been denied. Every court has said no, 380 00:21:32,359 --> 00:21:34,199 Speaker 1: we're going to treat f f f A as a 381 00:21:34,240 --> 00:21:38,240 Speaker 1: real membership organization. So that was no surprise that they 382 00:21:38,280 --> 00:21:41,480 Speaker 1: were allowed to go forward and say you have standing 383 00:21:41,560 --> 00:21:44,399 Speaker 1: to bring this lawsuits. Why did the court dismiss the 384 00:21:44,440 --> 00:21:47,960 Speaker 1: case on the grounds of race judicata. Yeah, the other 385 00:21:48,040 --> 00:21:51,960 Speaker 1: concept has a fancy or a Latin word race judicata, 386 00:21:52,400 --> 00:21:55,480 Speaker 1: but it's a very practical concept that says, look, the 387 00:21:55,640 --> 00:22:00,600 Speaker 1: courts are not going to decide the same lawsuit two times. 388 00:22:01,359 --> 00:22:03,040 Speaker 1: We have too much to do. We're not going to 389 00:22:03,200 --> 00:22:06,240 Speaker 1: decide something a second time. So what you have to 390 00:22:06,400 --> 00:22:10,719 Speaker 1: prove to show race judicata is that the parties in 391 00:22:10,800 --> 00:22:14,320 Speaker 1: front of you this second time are the same parties 392 00:22:15,040 --> 00:22:18,280 Speaker 1: or are what we call the law in privity with 393 00:22:18,359 --> 00:22:21,359 Speaker 1: one another. Maybe they aren't the same parties that were 394 00:22:21,400 --> 00:22:24,360 Speaker 1: in the first lawsuit, but they nonetheless had some kind 395 00:22:24,400 --> 00:22:28,840 Speaker 1: of control over the first lawsuit enough to say that, look, 396 00:22:29,200 --> 00:22:32,000 Speaker 1: you had an ability to have your rights heard in 397 00:22:32,040 --> 00:22:36,680 Speaker 1: that first lawsuit, And were the claims in the first 398 00:22:36,760 --> 00:22:40,720 Speaker 1: lawsuit actually the same as the claims in the second lawsuit. 399 00:22:41,280 --> 00:22:43,639 Speaker 1: If we can find that it's the same parties or 400 00:22:43,680 --> 00:22:46,840 Speaker 1: the parties were in privity in both suits, and that 401 00:22:46,920 --> 00:22:49,240 Speaker 1: the claims are the same in both suits, we're not 402 00:22:49,280 --> 00:22:52,040 Speaker 1: going to hear the second suit. We've already done this. 403 00:22:52,800 --> 00:22:56,320 Speaker 1: So that's what was really an issue in the university's 404 00:22:56,440 --> 00:22:59,359 Speaker 1: motion for summary judgment. That's how you bring one of 405 00:22:59,359 --> 00:23:03,399 Speaker 1: these motions before the court. And the court here found 406 00:23:03,560 --> 00:23:06,919 Speaker 1: that this second suit should be dismissed based on the 407 00:23:06,960 --> 00:23:12,680 Speaker 1: principles of race judicata. So the court found that s 408 00:23:12,840 --> 00:23:17,080 Speaker 1: f f A was in privity with Abigail Fisher in 409 00:23:17,119 --> 00:23:20,600 Speaker 1: their first lawsuit. And they found that based on some 410 00:23:20,760 --> 00:23:23,399 Speaker 1: of the facts I was spinning out before that. Edward 411 00:23:23,440 --> 00:23:27,320 Speaker 1: Blom is the president of s f f A. He's 412 00:23:27,359 --> 00:23:29,560 Speaker 1: one of the board members. Abigail Fisher is one of 413 00:23:29,600 --> 00:23:31,919 Speaker 1: the board members. Her father is a third board member. 414 00:23:32,280 --> 00:23:35,160 Speaker 1: There are two other board members. But the court said 415 00:23:35,200 --> 00:23:38,560 Speaker 1: that the three board members, Abigail, her father, and Edward 416 00:23:38,640 --> 00:23:41,920 Speaker 1: Blum really had effective control over s f f A 417 00:23:42,080 --> 00:23:45,400 Speaker 1: and what it does, especially when it comes to litigation efforts. 418 00:23:45,440 --> 00:23:47,639 Speaker 1: And they said, those are the three people who also 419 00:23:47,800 --> 00:23:51,000 Speaker 1: controlled what happened in the Abigail Fisher case. So the 420 00:23:51,080 --> 00:23:53,760 Speaker 1: parties were in privity with one another. And of course 421 00:23:53,800 --> 00:23:56,720 Speaker 1: the defendants are the same. The University of Texas at 422 00:23:56,720 --> 00:23:58,720 Speaker 1: Austin was the defendant in the first case is the 423 00:23:58,760 --> 00:24:03,160 Speaker 1: defendant in the second case. So the court found, all right, 424 00:24:03,160 --> 00:24:05,240 Speaker 1: we've got the same parties or their in privity with 425 00:24:05,280 --> 00:24:08,520 Speaker 1: one another. Now the second question is are we looking 426 00:24:08,560 --> 00:24:12,280 Speaker 1: at the same claims. Well, the point of made that 427 00:24:12,400 --> 00:24:15,600 Speaker 1: kind of easy for the court because the complaint in 428 00:24:15,640 --> 00:24:18,600 Speaker 1: the second case looked very similar to the complaint in 429 00:24:18,600 --> 00:24:21,320 Speaker 1: the first case in terms of what they were complaining about. 430 00:24:22,200 --> 00:24:24,760 Speaker 1: S F F f A said, well, we're not complaining 431 00:24:24,800 --> 00:24:27,439 Speaker 1: about the same thing because some of the facts have 432 00:24:27,640 --> 00:24:32,480 Speaker 1: changed in the intervening ten years. They said that the 433 00:24:32,600 --> 00:24:36,160 Speaker 1: University of Texas didn't use the same kind of language 434 00:24:36,280 --> 00:24:40,280 Speaker 1: to describe its use of race. So whereas in two 435 00:24:40,280 --> 00:24:43,240 Speaker 1: thousand eight when Abigail Fisher was suing, they just said 436 00:24:43,280 --> 00:24:47,760 Speaker 1: that race was a consideration, now in two thousand eighteen, 437 00:24:47,840 --> 00:24:51,400 Speaker 1: two thousand nineteen they said it was a significant consideration. 438 00:24:52,000 --> 00:24:54,800 Speaker 1: The court said, that's just semantics. You haven't pointed to 439 00:24:54,840 --> 00:24:58,520 Speaker 1: anything they're really doing differently. And then the plants also 440 00:24:58,600 --> 00:25:01,480 Speaker 1: pointed out, well, the state of research has really changed. 441 00:25:01,520 --> 00:25:04,440 Speaker 1: One of the things you have to prove if your university, 442 00:25:04,520 --> 00:25:08,679 Speaker 1: in order to show that your program meets constitutional standards 443 00:25:08,760 --> 00:25:10,720 Speaker 1: is you have to prove that you do not have 444 00:25:11,240 --> 00:25:15,359 Speaker 1: race neutral options available to you that will get you 445 00:25:15,400 --> 00:25:18,560 Speaker 1: the same level of diversity and S f f A said, look, 446 00:25:18,680 --> 00:25:20,919 Speaker 1: there's all sorts of research that's been done in the 447 00:25:20,960 --> 00:25:24,280 Speaker 1: ten years between the two suits that show that there 448 00:25:24,320 --> 00:25:28,520 Speaker 1: are additional race neutral options that universities can use in 449 00:25:28,640 --> 00:25:31,640 Speaker 1: order to get greater diversity. And the court said, well, 450 00:25:31,680 --> 00:25:34,400 Speaker 1: that may or may not be true. But in your 451 00:25:34,400 --> 00:25:38,879 Speaker 1: two complaints race neutral options, you are saying that the 452 00:25:39,000 --> 00:25:42,320 Speaker 1: University of Texas should use is exactly the same race 453 00:25:42,359 --> 00:25:45,280 Speaker 1: neutral options in eighteen that you said that they should 454 00:25:45,280 --> 00:25:47,480 Speaker 1: have used in two thousand eight. So we don't see 455 00:25:47,520 --> 00:25:51,160 Speaker 1: that that's different either. So the court said, same claims. 456 00:25:51,600 --> 00:25:55,439 Speaker 1: Parties are imprivity race judicata. We're not going to hear 457 00:25:55,480 --> 00:25:58,880 Speaker 1: the second lawsuit. I said that. They says it's going 458 00:25:58,960 --> 00:26:02,280 Speaker 1: to appeal, But why appeal when they have three other 459 00:26:02,440 --> 00:26:04,920 Speaker 1: cases and it would be going back to the Fifth 460 00:26:04,960 --> 00:26:08,680 Speaker 1: Circuit which had ruled against them in the last case. Yeah, 461 00:26:08,760 --> 00:26:10,800 Speaker 1: I think that's kind of a head scratcher to meet 462 00:26:10,800 --> 00:26:13,480 Speaker 1: to June. And part of that is people often say 463 00:26:13,480 --> 00:26:15,840 Speaker 1: that and then they don't end up appealing. You know. 464 00:26:15,920 --> 00:26:17,840 Speaker 1: One of the things that s f f A is 465 00:26:17,920 --> 00:26:22,520 Speaker 1: trying to do is to get appellate decisions from different 466 00:26:22,600 --> 00:26:26,760 Speaker 1: courts of appeals around the country that are in conflict 467 00:26:26,800 --> 00:26:29,920 Speaker 1: with one another, because that's the best way to get 468 00:26:29,960 --> 00:26:33,520 Speaker 1: the Supreme Court to be interested in your case. Remember, 469 00:26:33,560 --> 00:26:36,879 Speaker 1: their ultimate goal is to get the Supreme Court to 470 00:26:37,160 --> 00:26:40,320 Speaker 1: look at this question that was decided in Fisher, and 471 00:26:40,320 --> 00:26:44,840 Speaker 1: it was decided in the Michigan cases Grutter and Grats, 472 00:26:44,920 --> 00:26:47,840 Speaker 1: to look at that question again and hold that actually, 473 00:26:47,880 --> 00:26:51,240 Speaker 1: the Constitution does not allow colleges and universities to take 474 00:26:51,359 --> 00:26:54,800 Speaker 1: race into account when admitting students to their schools and programs. 475 00:26:55,240 --> 00:26:56,760 Speaker 1: The best way for them to do that is to 476 00:26:56,800 --> 00:27:00,359 Speaker 1: get different courts of appeals to say different things. The 477 00:27:00,400 --> 00:27:03,199 Speaker 1: Texas is in the Fifth Circuit, and they don't have 478 00:27:03,240 --> 00:27:05,760 Speaker 1: another case in the Fifth Circuit, so that would be 479 00:27:05,840 --> 00:27:09,280 Speaker 1: a reason to try to keep that case alive. I 480 00:27:09,320 --> 00:27:12,160 Speaker 1: wonder if it's more personal than that that they're still 481 00:27:12,320 --> 00:27:14,879 Speaker 1: upset with the University of Texas is where Miss Fisher 482 00:27:14,920 --> 00:27:18,199 Speaker 1: did not get admitted, and maybe they still just have 483 00:27:18,280 --> 00:27:20,800 Speaker 1: a bee in their bonnet about ut. I don't know, 484 00:27:21,280 --> 00:27:24,240 Speaker 1: but as you said, they have three other cases and 485 00:27:24,560 --> 00:27:27,160 Speaker 1: a lot of people are watching the Harvard case very 486 00:27:27,280 --> 00:27:31,399 Speaker 1: closely currently at the Supreme Court. Supreme Court has shown 487 00:27:31,480 --> 00:27:34,520 Speaker 1: some interest in the petition by asking the United States 488 00:27:34,560 --> 00:27:37,560 Speaker 1: Full Ster General to file a brief in that case 489 00:27:37,720 --> 00:27:40,600 Speaker 1: giving the government's views on whether or not the court 490 00:27:40,720 --> 00:27:43,920 Speaker 1: should accept review of the case. And so that could 491 00:27:44,000 --> 00:27:46,960 Speaker 1: get s f f A to its goal very quickly. 492 00:27:47,440 --> 00:27:51,800 Speaker 1: So the binding administration dropped the Trump administration's lawsuit against 493 00:27:51,880 --> 00:27:54,359 Speaker 1: Yale in light of that, How do you think the 494 00:27:54,640 --> 00:27:59,439 Speaker 1: s G will advise the justices? I would expect that 495 00:27:59,600 --> 00:28:03,600 Speaker 1: the Solicitor General, in a bien administration and going out 496 00:28:03,640 --> 00:28:06,840 Speaker 1: a little bit on a limb here, will say that 497 00:28:07,200 --> 00:28:10,280 Speaker 1: the Supreme Court should not review the Harvard case. The 498 00:28:10,320 --> 00:28:14,520 Speaker 1: first circuit in Harvard followed existing law. There's no reason 499 00:28:14,720 --> 00:28:18,959 Speaker 1: to review its decision. The Supreme Court does not typically 500 00:28:19,320 --> 00:28:22,400 Speaker 1: reach out and review a case where the lower court 501 00:28:22,440 --> 00:28:25,480 Speaker 1: has followed existing law and there is no split an 502 00:28:25,560 --> 00:28:30,040 Speaker 1: authority between the courts of appeals. Thanks Audrey. That's Andrea 503 00:28:30,080 --> 00:28:34,000 Speaker 1: Anderson of Bassbarian SIMS. And that's it for this edition 504 00:28:34,040 --> 00:28:36,840 Speaker 1: of the Bloomberg Lawn Show. Remember you can always get 505 00:28:36,880 --> 00:28:39,720 Speaker 1: the latest legal news on our Bloomberg Lawn Podcast. You 506 00:28:39,760 --> 00:28:43,760 Speaker 1: can find them on Apple Podcasts, Spotify, and at www 507 00:28:43,840 --> 00:28:48,440 Speaker 1: dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso, 508 00:28:48,600 --> 00:28:50,760 Speaker 1: Thanks so much for listening, and please turn into The 509 00:28:50,760 --> 00:28:53,000 Speaker 1: Bloomberg Law Show every week night at ten p m. 510 00:28:53,040 --> 00:28:55,080 Speaker 1: Eastern right here on Bloomberg Radio.