WEBVTT - Justice Dept. Won't Defend Republican Representative 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.119 --> 0:00:12.640 Republican representative Moe Brooks says he was acting in his 0:00:12.720 --> 0:00:16.600 official capacity as a lawmaker when he gave an incendiary 0:00:16.640 --> 0:00:19.400 speech at a pro Trump rally before the attack on 0:00:19.440 --> 0:00:24.600 the Capitol on January six. Today is the day American 0:00:24.720 --> 0:00:29.600 patriots start taking down names and tickets. Brooks wanted the 0:00:29.680 --> 0:00:33.279 Justice Department to defend him against a lawsuit accusing him 0:00:33.280 --> 0:00:36.480 of helping to incite the attack, which would have effectively 0:00:36.520 --> 0:00:40.920 given him immunity, but the Justice Department refused, joining me. 0:00:40.960 --> 0:00:44.720 As constitutional law professor Stephen Vladdock of the University of 0:00:44.800 --> 0:00:48.640 Texas Law School, this involves the west Fall Act. Steve 0:00:48.760 --> 0:00:51.440 tell us about it. So the Westpall Act this part 0:00:51.440 --> 0:00:55.880 of the Federal Tort Claims Act, which is statute where 0:00:55.920 --> 0:00:59.000 the federal government for the first time broadly opened itself 0:00:59.080 --> 0:01:02.840 up to lie at ability when federal officers acted within 0:01:02.880 --> 0:01:05.920 the scope of their employment commit towards negligence in a 0:01:05.959 --> 0:01:08.160 place that and the idea is that the federal government 0:01:08.240 --> 0:01:11.600 would stand in the shoes of its officers, at least 0:01:11.640 --> 0:01:14.000 in those cases where the officers were acting within the 0:01:14.080 --> 0:01:16.320 both of their employment. The west Fall Act, which was 0:01:16.360 --> 0:01:21.199 an accid in, basically expands that to include cases where 0:01:21.200 --> 0:01:24.360 plaintiffs have still tried to sue the officers, so as 0:01:24.400 --> 0:01:27.880 opposed to where the plantiffs suits the United States itself. Now, 0:01:27.920 --> 0:01:30.360 the Westpall Act is a mechanism for officers to say, 0:01:30.400 --> 0:01:32.959 wait a second, you can't sue me. This is the 0:01:33.040 --> 0:01:35.479 kind of suits that has to proceed against the United 0:01:35.480 --> 0:01:38.600 States directly under the sec A. Now, why did mole 0:01:38.680 --> 0:01:41.399 Brooks argue that he should be covered under the west 0:01:41.480 --> 0:01:44.880 Fall Act. So there's sort of two interesting hooks to 0:01:44.920 --> 0:01:47.480 the mob Brooks argument. The first is his claim that 0:01:47.560 --> 0:01:50.400 as a member of Congress, he is an employee of 0:01:50.480 --> 0:01:52.320 the United States. We tend not to think of elected 0:01:52.320 --> 0:01:55.360 officials employees. But second, and more importantly, his claim was 0:01:55.400 --> 0:01:59.000 that he was acting in his official capacity as a 0:01:59.080 --> 0:02:01.960 member of the US House when he made the remarks 0:02:02.040 --> 0:02:04.680 for which he's being shoes, and that therefore they fell 0:02:04.760 --> 0:02:07.640 within the scope of his official employment, such that if 0:02:07.680 --> 0:02:09.519 there's a claim here, it should have to be against 0:02:09.560 --> 0:02:12.320 the United States. And the reason why that's a big deal, students, 0:02:12.360 --> 0:02:15.560 because the west Ball Acts does not allow claims for 0:02:15.720 --> 0:02:19.480 intentional sports against non law enforcement officers. So if in 0:02:19.600 --> 0:02:22.760 fact the west Ball Act substitution were permissive here, not 0:02:22.840 --> 0:02:25.320 only would the United States the substitutents defended, but the 0:02:25.400 --> 0:02:28.480 lawsuit would have to be dismissed. The Justice Department said 0:02:28.520 --> 0:02:31.680 it won't defend Brooks. Explain why they came to that 0:02:31.800 --> 0:02:35.040 decision in any Westball Act case sort of. The first 0:02:35.080 --> 0:02:38.200 question is d o J going to certify that the 0:02:38.280 --> 0:02:41.359 officer in question was in fact acting within socials employment. 0:02:41.680 --> 0:02:44.519 D J did not certify that. Instead, d o J 0:02:44.760 --> 0:02:49.200 said that the exact distinction that the House rules draw 0:02:49.480 --> 0:02:54.400 between official business and campaign activity is exactly why Brooks 0:02:54.440 --> 0:02:57.440 was not acting within the scope of employment here, that 0:02:57.720 --> 0:03:01.360 he himself has said his appearance at the rally, his 0:03:01.520 --> 0:03:03.960 comments on Generous six, he has said those were all 0:03:04.040 --> 0:03:07.840 part of his sort of campaign side, which was actually 0:03:07.919 --> 0:03:12.560 largely designed as an argument to avoid internal consequences within 0:03:12.639 --> 0:03:14.720 the House. The problem is that by making that argument, 0:03:14.760 --> 0:03:18.280 he has also, as d o J explained, fatally undermined 0:03:18.320 --> 0:03:19.880 the claim that it was therefore within the scope of 0:03:19.919 --> 0:03:22.880 his employment. But then DJ said, and in any event, 0:03:23.240 --> 0:03:25.440 in so far as the allegations in the lawsuit are true, 0:03:25.440 --> 0:03:30.480 and so far as wasn't fact inciting violence against Congress, 0:03:30.600 --> 0:03:32.840 it is impossible to imagine how that could be within 0:03:33.000 --> 0:03:35.480 the scope of his employment as a member of Congress 0:03:35.520 --> 0:03:38.960 to incite violence against him and his colleague. Now the 0:03:39.200 --> 0:03:43.480 Justice Department said inciting attack on Congress quote is not 0:03:43.600 --> 0:03:46.800 within the scope of employment of a representative or any 0:03:46.960 --> 0:03:51.800 federal employee. Is this a signal that if former President 0:03:51.800 --> 0:03:55.320 Trump asks to be covered under the Westfall Act, that 0:03:55.400 --> 0:03:57.840 the Justice Department will say no to him as well? 0:03:58.240 --> 0:03:59.880 So maybe? I mean, I think a lot of folks 0:04:00.000 --> 0:04:02.120 have jumped to the you know, what does this mean 0:04:02.200 --> 0:04:04.520 for President Trump? And we've already seen the o J 0:04:04.920 --> 0:04:08.320 controversially takes the position that Trump was acting within the 0:04:08.320 --> 0:04:11.800 schools employment when he defamed DJ and Carol. I think 0:04:11.920 --> 0:04:15.960 the o j's position in the bookcase doesn't necessarily committed 0:04:16.040 --> 0:04:18.040 to take from the same position in Trump case. I mean, 0:04:18.080 --> 0:04:20.920 there's an argument June that they made in the Carol 0:04:21.000 --> 0:04:23.799 case that the president is always on duty. These things 0:04:23.880 --> 0:04:27.040 the President says are actually always within the scopeles employment 0:04:27.160 --> 0:04:29.120 in a way that's not true for members of Congress. 0:04:29.200 --> 0:04:31.760 But I do think there's at least the possibility that 0:04:31.960 --> 0:04:35.480 this line of reasoning that inciting an attack against Congress 0:04:35.680 --> 0:04:38.160 is not and cannot be part of one's official duties 0:04:38.320 --> 0:04:40.400 could show up again if and when this issue rears 0:04:40.440 --> 0:04:43.080 its head and some of the januous tips related lawsuits 0:04:43.120 --> 0:04:45.520 against Trump himself. I mean, I think DJ now has 0:04:45.600 --> 0:04:47.880 left itself the ability to argue I think in both 0:04:47.920 --> 0:04:50.560 directions on that one. Do you think that the Justice 0:04:50.600 --> 0:04:55.360 Department intervening over the years in these cases has made 0:04:55.440 --> 0:05:00.240 it harder for courts to hold government employees account doable 0:05:00.360 --> 0:05:04.000 for wrongdoing? Absolutely? I mean, I think d J has 0:05:04.040 --> 0:05:07.800 historically taken a very broad and capacious understanding of the 0:05:07.920 --> 0:05:10.320 term scope of employment within the Westball app. The case 0:05:10.400 --> 0:05:12.680 it always stands out to me about this June is 0:05:12.680 --> 0:05:15.240 a Guantanamo torture case where d o J took the 0:05:15.279 --> 0:05:18.840 position that torture of a detainee was within the scope 0:05:18.920 --> 0:05:21.640 of d o D officials employment torture, which can never 0:05:21.680 --> 0:05:23.640 be legal. It's hard for me to see how that 0:05:23.680 --> 0:05:26.039 could therefore otherwise be within the scope of employment and 0:05:26.080 --> 0:05:30.760 their institutional reasons. June why politics aside, d j's interests 0:05:30.880 --> 0:05:35.000 invariably tilted in favor of defending officers of a certain 0:05:35.120 --> 0:05:38.200 broad understanding what scope employment means. That's part of why 0:05:38.240 --> 0:05:42.520 I wasn't surprised that d J did certify President Trump 0:05:42.600 --> 0:05:45.080 in the Gene Carrol case. But there is a stopping point, 0:05:45.160 --> 0:05:47.840 and I think that what Congressman Brooks is accused of 0:05:47.839 --> 0:05:50.760 doing on January six, if that were within the scope 0:05:50.760 --> 0:05:53.320 of these employment then it's hard to imagine what wouldn't be. 0:05:53.520 --> 0:05:55.680 Folks may not like where d J has drawn the 0:05:55.680 --> 0:05:58.200 line between these two cases. I actually think, at least 0:05:58.200 --> 0:06:01.719 based on DJ's historical approach to this context, that distinction 0:06:01.839 --> 0:06:04.280 makes a lot of sense. Has the Supreme Court or 0:06:04.440 --> 0:06:07.320 have circuit courts ruled on this, sure, I mean there 0:06:07.360 --> 0:06:10.080 are tons of decisions about what scope of employment is 0:06:10.279 --> 0:06:12.000 and intentionally pretty broad. I mean there's a d C 0:06:12.080 --> 0:06:15.800 Scircuit case that then Circuit Judge kavanat Road where the 0:06:15.839 --> 0:06:18.000 Court held it at least under d C law. So 0:06:18.080 --> 0:06:20.480 for officers who are operating within the District of Columbia, 0:06:20.680 --> 0:06:23.160 scope of employment is almost can amount to gist, are 0:06:23.200 --> 0:06:25.520 you on the job to heck with whether you had 0:06:25.560 --> 0:06:27.640 any legal authority for doing what you were doing, or 0:06:27.680 --> 0:06:29.600 you wearing your uniform at the time you did it. 0:06:30.000 --> 0:06:32.320 So there's a ton of Paseball about the west Ball 0:06:32.320 --> 0:06:35.039 app because this comes up a lot. Obviously there's less 0:06:35.040 --> 0:06:37.440 pace law involving members of Congress and the president, but 0:06:37.440 --> 0:06:39.719 at least remembers of Congress, there's more than none. There's 0:06:39.720 --> 0:06:42.400 an important DC circuit case from the early two thousand's 0:06:42.440 --> 0:06:44.840 about a member of Congress acting within the scope of 0:06:44.920 --> 0:06:47.960 employment when he defamed um. There was a trick and 0:06:48.000 --> 0:06:51.000 he defamed one of the alleged participants, and the claim 0:06:51.040 --> 0:06:52.320 was how could that have anything to do with his 0:06:52.400 --> 0:06:54.240 job at The member of Congress in the court said, well, 0:06:54.520 --> 0:06:57.040 he did it well, speaking to a reporter on Capitol 0:06:57.120 --> 0:07:00.480 Hill as part of a presribution. That's how brass cases are. 0:07:00.560 --> 0:07:02.880 That's why I think the OJ's behavior in the Trump 0:07:02.880 --> 0:07:05.480 cases so far has not been that surprising. What's your 0:07:05.520 --> 0:07:09.640 take on Trump's defense in the Capital Riot suit Absolute 0:07:09.680 --> 0:07:13.840 presidential immunity and nick and verss Gerald The Supreme Court said, Yes, 0:07:13.920 --> 0:07:16.679 presidents are entitled to apps for the immunity for any 0:07:17.200 --> 0:07:20.760 conduct while they are presidents that falls within the outer 0:07:20.920 --> 0:07:23.440 perimeter of their officialty. And so I think it comes 0:07:23.480 --> 0:07:27.120 down to whether President Trump's January six speech and his 0:07:27.240 --> 0:07:30.720 other conduct on January six could plausibly said to be 0:07:30.800 --> 0:07:32.760 within the outer perimeter of his official duties. And I 0:07:32.840 --> 0:07:36.000 think there are large swaps of President Trump content on 0:07:36.080 --> 0:07:39.040 January sixs that clearly are and will be deempity, but 0:07:39.080 --> 0:07:41.160 I'm not sure all that will be. For example, the 0:07:41.200 --> 0:07:43.720 tweets he sent in the afternoon, it did not in 0:07:43.840 --> 0:07:47.760 fact actually tell people, at least initially to stand out 0:07:47.840 --> 0:07:49.200 and go home. I mean, I think it's going to 0:07:49.280 --> 0:07:50.520 be a close call. I think it's going to be 0:07:50.600 --> 0:07:52.560 sort of some of it's protested, but not all of it. 0:07:52.640 --> 0:07:54.040 But I think that's where the fight is going to be, 0:07:54.200 --> 0:07:58.160 not the West ballot. Can Trump in the future ask 0:07:58.200 --> 0:08:03.320 the Justice Department to certify him under the West Fall Act, Yeah, 0:08:03.320 --> 0:08:07.040 I mean he can ask j to certify um. And 0:08:07.080 --> 0:08:09.600 there's a procedure in the West Blast where's DOJ declines 0:08:09.640 --> 0:08:11.840 to certify, he can ask the court to do it. 0:08:12.080 --> 0:08:14.480 And so you know, that's also something that Congressman Brooks 0:08:14.600 --> 0:08:17.720 might now do the West Box. Interestingly, it does not 0:08:17.880 --> 0:08:20.240 impose a time limit on when such a request has 0:08:20.280 --> 0:08:22.800 to be made, so it's still possible that the West 0:08:22.800 --> 0:08:25.040 Ballast issue is going to have to be litigated in 0:08:25.080 --> 0:08:27.320 the Trump case as well. I just think that's a 0:08:27.400 --> 0:08:30.960 much stronger argument that Trump will have is the Nixton 0:08:31.040 --> 0:08:34.480 versus the child argument, which is really gonna require courts 0:08:34.480 --> 0:08:37.200 to sort of break apart different things that he said 0:08:37.240 --> 0:08:40.160 and did leading up to and on January six and 0:08:40.280 --> 0:08:46.040 deciding to represent Trump in the defamation case. I mean, 0:08:46.080 --> 0:08:49.080 the Justice Department really didn't have to do that because 0:08:49.080 --> 0:08:52.840 the judge had already rejected the west Fall Act for 0:08:53.040 --> 0:08:57.240 Trump there and hadn't it's not appeal Well, so it 0:08:57.240 --> 0:08:59.559 hasn't sinful I mean, so it hasn't sinfully litigated. Sod 0:08:59.760 --> 0:09:03.680 J made the west Fall a certification and then the 0:09:03.720 --> 0:09:06.320 court rejected it, and so that's what's being appealed, right. 0:09:06.360 --> 0:09:11.680 The District Court refused to accept the OJ certification um 0:09:11.960 --> 0:09:14.520 in the in the Carol case. That's what the second 0:09:14.800 --> 0:09:16.839 is not considering whether the distrec Court was wrong to 0:09:16.920 --> 0:09:20.000 reject case, whether it should have been accepted. Let's say 0:09:20.040 --> 0:09:24.280 Trump asks for certification under the west Fall Act in 0:09:24.320 --> 0:09:29.040 the Capital Riot cases. What kind of argument could the 0:09:29.200 --> 0:09:34.920 Justice Department make to distinguish the Capital Riot case from 0:09:35.000 --> 0:09:38.360 the defamation case where they agreed to defend him since 0:09:38.400 --> 0:09:41.480 I think the biggest difference is the context June, where 0:09:41.920 --> 0:09:45.160 in the Carol case the defamation claim arises out of 0:09:45.280 --> 0:09:48.760 common Trump made is as part of the press gaggle, 0:09:49.200 --> 0:09:53.520 where he was answering questions in his capacity as president. Now, 0:09:53.840 --> 0:09:55.280 I think there are plenty folks who still think that 0:09:55.320 --> 0:09:58.560 should not be enough, that just because he's answering questions 0:09:58.559 --> 0:10:01.880 doesn't free him from liability for things that have nothing 0:10:01.920 --> 0:10:03.880 to do with the discharge of his duties as president. 0:10:04.280 --> 0:10:06.480 But that's the argument in that case, And I think 0:10:06.520 --> 0:10:09.280 the argument here would be, you know, the president inciting 0:10:09.400 --> 0:10:14.520 violent protests to disrupt the certification of his electoral defeat 0:10:14.960 --> 0:10:18.959 is not remotely within the scope of his official duties 0:10:18.960 --> 0:10:21.240 to nearly the same extent as answering questions in the 0:10:21.320 --> 0:10:23.480 press gradually, you know, I think there are folks who 0:10:23.480 --> 0:10:25.240 are going to think that both cases come out the 0:10:25.240 --> 0:10:28.240 same way, whether for Trump or against him. I just 0:10:28.240 --> 0:10:32.240 think that there's plausible defense to seeing them as different 0:10:32.280 --> 0:10:36.840 in that respect. The House also refused to defend Brooks. 0:10:37.600 --> 0:10:40.240 Is that their own kind of analysis that goes on 0:10:40.400 --> 0:10:43.520 It's not a west fall Aft analysis, No, that's I mean, 0:10:43.520 --> 0:10:45.840 that's sort of the from the Houses. So the Westball 0:10:45.880 --> 0:10:48.720 access is purely about d o J's position, And indeed 0:10:48.720 --> 0:10:50.640 the Act is quite specific about the role of the 0:10:50.679 --> 0:10:53.680 Attorney General and the role of the Justice Department. The 0:10:53.760 --> 0:10:56.280 House is the House. That's more from the perspective from 0:10:56.320 --> 0:10:59.640 the from the House rule purposes. Is this the case 0:10:59.679 --> 0:11:03.160 where book should be represented by House lawyers as opposed 0:11:03.200 --> 0:11:07.480 to private lawyers. There's actually nothing formal legally that turns 0:11:07.520 --> 0:11:10.720 on whether he's represented by House lawyers or not. Um, 0:11:10.720 --> 0:11:12.680 that's more just the question of who pays a legal bill. 0:11:13.160 --> 0:11:17.280 The Select Committee wants to obtain all the communications at 0:11:17.320 --> 0:11:21.760 the White House and conversations with Trump that occurred surrounding 0:11:21.880 --> 0:11:26.880 January six, and the Justice Department formally declined to assert 0:11:27.000 --> 0:11:32.280 executive privilege over testimony related to January six. What does 0:11:32.320 --> 0:11:35.200 that do? Because I think that the head of the committee, 0:11:35.679 --> 0:11:40.079 Congressman Thompson, said that it will make things easier for them, 0:11:40.240 --> 0:11:44.000 and I'm just wondering if it really will make things easier, well, 0:11:44.040 --> 0:11:46.679 I mean sons easier in the sense that you know, 0:11:46.720 --> 0:11:49.600 presumably there will be no one who has the standings 0:11:50.040 --> 0:11:53.880 to assert a privilege claim. The problem that I foresee 0:11:53.960 --> 0:11:56.360 is the you know, the House still has to have 0:11:56.520 --> 0:12:00.679 some mechanism for compelling compliance with the is issued by 0:12:00.720 --> 0:12:03.000 the Select Committee, and it seems like the only way 0:12:03.040 --> 0:12:04.840 to do that is to go to court um. And 0:12:04.920 --> 0:12:07.680 so you know, once you have the Select Committee trying 0:12:07.679 --> 0:12:11.960 to enforce subpoenas against calcitured witnesses, yes, there will be 0:12:12.000 --> 0:12:15.160 no good privilege defense because the OJ is not a 0:12:15.200 --> 0:12:18.640 certain privilege, but it will still take some time, you know, 0:12:18.760 --> 0:12:22.040 and it will still require courts to actually hold that 0:12:22.200 --> 0:12:24.880 there's no privilege defense, a matter that of course could 0:12:24.880 --> 0:12:27.400 itself be appealed. So I guess I'm I'm a little 0:12:27.400 --> 0:12:29.960 more circumspect about how quickly that's going to go and 0:12:30.000 --> 0:12:33.640 how effectively the Committee will be able to enforce subpoenas, 0:12:33.720 --> 0:12:37.000 at least against private actors. Of course, I think subpoenas 0:12:37.040 --> 0:12:38.920 to the executive branch, it sounds like, are going to 0:12:39.000 --> 0:12:41.679 be generally complied with. And that may be what Congressman 0:12:41.679 --> 0:12:44.280 Thompson me is when talking about how much easier it's 0:12:44.280 --> 0:12:47.760 going to go. So you think that if the subpoena 0:12:47.880 --> 0:12:53.960 let's say former Attorney General Bill Barr, that he'll comply. No, Actually, 0:12:54.000 --> 0:12:55.880 I'm not sure that if the former Jurney will comply. 0:12:56.080 --> 0:12:57.600 I think there will be at least some effort by 0:12:57.720 --> 0:13:00.240 private by people who are now private parties. You can 0:13:00.280 --> 0:13:03.199 test these subpoenas and courts even if they are unsuccessful. 0:13:03.240 --> 0:13:06.880 I think the reason why, from the perspective of Commerson Thompson, 0:13:06.920 --> 0:13:09.040 that may not be that a good deal. It's because 0:13:09.280 --> 0:13:12.079 if the Biden administration is going to comply, then it 0:13:12.120 --> 0:13:14.679 may not need that much assistance from those former officials. 0:13:14.720 --> 0:13:17.800 Then it might have everything that needs on government servers 0:13:18.040 --> 0:13:21.640 right in the possession of the current executive branch. Right 0:13:21.679 --> 0:13:23.960 because what did he take about two years to get 0:13:24.040 --> 0:13:27.920 former White House Counsel Don McGan to testify after he 0:13:28.080 --> 0:13:31.480 was no longer the White House counsel? I mean, And 0:13:31.480 --> 0:13:34.240 so I think with private witnesses, it's not hard to 0:13:34.240 --> 0:13:37.079 imagine how that history repeats itself. The big difference is 0:13:37.120 --> 0:13:39.480 that those private witnesses won't be nearly essential to the 0:13:39.520 --> 0:13:41.960 inquiry in a contest in which you have the Justice 0:13:42.000 --> 0:13:43.960 Department and a White House that are willing to cooperate. 0:13:44.559 --> 0:13:47.760 Thanks Steve. That's Professor Stephen Vladdock of the University of 0:13:47.840 --> 0:13:54.240 Texas Law School. Affirmative action was first introduced into this 0:13:54.360 --> 0:13:57.200 country sixty years ago, but it remains one of the 0:13:57.240 --> 0:14:01.760 most contentious issues, constantly little gated and discussed, as in 0:14:01.800 --> 0:14:05.199 the Netflix series Dear White People. Hey, look, you guys 0:14:05.200 --> 0:14:10.240 still got affirmative action. I'm sorry, what exactly are you 0:14:10.280 --> 0:14:16.440 doing here? Alright? Obama right, leader of the free world. 0:14:16.520 --> 0:14:22.120 He gets into Harvard based on you too late affirmative action. 0:14:22.680 --> 0:14:26.120 You know he's not president right now, the guy who 0:14:26.200 --> 0:14:29.000 didn't get in. The goal of the group, Students for 0:14:29.160 --> 0:14:33.160 Fair Admissions is to eliminate race in college admissions decisions. 0:14:33.680 --> 0:14:36.160 S f f A is behind the cases challenging the 0:14:36.200 --> 0:14:40.280 consideration of race and admissions at Harvard, Yale, the University 0:14:40.280 --> 0:14:43.680 of North Carolina, and the University of Texas at Austin. 0:14:43.960 --> 0:14:47.040 But a Texas federal judge has just tossed the case 0:14:47.080 --> 0:14:50.280 against U T. Austin, ruling that the issues had already 0:14:50.320 --> 0:14:53.320 been decided in the famous case of Fisher versus the 0:14:53.400 --> 0:14:56.720 University of Texas at Austin, which the group was behind 0:14:57.000 --> 0:15:00.680 and which reached the Supreme Court twice, which reached the 0:15:00.720 --> 0:15:04.920 Supreme Court twice. Joining me is Andrey Anderson, head of 0:15:04.920 --> 0:15:08.880 the Higher Education practice at Bassbarian SIMS tell us about 0:15:08.960 --> 0:15:14.120 this case. In this case June, it was a second 0:15:14.200 --> 0:15:17.760 case that had been brought against the University of Texas 0:15:17.840 --> 0:15:24.160 at Austin challenging their race conscious admissions policies for undergraduate students. 0:15:24.640 --> 0:15:27.920 The University of Texas had been sued earlier in the 0:15:28.000 --> 0:15:31.320 two thousand and eight two thousand nine time frame about 0:15:31.400 --> 0:15:34.520 their race conscious student admissions policies in that case went 0:15:34.520 --> 0:15:37.080 all the way to the Supreme Court, not once, but twice. 0:15:38.160 --> 0:15:41.320 This suit was a follow on suit that was filed 0:15:41.880 --> 0:15:45.440 within the last couple of years challenging those student admissions 0:15:45.440 --> 0:15:51.520 practices again. Had the admissions practices changed at the University 0:15:51.560 --> 0:15:54.480 of Texas since the Fisher case, Well, that was one 0:15:54.520 --> 0:15:57.480 of the things that the parties in this case disputed 0:15:57.560 --> 0:16:00.760 a little bit. But no, the University Texas had not 0:16:00.880 --> 0:16:03.120 come out and said, oh, we're putting out a new 0:16:03.200 --> 0:16:08.440 students admissions program. We're doing something different, and that caused 0:16:08.440 --> 0:16:10.800 the point of to say, oh, well, we're going to 0:16:10.960 --> 0:16:16.000 challenge this new program. The real reason that the plane 0:16:16.080 --> 0:16:19.800 of that the Students for Fair Admissions group challenged the 0:16:19.880 --> 0:16:23.960 University of Texas admissions policies again is likely that there 0:16:24.040 --> 0:16:25.800 was a change in the people who are now on 0:16:25.880 --> 0:16:29.720 the Supreme Court now as opposed to when they lost 0:16:29.840 --> 0:16:33.680 their earlier suit against the University of Texas. That is 0:16:33.720 --> 0:16:36.560 almost certainly what caused f f f A to bring 0:16:36.640 --> 0:16:40.360 this second suit. Tell us about the Fisher case that 0:16:40.400 --> 0:16:43.560 went to the Supreme Court twice. What happened. Yeah, So, 0:16:43.640 --> 0:16:46.200 in in the Fisher case, it was brought by an 0:16:46.240 --> 0:16:49.880 individual plane I Abigail Fisher, a white woman, who was 0:16:49.960 --> 0:16:54.240 denied admission to the University of Texas, and she alleged 0:16:54.280 --> 0:16:58.600 at the University of Texas admissions program, which does consider 0:16:58.760 --> 0:17:01.800 race in a very limited way as part of a 0:17:01.960 --> 0:17:07.480 holistic review of student applications, that that consideration of race 0:17:07.640 --> 0:17:11.639 violated the Equal Protection Clause. And the Supreme Court looked 0:17:11.640 --> 0:17:14.560 at that case two times. The first time they said 0:17:14.600 --> 0:17:18.040 that the lower courts had used the wrong standards in 0:17:18.440 --> 0:17:23.680 saying that the admissions program was constitutional, So they said, 0:17:23.880 --> 0:17:26.399 use the wrong standards, look at it again. The lower 0:17:26.440 --> 0:17:28.880 courts looked at it again and said, hey, we still 0:17:28.920 --> 0:17:31.520 think this is constitutional. The Supreme Court looked at it 0:17:31.600 --> 0:17:35.119 a second time, and in two thousand sixteen, by a 0:17:35.240 --> 0:17:39.320 five four vote, held that the University of Texas is 0:17:39.600 --> 0:17:45.680 race conscious admissions program was constitutional, and I was surprised 0:17:45.720 --> 0:17:48.920 to learn that Abigail Fisher is also an officer and 0:17:49.119 --> 0:17:54.639 board member of Students for Fair Admissions. Yes, what was 0:17:54.680 --> 0:17:57.240 going on behind the scenes with all of this is 0:17:57.880 --> 0:18:04.040 uh wealthy businessman Edward Blum, who really was the moving 0:18:04.160 --> 0:18:09.399 force behind the Fisher case. He knew Abigail Fisher's father, 0:18:10.240 --> 0:18:14.320 and as he was thinking about ways that he could 0:18:14.480 --> 0:18:19.560 challenge race conscious admissions programs and universities in America, he 0:18:19.840 --> 0:18:23.119 found out that Abigail had been denied admissions to the 0:18:23.200 --> 0:18:25.840 University of Texas, and he decided she would be a 0:18:25.880 --> 0:18:30.240 wonderful plaintiff and Texas would be a wonderful school to sue. 0:18:31.000 --> 0:18:35.240 So he bankrolled the Fisher litigation. He chose the lawyers, 0:18:35.600 --> 0:18:38.719 he helped with the strategy, and then when they lost 0:18:38.760 --> 0:18:44.280 in Fisher, they started this organization called Students for Fair Admissions. 0:18:44.359 --> 0:18:48.960 The original board members were Edward Blum, Abigail Fisher, and 0:18:49.040 --> 0:18:51.919 her father, Robert Fisher. That was the original board of 0:18:51.920 --> 0:18:57.639 the organization, and they then started looking for schools across 0:18:57.680 --> 0:19:01.600 the country that could be sued to further their goal 0:19:01.960 --> 0:19:05.840 of eventual Supreme Court holding that race may not be 0:19:05.960 --> 0:19:11.320 considered by universities in America for purposes of their undergraduate 0:19:11.440 --> 0:19:15.320 or any kind of admissions. So let's talk about the 0:19:15.359 --> 0:19:20.040 court's findings first on the standing issue. Yeah, So, a 0:19:20.200 --> 0:19:23.080 standing is a concept that we have in the United 0:19:23.119 --> 0:19:27.320 States legal system that you cannot bring a lawsuit unless 0:19:27.359 --> 0:19:31.320 you have actually been injured by something that the defendant, 0:19:31.359 --> 0:19:35.240 the person you're doing, has done. And for the suit 0:19:35.280 --> 0:19:38.000 we're talking about here, it was brought by the organization 0:19:38.200 --> 0:19:43.879 Students for Fair Admissions UM that Blum has created. So 0:19:43.960 --> 0:19:48.680 when you're looking at membership organization, which a s f 0:19:48.680 --> 0:19:51.879 f A says it is, they now have members, people 0:19:51.880 --> 0:19:54.679 who have joined the organization who say that, yes, we 0:19:54.760 --> 0:19:57.280 are all in favor of getting rid of the consideration 0:19:57.320 --> 0:20:00.440 of race in college admissions, and they've ay a five 0:20:00.480 --> 0:20:03.280 dollar membership B. When you have an organization like that, 0:20:03.640 --> 0:20:07.360 like then double a CP, the organization can sue if 0:20:07.400 --> 0:20:10.360 they can show that any one of their members has 0:20:10.440 --> 0:20:15.160 been injured by the actions of the defendants. So that's 0:20:15.160 --> 0:20:17.080 how s f f A was bringing the suit. We 0:20:17.119 --> 0:20:19.480 have members. They said two of their members were white 0:20:20.080 --> 0:20:23.000 men who had applied to Texas and been denied admission. 0:20:23.800 --> 0:20:26.960 The university said, hey, wait a minute. First of all, 0:20:27.240 --> 0:20:31.080 you're not really a membership organization. You say you have 0:20:31.160 --> 0:20:34.280 these members, but they're not real members. And they made 0:20:34.280 --> 0:20:38.479 a very technical argument based on um the by laws 0:20:38.520 --> 0:20:42.040 of the organization and the state law that the organization 0:20:42.200 --> 0:20:46.720 is organized under in Virginia, and the court denied that, 0:20:46.960 --> 0:20:51.720 as other courts have denied that argument. They said, no, 0:20:52.200 --> 0:20:54.879 we are going to look at this in a practical way. 0:20:54.920 --> 0:20:59.440 They put forward proof that they really are a membership organization, 0:20:59.560 --> 0:21:03.399 so we are going to allow them to bring this suit. 0:21:03.680 --> 0:21:07.800 I think from a practical perspective, many of these universities say, hey, 0:21:07.840 --> 0:21:11.679 this is really just one guy, Edward Blum, who's on 0:21:11.760 --> 0:21:14.960 this quest to get rid of race conscious admissions, and 0:21:15.000 --> 0:21:19.800 he's kind of twisting this concept of a membership organization 0:21:19.880 --> 0:21:23.400 in order to work his will. And so that standing 0:21:23.400 --> 0:21:26.440 concept has been brought up in I think every one 0:21:26.480 --> 0:21:28.960 of these suits that s f f A has brought, 0:21:29.040 --> 0:21:32.280 and so far it's been denied. Every court has said no, 0:21:32.359 --> 0:21:34.199 we're going to treat f f f A as a 0:21:34.240 --> 0:21:38.240 real membership organization. So that was no surprise that they 0:21:38.280 --> 0:21:41.480 were allowed to go forward and say you have standing 0:21:41.560 --> 0:21:44.399 to bring this lawsuits. Why did the court dismiss the 0:21:44.440 --> 0:21:47.960 case on the grounds of race judicata. Yeah, the other 0:21:48.040 --> 0:21:51.960 concept has a fancy or a Latin word race judicata, 0:21:52.400 --> 0:21:55.480 but it's a very practical concept that says, look, the 0:21:55.640 --> 0:22:00.600 courts are not going to decide the same lawsuit two times. 0:22:01.359 --> 0:22:03.040 We have too much to do. We're not going to 0:22:03.200 --> 0:22:06.240 decide something a second time. So what you have to 0:22:06.400 --> 0:22:10.719 prove to show race judicata is that the parties in 0:22:10.800 --> 0:22:14.320 front of you this second time are the same parties 0:22:15.040 --> 0:22:18.280 or are what we call the law in privity with 0:22:18.359 --> 0:22:21.359 one another. Maybe they aren't the same parties that were 0:22:21.400 --> 0:22:24.360 in the first lawsuit, but they nonetheless had some kind 0:22:24.400 --> 0:22:28.840 of control over the first lawsuit enough to say that, look, 0:22:29.200 --> 0:22:32.000 you had an ability to have your rights heard in 0:22:32.040 --> 0:22:36.680 that first lawsuit, And were the claims in the first 0:22:36.760 --> 0:22:40.720 lawsuit actually the same as the claims in the second lawsuit. 0:22:41.280 --> 0:22:43.639 If we can find that it's the same parties or 0:22:43.680 --> 0:22:46.840 the parties were in privity in both suits, and that 0:22:46.920 --> 0:22:49.240