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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash podcasts. Special Counsel Robert

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Speaker 1: Mueller has indicted twelve Russian intelligence officers for hacking the

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Speaker 1: Democratic National Committee, the Clinton presidential campaign, and the Democratic

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Speaker 1: Congressional Committee. Deputy Attorney General Ron Rosenstein announced the indictment

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Speaker 1: this afternoon. One of those defendants and a twelve Russian

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Speaker 1: military officer are charged with conspiring to infiltrate computers of

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Speaker 1: organizations involved in administering elections, including state boards of election,

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Speaker 1: secretaries of state, and companies that supply software used to

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Speaker 1: administer elections. The Russian officers were also charged with stealing

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Speaker 1: the information of about five hundred thousand voters. Joining is

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Speaker 1: joining me is Ellie Hannig of Rutgers University. He's a

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Speaker 1: former federal prosecutor. Ellie. Today's indictments did not include the

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Speaker 1: allegation that Russian efforts succeeded in influencing the election results

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Speaker 1: of the election how important are they? Uh, yeah, I

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Speaker 1: don't know that that conclusion really means much. I mean,

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Speaker 1: it's it's really unknowable if you think about. What we

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Speaker 1: do know is that these emails were leaked. They were

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Speaker 1: leaked in the months running up to the election, and

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Speaker 1: that millions or tens of millions of United States voters

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Speaker 1: saw those emails, and I think unquestionably they hurt the Democrats. Now,

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Speaker 1: can you know how many people change their mind because

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Speaker 1: of these emails? No, that's impossible to know. It's unknowable.

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Speaker 1: I don't I don't think anyone would ever be able

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Speaker 1: to look at anything and say that flipped the election.

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Speaker 1: But this had an impact. There's there's no question this

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Speaker 1: impacted people, and it was it was a factor. Rosenstein

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Speaker 1: brushed aside a question about the timing. But it seems

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Speaker 1: glare drying that it comes two days before Trump's meeting

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Speaker 1: with Russian President Vladimir Putin and the day after Congressional

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Speaker 1: Republicans attacked the Special Counsel's investigation as biased during the

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Speaker 1: testimony of the FBI agent Peter Struck. Is that timing

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Speaker 1: just coincidence? Yeah, I mean that that is what Rosenstein

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Speaker 1: said today, Not not coincidence. You just said, Look, this

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Speaker 1: is when we've concluded our factual investigation and when the

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Speaker 1: grand juries come back with an indictment. But of course

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Speaker 1: the timing matters, whether by design or not. Um. You know,

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Speaker 1: Rosensight did say that he had briefed the president a

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Speaker 1: few days ago. Um, you know, you could sort of

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Speaker 1: look at that both ways. You could look at it

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Speaker 1: as uh, you know, him sending a message to the president,

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Speaker 1: you know, don't get too cozy with Putin. Um, you

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Speaker 1: could look at it as you know, an assurance that

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Speaker 1: the president won't go in and declare that well, Prutin

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Speaker 1: told me they had nothing to do with it, and

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Speaker 1: then two days later the indictment comes out. But I

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Speaker 1: do take Rosenstein at his word that this was just

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Speaker 1: when the work got wrapped up. I mean, things happened

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Speaker 1: so rapidly in this case that any day is going

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Speaker 1: to be near some other day. So he did say that.

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Speaker 1: When asked about how he informed the president, he said,

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Speaker 1: he needs to understand what information we've uncovered because he

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Speaker 1: has to make very important decisions for the country, so

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Speaker 1: he needs to understand what evidence we have a foreign

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Speaker 1: election interference. He also said that this is about the

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Speaker 1: corruption of elections. It's important to not see it as

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Speaker 1: republicans or Democrats. So he seemed to be sending some

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Speaker 1: kind of message there. Yeah, I think Rosen science right.

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Speaker 1: I mean, you know, it would be it would be

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Speaker 1: really harmful to our democracy if the president when Anne

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Speaker 1: had this meeting with Putin and and sort of cleared

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Speaker 1: him and said that he said he didn't do it.

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Speaker 1: I believe him, and then shortly after this came out. UM.

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Speaker 1: And I think it's important to inform the way the

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Speaker 1: president interacts with Putin and interacts with Russians. UM that

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Speaker 1: we know now for sure who did this. We didn't

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Speaker 1: know who did this before today's insignment. We now know

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Speaker 1: who did it, and it was not just Russians generally,

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Speaker 1: it was Russian state actors, these intel officers from the

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Speaker 1: g r U UM. So that's that's very important, and

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Speaker 1: I think it's something that the president and our entire

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Speaker 1: government needs to know in dealing with Russia moving forward.

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Speaker 1: There was something that I'm curious about. It could it

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Speaker 1: could be nothing, but he said at one point that

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Speaker 1: these uh the information was transferred to another organization not

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Speaker 1: named in the indictment and time for release. Does that

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Speaker 1: Does that indicate that another another indictment is coming about

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Speaker 1: that organization or they said they used it as a

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Speaker 1: pass through to release the documents. Yeah, there absolutely could be.

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Speaker 1: And there's a number of indications in this indictment of

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Speaker 1: places where there could be further further indictments. I think

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Speaker 1: I think that organization appears to be Wiki leaks. Um.

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Speaker 1: That's just sort of informed speculation. But you know, the

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Speaker 1: White House, if you've seen, has already announced a statement

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Speaker 1: saying well, nobody, no, you, No Americans have been indicted

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Speaker 1: and there's no connection to anything relating to the Trump campaign.

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Speaker 1: But if you look at this indictment, you can see areas,

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Speaker 1: including the one you decided, where there could be American actors,

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Speaker 1: American individuals, and American based companies or corporate entities that

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Speaker 1: could be the next shoes to drop. You know, Ellie,

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Speaker 1: what you said before sort of rings rings true because

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Speaker 1: are we looking for too much from Robert Mueller's investigation?

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Speaker 1: Are we looking for like a direct connection to some

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Speaker 1: influence in the election or to someone and are we

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Speaker 1: perhaps not going to get that? Yeah, I mean, I

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Speaker 1: think what Robert Muller is doing is what all good

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Speaker 1: investigators doing. It's building a case blocked by block, piece

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Speaker 1: by piece, and if you if you look at it inftality,

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Speaker 1: and you know, we've seen the numbers. We now have

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Speaker 1: over thirty indictments, five convictions. But you know this is

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Speaker 1: another important block. And now this establishes there were two

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Speaker 1: main ways the Russians tried to and did infiltrate our election.

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Speaker 1: The first one we already knew about from the MANI

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Speaker 1: for uh and Papadopoulos and Flint indictments, which is they

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Speaker 1: try to provide or sell their Hillary Clinton to directly

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Speaker 1: to the Trump campaign. This is now the second way,

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Speaker 1: This is the hacking into the DNC and this sort

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Speaker 1: of slow release of emails in a drip uh by

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Speaker 1: DC leaks and gucha for in the days leading up

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Speaker 1: to the election. So uh so you know it's it's

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Speaker 1: it's piece by piece, And I do think you're right.

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Speaker 1: I don't think we're ever going to see one specific

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Speaker 1: document that says here's everything that ties everything alltogether. But

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Speaker 1: he's building, and you can see him building. We keep

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Speaker 1: on waiting for that though, any event, because these all

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Speaker 1: seem you know, as you said, it's a dripped here

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Speaker 1: or dripped there, and there's no response to allegations that

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Speaker 1: come out in the public. Yeah, well, what where? I

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Speaker 1: think we may see it all tied together as if

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Speaker 1: in Windfeller uh files a report with the House of Representatives,

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Speaker 1: you know, whether it's recommending and teachment or not. But

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Speaker 1: I think that's going to be the ultimate sort of uh,

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Speaker 1: you know, opus that ties it all together. Well, thanks,

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Speaker 1: thanks so much for being here. Ellie. That's Ellie home

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Speaker 1: of Rutgers University. He's a former federal prosecutor. Kentucky Republican

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Speaker 1: Senator Rand Paul has frequently voiced his firm views on privacy.

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Speaker 1: He spoke about the issue in a lengthy Senate speech

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Speaker 1: in the bulk collection of all Americans phone records all

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Speaker 1: of the time is a direct violation of the Fourth Amendment.

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Speaker 1: So could Paul's firm views on privacy present a seemingly

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Speaker 1: overlooked obstacle to Brett Kavanaugh's nomination to the Supreme Court.

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Speaker 1: Joining me is Corey Bret Schneider, a political science professor

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Speaker 1: at Brown University. Corey, how different our Kavanaugh's views on

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Speaker 1: privacy from Paul's? Are? Are they different enough to cause

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Speaker 1: a problem? We need to know. I mean, he's as

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Speaker 1: a lower court judge said, uh, not that much. He

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Speaker 1: has a dissent uh in a case about abortion, for instance,

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Speaker 1: which is based on a broad right to privacy that

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Speaker 1: the court's right into the Constitution, um, into a number

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Speaker 1: of its provisions, including the Fourth Amendment. But we don't

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Speaker 1: know what he would do as a Supreme Court judge

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Speaker 1: or justice. Sorry, And so that's why it's so important

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Speaker 1: to ask him questions. Unlike lower court judges, uh, Supreme

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Speaker 1: Court justices can overturn even longstanding precedent. So that's one

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Speaker 1: of the central questions for him is what he thinks

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Speaker 1: of the broad right to privacy in the Constitution, not

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Speaker 1: just in the Fourth Amendment, but in the idea uh

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Speaker 1: in Griswold versus Connecticut that there's a broad right of

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Speaker 1: privacy in matters like choice and abortion. Uh, in the

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Speaker 1: use of contraception. Uh. And so we just need to

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Speaker 1: know a lot more about that. In my reading, I

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Speaker 1: came across some some literature that said that his past

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Speaker 1: rulings backed the build up and intelligence gathering on Americans

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Speaker 1: after the September e leventh attacks. Um, that's what I

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Speaker 1: haven't come across enough to give you a definitive answer

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Speaker 1: on that. I mean, the areas that we're starting to

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Speaker 1: see are there's this descent in the abortion case. A

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Speaker 1: lot of scrutiny has been paid to his his work

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Speaker 1: for um ken Starr uh. And originally he seemed to

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Speaker 1: favor pretty broad terms of impeachment for a president and

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Speaker 1: even indictment, and then more more and more he's favored

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Speaker 1: increasing executive power. Uh. Now that could have implications for

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Speaker 1: the issue that you raise. He also has, in an

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Speaker 1: OpEd that's just been uncovered, seems to suggest that a

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Speaker 1: president is actually immune from indictment. So that would grant,

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Speaker 1: if that's right, huge leeway to the executive in in

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Speaker 1: all sorts of places, including possibly uh, immunity, even in

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Speaker 1: the use of criminal uh criminal use of information or

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Speaker 1: information gathering. How much can the senators press him on that? Uh,

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Speaker 1: it's a myth that they can't after the board curings Uh. There,

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Speaker 1: the Heritage Foundation others suggested that there was a thing

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Speaker 1: called the Ginsburg rule, which was supposed to be the

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Speaker 1: idea that that UM nominees are not supposed to talk

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Speaker 1: about their views about past cases. But if you look

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Speaker 1: at Whatsbury actually did. She very was very forthcoming on

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Speaker 1: her views on abortion. So this is kind of a

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Speaker 1: made up thing. Under Article one, UH, the Senate is

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Speaker 1: supposed to be an equal partner with the President in

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Speaker 1: vetting nominees on their constitutional views. So I think they

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Speaker 1: not only can, but are obligated to directly ask about

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Speaker 1: things like the right to privacy, the right to abortion,

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Speaker 1: UH and UH Row versus Wade in particular. But they

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Speaker 1: cannot ask for a binding commitment for future cases or

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Speaker 1: ask about pending cases, specific cases before the court. That's

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Speaker 1: a distinction if you look at the last justice to

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Speaker 1: be confirmed and to go to these hearings. Gorse he

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Speaker 1: got He got by saying he wasn't going to give

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Speaker 1: opinions on a variety host of topics, and they just

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Speaker 1: refused to give. You know, he said, I can't give

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Speaker 1: my opinion on what's going to be coming up, and

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Speaker 1: I'll follow precedent. But you know, you didn't really hear

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Speaker 1: what his what his opinions were. They seem to be

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Speaker 1: able to slide. I think that was one of the

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Speaker 1: worst travesties that hearing, and instance of the Senate's dysfunction. UH.

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Speaker 1: The fact that they let him get away with that.

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Speaker 1: In fact, he didn't say that he would follow precedent

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Speaker 1: when he was repeatedly asked to give his opinion about

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Speaker 1: precedents like the one that I just mentioned, Grizzwold versus Connecticut,

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Speaker 1: which how that broad right to privacy gave individuals the

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Speaker 1: right to use contraception, including in their own bedrooms with

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Speaker 1: their spouses. Uh. Do you agree with that precedent? Would

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Speaker 1: you uphold it? What he repeatedly said was Griswold versus

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Speaker 1: Connecticut or other cases are precedents or is a precedent.

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Speaker 1: He never said anything about whether he would or wouldn't

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Speaker 1: uphold particular precedents. So it's very important to not allow

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Speaker 1: this sort of very easy, UH legal trick to to

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Speaker 1: UH suffice as an answer to fundamental questions before us.

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Speaker 1: This is the swing vote, likely on cases like ro

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Speaker 1: versus Weight, UH, possibly on gay rights cases. Justice Kennedy

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Speaker 1: was often the swing vote, sometimes voted with the liberals,

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Speaker 1: sometimes with conservatives. So it's essential this time time, UH

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Speaker 1: to not let him get away with non answers. What

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Speaker 1: other areas do you see sharp differences between Kavanaugh and Kennedy? Uh?

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Speaker 1: Justice Kennedy. Uh is goes down in history because he

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Speaker 1: really led the court in recognizing a variety of gay rights.

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Speaker 1: In a case called Romer. Uh, he said that legislation

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Speaker 1: based on animus courts UH towards gay individuals was unconstitutional.

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Speaker 1: In that instance, it was a plebiscite that provoked many

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Speaker 1: civil rights for gay gay people. Uh. He of course

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Speaker 1: wrote the opinion about the right to gay marriage. Now

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Speaker 1: that's based on what I think Judge Van Kavanaugh has said,

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Speaker 1: or is a conception of unenumerated rights which is skeptical of,

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Speaker 1: and he's sympathetic to Justice Scully and others who were

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Speaker 1: very critical of that jurisprudence. And so I don't know

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Speaker 1: that he would respect these precedents. I think he probably

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Speaker 1: thinks they're wrongly decided. And I think that there's a

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Speaker 1: chance that we could see some retrenchment in the area

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Speaker 1: of gay right. It's abortion, of course, and then that

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Speaker 1: executive power issue that I raised is fundamental. UH. This

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Speaker 1: court might decide the question of whether or not a

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Speaker 1: president can or cannot be indicted by the special prosecutor,

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Speaker 1: or more radically, whether, as some have suggested, UH, the

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Speaker 1: investigation is unconstitutional itself, because the president can't be subject

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Speaker 1: to investigation by his own subordinate sets the theory that's

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Speaker 1: currently been floated, and this nominee might decide that, So

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Speaker 1: we need to know what he thinks about it. And um,

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Speaker 1: so what's facing the Democrats who want to stop this

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Speaker 1: are not only the Republican votes, but also they have

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Speaker 1: three Democratic senators running in red states that Trump won

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Speaker 1: in sixteen and they have to hold those senators. And

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Speaker 1: I've been looked at some of their voting patterns and

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Speaker 1: they vote the Republicans on a lot of these important issues. Uh. Yeah,

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Speaker 1: I mean I think, you know, this shouldn't be a

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Speaker 1: partisan issue when it comes to the most fundamental rights

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Speaker 1: under our constitution, which include privacy, include the idea I

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Speaker 1: think that a president is not above the law and

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Speaker 1: can't get away with criminal activity. Uh. That was to

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Speaker 1: me a principle at least, if not the specific question

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Speaker 1: that the principle was established and during the Nixon administration. Uh.

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Speaker 1: And gay rights are such a part of the fabric

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Speaker 1: of constitutional law now too, that I would think that

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Speaker 1: really any not just party, but any senator that claims

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Speaker 1: to believe in the Constitution needs to uh. Insist that

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Speaker 1: this nominee answer questions about his views on these precedents,

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Speaker 1: and that would include Democrats, Republicans, certainly people like Susan Collins,

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Speaker 1: uh and Ran Paul. If he's serious about the Constitution,

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Speaker 1: I think i'd like to see him take a lead

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Speaker 1: role in in questioning this nominee. We'll look forward to

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Speaker 1: the questioning. Thanks so much, Corey. That's Corey bretch Schneider.

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Speaker 1: He's a political science professor at Brown University. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple podcast US, SoundCloud, and

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Grosso. This

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Speaker 1: is Bloomberg. M mhm