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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The Senate will convene as a court of impeachment. The

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Speaker 1: chaplain will lead us in prayer. Chief Justice John Roberts

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Speaker 1: presided over the first impeachment trial of former President Donald Trump,

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Speaker 1: giving the event the gravitas it required. I think it

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Speaker 1: is appropriate at this point for me to admonish uh,

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Speaker 1: both the House Managers and the President's Council in equal terms, UH,

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Speaker 1: to remember that they are addressing the world's greatest deliberative body.

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Speaker 1: But Roberts has decided not to preside over Trump's second

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Speaker 1: impeachment trial, giving an opening for Republicans to question the

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Speaker 1: legitimacy of the trial. Joining me is Bloomberg Supreme Court

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Speaker 1: reporter Greg Store Greg What does the Constitution say about

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Speaker 1: the Chief Justice presiding over impeachment trials? Well, it's the

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Speaker 1: Chief Justice have to preside over the impeachment trial of President.

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Speaker 1: What it doesn't say is whether he has to preside

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Speaker 1: over the impeachment trial of a former president, And most

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Speaker 1: constitutional scholars think that probably the answer is no. That

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Speaker 1: the document at least leaves the Chief Justice with the

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Speaker 1: option of not presiding. The reason the Chief Justice presides

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Speaker 1: over the trial of a sitting president is because if

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Speaker 1: the vice president presides, the vice president might have a

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Speaker 1: conflict of interest because they'd be presiding over a trial

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Speaker 1: that could lead to them becoming president. Did Democratic Majority

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Speaker 1: leader Chuck Schumer asked the Chief Justice to preside and

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Speaker 1: he refused, do we know what actually happened? That appears

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Speaker 1: to be what happened. John Roberts hasn't said anything. What

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Speaker 1: Chuck Schumer said the other night is that the Chief

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Speaker 1: Justice declined the opportunity to do that. So the presumption

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Speaker 1: is that he was asked to and chose not to.

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Speaker 1: From a democratic standpoint, there's certainly a lot of advantages

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Speaker 1: to having John Roberts presiding over the trial, So you

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Speaker 1: can see why they would have wanted him to and

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Speaker 1: would have tried to get him to, but apparent late

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Speaker 1: he had no interest. Do you have any idea why

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Speaker 1: Roberts hasn't made a public statement about why he is

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Speaker 1: not presiding. It's pretty typical John Roberts. He doesn't make

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Speaker 1: very many public statements. Back during the first impeachment trial

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Speaker 1: a year ago, he completely left it up to Senate

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Speaker 1: leaders to make announcements about what was happening. You know,

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Speaker 1: it's certainly an opportunity where he could have said something,

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Speaker 1: could have explained his reasons for not coming over, could

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Speaker 1: have said I don't think the constitution requires me to.

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Speaker 1: But he chose not to, and we're all just left

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Speaker 1: to some degree to speculate about what his reasons were.

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Speaker 1: So at the last Trump impeachment trial, Roberts played a

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Speaker 1: sort of minimalist role, very much show. There was very

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Speaker 1: little he said that wasn't suggested to him by the

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Speaker 1: Senate parliamentarian. He kept the trains running one time. At

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Speaker 1: one point he admonished both sides to be a bit

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Speaker 1: more civil, and probably the most noteworthy thing that he

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Speaker 1: did was to say that he wouldn't break any high

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Speaker 1: votes and and that he referenced previous practice, which he

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Speaker 1: said supported the idea that it was up to the

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Speaker 1: Senate and that his entire role was to just preside

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Speaker 1: and keep the procedure moving, but not to make any

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Speaker 1: substantive decisions. Why has Democratic Senator Patrick Leahy had been

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Speaker 1: chosen to preside over Trump's second impeachment trial, but he

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Speaker 1: is the President pro tem of the Senate, taking over

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Speaker 1: for Chuck Rasley, who held that position while the Republicans

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Speaker 1: were in the majority. He was one of two options

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Speaker 1: for the Senate, the other being Vice President Kamalas Harris.

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Speaker 1: Not clear why they went with Lahy. It mind seem

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Speaker 1: slightly less political to have a member of the Senate

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Speaker 1: rather than the new Vice president who was on the

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Speaker 1: campaign that defeated Donald Trump. And the truth of the

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Speaker 1: matter is, if this trial is anything like the last one,

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Speaker 1: Senator Lake, he won't have a whole lot to do

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Speaker 1: other than ProForma keeping the proceeding moving along. He won't

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Speaker 1: to have any substantive decisions to make. It seems like

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Speaker 1: the perception of fairness would be better if it weren't

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Speaker 1: a Democratic senator who's spoken against Trump's actions presiding over

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Speaker 1: his impeachment trial. Yeah. I think that's a huge point.

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Speaker 1: You know, in the last two in Peaceman trials we've

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Speaker 1: had you have had a Chief Justice up there lending

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Speaker 1: a sense of gravity and making it seem as though

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Speaker 1: it were at least partially a judicial proceeding. You had

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Speaker 1: William Renklift for the impeachment of Bill Clinton and Roberts

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Speaker 1: last year for Trump's first impeachment. Instead, you're going to

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Speaker 1: have a senator and member of party opposing Donald Trump,

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Speaker 1: and it will convey a very different atmosphere. And it

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Speaker 1: certainly gives Republicans who don't want to talk about the

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Speaker 1: substance of the charge against Donald Trump, it gives them

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Speaker 1: another opening to talk about the process and the claim

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Speaker 1: is just a political exercise. Some Republicans seem to be

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Speaker 1: trying to been the Chief's absence into a decision by

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Speaker 1: the Chief that the impeachment of a president who's out

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Speaker 1: of office is unconstitutional. Yeah, I think that's a bit

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Speaker 1: of a leap. It is probably fair to surmise that

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Speaker 1: the Chief thinks that the Constitution doesn't require him to

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Speaker 1: be there for the trial. But that whole separate issue

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Speaker 1: of whether a former president can be put on trial,

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Speaker 1: it's hard to make that leap with just a step

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Speaker 1: by John Roberts. Again, it is a talking point for

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Speaker 1: a Republican It makes sense that they are trying to

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Speaker 1: cast it that way, and but that really is a

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Speaker 1: separate issue. Most constitutional scholars I've talked to say, what

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Speaker 1: history we have suggests that a former official can be

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Speaker 1: put on trial, and that that makes some sense because Otherwise,

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Speaker 1: a president nearing the ends of his or her term

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Speaker 1: would be able to act with impunity without facing any

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Speaker 1: sorts of consequence if that person could not be put

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Speaker 1: on trial. Let's turn to one of the Supreme courts

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Speaker 1: act sans this week. On Monday, the Supreme Court ordered

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Speaker 1: dismissal of suits over Trump. Find it just remind us

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Speaker 1: what those lawsuits are. Yeah, these these were lawsuits saying

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Speaker 1: he violated the Constitution's emoluments clause, which say that the

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Speaker 1: president tanken and he benefits from one of them says

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Speaker 1: from foreign governments, and the other says, uh, domestic benefits

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Speaker 1: beyond the salary that that he gets. And the focus

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Speaker 1: was on Trump on properties like the Trump International Hotel.

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Speaker 1: And these lawsuits claimed that, uh, Donald Trump was was

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Speaker 1: benefiting from being president because, say, foreign dignitaries would would

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Speaker 1: come stay as hotel to curry favor for the new administration.

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Speaker 1: And uh the allegation was that, uh that gave him

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Speaker 1: a competitive advantage over other hotels in the district of

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Speaker 1: Columbia and elsewhere. And uh, lower courts let those lawsuits

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Speaker 1: go forward against Donald Trump, saying, among other things, these

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Speaker 1: hotels in the state of Maryland at the District of

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Speaker 1: Columbia had standing to pursue them, and UM that might

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Speaker 1: have forest Donald Trump to turn over some of his

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Speaker 1: financial information. Well, now that Donald Trump is no longer

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Speaker 1: the president, both sides agree that these lawsuits were now

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Speaker 1: moot and should be dismissed. And the Supreme Court did that,

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Speaker 1: and along the way it told the lower it's set

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Speaker 1: aside federal appeals court rulings that let the lawsuits go forward. Uh,

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Speaker 1: so we've lost at least some of the president that

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Speaker 1: had built up around what those two emoluments caused me.

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Speaker 1: We have an acting solicitor general. Why not a point

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Speaker 1: a US solicitor general at this point? Why appointed acting

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Speaker 1: solicitor general? If you know, there will probably be an

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Speaker 1: appointment of a solicitor general and in relatively short order.

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Speaker 1: But there is an awful lot of work that needs

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Speaker 1: to be done right away in terms of uh potentially

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Speaker 1: shifting the government's position in a number of cases. There

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Speaker 1: are some pending Donald Trump appeals, a Trump administration appeals

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Speaker 1: that are at the Supreme Court. There are a couple

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Speaker 1: of cases that the court has already agreed to hear

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Speaker 1: arguments and UH, and there are a number of other

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Speaker 1: issues where the General's office will have to make some

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Speaker 1: big decisions going forward about how the what the government's

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Speaker 1: litigating strategy is going to be. So by putting in

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Speaker 1: an acting solist, their General Elizabeth Preloger, Uh, they now

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Speaker 1: have somebody who can start to make those decisions and

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Speaker 1: help appoint the government's legal team in the direction that

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Speaker 1: the president wants. And what happens supposed Let's just say,

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Speaker 1: on some of the immigration cases, the Biden administration is

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Speaker 1: a totally different view from the Trump administration and they

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Speaker 1: don't want to pursue a case anymore. Do they tell

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Speaker 1: that to the court? How does it work procedurally? It

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Speaker 1: depends a little bit um. If the government is pressing

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Speaker 1: an appeal, they always have the power to drop the appeal. Uh.

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Speaker 1: They also have the administration also has the ability to

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Speaker 1: change the underlying policy. So, for example, there are a

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Speaker 1: couple of arguments that the Supreme Court, who scheduled to

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Speaker 1: hear later on this term, having to do with money

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Speaker 1: being spent to build the border wall and Donald Trump's

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Speaker 1: policy that requires asylum applicants to stay in Mexico while

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Speaker 1: they're while they are applying. So bid the administration could

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Speaker 1: change the underlying policies there, and then those cases would

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Speaker 1: become either moot or close to moot, and the Supreme

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Speaker 1: Court probably would be inclined just to drop those arguments.

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Speaker 1: So it depends a little bit on exactly what's going

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Speaker 1: on and what the procedural status of the case is.

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Speaker 1: Thanks so much for being in the Bloomberg Laws Show, Greg,

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Speaker 1: That's Bloomberg News Supreme Court reporter Greg Store. The conservative

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Speaker 1: legal movement has been unity behind shared goal of filling

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Speaker 1: the federal bench with like minded judges and advocating shared

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Speaker 1: principles grounded in originalism. But the movement appears to be

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Speaker 1: facing a reckoning post Trump. Joining me is Bloomberg Legal

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Speaker 1: reporter Madison Alder what has been the goal of the

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Speaker 1: conservative legal movement until now? So, the conservative legal movement

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Speaker 1: has really united over this idea of confirming federal judges

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Speaker 1: who are originalist textualists, who believes that the Constitution should

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Speaker 1: be interpreted as as the founders understood it, um, that

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Speaker 1: statute should be interpreted based on what it says, um.

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Speaker 1: And you know, it's something that has really united conservatives

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Speaker 1: across the spectrum. Uh, now that you know Trump is

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Speaker 1: out of office. Uh, conservatives don't have that to necessarily

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Speaker 1: unite them anymore, and it kind of becomes a question

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Speaker 1: of what comes next for their movements. Certainly, they were

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Speaker 1: very successful with President Trump and Senator Mitch McConnell getting

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Speaker 1: a lot of very conservative judges on the bench at

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Speaker 1: all levels. Now there's been a problem because some prominent

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Speaker 1: legal conservatives helped Trump try to overturn the election. Tell

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Speaker 1: us about some of some of what was done. So

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Speaker 1: on January six, Senators Josh Holly and Ted Cruz, who

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Speaker 1: are you know, they both had Supreme Court querkships. UM.

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Speaker 1: They went to Harvard and Yale respectively. Ted Cruise is

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Speaker 1: argued several times in front of the Supreme Court. They're

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Speaker 1: definitely conservative lawyers through and through. UM. They were part

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Speaker 1: of this movement to not certify the Electoral College results,

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Speaker 1: and that was something that really Josh Holly kind of

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Speaker 1: starked he was really leading this too. You know. That

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Speaker 1: definitely gave a lot of credence to the arguments that

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Speaker 1: there there was fraud um, which has been pretty these

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Speaker 1: claims have been pretty baseless. UM. And then outside on

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Speaker 1: January six, at the rally where President Trump spoke, and

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Speaker 1: you know, his lawyer, Rudy Giuliani spoke, another conservative lawyer,

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Speaker 1: John Eastman, who was a former professor of Chapman University. Uh,

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Speaker 1: he said that there was fraud and the dead people

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Speaker 1: voted and really highlighted some of these criticisms too. And

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Speaker 1: we know what happened on January six. So the you

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Speaker 1: know mob strums the Capital and UM, A lot of

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Speaker 1: what they were up in arms about was was these

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Speaker 1: fraud claims, these these baseless fraud claims. So it has

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Speaker 1: some conservative lawyers pretty angry that a few of their

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Speaker 1: own were involved in wolstering these kinds of ideas that

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Speaker 1: incited people, and it has some of them even wanting

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Speaker 1: to to take some kind of action. Before January six,

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Speaker 1: a lot of conservative lawyers tried to help President Trump

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Speaker 1: overturned the election results by presenting evidence, or a lack

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Speaker 1: of credible evidence, that there was fraud. Were some people

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Speaker 1: in the federal society upset about that too? Or did

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Speaker 1: it take until January six for them to be concerned? Well,

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Speaker 1: a lot of the lawyers who are involved in the

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Speaker 1: election lawsuits were we're not really leading lights of the

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Speaker 1: conservative legal movement. UM you know, Rudy Giuliani, for example,

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Speaker 1: is not really seen as being a leading light of

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Speaker 1: the conservative uh leal movement, and so there was there

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Speaker 1: was already a bit of a distance there, um between

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Speaker 1: an organization like the Federal Society and prominent concerned lawyers

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Speaker 1: and those who were involved in in these lawsuits. Um.

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Speaker 1: But you know, there were a lot of Federal Study

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Speaker 1: members who were speaking out internally and on Twitter against

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Speaker 1: these kinds of of claims. A few of the people

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Speaker 1: I spoke to said that they would have welcomed uh,

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Speaker 1: you know, lawsuit of challenge had there been frauds uh

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Speaker 1: and had the courts not start these claims down. But

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Speaker 1: at the end of the day, they did strike them

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Speaker 1: down and there wasn't frauds um. So it really didn't

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Speaker 1: mine up with what conservative lawyers stand for, which is

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Speaker 1: the rule of law. Also, there were eighteen Republican state

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Speaker 1: attorneys general who supported one of the lawsuits to overturn

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Speaker 1: the election results, right, And I took to one of

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Speaker 1: the attorneys general who was not part of that group, Um,

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Speaker 1: David Goes, who is the Attorney General of Ohio. And

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Speaker 1: you know, the way that he saw the events of

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Speaker 1: January six and the involvement by by some of these

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Speaker 1: conservative attorney these was you know that they've kind of

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Speaker 1: forfeited credibility when they're throwing their support behind these claims,

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Speaker 1: and um, it's definitely showing a split between you know,

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Speaker 1: different types of conservative attorneys, those who you know, don't

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Speaker 1: believe in in the way that some some people conducted

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Speaker 1: themselves and uh, you know, don't believe in in these

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Speaker 1: basis claims, and those that are willing to support them.

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Speaker 1: Liberals often see the conservative movement as one big movement,

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Speaker 1: but have there been factions within the conservative movement? So

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Speaker 1: I spoke to professor Steven Tullis, who has written about conservatives.

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Speaker 1: He wrote a book about those who were Never Trump.

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Speaker 1: He also wrote a book about the conservative legal movement.

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Speaker 1: And he said that that is a tendency to kind

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Speaker 1: of see the conservative movement from the left is being unified,

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Speaker 1: but they've always had a variety of different views and

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Speaker 1: that perhaps the and you know, the Electron fraud claims,

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Speaker 1: the events of January six have kind of highlighted that

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Speaker 1: in a way that that hasn't really been seen before.

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Speaker 1: That there is kind of a fracturing that he also

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Speaker 1: sees happening on the left as well. Explain for those

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Speaker 1: who don't know, explain what the Federalist Society is. So

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Speaker 1: the Federalist Society, uh, you know, it's it describes itself

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Speaker 1: as kind of a networking group but kind of a

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Speaker 1: debate club of sorts for conservative and libertarian lawyers. They

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Speaker 1: hold events, they hold an annual events, they do panels.

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Speaker 1: Really the backbone of the organization is, uh, their groups

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Speaker 1: on college campuses and you know, on law schools helps

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Speaker 1: get conservative thinking young lawyers together to to hear from

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Speaker 1: different speakers. And one of their policies is they don't

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Speaker 1: comment on political issues. Um, you know, it's on their website.

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Speaker 1: They've graiterated that they don't comment on political issues. So

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Speaker 1: at is what happened in this case as well. They're

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Speaker 1: they're still not commenting on this, which you know, some

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Speaker 1: of the lawyers that I spoke to who are part

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Speaker 1: of the Federalist Society respect and say that, you know,

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Speaker 1: they they maybe shouldn't comment on this, and they like

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Speaker 1: that they do that. The others say, maybe this is

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Speaker 1: the scenario where they need to weigh in and say something,

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Speaker 1: especially about John Eastman, who is a member of one

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Speaker 1: of their groups that plans some of these events and

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Speaker 1: and gets the speakers together. You talk to the co

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Speaker 1: founder of the Federalist Society, what was his reaction? So

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Speaker 1: his reaction, Uh, Stephen cal Brucie is a professor now

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Speaker 1: is a co founder of the Federal Society, and he

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Speaker 1: has both supported Trump in in op eds and and

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Speaker 1: he's you know, recently not supported Trump in offense. So

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Speaker 1: he's kind of gone back and forth on this over

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Speaker 1: the years. And uh, you know, he basically he did

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Speaker 1: not agree with any of these election fraud claims. He

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Speaker 1: said that conservatives have aired and not accepting the results

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Speaker 1: of of the election, and that support for from some

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Speaker 1: conservative lawyers of this is kind of detrimental. So the

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Speaker 1: Federalist Society helped Trump in forming the list of Supreme

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Speaker 1: Court justices and judges that he nominated. They were very

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Speaker 1: active in that role, or at least Leonard Leo was.

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Speaker 1: Do any of them feel like, even though Trump helped

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Speaker 1: them accomplish this incredible goal of transforming a large part

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Speaker 1: of the judiciary to conservative judges, do any of them

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Speaker 1: feel that their movement was corrupted by Trump? Something that

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Speaker 1: was underscored for me by a few different people I

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Speaker 1: spoke to, was that they believe that the way that

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Speaker 1: Trump's own appointees treated these election fraud nimes, which was

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Speaker 1: by and large throwing them out, you know, calling them

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Speaker 1: for what they were, rejecting them on the merits. They

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Speaker 1: threw them out because they were baseless. And you know,

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Speaker 1: at least one conservative lawyer of libertarian lawyer Jonathan Adler's

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Speaker 1: for Factor case Western told me that he thinks that

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Speaker 1: is evidence that the movement wasn't corrupted by Trump. That uh,

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Speaker 1: you know, these conservative judges, many of whom were part

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Speaker 1: of the Federalist Society, when it came down to it

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Speaker 1: didn't side with the president, and they said what the

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Speaker 1: law was and and it wasn't that there was election frauds.

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Speaker 1: What are the paths for the Federal Society going forward?

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Speaker 1: So I spoke to a few Federalist Society members for

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Speaker 1: the story, and they described a path forward that involves

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Speaker 1: holding some of their own accountables, maybe holding Eastman accountables.

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Speaker 1: And there's you know, a movement. We had a few

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Speaker 1: background sources confirmed that there's a movement to unseat him

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Speaker 1: from this position. On one of the practice groups that

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Speaker 1: organizes some of these meetings. You know, another conservative lawyer

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Speaker 1: told us that they had sent a letter to leadership

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Speaker 1: asking that he be removed from the approved speakers list.

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Speaker 1: There was another letter asking that he be removed from

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Speaker 1: his practist group role as well. So there is a

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Speaker 1: movement internally to take action, which is pretty significant for

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Speaker 1: conservatives who who kind of reject the left cancel culture

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Speaker 1: um and a few of them have have been careful

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Speaker 1: to note that they don't agree with cancel culture, but

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Speaker 1: they would like to see them take some kind of

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Speaker 1: action on Eastman. And then you know, other lawyers described

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Speaker 1: maybe a path where speakers who are political, like Hollie

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Speaker 1: or Crews, if they're ever to speak at events in

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Speaker 1: the future, wouldn't be highlighted, or maybe the organization wouldn't

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Speaker 1: you know, wouldn't have them comes as speakers, and you know,

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Speaker 1: basically severing those ties between since of bit of lawyers

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Speaker 1: and politicians with a legal background. Um. So those are

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Speaker 1: just a few of the things that that people talked about,

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Speaker 1: But of course these are the opinions of just you know,

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Speaker 1: a few conservative lawyers, and it really is going to

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Speaker 1: be up to the Federal Society on on where this

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Speaker 1: ends up going That was going to be my next question,

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Speaker 1: because I wondered how much of the Federal Society feels

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Speaker 1: the way you've been describing some of these conservatives feel,

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Speaker 1: and how much of the Federal Society thinks, you know,

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Speaker 1: everything's fine, let's just go ahead the way we've been

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Speaker 1: going any feel for that, Well, that's one thing that's

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Speaker 1: one of the reasons why we wanted to look at

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Speaker 1: this is because the Federal Society doesn't take political opinions

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Speaker 1: on things. So in a way, it's an organization made

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Speaker 1: up a lot of its numbers, and so if it's

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Speaker 1: going to delegate that to its members, its members opinions

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Speaker 1: and things like this really matter. And you know, at

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Speaker 1: least with the people that we spoke to um, there

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Speaker 1: are a lot of people that feel like something does

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Speaker 1: need to happen here, or that you know, maybe there

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Speaker 1: needs to be a different way to handle these types

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Speaker 1: of speakers and and how the organization moves forward after this.

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Speaker 1: But I think ultimately it's it's a little hard to

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Speaker 1: tell exactly what's going to happen in an organization like this,

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Speaker 1: because when you're a debate club and you are so

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Speaker 1: focused on having a diverse array of perspective having decisions

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Speaker 1: ultimately get made. It's not really one of the elements

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Speaker 1: of debate. So it will be interesting to see if

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Speaker 1: the federal society ultimately decides to pick in your direction

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Speaker 1: or if they hold to what they've done in the past,

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Speaker 1: which is not saying anything to to foster the debate culture.

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Speaker 1: Thanks for being the Bloomberg Law Show. Madison. That's Medisine Alder,

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Speaker 1: Bloomberg Legal Reporter. And that's it for the edition of

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Speaker 1: the Bloomberg Lawn Podcast. I'm June Grasso. Thanks so much

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Speaker 1: for listening, and remember you can always get the latest

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Speaker 1: legal news on our Bloomberg Lawn podcast. You can find

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Speaker 1: them on Apple Podcasts, Spotify, and wherever you get your

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Speaker 1: favorite podcasts. You're listening to Bloomberg m