Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The Senate will convene as a court of impeachment. The
Speaker 1: chaplain will lead us in prayer. Chief Justice John Roberts
Speaker 1: presided over the first impeachment trial of former President Donald Trump,
Speaker 1: giving the event the gravitas it required. I think it
Speaker 1: is appropriate at this point for me to admonish uh,
Speaker 1: both the House Managers and the President's Council in equal terms, UH,
Speaker 1: to remember that they are addressing the world's greatest deliberative body.
Speaker 1: But Roberts has decided not to preside over Trump's second
Speaker 1: impeachment trial, giving an opening for Republicans to question the
Speaker 1: legitimacy of the trial. Joining me is Bloomberg Supreme Court
Speaker 1: reporter Greg Store Greg What does the Constitution say about
Speaker 1: the Chief Justice presiding over impeachment trials? Well, it's the
Speaker 1: Chief Justice have to preside over the impeachment trial of President.
Speaker 1: What it doesn't say is whether he has to preside
Speaker 1: over the impeachment trial of a former president, And most
Speaker 1: constitutional scholars think that probably the answer is no. That
Speaker 1: the document at least leaves the Chief Justice with the
Speaker 1: option of not presiding. The reason the Chief Justice presides
Speaker 1: over the trial of a sitting president is because if
Speaker 1: the vice president presides, the vice president might have a
Speaker 1: conflict of interest because they'd be presiding over a trial
Speaker 1: that could lead to them becoming president. Did Democratic Majority
Speaker 1: leader Chuck Schumer asked the Chief Justice to preside and
Speaker 1: he refused, do we know what actually happened? That appears
Speaker 1: to be what happened. John Roberts hasn't said anything. What
Speaker 1: Chuck Schumer said the other night is that the Chief
Speaker 1: Justice declined the opportunity to do that. So the presumption
Speaker 1: is that he was asked to and chose not to.
Speaker 1: From a democratic standpoint, there's certainly a lot of advantages
Speaker 1: to having John Roberts presiding over the trial, So you
Speaker 1: can see why they would have wanted him to and
Speaker 1: would have tried to get him to, but apparent late
Speaker 1: he had no interest. Do you have any idea why
Speaker 1: Roberts hasn't made a public statement about why he is
Speaker 1: not presiding. It's pretty typical John Roberts. He doesn't make
Speaker 1: very many public statements. Back during the first impeachment trial
Speaker 1: a year ago, he completely left it up to Senate
Speaker 1: leaders to make announcements about what was happening. You know,
Speaker 1: it's certainly an opportunity where he could have said something,
Speaker 1: could have explained his reasons for not coming over, could
Speaker 1: have said I don't think the constitution requires me to.
Speaker 1: But he chose not to, and we're all just left
Speaker 1: to some degree to speculate about what his reasons were.
Speaker 1: So at the last Trump impeachment trial, Roberts played a
Speaker 1: sort of minimalist role, very much show. There was very
Speaker 1: little he said that wasn't suggested to him by the
Speaker 1: Senate parliamentarian. He kept the trains running one time. At
Speaker 1: one point he admonished both sides to be a bit
Speaker 1: more civil, and probably the most noteworthy thing that he
Speaker 1: did was to say that he wouldn't break any high
Speaker 1: votes and and that he referenced previous practice, which he
Speaker 1: said supported the idea that it was up to the
Speaker 1: Senate and that his entire role was to just preside
Speaker 1: and keep the procedure moving, but not to make any
Speaker 1: substantive decisions. Why has Democratic Senator Patrick Leahy had been
Speaker 1: chosen to preside over Trump's second impeachment trial, but he
Speaker 1: is the President pro tem of the Senate, taking over
Speaker 1: for Chuck Rasley, who held that position while the Republicans
Speaker 1: were in the majority. He was one of two options
Speaker 1: for the Senate, the other being Vice President Kamalas Harris.
Speaker 1: Not clear why they went with Lahy. It mind seem
Speaker 1: slightly less political to have a member of the Senate
Speaker 1: rather than the new Vice president who was on the
Speaker 1: campaign that defeated Donald Trump. And the truth of the
Speaker 1: matter is, if this trial is anything like the last one,
Speaker 1: Senator Lake, he won't have a whole lot to do
Speaker 1: other than ProForma keeping the proceeding moving along. He won't
Speaker 1: to have any substantive decisions to make. It seems like
Speaker 1: the perception of fairness would be better if it weren't
Speaker 1: a Democratic senator who's spoken against Trump's actions presiding over
Speaker 1: his impeachment trial. Yeah. I think that's a huge point.
Speaker 1: You know, in the last two in Peaceman trials we've
Speaker 1: had you have had a Chief Justice up there lending
Speaker 1: a sense of gravity and making it seem as though
Speaker 1: it were at least partially a judicial proceeding. You had
Speaker 1: William Renklift for the impeachment of Bill Clinton and Roberts
Speaker 1: last year for Trump's first impeachment. Instead, you're going to
Speaker 1: have a senator and member of party opposing Donald Trump,
Speaker 1: and it will convey a very different atmosphere. And it
Speaker 1: certainly gives Republicans who don't want to talk about the
Speaker 1: substance of the charge against Donald Trump, it gives them
Speaker 1: another opening to talk about the process and the claim
Speaker 1: is just a political exercise. Some Republicans seem to be
Speaker 1: trying to been the Chief's absence into a decision by
Speaker 1: the Chief that the impeachment of a president who's out
Speaker 1: of office is unconstitutional. Yeah, I think that's a bit
Speaker 1: of a leap. It is probably fair to surmise that
Speaker 1: the Chief thinks that the Constitution doesn't require him to
Speaker 1: be there for the trial. But that whole separate issue
Speaker 1: of whether a former president can be put on trial,
Speaker 1: it's hard to make that leap with just a step
Speaker 1: by John Roberts. Again, it is a talking point for
Speaker 1: a Republican It makes sense that they are trying to
Speaker 1: cast it that way, and but that really is a
Speaker 1: separate issue. Most constitutional scholars I've talked to say, what
Speaker 1: history we have suggests that a former official can be
Speaker 1: put on trial, and that that makes some sense because Otherwise,
Speaker 1: a president nearing the ends of his or her term
Speaker 1: would be able to act with impunity without facing any
Speaker 1: sorts of consequence if that person could not be put
Speaker 1: on trial. Let's turn to one of the Supreme courts
Speaker 1: act sans this week. On Monday, the Supreme Court ordered
Speaker 1: dismissal of suits over Trump. Find it just remind us
Speaker 1: what those lawsuits are. Yeah, these these were lawsuits saying
Speaker 1: he violated the Constitution's emoluments clause, which say that the
Speaker 1: president tanken and he benefits from one of them says
Speaker 1: from foreign governments, and the other says, uh, domestic benefits
Speaker 1: beyond the salary that that he gets. And the focus
Speaker 1: was on Trump on properties like the Trump International Hotel.
Speaker 1: And these lawsuits claimed that, uh, Donald Trump was was
Speaker 1: benefiting from being president because, say, foreign dignitaries would would
Speaker 1: come stay as hotel to curry favor for the new administration.
Speaker 1: And uh the allegation was that, uh that gave him
Speaker 1: a competitive advantage over other hotels in the district of
Speaker 1: Columbia and elsewhere. And uh, lower courts let those lawsuits
Speaker 1: go forward against Donald Trump, saying, among other things, these
Speaker 1: hotels in the state of Maryland at the District of
Speaker 1: Columbia had standing to pursue them, and UM that might
Speaker 1: have forest Donald Trump to turn over some of his
Speaker 1: financial information. Well, now that Donald Trump is no longer
Speaker 1: the president, both sides agree that these lawsuits were now
Speaker 1: moot and should be dismissed. And the Supreme Court did that,
Speaker 1: and along the way it told the lower it's set
Speaker 1: aside federal appeals court rulings that let the lawsuits go forward. Uh,
Speaker 1: so we've lost at least some of the president that
Speaker 1: had built up around what those two emoluments caused me.
Speaker 1: We have an acting solicitor general. Why not a point
Speaker 1: a US solicitor general at this point? Why appointed acting
Speaker 1: solicitor general? If you know, there will probably be an
Speaker 1: appointment of a solicitor general and in relatively short order.
Speaker 1: But there is an awful lot of work that needs
Speaker 1: to be done right away in terms of uh potentially
Speaker 1: shifting the government's position in a number of cases. There
Speaker 1: are some pending Donald Trump appeals, a Trump administration appeals
Speaker 1: that are at the Supreme Court. There are a couple
Speaker 1: of cases that the court has already agreed to hear
Speaker 1: arguments and UH, and there are a number of other
Speaker 1: issues where the General's office will have to make some
Speaker 1: big decisions going forward about how the what the government's
Speaker 1: litigating strategy is going to be. So by putting in
Speaker 1: an acting solist, their General Elizabeth Preloger, Uh, they now
Speaker 1: have somebody who can start to make those decisions and
Speaker 1: help appoint the government's legal team in the direction that
Speaker 1: the president wants. And what happens supposed Let's just say,
Speaker 1: on some of the immigration cases, the Biden administration is
Speaker 1: a totally different view from the Trump administration and they
Speaker 1: don't want to pursue a case anymore. Do they tell
Speaker 1: that to the court? How does it work procedurally? It
Speaker 1: depends a little bit um. If the government is pressing
Speaker 1: an appeal, they always have the power to drop the appeal. Uh.
Speaker 1: They also have the administration also has the ability to
Speaker 1: change the underlying policy. So, for example, there are a
Speaker 1: couple of arguments that the Supreme Court, who scheduled to
Speaker 1: hear later on this term, having to do with money
Speaker 1: being spent to build the border wall and Donald Trump's
Speaker 1: policy that requires asylum applicants to stay in Mexico while
Speaker 1: they're while they are applying. So bid the administration could
Speaker 1: change the underlying policies there, and then those cases would
Speaker 1: become either moot or close to moot, and the Supreme
Speaker 1: Court probably would be inclined just to drop those arguments.
Speaker 1: So it depends a little bit on exactly what's going
Speaker 1: on and what the procedural status of the case is.
Speaker 1: Thanks so much for being in the Bloomberg Laws Show, Greg,
Speaker 1: That's Bloomberg News Supreme Court reporter Greg Store. The conservative
Speaker 1: legal movement has been unity behind shared goal of filling
Speaker 1: the federal bench with like minded judges and advocating shared
Speaker 1: principles grounded in originalism. But the movement appears to be
Speaker 1: facing a reckoning post Trump. Joining me is Bloomberg Legal
Speaker 1: reporter Madison Alder what has been the goal of the
Speaker 1: conservative legal movement until now? So, the conservative legal movement
Speaker 1: has really united over this idea of confirming federal judges
Speaker 1: who are originalist textualists, who believes that the Constitution should
Speaker 1: be interpreted as as the founders understood it, um, that
Speaker 1: statute should be interpreted based on what it says, um.
Speaker 1: And you know, it's something that has really united conservatives
Speaker 1: across the spectrum. Uh, now that you know Trump is
Speaker 1: out of office. Uh, conservatives don't have that to necessarily
Speaker 1: unite them anymore, and it kind of becomes a question
Speaker 1: of what comes next for their movements. Certainly, they were
Speaker 1: very successful with President Trump and Senator Mitch McConnell getting
Speaker 1: a lot of very conservative judges on the bench at
Speaker 1: all levels. Now there's been a problem because some prominent
Speaker 1: legal conservatives helped Trump try to overturn the election. Tell
Speaker 1: us about some of some of what was done. So
Speaker 1: on January six, Senators Josh Holly and Ted Cruz, who
Speaker 1: are you know, they both had Supreme Court querkships. UM.
Speaker 1: They went to Harvard and Yale respectively. Ted Cruise is
Speaker 1: argued several times in front of the Supreme Court. They're
Speaker 1: definitely conservative lawyers through and through. UM. They were part
Speaker 1: of this movement to not certify the Electoral College results,
Speaker 1: and that was something that really Josh Holly kind of
Speaker 1: starked he was really leading this too. You know. That
Speaker 1: definitely gave a lot of credence to the arguments that
Speaker 1: there there was fraud um, which has been pretty these
Speaker 1: claims have been pretty baseless. UM. And then outside on
Speaker 1: January six, at the rally where President Trump spoke, and
Speaker 1: you know, his lawyer, Rudy Giuliani spoke, another conservative lawyer,
Speaker 1: John Eastman, who was a former professor of Chapman University. Uh,
Speaker 1: he said that there was fraud and the dead people
Speaker 1: voted and really highlighted some of these criticisms too. And
Speaker 1: we know what happened on January six. So the you
Speaker 1: know mob strums the Capital and UM, A lot of
Speaker 1: what they were up in arms about was was these
Speaker 1: fraud claims, these these baseless fraud claims. So it has
Speaker 1: some conservative lawyers pretty angry that a few of their
Speaker 1: own were involved in wolstering these kinds of ideas that
Speaker 1: incited people, and it has some of them even wanting
Speaker 1: to to take some kind of action. Before January six,
Speaker 1: a lot of conservative lawyers tried to help President Trump
Speaker 1: overturned the election results by presenting evidence, or a lack
Speaker 1: of credible evidence, that there was fraud. Were some people
Speaker 1: in the federal society upset about that too? Or did
Speaker 1: it take until January six for them to be concerned? Well,
Speaker 1: a lot of the lawyers who are involved in the
Speaker 1: election lawsuits were we're not really leading lights of the
Speaker 1: conservative legal movement. UM you know, Rudy Giuliani, for example,
Speaker 1: is not really seen as being a leading light of
Speaker 1: the conservative uh leal movement, and so there was there
Speaker 1: was already a bit of a distance there, um between
Speaker 1: an organization like the Federal Society and prominent concerned lawyers
Speaker 1: and those who were involved in in these lawsuits. Um.
Speaker 1: But you know, there were a lot of Federal Study
Speaker 1: members who were speaking out internally and on Twitter against
Speaker 1: these kinds of of claims. A few of the people
Speaker 1: I spoke to said that they would have welcomed uh,
Speaker 1: you know, lawsuit of challenge had there been frauds uh
Speaker 1: and had the courts not start these claims down. But
Speaker 1: at the end of the day, they did strike them
Speaker 1: down and there wasn't frauds um. So it really didn't
Speaker 1: mine up with what conservative lawyers stand for, which is
Speaker 1: the rule of law. Also, there were eighteen Republican state
Speaker 1: attorneys general who supported one of the lawsuits to overturn
Speaker 1: the election results, right, And I took to one of
Speaker 1: the attorneys general who was not part of that group, Um,
Speaker 1: David Goes, who is the Attorney General of Ohio. And
Speaker 1: you know, the way that he saw the events of
Speaker 1: January six and the involvement by by some of these
Speaker 1: conservative attorney these was you know that they've kind of
Speaker 1: forfeited credibility when they're throwing their support behind these claims,
Speaker 1: and um, it's definitely showing a split between you know,
Speaker 1: different types of conservative attorneys, those who you know, don't
Speaker 1: believe in in the way that some some people conducted
Speaker 1: themselves and uh, you know, don't believe in in these
Speaker 1: basis claims, and those that are willing to support them.
Speaker 1: Liberals often see the conservative movement as one big movement,
Speaker 1: but have there been factions within the conservative movement? So
Speaker 1: I spoke to professor Steven Tullis, who has written about conservatives.
Speaker 1: He wrote a book about those who were Never Trump.
Speaker 1: He also wrote a book about the conservative legal movement.
Speaker 1: And he said that that is a tendency to kind
Speaker 1: of see the conservative movement from the left is being unified,
Speaker 1: but they've always had a variety of different views and
Speaker 1: that perhaps the and you know, the Electron fraud claims,
Speaker 1: the events of January six have kind of highlighted that
Speaker 1: in a way that that hasn't really been seen before.
Speaker 1: That there is kind of a fracturing that he also
Speaker 1: sees happening on the left as well. Explain for those
Speaker 1: who don't know, explain what the Federalist Society is. So
Speaker 1: the Federalist Society, uh, you know, it's it describes itself
Speaker 1: as kind of a networking group but kind of a
Speaker 1: debate club of sorts for conservative and libertarian lawyers. They
Speaker 1: hold events, they hold an annual events, they do panels.
Speaker 1: Really the backbone of the organization is, uh, their groups
Speaker 1: on college campuses and you know, on law schools helps
Speaker 1: get conservative thinking young lawyers together to to hear from
Speaker 1: different speakers. And one of their policies is they don't
Speaker 1: comment on political issues. Um, you know, it's on their website.
Speaker 1: They've graiterated that they don't comment on political issues. So
Speaker 1: at is what happened in this case as well. They're
Speaker 1: they're still not commenting on this, which you know, some
Speaker 1: of the lawyers that I spoke to who are part
Speaker 1: of the Federalist Society respect and say that, you know,
Speaker 1: they they maybe shouldn't comment on this, and they like
Speaker 1: that they do that. The others say, maybe this is
Speaker 1: the scenario where they need to weigh in and say something,
Speaker 1: especially about John Eastman, who is a member of one
Speaker 1: of their groups that plans some of these events and
Speaker 1: and gets the speakers together. You talk to the co
Speaker 1: founder of the Federalist Society, what was his reaction? So
Speaker 1: his reaction, Uh, Stephen cal Brucie is a professor now
Speaker 1: is a co founder of the Federal Society, and he
Speaker 1: has both supported Trump in in op eds and and
Speaker 1: he's you know, recently not supported Trump in offense. So
Speaker 1: he's kind of gone back and forth on this over
Speaker 1: the years. And uh, you know, he basically he did
Speaker 1: not agree with any of these election fraud claims. He
Speaker 1: said that conservatives have aired and not accepting the results
Speaker 1: of of the election, and that support for from some
Speaker 1: conservative lawyers of this is kind of detrimental. So the
Speaker 1: Federalist Society helped Trump in forming the list of Supreme
Speaker 1: Court justices and judges that he nominated. They were very
Speaker 1: active in that role, or at least Leonard Leo was.
Speaker 1: Do any of them feel like, even though Trump helped
Speaker 1: them accomplish this incredible goal of transforming a large part
Speaker 1: of the judiciary to conservative judges, do any of them
Speaker 1: feel that their movement was corrupted by Trump? Something that
Speaker 1: was underscored for me by a few different people I
Speaker 1: spoke to, was that they believe that the way that
Speaker 1: Trump's own appointees treated these election fraud nimes, which was
Speaker 1: by and large throwing them out, you know, calling them
Speaker 1: for what they were, rejecting them on the merits. They
Speaker 1: threw them out because they were baseless. And you know,
Speaker 1: at least one conservative lawyer of libertarian lawyer Jonathan Adler's
Speaker 1: for Factor case Western told me that he thinks that
Speaker 1: is evidence that the movement wasn't corrupted by Trump. That uh,
Speaker 1: you know, these conservative judges, many of whom were part
Speaker 1: of the Federalist Society, when it came down to it
Speaker 1: didn't side with the president, and they said what the
Speaker 1: law was and and it wasn't that there was election frauds.
Speaker 1: What are the paths for the Federal Society going forward?
Speaker 1: So I spoke to a few Federalist Society members for
Speaker 1: the story, and they described a path forward that involves
Speaker 1: holding some of their own accountables, maybe holding Eastman accountables.
Speaker 1: And there's you know, a movement. We had a few
Speaker 1: background sources confirmed that there's a movement to unseat him
Speaker 1: from this position. On one of the practice groups that
Speaker 1: organizes some of these meetings. You know, another conservative lawyer
Speaker 1: told us that they had sent a letter to leadership
Speaker 1: asking that he be removed from the approved speakers list.
Speaker 1: There was another letter asking that he be removed from
Speaker 1: his practist group role as well. So there is a
Speaker 1: movement internally to take action, which is pretty significant for
Speaker 1: conservatives who who kind of reject the left cancel culture
Speaker 1: um and a few of them have have been careful
Speaker 1: to note that they don't agree with cancel culture, but
Speaker 1: they would like to see them take some kind of
Speaker 1: action on Eastman. And then you know, other lawyers described
Speaker 1: maybe a path where speakers who are political, like Hollie
Speaker 1: or Crews, if they're ever to speak at events in
Speaker 1: the future, wouldn't be highlighted, or maybe the organization wouldn't
Speaker 1: you know, wouldn't have them comes as speakers, and you know,
Speaker 1: basically severing those ties between since of bit of lawyers
Speaker 1: and politicians with a legal background. Um. So those are
Speaker 1: just a few of the things that that people talked about,
Speaker 1: But of course these are the opinions of just you know,
Speaker 1: a few conservative lawyers, and it really is going to
Speaker 1: be up to the Federal Society on on where this
Speaker 1: ends up going That was going to be my next question,
Speaker 1: because I wondered how much of the Federal Society feels
Speaker 1: the way you've been describing some of these conservatives feel,
Speaker 1: and how much of the Federal Society thinks, you know,
Speaker 1: everything's fine, let's just go ahead the way we've been
Speaker 1: going any feel for that, Well, that's one thing that's
Speaker 1: one of the reasons why we wanted to look at
Speaker 1: this is because the Federal Society doesn't take political opinions
Speaker 1: on things. So in a way, it's an organization made
Speaker 1: up a lot of its numbers, and so if it's
Speaker 1: going to delegate that to its members, its members opinions
Speaker 1: and things like this really matter. And you know, at
Speaker 1: least with the people that we spoke to um, there
Speaker 1: are a lot of people that feel like something does
Speaker 1: need to happen here, or that you know, maybe there
Speaker 1: needs to be a different way to handle these types
Speaker 1: of speakers and and how the organization moves forward after this.
Speaker 1: But I think ultimately it's it's a little hard to
Speaker 1: tell exactly what's going to happen in an organization like this,
Speaker 1: because when you're a debate club and you are so
Speaker 1: focused on having a diverse array of perspective having decisions
Speaker 1: ultimately get made. It's not really one of the elements
Speaker 1: of debate. So it will be interesting to see if
Speaker 1: the federal society ultimately decides to pick in your direction
Speaker 1: or if they hold to what they've done in the past,
Speaker 1: which is not saying anything to to foster the debate culture.
Speaker 1: Thanks for being the Bloomberg Law Show. Madison. That's Medisine Alder,
Speaker 1: Bloomberg Legal Reporter. And that's it for the edition of
Speaker 1: the Bloomberg Lawn Podcast. I'm June Grasso. Thanks so much
Speaker 1: for listening, and remember you can always get the latest
Speaker 1: legal news on our Bloomberg Lawn podcast. You can find
Speaker 1: them on Apple Podcasts, Spotify, and wherever you get your
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