Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com Slash Podcasts. Advantage federal prosecutors
Speaker 1: In a high stakes court battle between President Trump and
Speaker 1: his own Justice Department, New York Federal Judge Kimba Wood
Speaker 1: rejected Trump's request to get exclusive access to evidence seized
Speaker 1: by the FBI last week from his longtime personal lawyer
Speaker 1: Michael Cohen. The judge did not make a final decision,
Speaker 1: but one decision she made led to the biggest revelation
Speaker 1: in the hearing one of Cohen's three clients with Seawan Hannity,
Speaker 1: the Fox News commentator who's a Trump supporter and for
Speaker 1: the last week has denounced the count Cohen raids, joining
Speaker 1: me as former federal prosecutor Robert Mint's a partner at
Speaker 1: McCarter and English Bob. Usually, in a case involving evidence
Speaker 1: that might involve uch communications between an attorney and a client,
Speaker 1: a separate team of prosecutors that's been called a taint
Speaker 1: team reviews the evidence. First, why should the president be
Speaker 1: treated any differently than anyone else at this stage of
Speaker 1: the investigation. Well, at this point, we don't know whether
Speaker 1: that actually will happen. The judge has not made a
Speaker 1: final decision on how she intends to handle this review
Speaker 1: as to whether the documents that were taken during the
Speaker 1: search of Mr Khan's office will we're actually privileged or not. Uh,
Speaker 1: And so what the judges said is she is considering
Speaker 1: either the the traditional form of review, which, as you say,
Speaker 1: is a taint team of federal prosecutor who are unrelated
Speaker 1: to the investigation, who will review the information to call
Speaker 1: out anything that would be considered attorney client privilege. Or
Speaker 1: the possibility is also that she will appoint an independent lawyer,
Speaker 1: something called a special master, someone who doesn't work for
Speaker 1: the Department of Justice, who will review the records to
Speaker 1: try to call out any attorney client privileged information. And
Speaker 1: I think she did. She's doing this not because she
Speaker 1: has any concerns about the impartiality or the integrity of
Speaker 1: the prosecutors in the Southern District of New York, but
Speaker 1: she recognizes that appearance of any kind of unfairness is
Speaker 1: going to be closely scrutinized given the high profile nature
Speaker 1: of this case. She did say I have faith in
Speaker 1: the Southern District U. S. Attorney's office, and their integrity
Speaker 1: is unimpeachable. Is that any kind of a message to Trump,
Speaker 1: who has made it a practice to denigrade federal judges
Speaker 1: and the Justice Department. Well, I think she's certainly setting
Speaker 1: a clear signal that she is not buying into any
Speaker 1: arguments that prosecutors have been corrupted in any way or
Speaker 1: that there is some kind of political bias that is
Speaker 1: motivating this investigation. But on the other hand, she is
Speaker 1: sensitive to the fact that this is going to be
Speaker 1: very closely watched and she wants to be concerned about
Speaker 1: not only the actual bias, but appearance of bias. And
Speaker 1: I think in the end, it's likely that we'll see
Speaker 1: a special Master play at least some role in the
Speaker 1: course of this document review. Bob explain what they do
Speaker 1: when they go through these documents. And because every lawyer,
Speaker 1: every communication between a lawyer and a client is not privileged. No,
Speaker 1: that's right, and that's an important understanding that just because
Speaker 1: an attorney is involved in the communication does not render
Speaker 1: that an attorney client privileged communication. Often attorneys work as
Speaker 1: business advisors, um they may not be communicating with an
Speaker 1: individual in the course of seeking legal advice. All of
Speaker 1: that would not be privileged. The classic attorney client privileged
Speaker 1: communication as a situation where an individual provides information to
Speaker 1: an attorney for the purpose of seeking legal advice, and
Speaker 1: the question of whether the privileged privilege exists primarily turns
Speaker 1: on whether the client believes that the information that they
Speaker 1: are providing is for the purpose of obtaining legal advice,
Speaker 1: and they believe that it will be treated confidential in
Speaker 1: a confidential way by the attorney. The New York Times
Speaker 1: reported that people in the Trump administrations say that they
Speaker 1: see Cohen's the inquiry about Cohen as a more serious
Speaker 1: threat to Trump than the investigation by Special Counsel Robert Mueller.
Speaker 1: Can you explain why they might see that, Well, it's
Speaker 1: hard to say, not having any access to the search
Speaker 1: war an application that the government brought before a federal
Speaker 1: judge in order to see the records, or certainly no
Speaker 1: idea of what might be in those records. But whenever
Speaker 1: prosecutors get a hold of communications between an attorney and
Speaker 1: their client, there is it is a very high bar
Speaker 1: that has to be met, first of all, in order
Speaker 1: to be given a search, in order to have a
Speaker 1: search war and granted for that type of search, and
Speaker 1: you never know what kind of information might be found there.
Speaker 1: It suggests from the outset that they certainly believe that
Speaker 1: there is a possibility that Mr Cohen might be involved
Speaker 1: in some kind of criminal activity, and given his close
Speaker 1: relationship with President Trump, there is certainly speculation that this
Speaker 1: could pose a serious threat to President Trump. I want
Speaker 1: to turn to to Sean Hanny for a moment. He
Speaker 1: later released a statement saying Cohen had never represented me
Speaker 1: in any matter, although they occasionally had brief discussions about
Speaker 1: legal questions that he assumed. We're confidential now, so can
Speaker 1: you I know you don't know this for a fact,
Speaker 1: But why was he then listed as a client by Cohen? Well,
Speaker 1: that's a good question. There's been some contradictory statements about
Speaker 1: the relationship between Sean Hannity and Michael Cohen. Michael Cohen
Speaker 1: only had three legal law clients in the in the
Speaker 1: last eighteen months, so it's not like he's got a
Speaker 1: list of many clients. He obviously was operating uh much
Speaker 1: as a business advisor and not a thing as a lawyer,
Speaker 1: and most of his interactions he identified um Mr Handy
Speaker 1: as a client. And the reason he did so is
Speaker 1: that when the U. S. Attorney's Office paint team, or
Speaker 1: whether the Special Master is ultimately brought in here is
Speaker 1: going through those communications. The first thing that the court
Speaker 1: wants to know is who are the clients. So when
Speaker 1: they see a communication, for example, between Mr Bob, we've
Speaker 1: gotta we've got to stop there. But I'm sure we'll
Speaker 1: be picking up with this discussion again. That's Robert Mints,
Speaker 1: a partner at McCarter in English. A busy day for
Speaker 1: the Supreme Court as it handed down decisions in several
Speaker 1: cases and heard oral arguments in one of the high
Speaker 1: profile cases of the term. Joining us is Bloomberg, Supreme
Speaker 1: Court reporter of Greg's store. So Greg, let's start with
Speaker 1: news about Justice Sonia Sotomayor. She broke her right soul
Speaker 1: shoulder in a fall at her Washington home yesterday. Why
Speaker 1: she had oral arguments today? She was at the oral
Speaker 1: argument today and yesterdays. UM had her fact apparently before
Speaker 1: they had gotten diagnosis that it was indeed broken. Um,
Speaker 1: she looked like she might have had a sling on
Speaker 1: underneath her robe. The Supreme Court says that she'll she'll
Speaker 1: have a sling on for several weeks. Um, but otherwise
Speaker 1: seemed to be functioning as normal. And we should note
Speaker 1: that she is diabetic and in January, emergency medical personnel
Speaker 1: treated her at her home for symptoms of low blood sugar. So,
Speaker 1: and let's let's turn to what the court actually did today.
Speaker 1: In a loss for the Trump administration, the court throughout
Speaker 1: a provision in federal immigration law that made it easier
Speaker 1: to deport immigrants who have been convicted of crimes. By
Speaker 1: a vote of five to four. What was the reasoning
Speaker 1: of the majority there? Yes, So, so this has to
Speaker 1: do with people who have committed a crime and a
Speaker 1: definition that says, if you've been convicted of a crime
Speaker 1: of violence, Uh, it's it's a little bit easier to
Speaker 1: deport you. Um. And the question for the court and
Speaker 1: what the majority found was whether the majority found that
Speaker 1: this provision was so vague that it's unconstitutional. Uh, it's
Speaker 1: the case. The court actually heard arguments and twice the
Speaker 1: Trump administration has inherited the position of the Obama administration
Speaker 1: trying to defend this provision. But last term, when the
Speaker 1: Court only had eight justices, they couldn't come up with
Speaker 1: a five justice majority, so they re rehearded this term
Speaker 1: with the Trump administration defending the law. It turns out unsuccessfully,
Speaker 1: and Neil Gorcich was actually the decisive vote here. He
Speaker 1: agreed with the liberal justices in that five to four decision.
Speaker 1: The Court also dropped a high profile case which pitied
Speaker 1: the Justice Department against Microsoft in a class over digital
Speaker 1: privacy and international law. Why was that case dropped? Yes,
Speaker 1: this was dropped because it was interpreting law that Congress
Speaker 1: later updated. They updated it as part of part of
Speaker 1: that omnibus spending bill that got attention for all sorts
Speaker 1: of other reasons. UH, and in it it clarified the
Speaker 1: rules for when U. S law enforcement officials are trying
Speaker 1: to get data that is held by a US computer
Speaker 1: company or some other type of telecom company being held
Speaker 1: on an overseas server. The case before the court involved
Speaker 1: UH Microsoft emails that are being held in UH stored
Speaker 1: in Ireland. The question was whether the Justice Department could
Speaker 1: get access to those emails. The new law says that
Speaker 1: in this sort of situation, generally the US can get
Speaker 1: access to those emails, but there are new provisions that
Speaker 1: let both the tech companies and the foreign governments object
Speaker 1: if there's some sort of problem. That's an easy way
Speaker 1: to decide a case. When it's decided for you. Let's
Speaker 1: talk about this high profile case that we spoke about
Speaker 1: a little bit yesterday over whether states can start collecting
Speaker 1: billions of dollars in sales taxes from internet retailers that
Speaker 1: don't currently charge tax to their customers. Could you get
Speaker 1: a read on how the justices were leaning? It was tough, Jude.
Speaker 1: I have to tell you a lot of us went
Speaker 1: in there thinking there was a really good chance the
Speaker 1: Court was going to overturn president and free states to
Speaker 1: tax internet reads are required internet retailers to collect sales
Speaker 1: taxes regardless of whether they have a store warehouse in
Speaker 1: the state. Um the South Dakota, which is trying to
Speaker 1: overturn that ruling, started with a three nothing advantage because
Speaker 1: you have three justices who have already said that they
Speaker 1: want to let states do this, And it was pretty
Speaker 1: clear today to me at least, that they picked up
Speaker 1: Justice Ruth Bader Ginsburg. The question is whether they picked
Speaker 1: up that fifth vote or not. And and there it
Speaker 1: was a lot harder, harder to tell. You had a
Speaker 1: lot of justices who were asking questions of both sides,
Speaker 1: and tell me about it. Seemed as if there was
Speaker 1: an unusual coalition Justices Sonya Soto Mayor and Samuel Alito.
Speaker 1: Tell me about what they were asking. Yes, so, so
Speaker 1: the two of them seemed to be the most reluctant
Speaker 1: to overturn that president UM Justice So Mayor UH asked
Speaker 1: the first several questions in the case of the South
Speaker 1: Dakota lawyer, and she essentially said, um, you know, your
Speaker 1: problem isn't with this ruling, which is called quill. Your
Speaker 1: problem is that you need a mechanism to um to
Speaker 1: to get the consumers who actually owe this tax to
Speaker 1: pay it. So you need to find a method for
Speaker 1: uh for um UH for collecting it from get getting
Speaker 1: them to collect it. So she seemed like a vote
Speaker 1: to to leave the quill president intact. Later on, just
Speaker 1: as Alito joined as well. I believe all his questions
Speaker 1: were asked of South Dakota, not on the other side. Certainly,
Speaker 1: he was very seemed very reluctant to jump into this
Speaker 1: fray and and change the status quo, Well, what about
Speaker 1: Justice Roberts as far as the Conservatives where they might
Speaker 1: be able to pick up a vote, Yeah, so he
Speaker 1: is was tough to read. He asked questions of both
Speaker 1: sides a couple of times. He asked the lawyer for
Speaker 1: South Dakota and the Trump administration, which is which is
Speaker 1: on South Dakota's side, whether there was some sort of
Speaker 1: minimum require meant for economic contact with a state. So
Speaker 1: South South Dakota says, our law only applies you only
Speaker 1: have to collect taxes if you make a certain amount
Speaker 1: of sales in the state. And anyone to know is
Speaker 1: that constitutionally or required that there be some sort of
Speaker 1: minimum amount of sales? And neither South Dakota nor the
Speaker 1: Trump administration was willing to say, yes, there is a
Speaker 1: constitutional minimum, or at least not a clear constitutional minimum.
Speaker 1: Not clear to me what the Chief Justice is going
Speaker 1: to do with that? That answer, Uh, he seems to
Speaker 1: be a vote, a vote that could go either way
Speaker 1: at this point. And how Brier It's some arguments this
Speaker 1: term has been camouflaging, is his or at least asking
Speaker 1: questions so much of both sides. How Howard did Briar
Speaker 1: and um and Kagan react Yes, I would say Briar
Speaker 1: was sort of camouflaged in plain sight, as he does sometimes.
Speaker 1: He essentially told people what his problem was, which is that, um,
Speaker 1: there are a lot of factual problems here that one
Speaker 1: side says, oh, alliance with with state taxation will be
Speaker 1: really really hard for small retailers. The other side says, oh, actually,
Speaker 1: you get the software. It takes care of everything. And
Speaker 1: he basically said, I don't know what what the right
Speaker 1: answer to that is, and UM, I don't know how
Speaker 1: I'm going to figure that out. And it's the kind
Speaker 1: of thing that Congress we have much better equipped for
Speaker 1: for dealing with. Now, it's important that you know, regardless
Speaker 1: how this case comes out, Congress could essentially overturn what
Speaker 1: the Court does. This is not an area where the
Speaker 1: court gets the final word. UM so uh, the question
Speaker 1: is kind of what the Court's gonna create as the
Speaker 1: default rule. What's going to be the rule going forward
Speaker 1: unless Congress, which of course has some trouble passing legislation.
Speaker 1: Unless Congress passes UH legislation to deal with us. So, Greg,
Speaker 1: we've only a minute here. I'm gonna ask you a
Speaker 1: big question. You know you're there all the time. So
Speaker 1: we see this, you know, from time to time, and
Speaker 1: it seems as if there might be some unusual alliances
Speaker 1: forming a different of these arguments. Um, is that true
Speaker 1: or is it basically still liberals versus the Conservatives. Well,
Speaker 1: so this case today involves something called the dormant commerce cause,
Speaker 1: and that is an area where it comma defies ideological
Speaker 1: uh description. So that's not that much of a surprise.
Speaker 1: The Gorsets. The first case we talked about today with
Speaker 1: the deportation case with Gorset's joined the liberals, was definitely noteworthy. Um,
Speaker 1: and that's something to watch going forward. Um that there
Speaker 1: might be occasions when he sort of goes against type
Speaker 1: and votes with the liberals. Well, it's always nice to
Speaker 1: seem see crossing of those lines anyway, Thanks so much, Greg.
Speaker 1: As always, that's Bloomberg Supreme Court Report at Greg's store,
Speaker 1: and he'll be of course following the arguments again tomorrow.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg. Yeah,