1 00:00:02,920 --> 00:00:07,280 Speaker 1: Bloomberg Audio Studios, podcasts, radio news. 2 00:00:09,760 --> 00:00:13,280 Speaker 2: You're listening to the Bloomberg Balance of Power podcast. Catch 3 00:00:13,360 --> 00:00:17,040 Speaker 2: us live weekdays at noon Eastern on Applecarplay. 4 00:00:16,200 --> 00:00:18,480 Speaker 3: And then Rouno with the Bloomberg Business app. 5 00:00:18,560 --> 00:00:21,720 Speaker 2: Listen on demand wherever you get your podcasts, or watch 6 00:00:21,800 --> 00:00:25,320 Speaker 2: us live on YouTube. 7 00:00:26,079 --> 00:00:28,880 Speaker 4: And if anyone asks, from here on out, I am 8 00:00:28,960 --> 00:00:34,760 Speaker 4: acting in my official duties as a Bloomberg employee and 9 00:00:34,840 --> 00:00:39,800 Speaker 4: as host of this program. We're invoking broadcast immunity today 10 00:00:41,040 --> 00:00:43,640 Speaker 4: as we turned to Trump versus the United States. Everybody 11 00:00:43,680 --> 00:00:45,519 Speaker 4: got up early today in Washington, at least those of 12 00:00:45,600 --> 00:00:48,840 Speaker 4: us who are left pretty quiet in town. Senate gone, 13 00:00:48,920 --> 00:00:52,000 Speaker 4: the House is out. President making his way back from 14 00:00:52,040 --> 00:00:55,680 Speaker 4: Camp David. No traffic, but everyone dialed in on the 15 00:00:55,720 --> 00:01:00,960 Speaker 4: Supreme Court, which rule Donald Trump has in fact immunity 16 00:01:01,720 --> 00:01:05,440 Speaker 4: from criminal charges for his efforts to reverse the twenty 17 00:01:05,520 --> 00:01:11,240 Speaker 4: twenty election results. Six to three ideological lines. Not a shock, 18 00:01:11,440 --> 00:01:16,360 Speaker 4: but also not simple. They're basically kicking this back down 19 00:01:16,440 --> 00:01:19,560 Speaker 4: to the Appeals Court to determine what counts as an 20 00:01:19,640 --> 00:01:24,840 Speaker 4: official duty and official action versus a private one when 21 00:01:24,880 --> 00:01:27,360 Speaker 4: it comes to in this case, Donald Trump or any president. 22 00:01:27,400 --> 00:01:28,640 Speaker 5: Moving forward here. 23 00:01:29,360 --> 00:01:32,479 Speaker 4: We're going to get into the contours of this ruling, 24 00:01:32,520 --> 00:01:35,480 Speaker 4: a ruling for the ages we were told back in 25 00:01:35,600 --> 00:01:41,720 Speaker 4: April by the Chief Justice. But in fact the court 26 00:01:41,840 --> 00:01:46,199 Speaker 4: once again didn't really rule. They just kicked it back 27 00:01:46,240 --> 00:01:50,000 Speaker 4: down in this case to the appeals court, and Jack 28 00:01:50,080 --> 00:01:54,920 Speaker 4: Smith is left holding the bag in what looks like 29 00:01:55,000 --> 00:01:58,920 Speaker 4: a January sixth trial that simply cannot begin before the election. 30 00:02:00,080 --> 00:02:01,360 Speaker 5: Get into it on. 31 00:02:01,280 --> 00:02:03,600 Speaker 4: This day that Donald Trump calls it a big win 32 00:02:03,880 --> 00:02:07,720 Speaker 4: for our constitution and democracy. Proud to be an American, 33 00:02:07,760 --> 00:02:11,000 Speaker 4: he writes in all caps exclamation point on truth. Social 34 00:02:11,639 --> 00:02:14,240 Speaker 4: Eric Larson's been waiting for this ruling, just like we 35 00:02:14,360 --> 00:02:18,800 Speaker 4: have reporting for Bloomberg, our legal reporter who spent many 36 00:02:18,880 --> 00:02:22,240 Speaker 4: days in a criminal courthouse in Lower Manhattan following Donald 37 00:02:22,280 --> 00:02:24,600 Speaker 4: Trump through his legal saga. Now to this ruling by 38 00:02:24,600 --> 00:02:27,120 Speaker 4: the Supreme Court. Eric, it's great to see you. Donald 39 00:02:27,120 --> 00:02:29,440 Speaker 4: Trump is spending this as good news. Can we qualify 40 00:02:29,520 --> 00:02:30,040 Speaker 4: it as such? 41 00:02:31,360 --> 00:02:34,040 Speaker 6: I suppose it is, and that you mentioned this trial 42 00:02:34,120 --> 00:02:36,960 Speaker 6: is now very unlikely to happen before the election. And 43 00:02:37,000 --> 00:02:38,919 Speaker 6: we know that Trump has said that if he wins 44 00:02:38,919 --> 00:02:41,519 Speaker 6: the election, he would use the power of the presidency 45 00:02:41,600 --> 00:02:44,840 Speaker 6: to direct the Justice Department to throw out this case, 46 00:02:45,800 --> 00:02:49,160 Speaker 6: but generally, more generally speaking, Trump did want this entire 47 00:02:49,240 --> 00:02:52,680 Speaker 6: case thrown out. He argued that everything he did around 48 00:02:52,760 --> 00:02:57,200 Speaker 6: January sixth and the election was protected by immunity, and 49 00:02:57,280 --> 00:03:00,440 Speaker 6: the court did not go that far. These charges remain. 50 00:03:01,680 --> 00:03:04,040 Speaker 6: At least one of the charges or some of the 51 00:03:04,080 --> 00:03:07,440 Speaker 6: allegations now probably cannot be used in court. The Supreme 52 00:03:07,480 --> 00:03:10,840 Speaker 6: Court said that some of Trump's communications with the Attorney 53 00:03:10,840 --> 00:03:12,919 Speaker 6: General at the time around the election, trying to get 54 00:03:12,919 --> 00:03:16,120 Speaker 6: the Justice Department to back his election fraud claims, which 55 00:03:16,160 --> 00:03:19,440 Speaker 6: they did not do, some of that is of an 56 00:03:19,440 --> 00:03:21,760 Speaker 6: official acts and probably cannot be used in the case 57 00:03:21,800 --> 00:03:24,000 Speaker 6: now going forward. But a lot of the other conduct 58 00:03:24,400 --> 00:03:28,959 Speaker 6: alleged in the indictment is going to potentially be private conduct, 59 00:03:29,000 --> 00:03:31,560 Speaker 6: in which means that those charges could go to trial. 60 00:03:32,520 --> 00:03:35,120 Speaker 6: And so it's not a total win for Trump here, 61 00:03:35,200 --> 00:03:37,800 Speaker 6: but this case survives and goes forward. 62 00:03:39,120 --> 00:03:41,880 Speaker 4: It does indeed, and I guess the Appeals Court will 63 00:03:41,920 --> 00:03:43,880 Speaker 4: now have to create some sort of a test or 64 00:03:44,360 --> 00:03:48,600 Speaker 4: a way to delineate what counts as official and what 65 00:03:48,680 --> 00:03:51,040 Speaker 4: does not. Is that the next phase. 66 00:03:50,880 --> 00:03:54,440 Speaker 6: Yes, yeah, eventually, Judge Chuckkin in Washington is going to 67 00:03:54,480 --> 00:03:57,760 Speaker 6: restart this long stalled case will probably have to have 68 00:03:57,840 --> 00:04:00,840 Speaker 6: something like a mini trial to have Jackson, this special 69 00:04:01,160 --> 00:04:04,840 Speaker 6: council come in and argue, give fresh evidence, maybe even 70 00:04:04,880 --> 00:04:08,800 Speaker 6: have testimony from experts to explain why these allegations were 71 00:04:08,840 --> 00:04:14,160 Speaker 6: private conduct by a losing presidential candidate and not by 72 00:04:14,200 --> 00:04:16,479 Speaker 6: a president. So they're going to have to explain to 73 00:04:16,560 --> 00:04:19,719 Speaker 6: the judge in more detail why some of these actions 74 00:04:19,760 --> 00:04:23,440 Speaker 6: just simply were not protected by immunity. And depending on 75 00:04:23,480 --> 00:04:26,599 Speaker 6: how she rules eventually on that, it's likely that this 76 00:04:26,640 --> 00:04:28,760 Speaker 6: case could find its way back to the Supreme Court 77 00:04:29,360 --> 00:04:31,800 Speaker 6: and they'll have to decide whether she was correct and 78 00:04:31,839 --> 00:04:34,800 Speaker 6: deciding what was official versus private, And if any of 79 00:04:34,800 --> 00:04:38,000 Speaker 6: the charges survive that then eventually we'll have a trial. 80 00:04:39,600 --> 00:04:42,640 Speaker 4: Boy, Okay, but again, if Donald Trump is reelected, he 81 00:04:42,640 --> 00:04:45,400 Speaker 4: could essentially defund this entire exercise. 82 00:04:45,480 --> 00:04:47,000 Speaker 5: Is that the way he would bring it to an end, 83 00:04:47,760 --> 00:04:48,240 Speaker 5: I believe. 84 00:04:48,279 --> 00:04:50,600 Speaker 6: So if he wins the election, It's not as if 85 00:04:50,600 --> 00:04:53,800 Speaker 6: he can just on day one order the Justice Department 86 00:04:53,839 --> 00:04:56,479 Speaker 6: to do this. He's going to have to find you know, 87 00:04:56,480 --> 00:04:58,480 Speaker 6: he's going to have to get an attorney general in place. No, 88 00:04:58,520 --> 00:04:59,840 Speaker 6: there are steps he's going to have to go through. 89 00:04:59,839 --> 00:05:04,000 Speaker 6: To have the prosecution thrown out, but certainly that is 90 00:05:04,040 --> 00:05:06,880 Speaker 6: something that he will try to do, so of course 91 00:05:06,960 --> 00:05:09,840 Speaker 6: everything hinges for him on whether he wins the election 92 00:05:10,160 --> 00:05:10,400 Speaker 6: or not. 93 00:05:12,640 --> 00:05:13,400 Speaker 5: Eric, it's great to. 94 00:05:13,360 --> 00:05:16,279 Speaker 4: Have you a big day of Eric Larson Bloomberg Legal reporter, 95 00:05:16,320 --> 00:05:19,600 Speaker 4: appreciate the insights and a ruling that is just not 96 00:05:19,680 --> 00:05:22,880 Speaker 4: even two hours old here coming from the Supreme Court 97 00:05:22,960 --> 00:05:27,119 Speaker 4: on what is now officially the last day of the term. 98 00:05:27,279 --> 00:05:31,720 Speaker 4: This was the parting shot, as the Chief Justice suggested, 99 00:05:32,640 --> 00:05:35,960 Speaker 4: adding the voice now of Robert mcwerder been looking forward 100 00:05:36,000 --> 00:05:39,360 Speaker 4: to this criminal and constitutional law attorney. We've spent many 101 00:05:39,400 --> 00:05:42,760 Speaker 4: hours talking about Donald Trump's criminal charges of Lower Manhattan. 102 00:05:42,760 --> 00:05:44,480 Speaker 4: This is a whole different can of worms here as 103 00:05:44,520 --> 00:05:47,480 Speaker 4: we turn to the Supreme Court, and Robert has an 104 00:05:47,520 --> 00:05:49,160 Speaker 4: expertise in constitutional law. 105 00:05:49,160 --> 00:05:51,120 Speaker 5: It's great to have you back here. Robert. 106 00:05:51,160 --> 00:05:53,359 Speaker 4: I want to point you to the Seal Team six 107 00:05:53,560 --> 00:05:56,800 Speaker 4: argument because I'm trying to understand what we really just 108 00:05:56,880 --> 00:05:58,320 Speaker 4: learned here, and I know that this is going to 109 00:05:58,400 --> 00:06:00,000 Speaker 4: go down back down to the appeals court. 110 00:06:00,120 --> 00:06:02,120 Speaker 5: But you remember Trump's attorney. 111 00:06:01,800 --> 00:06:05,760 Speaker 4: John Sower, was asked in the throes of arguments here 112 00:06:05,880 --> 00:06:10,000 Speaker 4: in April, if, in fact, the presidents had immunity, couldn't 113 00:06:10,000 --> 00:06:14,960 Speaker 4: they then dispatch Seal Team six to kill a political opponent? 114 00:06:15,680 --> 00:06:17,560 Speaker 5: He said a qualified yes to that. 115 00:06:18,520 --> 00:06:21,680 Speaker 4: So could Joe Biden, now that we've got the ruling here, 116 00:06:21,800 --> 00:06:25,159 Speaker 4: direct Seal Team six to start killing his opponents? 117 00:06:26,440 --> 00:06:29,040 Speaker 7: Well, yeah, and let's let me show you. I could 118 00:06:29,040 --> 00:06:31,479 Speaker 7: create it as part of an official act. Let's say 119 00:06:31,560 --> 00:06:35,040 Speaker 7: that in all the documents that they found that Trump 120 00:06:35,080 --> 00:06:38,200 Speaker 7: had squirreled away down at mar Lago, and he finds 121 00:06:38,240 --> 00:06:40,560 Speaker 7: some indication that he was going to give those to 122 00:06:40,640 --> 00:06:43,360 Speaker 7: Vladimir Putin so he could open a hotel in Moscow. 123 00:06:45,080 --> 00:06:48,719 Speaker 7: Joe Biden could declare, as part of his official duties 124 00:06:49,160 --> 00:06:52,520 Speaker 7: that Donald threat is Donald Trump is a threat, and 125 00:06:52,560 --> 00:06:54,839 Speaker 7: he could eliminate that threat, and as part of his 126 00:06:54,880 --> 00:06:59,400 Speaker 7: official duties, he could no longer be prosecuted. And according 127 00:06:59,440 --> 00:07:02,479 Speaker 7: to the Supreme Court's argument, if he was ever prosecuted 128 00:07:02,560 --> 00:07:06,120 Speaker 7: later for acts that were determined not to be official duties, 129 00:07:06,120 --> 00:07:08,520 Speaker 7: they can't even refer to acts that he did as 130 00:07:08,560 --> 00:07:11,800 Speaker 7: part of his official duties. I'll give you another example. 131 00:07:11,960 --> 00:07:15,560 Speaker 7: The Supreme Court opinion said that the conversations Donald Trump 132 00:07:15,600 --> 00:07:19,600 Speaker 7: had with the Department of Justice where he talked about 133 00:07:19,600 --> 00:07:23,840 Speaker 7: overturning the election, that, according to the Supreme Court, is 134 00:07:23,920 --> 00:07:28,200 Speaker 7: part of official duties. Even though Donald Trump was talking 135 00:07:28,200 --> 00:07:32,600 Speaker 7: about overturning a fair and free election and instigating an insurrection, 136 00:07:34,000 --> 00:07:37,600 Speaker 7: and so not only can he not be prosecuted for 137 00:07:37,640 --> 00:07:41,880 Speaker 7: anything that's quote an official duty, things that arguably happened 138 00:07:41,920 --> 00:07:45,160 Speaker 7: within the context of being president talking to an attorney general, 139 00:07:45,200 --> 00:07:48,200 Speaker 7: even though it's talking about an insurrection and implementing an 140 00:07:48,240 --> 00:07:51,480 Speaker 7: insurrection or a coup could not even come in as 141 00:07:51,520 --> 00:07:52,720 Speaker 7: evidence in a later case. 142 00:07:54,040 --> 00:07:54,760 Speaker 5: It's incredible. 143 00:07:54,800 --> 00:07:58,680 Speaker 4: So I guess I'm left asking what doesn't count as 144 00:07:59,280 --> 00:08:01,720 Speaker 4: an official acts if you're the president and you're thinking 145 00:08:01,720 --> 00:08:04,119 Speaker 4: it and talking about it, where do we draw the line? 146 00:08:05,680 --> 00:08:08,119 Speaker 7: Well, okay, stuff that he does outside of the scope 147 00:08:08,120 --> 00:08:11,200 Speaker 7: of being president. So for instance, the Stormy Daniel's case, 148 00:08:11,240 --> 00:08:14,280 Speaker 7: if it would have been federal, would not count stuff 149 00:08:14,280 --> 00:08:19,720 Speaker 7: he does afterwards. Presumably, and it's a big presumably that 150 00:08:20,040 --> 00:08:24,120 Speaker 7: let's say Donald Trump, while he was president made a 151 00:08:24,160 --> 00:08:27,560 Speaker 7: deal to put up a hotel someplace, and he fraudulently 152 00:08:28,120 --> 00:08:31,520 Speaker 7: built a bunch of investors or something like that. The 153 00:08:31,560 --> 00:08:33,960 Speaker 7: Court says that the presumption is that it's part of 154 00:08:33,960 --> 00:08:36,680 Speaker 7: his official duties. But a prosecutor could then fight against 155 00:08:36,720 --> 00:08:40,160 Speaker 7: that presumption and bring a case. But it's presumably part 156 00:08:40,160 --> 00:08:43,959 Speaker 7: of official duties. But supposedly he could do that. If 157 00:08:44,000 --> 00:08:47,920 Speaker 7: Donald Trump decided to shoot somebody down Fifth Avenue, like 158 00:08:48,000 --> 00:08:52,439 Speaker 7: he's bragged that he could do. If it's if it's 159 00:08:52,520 --> 00:08:56,640 Speaker 7: during the time he's president, it probably could be prosecuted. 160 00:08:56,679 --> 00:09:00,360 Speaker 7: But the prosecutor has to presume beat the presumption that 161 00:09:00,400 --> 00:09:02,959 Speaker 7: it's not part of the official duties. The prosecutor now 162 00:09:02,960 --> 00:09:05,560 Speaker 7: has the burden of proof to show it's not part 163 00:09:05,559 --> 00:09:07,520 Speaker 7: of the official duties, rather than the other way around. 164 00:09:10,400 --> 00:09:14,120 Speaker 4: To think that we're back to shooting somebody on Fifth Avenue. 165 00:09:14,160 --> 00:09:16,200 Speaker 4: This can't be real, all right, I've got a lot 166 00:09:16,280 --> 00:09:20,080 Speaker 4: of questions for you, Robert. I'm supposed to tell everybody 167 00:09:20,080 --> 00:09:23,600 Speaker 4: that this indefinitely delays I already did. This indefinitely delays 168 00:09:23,640 --> 00:09:27,200 Speaker 4: Jacksmith's trial because smart people like you have suggested as 169 00:09:27,280 --> 00:09:30,440 Speaker 4: much along the way. But why can't the judge Why 170 00:09:30,559 --> 00:09:33,920 Speaker 4: not just start the trial right now and answer some 171 00:09:34,000 --> 00:09:37,839 Speaker 4: of these questions about official acts during the trial. The 172 00:09:38,000 --> 00:09:41,520 Speaker 4: Supreme Court doesn't say anything that would barrow that from happening. 173 00:09:41,160 --> 00:09:45,079 Speaker 7: Does it well, the Supreme Court actually did. What they 174 00:09:45,120 --> 00:09:47,520 Speaker 7: did is they said it has to be remanded to 175 00:09:47,640 --> 00:09:51,840 Speaker 7: the lower court for proceedings to determine whether this was 176 00:09:52,080 --> 00:09:55,560 Speaker 7: or was not an official act, which means they have 177 00:09:55,600 --> 00:09:59,040 Speaker 7: to have a pre trial evidentiary hearing which could take 178 00:09:59,160 --> 00:10:03,000 Speaker 7: weeks if not more, to determine and make a legal 179 00:10:03,080 --> 00:10:06,040 Speaker 7: ruling whether this whatever Donald Trump was part of an 180 00:10:06,040 --> 00:10:08,840 Speaker 7: official act. And of course every time the judge makes 181 00:10:08,840 --> 00:10:12,280 Speaker 7: a ruling against Donald Trump, that ruling can now be 182 00:10:12,320 --> 00:10:16,160 Speaker 7: appealed again to the higher courts, which takes time. So 183 00:10:16,640 --> 00:10:20,160 Speaker 7: actually the Supreme Court is built in, baked in a 184 00:10:20,240 --> 00:10:23,480 Speaker 7: complete delay or whatever happens, because you just can't go 185 00:10:23,559 --> 00:10:25,640 Speaker 7: to the jury now and say this should be a 186 00:10:25,720 --> 00:10:28,040 Speaker 7: jury question. The Supreme Court pretty clearly said this is 187 00:10:28,080 --> 00:10:31,200 Speaker 7: a legal question for judges to determine. 188 00:10:31,720 --> 00:10:37,359 Speaker 4: So that is why the ruling today is so important Politically. 189 00:10:37,400 --> 00:10:39,360 Speaker 4: We're talking to a legal mind right now. And by 190 00:10:39,440 --> 00:10:41,959 Speaker 4: the way, Robert's a pretty good political analyst from the 191 00:10:42,000 --> 00:10:44,360 Speaker 4: conversations we've had. But that is one of the most 192 00:10:44,360 --> 00:10:47,319 Speaker 4: important things that you're going to hear today. I wonder 193 00:10:47,360 --> 00:10:52,320 Speaker 4: your thoughts on the dissent from Justice Soda mayor it 194 00:10:52,360 --> 00:10:55,920 Speaker 4: makes a mockery of the principal foundation to our constitution 195 00:10:56,040 --> 00:10:59,280 Speaker 4: and system of government, that no man is above the law. 196 00:11:00,120 --> 00:11:04,680 Speaker 7: She right, yeah, she is right. You know, the country 197 00:11:04,679 --> 00:11:07,240 Speaker 7: began with the Declaration Independence. I may have made this 198 00:11:07,320 --> 00:11:11,240 Speaker 7: point before, and the declaration says we hold these choose 199 00:11:11,320 --> 00:11:13,360 Speaker 7: to be self evident, that all men are created equal. 200 00:11:13,559 --> 00:11:16,960 Speaker 7: After that, it goes through what's basically an indictment of 201 00:11:17,000 --> 00:11:20,400 Speaker 7: the executive King George the third and one of those 202 00:11:20,800 --> 00:11:23,880 Speaker 7: basis for indictments. For reason why King George should not 203 00:11:24,000 --> 00:11:28,720 Speaker 7: be our sovereign anymore our executive leader is because quote 204 00:11:28,800 --> 00:11:33,079 Speaker 7: he has incited domestic insurrection among us end quote. When 205 00:11:33,200 --> 00:11:35,960 Speaker 7: we wrote the constitution as a country, when this country, 206 00:11:35,960 --> 00:11:38,319 Speaker 7: he did it with the founding fathers, they did not 207 00:11:38,600 --> 00:11:41,679 Speaker 7: want executives to have this kind of power. The president 208 00:11:41,720 --> 00:11:45,720 Speaker 7: actually has very few powers under the Constitution. Most powers 209 00:11:45,720 --> 00:11:49,600 Speaker 7: of president exercises are by Acts of Congress which he 210 00:11:49,720 --> 00:11:53,000 Speaker 7: is obligated to execute as part of the executive branch. 211 00:11:54,000 --> 00:11:58,560 Speaker 7: So I think Justice Sodo Mayor is absolutely correct, as 212 00:11:58,600 --> 00:12:02,240 Speaker 7: are the other three dissenters, and Justice Amy Coney Barrett 213 00:12:02,240 --> 00:12:06,560 Speaker 7: in her concurrence also said on that point about not 214 00:12:06,679 --> 00:12:09,800 Speaker 7: letting juris hear what the president did during his official 215 00:12:09,840 --> 00:12:12,920 Speaker 7: acts as it could reflect on his later criminal conduct. 216 00:12:13,040 --> 00:12:15,760 Speaker 7: She was right as well in that part. She joined 217 00:12:15,760 --> 00:12:19,760 Speaker 7: the dissenters, so they are correct on this in terms 218 00:12:19,760 --> 00:12:22,520 Speaker 7: of the country that our framers wanted to correct. Remember, 219 00:12:22,960 --> 00:12:26,200 Speaker 7: we didn't want King George the third, and what this 220 00:12:26,280 --> 00:12:30,280 Speaker 7: immunity does is exactly what the king had, and that's 221 00:12:30,320 --> 00:12:32,160 Speaker 7: why we didn't create our country that way. 222 00:12:33,600 --> 00:12:37,040 Speaker 4: Yet here we are, Robert and I one of your thoughts. Then, 223 00:12:37,040 --> 00:12:40,040 Speaker 4: on the timeline, Judge chuck In previously said she would 224 00:12:40,080 --> 00:12:43,040 Speaker 4: allow three months to prepare for a trial that could 225 00:12:43,160 --> 00:12:47,000 Speaker 4: last two to three months in duration. There's no chance 226 00:12:47,040 --> 00:12:48,360 Speaker 4: this is going to happen, or are we going to 227 00:12:48,360 --> 00:12:52,600 Speaker 4: find ourselves with potentially a president elect on trial. 228 00:12:53,559 --> 00:12:56,120 Speaker 7: We could profine ourselves with a president elect on trial, 229 00:12:56,520 --> 00:13:00,960 Speaker 7: but realize the moment he becomes president, he can shut 230 00:13:01,000 --> 00:13:04,559 Speaker 7: the whole thing down. So presumably if they could get 231 00:13:04,559 --> 00:13:08,360 Speaker 7: in well, you know, before January of twenty twenty five, 232 00:13:08,720 --> 00:13:10,320 Speaker 7: they could probably do it. But I don't even see 233 00:13:10,320 --> 00:13:13,280 Speaker 7: how that happens. Look, there's an old saying among lawyers 234 00:13:13,320 --> 00:13:15,720 Speaker 7: that you know, any lawyer can win on good facts, 235 00:13:15,720 --> 00:13:17,840 Speaker 7: but it takes a real lawyer to win on procedure. 236 00:13:18,240 --> 00:13:21,040 Speaker 7: Donald Trump's winning on procedure, and so are his lawyers. 237 00:13:21,360 --> 00:13:23,920 Speaker 7: And they have a willing and able Supreme Court that's 238 00:13:24,040 --> 00:13:26,720 Speaker 7: right in their pocket to do it. And that's what's happened. 239 00:13:26,800 --> 00:13:31,240 Speaker 5: That's amazing. So kudos Donald Trump's legal team. 240 00:13:33,440 --> 00:13:36,680 Speaker 7: Yeah, I suppose so. Yeah, they had a good environment though. 241 00:13:36,800 --> 00:13:39,440 Speaker 7: I mean, look, the DC Court of Appeals, three rather 242 00:13:39,559 --> 00:13:43,320 Speaker 7: conservative judges on the DC Court of Appeals, disposed of 243 00:13:43,320 --> 00:13:45,360 Speaker 7: this case quickly, and the Supreme Court could have. 244 00:13:45,360 --> 00:13:45,960 Speaker 2: Let that sit. 245 00:13:46,360 --> 00:13:50,679 Speaker 7: It could have waited for another case where somebody brings 246 00:13:50,760 --> 00:13:54,120 Speaker 7: some absurd kind of argument against a president or a 247 00:13:54,160 --> 00:13:59,120 Speaker 7: former president. For instance, somebody, some county attorney someplace could say, oh, 248 00:13:59,200 --> 00:14:02,040 Speaker 7: Joe Biden is been criminal in his actions of not 249 00:14:02,080 --> 00:14:04,840 Speaker 7: defending the United States border. That could have been a 250 00:14:04,880 --> 00:14:06,800 Speaker 7: case that could have gone up to define some of 251 00:14:06,840 --> 00:14:11,520 Speaker 7: the boundaries of presidential immunity. This case is what almost 252 00:14:11,520 --> 00:14:14,920 Speaker 7: amounts to what we call an advisory opinion, which Supreme 253 00:14:14,960 --> 00:14:17,800 Speaker 7: Court is not supposed to do. The Supreme Court doesn't 254 00:14:17,800 --> 00:14:20,600 Speaker 7: give you opinions about what the law should be. It 255 00:14:20,720 --> 00:14:24,880 Speaker 7: decides the cases and controversies that come before it. They 256 00:14:25,120 --> 00:14:29,000 Speaker 7: actually reached down and created the case to bring up 257 00:14:29,000 --> 00:14:31,840 Speaker 7: on this and to give this expansive power, which is 258 00:14:31,920 --> 00:14:35,200 Speaker 7: nowhere in the constitution. You will not find one word 259 00:14:35,680 --> 00:14:38,800 Speaker 7: in the United States Constitution about presidentially that's correct. 260 00:14:39,560 --> 00:14:43,160 Speaker 4: Immunity nowhere to be found. Take it from Robert macwurder. 261 00:14:43,200 --> 00:14:45,240 Speaker 4: I'm sure glad you could talk to us today. Robert, 262 00:14:45,280 --> 00:14:48,880 Speaker 4: many thanks for being with us criminal and constitutional law attorney, 263 00:14:48,920 --> 00:14:49,680 Speaker 4: keeping us honest. 264 00:14:49,720 --> 00:14:54,800 Speaker 2: Here at Bloomberg, you're listening to the Bloomberg Balance of 265 00:14:54,840 --> 00:14:58,160 Speaker 2: Power podcast kens just Live weekdays at noon Eastern on 266 00:14:58,280 --> 00:14:59,440 Speaker 2: Applecarplay and then. 267 00:14:59,400 --> 00:15:01,280 Speaker 3: Roun Oo with the Bloomberg Business app. 268 00:15:01,440 --> 00:15:04,320 Speaker 8: You can also listen live on Amazon Alexa from our 269 00:15:04,320 --> 00:15:08,600 Speaker 8: flagship New York station, Just Say Alexa Play Bloomberg eleven. 270 00:15:08,400 --> 00:15:13,120 Speaker 9: Thirty, the last day of a term that extended into July, 271 00:15:13,640 --> 00:15:16,280 Speaker 9: and at the very last moment, the last opinion comes down, 272 00:15:16,760 --> 00:15:19,640 Speaker 9: and it's a big one. The High Court ruling six 273 00:15:19,680 --> 00:15:23,120 Speaker 9: to three that Donald Trump does have some immunity from 274 00:15:23,200 --> 00:15:28,000 Speaker 9: prosecution for official acts he took during his presidency. But 275 00:15:28,080 --> 00:15:31,800 Speaker 9: Chief Justice John Roberts Joe, writing in his majority opinion, 276 00:15:32,120 --> 00:15:35,320 Speaker 9: the president is not above the law. I guess it's 277 00:15:35,360 --> 00:15:37,160 Speaker 9: just a question of to what. 278 00:15:37,200 --> 00:15:39,480 Speaker 5: Extent, Yeah, where's the line, what's official? 279 00:15:39,520 --> 00:15:42,200 Speaker 4: And I guess we're going to go through this exercise now, Kaylee, 280 00:15:42,200 --> 00:15:44,920 Speaker 4: to truly delineate what counts, and that's going to take 281 00:15:44,920 --> 00:15:47,200 Speaker 4: a while, which is why it's likely now that Jacksmith's 282 00:15:47,240 --> 00:15:49,360 Speaker 4: trial will not be able to take place before the election, 283 00:15:49,400 --> 00:15:53,000 Speaker 4: and if Donald Trump wins the election, it probably will 284 00:15:53,040 --> 00:15:55,360 Speaker 4: never take place at all. It's where we start our 285 00:15:55,360 --> 00:15:59,120 Speaker 4: conversation with Donald Ayir, a very important voice in this 286 00:15:59,160 --> 00:16:02,120 Speaker 4: story you've heard for here on Bloomberg TV and radio, 287 00:16:02,200 --> 00:16:05,720 Speaker 4: the former Deputy US Attorney General and former Principal Deputy 288 00:16:05,800 --> 00:16:08,920 Speaker 4: Solicitor General of the United States. Donald, Welcome back to 289 00:16:08,960 --> 00:16:10,800 Speaker 4: the table. It's really great to see you, and thank 290 00:16:10,800 --> 00:16:13,600 Speaker 4: you for being here on this day of days. I 291 00:16:13,600 --> 00:16:15,880 Speaker 4: think we have to start by acknowledging the fact that 292 00:16:15,960 --> 00:16:19,960 Speaker 4: once again this court didn't really rule in its ruling. 293 00:16:20,000 --> 00:16:22,280 Speaker 4: It simply remanded this back down to a lower court. 294 00:16:22,280 --> 00:16:23,480 Speaker 5: What the heck took so long? 295 00:16:23,920 --> 00:16:27,480 Speaker 1: Well, I don't know. And one can speculate about motives and. 296 00:16:27,440 --> 00:16:29,320 Speaker 5: Why, and they're already speculating. 297 00:16:29,520 --> 00:16:31,200 Speaker 1: I mean, there's a lot one can say, but I 298 00:16:31,200 --> 00:16:34,680 Speaker 1: think probably for now, having just a couple hours ago 299 00:16:34,840 --> 00:16:38,800 Speaker 1: gotten this decision, probably worth talking about what the decision 300 00:16:39,200 --> 00:16:42,320 Speaker 1: is and says. And I guess what I would I 301 00:16:42,320 --> 00:16:46,960 Speaker 1: would say is that it's got a plausible framework and 302 00:16:47,080 --> 00:16:54,480 Speaker 1: a very pro immunity spin to it. Court basically starts out, 303 00:16:54,760 --> 00:16:58,160 Speaker 1: you know, saying that conduct within the outer perimeter of 304 00:16:58,280 --> 00:17:03,400 Speaker 1: duties is presumptive subject to immunity, and that conduct that's 305 00:17:03,440 --> 00:17:06,719 Speaker 1: not within the outer perimitive duties is not. And then 306 00:17:06,760 --> 00:17:09,840 Speaker 1: you get into the question of what is and what 307 00:17:09,960 --> 00:17:12,879 Speaker 1: is not within the outer perimeter of the duties. And 308 00:17:12,960 --> 00:17:16,960 Speaker 1: the court ends up taking a very broad view of 309 00:17:17,000 --> 00:17:19,919 Speaker 1: what is within the outer perimeter of the duties, and 310 00:17:19,960 --> 00:17:23,639 Speaker 1: they do it in part by looking at specific of 311 00:17:23,680 --> 00:17:29,640 Speaker 1: allegations within the Trump indictment and in the January sixth case. 312 00:17:29,640 --> 00:17:31,080 Speaker 1: And we can go through that if you want to. 313 00:17:31,160 --> 00:17:33,960 Speaker 1: In terms of what they said and what they ended 314 00:17:34,040 --> 00:17:38,720 Speaker 1: up saying was geez a lot of Effectively, there's possibilities 315 00:17:38,720 --> 00:17:41,600 Speaker 1: that a lot of the things alleged could be subject 316 00:17:41,640 --> 00:17:43,560 Speaker 1: to immunity well. 317 00:17:43,400 --> 00:17:46,240 Speaker 9: And so that gets down the delineation between official acts 318 00:17:46,240 --> 00:17:48,720 Speaker 9: and unofficial acts and what exactly could be prosecuted. But 319 00:17:48,760 --> 00:17:51,280 Speaker 9: what's noteworthy is. The Court today also ruled that even 320 00:17:51,400 --> 00:17:56,520 Speaker 9: evidence regarding official acts cannot be incorporated into a trial whenever, 321 00:17:56,640 --> 00:17:59,920 Speaker 9: if ever that takes place. How consequential is that part 322 00:18:00,040 --> 00:18:02,439 Speaker 9: of the ruling that not only the prosecution is in question, 323 00:18:02,520 --> 00:18:06,399 Speaker 9: but what you can enter into your arguments. 324 00:18:06,119 --> 00:18:09,560 Speaker 1: Well, if you're a pros it's quite consequential, and it's 325 00:18:09,600 --> 00:18:13,359 Speaker 1: I think highly questionable because as just as Soda my 326 00:18:13,520 --> 00:18:17,080 Speaker 1: Ort said and her descent, and as Amy Cony Barrett 327 00:18:17,160 --> 00:18:20,600 Speaker 1: said in her concurrence, this is not what the law is, 328 00:18:20,680 --> 00:18:24,480 Speaker 1: that's not what it's been. I think more consequential is 329 00:18:24,560 --> 00:18:28,399 Speaker 1: the way the Court spun the questions about what is 330 00:18:28,880 --> 00:18:33,840 Speaker 1: two things, what is within the outer perimeter? And secondly, 331 00:18:34,000 --> 00:18:37,200 Speaker 1: if it is within the outer perimeter and therefore presumptively 332 00:18:37,320 --> 00:18:40,879 Speaker 1: subject to immunity, how do you decide whether there is 333 00:18:40,920 --> 00:18:44,159 Speaker 1: immunity or not? And in both of those ways, the 334 00:18:44,240 --> 00:18:46,879 Speaker 1: Court has sort of set this thing in an angle 335 00:18:47,560 --> 00:18:50,000 Speaker 1: that makes you think. And then the other thing is 336 00:18:50,080 --> 00:18:51,920 Speaker 1: they're going to get the last word. They're going to 337 00:18:51,960 --> 00:18:53,479 Speaker 1: get the last word because this is going to be 338 00:18:53,480 --> 00:18:56,880 Speaker 1: bounced back to the distrect coord Distrecturt's going to have hearings, 339 00:18:56,920 --> 00:18:59,399 Speaker 1: it's going to answer these questions that the Court has 340 00:18:59,400 --> 00:19:01,439 Speaker 1: said have to be answered, then it's going to go 341 00:19:01,480 --> 00:19:05,240 Speaker 1: back up on appeal, and I must just answer it now. 342 00:19:05,640 --> 00:19:09,240 Speaker 9: Why wouldn't the Supreme Court just make those delineations itself, 343 00:19:09,320 --> 00:19:11,240 Speaker 9: knowing it'll ultimately come back to them anyway. 344 00:19:11,280 --> 00:19:14,280 Speaker 1: Well, they did in one instance do that. They made 345 00:19:14,280 --> 00:19:19,439 Speaker 1: a ruling that the former president's actions with regard to 346 00:19:19,560 --> 00:19:23,960 Speaker 1: the Attorney General the DOJ situation where he has control 347 00:19:24,200 --> 00:19:26,480 Speaker 1: of who's that did in the attorney general and he 348 00:19:27,040 --> 00:19:29,800 Speaker 1: took some steps to replace the Attorney general, and he 349 00:19:29,920 --> 00:19:32,560 Speaker 1: leaned on the Attorney General to send a letter to 350 00:19:32,840 --> 00:19:37,240 Speaker 1: Georgia and stuff like that. And essentially the Court said, well, well, 351 00:19:37,240 --> 00:19:40,120 Speaker 1: that's within the outer perimeter of his duties. Clearly he's 352 00:19:40,119 --> 00:19:42,399 Speaker 1: in charge of the Justice Department. But with regard to 353 00:19:43,240 --> 00:19:48,560 Speaker 1: three other categories of conduct, the Court said basically kind 354 00:19:48,560 --> 00:19:51,800 Speaker 1: of said things that said, well, it could be subject 355 00:19:51,800 --> 00:19:55,520 Speaker 1: to immunity, and we're going to remand it. But those 356 00:19:55,560 --> 00:20:00,639 Speaker 1: categories are indicative of really that's really subject possibly to immunity, 357 00:20:00,920 --> 00:20:03,120 Speaker 1: And so it puts a spin on it that causes 358 00:20:03,160 --> 00:20:06,600 Speaker 1: one to wonder, really how accountable the president can be 359 00:20:06,800 --> 00:20:07,840 Speaker 1: within this framework. 360 00:20:08,160 --> 00:20:10,320 Speaker 4: That's a great way of putting it. And I wonder 361 00:20:11,119 --> 00:20:14,160 Speaker 4: broadly when you consider the fact that we're even having 362 00:20:14,160 --> 00:20:19,040 Speaker 4: this conversation now, the American experiment rejected the idea of 363 00:20:19,119 --> 00:20:22,159 Speaker 4: having a king. Now, I realize you still need to 364 00:20:22,200 --> 00:20:24,720 Speaker 4: be elected, but it kind of sounds like you're a 365 00:20:24,800 --> 00:20:26,000 Speaker 4: king for four years? 366 00:20:26,080 --> 00:20:27,320 Speaker 5: Is that not right? 367 00:20:27,400 --> 00:20:30,719 Speaker 1: Well, I know, let's hope not. But I you know, 368 00:20:30,960 --> 00:20:33,639 Speaker 1: that's a spin one could put and wonder if it 369 00:20:33,680 --> 00:20:36,960 Speaker 1: isn't true, because it depends a lot on how these 370 00:20:37,040 --> 00:20:40,199 Speaker 1: issues turn out. I mean, for example, one of the 371 00:20:40,280 --> 00:20:43,840 Speaker 1: categories that they focused on was the allegations, which we're 372 00:20:43,840 --> 00:20:49,639 Speaker 1: all familiar with, about Trump interfering with calling state officials, 373 00:20:49,720 --> 00:20:53,399 Speaker 1: calling local officials, trying to influence the state vote count, 374 00:20:53,440 --> 00:20:55,920 Speaker 1: which is the job of the states to do. It's 375 00:20:55,960 --> 00:20:59,199 Speaker 1: not the federal job, it's not his job. It's not 376 00:20:59,480 --> 00:21:02,440 Speaker 1: arguably really within the scope of any job he's got, 377 00:21:02,680 --> 00:21:06,560 Speaker 1: unless you think he's in charge of everything. So and 378 00:21:06,600 --> 00:21:08,760 Speaker 1: the court said, well, gee hmm, that could be within 379 00:21:08,800 --> 00:21:11,399 Speaker 1: the outer perimeter. So we'll command that, we'll send that 380 00:21:11,480 --> 00:21:12,640 Speaker 1: back to the disrecord. 381 00:21:14,280 --> 00:21:14,520 Speaker 3: You know. 382 00:21:14,600 --> 00:21:21,359 Speaker 1: The the ultimate thing that they did that's most alarming, 383 00:21:21,840 --> 00:21:24,040 Speaker 1: one of the most alarming things to me about it 384 00:21:24,080 --> 00:21:27,400 Speaker 1: is that for all these things that may be arguably 385 00:21:27,520 --> 00:21:31,800 Speaker 1: within the outer perimeter of responsibility, which the Court seems 386 00:21:31,840 --> 00:21:35,960 Speaker 1: to think is very very broad, including speeches given on 387 00:21:36,760 --> 00:21:40,280 Speaker 1: January sixth, for example, communicating with the public. Well, that's 388 00:21:40,280 --> 00:21:43,960 Speaker 1: the president's job to communicate with the public. So what's 389 00:21:44,000 --> 00:21:47,919 Speaker 1: the test for deciding whether you're going to defeat this 390 00:21:48,119 --> 00:21:52,439 Speaker 1: presumptive immunity for things that are within the scope arguably, 391 00:21:53,240 --> 00:22:01,800 Speaker 1: And it's whether whether a prosecution with regard to it 392 00:22:02,359 --> 00:22:08,240 Speaker 1: the quote from the cases, could pose any dangers of 393 00:22:08,359 --> 00:22:11,800 Speaker 1: intrusions on the authority and function of the executive, any 394 00:22:11,880 --> 00:22:15,640 Speaker 1: dangers at all, will justify immunity, according to the court. 395 00:22:15,920 --> 00:22:18,199 Speaker 9: Well, so when you consider the kinds of questions that 396 00:22:18,240 --> 00:22:20,359 Speaker 9: were raised in the arguments back in April, one of 397 00:22:20,400 --> 00:22:24,240 Speaker 9: them was could the president tell Seals Team six to 398 00:22:24,320 --> 00:22:28,040 Speaker 9: assassinate a political rival? Under this framework that the Court 399 00:22:28,040 --> 00:22:31,639 Speaker 9: has just put forward, declaring that, including being commander in chief, 400 00:22:32,040 --> 00:22:36,840 Speaker 9: whatever you're doing in actions officially as president is prone 401 00:22:36,880 --> 00:22:39,720 Speaker 9: to immunity, you could be immune from prosecution. Would that 402 00:22:39,960 --> 00:22:42,920 Speaker 9: too be inclusive? As we consider, well, what anyone could 403 00:22:42,960 --> 00:22:43,320 Speaker 9: do in the. 404 00:22:43,240 --> 00:22:45,800 Speaker 1: Future, You tell me I mean, if the test is 405 00:22:46,480 --> 00:22:49,400 Speaker 1: would it that this is the only test the court provided, 406 00:22:49,440 --> 00:22:55,119 Speaker 1: would it pose any danger of intrusion on the president's 407 00:22:55,119 --> 00:22:59,080 Speaker 1: exercise of his powers? And if you apply that test, 408 00:23:00,080 --> 00:23:00,359 Speaker 1: tell me. 409 00:23:00,560 --> 00:23:02,880 Speaker 4: And in the case of Donald Trump, for instance, this 410 00:23:02,960 --> 00:23:06,200 Speaker 4: is one example drawn by Robert McWhorter in our Last Hour. 411 00:23:06,560 --> 00:23:10,720 Speaker 4: There are documents showing he talked to Russian authorities about 412 00:23:10,720 --> 00:23:13,439 Speaker 4: opening a hotel in Moscow. If you decided that was 413 00:23:13,440 --> 00:23:18,480 Speaker 4: a national security threat, that might fulfill the qualifiers it could. 414 00:23:18,560 --> 00:23:22,120 Speaker 1: And then just to stress the fact that what's been 415 00:23:22,160 --> 00:23:26,119 Speaker 1: set up here, and this is getting to be a 416 00:23:26,160 --> 00:23:29,359 Speaker 1: pattern when in the Court's cases more broadly, with regard 417 00:23:29,480 --> 00:23:35,160 Speaker 1: to how ultimately issues are decided, they are centering more 418 00:23:35,200 --> 00:23:42,959 Speaker 1: and more final authority on themselves. With regard to administrative 419 00:23:43,040 --> 00:23:49,040 Speaker 1: law issues. I mean, we've we've just experienced the repeal 420 00:23:49,160 --> 00:23:55,119 Speaker 1: essentially of the Chevron doctrine, which recognized discretion in administrative agencies. 421 00:23:55,160 --> 00:23:57,439 Speaker 1: When the statute's ambiguous and they come up with a 422 00:23:57,480 --> 00:24:00,960 Speaker 1: reasonable interpretation, well that's gone. And so it's going to 423 00:24:00,960 --> 00:24:03,320 Speaker 1: be the courts that are going to decide what the 424 00:24:03,359 --> 00:24:05,800 Speaker 1: statute means. Bump it up to us, and we'll tell 425 00:24:05,840 --> 00:24:08,440 Speaker 1: you we'll tell you how to read that statute. Well, 426 00:24:08,480 --> 00:24:10,280 Speaker 1: this is the same thing. Bump it up to us, 427 00:24:10,359 --> 00:24:14,480 Speaker 1: and we'll tell you whether or not this poses any 428 00:24:14,880 --> 00:24:18,479 Speaker 1: danger to the exercise of discretion by the president. Well, 429 00:24:18,520 --> 00:24:20,800 Speaker 1: good luck with that in terms of how that's going 430 00:24:20,880 --> 00:24:22,480 Speaker 1: to turn out. It's going to turn out the way 431 00:24:23,760 --> 00:24:26,320 Speaker 1: five justices want it to turn out. That's right, and 432 00:24:27,480 --> 00:24:30,639 Speaker 1: right now this group doesn't seem inclined to limit the 433 00:24:30,640 --> 00:24:31,600 Speaker 1: president very much. 434 00:24:32,119 --> 00:24:34,080 Speaker 9: Well, I'm glad you brought up the other rulings that 435 00:24:34,119 --> 00:24:35,959 Speaker 9: we have gotten from this court in this end of 436 00:24:36,000 --> 00:24:38,440 Speaker 9: the term, because another one potentially relates to this case 437 00:24:38,440 --> 00:24:41,040 Speaker 9: brought against Donald Trump and Washington last week when they 438 00:24:41,240 --> 00:24:43,640 Speaker 9: essentially limit the use of the Enron doctrine over what 439 00:24:43,920 --> 00:24:47,040 Speaker 9: constitutes is obstruction in the case of a January sixth 440 00:24:47,040 --> 00:24:49,680 Speaker 9: defended that they ruled in favor of Donald Trump has 441 00:24:49,680 --> 00:24:52,679 Speaker 9: been charged with obstruction of an attempt to obstruct an 442 00:24:52,680 --> 00:24:55,280 Speaker 9: official proceeding in this very case that we are talking about. 443 00:24:55,280 --> 00:24:58,400 Speaker 9: How do those two opinions intersect, if at all? 444 00:24:58,680 --> 00:25:02,160 Speaker 1: Well, you know, again, it's ultimately I hate to be cynical, 445 00:25:02,160 --> 00:25:05,600 Speaker 1: but it's however, this court says, they interact. But but 446 00:25:05,680 --> 00:25:09,080 Speaker 1: if to try to analyze it. You know, they decided 447 00:25:09,160 --> 00:25:12,920 Speaker 1: that Fisher case on the ground that you should read 448 00:25:13,000 --> 00:25:16,639 Speaker 1: the statute's two sections, one of which is about messing 449 00:25:16,640 --> 00:25:19,640 Speaker 1: around with documents, and the other of which doesn't mention 450 00:25:19,760 --> 00:25:23,560 Speaker 1: documents but specifically but just talks about interfering with an 451 00:25:23,560 --> 00:25:28,360 Speaker 1: official proceeding otherwise interfering with an official proceeding, which government, 452 00:25:28,960 --> 00:25:34,160 Speaker 1: I think totally persuasively argued meant otherwise meant meant apart 453 00:25:34,200 --> 00:25:37,000 Speaker 1: from documents. Did you interfere with the proceeding? Well, the 454 00:25:37,040 --> 00:25:39,439 Speaker 1: court rejected that and said, no, you have to limit 455 00:25:39,480 --> 00:25:43,280 Speaker 1: this along the lines of things to do with documents 456 00:25:43,280 --> 00:25:49,200 Speaker 1: and evidence. Well, I think here again a even even 457 00:25:49,280 --> 00:25:52,040 Speaker 1: that ruling if you take it as a face value, 458 00:25:52,760 --> 00:25:56,119 Speaker 1: when when you apply it to the case of Trump 459 00:25:56,200 --> 00:26:00,040 Speaker 1: and the indictment on these charges. There the allegations with 460 00:26:00,160 --> 00:26:03,920 Speaker 1: regard to Trump are really allegations with regard to lots 461 00:26:03,920 --> 00:26:09,080 Speaker 1: of things related to documents. They're related to these lists 462 00:26:09,119 --> 00:26:13,159 Speaker 1: of electors that were submitted and other documentation that was included, 463 00:26:13,280 --> 00:26:17,120 Speaker 1: and a reasonable reading would say, well, this comes within 464 00:26:17,160 --> 00:26:20,119 Speaker 1: it anyway. Now it depends specifically on what the prosecution 465 00:26:20,880 --> 00:26:23,840 Speaker 1: intends to rely upon. But I think I think it 466 00:26:24,119 --> 00:26:28,280 Speaker 1: could very well be fine even under that reading. But again, 467 00:26:28,640 --> 00:26:30,440 Speaker 1: if it goes to the Supreme Court and they say 468 00:26:30,480 --> 00:26:32,400 Speaker 1: it's not, it's not, and that's the end of it. 469 00:26:33,080 --> 00:26:35,480 Speaker 4: You reference the fact that it says nothing about immunity 470 00:26:35,520 --> 00:26:39,879 Speaker 4: and presidential immunity in the US Constitution. Should there be 471 00:26:39,920 --> 00:26:42,760 Speaker 4: will there need to be language in the Constitution an 472 00:26:42,800 --> 00:26:46,000 Speaker 4: amendment that follows this clarifies this concept. 473 00:26:46,080 --> 00:26:50,600 Speaker 1: Well, you know, I don't think there's any way practically 474 00:26:50,720 --> 00:26:55,240 Speaker 1: politically that that could happen now. I think, you know, 475 00:26:55,280 --> 00:26:58,639 Speaker 1: I think up until now, at least most people have 476 00:26:58,720 --> 00:27:02,679 Speaker 1: been comfortable. One of the trends of this court is 477 00:27:05,359 --> 00:27:10,600 Speaker 1: a basic distrust, a public distrust of exercising of judges 478 00:27:11,080 --> 00:27:14,760 Speaker 1: exercising judgment. At the same time, as you know, from 479 00:27:14,840 --> 00:27:19,080 Speaker 1: year to year now we're experienced the Court ironically itself, 480 00:27:19,680 --> 00:27:23,600 Speaker 1: just by Fiot deciding certain things are a certain way 481 00:27:23,640 --> 00:27:26,520 Speaker 1: and just announcing them and saying them. And I think 482 00:27:26,720 --> 00:27:29,879 Speaker 1: you know, everybody's understood that there is a concept of 483 00:27:29,920 --> 00:27:34,040 Speaker 1: immunity that's very much a balancing process. It depends on 484 00:27:34,160 --> 00:27:38,000 Speaker 1: judgment exercised by judges, and it starts with a premise 485 00:27:38,040 --> 00:27:42,399 Speaker 1: that judges can be trusted to exercise judgment. And it's 486 00:27:42,440 --> 00:27:44,760 Speaker 1: not an objective thing. It's not you read the word 487 00:27:44,800 --> 00:27:47,719 Speaker 1: and say, well, that's what this is, and bingo, it's automatically. 488 00:27:47,440 --> 00:27:49,600 Speaker 4: Wasn't It also based on the premise that even a 489 00:27:49,640 --> 00:27:50,880 Speaker 4: president's not above the law. 490 00:27:51,040 --> 00:27:53,040 Speaker 1: Well, that's right in the United States, that's right. I 491 00:27:53,080 --> 00:27:55,400 Speaker 1: mean that that's the basic premise. And that's the thing 492 00:27:55,400 --> 00:27:57,639 Speaker 1: I think that's so alarming to a lot of people 493 00:27:58,280 --> 00:28:01,240 Speaker 1: about this decision is that when you read it, it 494 00:28:01,280 --> 00:28:04,439 Speaker 1: seems like a majority here is ready to let the 495 00:28:04,480 --> 00:28:08,280 Speaker 1: president do a lot of things. And where what is 496 00:28:08,280 --> 00:28:10,919 Speaker 1: it that they're going to say is not within his 497 00:28:11,280 --> 00:28:13,480 Speaker 1: outer perimeter of his of his duties? 498 00:28:14,040 --> 00:28:17,160 Speaker 9: In the Descent that Justice sodom or which you've reference wrote, 499 00:28:17,200 --> 00:28:19,680 Speaker 9: she ended it by saying she dissents with fear for 500 00:28:19,720 --> 00:28:22,240 Speaker 9: our democracy? Do you share that fear to. 501 00:28:22,400 --> 00:28:25,360 Speaker 1: Yeah, I do. I Well, there's a lot of things 502 00:28:25,400 --> 00:28:27,800 Speaker 1: that's happened lately that are that are causing fear for 503 00:28:27,880 --> 00:28:31,239 Speaker 1: our democracy because I think I think Donald Trump is 504 00:28:31,280 --> 00:28:35,720 Speaker 1: someone who has, i mean said all manner of things 505 00:28:35,720 --> 00:28:38,160 Speaker 1: that would cause a lot of fear in terms of 506 00:28:38,400 --> 00:28:41,479 Speaker 1: respecting elections and doing what he can to undermine them, 507 00:28:41,520 --> 00:28:43,760 Speaker 1: and his whole campaign has been focused on the fact 508 00:28:43,800 --> 00:28:46,760 Speaker 1: that the election was allegedly stolen from him, even though 509 00:28:46,800 --> 00:28:49,560 Speaker 1: there's not a shred of evidence to support it, you know, 510 00:28:49,600 --> 00:28:51,760 Speaker 1: and he wants to be a dictator on day one 511 00:28:51,800 --> 00:28:53,959 Speaker 1: and all of this stuff. It's it's horrifying, and then 512 00:28:54,000 --> 00:28:56,320 Speaker 1: you look at the polls and he may well get 513 00:28:56,360 --> 00:28:59,959 Speaker 1: that chance. And it's really really scary. 514 00:29:00,040 --> 00:29:02,560 Speaker 4: Remarkable to spend time with Donald Air on a day 515 00:29:02,560 --> 00:29:04,160 Speaker 4: like this. We're really glad that you could come back 516 00:29:04,200 --> 00:29:05,000 Speaker 4: to talk to us today. 517 00:29:05,240 --> 00:29:07,000 Speaker 5: Thank you, Thank you so much. 518 00:29:07,080 --> 00:29:10,680 Speaker 4: Former Deputy US Attorney General, former Principal Deputy Solicitor General 519 00:29:10,880 --> 00:29:12,520 Speaker 4: of the United States, a man who knows what it's 520 00:29:12,560 --> 00:29:16,720 Speaker 4: like to argue a case before the Supreme Court. Remarkable 521 00:29:17,240 --> 00:29:19,600 Speaker 4: reaction to your last question. 522 00:29:19,360 --> 00:29:20,120 Speaker 2: There, Kayleie. 523 00:29:20,640 --> 00:29:23,440 Speaker 9: Yeah, concern for democracy not just being voiced by mister 524 00:29:23,560 --> 00:29:25,280 Speaker 9: err or justice so to my war, but many in 525 00:29:25,360 --> 00:29:29,320 Speaker 9: reaction to this ruling today. Not so though, for Donald 526 00:29:29,360 --> 00:29:32,520 Speaker 9: Trump himself, who, when this ruling came down, posted on 527 00:29:32,560 --> 00:29:37,560 Speaker 9: true social big win for our constitution and democracy. Proud 528 00:29:37,680 --> 00:29:41,000 Speaker 9: to be an American. Of course, Trump not dealt a conclusive, 529 00:29:41,120 --> 00:29:44,920 Speaker 9: decisive victory with this case. But certainly, if nothing else, 530 00:29:44,920 --> 00:29:47,720 Speaker 9: a partial victory, because this is very unlikely to go 531 00:29:47,760 --> 00:29:49,480 Speaker 9: to trial before the election. 532 00:29:49,640 --> 00:29:50,000 Speaker 5: That's right. 533 00:29:51,720 --> 00:29:55,240 Speaker 2: You're listening to the Bloomberg Balance of Power podcast Ketch 534 00:29:55,320 --> 00:29:58,200 Speaker 2: just live weekdays at noon Eastern on Evocar Play and 535 00:29:58,240 --> 00:30:01,400 Speaker 2: then Roud Otto with the Bloomberg Business Listen on demand 536 00:30:01,440 --> 00:30:07,280 Speaker 2: wherever you get your podcasts, or watch us live on YouTube. 537 00:30:08,240 --> 00:30:10,600 Speaker 5: Thank you for joining us on Bloomberg TV and Radio. 538 00:30:10,640 --> 00:30:13,920 Speaker 4: The Monday edition of Balance of Power on this Supreme 539 00:30:14,040 --> 00:30:16,680 Speaker 4: Court ruling day. It's the final day of the term 540 00:30:17,160 --> 00:30:20,800 Speaker 4: and the major ruling that we've been anticipating on presidential immunity. 541 00:30:20,400 --> 00:30:22,000 Speaker 5: Dropped a few hours ago. 542 00:30:22,120 --> 00:30:24,280 Speaker 4: There are still a lot of questions though, about the 543 00:30:24,320 --> 00:30:27,800 Speaker 4: impact of this ruling politically. I'm Joe Matthew alongside Kaylee 544 00:30:27,840 --> 00:30:30,280 Speaker 4: Liones Kayley. There are questions about the legal outcome of 545 00:30:30,280 --> 00:30:32,320 Speaker 4: this ruling as well, because it's been romanted to a 546 00:30:32,320 --> 00:30:33,320 Speaker 4: lower course, so we're not. 547 00:30:33,360 --> 00:30:34,360 Speaker 5: Done with this yet. 548 00:30:34,480 --> 00:30:36,520 Speaker 9: No, it's going to be up to lower courts to 549 00:30:36,560 --> 00:30:39,600 Speaker 9: decide what is an official act versus an unofficial act. 550 00:30:39,640 --> 00:30:42,240 Speaker 9: As we consider the powers of the presidency or the 551 00:30:42,280 --> 00:30:46,160 Speaker 9: president himself as not just the leader of the United 552 00:30:46,200 --> 00:30:48,560 Speaker 9: States and the free world, but also a private citizen 553 00:30:48,800 --> 00:30:51,920 Speaker 9: engaging in private activity in some instances. And that's really 554 00:30:51,920 --> 00:30:54,440 Speaker 9: the question that to a large extent today the court 555 00:30:54,760 --> 00:30:57,600 Speaker 9: has left unanswered. What the Court has succeeded in doing, though, 556 00:30:57,760 --> 00:31:00,320 Speaker 9: is effectively making sure that this case brought against Donald 557 00:31:00,320 --> 00:31:03,520 Speaker 9: Trump here in Washington will not go to trial before 558 00:31:03,560 --> 00:31:06,719 Speaker 9: the election in November. So as we consider the consequence 559 00:31:06,760 --> 00:31:09,120 Speaker 9: of this ruling and it's out impact on the election, 560 00:31:09,200 --> 00:31:11,360 Speaker 9: we assemble our political panel. Rick Davis is with US 561 00:31:11,400 --> 00:31:14,960 Speaker 9: Bloomberg Politics contributor and partner at Stone Court Capital, together 562 00:31:15,000 --> 00:31:18,240 Speaker 9: today with Brad Howard, democratic strategist and Corkoran Street Group 563 00:31:18,360 --> 00:31:21,240 Speaker 9: founder and president. Rick just to begin with you, we 564 00:31:21,280 --> 00:31:24,000 Speaker 9: can discuss whether or not this was a legal victory 565 00:31:24,000 --> 00:31:26,560 Speaker 9: for Donald Trump, but certainly can we call this a 566 00:31:26,560 --> 00:31:28,080 Speaker 9: political one for him? 567 00:31:28,920 --> 00:31:29,320 Speaker 7: Sure? 568 00:31:29,680 --> 00:31:32,840 Speaker 10: I think it's easily a political victory. He's been using 569 00:31:32,840 --> 00:31:36,520 Speaker 10: it all day since the ruling was released to take 570 00:31:36,520 --> 00:31:41,000 Speaker 10: a victory lab claiming that he's been unfairly prosecuted and 571 00:31:41,040 --> 00:31:43,360 Speaker 10: that he should be free of any of these charges 572 00:31:43,440 --> 00:31:45,760 Speaker 10: because of this new immunity standard, one of which he 573 00:31:45,840 --> 00:31:48,680 Speaker 10: claims he is set all along that he should have 574 00:31:48,680 --> 00:31:51,400 Speaker 10: been immune. So sure he's making good use of it. 575 00:31:51,440 --> 00:31:54,040 Speaker 10: I'm sure he'll raise money off of it. I'm sure 576 00:31:54,120 --> 00:32:00,720 Speaker 10: he'll create some advantage with people who are Trump voters 577 00:32:00,720 --> 00:32:03,680 Speaker 10: who are leaning the other way, you know, potentially going 578 00:32:04,320 --> 00:32:07,560 Speaker 10: against him. And so this might take one of the 579 00:32:07,640 --> 00:32:09,960 Speaker 10: questions out of the matrix of issues they might have 580 00:32:10,080 --> 00:32:11,640 Speaker 10: about concerns about Donald Trump. 581 00:32:13,480 --> 00:32:14,840 Speaker 5: Brad, does this go both ways? 582 00:32:14,960 --> 00:32:18,640 Speaker 4: Is Joe Biden going to have a major fundraising week 583 00:32:18,880 --> 00:32:21,680 Speaker 4: or day or quarter In the end, we'll hear that 584 00:32:21,760 --> 00:32:24,560 Speaker 4: Democratic donors were activated by this ruling. 585 00:32:26,360 --> 00:32:28,880 Speaker 11: I hope so, and I think it might just because 586 00:32:29,240 --> 00:32:32,960 Speaker 11: it dramatically raises the stakes of the election. Right, it's 587 00:32:33,000 --> 00:32:35,800 Speaker 11: no longer about you know, whether or not you think 588 00:32:35,880 --> 00:32:38,520 Speaker 11: Joe Biden is maybe too old for or Donald Trump is, 589 00:32:38,600 --> 00:32:41,320 Speaker 11: you know, two rambling at rallies, like it's now about 590 00:32:41,680 --> 00:32:44,120 Speaker 11: the survival of our democracy. Like if you have lacked 591 00:32:44,120 --> 00:32:47,000 Speaker 11: the wrong person with the wrong impulses here, there's no 592 00:32:47,040 --> 00:32:50,560 Speaker 11: longer those checks and balances to prevent them from having 593 00:32:50,600 --> 00:32:53,440 Speaker 11: any fear of persecution when they leave office or if 594 00:32:53,440 --> 00:32:57,440 Speaker 11: they ever leave office. Considering Donald Trump tried everything he 595 00:32:57,480 --> 00:33:00,240 Speaker 11: could within the bounds that existed at the time, to 596 00:33:00,280 --> 00:33:02,200 Speaker 11: try to He even stepped over those bounds I think 597 00:33:02,240 --> 00:33:05,400 Speaker 11: into criminal behavior, into staying in office. Now that he 598 00:33:05,440 --> 00:33:08,120 Speaker 11: doesn't have to worry about prosecution afterwards, he can declare 599 00:33:08,120 --> 00:33:11,240 Speaker 11: everything an official act. What's to say he's ever going 600 00:33:11,320 --> 00:33:13,280 Speaker 11: to leave office? And I think these are really strong, 601 00:33:13,760 --> 00:33:15,960 Speaker 11: powerful considerations that voters are going to have to take 602 00:33:16,000 --> 00:33:16,640 Speaker 11: into account. 603 00:33:18,040 --> 00:33:20,800 Speaker 9: Well, Brad, as you talk about checks and balances, obviously 604 00:33:20,840 --> 00:33:22,960 Speaker 9: the three branches are supposed to work in a way 605 00:33:22,960 --> 00:33:24,959 Speaker 9: that they can check each other. Would you say with 606 00:33:25,000 --> 00:33:29,000 Speaker 9: this decision today that the judicial branch is checking the 607 00:33:29,240 --> 00:33:31,040 Speaker 9: executive or just empowering it. 608 00:33:32,400 --> 00:33:35,200 Speaker 11: Well, you're essentially turning the Supreme Court to the nine 609 00:33:35,240 --> 00:33:38,760 Speaker 11: unelected bureaucrats into the arbiters of what's you know, what's 610 00:33:38,880 --> 00:33:41,760 Speaker 11: legal and what's not in terms of what a what 611 00:33:41,800 --> 00:33:43,720 Speaker 11: a president can or cannot do. They're going to become 612 00:33:43,720 --> 00:33:47,160 Speaker 11: the arbiters of everything. Every little remote Congress does have 613 00:33:47,440 --> 00:33:49,840 Speaker 11: a role here in the sense they should have impeached, 614 00:33:50,200 --> 00:33:53,440 Speaker 11: and they did. They impeached Donald Trump for his actions 615 00:33:53,480 --> 00:33:55,560 Speaker 11: on jan six. They should have removed him from office 616 00:33:55,800 --> 00:33:57,000 Speaker 11: or at the time he was out office, so they 617 00:33:57,000 --> 00:33:58,840 Speaker 11: should have prevented him running for future office. 618 00:33:59,120 --> 00:33:59,760 Speaker 3: As punishment. 619 00:33:59,800 --> 00:34:03,480 Speaker 11: But Congress has demonstrated that they just the partisanship is 620 00:34:03,480 --> 00:34:06,760 Speaker 11: so strong that the Republicans can't look past their own 621 00:34:06,760 --> 00:34:10,360 Speaker 11: partisan politics to prosecute someone who clearly did something criminal. 622 00:34:10,600 --> 00:34:12,520 Speaker 11: On January sixth, we all saw with their own eyes 623 00:34:12,560 --> 00:34:14,799 Speaker 11: what happened that day. And so I think you're starting 624 00:34:14,800 --> 00:34:16,520 Speaker 11: to see this erosion of these checks and bounces, and 625 00:34:16,560 --> 00:34:19,239 Speaker 11: you're starting to see an empowered Supreme Court with not 626 00:34:19,320 --> 00:34:23,000 Speaker 11: elected bureaucrats. AOC this morning or just moments ago, announced 627 00:34:23,040 --> 00:34:26,680 Speaker 11: she's going to start filing impeachment charges against Supreme Court justice. 628 00:34:26,840 --> 00:34:28,680 Speaker 11: So this is going to have a lot of consequences 629 00:34:28,719 --> 00:34:29,800 Speaker 11: throughout Congress as well. 630 00:34:30,920 --> 00:34:33,920 Speaker 4: In the meantime, though, Rick, you're managing a presidential campaign, 631 00:34:34,400 --> 00:34:37,359 Speaker 4: and if you're Donald Trump's a campaign manager or his 632 00:34:37,520 --> 00:34:41,080 Speaker 4: campaign advisors, you're now looking at a summer it's wide open. 633 00:34:41,520 --> 00:34:44,200 Speaker 4: It's the first of July. I realized there's a sentencing 634 00:34:44,280 --> 00:34:46,560 Speaker 4: thing going on here between now and the convention. But 635 00:34:46,640 --> 00:34:49,319 Speaker 4: after that, you know now for a fact that your 636 00:34:49,400 --> 00:34:51,320 Speaker 4: candidate is not going to be locked in a courtroom. 637 00:34:51,360 --> 00:34:52,320 Speaker 5: What do you do with the time. 638 00:34:53,600 --> 00:34:57,480 Speaker 10: Yeah, from now to probably inaugural you know you're not 639 00:34:57,520 --> 00:34:59,319 Speaker 10: going to be sitting in a courtroom like you did 640 00:34:59,400 --> 00:35:02,240 Speaker 10: for five weeks weeks up in New York during that case, 641 00:35:02,400 --> 00:35:05,480 Speaker 10: and you're free to schedule. And scheduling is a really 642 00:35:05,520 --> 00:35:09,560 Speaker 10: critical aspect of this campaign. I mean, putting Donald Trump 643 00:35:09,960 --> 00:35:14,040 Speaker 10: in the key battleground states to try and take advantage 644 00:35:14,080 --> 00:35:16,560 Speaker 10: of some of the momentum he's gotten off of the 645 00:35:16,600 --> 00:35:20,000 Speaker 10: debate last week is now going to be more certain 646 00:35:20,040 --> 00:35:21,920 Speaker 10: than it's ever been. I mean, this is a campaign 647 00:35:22,360 --> 00:35:27,440 Speaker 10: that's been rocked by having to appear in these various 648 00:35:27,440 --> 00:35:32,560 Speaker 10: court cases during the indictment phase, and frankly one that 649 00:35:32,600 --> 00:35:34,720 Speaker 10: took advantage of that. I mean, one of the things 650 00:35:34,760 --> 00:35:38,000 Speaker 10: we have to remember is Donald Trump has used these 651 00:35:38,040 --> 00:35:41,480 Speaker 10: court cases to his political advantage. He was down and 652 00:35:41,520 --> 00:35:45,320 Speaker 10: out in twenty twenty one prior to the first indictment 653 00:35:45,400 --> 00:35:48,840 Speaker 10: and has ridden these indictments and frankly, the convictions to 654 00:35:48,920 --> 00:35:52,000 Speaker 10: his political advantage. Maybe now it makes it harder for 655 00:35:52,080 --> 00:35:54,279 Speaker 10: him because he doesn't have that tool to use every 656 00:35:54,320 --> 00:35:58,960 Speaker 10: week at his disposal. So we'll see what happens next. 657 00:35:59,560 --> 00:36:02,760 Speaker 10: But I mean, you know, I remind everybody Judge Chutkin's 658 00:36:02,760 --> 00:36:04,680 Speaker 10: going to have something to say about what she considers 659 00:36:04,719 --> 00:36:07,360 Speaker 10: in and outside the bounds of immunity, and so I 660 00:36:07,400 --> 00:36:09,600 Speaker 10: don't think we've heard the last of this. She's going 661 00:36:09,680 --> 00:36:11,640 Speaker 10: to opine on this as she has in the past, 662 00:36:12,440 --> 00:36:15,480 Speaker 10: and she was pretty aggressive when it came to what 663 00:36:15,640 --> 00:36:19,279 Speaker 10: she thought the vulnerabilities community were for Donald Trump, and 664 00:36:19,280 --> 00:36:21,080 Speaker 10: I don't think the Supreme Court has really taken that 665 00:36:21,120 --> 00:36:22,760 Speaker 10: club away from her in many ways. 666 00:36:24,520 --> 00:36:26,480 Speaker 9: Yeah, it's an excellent point, Rick, A lot of these 667 00:36:26,480 --> 00:36:29,000 Speaker 9: decisions will now be up to her, even if ultimately 668 00:36:29,040 --> 00:36:31,000 Speaker 9: they do end up back at the Supreme Court at 669 00:36:31,000 --> 00:36:33,640 Speaker 9: the end of the day. If we continue to consider 670 00:36:33,680 --> 00:36:36,359 Speaker 9: though this idea of scheduling you were speaking to. If 671 00:36:36,360 --> 00:36:40,400 Speaker 9: you're scheduling for Joe Biden in the aftermath of Thursday's debate, 672 00:36:40,520 --> 00:36:43,080 Speaker 9: is it now effectively your job to get the president 673 00:36:43,080 --> 00:36:46,200 Speaker 9: and as many unscripted scenarios as you possibly can be 674 00:36:46,280 --> 00:36:48,600 Speaker 9: that sit down interviews or other appearances in which she 675 00:36:48,680 --> 00:36:49,640 Speaker 9: needs to add lib. 676 00:36:51,960 --> 00:36:54,200 Speaker 10: I'd hate to say it, but I think the one 677 00:36:54,200 --> 00:36:56,440 Speaker 10: thing he needs to schedule is the speech where he 678 00:36:56,480 --> 00:36:59,840 Speaker 10: withdraws from the campaign and endorses somebody else prior to 679 00:36:59,840 --> 00:37:03,520 Speaker 10: the Democratic Convention. But outside of that, yes, I think 680 00:37:03,560 --> 00:37:06,880 Speaker 10: that he has a credibility problem that is showing up 681 00:37:06,920 --> 00:37:09,560 Speaker 10: in the surveys. There's a new CBS survey out that 682 00:37:09,600 --> 00:37:12,800 Speaker 10: shows almost half his party wanting to withdraw from the campaign. 683 00:37:13,160 --> 00:37:15,719 Speaker 10: And he has no time to lose this idea that 684 00:37:15,760 --> 00:37:18,880 Speaker 10: he took the weekend off and went to Camp David 685 00:37:18,920 --> 00:37:21,759 Speaker 10: to confer with his family about staying in the race. 686 00:37:22,200 --> 00:37:24,360 Speaker 10: I mean, frankly, he should have been out trying to 687 00:37:24,400 --> 00:37:27,200 Speaker 10: do what he did right after the debacle of a 688 00:37:27,239 --> 00:37:31,120 Speaker 10: debate and do more campaign rallies and frankly do with 689 00:37:31,160 --> 00:37:34,640 Speaker 10: some sit down interviews just as you described Kayley about 690 00:37:34,800 --> 00:37:38,960 Speaker 10: you know, unscripted, non teleprompter interviews where he actually can 691 00:37:39,000 --> 00:37:42,120 Speaker 10: show people that he has the capacity to govern. 692 00:37:44,200 --> 00:37:46,160 Speaker 4: Brad, I want you to weigh in on this and 693 00:37:46,239 --> 00:37:49,480 Speaker 4: bring you back to a suite from Jon Favreau, who 694 00:37:49,560 --> 00:37:51,879 Speaker 4: is an Obama speech writer and now pretty well known 695 00:37:51,920 --> 00:37:56,400 Speaker 4: for his podcast as a Democratic advisor from the Obama campaign, 696 00:37:56,920 --> 00:37:59,760 Speaker 4: I would simply say, calling nearly half your party's voters 697 00:37:59,840 --> 00:38:03,400 Speaker 4: the bed wedding brigade is not the most effective strategy 698 00:38:03,880 --> 00:38:06,839 Speaker 4: to assuage their concerns about your candidate and get them 699 00:38:06,840 --> 00:38:10,360 Speaker 4: to the polls. What is the real conversation that's happening 700 00:38:10,440 --> 00:38:14,440 Speaker 4: now inside Democratic circles following the freak out on Thursday night. 701 00:38:15,840 --> 00:38:17,759 Speaker 11: Well, look, I think there's always been kind of bad 702 00:38:17,800 --> 00:38:21,880 Speaker 11: blood between some folks in the Obama world, including David 703 00:38:21,880 --> 00:38:25,080 Speaker 11: Axelrod and John Favreau and Joe Biden. You know that 704 00:38:25,200 --> 00:38:27,520 Speaker 11: friction was evident all eight years and when Barack Obama 705 00:38:27,600 --> 00:38:29,880 Speaker 11: was president and in the primaries where none of them 706 00:38:29,920 --> 00:38:31,560 Speaker 11: really thought he would win, and he did. And I 707 00:38:31,600 --> 00:38:34,080 Speaker 11: think that's part of Joe Biden's strength is that every 708 00:38:34,080 --> 00:38:36,479 Speaker 11: time he's been counting out and down, he has come back. 709 00:38:36,680 --> 00:38:39,000 Speaker 11: I think at the rally they played Chumbawamba, I get 710 00:38:39,120 --> 00:38:41,600 Speaker 11: knocked down, I Get back up again, which I thought 711 00:38:41,640 --> 00:38:43,560 Speaker 11: was kind of a genius theatrical move. 712 00:38:44,040 --> 00:38:45,239 Speaker 5: So are they bedwetders? 713 00:38:46,600 --> 00:38:50,120 Speaker 11: Well, I mean, look, every day of the week, Democrats 714 00:38:50,160 --> 00:38:52,279 Speaker 11: are freaking out about something. It's what motivates us, is 715 00:38:52,320 --> 00:38:54,080 Speaker 11: what keeps us going, and we should be so what 716 00:38:54,120 --> 00:38:57,640 Speaker 11: makes our candidates stronger, you know? I think again my 717 00:38:58,360 --> 00:39:00,840 Speaker 11: concern is this is the debate is not going to 718 00:39:00,880 --> 00:39:03,200 Speaker 11: have that much of an effect on swing voters who 719 00:39:03,239 --> 00:39:06,120 Speaker 11: are swing voters because they haven't been convinced that he 720 00:39:06,200 --> 00:39:06,960 Speaker 11: is up to the job. 721 00:39:07,120 --> 00:39:07,520 Speaker 3: Just yet. 722 00:39:07,719 --> 00:39:09,920 Speaker 11: Otherwise they do with Joe Biden squarely. Note they're not 723 00:39:10,000 --> 00:39:13,120 Speaker 11: going to Donald Trump because they think he's too mentally unstable, 724 00:39:13,600 --> 00:39:15,120 Speaker 11: but they've been a little word of his age, and 725 00:39:15,160 --> 00:39:17,920 Speaker 11: that worry is continuing. What your hast seeing is the 726 00:39:18,000 --> 00:39:20,560 Speaker 11: base has been confronted with concern over his age for 727 00:39:20,600 --> 00:39:23,120 Speaker 11: the first time. We've been told he's sharp behind the scenes. 728 00:39:23,120 --> 00:39:25,200 Speaker 11: We've been told that he can do the job, and 729 00:39:25,200 --> 00:39:27,520 Speaker 11: from trust to people we trusted in the party, and 730 00:39:27,560 --> 00:39:30,480 Speaker 11: then what was displayed on Thursday night did not reflect 731 00:39:30,520 --> 00:39:32,359 Speaker 11: what we had been told. And so I think there's 732 00:39:32,360 --> 00:39:34,759 Speaker 11: a lot of base voters that want to see here 733 00:39:34,800 --> 00:39:37,520 Speaker 11: an explanation and see more proof that he is the 734 00:39:37,560 --> 00:39:40,600 Speaker 11: best individual to take on Donald Trump, because if we 735 00:39:40,719 --> 00:39:43,040 Speaker 11: fail in this endeavor and Donald Trump returned to the 736 00:39:43,040 --> 00:39:45,440 Speaker 11: White House, it could very well be the end of democracy. 737 00:39:46,840 --> 00:39:49,279 Speaker 9: Brad, we just have thirty seconds left. But how long 738 00:39:49,320 --> 00:39:51,400 Speaker 9: of a grace period is there for that proof to 739 00:39:51,440 --> 00:39:51,879 Speaker 9: show up? 740 00:39:53,640 --> 00:39:56,160 Speaker 11: Well, I would say a week or two, because then 741 00:39:56,160 --> 00:39:58,840 Speaker 11: we start heading into convention planning and you know, a 742 00:39:59,200 --> 00:40:03,719 Speaker 11: delegate race going to be pretty pretty insane. I do 743 00:40:03,800 --> 00:40:06,520 Speaker 11: think the idea of an open convention is not a 744 00:40:06,640 --> 00:40:08,880 Speaker 11: terrible idea in the sense that you get to see 745 00:40:09,080 --> 00:40:11,360 Speaker 11: some of the brightest stars of Deocredit Party fight for 746 00:40:12,160 --> 00:40:14,480 Speaker 11: the votes of the delegates and then kind of announced 747 00:40:14,480 --> 00:40:17,400 Speaker 11: with this energy enthusiasm. But if Joe Biden remains and 748 00:40:17,440 --> 00:40:19,400 Speaker 11: thinks he thinks he's the best one to take on, 749 00:40:19,680 --> 00:40:21,160 Speaker 11: he's going to have my full support, and I hope 750 00:40:21,160 --> 00:40:23,680 Speaker 11: the Democratic Party will rally behind him because the stakes 751 00:40:23,680 --> 00:40:26,000 Speaker 11: are too high here to head into an election. Because 752 00:40:26,000 --> 00:40:29,440 Speaker 11: your feelings were hurt by being called a name from 753 00:40:29,440 --> 00:40:30,680 Speaker 11: the White House staff. 754 00:40:31,719 --> 00:40:34,320 Speaker 4: All right, two weeks we're writing it down. Brad Howard 755 00:40:34,360 --> 00:40:36,480 Speaker 4: and Rick Davis, thank you for a great conversation. 756 00:40:38,480 --> 00:40:41,839 Speaker 2: You're listening to the Bloomberg Balance of Power podcast kens 757 00:40:42,000 --> 00:40:44,759 Speaker 2: just Live weekdays at noon Eastern on Apple car Play 758 00:40:44,800 --> 00:40:45,120 Speaker 2: and then. 759 00:40:45,080 --> 00:40:47,080 Speaker 3: Roud Oro with the Bloomberg Business app. 760 00:40:47,120 --> 00:40:50,000 Speaker 8: You can also listen live on Amazon Alexa from our 761 00:40:50,000 --> 00:40:53,960 Speaker 8: flagship New York station, Just Say Alexa playing Bloomberg eleven 762 00:40:54,080 --> 00:40:56,920 Speaker 8: thirty as. 763 00:40:56,800 --> 00:40:59,800 Speaker 4: We had the voice of Jane Hall at American University. 764 00:41:00,040 --> 00:41:03,319 Speaker 4: She's Professor of Journalism and Media Studies here author of 765 00:41:03,360 --> 00:41:07,279 Speaker 4: Politics and the Media, Intersections and New Directions. Jane looking 766 00:41:07,280 --> 00:41:09,600 Speaker 4: forward to talking with you about the debate last week 767 00:41:09,640 --> 00:41:13,240 Speaker 4: and the aftermath more specifically, but with regard to today's 768 00:41:13,280 --> 00:41:16,359 Speaker 4: Supreme Court ruling, when you back off and look at 769 00:41:16,360 --> 00:41:19,239 Speaker 4: this from your perch at American University, is the presidency 770 00:41:19,360 --> 00:41:20,239 Speaker 4: being redefined? 771 00:41:22,160 --> 00:41:25,080 Speaker 12: You know, I think that it probably is. 772 00:41:25,360 --> 00:41:27,920 Speaker 13: And I appreciate the fact that you all led with 773 00:41:28,040 --> 00:41:32,160 Speaker 13: the facts of the case and the impact potentially on democracy, 774 00:41:32,560 --> 00:41:36,240 Speaker 13: and now it's going to be analyzed and used by. 775 00:41:36,080 --> 00:41:40,520 Speaker 12: Each side in the debate in the politics. 776 00:41:41,239 --> 00:41:44,840 Speaker 13: We are seeing in real time, a decision comes down 777 00:41:45,280 --> 00:41:49,040 Speaker 13: and cable news has people coming on immediately analyzing it, 778 00:41:49,360 --> 00:41:53,560 Speaker 13: legal experts and then political experts and all together analyzing 779 00:41:53,600 --> 00:41:54,760 Speaker 13: how this will be portrayed. 780 00:41:54,800 --> 00:41:57,520 Speaker 12: Will will it be helpful to Donald Trump? Will it 781 00:41:57,520 --> 00:41:58,880 Speaker 12: be helpful to Joe Biden? 782 00:41:59,040 --> 00:42:01,200 Speaker 13: So you know, this is sort of a follow on 783 00:42:01,360 --> 00:42:06,719 Speaker 13: what you saw with the disastrous performance and the visuals 784 00:42:07,239 --> 00:42:09,799 Speaker 13: of Joe Biden and how that has played out. 785 00:42:09,880 --> 00:42:12,640 Speaker 12: And you can see it in the people who came. 786 00:42:12,480 --> 00:42:16,400 Speaker 13: Out and who were put out frankly to speak on 787 00:42:16,560 --> 00:42:20,840 Speaker 13: Sunday shows and are talking now about don't abandon Biden, 788 00:42:21,040 --> 00:42:24,839 Speaker 13: as well as the people who immediately said I'm close 789 00:42:24,920 --> 00:42:28,160 Speaker 13: to Joe Biden coming out of the debate on CNN 790 00:42:28,200 --> 00:42:29,120 Speaker 13: and on MSNBC. 791 00:42:29,280 --> 00:42:31,080 Speaker 12: I'm close to him, he should resign. 792 00:42:33,320 --> 00:42:35,480 Speaker 9: Well, let's talk about one of those voices on the 793 00:42:35,520 --> 00:42:38,240 Speaker 9: Sunday shows. We did hear on NBC's Meet the Press 794 00:42:38,360 --> 00:42:41,719 Speaker 9: yesterday from the Senator from Georgia of Raphael Warnock, who 795 00:42:41,800 --> 00:42:45,560 Speaker 9: was essentially acknowledging Biden's poor debate performance, but still had 796 00:42:45,600 --> 00:42:46,200 Speaker 9: this to say. 797 00:42:47,239 --> 00:42:49,200 Speaker 14: There have been more than a few Sundays when I 798 00:42:49,200 --> 00:42:52,680 Speaker 14: wish I had preached a better sermon, But after the 799 00:42:52,719 --> 00:42:55,920 Speaker 14: sermon was over, it was my job to embody the message, 800 00:42:56,560 --> 00:42:59,319 Speaker 14: to show up for the people that I serve. And 801 00:42:59,360 --> 00:43:02,320 Speaker 14: that's what Joe Biden has been doing his entire life, 802 00:43:02,440 --> 00:43:05,439 Speaker 14: his entire life of public service. And over the last 803 00:43:05,440 --> 00:43:08,560 Speaker 14: four years, Joe Biden has demonstrated not over ninety minutes, 804 00:43:08,600 --> 00:43:12,440 Speaker 14: but over the last four years, the character and the 805 00:43:12,440 --> 00:43:14,239 Speaker 14: metal of the man that he is. 806 00:43:16,080 --> 00:43:18,799 Speaker 9: So, Jane, I guess my question to you is what 807 00:43:18,960 --> 00:43:21,400 Speaker 9: is four years when a short span of time that 808 00:43:21,480 --> 00:43:24,279 Speaker 9: captured the attention of tens of millions and hundreds of 809 00:43:24,280 --> 00:43:26,160 Speaker 9: millions more when you look at what was cut up 810 00:43:26,360 --> 00:43:30,080 Speaker 9: and consumed in the aftermath on social media, what becomes 811 00:43:30,120 --> 00:43:32,879 Speaker 9: more important in making a decision as to how you're 812 00:43:32,920 --> 00:43:34,640 Speaker 9: going to vote. 813 00:43:35,040 --> 00:43:38,120 Speaker 12: Well, you know, I think that is the key question. 814 00:43:38,400 --> 00:43:41,920 Speaker 13: And from what I understand and what I know about 815 00:43:41,920 --> 00:43:47,320 Speaker 13: the media, there's an attempt by Biden's supporters to say, 816 00:43:47,840 --> 00:43:52,080 Speaker 13: including Rolf Moarnock and others, that this was ninety minutes, 817 00:43:52,760 --> 00:43:54,960 Speaker 13: that he has a three and a half year long 818 00:43:55,000 --> 00:43:57,960 Speaker 13: presidency in a decades long history. 819 00:43:58,719 --> 00:43:59,920 Speaker 12: People are acknowledging that. 820 00:43:59,880 --> 00:44:02,759 Speaker 13: He did not make the case that they expected him 821 00:44:02,760 --> 00:44:06,200 Speaker 13: to make, and you see that being played out. And 822 00:44:06,760 --> 00:44:10,439 Speaker 13: I guess what I'm seeing and thinking about is they're 823 00:44:10,480 --> 00:44:13,680 Speaker 13: probably going to wait for the polls and see what 824 00:44:13,880 --> 00:44:16,399 Speaker 13: is the polling on this? What does the so called 825 00:44:16,520 --> 00:44:21,200 Speaker 13: average voter think is the damage from seeing these bites 826 00:44:21,320 --> 00:44:24,640 Speaker 13: replayed in the split screen that many people were shocked by. 827 00:44:25,080 --> 00:44:28,759 Speaker 13: I think even Biden's supporters, is that the measure of 828 00:44:28,800 --> 00:44:32,759 Speaker 13: the manor? Or can they reframe it? What should they 829 00:44:32,760 --> 00:44:36,200 Speaker 13: be doing to put him out there? And how loud 830 00:44:36,200 --> 00:44:40,000 Speaker 13: will the voices be if his poll numbers drop significantly 831 00:44:40,120 --> 00:44:43,040 Speaker 13: and people are concerned about whether they can win in Congress. 832 00:44:44,520 --> 00:44:46,880 Speaker 4: Well, we did get a quick turn poll from CBS 833 00:44:46,920 --> 00:44:50,480 Speaker 4: News and Yugo of you might have seen Jane. When 834 00:44:50,520 --> 00:44:54,000 Speaker 4: asked whether the President was quote or had quote the 835 00:44:54,040 --> 00:44:57,240 Speaker 4: mental and Cognitive Health to Service president unquote, only twenty 836 00:44:57,400 --> 00:44:59,680 Speaker 4: seven percent of respondents said yes. 837 00:45:00,080 --> 00:45:01,239 Speaker 5: The two percent said no. 838 00:45:01,800 --> 00:45:06,439 Speaker 4: So how should the media be covering this right now? 839 00:45:06,440 --> 00:45:09,600 Speaker 4: Because there are two conversations going on. There's the one 840 00:45:09,640 --> 00:45:11,839 Speaker 4: we just heard from Rafael Warnock, and I can add 841 00:45:11,880 --> 00:45:14,560 Speaker 4: a whole bunch to that list. Chris Coons has been 842 00:45:14,600 --> 00:45:17,319 Speaker 4: working overtime, and a lot of other very loyal Democrats. 843 00:45:17,360 --> 00:45:20,560 Speaker 4: Even Wes Moore was out yesterday morning making the case 844 00:45:20,719 --> 00:45:23,520 Speaker 4: for Joe Biden. You can see the public tweets at 845 00:45:23,600 --> 00:45:27,920 Speaker 4: least from Barack Obama and others. But there's another conversation 846 00:45:28,600 --> 00:45:31,480 Speaker 4: apparently happening behind closed doors, And that's what to do 847 00:45:32,160 --> 00:45:34,560 Speaker 4: if this is not going to be Joe Biden's convention 848 00:45:34,800 --> 00:45:37,760 Speaker 4: in Chicago, how do we handle it? To what extent 849 00:45:37,800 --> 00:45:40,040 Speaker 4: is that the responsible story to be covering here and 850 00:45:40,120 --> 00:45:42,640 Speaker 4: knowing that that's the less likely outcome. 851 00:45:43,920 --> 00:45:45,880 Speaker 13: You know, I think the media are going to have 852 00:45:45,920 --> 00:45:48,000 Speaker 13: to cover all of them, are going to have. 853 00:45:48,040 --> 00:45:50,200 Speaker 12: This is an extraordinary news period. 854 00:45:50,280 --> 00:45:52,759 Speaker 13: I mean, it is in some ways heartening to me 855 00:45:53,360 --> 00:45:56,080 Speaker 13: to see the news coverage and see the analysis that 856 00:45:56,160 --> 00:45:59,480 Speaker 13: we're seeing. Largely, I think that a good job is 857 00:45:59,520 --> 00:46:03,920 Speaker 13: being done by what I would call the establishment legacy media, 858 00:46:04,760 --> 00:46:09,160 Speaker 13: mainstream media. I think that, in large part, just like 859 00:46:09,200 --> 00:46:12,480 Speaker 13: the Supreme Court decision is consequential historically and how will 860 00:46:12,480 --> 00:46:15,399 Speaker 13: it play out, we will have to cover I still 861 00:46:15,440 --> 00:46:18,120 Speaker 13: count myself as a reporter and as a journalist in 862 00:46:18,160 --> 00:46:20,600 Speaker 13: many ways, the news media will have to cover this 863 00:46:20,719 --> 00:46:24,480 Speaker 13: scenario of could this actually happen? I think to your question, 864 00:46:24,560 --> 00:46:27,200 Speaker 13: it would be a disservice to say this can't happen. 865 00:46:27,760 --> 00:46:30,279 Speaker 13: You need to point out this could happen. Here's how 866 00:46:30,280 --> 00:46:33,520 Speaker 13: it could, here are the difficulties, Here's the conversation going 867 00:46:33,560 --> 00:46:36,640 Speaker 13: on behind the scenes, here's the conversation that's going where 868 00:46:36,680 --> 00:46:39,640 Speaker 13: they are huddled. And you know, much as being made 869 00:46:39,680 --> 00:46:43,279 Speaker 13: of Jill Biden's role in this, you know, and what 870 00:46:43,360 --> 00:46:46,520 Speaker 13: she said afterwards. You know, you have to cover all 871 00:46:46,560 --> 00:46:49,399 Speaker 13: of this as responsibly and as fully as you can. 872 00:46:49,920 --> 00:46:52,359 Speaker 13: And I think that's all that the news media can 873 00:46:52,400 --> 00:46:53,240 Speaker 13: do at this point. 874 00:46:55,560 --> 00:46:58,400 Speaker 9: Well, as we consider what the news media does in 875 00:46:58,440 --> 00:47:01,520 Speaker 9: the aftermath, there also are still remaining question Jane, about 876 00:47:01,560 --> 00:47:03,839 Speaker 9: the way that some members of the media, specifically at 877 00:47:03,880 --> 00:47:07,839 Speaker 9: CNN handled the actual event itself, in that the moderators 878 00:47:08,480 --> 00:47:11,680 Speaker 9: did not fact check Donald Trump in real time, left 879 00:47:11,680 --> 00:47:13,920 Speaker 9: that entirely to the president, and we know that he 880 00:47:14,000 --> 00:47:18,560 Speaker 9: struggled to a large extent with that. Is that responsible 881 00:47:19,440 --> 00:47:21,600 Speaker 9: in twenty twenty four when we know that Donald Trump 882 00:47:21,719 --> 00:47:25,640 Speaker 9: lied outright on some thirty occasions. 883 00:47:26,200 --> 00:47:28,800 Speaker 12: Well, you know, that is a complicated question. 884 00:47:30,080 --> 00:47:35,600 Speaker 13: My understanding and my perception of that was that when 885 00:47:35,600 --> 00:47:38,799 Speaker 13: I watched it, I said, I think that it may 886 00:47:38,840 --> 00:47:41,759 Speaker 13: not be possible to completely fact check Donald Trump in 887 00:47:41,800 --> 00:47:45,319 Speaker 13: real time. He has confounded every format that has ever 888 00:47:45,360 --> 00:47:49,239 Speaker 13: been put forward. CNN and the Biden campaign and the 889 00:47:49,320 --> 00:47:54,040 Speaker 13: Trump campaign set those rules. They have said that it 890 00:47:54,120 --> 00:47:56,799 Speaker 13: was not their job to fact check. Now, you can 891 00:47:56,840 --> 00:47:58,919 Speaker 13: be critical of that and say, there were some things 892 00:47:58,960 --> 00:48:01,960 Speaker 13: that were so egregious. Should they have stepped in some 893 00:48:02,000 --> 00:48:05,080 Speaker 13: of the things that he said about being able to 894 00:48:05,160 --> 00:48:07,520 Speaker 13: deliver a baby and then murdering the baby. 895 00:48:08,640 --> 00:48:09,560 Speaker 12: You did see. 896 00:48:09,400 --> 00:48:13,719 Speaker 13: Dana bash As asked Donald Trump several times questions about 897 00:48:13,719 --> 00:48:16,440 Speaker 13: would he honor the results of the election. You know, 898 00:48:16,520 --> 00:48:20,640 Speaker 13: I think that unfortunately Biden did not make the case. 899 00:48:20,840 --> 00:48:26,040 Speaker 13: And yet this campaign sought this debate and people thought, 900 00:48:26,280 --> 00:48:29,239 Speaker 13: now we look at it erroneously that it would be 901 00:48:29,320 --> 00:48:33,680 Speaker 13: helpful not to have not to have Donald Trump able 902 00:48:33,719 --> 00:48:36,719 Speaker 13: to be unleashed and few lized. I have to say 903 00:48:36,800 --> 00:48:39,440 Speaker 13: I said before this that I thought it might actually 904 00:48:39,440 --> 00:48:42,399 Speaker 13: help him. He could look more presidential, he could hold 905 00:48:42,480 --> 00:48:47,760 Speaker 13: himself in check, and Biden was not able to vote him. 906 00:48:48,000 --> 00:48:50,280 Speaker 4: Gene, It's great to have you back. Thanks for the insights. 907 00:48:50,280 --> 00:48:53,160 Speaker 4: As always, Jane Hall at American University. I'm Joe Matthew 908 00:48:53,400 --> 00:48:56,520 Speaker 4: alongside Kaylee Lines on the fastest show in politics, only 909 00:48:56,560 --> 00:49:02,560 Speaker 4: here on Bloomberg TV and radio. 910 00:49:04,520 --> 00:49:06,960 Speaker 5: Thanks for listening to the Balance of Power podcast. 911 00:49:07,560 --> 00:49:10,719 Speaker 4: Make sure to subscribe if you haven't already, at Apple, Spotify, 912 00:49:10,800 --> 00:49:13,399 Speaker 4: or wherever you get your podcasts, and you can find 913 00:49:13,440 --> 00:49:16,680 Speaker 4: us live every weekday from Washington, DC at noontime Eastern 914 00:49:17,000 --> 00:49:18,520 Speaker 4: at Bloomberg dot com.