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Speaker 1: This week, within hours of a ruling from the Supreme Court,

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Speaker 1: the National Archives began turning over hundreds of pages of

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Speaker 1: former President Donald Trump's White House papers to the House

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Speaker 1: committee investigating the January six insurrection. By a vote of

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Speaker 1: eight to one, the Justice has rejected Trump's attempt to

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Speaker 1: block the release of his records on the grounds of

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Speaker 1: executive privilege, joining me as Bloomberg, new Supreme Court reporter

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Speaker 1: Greg store greg It was a one paragraph order. Only

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Speaker 1: Justice Clarence Thomas dissented. Did the justices reject Trump's claim

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Speaker 1: of executive privilege? Not exactly. What they said was that

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Speaker 1: the argument he was making, namely that federal appeals Court

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Speaker 1: was to dismissive of his status as former president. The

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Speaker 1: Supreme Court basically said, you know, that wouldn't matter anyway,

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Speaker 1: because the appeals Court also decided that even if he

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Speaker 1: was the incumbent president, his claims of executive privilege were

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Speaker 1: so week they needed to yield to the needs of

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Speaker 1: this congressional committee looking into the attacks. So the majority

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Speaker 1: acknowledged that there were questions that are unprecedented and raised

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Speaker 1: serious and substantial concerns. Yet they decided those issues didn't

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Speaker 1: need to be addressed, right, They said that essentially their

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Speaker 1: dicta the notion that the appeals courts said some things

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Speaker 1: about those issues about the ability of a former president

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Speaker 1: to invoke executive privilege, but that wasn't central to the holding,

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Speaker 1: and that's why the Supreme Court was never going to

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Speaker 1: take up Trump's appeal, and that's why they said, we're

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Speaker 1: not going to block the turnover of the papers. So,

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Speaker 1: as of now, the decision of the d C. Circuit

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Speaker 1: Court of Appeals, with a panel composed of three judges,

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Speaker 1: two appointed by President Barack Obama and one appointed by

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Speaker 1: President Joe Biden, that stands. It does, although it's an

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Speaker 1: interesting question what presidential value it has. Just as Kavanaugh

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Speaker 1: wrote a separate opinion in which he tried to make

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Speaker 1: the case that this notion that former presidents can't override

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Speaker 1: a current president's views on executive privilege, Justice Kavanaugh was

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Speaker 1: making the point that because that was dicta, because it

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Speaker 1: wasn't essential to the holding, it's not binding president, and

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Speaker 1: so we may have to look to a future case

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Speaker 1: to decide exactly where that balance lies between the former

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Speaker 1: president and a current president. So how much of a

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Speaker 1: victory is this for the House Committee It's a pretty

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Speaker 1: significant victory, both in terms of the practical aspects getting

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Speaker 1: these documents that they want, the political aspects of it,

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Speaker 1: the notion that the Supreme Court is not going to

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Speaker 1: stand in the way of the committee's work at least

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Speaker 1: at this point, and from a legal standpoint, even though

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Speaker 1: there are some questions about the presidential value of the

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Speaker 1: lower court opinion, we do have an opinion that says

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Speaker 1: that a former president can't stand in the way of

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Speaker 1: the sort of inquiry. Is this being seen as a

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Speaker 1: rebuke of former President Trump by the court that includes

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Speaker 1: three of the justices he appointed, and which is turned

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Speaker 1: side his request before, You couldn't look at it that way.

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Speaker 1: The Court has, at least in the context of Donald

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Speaker 1: Trump's efforts to overturn the election result, really not giving

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Speaker 1: him a whole lot, you know, hasn't taken up any

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Speaker 1: of the appeals that tried to challenge the election results,

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Speaker 1: and now with this case involving the January six attack,

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Speaker 1: is at least at this point not showing any willingness

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Speaker 1: to jump in on his side and try to lock

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Speaker 1: the congressional inquiry. Greg Does the decision by the d C.

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Speaker 1: Circuit have any presidential authority or affect in any way.

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Speaker 1: Former White House Chief of Staff Mark Meadows challenging subtoenas

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Speaker 1: from the January six Committee on the basis of Trump's

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Speaker 1: executive privilege. It does have some presidential value in that

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Speaker 1: the DC Circuit looked at these claims of executive privilege

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Speaker 1: and said, even if Donald Trump were still the president,

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Speaker 1: these claims would not survive. Mark Meadows was urging the

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Speaker 1: Supreme Court to take up this case and bolster the

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Speaker 1: notion of executive privile. The peers of Court is not

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Speaker 1: going to do that. So yes, this, this DCO Circuit

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Speaker 1: opinion could well have some value when it comes to

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Speaker 1: dealing with the claims of Trump's aids that they can't

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Speaker 1: testify because of executive privilege. So now let's turn to

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Speaker 1: a little court intrigue. Since the court came back this month,

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Speaker 1: Justice Neil gor Such is the only justice not wearing

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Speaker 1: a mask on the bench, and Justice Sonya Sotomayor, who

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Speaker 1: has Type one diabetes, is participating in the oral arguments remotely.

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Speaker 1: So tell us about the kerfuffle that started with a

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Speaker 1: news story on Tuesday. Well, it started with an NPR

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Speaker 1: story by Nina Totenberg in which she said that the

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Speaker 1: reason Justice so Mayor wasn't wearing a mask was because

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Speaker 1: she was concerned about her unmasked colleagues, including Justice Gorsett,

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Speaker 1: who sits next to her on the bench. The story

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Speaker 1: also said that Chief Justice Roberts in some form had

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Speaker 1: asked his colleagues to start wearing masks. And then when

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Speaker 1: the Court heard argument. Right after the first arguments, the

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Speaker 1: Court put out a statement, a joint statement highly unusual

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Speaker 1: from Justices Corsets and so Do Mayor, in which they

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Speaker 1: said that Justice Soda Mayor did not ask Justice Course

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Speaker 1: to wear a mask, and they said that media reports

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Speaker 1: were false, even though the NPR report hadn't explicitly said

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Speaker 1: that Justice so Do Major asked Justice Courses to wear

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Speaker 1: a mask. And then a couple of hours later, Chief

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Speaker 1: Justice Roberts put out his own statement, just one sentence

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Speaker 1: that said, I didn't ask Justice Courses or any other

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Speaker 1: justice to wear a mask. And so that's where things stand.

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Speaker 1: The Court uh is highly unusual statements rebutting media reports,

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Speaker 1: and it leaves open the question of why was Justice

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Speaker 1: corset To the only justice who didn't wear a mask,

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Speaker 1: Why exactly did Justice so Do Mayor decides he wanted

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Speaker 1: to participate remotely. Was it because of justice, course? It

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Speaker 1: was it for some other reason. And that appears to

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Speaker 1: be all the Course going to say about the matter.

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Speaker 1: So in the statement, the Justice has said, while we

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Speaker 1: may sometimes disagree about the law, we are warm colleagues

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Speaker 1: and friends. And that's been said before of Justices Soda,

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Speaker 1: Mayor and gor Such that they get along well. Yes,

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Speaker 1: and you could often see that while they're on the bench.

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Speaker 1: As I mentioned they sit next to each other, they

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Speaker 1: often seem to be getting along very well and chatting

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Speaker 1: amongst themselves. They've done some events publicly. The other day

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Speaker 1: during arguments, Justice so Do Mayor was referring to Justice

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Speaker 1: Corsage and inadvertently just referred to him as Neil. So

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Speaker 1: there are the signs that even that their friendship doesn't

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Speaker 1: go back as far as the friendship between Justice Ginsburg

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Speaker 1: and Scalia, for example, there are certainly some signs that

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Speaker 1: they are kind of unlikely friends who do disagree vehemently

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Speaker 1: on the law, but remain personally fond of each other.

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Speaker 1: But no opera included here. No opera, And I'm not

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Speaker 1: aware that either of them is anywhere close to the

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Speaker 1: kind of opera fan that the former justices were. There

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Speaker 1: was even an opera composed about their friendship. Thanks so much, Greg,

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Speaker 1: that's Bloomberg News Supreme Court reporter Greg's store. The Supreme

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Speaker 1: Court seems ready to add to a line of decisions

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Speaker 1: striking down campaign finance restrictions that began in two with

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Speaker 1: the Citizens United case. Republican Senator Ted Cruz is challenging

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Speaker 1: the twofo dollar cap on the amount of personal loans

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Speaker 1: a candidate can be repaid with money raised after an election.

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Speaker 1: At oral arguments, the Court's conservative justices suggested they saw

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Speaker 1: the provision as violating the free speech rights of candidates

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Speaker 1: without any evidence of actual corruption. Here are Chief Justice

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Speaker 1: John Roberts and Justice Amy Coney Barrett marginal burden on

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Speaker 1: the exercise of First Amendment rights against the marginal assistance

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Speaker 1: in preventing corruption. Um, I mean it's there. There isn't

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Speaker 1: a sufficient corruption anti corruption interests sort of up to two.

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Speaker 1: But then all of a sudden, uh there is says

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Speaker 1: that this doesn't enrich him personally because he's no better

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Speaker 1: off than he was before. It's paying alone, not lining

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Speaker 1: his pockets. But the liberal gentalstices saw the provision as

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Speaker 1: a way to combat the corrupting influence of contributions made

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Speaker 1: after a candidate has won. Here are gealstice Is, Sonya

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Speaker 1: Sot Mayor, and Elena Kagan. But you just said the

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Speaker 1: magic words to make a contribution to the winner, not

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Speaker 1: to a campaign and for its stance, but for the

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Speaker 1: pockets of the winner. That's a very different corrupting influence.

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Speaker 1: If a third party says you're doing such a good job,

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Speaker 1: I want to repay your loan for you. I mean,

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Speaker 1: one day I had a ten thous dollar loan. The

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Speaker 1: next day I don't. I have ten thousand dollars richer.

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Speaker 1: Somebody just made me a ten thou dollar gift. Joining

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Speaker 1: me is Richard Bravald, a professor Columbia Law School. Rich

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Speaker 1: these campaign finance provisions are a little technical tell us

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Speaker 1: about the provisioned issue here. So Senator Cruz is challenging

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Speaker 1: thoroughly minor provision the federal election law which deals with

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Speaker 1: candidates who lend their own campaigns money and then want

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Speaker 1: to get that loan paid back by the campaign after

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Speaker 1: the election is over. So Santor Cruz lent his campaign

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Speaker 1: to sixty dollars. Under the law, he can be paid

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Speaker 1: back in full any money the campaign receives the four

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Speaker 1: election day, and also any money up to two hundred

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Speaker 1: and fifty thousand dollars that the campaign receives after election day.

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Speaker 1: The law says that you can't be paid back beyond

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Speaker 1: the two fifty thousand dollars with any money that comes

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Speaker 1: in after election day. So again he lent his campaign money.

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Speaker 1: The law says that that's a loan, and candidates will

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Speaker 1: do this, typically early in the campaign before they've actually

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Speaker 1: raised a lot of money. It's kind of seed money,

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Speaker 1: so candidates can make a launch of their campaign, particularly

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Speaker 1: seed money, and then later as the campaign has gotten contributions,

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Speaker 1: they can pay the candidate back. That's all with pre

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Speaker 1: election day money. For post election day money, they can

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Speaker 1: still pay the candidate back, but only with up to

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Speaker 1: two hundred and fifty thousand dollars of post election day contributions.

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Speaker 1: After that they can still pay them back they have

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Speaker 1: any money in their account, but they cannot accept and

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Speaker 1: use any more post election day contributions any more than

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Speaker 1: two hundred and fifty dollars to repay their debt to

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Speaker 1: their own candidate and what's the reason behind regulating the

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Speaker 1: repayment of candidate loans in this way. Well, the reason

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Speaker 1: behind it is runs it's after the election. Of course,

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Speaker 1: your guy is one Technically if the issue also applies

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Speaker 1: to candidates who have lost, but the problem comes up

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Speaker 1: a you know, the candidate has won and this could

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Speaker 1: become a way of carrying favor with the winner. Moreover,

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Speaker 1: the money is not going to go to pay for

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Speaker 1: any electioneering. And the reason campaign contributions are treated as

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Speaker 1: protected campaign contributions and not gifts which could be prohibited

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Speaker 1: by ethics laws or could be treated as bribes, is

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Speaker 1: because they're used to pay for election activities. Well, at

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Speaker 1: this point, the election is over, so a contribution to

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Speaker 1: the candidates campaign to be used to pay back the

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Speaker 1: candidate looks a lot like a direct payment of the

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Speaker 1: candidate in These are all arguments. Unlike the two others

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Speaker 1: we discussed today, it seemed like there was a divide

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Speaker 1: between the liberal and conservative justices. What were the conservative

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Speaker 1: justices concerned about? Well, the conservative justices still see this

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Speaker 1: as an indirect but real limit on the ability of

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Speaker 1: the candidate to campaign that candidates will be reluctant to

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Speaker 1: advanced money to their campaigns if they can't get fully reimbursed.

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Speaker 1: So one point they make is that this operates as

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Speaker 1: an indirect kind of limit on the ability of candidates

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Speaker 1: to raise and spend money. A second point that's raised

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Speaker 1: by some of them, I think Justice Kavana on particular, was,

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Speaker 1: you know, a law still cap the amount of donations

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Speaker 1: that a donor could give to the campaign to pay

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Speaker 1: back to candidate. That cap is the cap that would apply.

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Speaker 1: And in fact, that part of the oral argument was

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Speaker 1: six people could give that permissible dollars. That's how you

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Speaker 1: get dollars. If eighty six people could give the dollar

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Speaker 1: to pay back the two dollar loan, why not why

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Speaker 1: not the next person? And that's the issue, you know,

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Speaker 1: why not the next person? As long as there's a

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Speaker 1: cap on the size of the donation to the campaign committee,

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Speaker 1: they don't see a corruption issue. So Justice Amy Coney

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Speaker 1: Barrett wondered how repayment of the loans could be seen

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Speaker 1: as giving a gift to the winner. Quote Senator Cruz

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Speaker 1: says that this doesn't enrich him personally, because he's no

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Speaker 1: better off than he was before. It's paying a loan,

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Speaker 1: not lining his pockets. Do you agree with that, because

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Speaker 1: I mean, the point is it is actually putting the

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Speaker 1: money back in his pocket, because this was money that

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Speaker 1: he was willing to give up to his campaign. It says,

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Speaker 1: if I borrow money from you, you can't pay me back,

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Speaker 1: but your friend can pay me back, and he does

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Speaker 1: or she does, I'm going to be pretty grateful to

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Speaker 1: your friend, because otherwise this was an effect of bad debt,

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Speaker 1: and having somebody cover a bad debt is like giving

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Speaker 1: somebody a gift. Let's talk about the Liberals and what

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Speaker 1: their position seemed to be. Well, and I think justices

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Speaker 1: side of my Eran Kagan were clearest on this, which

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Speaker 1: is they see you just a gift. They see it

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Speaker 1: exactly the way in which the Federal Elections Commission and

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Speaker 1: the law seasons that at this point it's post election,

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Speaker 1: it's not being used to pay for any campaign activity.

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Speaker 1: It's basically, in effect covering a debt that the campaign

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Speaker 1: itself wasn't they put to cover. And so it looks

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Speaker 1: a lot like a gift. And as they said, Congress

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Speaker 1: sort of set a balance. Congress did permit some post

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Speaker 1: election reimbursements up to two fifty dollars, and that Congress

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Speaker 1: sort of struck a allance between allowing candidates to advance

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Speaker 1: their money to their campaigns as a way of helping

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Speaker 1: challengers in a way of helping getting campaign started with

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Speaker 1: seed money, but then being concerned that no limits on

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Speaker 1: post election donations could be come away of kind of

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Speaker 1: indirectly but clearly channeling private gifts to candidates. So they

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Speaker 1: saw an effect Congress should get some space here for

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Speaker 1: kind of setting a balance between allowing some post election

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Speaker 1: reimbursement but putting a cap on it. So there was

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Speaker 1: also a standing argument tell us about what that argument was.

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Speaker 1: The government's argument was that really that this was all

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Speaker 1: just a fake case, and that Senator Cruz purposely lends

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Speaker 1: his campaign to it in sixty dollars. Senator Cruz, I

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Speaker 1: think has admitted if he'd only lent two d and

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Speaker 1: fifty thousand dollars that could have been fully repaid by

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Speaker 1: post election contributions, but that he purposely did two hundred

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Speaker 1: sixty dollars in order to create the ten tho dollar problem.

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Speaker 1: But the essential argument was that the only reason that

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Speaker 1: this problem has arisen is because Senator Crews wanted to

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Speaker 1: create a test case and where to knock out this law,

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Speaker 1: and that seems to be the case here. His attorney

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Speaker 1: compared him to civil rights activists. Yeah, I think compared

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Speaker 1: him actually the Homer Pussy and Plessy versus Ferguson, saying

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Speaker 1: that Homer Pussy was creating a case by wanting to

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Speaker 1: sit in an integrated car rather than in the black's

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Speaker 1: only car. And the response to that was, there's no

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Speaker 1: basis for the racial discrimination that was in that rule. Plus,

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Speaker 1: he was clearly challenging and unconstitutional law based on racial discrimination,

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Speaker 1: whereas in this case, the Congress clearly had a good

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Speaker 1: justification trying to put in these caps, and it's something

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Speaker 1: that Crews could have dealt with in another way, and

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Speaker 1: that therefore he didn't really need to have this law challenged.

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Speaker 1: You can never tell for sure, but what are your

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Speaker 1: thoughts on the likely outcome here? Well, it's interesting. There

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Speaker 1: was an interesting technical wrinkle in the case, which is

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Speaker 1: um the um plaintiffs were challenging both a regulation and

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Speaker 1: the statute, and there's some argument that the regulation, the

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Speaker 1: statute says you can't pay off the candidate would post

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Speaker 1: election contributions. The regulation goes further and says if you

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Speaker 1: don't make if you if you don't pay him off

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Speaker 1: with pre election contributions within twenty days after the election,

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Speaker 1: it becomes he doesn't get paid at all. Uh, it

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Speaker 1: becomes it gets treated as a gift to the campaign.

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Speaker 1: Under the statute, it's possible that the committee could scrounge

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Speaker 1: up some pre election camp contributions and pay off the candidates.

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Speaker 1: In some ways, the regulation has more bike. The regulation

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Speaker 1: actually converted this, this unpaid debt into a gift to

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Speaker 1: the campaign. And so there was an argument that this

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Speaker 1: case should have been resolved as a challenge to the regulation,

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Speaker 1: which is what in the end prohibited of Cruise from

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Speaker 1: being repaid. It's the regulation that prohibited from being repaid,

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Speaker 1: not the statute. We only prohibited the use of pre

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Speaker 1: election contributions. Now there is a verty of the complicated

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Speaker 1: prostigial point. The reason that the plaintiffs focused on the

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Speaker 1: the statute and not the regulation is that part of

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Speaker 1: federal election law authorizes the creation of a three judge

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Speaker 1: court to any challenge to the constitutionality of the Federal

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Speaker 1: campaign financed Provision, and then the three judge court decision

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Speaker 1: goes straight to the Supreme Court rather than through the

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Speaker 1: courts of appeals. The three judge court that heard this said, well,

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Speaker 1: it's unconstitutional, so we're not going to get to the

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Speaker 1: to the to the regulatory issue, to the regulation that

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Speaker 1: is arguably backwards if the regulation was improperly adopted, regulation

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Speaker 1: won't beyond the statute. They ought to obstruct the regulation

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Speaker 1: down first. So their chief Justice Robert Seen somewhat interested

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Speaker 1: in this. Having said all that, I think it's likely

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Speaker 1: they're going to strike this statute down. Their simply seems

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Speaker 1: to be private, if not six votes for treating it

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Speaker 1: as burden on the candidates, potential burden on the candidates

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Speaker 1: speech that's not justified by the anti Prussian issue. UM.

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Speaker 1: I should also say that some people saw the reason

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Speaker 1: the Cruiz was bringing this, and you heard a statement

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Speaker 1: by Senator McConnell right before your argument that this could

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Speaker 1: become a basis for a wider decision. This particular restriction

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Speaker 1: was adopted as part of the McCain's Fine Gold Campaign

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Speaker 1: Finance Reformed Law of two thousand and two, and you

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Speaker 1: heard Sara McConnell expressing the hope that this could be

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Speaker 1: the basis of striking down more of that statute. Maybe

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Speaker 1: all of it. There was no discussion of that at

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Speaker 1: all in the court, So I think if they do

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Speaker 1: strike it down, it will be just the part that

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Speaker 1: they argued, the restriction on the use of post election

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Speaker 1: donations to repay a candidate's loan to his own campaign,

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Speaker 1: rather than anything broader. Would you agree that in the

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Speaker 1: past decade the Court has been cutting back campaign finance restrictions,

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Speaker 1: with the center piece sort of being the Citizens United case. Yes,

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Speaker 1: I think it's fair to say. Since the Roberts Court

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Speaker 1: came into existence, with Roberts coming on the Court and

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Speaker 1: Justice Alito replacing Justice O'Connor, who supported campaign finance the restrictions,

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Speaker 1: the Court has basically granted every campaign finance challenged to

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Speaker 1: turn and struck down every law that was challenged at

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Speaker 1: the federal level. There's the famous Citizens United case, in

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Speaker 1: which the Supreme Court struck down the limits on corporate

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Speaker 1: campaign expenditures. More recently, there was a case called Cutcheon

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Speaker 1: in which the Supreme Court struck down what's called the

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Speaker 1: aggregate contribution limits. The law previously had said that not

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Speaker 1: only is an individual limited as to the size of

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Speaker 1: the contribution he or she can make to an individual campaign,

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Speaker 1: but there's an overall aggregate limit as to how much

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Speaker 1: money anybody can give in campaign contributions in an election

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Speaker 1: to all the candidates together. And I think when that

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Speaker 1: case was the side of the limit with something like

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Speaker 1: a hundred and twenty thousand dollars, courts struck that down.

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Speaker 1: In dealing with a challenge to Arizona's public funding law,

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Speaker 1: the courts down the provision of that law that said

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Speaker 1: that publicly founded candidates who are faced with a high spending,

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Speaker 1: privately funded challenger are entitled to get more state public funds.

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Speaker 1: The court struck back down. So I may be missing something,

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Speaker 1: but I think every single campaign finance case they've heard

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Speaker 1: in the last roughly fifteen years, they have struck down

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Speaker 1: the campaign finance law and sustained the argument against it.

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Speaker 1: So they are not a court that's particularly friendly a

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Speaker 1: campaign finance law. Thanks rich that's Professor Richard Brofault of

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Speaker 1: Columbia Law School. And that's it for the edition of

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Speaker 1: the Bloomberg Law Show. I'm June Grosso, and you're listening

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Speaker 1: to Bloomberg