WEBVTT - Trump Can't Pardon Himself, But Will He? 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:07.120 --> 0:00:10.960 Last week, President Trump pardoned his former National security advisor, 0:00:11.039 --> 0:00:13.800 Michael Flynn, who had pleaded guilty to lyne to the 0:00:13.960 --> 0:00:18.480 FBI about his communications with Russia. Now speculation is swirling 0:00:18.520 --> 0:00:21.959 about who else the president will pardon before he leaves office, 0:00:22.360 --> 0:00:26.880 and whether Trump will even pardon himself. In eighteen Trump 0:00:26.920 --> 0:00:29.960 tweeted that he has the absolute right to pardon himself, 0:00:30.320 --> 0:00:34.680 but many constitutional scholars say that's not correct. It's something 0:00:34.720 --> 0:00:37.519 that's never been tested in the courts because no president 0:00:37.560 --> 0:00:41.400 has ever tried to pardon himself. Richard Nixon left office 0:00:41.400 --> 0:00:44.400 and waited for his former vice president Gerald Ford to 0:00:44.440 --> 0:00:47.400 pardon him. My guest is Frank Bowman, a professor at 0:00:47.400 --> 0:00:50.199 the University of Missouri School of Law. As far as 0:00:50.280 --> 0:00:55.040 pardoning other people, is there any limitation on a president's 0:00:55.080 --> 0:00:58.920 power to pardon someone. Let's say they're seen as a 0:00:58.960 --> 0:01:02.480 co conspiritor and they haven't been charged yet. Is there 0:01:02.520 --> 0:01:07.800 any limitation? I think the answer is no, there's no limitation. Now, 0:01:08.240 --> 0:01:10.720 there are some people who disagree with me on that point, 0:01:11.360 --> 0:01:14.120 and I respect their views. I think that at least 0:01:14.160 --> 0:01:17.760 as a matter of the original interpretation of the pardon clause. 0:01:18.760 --> 0:01:25.960 The Framers thought about that quite expressively. Their debate focused 0:01:26.040 --> 0:01:30.320 on the fact that has written the pardon clause extends 0:01:30.360 --> 0:01:34.640 to any crime, including treason, and a number of the Framers, 0:01:34.720 --> 0:01:39.200 both at the Philadelphia convention and in the ratifying conventions 0:01:39.240 --> 0:01:42.839 in the States, objected to the breadth of that because 0:01:42.880 --> 0:01:45.639 they said, wait a minute, if a president can pardon 0:01:45.760 --> 0:01:49.600 even treason, imagine as the president himself has been engaging 0:01:49.640 --> 0:01:52.800 in treason as activities and his co conspirators, although they 0:01:52.800 --> 0:01:56.320 didn't use exactly that we're we're caught or were suspected, 0:01:56.360 --> 0:02:00.360 he could pardon them for treason and to VMP to 0:02:00.440 --> 0:02:04.400 discovery of his own guilt. And the framer's discussion pretty 0:02:04.440 --> 0:02:09.840 much assumed that that's undesirable, of course, but he is 0:02:09.880 --> 0:02:13.680 included within the pardon power. Has the pardon power ever 0:02:13.840 --> 0:02:18.160 been tested in court? Well, if you know that there 0:02:18.240 --> 0:02:21.400 were people who tried to challenge that you are Pio 0:02:21.520 --> 0:02:24.440 pardon you remember, back at the beginning of the Trump's presidency, 0:02:24.440 --> 0:02:26.799 I think it was in two thousand and seventeen. Your Pio, 0:02:27.400 --> 0:02:32.840 a former sheriff of Americo County in Arizona had been 0:02:33.760 --> 0:02:38.240 charged with convicted of contempt of court arising out of 0:02:38.240 --> 0:02:40.960 a civil rights lawsuit to which he was a party. 0:02:41.000 --> 0:02:44.000 He had been convicted of criminal contempt before he could 0:02:44.000 --> 0:02:49.200 be sentenced, Trump pardoned, and there was a an effort 0:02:49.360 --> 0:02:53.160 to dispute that pardon on a couple of different grounds 0:02:53.200 --> 0:02:58.320 that were specific to the law criminal contempt, but they 0:02:58.400 --> 0:03:02.080 never really got anywhere, and that the pardons stood. You know, 0:03:02.120 --> 0:03:06.360 there have been efforts to limit certain aspects of pardons, 0:03:06.400 --> 0:03:09.200 but there has certainly never been a court case that 0:03:09.360 --> 0:03:14.680 successfully overturned a presidential part Now, so just give us 0:03:14.680 --> 0:03:18.680 the broad framework of where the pardon power comes from 0:03:18.720 --> 0:03:23.600 and why the Framers gave the president to pardon power. Well, 0:03:23.600 --> 0:03:26.360 the pardoner comes from a very specific provision in the 0:03:26.639 --> 0:03:30.640 in the Constitution, which grants the president to pardon all 0:03:30.720 --> 0:03:36.320 offenses read federal criminal offenses, except impeachments. So essentially, if 0:03:36.320 --> 0:03:40.400 a president could not, by use of the pardon, undo 0:03:40.760 --> 0:03:44.800 a congressional impeachment and conviction of any federal official or 0:03:44.800 --> 0:03:48.800 indeed of himself, that's clear. So the Framers wrote that 0:03:49.280 --> 0:03:53.320 specifically into the Constitution, specifically into the Article two Powers 0:03:53.360 --> 0:03:57.040 of the President United states. Where it comes from is 0:03:58.040 --> 0:04:02.520 that back into deep time, I suppose, is the British 0:04:02.520 --> 0:04:09.640 practice whereby the crown was entitled pardon people. That British 0:04:09.680 --> 0:04:12.520 ideas sort of emerged from the notion that, at least 0:04:12.520 --> 0:04:19.200 in early British legal theory, the law was largely, not exclusively, 0:04:19.880 --> 0:04:21.839 kind of an emanation of the will of the king, 0:04:22.600 --> 0:04:28.960 and there perfect sense that legal guilt was really violation 0:04:29.120 --> 0:04:30.800 of the law, which was an emanation of the will 0:04:30.839 --> 0:04:32.919 of the king, that the king could in reverse, that 0:04:32.920 --> 0:04:37.120 could undo, it could reach down and reverse what the 0:04:37.200 --> 0:04:41.919 king thought to be unfair or unjust excessive applications of 0:04:41.960 --> 0:04:45.600 the law. Now, that became more refined over time. But 0:04:46.320 --> 0:04:51.280 there were also pardons pardon power written into the constitutions 0:04:51.279 --> 0:04:53.800 of the early American States from seventeen seventy six to 0:04:55.080 --> 0:04:57.960 when the Constitution was ratified, and there had been a 0:04:58.000 --> 0:05:02.919 long tradition of the ability of generally speaking the executive branch, 0:05:03.000 --> 0:05:06.960 but sometimes legislatures and sometimes the two working together to 0:05:07.000 --> 0:05:13.040 reach in to undo excessive, unfair, unjust applications of the 0:05:13.080 --> 0:05:17.200 criminal law. Nothing straining your unusual about that. There was 0:05:17.240 --> 0:05:20.200 a debate in the Philadelphia Convention about whether or not 0:05:20.320 --> 0:05:23.320 the part and power for American constitutional purposes, it ought 0:05:23.360 --> 0:05:26.440 to rest exclusively in the president, or whether it ought 0:05:26.440 --> 0:05:29.599 to be shared with component of the legislature, particularly the Senate, 0:05:29.839 --> 0:05:33.800 either generally or in relationship to partners for treason. And 0:05:33.839 --> 0:05:35.880 they kicked it back and forth, and they decided at 0:05:35.880 --> 0:05:37.839 the end of the day that it made better sense 0:05:37.880 --> 0:05:41.760 to leave this power in the hands of the single executives, 0:05:41.839 --> 0:05:44.719 partly because they thought that there would be occasions when 0:05:44.960 --> 0:05:47.560 it ought to be used expeditiously in it not not 0:05:47.640 --> 0:05:50.880 to be tied up into legislative delay. And they also 0:05:51.040 --> 0:05:53.680 thought of the part and power as intense a kind 0:05:53.760 --> 0:05:58.400 of inter branch check by the executive on excesses to 0:05:58.440 --> 0:06:02.479 the legislature excess is of the judiciary. You can see 0:06:02.480 --> 0:06:05.000 an example of that kind of use of the part 0:06:05.040 --> 0:06:12.640 in power in President Obama's program to reduce the sentences 0:06:12.720 --> 0:06:16.120 of of non violent drug offenders, where he pardoned some 0:06:16.640 --> 0:06:20.280 you know, somewhere a thousand and two thousand first time 0:06:20.360 --> 0:06:24.280 drug offenders towards the end of his term, and that 0:06:24.520 --> 0:06:27.840 was the use of the executive part in power is 0:06:27.839 --> 0:06:31.680 the kind of systematic, systematic response or systemic response to 0:06:31.720 --> 0:06:35.640 the fact the fact that Congress has passed these long 0:06:36.360 --> 0:06:40.080 manager a minimum sentences that applied even to people who 0:06:40.080 --> 0:06:42.680 are non violent drug offenders. And so that's the classic 0:06:42.720 --> 0:06:46.400 example of that of that use of the pardon. Explain 0:06:46.440 --> 0:06:50.799 why constitutional scholars disagree about whether a president can pardon 0:06:50.920 --> 0:06:54.840 himself series of reasons. First, it's never ever been done. 0:06:54.920 --> 0:07:00.320 No executive branch official, whether king, president, or governor, ever 0:07:00.320 --> 0:07:03.800 attempted to purge themselves, and you can see why that 0:07:03.839 --> 0:07:07.600 would not be so. The pardon power, whether British or American, 0:07:07.760 --> 0:07:11.720 is designed for the chief executive to make a judgment 0:07:11.800 --> 0:07:17.280 about the behavior of others and to conclude either that 0:07:17.320 --> 0:07:21.840 they were adjusted, convicted or or excessively punished, perhaps rehabilitated 0:07:21.880 --> 0:07:24.680 themselves after a period of time. And just by its 0:07:24.760 --> 0:07:29.520 nature that idea doesn't involve making a judgment about yourself. 0:07:30.640 --> 0:07:35.600 We've always thought that making that kind of judgment about 0:07:35.680 --> 0:07:43.320 oneself is plainly going to be something that uh is 0:07:43.360 --> 0:07:46.920 subject to abuse, and so it's never been done. That's 0:07:46.960 --> 0:07:50.360 the That's the thing that's really contrary to the dial theory. 0:07:51.000 --> 0:07:54.400 Second thing, without getting a lot of detail, there are 0:07:54.400 --> 0:07:57.800 a number of debates in that happened during the gratification 0:07:57.800 --> 0:08:02.840 of the Constitution. That made clear that although the Framers 0:08:02.880 --> 0:08:06.360 didn't specifically talk about the self pardon, it's pretty clear 0:08:06.480 --> 0:08:09.560 that they also didn't imagine that such a thing would 0:08:09.560 --> 0:08:12.680 be possible. They just didn't conceive it as being something 0:08:12.680 --> 0:08:15.440 that to be done. They conceived the partners necessarily involving 0:08:15.480 --> 0:08:20.440 two parties. And they also wrote both the pardon clause 0:08:20.480 --> 0:08:24.360 and the impeachment clauses in a way that made it 0:08:24.400 --> 0:08:30.000 clear that they assumed that there were really three ways 0:08:30.440 --> 0:08:34.520 in the Constitution to check a criminally misbehaving president. The 0:08:34.520 --> 0:08:37.920 first peace was elections, of course, and they originally were 0:08:38.000 --> 0:08:40.680 kicking around the idea that perhaps elections would be enough 0:08:40.720 --> 0:08:44.360 to restrain in the really seriously misbehaving executives. They ultimately 0:08:44.400 --> 0:08:48.520 decided that wouldn't be enough, so they then instituted the 0:08:48.559 --> 0:08:51.160 idea of in teachment, which itself as an old British idea, 0:08:51.640 --> 0:08:53.719 But they went a little further than that, and when 0:08:53.720 --> 0:08:58.160 they wrote the impeachment clauses, they wrote a limitation on 0:08:58.440 --> 0:09:01.400 the consequences of impeachment. I mean, the American Constitution, if 0:09:01.400 --> 0:09:04.880 you're impeached and convicted by the Senate, the only consequences 0:09:04.920 --> 0:09:06.960 that happened directly as a results of that, or you 0:09:07.000 --> 0:09:09.520 lose your office, and if the Senate takes a second vote, 0:09:09.559 --> 0:09:12.360 you can also be barred from future office holding. But 0:09:12.440 --> 0:09:16.439 in addition, they were very careful to say that although 0:09:16.520 --> 0:09:19.480 you can't be criminally punished directly, in other words, you 0:09:19.480 --> 0:09:21.240 can't be sent to prison, you can't be fined, you 0:09:21.280 --> 0:09:24.520 can't be executed directly as a result of being impeached 0:09:24.559 --> 0:09:26.520 in by the House and expected by the Senate. Each 0:09:26.600 --> 0:09:30.080 person remains subject to criminal punishment by the normal action 0:09:30.120 --> 0:09:32.439 of the court. That's written right into the impeachment clause. 0:09:32.800 --> 0:09:34.719 So what I think you see here is that the 0:09:34.880 --> 0:09:38.240 framers imagine that there were these three ways of dealing 0:09:38.280 --> 0:09:42.080 with the criminal president, elections, impeachment, and the possibility of 0:09:42.080 --> 0:09:46.120 criminal prosecution. Now, if a president can simply pardon himself 0:09:46.320 --> 0:09:50.160 or anything, then the possibility of criminal prosecution for clonal 0:09:50.240 --> 0:09:53.880 misbehavior while in office essentially goes proof because it could 0:09:53.880 --> 0:09:56.560 be taken completely off the board. It would eliminate one 0:09:56.679 --> 0:10:00.920 of the three constitutional checks on presidential miss Let's just 0:10:00.960 --> 0:10:04.559 say President Trump decides he's going to pardon himself. How 0:10:04.559 --> 0:10:07.440 would that even be tested in court? Would it take 0:10:07.600 --> 0:10:11.440 a federal prosecution charging him with a crime to test 0:10:11.520 --> 0:10:15.520 whether he had the power to pardon himself. That would 0:10:15.520 --> 0:10:18.720 be the principal way that it would happen, presumably the 0:10:18.760 --> 0:10:22.120 members of Biden Justice partner would do. In a criminal investigation, 0:10:22.280 --> 0:10:24.840 they would conclude at looking at all the evidence that 0:10:25.120 --> 0:10:28.880 indeed the behavior merited in indictment. The indictment is returned 0:10:28.880 --> 0:10:31.760 by the grand jury, and the President would move to 0:10:31.840 --> 0:10:34.680 caution the indictment based on his own pardoner in the 0:10:34.720 --> 0:10:37.520 Department of Justice would resist that motion, claiming as the 0:10:37.520 --> 0:10:40.839 president has no such power. Now I think, frankly, that 0:10:41.240 --> 0:10:44.200 Trump is likely to try this, even though you know 0:10:44.280 --> 0:10:49.080 it's constitutionally doubtful, because he might win. Maybe the Spreme 0:10:49.120 --> 0:10:51.240 Court would disagree with me, and other people don't think 0:10:51.280 --> 0:10:54.240 self pardners are possible. But he could also use the 0:10:54.320 --> 0:10:57.440 self pardon to slow things down tremendously. Not only could 0:10:57.480 --> 0:11:01.439 he invoke his own pardoner himself if the department indicted him, 0:11:01.480 --> 0:11:03.600 but I suspect what he has lawyers to try to 0:11:03.600 --> 0:11:06.600 do is that as soon as it became evident that 0:11:06.679 --> 0:11:09.520 they were engaging in a criminal investigation of them, that 0:11:09.600 --> 0:11:12.680 he tried to stop at least important components of the 0:11:12.679 --> 0:11:17.240 investigation likes Penis, the witnesses Penis for documents by moving 0:11:17.240 --> 0:11:19.720 to quash him on the ground that they were being 0:11:19.840 --> 0:11:23.160 issued in order to put together a prosecution, which wouldn't 0:11:23.200 --> 0:11:26.600 be possible because he pardoned himself. Now, I don't necessarily 0:11:26.600 --> 0:11:29.560 think that would be ultimately successful, but he could slow 0:11:29.600 --> 0:11:33.240 things down because to resist that claim, the government would 0:11:33.280 --> 0:11:35.360 have to resist the motion to quash. That would have 0:11:35.400 --> 0:11:37.200 to be decided at the trial court, then the Intermediate 0:11:37.200 --> 0:11:39.000 Court of Fields in the Supreme Court, and all that 0:11:39.040 --> 0:11:42.720 takes time. So I think he's likely to try to 0:11:42.760 --> 0:11:45.440 do this because it certainly it seems that he's worried 0:11:45.480 --> 0:11:49.000 about at least criminal investigations of himself and others, and 0:11:49.320 --> 0:11:52.440 at a minimum, a self pardon is going to provide 0:11:52.440 --> 0:11:55.360 another avenue for delay. And as we know anything about 0:11:55.720 --> 0:11:58.480 Donald Trump and his approach to litigation over his long 0:11:58.960 --> 0:12:04.319 business and political is that he uses delay as a 0:12:04.400 --> 0:12:08.400 major tactic to try or resist the legal efforts of 0:12:08.440 --> 0:12:12.400 his opponents. So if the Biden Justice Department decides not 0:12:12.520 --> 0:12:16.600 to prosecute Trump, then his self pardon will remain untested. 0:12:17.200 --> 0:12:21.400 That's true, although again I suspect Trump if you pardon himself, 0:12:21.440 --> 0:12:23.240 would be tempted at least to try to use the 0:12:23.280 --> 0:12:27.600 pardon to slow down not only any criminal investigation of him, 0:12:27.640 --> 0:12:31.319 but also potential civil or administrative investigations. I don't think 0:12:31.320 --> 0:12:33.319 that attempt would be successful, but I think he might 0:12:33.360 --> 0:12:35.360 try it, and therefore there might be other venues for 0:12:35.480 --> 0:12:37.720 challenging it. But here's the thing. One of the perverse 0:12:37.760 --> 0:12:41.480 effects of Trump pardoning himself might be that a Biden 0:12:41.559 --> 0:12:45.960 Justice Department would feel obliged to pursue the matter. It's 0:12:46.040 --> 0:12:49.920 awfully tough, I think for an honest Justice Department to 0:12:50.120 --> 0:12:54.880 let that precedent stand, because it then if I'm challenged, 0:12:55.000 --> 0:12:59.120 it starts to gather force as something that presidents can do. 0:13:00.000 --> 0:13:03.160 And if he becomes even sort of generally accepted that 0:13:03.280 --> 0:13:06.400 that's a possibility. Consider where we are. We already know, 0:13:06.720 --> 0:13:09.640 because it was a big issue during the Moller investigation 0:13:09.840 --> 0:13:12.600 that the Office of Legal Counsel within the Justice Department 0:13:12.720 --> 0:13:16.080 has long held the opinion that sitting presidents cannot be 0:13:16.120 --> 0:13:19.679 indicted while in office. Now I think that's constitutionally wrong, 0:13:19.800 --> 0:13:21.960 but as a practical matter, it's not something to be 0:13:22.040 --> 0:13:26.360 challenged because memos buying the Justice Department. Of the Justice 0:13:26.360 --> 0:13:29.439 Department won't prosecute a sitting president. He can't be prosecuted, 0:13:29.520 --> 0:13:32.040 So that means that practically speaking, at present moment, a 0:13:32.080 --> 0:13:35.440 sitting president is not subject to federal criminal prosecution while 0:13:35.480 --> 0:13:38.320 he's there. If he can also self partner, that means 0:13:38.360 --> 0:13:42.120 he's never subject criminal prosecution. And given the potential breadth 0:13:42.240 --> 0:13:44.800 of a partner which can't extend to any federal crime 0:13:44.880 --> 0:13:48.160 whatsoever and need all federals, and which at least potentially 0:13:48.600 --> 0:13:52.320 could be granted to one's self as president for periods 0:13:52.320 --> 0:13:56.080 extending before your presidents were You're talking about is creating 0:13:56.559 --> 0:13:59.720 a de facto regime in which, once somebody becomes president 0:13:59.760 --> 0:14:03.040 and at its states combined operation of the OLC. Metlin 0:14:03.080 --> 0:14:07.880 myself pardon makes that person permanently immune from criminal consequences, 0:14:08.160 --> 0:14:10.520 at least in the federal courts, for anything he's done 0:14:10.760 --> 0:14:13.560 during his entire life. And a person who has that 0:14:13.840 --> 0:14:17.840 kind of immunity effectively assumes one of the attributes of monarchy. 0:14:18.360 --> 0:14:20.920 One of the things that is true or was true 0:14:21.120 --> 0:14:24.720 actually remains true about British kings and queens if they 0:14:24.760 --> 0:14:28.240 are not subject to the operation of the ordinary courts 0:14:28.320 --> 0:14:33.560 criminal or civil of Great Britain, they are effectively immune 0:14:34.120 --> 0:14:38.200 from the law. One thing we know, if anything, about 0:14:38.360 --> 0:14:41.080 the framers of the Constitution, is that they did not 0:14:41.240 --> 0:14:44.400 intend to create in a president somebody who was the 0:14:44.440 --> 0:14:47.960 de factl equivalent of King. If. If, if the president 0:14:48.000 --> 0:14:51.640 can can essentially pardon himself out of all criminal liability 0:14:51.680 --> 0:14:54.360 for everything in his entire life, we've created at least 0:14:54.720 --> 0:14:58.960 a kind of monarch. Just before, um, I let you go, 0:14:59.000 --> 0:15:02.240 would you just explain why the president cannot? There's no 0:15:02.360 --> 0:15:06.400 chance that the president can pardon himself from state crimes 0:15:06.440 --> 0:15:12.440 like those that the Manhattan District Attorney is investigating. The 0:15:12.480 --> 0:15:15.200 pardon power in the Constitution is very broad, indeed, but 0:15:15.240 --> 0:15:17.760 it has some implicit limitations. One of them is that 0:15:17.800 --> 0:15:21.160 it applies only to federal offenses, so it doesn't relate 0:15:21.200 --> 0:15:26.320 to state crimes at all. Another implicit limitation is that 0:15:26.400 --> 0:15:30.000 it can only cover crimes that have already occurred at 0:15:30.000 --> 0:15:32.480 the time of the issuance to part. So that means 0:15:32.760 --> 0:15:37.560 um that Trump, even if in theory self pardons are available, 0:15:38.520 --> 0:15:42.480 um could not pardon himself or offenses that are committed 0:15:42.560 --> 0:15:45.240 after he leaves office. And indeed he probably can't pardon 0:15:45.360 --> 0:15:50.920 himself or any ongoing offense that started before he pardons himself, 0:15:51.480 --> 0:15:55.160 quarantined anyone else, and continues after that pardon. So there 0:15:55.200 --> 0:16:00.320 are limitations, um, but at least as federal criminal offense 0:16:00.400 --> 0:16:05.120 before the assurance, the pardon, pardon towers very well. Thanks Frank. 0:16:05.560 --> 0:16:09.000 That's Professor Frank Bowman of the University of Missouri Law School. 0:16:11.160 --> 0:16:14.800 The number of Americans hospitalized with COVID nineteen climbed to 0:16:14.840 --> 0:16:18.280 a record Sunday, a sign that the virus is still raging, 0:16:18.640 --> 0:16:22.400 but good news on the vaccine front. Today, Maderna announced 0:16:22.400 --> 0:16:26.120 plans to request clearance for its coronavirus vaccine the US 0:16:26.200 --> 0:16:29.400 and Europe after a new analysis showed the vaccine was 0:16:29.480 --> 0:16:34.119 highly effective in preventing COVID nineteen with no serious safety problems. 0:16:34.560 --> 0:16:37.760 At this pivotal time, states are not only facing decisions 0:16:37.800 --> 0:16:40.520 on how to manage the pandemic, but also on how 0:16:40.560 --> 0:16:44.240 to distribute a vaccine. Joining me discuss this is Mark Houston, 0:16:44.280 --> 0:16:48.840 who has a healthcare regulatory and lobbying practice at Farrell Fritz. Normally, 0:16:48.880 --> 0:16:52.640 a governor is empowered to make decisions about lockdowns, but 0:16:52.760 --> 0:16:57.680 we've seen that the Supreme court recently has blocked Governor 0:16:57.720 --> 0:17:02.400 Andrew Cromo from re Impoe, saying strict capacity limits on 0:17:02.640 --> 0:17:07.159 New York City synagogues and Catholic churches. So tell us 0:17:07.200 --> 0:17:11.320 about how broad the governor's authority is and how it 0:17:11.359 --> 0:17:15.919 can be restricted. In general, governors have very broad authority 0:17:16.160 --> 0:17:21.480 in regard to disaster emergencies. Every state has language that 0:17:21.600 --> 0:17:25.760 says in the event of a disaster emergency of any kind, 0:17:25.800 --> 0:17:30.440 including a public health emergency, generally the executive is granted 0:17:30.480 --> 0:17:32.960 extraordinary powers to do all kinds of things that the 0:17:33.000 --> 0:17:39.520 executive normally cannot do. However, even though those statutes that 0:17:39.640 --> 0:17:43.639 grant uh that authority are are very broad, they are 0:17:43.680 --> 0:17:47.199 still subject to limitations imposed by the state constitution and 0:17:47.200 --> 0:17:50.679 by the federal Constitution. And that's what was that issue 0:17:51.080 --> 0:17:53.359 in the case in in regard to New York State, 0:17:53.600 --> 0:17:57.119 where you had a situation where the governor's police power 0:17:57.400 --> 0:18:02.520 for public health purposes was pitted squarely against questions of 0:18:02.640 --> 0:18:06.080 religious rights. Uh, and uh, you know that always puts 0:18:06.080 --> 0:18:08.760 the court in a difficult position to try to figure out, um, 0:18:08.960 --> 0:18:13.000 you know, which which set of rights wins in a 0:18:13.040 --> 0:18:17.359 particular disagreement. And in this case, what they decided was 0:18:18.280 --> 0:18:23.159 UH that for a variety of reasons, UH, the UH 0:18:24.040 --> 0:18:27.639 the order as related to churches UH and synagogue in 0:18:27.680 --> 0:18:31.320 New York State needed to be enjoined and could not, 0:18:31.359 --> 0:18:35.600 in fact be enforced. So now, Mayor du Blasio and 0:18:36.480 --> 0:18:41.919 Governor Cuomo have clashed several times during the coronavirus pandemic, 0:18:42.359 --> 0:18:47.240 particularly about whether or not schools should be operational. Who 0:18:47.280 --> 0:18:52.720 has the authority in that battle? Ultimately, UH, the decision 0:18:52.840 --> 0:18:55.760 regarding schools, any decision regarding schools in New York State 0:18:55.960 --> 0:19:00.560 is the responsibility of the governors. How are in regard 0:19:00.640 --> 0:19:04.879 to New York City schools, the mayor does have expansive 0:19:04.880 --> 0:19:08.440 authority um. And in this case, the issue turned on 0:19:08.600 --> 0:19:12.320 a rule that was set earlier that once the infection 0:19:12.400 --> 0:19:20.400 rate top three, schools would once again eliminate in person instruction. UH. 0:19:20.440 --> 0:19:23.720 And you know the ultimately the disagreement turned on whether 0:19:23.760 --> 0:19:27.600 that was a good rule or not. And UH, you know, 0:19:27.760 --> 0:19:31.280 the the governor made the argument that, based on the 0:19:31.320 --> 0:19:35.320 most recent UH scientific information we had, maybe you didn't 0:19:35.359 --> 0:19:38.880 need to to abide by by such a bright line rule. 0:19:39.280 --> 0:19:41.680 And it sounds like the Mayor is ultimately agreeing. And 0:19:41.880 --> 0:19:45.520 this is illustrates. I think part of the the the 0:19:45.600 --> 0:19:49.080 problem in a pandemic situation, right. Um. You know we 0:19:49.480 --> 0:19:54.520 I mentioned earlier the broad authority of governors UH in 0:19:54.560 --> 0:19:57.360 regard to disaster emergencies. I think part of the problem 0:19:57.480 --> 0:20:01.919 is those statutes that grant that our our premised on 0:20:02.280 --> 0:20:08.040 sort of typical disasters things like hurricanes, earthquakes, tornadoes, and 0:20:08.160 --> 0:20:11.639 not something that occurs over such a sustained period of time. 0:20:12.359 --> 0:20:15.680 And you know, as the pandemic has been evolving, our 0:20:15.800 --> 0:20:18.760 understanding of it has evolved, so we get new scientific 0:20:18.800 --> 0:20:24.320 information over time. UH. And that I think properly has 0:20:24.400 --> 0:20:27.800 driven some some changes UH in in in the approach 0:20:27.880 --> 0:20:31.119 to two particular issues, and that question of in person 0:20:31.160 --> 0:20:34.520 schooling is absolutely one of them. So let's say that 0:20:34.800 --> 0:20:38.720 the mayor said that schools will remain closed. Does anyone 0:20:38.840 --> 0:20:43.800 have an ability to appeal that decision? Is it something 0:20:43.800 --> 0:20:46.960 that you would take to court? Sure, you certainly could, um. 0:20:47.040 --> 0:20:51.639 The UM. You know they're have courts have absolutely found 0:20:51.880 --> 0:20:55.400 a right to education UM. And you know there has been, 0:20:55.440 --> 0:20:59.520 certainly in New York a considerable amount of litigation around 0:20:59.600 --> 0:21:03.880 that UM. And so you you have essentially another situation 0:21:04.080 --> 0:21:09.840 similar to the situation regarding churches and synagogues where uh, 0:21:09.880 --> 0:21:12.679 you know, you have this this right to education pitted 0:21:12.680 --> 0:21:15.400 against the police power of the states, So you you 0:21:15.520 --> 0:21:18.119 could absolutely make the argument. I mean, that's one of 0:21:18.119 --> 0:21:20.040 the great things about our system is you can always 0:21:20.080 --> 0:21:22.520 make the argument. What the courts will say are a 0:21:22.680 --> 0:21:26.679 different matter. I think as far as the masks mask wearing, 0:21:26.880 --> 0:21:30.240 are there any states or cities who have really gotten 0:21:30.320 --> 0:21:35.119 serious about finding people who are not wearing masks? You know, 0:21:35.320 --> 0:21:38.119 you always hear sort of anecdotes about how how particular 0:21:38.160 --> 0:21:42.040 places are responding. Mask wearing is one of those things 0:21:42.160 --> 0:21:45.760 that folls on this continuum where you know, there's there's 0:21:46.000 --> 0:21:50.000 plenty of laws that everyone sort of recognizes and accepts about, 0:21:50.200 --> 0:21:53.120 you know, governing people's clothing. You know, we have indecent 0:21:53.160 --> 0:21:56.240 exposure laws, for instance. But on the other hand, there 0:21:56.359 --> 0:22:01.600 is a natural and understandable concern about government mandating what 0:22:01.720 --> 0:22:05.120 you can wear and what you can't wear. In other situations, 0:22:05.200 --> 0:22:08.800 the key is always one of intention, and you know, 0:22:08.800 --> 0:22:13.040 a mask wearing statute accompanied by a fine, I think 0:22:13.119 --> 0:22:17.280 under the current circumstances would probably survive judicial route. How 0:22:17.320 --> 0:22:23.000 will the federal government determine what states get the vaccine, 0:22:23.560 --> 0:22:26.879 how much of the vaccine they get, and which vaccine 0:22:26.880 --> 0:22:29.760 they get. Who makes that determination is the federal government. 0:22:30.520 --> 0:22:34.280 So that is one of those questions that UM is 0:22:34.359 --> 0:22:37.719 in some ways up in the air. Uh. The federal 0:22:37.760 --> 0:22:43.680 government has issued a vaccine distribution plan, but it is 0:22:43.720 --> 0:22:47.600 expressed in very general terms, and I think mostly talks 0:22:47.640 --> 0:22:50.880 about how they're going to go about making those decisions, 0:22:51.160 --> 0:22:56.440 as opposed to what those decisions will be UM. States. Uh, 0:22:56.600 --> 0:22:58.800 you know I have already started to engage on that 0:22:58.920 --> 0:23:02.600 question themselves. Uh. And for instance here in New York. UM, 0:23:02.720 --> 0:23:04.400 you know, there is a I think a much more 0:23:04.480 --> 0:23:09.040 detailed plan as to what how those decisions are going 0:23:09.080 --> 0:23:12.320 to be made. UM. There's not you know, a hard 0:23:12.320 --> 0:23:16.280 and fast existing rule driving that decision. Now, like so 0:23:16.320 --> 0:23:20.760 many things during the pandemic, UM, you know, Uh, the 0:23:20.760 --> 0:23:23.160 the decision makers are in a position where they can, 0:23:24.000 --> 0:23:26.320 uh they have a lot of leeway in how they 0:23:26.320 --> 0:23:30.800 make those decisions. And UH, I think you see the 0:23:30.840 --> 0:23:34.880 decision really turning on on two different things. Right. There 0:23:35.040 --> 0:23:40.440 is the decision about uh, you know, what is an 0:23:40.520 --> 0:23:44.560 essential worker. UM. There's a general recognition that essential workers 0:23:45.119 --> 0:23:48.520 should probably have uh First priority or at least a 0:23:48.560 --> 0:23:53.639 high priority UM, and that generally involves workers who are 0:23:53.640 --> 0:23:57.439 involved in addressing the disease. And also UM sort of 0:23:57.440 --> 0:24:01.920 the second poll I think that uh, decision makers are 0:24:01.920 --> 0:24:06.040 are are aiming towards is workers essential to keeping the 0:24:06.040 --> 0:24:08.879 economy going. So that's sort of one set, and then 0:24:08.920 --> 0:24:13.480 the other set is, uh, you know, populations that are 0:24:13.560 --> 0:24:16.919 disproportionately impacted by the disease. And there's a lot of 0:24:16.920 --> 0:24:20.359 overlap there, right, essential workers, uh you know, for instance, 0:24:20.359 --> 0:24:23.920 workers and hospitals who are supposed to the disease every day, uh, 0:24:23.960 --> 0:24:26.240 you know, are probably more likely to contract it. But 0:24:26.280 --> 0:24:29.959 there's there's other populations where you know, they wouldn't necessarily 0:24:30.040 --> 0:24:33.720 qualify as essential workers and yet still are disproportionately impacted, 0:24:33.760 --> 0:24:36.120 and and there is a sense that you then need 0:24:36.200 --> 0:24:39.879 to to put them high on the priority list for 0:24:39.920 --> 0:24:43.720 receiving the vaccipation. Tomorrow, a panel of advisors at the 0:24:43.800 --> 0:24:47.600 c d C is going to meet to determine how 0:24:47.640 --> 0:24:51.280 to allocate the initial supplies of the vaccine. Is it 0:24:51.359 --> 0:24:53.680 up to the c d C or is it up 0:24:53.760 --> 0:24:58.600 to the president or someone in the cabinet. Everyone recognizes 0:24:58.720 --> 0:25:04.560 that the seat you see has primary responsibility for I 0:25:04.600 --> 0:25:10.800 think evaluating the science and making recommendations. What happens after that, 0:25:11.359 --> 0:25:16.480 uh is an interesting question, right because certainly some amount 0:25:16.480 --> 0:25:21.560 of decision making could happen on the federal level. Traditionally 0:25:22.480 --> 0:25:26.320 public health related decision making has occurred though on the 0:25:26.359 --> 0:25:29.600 state level. UM So, I think this becomes a very 0:25:29.640 --> 0:25:32.919 interesting question, right where if if you face a situation 0:25:32.960 --> 0:25:36.440 where the federal government says one thing, in the state 0:25:36.520 --> 0:25:42.240 says something very different. Um. Uh. And I think you know, 0:25:42.280 --> 0:25:45.960 if push came to shove from a legal point of view, 0:25:46.040 --> 0:25:50.520 I would guess the state would win. But uh, you 0:25:50.520 --> 0:25:53.080