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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash Podcasts. In his interview

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Speaker 1: with sixty Minutes on Sunday, President Trump continued to complain

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Speaker 1: about the Russia investigation, painting that Robert Mueller's probe as ridiculous.

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Speaker 1: Do you really think I'd call Russia to help me

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Speaker 1: with an election? Give me a break. They wouldn't be

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Speaker 1: able to help me at all. Call Russia so ridiculous.

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Speaker 1: But now, sources tell Bloomberg News that Mueller is expected

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Speaker 1: to issue findings on two of the most explosive aspects

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Speaker 1: of his inquiry soon after the November midterm elections. Joining

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Speaker 1: us from our Bloomberg studio in Washington is Bloomberg News

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Speaker 1: Deputy Managing editor Kevin whitelaw So, Kevin, until now, it

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Speaker 1: seems like Muller has been above the political frame. Has

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Speaker 1: that changed? Is he issuing these findings next month because

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Speaker 1: the pressure has intensified? Well? I think, um, you know,

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Speaker 1: he's obviously been working now in this probe for almost

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Speaker 1: a year and a half, So I think some of

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Speaker 1: this is the natural run of things. And and we

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Speaker 1: knew that he was largely going to be trying to

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Speaker 1: avoid doing anything really splashy in in the period right

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Speaker 1: before the midterms. But UM our sources are making it

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Speaker 1: clear that he's um sort of wrapped up elements of

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Speaker 1: his key elements of his probe, is about ready to

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Speaker 1: and and is ready to move ahead. There's still a

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Speaker 1: few things that could possibly get in the way of it,

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Speaker 1: so the timing is a little unclear. And what also

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Speaker 1: remains unclear is what exactly he's gonna do. UM. We

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Speaker 1: don't know whether this is going to be public indictments

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Speaker 1: or whether it's going to be a private report to

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Speaker 1: the man who oversees his probe, Deputy Attorney General Rod Rosenstein,

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Speaker 1: and that report may or may not become public. That

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Speaker 1: is going to be in Rosenstein's hands. So tell us

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Speaker 1: about the two aspects of his inquiry. Well, the main

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Speaker 1: one that we we are expecting some some level of

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Speaker 1: resolution on UM are the collusion aspect. The question of

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Speaker 1: whether there were there were some amount of collusion would

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Speaker 1: probably be charged more as a conspiracy rather than collusion

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Speaker 1: UM in terms of the actual legal charges. But when

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Speaker 1: it comes to coordination between the Trump campaign and the

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Speaker 1: Russian government, UH, And the other would be obstruction of justice,

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Speaker 1: whether the President or other people engaged in anything that

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Speaker 1: would actually be considered obstruction of justice. So those two

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Speaker 1: things are are sort of the big, main, sort of

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Speaker 1: tent poles of of what we're anticipating. But as I said,

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Speaker 1: there's a handful of things that are still a little unknown,

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Speaker 1: including whether or not Robert Mueller is going to seek

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Speaker 1: to force uh some kind of interview with the president.

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Speaker 1: Many members of the public think that when Mueller gives

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Speaker 1: his report issues it in any form, that the public

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Speaker 1: is going to hear about it, and that may happen,

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Speaker 1: but it may not happen unless there are leaks. So

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Speaker 1: tell us what the scenario will be. He'll give his

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Speaker 1: report to Rosenstein, He'll give us report to Rosenstein. Again.

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Speaker 1: If there's indictments in their public we'll find out about them,

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Speaker 1: right in the same way we found out about all

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Speaker 1: of the other people he's indicted or reached plea deals

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Speaker 1: with UM. But UH, you know, if he decides to

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Speaker 1: stop short of that, he might still say that the

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Speaker 1: president did something wrong. Um, there's a lot of Justice

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Speaker 1: Department guidelines that suggest you can't indict a sitting president.

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Speaker 1: So that would leave with Mueller with the ability to

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Speaker 1: basically say here's what here's what my findings are to

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Speaker 1: Rod Rosenstein, and it would be up to Rosenstein to

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Speaker 1: decide whether to relay those to Congress, which would be

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Speaker 1: then uh possibility, you know, could could consider whether there's

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Speaker 1: a penalty necessary impeachment or whatever. Uh. One of the

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Speaker 1: key things here now is going to be, obviously whether

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Speaker 1: the Democrats can win a Chamber of UH Congress in

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Speaker 1: the upcoming election. If they take over the House UH

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Speaker 1: next year, that would actually give them subpoena power and

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Speaker 1: would put them in position to find out what's in

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Speaker 1: h Mueller's report, whether or not Rosenstein uh decides to

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Speaker 1: release it. So, UH, we're in a slightly uncharted territory

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Speaker 1: with a number of these elements as to exactly how

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Speaker 1: this is going to proceed. And you know, so, so

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Speaker 1: we're all going to be looking in the days and

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Speaker 1: weeks following the midterms to see what we can figure

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Speaker 1: out about what what Robert Mueller's up to. Well, we'll

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Speaker 1: also be looking at, as we would anyway, at President

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Speaker 1: Trump and whether he decides to fire Jeff Sessions, the

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Speaker 1: attorney general whom he's expressed expressed displeasure with almost since

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Speaker 1: he took the office, and Rod Rosenstein, who was seemingly

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Speaker 1: and almost fired a few weeks ago. So explain what

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Speaker 1: could happen if one or both of those people are

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Speaker 1: fired before Mueller gives his report. Well, that's right. If

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Speaker 1: if Jeff Sessions is Um has pushed out, whether he's

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Speaker 1: fired or leaves UM, that would mean that whoever Trump

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Speaker 1: puts in the place as acting Attorney General could actually

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Speaker 1: then take over the supervision of Mueller's probe and and

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Speaker 1: then could decide how to handle it. So in that

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Speaker 1: in that event, it would not be Rosenstein deciding what

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Speaker 1: to do with the report, but somebody else. We don't

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Speaker 1: know who that person would be. UM. If Rod Rosenstein

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Speaker 1: is is removed while Sessions are still in place, there's

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Speaker 1: a different scenario. A different official would take charge of

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Speaker 1: the report. But either way you're gonna end up with

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Speaker 1: some new people who would have to quickly get read

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Speaker 1: in on the details of of what Mueller has been

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Speaker 1: up to. For the past year and a half and

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Speaker 1: decide how to proceed. So yet another set of reasons

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Speaker 1: why we do believe that, uh, that Mueller is is

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Speaker 1: intending to try to move relatively quickly in the wake

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Speaker 1: of the midterm elections. In addition, let's just talk a moment,

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Speaker 1: we only have a minute here about Michael Cohen. In

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Speaker 1: an AP interview, Trump said that Cohen was lying when

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Speaker 1: he testified that Trump ordered hush payments in violation of

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Speaker 1: campaign finance laws. Do you know what's happening with Cohen? Well,

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Speaker 1: at this point, we believe Cohen has been cooperating with

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Speaker 1: with prosecutors up in New York. That whole thing has

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Speaker 1: been a separate probe related to Cohen's activities and some

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Speaker 1: of the other campaign activities and hush money payments and

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Speaker 1: those kinds of things entirely separate from Mueller. But we

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Speaker 1: also believe that Cohen has been meeting with Muller's team

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Speaker 1: as well where but you know, obviously, in terms of

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Speaker 1: the details of what he's providing, that still remains unknown.

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Speaker 1: All Right, thanks so much, Kevin. That's Bloomberg News Deputy

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Speaker 1: managing editor Kevin Whitelock. We're Alive from the Bloomberg Interactive

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Speaker 1: Broker studio. Last night, Supreme Court Chief Justice John Roberts

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Speaker 1: made a rare public appearance at a lecture series at

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Speaker 1: the University of Minnesota, where he stressed the importance of

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Speaker 1: an independent court. Now. The Court has from time to

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Speaker 1: time aired and aired greatly, but when it has it

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Speaker 1: has been because the Court yielded to political pressure, as

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Speaker 1: in the Coramatsu case shamefully upholding the internment during during

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Speaker 1: World War of Japanese American citizens. Joining me is Steve Sanders,

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Speaker 1: a professor at Indiana University Maraw School of Law. Steve,

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Speaker 1: after the bitter partisan fight over Kavanaugh's confirmation, other justices

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Speaker 1: have also talked about how the court is not political,

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Speaker 1: not part is in Now the Chief repeats the theme

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Speaker 1: he's spoken of many times before, and he quoted from Kavanaugh,

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Speaker 1: calling him our newest colleague. Will this do anything to

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Speaker 1: reassure those who are concerned about the court. I'm not

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Speaker 1: sure it will June only because probably relatively few people

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Speaker 1: other than your listeners, and uh, some people who catch

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Speaker 1: it online will even see the Chief Justice's comments. Um,

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Speaker 1: you know, far more pervasive has been uh, the fight

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Speaker 1: over Kavanaugh, and I think we have to draw a

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Speaker 1: distinction here between how the Court operates and how it

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Speaker 1: makes decisions. That's really I think what the Chief Justice

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Speaker 1: was talking about. And we can debate whether that's political

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Speaker 1: or not um, but you know, what we're really talking

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Speaker 1: about is the expectation of who will get on the

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Speaker 1: Court and what kinds of people we want on the Court.

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Speaker 1: I think the actions of President Trump been promising a

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Speaker 1: justice who would vote a particular way on particular cases,

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Speaker 1: as well as the actions of people like Mitch McConnell,

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Speaker 1: who prevented President Obama from getting a pick and instead,

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Speaker 1: you know, paved the way for President Trump now to

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Speaker 1: have two picks. I think those actions simply speak much

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Speaker 1: more loudly about the perceived politicization of the Court and

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Speaker 1: unfortunately do more damage and further undermine this idea that

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Speaker 1: the Supreme Court really does accept arguments and consider law

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Speaker 1: and make decisions without any sort of political preconceptions. In

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Speaker 1: answering the Law students questions, Robert said that criticism of

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Speaker 1: his opinions don't doesn't have an effect on him. Quote.

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Speaker 1: The good thing about life tenure is it really doesn't

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Speaker 1: bother you very much, and that brings up the next issue,

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Speaker 1: the renewed calls for term limits for the justices. Many

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Speaker 1: legal scholars favorite term limits. How do you feel you know,

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Speaker 1: I've gone back and forth. I I have academic friends

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Speaker 1: who are very much fans at the idea, and for

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Speaker 1: a long time I thought, well, it can't hurt the

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Speaker 1: The idea behind life tenure for all federal judges, including

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Speaker 1: Supreme Court justices, has always undersen understood to be to

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Speaker 1: assure their independence, to assure they couldn't be voted out

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Speaker 1: or removed because they do something that is unpopular. Life

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Speaker 1: tenures I'm sorry. A term limits simply sets a set

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Speaker 1: period of time. It doesn't make any judgments about, um,

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Speaker 1: the correctness or the wrongness or the controversial nature of

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Speaker 1: a justice's decisions. I've I think I'm coming to be

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Speaker 1: persuaded though, that if if, if it's intended to solve

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Speaker 1: the problem of the politicization of the court, it could

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Speaker 1: do more harm than good. Um. One of the most

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Speaker 1: common proposals is an eighteen year term, and that's a

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Speaker 1: design to assure that basically during each four year presidential term,

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Speaker 1: there would be two vacancies each each presidential term would

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Speaker 1: have two appointments to the Supreme Court. Well, you know,

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Speaker 1: then you know we could be in an almost permanent

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Speaker 1: state of chaos. If if you liked the Kavanaugh a circus,

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Speaker 1: then get ready for something like that, potentially every two years,

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Speaker 1: a fight like that. It seems to me, perhaps in retrospect,

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Speaker 1: that the Court has done the best or has been

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Speaker 1: the least controversial um in the public minds, has been

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Speaker 1: a political football, less during periods when the membership of

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Speaker 1: the Court has been very stable, when we haven't had

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Speaker 1: frequent turnover and freak when nomination fights. Let's talk about

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Speaker 1: the ways if it is decided and people are in

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Speaker 1: favor of it and legislators are in favorite, the ways

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Speaker 1: that the limit to limit the terms of justice is

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Speaker 1: a constitutional amendment or legislation, and constitutional amendment would require

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Speaker 1: two thirds approval of the House and Senate as well

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Speaker 1: as three quarters of the states. Is that even plausible nowadays?

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Speaker 1: So we just go on to the next thing. I

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Speaker 1: don't think anyone thinks that a constantly. You know, the

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Speaker 1: nature of our politics seems to be such that I

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Speaker 1: don't think any anybody believes you could get two thirds

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Speaker 1: of the both houses of Congress and three quarters of

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Speaker 1: the states to agree on anything. Um. The constitutional amendment

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Speaker 1: process was intended to be difficult to we don't want

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Speaker 1: to change a fundamental thing like the Constitution lightly, but

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Speaker 1: it's become virtually impossible. UM. I'm just not really sure

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Speaker 1: that there have been arguments made that you could do

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Speaker 1: term limits through ordinary legislation just a majority of Congress

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Speaker 1: and the president's signature. I think that's highly debatable. I

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Speaker 1: haven't looked closely enough or in depth enough about it,

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Speaker 1: I guess to determine the argument is basically, well, it

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Speaker 1: doesn't cut against the idea that the principle enshrined in

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Speaker 1: the Constitution tenure for good behavior other generally understood to

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Speaker 1: be life tenure was meant to assure independence. Term limits

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Speaker 1: don't cut against independence. They just essentially define what the

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Speaker 1: office is. That would certainly go against sort of generations

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Speaker 1: of thinking about what life tenure means for federal judges. Um.

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Speaker 1: You know, the argument may continue to be developed, and

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Speaker 1: maybe maybe someone will be persuaded that you could do

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Speaker 1: this through legislation. UM. I think it would be I

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Speaker 1: think it would be a difficult argument, though, Steve. If

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Speaker 1: let's just say if you did do it through legislation,

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Speaker 1: how would it effect other lifetime judicial appointments. Would you

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Speaker 1: have to do it across the board? Well, you wouldn't

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Speaker 1: have to. You know, most people, you know, the work

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Speaker 1: that the federal district judges do, and for the most part,

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Speaker 1: that the federal Courts of Appeal do is not nearly

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Speaker 1: so much in the public eye as the Supreme Court is.

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Speaker 1: And and those judges all have life tenure as well. UM.

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Speaker 1: I think if you started having term given the number

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Speaker 1: of judges that we have, if you started term limiting them,

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Speaker 1: just the process of replacing the sheer number of the

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Speaker 1: hundreds of federal judges you have on on a rotating basis,

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Speaker 1: on a regular basis would be so inefficient and would

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Speaker 1: be so disruptive to the work of those courts. I

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Speaker 1: don't know that anyone is posing that idea seriously. The

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Speaker 1: thing about the Supreme Court is that its word is final.

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Speaker 1: It interprets the Constitution. The other courts, the lower courts,

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Speaker 1: by and large follow the guidance of the Supreme Court,

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Speaker 1: so to the extent that it's felt that it's necessary

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Speaker 1: to have fresh blood to prevent entrenched points of view. Um.

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Speaker 1: To assure some turnover and some political accountability. I think

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Speaker 1: it makes sense to be talking about it for the

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Speaker 1: Supreme Court more so than it does for the lower court.

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Speaker 1: Thanks Steve. That's Steve sandrac Is, a professor at Indiana

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Speaker 1: University of maur School of Law. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Brasso. This is Bloomberg