1
00:00:02,040 --> 00:00:03,800
Speaker 1: This is Bloomberg Law.

2
00:00:03,920 --> 00:00:06,720
Speaker 2: What does a prosecutor have to prove in order to

3
00:00:06,760 --> 00:00:09,959
Speaker 2: get a rico conviction? Tell us why the Solicitor General

4
00:00:10,000 --> 00:00:12,280
Speaker 2: is sometimes referred to as the tenth Justice.

5
00:00:12,320 --> 00:00:15,560
Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts.

6
00:00:15,560 --> 00:00:18,360
Speaker 2: That's Jennifer k for Bloomberg Law. Joining me is former

7
00:00:18,440 --> 00:00:20,160
Speaker 2: federal prosecutor Robert miss.

8
00:00:20,040 --> 00:00:23,200
Speaker 1: And analysis of important legal issues, cases and headlines.

9
00:00:23,239 --> 00:00:27,040
Speaker 2: It's the toughest hurdle for prosecutors proving Trump's intent. Alito

10
00:00:27,120 --> 00:00:30,479
Speaker 2: took on Congress, saying Congress has no power to regulate

11
00:00:30,520 --> 00:00:31,360
Speaker 2: the Supreme Court.

12
00:00:31,520 --> 00:00:34,640
Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.

13
00:00:38,000 --> 00:00:40,800
Speaker 2: Welcome to a special best of edition of the Bloomberg

14
00:00:40,880 --> 00:00:44,199
Speaker 2: Law Show. Ahead in this hour, Donald Trump looks for

15
00:00:44,280 --> 00:00:47,240
Speaker 2: a get out of jail free card. The Supreme Court

16
00:00:47,320 --> 00:00:51,360
Speaker 2: grapples with whether public officials can block citizens on social

17
00:00:51,440 --> 00:00:55,760
Speaker 2: media and what exactly is a legal hot tub.

18
00:00:57,280 --> 00:00:59,360
Speaker 3: That's what makes these cases hard is that there are

19
00:00:59,400 --> 00:01:01,360
Speaker 3: First Commendment interests all over the place.

20
00:01:01,760 --> 00:01:04,880
Speaker 2: And not only are their First Amendment interests all over

21
00:01:04,920 --> 00:01:08,080
Speaker 2: the place, as Justice Elena Kagan put it, but the

22
00:01:08,400 --> 00:01:11,640
Speaker 2: justices questions seemed to be all over the place, as

23
00:01:11,680 --> 00:01:16,000
Speaker 2: well as they considered whether public officials can block citizens

24
00:01:16,120 --> 00:01:20,360
Speaker 2: on social media. The two cases involved school board members

25
00:01:20,400 --> 00:01:23,400
Speaker 2: in San Diego and a city manager in Michigan who

26
00:01:23,400 --> 00:01:27,760
Speaker 2: blocked followers on social media, of course, evoking discussion of

27
00:01:27,880 --> 00:01:31,320
Speaker 2: former President Donald Trump's efforts to block people from his

28
00:01:31,440 --> 00:01:32,240
Speaker 2: Twitter account.

29
00:01:32,560 --> 00:01:34,880
Speaker 3: I mean, I don't think a citizen would be able

30
00:01:34,920 --> 00:01:39,520
Speaker 3: to really understand the Trump presidency, if you will, without

31
00:01:39,600 --> 00:01:43,040
Speaker 3: any access to all the things that the president said

32
00:01:43,600 --> 00:01:46,440
Speaker 3: on that account. It was an important part of how

33
00:01:46,480 --> 00:01:51,000
Speaker 3: he wielded his authority. And to cut a citizen off

34
00:01:51,000 --> 00:01:54,200
Speaker 3: from that is to cut a citizen off from part

35
00:01:54,240 --> 00:01:55,760
Speaker 3: of the way that government works.

36
00:01:56,120 --> 00:02:00,760
Speaker 2: The central question is whether the social media activity constitute

37
00:02:00,840 --> 00:02:04,720
Speaker 2: state action, making it subject to the First Amendment, and

38
00:02:04,760 --> 00:02:08,799
Speaker 2: the federal appellate courts in the cases came to opposite conclusions.

39
00:02:09,160 --> 00:02:13,000
Speaker 2: The Justice has presented a host of social media scenarios

40
00:02:13,040 --> 00:02:17,360
Speaker 2: to the lawyers. Here are Justices Sonya Sotomayor and Brett Kavanaugh.

41
00:02:18,040 --> 00:02:22,160
Speaker 4: So let's assume a mayor says, I'm setting up a

42
00:02:22,240 --> 00:02:30,280
Speaker 4: hotline for emergencies on my Facebook or Twitter, and if

43
00:02:30,280 --> 00:02:34,560
Speaker 4: you have an emergency, call that hotline, and I will

44
00:02:34,680 --> 00:02:39,160
Speaker 4: use the power of my office to set in motion

45
00:02:39,639 --> 00:02:45,360
Speaker 4: government response for your emergency. Seems to me that that's

46
00:02:45,400 --> 00:02:46,760
Speaker 4: government faction, isn't it.

47
00:02:47,960 --> 00:02:51,639
Speaker 5: But suppose the city manager on the personal site says

48
00:02:52,240 --> 00:02:54,640
Speaker 5: we have new recycling rules. You have to use a

49
00:02:54,639 --> 00:02:57,360
Speaker 5: blue bin, has to be at the curb. We'll be

50
00:02:57,400 --> 00:03:01,320
Speaker 5: picked up on Wednesdays. If you have any questions, contacts me.

51
00:03:01,600 --> 00:03:05,120
Speaker 5: That's only on the personal site, not on the official site.

52
00:03:05,520 --> 00:03:06,600
Speaker 5: Such state action.

53
00:03:06,760 --> 00:03:09,639
Speaker 2: Joining me is Professor Eric Golman, co director of the

54
00:03:09,720 --> 00:03:13,520
Speaker 2: High Tech Law Institute at Santa Clara University Law School.

55
00:03:14,360 --> 00:03:16,960
Speaker 2: Eric explained the main issue in these cases.

56
00:03:17,720 --> 00:03:22,359
Speaker 6: The core issue is what should happen when government officials

57
00:03:22,400 --> 00:03:26,359
Speaker 6: maintain social media accounts. Can they treat it as if

58
00:03:26,440 --> 00:03:30,240
Speaker 6: they're ordinary citizens or are they governed by the rules

59
00:03:30,240 --> 00:03:31,840
Speaker 6: that apply to government generally?

60
00:03:32,160 --> 00:03:35,360
Speaker 2: And are the issues in the two cases before the

61
00:03:35,560 --> 00:03:36,960
Speaker 2: court basically the same?

62
00:03:37,400 --> 00:03:40,680
Speaker 6: They're basically the same. There are little details about exactly

63
00:03:40,800 --> 00:03:44,680
Speaker 6: how the particular government officials were using their social medi

64
00:03:44,680 --> 00:03:48,560
Speaker 6: accounts that might matter to the final conclusion, but the

65
00:03:48,600 --> 00:03:51,520
Speaker 6: core questions the court's asking and the legal test it's

66
00:03:51,680 --> 00:03:53,960
Speaker 6: likely to adopt are probably going to be the same.

67
00:03:54,160 --> 00:03:57,640
Speaker 2: So let's talk about the concerns of some of the justices,

68
00:03:58,120 --> 00:04:01,520
Speaker 2: and Justice Elena Kagan said there are First Amendment interests

69
00:04:01,560 --> 00:04:02,600
Speaker 2: all over the place.

70
00:04:03,080 --> 00:04:05,520
Speaker 6: I thought that was a really great line, honestly, just

71
00:04:05,560 --> 00:04:08,680
Speaker 6: as Kaigan has just such a great way of turning phrases.

72
00:04:08,960 --> 00:04:13,280
Speaker 6: And she's absolutely right there First Amendment considerations on all sides.

73
00:04:13,360 --> 00:04:17,040
Speaker 6: It's not like there's an easy path forward that balances

74
00:04:17,080 --> 00:04:19,840
Speaker 6: all the respective interests. On the one hand, people who

75
00:04:19,880 --> 00:04:22,680
Speaker 6: work for the government should be free to engage their

76
00:04:22,720 --> 00:04:27,000
Speaker 6: communities and express themselves publicly as private citizens. That's the

77
00:04:27,040 --> 00:04:30,160
Speaker 6: constitutionally protected right. They don't give up that right by

78
00:04:30,200 --> 00:04:32,800
Speaker 6: going to work for the government. On the other hand,

79
00:04:32,960 --> 00:04:38,680
Speaker 6: when the government controls online discourse spaces where people are

80
00:04:38,760 --> 00:04:43,040
Speaker 6: talking to each other, there's a really real and significant

81
00:04:43,120 --> 00:04:47,279
Speaker 6: risk of censorship. And so the concern is that if

82
00:04:47,520 --> 00:04:50,800
Speaker 6: the government officials can act like private individuals, they can

83
00:04:51,080 --> 00:04:55,480
Speaker 6: functionally censor conversations. Now, if they're acting as a private individual,

84
00:04:55,560 --> 00:04:58,279
Speaker 6: they're allowed to do that, but after the government they're not.

85
00:04:58,600 --> 00:05:02,200
Speaker 6: And so either we're going to circumscribe the free speech

86
00:05:02,279 --> 00:05:05,880
Speaker 6: rights of government employees, or we're going to allow government

87
00:05:05,880 --> 00:05:09,799
Speaker 6: employees to circumspend the free speech rights of the people

88
00:05:09,839 --> 00:05:11,680
Speaker 6: who want to engage with them. Somebody is going to

89
00:05:11,720 --> 00:05:12,640
Speaker 6: lose something here.

90
00:05:13,080 --> 00:05:16,440
Speaker 2: Yeah, so Trump came up naturally, and just as Elena

91
00:05:16,520 --> 00:05:19,080
Speaker 2: Kagan said, Trump was conducting a lot of government on

92
00:05:19,080 --> 00:05:22,039
Speaker 2: his Twitter account. It's an important part of how he

93
00:05:22,120 --> 00:05:24,840
Speaker 2: wielded his authority. And to cut a citizen off from

94
00:05:24,920 --> 00:05:26,960
Speaker 2: that is to cut a citizen off from part of

95
00:05:27,000 --> 00:05:30,440
Speaker 2: the way the government works. And in these local cases,

96
00:05:31,200 --> 00:05:35,279
Speaker 2: it's just as important for constituents to hear what their

97
00:05:35,360 --> 00:05:38,960
Speaker 2: school board members are saying, or their town managers and

98
00:05:39,000 --> 00:05:39,440
Speaker 2: the like.

99
00:05:40,400 --> 00:05:42,240
Speaker 6: It's not just to be able to hear what the

100
00:05:42,400 --> 00:05:44,960
Speaker 6: government officials are saying, but also to be able to

101
00:05:45,040 --> 00:05:49,000
Speaker 6: talk back to them, and even more importantly, in certain circumstances,

102
00:05:49,040 --> 00:05:52,040
Speaker 6: be able to talk to each other as constituents or

103
00:05:52,080 --> 00:05:56,560
Speaker 6: as citizens that are responding to the posting of a

104
00:05:56,640 --> 00:06:00,279
Speaker 6: government official. And so when a government official exercised some

105
00:06:00,320 --> 00:06:03,440
Speaker 6: of the tools that provide them via social media to

106
00:06:03,560 --> 00:06:07,640
Speaker 6: control conversations, what they're really doing is distorting the conversation

107
00:06:07,720 --> 00:06:09,680
Speaker 6: that citizens might want to have with each other.

108
00:06:10,160 --> 00:06:12,560
Speaker 2: So I don't know why. To me, it seems like,

109
00:06:13,040 --> 00:06:17,840
Speaker 2: you know, if you're posting public information on a website,

110
00:06:17,880 --> 00:06:21,800
Speaker 2: on a Facebook page that that should be open to

111
00:06:21,839 --> 00:06:24,720
Speaker 2: the public and the public able to comment, and if

112
00:06:24,720 --> 00:06:27,080
Speaker 2: you want not to do that, then have a private

113
00:06:27,120 --> 00:06:28,000
Speaker 2: page as well.

114
00:06:28,480 --> 00:06:31,040
Speaker 6: So certainly those ideas came out. In fact, there are

115
00:06:31,040 --> 00:06:35,280
Speaker 6: three different categories of pages that a government official might have.

116
00:06:35,360 --> 00:06:39,240
Speaker 6: They may have an official government page. They may have

117
00:06:39,400 --> 00:06:42,240
Speaker 6: a campaign page, which is not part of their official

118
00:06:42,279 --> 00:06:44,960
Speaker 6: government duties but still is an important place for them

119
00:06:45,000 --> 00:06:48,520
Speaker 6: to evangelize the work they're doing. And they may have

120
00:06:48,560 --> 00:06:51,280
Speaker 6: a personal page that has nothing to do with their

121
00:06:51,400 --> 00:06:55,039
Speaker 6: role in government. And figuring out which account is in

122
00:06:55,120 --> 00:06:58,560
Speaker 6: which category is something that is baffling to us as

123
00:06:58,680 --> 00:07:02,120
Speaker 6: citizens when we see our government officials online. And it's

124
00:07:02,200 --> 00:07:05,640
Speaker 6: also vaccine to the government officials because so often they

125
00:07:05,680 --> 00:07:08,360
Speaker 6: want to take their victory labs, they want to evangelize

126
00:07:08,360 --> 00:07:11,720
Speaker 6: their work, to tout their successes, and we aren't sure

127
00:07:11,720 --> 00:07:14,600
Speaker 6: are they telling them as official government policy, as a

128
00:07:14,640 --> 00:07:18,440
Speaker 6: campaign promise, or just because they're touting their own work

129
00:07:18,440 --> 00:07:21,840
Speaker 6: as a private individual. And the court didn't know how

130
00:07:21,880 --> 00:07:25,240
Speaker 6: to approach that issue. They understood the trade offs, but

131
00:07:25,320 --> 00:07:27,360
Speaker 6: there was no clear way to move forward that was

132
00:07:27,400 --> 00:07:28,600
Speaker 6: going to satisfy everybody.

133
00:07:29,000 --> 00:07:31,360
Speaker 2: So I want to get your reaction to what just

134
00:07:31,440 --> 00:07:33,520
Speaker 2: as Amy Cony Barrett said.

135
00:07:33,680 --> 00:07:37,360
Speaker 7: I think it's very difficult when you have an official

136
00:07:37,440 --> 00:07:39,920
Speaker 7: who can, in some sense define his own authority. So

137
00:07:39,960 --> 00:07:43,240
Speaker 7: I think for a governor or President Trump, it's a

138
00:07:43,240 --> 00:07:46,560
Speaker 7: harder call than someone like a police officer who's a subordinator.

139
00:07:46,600 --> 00:07:50,240
Speaker 7: I could you know, my lucker could just start posting

140
00:07:50,320 --> 00:07:52,280
Speaker 7: things and say this is the official business of the

141
00:07:52,320 --> 00:07:56,760
Speaker 7: Barrett Chambers right, and that wouldn't be okay. But if

142
00:07:56,920 --> 00:08:04,560
Speaker 7: you know that wouldn't be okay.

143
00:08:02,120 --> 00:08:04,720
Speaker 2: That come and got a laugh, of course, But what

144
00:08:04,800 --> 00:08:07,800
Speaker 2: do you think about the content of what she's saying.

145
00:08:08,600 --> 00:08:12,160
Speaker 6: I mean, the example she gave was kind of weird

146
00:08:12,200 --> 00:08:14,720
Speaker 6: because a clerk wouldn't be likely to be able to

147
00:08:14,720 --> 00:08:17,400
Speaker 6: set up and speak on behalf of their judge that

148
00:08:17,440 --> 00:08:20,520
Speaker 6: employed them. So that was a weird example. But the

149
00:08:20,520 --> 00:08:24,360
Speaker 6: broader principle is one hundred percent correct that the court

150
00:08:24,400 --> 00:08:26,960
Speaker 6: is trying to figure out how do they simultaneously govern

151
00:08:27,440 --> 00:08:32,320
Speaker 6: the top of the political hierarchy, like a president or

152
00:08:32,360 --> 00:08:35,360
Speaker 6: a governor or even a mayor, someone who's at the

153
00:08:35,400 --> 00:08:38,760
Speaker 6: top of the organizational Peermid and all the people who

154
00:08:38,800 --> 00:08:41,439
Speaker 6: are rank and fly all government employees, some of whom

155
00:08:41,520 --> 00:08:43,800
Speaker 6: might also be able to speak on behalf of the government,

156
00:08:43,920 --> 00:08:46,760
Speaker 6: others of whom have no real legitimacy to do so.

157
00:08:47,000 --> 00:08:49,240
Speaker 6: And the Supreme Court is struggling figure out how can

158
00:08:49,240 --> 00:08:51,560
Speaker 6: we come up with one rule that covers all of

159
00:08:51,600 --> 00:08:56,199
Speaker 6: those different types of job, responsibilities and status in the hierarchy.

160
00:08:56,440 --> 00:08:58,600
Speaker 6: And it's possible that they cannot come up with a

161
00:08:58,640 --> 00:09:01,200
Speaker 6: single rule that will govern It may need multiple rules

162
00:09:01,200 --> 00:09:02,760
Speaker 6: that will have to be iterated over time.

163
00:09:02,920 --> 00:09:05,240
Speaker 2: So you think that there's no clear legal test that

164
00:09:05,280 --> 00:09:06,240
Speaker 2: they could come out with.

165
00:09:06,640 --> 00:09:09,800
Speaker 6: Honestly, no, there is no clear legal test. And I

166
00:09:09,800 --> 00:09:12,240
Speaker 6: think we can be a little bit more emphatic that

167
00:09:12,559 --> 00:09:17,440
Speaker 6: the different considerations include things like what's the employee's job,

168
00:09:17,720 --> 00:09:21,280
Speaker 6: and what tools are available in social media to be

169
00:09:21,280 --> 00:09:24,680
Speaker 6: able to control conversations and which of those tools was wielded,

170
00:09:24,800 --> 00:09:28,720
Speaker 6: and how did the person describe or characterize their account

171
00:09:28,920 --> 00:09:32,200
Speaker 6: and how much of the account was used with official

172
00:09:32,320 --> 00:09:36,120
Speaker 6: related postings versus personal postings, like we need a multi

173
00:09:36,120 --> 00:09:38,920
Speaker 6: dimensional matrix to try to figure out where to place

174
00:09:39,040 --> 00:09:42,880
Speaker 6: all the different nodes in those questions. And that's why,

175
00:09:43,040 --> 00:09:45,120
Speaker 6: even with two cases in front of the Supreme Court

176
00:09:45,160 --> 00:09:47,600
Speaker 6: that they can use to compare and contrast. They still

177
00:09:47,640 --> 00:09:50,280
Speaker 6: don't have enough cases to cover the full range of

178
00:09:50,320 --> 00:09:52,760
Speaker 6: facts that are going to be implicated by their ruling.

179
00:09:53,000 --> 00:09:56,040
Speaker 2: Coming up, we'll discuss whether there was any consensus on

180
00:09:56,080 --> 00:10:06,959
Speaker 2: the Court. I'm Jim Grosso. When you're listening to Bloomberg, This.

181
00:10:07,120 --> 00:10:11,360
Speaker 1: Is Bloomberg Law with June Brusso from Bloomberg Radio.

182
00:10:12,440 --> 00:10:15,040
Speaker 2: You're listening to a special best of edition of the

183
00:10:15,080 --> 00:10:19,080
Speaker 2: Bloomberg Law Show. Joining me is Professor Eric Goldman of

184
00:10:19,200 --> 00:10:23,760
Speaker 2: Santa Clara University Law School about Supreme Court oral arguments

185
00:10:23,800 --> 00:10:27,960
Speaker 2: over whether public officials can be sued for restricting access

186
00:10:28,000 --> 00:10:31,600
Speaker 2: to their social media feeds. It's the first of several

187
00:10:31,640 --> 00:10:35,760
Speaker 2: social media classes this term. The first case involves two

188
00:10:35,920 --> 00:10:39,720
Speaker 2: San Diego Area school board members who set up Facebook

189
00:10:39,760 --> 00:10:44,120
Speaker 2: and Twitter pages during their twenty fourteen campaigns, then continued

190
00:10:44,240 --> 00:10:47,400
Speaker 2: using the sites to talk about school issues after winning

191
00:10:47,440 --> 00:10:50,680
Speaker 2: election and taking their seats. They set up their pages

192
00:10:50,720 --> 00:10:53,400
Speaker 2: so that their posts were open to comment by members

193
00:10:53,400 --> 00:10:57,559
Speaker 2: of the public. Two of their constituents left frequent comments

194
00:10:57,679 --> 00:11:02,079
Speaker 2: criticizing the board, and the school board members eventually blocked them.

195
00:11:02,440 --> 00:11:06,200
Speaker 2: The second case involves a city manager in Michigan who

196
00:11:06,320 --> 00:11:10,559
Speaker 2: used his Facebook page to post both family and professional information.

197
00:11:11,080 --> 00:11:14,679
Speaker 2: His posts in twenty twenty about the COVID nineteen pandemic

198
00:11:15,040 --> 00:11:18,200
Speaker 2: drew a series of critical comments from a follower, who

199
00:11:18,240 --> 00:11:23,000
Speaker 2: he then blocked. Federal appeals courts reached opposite decisions in

200
00:11:23,040 --> 00:11:25,720
Speaker 2: the cases, and now it's up to the Supreme Court.

201
00:11:26,200 --> 00:11:29,160
Speaker 2: So how about the idea that was floated by Justice

202
00:11:29,240 --> 00:11:34,199
Speaker 2: Katanji Brown Jackson of a clear disclaimer indicating that government

203
00:11:34,240 --> 00:11:38,120
Speaker 2: officials were posting on social media in their personal capacity

204
00:11:38,559 --> 00:11:41,120
Speaker 2: or I guess vice versa, in their government capacity.

205
00:11:41,559 --> 00:11:44,959
Speaker 6: Certainly, no doubt that legends would help, at least us

206
00:11:44,960 --> 00:11:49,120
Speaker 6: as constituents know what to expect. But the disclaimers could

207
00:11:49,160 --> 00:11:52,840
Speaker 6: just be another form of a manipulation by the government official.

208
00:11:53,120 --> 00:11:55,840
Speaker 6: They could say I'm not speaking officially, but then speaking

209
00:11:55,920 --> 00:11:58,920
Speaker 6: ways that actually are fully official, or vice versa. They

210
00:11:58,920 --> 00:12:01,480
Speaker 6: could say, this official government account, but let me highlight

211
00:12:01,520 --> 00:12:04,120
Speaker 6: some of my personal attributes and treat them as if

212
00:12:04,120 --> 00:12:08,200
Speaker 6: they're a part of the government responsibility. And so the

213
00:12:08,280 --> 00:12:13,120
Speaker 6: disclaimer doesn't really solve the problems that I think we have.

214
00:12:13,559 --> 00:12:18,680
Speaker 6: But no doubt that if somebody portrays their account as

215
00:12:18,840 --> 00:12:22,400
Speaker 6: an official government account without trying to walk it back

216
00:12:22,520 --> 00:12:26,120
Speaker 6: or qualify that. I think the rules should be that

217
00:12:26,160 --> 00:12:29,000
Speaker 6: we should hold them to that approach. But if they

218
00:12:29,120 --> 00:12:31,920
Speaker 6: don't officially represent as part of their government account, it

219
00:12:32,000 --> 00:12:34,640
Speaker 6: still might be part of their government function, and so

220
00:12:35,320 --> 00:12:37,119
Speaker 6: the disclaimer is not going to be complete.

221
00:12:37,440 --> 00:12:42,839
Speaker 2: The Buiden administration was backing the government officials' positions. They

222
00:12:42,920 --> 00:12:47,080
Speaker 2: characterized the Facebook and Twitter feeds as private property. That

223
00:12:47,160 --> 00:12:50,560
Speaker 2: seemed to me to be a not a great concept here.

224
00:12:51,120 --> 00:12:55,560
Speaker 6: It's a really awkward conversation because we know that the

225
00:12:55,640 --> 00:12:59,520
Speaker 6: social media services have their own rules, they have their

226
00:12:59,559 --> 00:13:06,080
Speaker 6: own technological options that differ amongst themselves, and they have

227
00:13:06,240 --> 00:13:11,160
Speaker 6: the ability to intervene with respective particulars and content irrespective

228
00:13:11,200 --> 00:13:13,679
Speaker 6: of whether or not the Constitution would permit the government

229
00:13:13,720 --> 00:13:16,800
Speaker 6: official take that action. So they're like the elephant in

230
00:13:16,840 --> 00:13:19,920
Speaker 6: the room. Everyone knows that the social media services are

231
00:13:19,960 --> 00:13:22,920
Speaker 6: an integal player in this conversation, but they're not the

232
00:13:22,960 --> 00:13:26,679
Speaker 6: plaintiff or the defendant, and as a result, they're not

233
00:13:26,720 --> 00:13:30,720
Speaker 6: actually represented in this litigation, and as a result, the

234
00:13:30,760 --> 00:13:33,760
Speaker 6: Supreme Court is likely to treat them as this opaque

235
00:13:34,120 --> 00:13:38,920
Speaker 6: third party player who is immaterial or inconsequential to the rules.

236
00:13:39,200 --> 00:13:41,480
Speaker 6: That's actually a good outcome. I really don't want the

237
00:13:41,520 --> 00:13:45,959
Speaker 6: Supreme Court talking about social media as a private entity

238
00:13:46,040 --> 00:13:48,920
Speaker 6: or not. I don't want them making hard lines when

239
00:13:48,960 --> 00:13:51,480
Speaker 6: that's not the question the government has to answer. But

240
00:13:51,520 --> 00:13:54,320
Speaker 6: it's impossible to ignore the shadow of the cast over

241
00:13:54,720 --> 00:13:56,920
Speaker 6: everything that takes place on their services.

242
00:13:57,360 --> 00:14:01,559
Speaker 2: The federal appeals courts reached opposite conclusions in the lower

243
00:14:01,600 --> 00:14:02,280
Speaker 2: court cases.

244
00:14:03,080 --> 00:14:06,320
Speaker 6: That's correct. The Ninth Circuit held that the government officials

245
00:14:06,320 --> 00:14:09,960
Speaker 6: in that case, school board members were acting in their

246
00:14:10,080 --> 00:14:14,280
Speaker 6: function as government officials when they blocked some constituents from

247
00:14:14,360 --> 00:14:18,000
Speaker 6: accessant and social media acount. In the sixth Circuit, it

248
00:14:18,120 --> 00:14:22,240
Speaker 6: was a government employee who had also blocked individuals. The

249
00:14:22,280 --> 00:14:24,360
Speaker 6: court had held in that case that he was acting

250
00:14:24,400 --> 00:14:26,880
Speaker 6: as a private individual that was his private account.

251
00:14:27,560 --> 00:14:31,040
Speaker 2: So there were three hours, I believe, of oral arguments.

252
00:14:31,400 --> 00:14:36,120
Speaker 2: Did you see some justices, some blocks of justices sort

253
00:14:36,160 --> 00:14:42,160
Speaker 2: of coming to some conclusions or did you see any patterns?

254
00:14:42,680 --> 00:14:46,000
Speaker 6: The short answer is no, Really, the oral arguments were

255
00:14:46,040 --> 00:14:48,680
Speaker 6: quite opaque about where the judges are likely to end up,

256
00:14:48,720 --> 00:14:51,200
Speaker 6: which is unusual. But one would have hoped that we

257
00:14:51,240 --> 00:14:53,280
Speaker 6: would have been able to get a clearer line from

258
00:14:53,280 --> 00:14:55,640
Speaker 6: the oral arguments, having said that, there are two things

259
00:14:55,680 --> 00:14:58,720
Speaker 6: that stood out to me. First is that some justices

260
00:14:58,760 --> 00:15:00,640
Speaker 6: seem to be gravit attaining to of the test that

261
00:15:00,760 --> 00:15:05,160
Speaker 6: was advocated by the Department of Justice and was endorsed

262
00:15:05,200 --> 00:15:09,040
Speaker 6: by the lawyers for the government employees about looking at

263
00:15:09,080 --> 00:15:12,080
Speaker 6: the duties of the government official and their authority to

264
00:15:12,160 --> 00:15:14,920
Speaker 6: speak on behalf of the government. And so Justice gore Such,

265
00:15:14,960 --> 00:15:17,400
Speaker 6: for example, at one point said it sounds like we

266
00:15:17,520 --> 00:15:20,440
Speaker 6: got consensus that's the right test. I don't know if

267
00:15:20,480 --> 00:15:22,960
Speaker 6: there was consensus, but it wouldn't surprise me if the

268
00:15:23,000 --> 00:15:25,880
Speaker 6: test looked something like that. At the end of the

269
00:15:26,000 --> 00:15:29,560
Speaker 6: oral arguments, Justice Kagan once again had a really powerful

270
00:15:29,560 --> 00:15:33,040
Speaker 6: turn of the phrase. She came and basically blasted the

271
00:15:33,080 --> 00:15:36,960
Speaker 6: government lawyers, saying that the government lawyers proposed test was

272
00:15:37,240 --> 00:15:40,920
Speaker 6: really out of sync with the importance of social media

273
00:15:41,040 --> 00:15:44,840
Speaker 6: to the government function and would limit the ability of

274
00:15:45,320 --> 00:15:47,640
Speaker 6: us as constituents or to be able to defend our

275
00:15:47,680 --> 00:15:50,880
Speaker 6: own interests when the government keeps embracing social media. So

276
00:15:51,240 --> 00:15:54,920
Speaker 6: I saw kind of two opposite approaches there, Justice Gorsuch saying,

277
00:15:55,240 --> 00:15:57,000
Speaker 6: you know, sounds good to me. Let's go with the

278
00:15:57,040 --> 00:15:59,320
Speaker 6: test that you proposed, and Justice Keag is saying that

279
00:15:59,400 --> 00:16:02,080
Speaker 6: test is actual really harmful to the future.

280
00:16:02,600 --> 00:16:05,040
Speaker 2: Was there a split on ideological lines or did this

281
00:16:05,200 --> 00:16:06,720
Speaker 2: cross ideological lines?

282
00:16:07,200 --> 00:16:10,520
Speaker 6: I couldn't put together a pattern that represented any kind

283
00:16:10,560 --> 00:16:14,480
Speaker 6: of ideological partisan fit. But having said that, I would

284
00:16:14,560 --> 00:16:17,040
Speaker 6: say that it seemed like some of the quote more

285
00:16:17,080 --> 00:16:21,680
Speaker 6: conservative justices were more inclined to support the government employees'

286
00:16:21,760 --> 00:16:24,000
Speaker 6: freedom to do what they want, whereas some of the

287
00:16:24,080 --> 00:16:27,240
Speaker 6: quote more liberal justices were more skeptical about how that

288
00:16:27,280 --> 00:16:28,440
Speaker 6: could lead to censorship.

289
00:16:28,600 --> 00:16:32,360
Speaker 2: So at times when we've had these oral arguments at

290
00:16:32,360 --> 00:16:37,080
Speaker 2: the Supreme Court involving, you know, the Internet, texting, social media,

291
00:16:37,520 --> 00:16:41,280
Speaker 2: the justices have seemed to be a step behind, maybe

292
00:16:41,320 --> 00:16:44,240
Speaker 2: more than one step. Did it seem like they fully

293
00:16:44,400 --> 00:16:47,120
Speaker 2: grasped what was going on in these cases?

294
00:16:47,640 --> 00:16:50,680
Speaker 6: They really didn't. This was yet another example of how

295
00:16:50,760 --> 00:16:54,160
Speaker 6: the Internet baffles Supreme Court justices. And just to be clear,

296
00:16:54,560 --> 00:16:57,640
Speaker 6: we don't know how many Supreme Court justices spend time

297
00:16:57,760 --> 00:17:01,000
Speaker 6: on social media, but it's not like they do it publicly,

298
00:17:01,280 --> 00:17:05,040
Speaker 6: So they're just not familiar with social media the same

299
00:17:05,080 --> 00:17:08,000
Speaker 6: degree that most of us, as everyday users are, So

300
00:17:08,040 --> 00:17:10,600
Speaker 6: it's not surprising that it's a little bit baffling to

301
00:17:10,640 --> 00:17:12,800
Speaker 6: them that they're not immersed in that as part of

302
00:17:12,840 --> 00:17:15,680
Speaker 6: their daily functions. But there was a really awkward line

303
00:17:15,720 --> 00:17:18,560
Speaker 6: that came from Chief Justice Roberts where he talked about

304
00:17:18,800 --> 00:17:22,480
Speaker 6: social media and described it as the gathering of protons,

305
00:17:22,920 --> 00:17:26,160
Speaker 6: And it was such a reductionist approach that social media

306
00:17:26,280 --> 00:17:29,800
Speaker 6: is just about the movement of electronic pulses on the Internet.

307
00:17:29,880 --> 00:17:31,920
Speaker 6: That's all it is. And it's kind of like saying

308
00:17:31,960 --> 00:17:35,040
Speaker 6: that Supreme Court of opinions are just inc on a

309
00:17:35,080 --> 00:17:39,600
Speaker 6: piece of paper. It's a reductionist conclusion that isn't inherently wrong,

310
00:17:40,000 --> 00:17:43,879
Speaker 6: but it completely misunderstands the scope and the stakes at

311
00:17:43,920 --> 00:17:44,920
Speaker 6: issue in this case.

312
00:17:45,440 --> 00:17:49,879
Speaker 2: And this is the first of several social media clashes

313
00:17:50,160 --> 00:17:53,159
Speaker 2: that coming up this term involving the First Amendment and

314
00:17:53,200 --> 00:17:55,560
Speaker 2: how it applies to social media companies.

315
00:17:55,960 --> 00:17:58,159
Speaker 6: So just to be clear, there's going to be a

316
00:17:58,240 --> 00:18:00,760
Speaker 6: steady stream of Internet law cases is going to the

317
00:18:00,800 --> 00:18:04,280
Speaker 6: Supreme Court and likely to be decided by the Supreme

318
00:18:04,320 --> 00:18:06,760
Speaker 6: Court over the next few years. We've had just this

319
00:18:07,119 --> 00:18:11,560
Speaker 6: upswell of legislation trying to regulate the Internet, and many

320
00:18:11,680 --> 00:18:13,520
Speaker 6: of those laws are going to end up before the

321
00:18:13,560 --> 00:18:16,760
Speaker 6: Supreme Court. So we're just kind of at the beginning

322
00:18:16,800 --> 00:18:19,879
Speaker 6: of this multi year cycle where the Supreme Court is

323
00:18:19,880 --> 00:18:22,240
Speaker 6: going to be regularly deciding the future of the Internet.

324
00:18:22,640 --> 00:18:25,280
Speaker 6: One of the other cases they've set it or there's

325
00:18:25,359 --> 00:18:28,800
Speaker 6: two companion cases involved the Texas and Florida social media

326
00:18:28,960 --> 00:18:32,800
Speaker 6: censorship laws. These are laws that were enacted to basically

327
00:18:32,920 --> 00:18:37,720
Speaker 6: take government control over the functional operations of social media.

328
00:18:38,000 --> 00:18:39,720
Speaker 6: Sounds like the kind of thing that we would think

329
00:18:39,720 --> 00:18:43,399
Speaker 6: would be clearly censorship, and yet the Florida court said

330
00:18:43,520 --> 00:18:45,879
Speaker 6: that some of it was struck down, some of it

331
00:18:45,920 --> 00:18:49,440
Speaker 6: was okay. The Texas tele Court said it all sounds

332
00:18:49,480 --> 00:18:51,719
Speaker 6: good to me. And so the future of the Internet

333
00:18:51,800 --> 00:18:53,840
Speaker 6: is very much a stake in that set of cases

334
00:18:53,920 --> 00:18:56,480
Speaker 6: as well, because if the Supreme Court says that the

335
00:18:56,480 --> 00:19:00,280
Speaker 6: government can dictate how social media runs its operations, they

336
00:19:00,320 --> 00:19:04,000
Speaker 6: are going to be dictating what editorial decisions those services

337
00:19:04,000 --> 00:19:04,360
Speaker 6: can make.

338
00:19:04,920 --> 00:19:08,240
Speaker 2: A lot more oral arguments on social media to come.

339
00:19:08,880 --> 00:19:12,000
Speaker 2: Thanks so much, Eric. That's Eric Goldman, a professor at

340
00:19:12,000 --> 00:19:15,760
Speaker 2: Santa Clara University School of Law and co director of

341
00:19:15,760 --> 00:19:19,840
Speaker 2: the High Tech Law Institute. Coming up next, Donald Trump

342
00:19:19,920 --> 00:19:22,680
Speaker 2: looks for a get out of jail free card I'm

343
00:19:22,720 --> 00:19:24,560
Speaker 2: Jim Grosso and you're listening to Bloomberg.

344
00:19:31,240 --> 00:19:36,040
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

345
00:19:36,760 --> 00:19:39,399
Speaker 2: You're listening to a special best of edition of the

346
00:19:39,400 --> 00:19:40,480
Speaker 2: Bloomberg Law Show.

347
00:19:41,480 --> 00:19:44,720
Speaker 4: And did you see today that deranged Jack Smith?

348
00:19:45,119 --> 00:19:46,120
Speaker 5: He's the prosecutor.

349
00:19:46,119 --> 00:19:49,560
Speaker 3: He's a deranged person. Wants to take away my rights

350
00:19:50,000 --> 00:19:52,280
Speaker 3: under the First Amendment, wants to take away my right

351
00:19:52,400 --> 00:19:55,480
Speaker 3: of speaking freely and openly.

352
00:19:56,080 --> 00:19:59,680
Speaker 2: Donald Trump never seems to miss an opportunity to ridicule

353
00:19:59,760 --> 00:20:03,600
Speaker 2: Jack Smith, the Special Council who's bringing charges against the

354
00:20:03,640 --> 00:20:08,160
Speaker 2: former president in two cases into jurisdictions. The trial date

355
00:20:08,200 --> 00:20:11,119
Speaker 2: in DC on charges of trying to overturn the twenty

356
00:20:11,160 --> 00:20:14,960
Speaker 2: twenty election is just a few months away, but Trump

357
00:20:15,000 --> 00:20:18,240
Speaker 2: is looking for a pass by arguing he has absolute

358
00:20:18,280 --> 00:20:22,320
Speaker 2: presidential immunity, and his attorneys have asked federal Judge Tanya

359
00:20:22,400 --> 00:20:26,000
Speaker 2: Chutkin to toss out the indictment. Joining me is former

360
00:20:26,040 --> 00:20:30,199
Speaker 2: federal prosecutor Jessica Romp, a professor at Cardozo Law School.

361
00:20:30,640 --> 00:20:34,760
Speaker 2: Jessica tell us about Trump's claim of presidential immunity.

362
00:20:35,400 --> 00:20:41,199
Speaker 8: So their argument is that Trump enjoys absolute presidential immunity

363
00:20:41,680 --> 00:20:46,119
Speaker 8: from prosecution because he claims that the indictment brought by

364
00:20:46,119 --> 00:20:49,639
Speaker 8: the Social Council related to January sixth is based on

365
00:20:49,920 --> 00:20:53,520
Speaker 8: what they contend are his official acts while president. I

366
00:20:53,560 --> 00:20:56,280
Speaker 8: would submit this is the most significant motion that Trump

367
00:20:56,320 --> 00:20:58,320
Speaker 8: has filed to date in all of the cases that

368
00:20:58,359 --> 00:21:01,719
Speaker 8: are pending against him, and that the court's decisions on

369
00:21:01,760 --> 00:21:05,240
Speaker 8: this motion could establish new law regarding whether a president

370
00:21:05,320 --> 00:21:07,879
Speaker 8: is beyond the reach of the criminal law for acts

371
00:21:07,920 --> 00:21:11,320
Speaker 8: taken while president, even after he leaves the office.

372
00:21:11,840 --> 00:21:14,240
Speaker 2: What do you make of his attorney's arguments? They make

373
00:21:14,359 --> 00:21:18,400
Speaker 2: several levels of argument. Are they convincing well?

374
00:21:18,480 --> 00:21:21,600
Speaker 8: The motion is well written, and unlike some arguments we've

375
00:21:21,600 --> 00:21:23,720
Speaker 8: seen from Trump's counsel in some of the cases brought

376
00:21:23,760 --> 00:21:26,919
Speaker 8: against him, this one is well written, it's well presented,

377
00:21:27,240 --> 00:21:30,840
Speaker 8: and it does present a very important issue of law,

378
00:21:31,280 --> 00:21:34,119
Speaker 8: one that the courts will have to take seriously. No

379
00:21:34,240 --> 00:21:37,040
Speaker 8: court has ever squarely decided the question of whether a

380
00:21:37,200 --> 00:21:42,600
Speaker 8: president enjoys absolute immunity from prosecution at all, because there's

381
00:21:42,640 --> 00:21:45,720
Speaker 8: never been a precedent for criminal charges being filed against

382
00:21:45,760 --> 00:21:48,760
Speaker 8: a former president. But there are two issues that the

383
00:21:48,760 --> 00:21:52,080
Speaker 8: courts will have to address in ruling on the motion.

384
00:21:52,240 --> 00:21:56,080
Speaker 8: The first is whether, in fact presidents do enjoy absolute

385
00:21:56,119 --> 00:22:00,000
Speaker 8: immunity from criminal prosecution for acts taken during the president

386
00:22:00,040 --> 00:22:03,600
Speaker 8: vinci And if they find that there is such a

387
00:22:03,640 --> 00:22:07,640
Speaker 8: thing as absolute immunity for president from criminal prosecution, then

388
00:22:07,680 --> 00:22:10,879
Speaker 8: they would have to apply that doctrine of immunity to

389
00:22:11,000 --> 00:22:14,200
Speaker 8: the facts presented in this case. If the court told

390
00:22:14,240 --> 00:22:17,800
Speaker 8: that there is no absolute immunity for a president from

391
00:22:17,880 --> 00:22:21,760
Speaker 8: prosecution even after they leave office, then they don't necessarily

392
00:22:21,800 --> 00:22:24,560
Speaker 8: have to address this second question of whether or not

393
00:22:25,000 --> 00:22:28,479
Speaker 8: Trump's actions fall within the scope of such immunity. If

394
00:22:28,520 --> 00:22:30,040
Speaker 8: they find that there isn't such.

395
00:22:29,920 --> 00:22:34,040
Speaker 2: Immunity, Trump's attorneys say the judge should look at Trump's

396
00:22:34,119 --> 00:22:37,720
Speaker 2: actions on their face to determine if they're official, and

397
00:22:37,760 --> 00:22:40,560
Speaker 2: also that even if they were a mix of official

398
00:22:40,640 --> 00:22:43,760
Speaker 2: and campaign related, they should still be covered by the

399
00:22:43,880 --> 00:22:46,840
Speaker 2: legal shield the immunity. Do you agree with that?

400
00:22:47,240 --> 00:22:50,119
Speaker 8: So, in asking whether or not the actions fall within

401
00:22:50,320 --> 00:22:55,440
Speaker 8: the outer perimeter of the president's official responsibility, one has

402
00:22:55,480 --> 00:22:58,440
Speaker 8: to ask at what level of generality do we look

403
00:22:58,480 --> 00:23:01,200
Speaker 8: at the acts. Trump's atturns invite the court to look

404
00:23:01,240 --> 00:23:04,159
Speaker 8: at them at a very high level of generality and

405
00:23:04,280 --> 00:23:08,000
Speaker 8: say these are statements on matters of public concern in

406
00:23:08,040 --> 00:23:10,720
Speaker 8: his tweets meant his public statements. For example, at the

407
00:23:10,840 --> 00:23:16,359
Speaker 8: rally on January sixth, he is communicating with state officials

408
00:23:16,400 --> 00:23:19,840
Speaker 8: about elections and communicating with members of the Department of

409
00:23:20,040 --> 00:23:24,359
Speaker 8: Justice about whether or not the presidential election was conducted

410
00:23:24,560 --> 00:23:28,280
Speaker 8: consistent with law. At that level of generality, it's easy

411
00:23:28,359 --> 00:23:32,000
Speaker 8: to characterize his actions as within the outer perimeter of

412
00:23:32,040 --> 00:23:35,119
Speaker 8: the president functions to take care that the laws of

413
00:23:35,160 --> 00:23:38,880
Speaker 8: the United States are faithfully executed. But when you look

414
00:23:38,960 --> 00:23:43,760
Speaker 8: at a more granular level, and also in context of

415
00:23:43,800 --> 00:23:46,640
Speaker 8: all the actions that are alleged in the indictment taken together,

416
00:23:47,280 --> 00:23:50,120
Speaker 8: it's much easier to characterize them not as being within

417
00:23:50,160 --> 00:23:54,199
Speaker 8: the outer perimeter of Trump's official duties as president, but

418
00:23:54,320 --> 00:23:57,880
Speaker 8: instead as crimes or part of a course of conduct

419
00:23:57,960 --> 00:24:01,760
Speaker 8: that was a conspiracy to return the election and obstruct

420
00:24:01,800 --> 00:24:05,520
Speaker 8: the official proceedings of Congress and defraud the United States,

421
00:24:05,560 --> 00:24:08,720
Speaker 8: as alleged in the indictment. And so the case law

422
00:24:08,760 --> 00:24:12,080
Speaker 8: does hold that the court should not look into the

423
00:24:12,119 --> 00:24:15,919
Speaker 8: motives behind a particular action and instead look at the

424
00:24:16,000 --> 00:24:20,560
Speaker 8: acts objectively and whether or not they further a presidential function,

425
00:24:21,080 --> 00:24:23,639
Speaker 8: but saying that the court should not look at motives

426
00:24:23,720 --> 00:24:25,760
Speaker 8: does not mean that the court can't look at the

427
00:24:25,800 --> 00:24:27,720
Speaker 8: statements and the actions in context.

428
00:24:28,520 --> 00:24:32,600
Speaker 2: Trump's attorneys also point to his acquittal in the Senate

429
00:24:32,600 --> 00:24:35,919
Speaker 2: impeachment trial in the days after the January sixth attack

430
00:24:36,040 --> 00:24:39,119
Speaker 2: and argue that he can't be tried again after the

431
00:24:39,160 --> 00:24:42,240
Speaker 2: Senate failed to convict and remove him from office.

432
00:24:42,840 --> 00:24:46,240
Speaker 8: I do not think the court will agree with that analysis.

433
00:24:46,560 --> 00:24:49,919
Speaker 8: The language that they point to has to do with

434
00:24:50,600 --> 00:24:53,600
Speaker 8: I think the court would find whether a president could

435
00:24:53,640 --> 00:24:58,920
Speaker 8: be indicted and prosecuted while in office and if one

436
00:24:58,960 --> 00:25:02,520
Speaker 8: goes back in sitters. For example, the analysis in the

437
00:25:02,640 --> 00:25:06,000
Speaker 8: Office of Legal Council memo that was prepared initially in

438
00:25:06,080 --> 00:25:10,120
Speaker 8: nineteen seventy three during the Watergate era, which looked into

439
00:25:10,200 --> 00:25:12,919
Speaker 8: whether or not a sitting president could be subject to

440
00:25:13,000 --> 00:25:17,760
Speaker 8: prosecution while in office. That memo, which was then reaffirmed

441
00:25:17,840 --> 00:25:20,720
Speaker 8: in two thousand by the Office of Legal Counsel, essentially

442
00:25:20,760 --> 00:25:24,560
Speaker 8: held that because of separation of powers concerned primarily, a

443
00:25:24,600 --> 00:25:29,399
Speaker 8: sitting president could not be prosecuted, but instead would have

444
00:25:29,480 --> 00:25:33,160
Speaker 8: to be subject to impeachment first and removed from office

445
00:25:33,480 --> 00:25:37,320
Speaker 8: before the president would be amenable to criminal prosecution. What

446
00:25:37,400 --> 00:25:40,240
Speaker 8: Trump's lawyers are doing, in effect, is taking that same

447
00:25:40,359 --> 00:25:44,120
Speaker 8: language that provides for the impeachment of a president and

448
00:25:44,160 --> 00:25:48,240
Speaker 8: then contemplates that a president could be criminally prosecuted after

449
00:25:48,480 --> 00:25:51,840
Speaker 8: being removed from office, to say that the exclusive remedy

450
00:25:52,160 --> 00:25:54,919
Speaker 8: for a president who commits crimes while in office is

451
00:25:55,000 --> 00:25:59,000
Speaker 8: to be impeached, and that a criminal prosecution could only

452
00:25:59,040 --> 00:26:02,400
Speaker 8: follow as an additional consequence if the president had been

453
00:26:02,400 --> 00:26:05,159
Speaker 8: in fact convicted in the Senate. I think that's not

454
00:26:05,280 --> 00:26:07,160
Speaker 8: a fair reading of that language, and I don't think

455
00:26:07,160 --> 00:26:08,120
Speaker 8: a court would agree with it.

456
00:26:08,480 --> 00:26:13,200
Speaker 2: Has Judge Chuckkin ruled on an issue involving presidential immunity

457
00:26:13,280 --> 00:26:15,440
Speaker 2: before she has.

458
00:26:15,480 --> 00:26:17,840
Speaker 8: In a different context. It was a case, I believe,

459
00:26:17,960 --> 00:26:23,520
Speaker 8: involving former President Obama who had been sued by individuals,

460
00:26:23,640 --> 00:26:27,000
Speaker 8: and she held that he enjoyed absolute immunity from that

461
00:26:27,119 --> 00:26:30,680
Speaker 8: civil action against him in his individual capacity. She has

462
00:26:30,680 --> 00:26:34,840
Speaker 8: not ruled on a question of immunity from criminal prosecution

463
00:26:35,160 --> 00:26:38,440
Speaker 8: in a case that presents many of the same facts

464
00:26:38,760 --> 00:26:42,719
Speaker 8: in the civil context. Judge Meta from the DC District

465
00:26:42,800 --> 00:26:47,080
Speaker 8: Court ruled that former President Trump did not enjoy absolute

466
00:26:47,080 --> 00:26:50,480
Speaker 8: immunity from civil prosecution with respect to many of the

467
00:26:50,520 --> 00:26:52,800
Speaker 8: claims in a case that was brought by members of

468
00:26:52,840 --> 00:26:55,800
Speaker 8: Congress and members of the Capitol Police who were injured

469
00:26:55,840 --> 00:26:59,320
Speaker 8: in the January sixth ryot. That case is pending before

470
00:26:59,440 --> 00:27:03,240
Speaker 8: the DC Circuit Court of Appeals in pending since December,

471
00:27:03,600 --> 00:27:06,359
Speaker 8: and that case I think will be very instructive to

472
00:27:06,880 --> 00:27:10,240
Speaker 8: jutch Chutkin in ruling on whether or not if she

473
00:27:10,320 --> 00:27:12,680
Speaker 8: gets to the question of whether much of the conduct

474
00:27:12,680 --> 00:27:15,800
Speaker 8: alleged in the Special Council of January sixth indictment falls

475
00:27:15,800 --> 00:27:19,879
Speaker 8: within the outer perimeter of his official responsibilities. If the

476
00:27:19,960 --> 00:27:23,320
Speaker 8: DC Circuit renders an opinion holding that it does not

477
00:27:23,520 --> 00:27:26,200
Speaker 8: fall within the outer perimeter, that would be very instructive

478
00:27:26,240 --> 00:27:28,719
Speaker 8: to her if she gets to that problem. Obviously, in

479
00:27:28,760 --> 00:27:31,960
Speaker 8: the meantime, she may also find persuasive the ruling of

480
00:27:32,000 --> 00:27:34,920
Speaker 8: her fellow judge on her Court judge meta that these

481
00:27:34,960 --> 00:27:37,560
Speaker 8: actions largely did not fall within that outer perimeter.

482
00:27:38,119 --> 00:27:42,119
Speaker 2: Tump is the first former president to face a federal indictment,

483
00:27:42,280 --> 00:27:46,280
Speaker 2: So this is uncharted territory. What has the Supreme Court

484
00:27:46,359 --> 00:27:50,040
Speaker 2: ruled in the past in the area of presidential immunity.

485
00:27:50,560 --> 00:27:54,280
Speaker 8: So the Supreme Court has ruled on presidential immunity in

486
00:27:54,320 --> 00:27:58,000
Speaker 8: the context of damages, actions and civil suits. In the

487
00:27:58,000 --> 00:28:01,680
Speaker 8: most important case is a case called Nixon versus Fitzgerald,

488
00:28:01,960 --> 00:28:04,359
Speaker 8: in which the court said there is a doctrine of

489
00:28:04,400 --> 00:28:09,080
Speaker 8: absolute presidential immunity that shields the president even after he

490
00:28:09,200 --> 00:28:14,520
Speaker 8: leaves office from damage's actions brought by individuals for actions

491
00:28:14,560 --> 00:28:19,639
Speaker 8: taken within the outer perimeter of the president's official responsibilities.

492
00:28:20,240 --> 00:28:23,959
Speaker 8: The court in that case drew on precedents from the

493
00:28:24,000 --> 00:28:28,280
Speaker 8: context of other executive officials, such as prosecutors, but it

494
00:28:28,320 --> 00:28:31,560
Speaker 8: also looked to immunity doctrine that court had developed in

495
00:28:31,600 --> 00:28:35,240
Speaker 8: the context of judges, other officials whom the Court said

496
00:28:35,520 --> 00:28:38,760
Speaker 8: would if they were not provided immunity, would be potentially

497
00:28:38,800 --> 00:28:41,200
Speaker 8: subject to damage's suits.

498
00:28:41,320 --> 00:28:44,440
Speaker 2: Thanks so much for your insides, Jessica. That's Professor Jessica

499
00:28:44,560 --> 00:28:48,360
Speaker 2: Roth of Cardozo Law School. Coming up next. What is

500
00:28:48,360 --> 00:28:51,120
Speaker 2: a legal honked up? I'm Jim grossoh and you're listening

501
00:28:51,120 --> 00:28:52,240
Speaker 2: to Bloomberg.

502
00:28:59,800 --> 00:29:04,480
Speaker 1: Is Bloomberg Law with June Brusso from Bloomberg Radio.

503
00:29:05,200 --> 00:29:07,840
Speaker 2: You're listening to a special best of edition of the

504
00:29:07,840 --> 00:29:11,880
Speaker 2: Bloomberg Law Show. We all know what hot tubs are,

505
00:29:12,480 --> 00:29:16,160
Speaker 2: but what exactly is a legal hot tub. Well, it's

506
00:29:16,200 --> 00:29:19,080
Speaker 2: not as exciting as it may sound, and it really

507
00:29:19,160 --> 00:29:22,840
Speaker 2: has nothing to do with hot tubs. It's formally called

508
00:29:23,080 --> 00:29:28,680
Speaker 2: concurrent expert testimony or a concurrent expert evidence proceeding, and

509
00:29:28,720 --> 00:29:32,360
Speaker 2: it's like a discussion among experts, but it's not very

510
00:29:32,400 --> 00:29:35,800
Speaker 2: popular in US courts at least so far. Here to

511
00:29:35,840 --> 00:29:38,040
Speaker 2: tell us about it and how it got that name

512
00:29:38,360 --> 00:29:42,880
Speaker 2: is Bloomberg Law reporter Dan Papskin, So tell us exactly

513
00:29:42,920 --> 00:29:44,560
Speaker 2: what this legal hot tub is.

514
00:29:44,680 --> 00:29:44,840
Speaker 3: Dan.

515
00:29:45,320 --> 00:29:46,760
Speaker 9: You can kind of think of it as a debate

516
00:29:46,920 --> 00:29:51,880
Speaker 9: between experts, often economic experts, but not necessarily where instead

517
00:29:51,880 --> 00:29:54,600
Speaker 9: of one sitting on the stand in a trial or

518
00:29:54,640 --> 00:29:57,400
Speaker 9: on the pre trial hearing and getting examined and then

519
00:29:57,400 --> 00:29:59,760
Speaker 9: cross examined by one size attorneys and on the other

520
00:30:00,080 --> 00:30:03,400
Speaker 9: vote or all of the witnesses sit together before the

521
00:30:03,520 --> 00:30:06,080
Speaker 9: judge and are basically prompted to debate each other on

522
00:30:06,200 --> 00:30:08,920
Speaker 9: a series of predetermined topics or questions.

523
00:30:08,960 --> 00:30:11,080
Speaker 2: And where did they get the name hot tub for this?

524
00:30:11,680 --> 00:30:15,320
Speaker 9: Australia these originally pretty much right around the beginning of

525
00:30:15,360 --> 00:30:19,040
Speaker 9: the decade, and it was deployed originally by the Australian

526
00:30:19,080 --> 00:30:23,040
Speaker 9: Competition Tribunal that their kind of antitrust dedicated courts system

527
00:30:23,480 --> 00:30:26,320
Speaker 9: basically to get a clearer understanding of what experts we're

528
00:30:26,360 --> 00:30:29,000
Speaker 9: talking about and make them really drill down on their

529
00:30:29,040 --> 00:30:32,120
Speaker 9: agreements and their disagreements. It was pretty successful there, and

530
00:30:32,200 --> 00:30:34,880
Speaker 9: it's taken off in a bunch of other countries in Europe,

531
00:30:35,000 --> 00:30:38,920
Speaker 9: in South Africa, Canada has used it. Mostly been unpopular.

532
00:30:38,920 --> 00:30:41,080
Speaker 9: In the US. We've only found a little less than

533
00:30:41,120 --> 00:30:44,360
Speaker 9: two dozen instances of federal judges using on it. Hasn't

534
00:30:44,400 --> 00:30:45,240
Speaker 9: It hasn't taken off.

535
00:30:45,400 --> 00:30:47,760
Speaker 2: Maybe the name has something to do with that. I

536
00:30:47,800 --> 00:30:50,360
Speaker 2: know you witness one of these legal hot tubs when

537
00:30:50,400 --> 00:30:54,240
Speaker 2: federal Judge James Denado held one in San Francisco. So

538
00:30:54,240 --> 00:30:55,040
Speaker 2: tell us about that.

539
00:30:55,280 --> 00:30:58,520
Speaker 9: So Donado held this the second hot sub he's held

540
00:30:58,520 --> 00:31:02,800
Speaker 9: in this case a lawsuit alleging Google basically has anti

541
00:31:02,800 --> 00:31:07,280
Speaker 9: competitive control over the payment systems in his playstore, and

542
00:31:07,360 --> 00:31:10,920
Speaker 9: so the second hot tub was to basically determine whether

543
00:31:11,040 --> 00:31:15,640
Speaker 9: the plaintiff's experts have reached kind of valid models for

544
00:31:15,720 --> 00:31:19,960
Speaker 9: figuring out how much consumers were harmed by these playstore

545
00:31:20,000 --> 00:31:22,600
Speaker 9: policies and what the impact was on the market.

546
00:31:23,000 --> 00:31:25,800
Speaker 2: Is the judge the only one asking questions, or are

547
00:31:25,840 --> 00:31:29,880
Speaker 2: the lawyers asking questions? Is their cross talk between the experts.

548
00:31:30,200 --> 00:31:33,440
Speaker 9: There's a lot of crosstalk. It's almost exclusively Tonato asking

549
00:31:33,480 --> 00:31:36,360
Speaker 9: the questions. He allows a couple attorneys to sit with

550
00:31:36,440 --> 00:31:39,600
Speaker 9: the experts in the hot tub, but they're really only

551
00:31:39,600 --> 00:31:41,520
Speaker 9: allowed to ask questions right at the end. They they

552
00:31:41,520 --> 00:31:44,920
Speaker 9: have kind of clarifying questions for either expert. Otherwise not

553
00:31:45,080 --> 00:31:49,040
Speaker 9: a prompts one side or the other. We'll say like, yeah,

554
00:31:49,080 --> 00:31:51,400
Speaker 9: I read your report, I had this question about this,

555
00:31:51,560 --> 00:31:54,560
Speaker 9: you know, one part of the model, and then we'll

556
00:31:54,600 --> 00:31:57,040
Speaker 9: prompt the other expert to be like, do you disagree

557
00:31:57,080 --> 00:32:00,680
Speaker 9: with that? So why it got pretty heated several times

558
00:32:00,800 --> 00:32:02,720
Speaker 9: there was I don't know if you would call it yelling,

559
00:32:02,760 --> 00:32:06,360
Speaker 9: but definitely raised voices. The court reporter had to interrupt

560
00:32:06,640 --> 00:32:10,200
Speaker 9: I think three separate times because two experts in the

561
00:32:10,280 --> 00:32:13,400
Speaker 9: judge were talking over each other and she couldn't transcribe

562
00:32:13,400 --> 00:32:15,560
Speaker 9: that in real time. So it definitely is a little

563
00:32:15,600 --> 00:32:18,080
Speaker 9: more chaotic than your average court oral testimony.

564
00:32:18,760 --> 00:32:23,080
Speaker 2: Is this because the expert testimony is so complex for

565
00:32:23,160 --> 00:32:28,120
Speaker 2: the judge to understand or is it because this is quicker?

566
00:32:28,160 --> 00:32:30,000
Speaker 2: I mean, what's the real reason behind this.

567
00:32:30,400 --> 00:32:33,000
Speaker 9: The reason do not out held the hotsub was to

568
00:32:33,040 --> 00:32:36,200
Speaker 9: answer this Google motion over whether the experts should be

569
00:32:36,200 --> 00:32:39,320
Speaker 9: allowed to testify or not. And Donato told me in

570
00:32:39,360 --> 00:32:43,680
Speaker 9: an interview afterwards that it's very useful for him understanding

571
00:32:43,840 --> 00:32:46,400
Speaker 9: their testimony and their models. It is really complicated, and

572
00:32:46,480 --> 00:32:49,960
Speaker 9: that's a big reason why judges are deploying hotas that

573
00:32:50,000 --> 00:32:52,800
Speaker 9: they haven't deployed too many of them. But it's not

574
00:32:52,960 --> 00:32:56,600
Speaker 9: just about the complexity. It's also faster. Tonata said, it's

575
00:32:56,600 --> 00:33:00,600
Speaker 9: a lot cleaner compared normal expert testimony on hot tub

576
00:33:00,640 --> 00:33:03,040
Speaker 9: testimony to a game of telephone. Right, You've got the

577
00:33:03,080 --> 00:33:05,280
Speaker 9: expert on the stand, you've got their attorney questioning them,

578
00:33:05,400 --> 00:33:07,520
Speaker 9: and then you've got the judge hearing their answers. So

579
00:33:07,600 --> 00:33:10,360
Speaker 9: it's kind of filtered through what questions the attorney wants

580
00:33:10,400 --> 00:33:13,280
Speaker 9: to ask, and then how the economist in this case

581
00:33:13,440 --> 00:33:16,680
Speaker 9: answers those questions. The judge might not necessarily be getting

582
00:33:16,960 --> 00:33:18,960
Speaker 9: the exact answers they're looking for.

583
00:33:19,160 --> 00:33:21,280
Speaker 2: Well, we'll see if the use of these legal hot

584
00:33:21,280 --> 00:33:23,720
Speaker 2: tubs picks up, But I think a name change is

585
00:33:23,720 --> 00:33:27,280
Speaker 2: in order. Thanks so much, Dan, that's Bloomberg Legal reporter

586
00:33:27,440 --> 00:33:30,960
Speaker 2: Dan Paskin. This is Bloomberg Law on Bloomberg Radio. I'm

587
00:33:31,040 --> 00:33:34,720
Speaker 2: June Grosso. Stay with us. Today's top stories and global

588
00:33:34,760 --> 00:33:39,480
Speaker 2: business headlines are coming up right now