Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
Speaker 2: The Supreme Court's conservative majority signal it's likely to deal
Speaker 2: another blow to LGBTQ rights. During oral arguments today over
Speaker 2: state laws in Idaho and West Virginia that ban transgender
Speaker 2: girls and women from competing for their schools on female
Speaker 2: athletic teams, Conservative justices like Samuel Alito and Brett Cavanaugh
Speaker 2: directed skeptical questions at the lawyers for the transgender athletes
Speaker 2: who are challenging these bans as violating the Constitution's Equal
Speaker 2: Protection Clause and Title nine, which prohibit sex discrimination in education.
Speaker 3: There are an awful lot of female athletes who are
Speaker 3: strongly opposed to participation by trans athletes and competitions with them.
Speaker 3: What do you say about them? They Are they bigots?
Speaker 3: Are they deluded in thinking that they are subjected to
Speaker 3: unfair competition?
Speaker 4: You know, there's some states in the federal government, and
Speaker 4: the NCAA and the Olympic Committee. So these are a
Speaker 4: variety of groups who study this issue think that allowing
Speaker 4: transgender women and girls to participate will undermine or reverse
Speaker 4: that amazing success and will.
Speaker 2: Create unfairness LGBTQ advocates haven't had a major Supreme Court
Speaker 2: win since twenty twenty, when the Court ruled six to
Speaker 2: three that the main federal job bias law known as
Speaker 2: Title seven Barr's Discrimination against Sexual Orientation and gender identity.
Speaker 2: Joining me is Suzanne Goldberg, a professor at Columbia Law
Speaker 2: School and director of the Sexuality and Gender Law Clinic. Suzanne,
Speaker 2: based on the oral arguments, did it seem like the
Speaker 2: Supreme Court is likely to uphold the state laws that
Speaker 2: ban transgender girls and women from competing on female athletic teams.
Speaker 5: I always hesitate to predict outcomes in the wake of
Speaker 5: an oral argument. I think what is fair to say
Speaker 5: and interesting about the argument is that most of the
Speaker 5: justices really appear to be grappling with the hard questions
Speaker 5: and the implications of a ruling either way, Meaning that
Speaker 5: while I think a couple of the justices on both sides,
Speaker 5: some of the justices on both sides were pretty clear
Speaker 5: about how they would come out, several of them seem
Speaker 5: to understand that ruling strongly in one direction or another
Speaker 5: might pose great risks to constitutional law and to protections
Speaker 5: under Title nine against sex discrimination. The lawyers for both
Speaker 5: of the athletes in these cases made what I thought
Speaker 5: were quite strong arguments that there is not enough information
Speaker 5: in the record in front of the court for the
Speaker 5: court actually to decide that big questions about whether transgender
Speaker 5: athletes are sometimes or always sufficiently controlling any effects of
Speaker 5: testosterone to be able to compete on the same basis
Speaker 5: as non transgender athletes. So I think there are a
Speaker 5: lot of fact questions in the mix, and the lawyers
Speaker 5: for both of the athletes, I think made strong arguments
Speaker 5: that the cases should actually go back to the lower
Speaker 5: courts for full development of a record or dismissal.
Speaker 6: In the case of the college student.
Speaker 2: So explain what the legal issue is.
Speaker 5: The cases are centrally about whether states can ban transgender
Speaker 5: female students a girl in one case, and a college
Speaker 5: student and a young woman and another from participating on
Speaker 5: the girls and women's sports teams. These state laws are
Speaker 5: categorical bands, meaning it doesn't matter how much a student
Speaker 5: has mitigated the effects of testosterone, or in the case
Speaker 5: of the West Virginia young student, she's not gone through
Speaker 5: male puberty, she's going through female puberty, and so the
Speaker 5: legal question in the case is can the state impose
Speaker 5: categorical bands on every transgender girl and woman from ever
Speaker 5: participating on a girls or women's team. The legal questions
Speaker 5: come under the Equal Protection Clause of the US Constitution,
Speaker 5: which guarantees equal treatment and says the government must have
Speaker 5: a good enough reason if it is going to draw
Speaker 5: lines based on sex. And there is also, in the
Speaker 5: case of the West Virginia student, a claim under Title nine,
Speaker 5: which is the federal law that prohibits sex discrimination, and
Speaker 5: that claim is that states, of course can have separate
Speaker 5: girls and boys teams, but it is unreasonable to keep
Speaker 5: this student who is going through female puberty and never
Speaker 5: gone through male puberty off of the girls team.
Speaker 2: So there were a lot of sort of broad statements
Speaker 2: about transgender women. Samuel Alito asked, looking at the broader
Speaker 2: issue that a lot of people are interested in. There're
Speaker 2: an awful lot of female athletes who are strongly opposed
Speaker 2: to participation by trans athletes in competitions with them. Are
Speaker 2: they bigots? And just as Kavanaugh said, the court can't
Speaker 2: look past what he characterized as the harm that transgender
Speaker 2: inclusive sports policies impose on cisgender women and girls' sports
Speaker 2: team For the individual girl who doesn't make the team,
Speaker 2: or doesn't get on the stand for the medal, or
Speaker 2: doesn't make all leagues, there's a harm, and I think
Speaker 2: we can sweep that aside. So do you think that
Speaker 2: a lot of the justices were looking at stereotypes of
Speaker 2: transgender athletes.
Speaker 5: I think the lawyers responded very clearly to the concern
Speaker 5: expressed by the justices related to some girls and women
Speaker 5: objecting to transgender girls and women on their sports teams,
Speaker 5: and what they said was, no, nobody is accusing anybody
Speaker 5: of being a bigot, and you know, of course competition
Speaker 5: is important.
Speaker 6: The question in.
Speaker 5: These cases is whether it is reasonable or discriminatory to
Speaker 5: say every single transgender girl and woman, no matter to
Speaker 5: what extent she's mitigated the effects of testosterone or not
Speaker 5: even experienced them, that it is unreasonable to keep those
Speaker 5: students off of girls and women's teams. You know, it's
Speaker 5: tough always to not make the team or not win
Speaker 5: the competition, but that is part of sports. And part
Speaker 5: of the point the lawyers were making was even when
Speaker 5: somebody is upset about losing, it doesn't necessarily mean their
Speaker 5: loss violates the law or violates the constitution. Always right,
Speaker 5: one athlete wins right, one athlete is better than another.
Speaker 5: And in these cases the point was, it's not because
Speaker 5: this other student is transgender.
Speaker 6: It's because the other student either has.
Speaker 5: You know, practices harder or having a better day of competition,
Speaker 5: or may have more natural ability. But none of that
Speaker 5: in these cases is keyed to a student being transgender.
Speaker 1: Right.
Speaker 5: Athletes vary in many ways, and that is the point
Speaker 5: of the lawyers and the plaintiffs in these cases.
Speaker 2: Aren't these laws, though, based on a belief that transgender
Speaker 2: women or girls have a better chance at women's athletics
Speaker 2: because they're transgender.
Speaker 5: Yeah, the laws are based on a view that transgender
Speaker 5: girls and women are always and automatically going to be
Speaker 5: stronger and faster in ways that matter for athletics because
Speaker 5: they're transgender. The facts in these cases about the two
Speaker 5: athletes show that that is not always true, and the
Speaker 5: science shows that's not always true. One of the questions
Speaker 5: that came up quite a bit during the argument is, well,
Speaker 5: how much should the court get involved in the science,
Speaker 5: especially as the science is under development. The response from
Speaker 5: the athletes lawyers was the records in these cases, which
Speaker 5: is what the court has to look at to examine
Speaker 5: the facts are incomplete and if anything, if this, if
Speaker 5: the court wants to get into the science, then the
Speaker 5: cases should be sent back to the lower courts for
Speaker 5: a trial and development of a full record and the
Speaker 5: trial court's consideration of the compete. Experts and the experts
Speaker 5: in science for the athletes say students can mitigate their
Speaker 5: testosterone levels, and again BPJ the West Virginia student's case,
Speaker 5: she has not never experienced male puberty, has only experienced
Speaker 5: female hormonal puberty, and so to suggest that she is
Speaker 5: somehow advantaged by male puberty is incorrect and is belied
Speaker 5: by the record. A lawyer for the college student athlete
Speaker 5: made the point that there is some scientific evidence that
Speaker 5: transgender women are at a disadvantage because they may, if
Speaker 5: they've gone through mail puberty, have a larger body frame,
Speaker 5: but because they've dropped their testosterone to typical levels for
Speaker 5: women may not have the muscle mass and the strength
Speaker 5: that is needed to propel that larger body frame. So
Speaker 5: there is some scientific evidence showing a disadvantage rather than
Speaker 5: the kind of advantage to the state claims.
Speaker 2: Will you explain? West Virginia is arguing that the laws
Speaker 2: about sex, not gender.
Speaker 5: You know, one of the questions in this case is
Speaker 5: do the state laws impose discrimination based on gender identity
Speaker 5: or do they impose discrimination based on sex. Title nine
Speaker 5: cover sex discrimination, and in constitutional law, the Court has
Speaker 5: long applied heightened scrutiny to sex discrimination. So the states
Speaker 5: in these cases and the government in these cases are
Speaker 5: arguing that these laws don't actually discriminate against transgender people.
Speaker 5: They do draw lines based on biology, and that kind
Speaker 5: of line drawing is permissible. The lawyers for the athletes
Speaker 5: in these cases are arguing, yes, in general, line drawing
Speaker 5: based on biology when it comes to sports might be permissible,
Speaker 5: but categoric banning all transgender girls and women from playing
Speaker 5: girls and women's sports is not reasonable. It defies the science,
Speaker 5: and most importantly, it defies the fact about the athlete.
Speaker 2: Teams cases coming up next on the Bloomberg Law Show,
Speaker 2: could a ruling favoring the bands in Idaho and West
Speaker 2: Virginia affects states that permit transgender girls and women to
Speaker 2: participate on female teams. Remember, you can always get the
Speaker 2: latest legal news by listening to our Bloomberg Law podcasts.
Speaker 2: You can find them on Apple Podcasts. Spotify and at
Speaker 2: Bloomberg dot com, slash podcast Slash Law. I'm June Grasso,
Speaker 2: and you're listening to Bloomberg. Idaho and West Virginia are
Speaker 2: among twenty seven states with laws restricting transgender student athletes,
Speaker 2: all enacted since twenty twenty. During three hours of oral
Speaker 2: arguments today, the Supreme Court's conservatives suggested their law likely
Speaker 2: to uphol those state bands, but Justice Brett Kavanaugh raised
Speaker 2: the question of whether a ruling favoring those state bans
Speaker 2: would affect laws in states that allowed transgender girls and
Speaker 2: women to participate on female teams.
Speaker 4: And those states who do allow it, are they is
Speaker 4: your position that they are violating the Constitution the Equal
Speaker 4: Protection claus rights of biological girls and women by allowing that,
Speaker 4: or do you say that's up to each state to decide,
Speaker 4: and that the Constitution gives discretion to the state whether
Speaker 4: to allow it or not to allow it. I have
Speaker 4: not yet been persuaded by a constitutional theory that would
Speaker 4: let us use the egal protection clause to impose our
Speaker 4: policy on other states in this matter.
Speaker 2: I've been talking to Columbia Law School professor Suzanne Goldberg.
Speaker 2: Suzanne in the Bosta case the twenty twenty case where
Speaker 2: the Court ruled six to three Title seven protects transgender
Speaker 2: workers from discrimination based on sexual orientation and gender identity.
Speaker 2: But did it appear that both the Chief Justice, who
Speaker 2: was in the majority in Bosstok, and Justice Neil Gorsich,
Speaker 2: who wrote the opinion in Bosstok, were backing away from
Speaker 2: it in this case.
Speaker 5: I think it's fair to say that Justice Gorsic and
Speaker 5: Chief Justice Roberts did not heartily endorse.
Speaker 6: The application of Bostok to Title nine.
Speaker 5: At one point, Justice Gorsich even said, I wonder how
Speaker 5: straightforward this all is, and this was after several hours
Speaker 5: of oral argument. Bosstok does not have to be applied
Speaker 5: for the individual athletes to prevail in these cases.
Speaker 6: But I think it is.
Speaker 5: Fair to say that they don't see an easy connection
Speaker 5: or a direct connection between prohibiting sex discrimination under Title
Speaker 5: seven in employment against gay or transgender employees to carry
Speaker 5: over to Title nine, which prohibits sex discrimination in education.
Speaker 5: I mean, obviously we'll see what they have to say
Speaker 5: in their opinions, but they did not say anything in
Speaker 5: the argument to indicate that they see an easy carryover
Speaker 5: of boss Stock from one setting to the other.
Speaker 2: Were lawyers for the transgender athletes, hoping that there would
Speaker 2: be a carryover from Boss Stoc.
Speaker 5: The lawyers for the athletes made the argument that, of
Speaker 5: course there's a connection both in terms of the specifics
Speaker 5: of the language of Title nine and Title seven. In
Speaker 5: interpreting Title nine, the Supreme Court often looks to its
Speaker 5: rulings under Title seven to keep the two statutes and
Speaker 5: their understandings of discrimination in sync, and so the normal
Speaker 5: course would be that a case like Boss Stock, which
Speaker 5: is an important interpretation of Title seven, would carry over
Speaker 5: to Title nine. The athletes lawyers also make the point,
Speaker 5: which I think is very fair, that whether the decision
Speaker 5: carries over formally or not, it's logic certainly should carry over,
Speaker 5: which is that when a government draws a line, or
Speaker 5: when there's line drawing that says all transgender people are
Speaker 5: on one side of the line, that necessarily is a
Speaker 5: kind of sex discrimination. It says we will treat you
Speaker 5: differently and worse because we don't conform to your expectations
Speaker 5: of what a man or woman should be. And that's
Speaker 5: exactly the kind of discrimination that Title seven is understood
Speaker 5: to prohibit.
Speaker 2: Were the three liberal justices on the same page.
Speaker 5: I would say that the three liberal justices seem troubled
Speaker 5: by the state's laws. Their questions reinforced one another. They
Speaker 5: were troubled, especially by an argument made by the state
Speaker 5: and the federal government that, you know, if the group
Speaker 5: that's discriminated against is really small, and the group of
Speaker 5: transgender people are really small, then the Constitution isn't so
Speaker 5: concerned about that. I think that is that argument is
Speaker 5: wildly incorrect and misstates the law, and it seemed that
Speaker 5: that was a key point of concern for those justices.
Speaker 2: Justice Brett Kavanaugh several times asked about the roughly two
Speaker 2: dozen states that allow transgender athletes to compete and whether
Speaker 2: they'd be forced to change course if the Justice is
Speaker 2: uphold state ban so he said, are those states violating
Speaker 2: the constitutional rights of biological girls and women by allowing that?
Speaker 2: And Justice Kagan also asked that question.
Speaker 5: I think this is one important takeaway from this argument
Speaker 5: is that the governments trying to defend these laws did
Speaker 5: not argue that it would violate the rights of cisgender
Speaker 5: girls to allow transgender girls to compete against them on
Speaker 5: girls or women's teams. And so, you know, a key
Speaker 5: takeaway here is no one seemed to be embracing an
Speaker 5: argument that it would be unconstitutional for nearly half of
Speaker 5: the states in the country to allow transgender girls and
Speaker 5: women to compete on girls and women's teams. The lawyer
Speaker 5: for the United States specifically argued that they were not
Speaker 5: asking the court to address this. The United States has
Speaker 5: taken the position that it violates Title nine for states
Speaker 5: to allow transgender girls and women to participate on girls
Speaker 5: and women's teams. But the lawyer for the government in
Speaker 5: this case try to strongly make the point that that
Speaker 5: is not what this case is about, and it would
Speaker 5: be surprising, I think if the court were to reach
Speaker 5: that question here.
Speaker 2: So, I mean, we've talked about this before, about how
Speaker 2: there have been setbacks to transgender rights from this court
Speaker 2: allowing Donald Trump to ban transgender people from the military,
Speaker 2: blocking transgender and non binary people from choosing passport sex markers,
Speaker 2: as well as the ruling that upheld Tennessee's ban on
Speaker 2: gender affirming care for transgender youth. And when you listen
Speaker 2: to the oral arguments, you know you have the three liberals,
Speaker 2: and then it seems hard for me to find two
Speaker 2: more justices who would side with the transgender athletes in
Speaker 2: these cases. And also it would just be a continuation
Speaker 2: of what the Supreme Court has been doing in recent years,
Speaker 2: which is cutting back on transgender rights.
Speaker 5: It's certainly true that in recent years, and especially this
Speaker 5: past year, the Supreme Court has cut back in profound
Speaker 5: ways on the rights of transgender people by upholding an
Speaker 5: executive order excluding transgender people from military service on an
Speaker 5: emergency basis, or allowing that order to stay in place,
Speaker 5: by allowing an order to stay in place that blocks
Speaker 5: transgender people from getting accurate gender identity documents through the
Speaker 5: passport service, by upholding a ban on access to gender
Speaker 5: firming healthcare for transgender youth. This case presents a different
Speaker 5: type of question because it squarely asks on the merits
Speaker 5: of the case, at least in this early stage. Is
Speaker 5: it a violation of the rights of transgender people directly
Speaker 5: to be excluded from athletics participation? Right, this is not
Speaker 5: a national security issue like with passports or like with
Speaker 5: the military service. It's not a medical care issue that
Speaker 5: states often regulated, like with the gender affirming care case.
Speaker 5: So the question really is, you know, can kids and
Speaker 5: young people be kept out of part of their educational
Speaker 5: program because they're transgender. It's a different kind of ca case.
Speaker 5: We will see where the court comes out. I do
Speaker 5: think the lawyers for the athletes presented the facts in
Speaker 5: a way that was so clearly showing that there isn't
Speaker 5: on the facts.
Speaker 6: In these cases.
Speaker 5: These two students were not at some sort of special
Speaker 5: advantage because they were transgender. And so the question is,
Speaker 5: can states override the right of these two students to
Speaker 5: participate in girls and women's teams even when the facts
Speaker 5: show that these students are similarly situated to their female peers.
Speaker 2: There was also a discussion about the small percentage of
Speaker 2: athletes made up by transgender athletes.
Speaker 5: You know, one of the interesting legal questions the court
Speaker 5: may need to address here is what happens when a
Speaker 5: small group of people challenge a law saying this law
Speaker 5: is not a reasonable fit when applied to us, and
Speaker 5: the law discriminates against us based on sex. The governments
Speaker 5: in these cases we're arguing, well, you know, the law
Speaker 5: doesn't have to be a perfect fit, it just has
Speaker 5: to be reasonable, and well, you know, it's too bad
Speaker 5: if some people are left out, but the constitution allows that.
Speaker 5: I do think that even some of the justices in
Speaker 5: the middle would be troubled to reach that kind of
Speaker 5: conclusion because it is fairly damning, I think to suggest
Speaker 5: that the equal protection guarantee in the Constitution does not
Speaker 5: guarantee minority groups, however, defined the ability to challenge discriminatory
Speaker 5: laws as applied to those groups.
Speaker 6: That's the whole point of the equal Protection clause.
Speaker 5: It's to say, yes, of course governments can engage in
Speaker 5: line drawing, but they cannot engage in line drawing that
Speaker 5: is unreasonable with respect and certainly illegitimate with respect to
Speaker 5: any group. And in these cases, as applied to students
Speaker 5: who are transgender girls and women who have mitigated the
Speaker 5: effects of testosterone and are able to compete against other
Speaker 5: girls and women, those are unreasonable rules, right. They categorically
Speaker 5: exclude those students from those teams, and I think the
Speaker 5: court will have to take that up, and some of
Speaker 5: the justices will be troubled by that.
Speaker 2: Also. I found it odd that the girl in the
Speaker 2: Idaho case wanted to drop the case, but Idaho officials,
Speaker 2: who are the defendants, don't want the case to be dropped.
Speaker 5: So the college student went back to the trial court
Speaker 5: and said, I'm not going to participate in school athletics anymore. Right,
Speaker 5: I'm going to focus on finishing college, and you know
Speaker 5: it will be harmful to me. I've already come under
Speaker 5: a lot of scrutiny, you know, having.
Speaker 6: This case decided.
Speaker 5: My case decided by the Supreme Court will not be
Speaker 5: in my interest.
Speaker 6: I don't want to play anymore.
Speaker 5: And so there's a question whether the court actually can
Speaker 5: address her case or should address her cases. The government
Speaker 5: tried to argue that there are other similar cases in
Speaker 5: the past when the court has gone ahead and said, yes,
Speaker 5: we're going to address your case anyway, but none of
Speaker 5: those situations really apply here. And at the end of
Speaker 5: the day, I think if the court were to go
Speaker 5: ahead and say, you know what, you were a plaintiff before,
Speaker 5: so we're making you stick on through this whole case,
Speaker 5: even though you want to drop it, that would have
Speaker 5: implications far beyond this case and would actually be quite dangerous,
Speaker 5: I think for the court to pursue on a separate
Speaker 5: Another question that came up was, well, what about laws
Speaker 5: that treat boys and girls differently for other purposes? Right,
Speaker 5: what about restrictions on a chess club or restrictions on
Speaker 5: participation of girls in calculus classes or other things. How
Speaker 5: far can discrimination extend? And this was connected to this
Speaker 5: question about well, what a science show? And if science
Speaker 5: somehow showed that men or boys were better at math
Speaker 5: or better at chess, would that mean that the state
Speaker 5: could then exclude girls and women? That also, the court
Speaker 5: seemed troubled by pretty much everybody, And so I suspect
Speaker 5: that whatever the justices do, at least most of them
Speaker 5: are going to want to stay away from those questions.
Speaker 2: Thanks so much, Suzanne. That's Professor Suzanne Goldberg of Columbia
Speaker 2: Law School coming up next. Former Supreme Court advocate on trial.
Speaker 2: This is Bloomberg. Tom Goldstein was a top Supreme Court
Speaker 2: advocate who shocked the legal community when he was charged
Speaker 2: with tax evasion and his double life was revealed. The
Speaker 2: allegations and the indictment painted a picture of a wild
Speaker 2: lifestyle that included ultra high stakes poker games, million in
Speaker 2: gambling debts, extramarital affairs, and more. Goldstein faces charges of
Speaker 2: tax evasion and making a false statement. The tax charges
Speaker 2: revolve primarily around Goldstein's alleged mischaracterization of business and personal
Speaker 2: expenses and failure to report certain income the willful failure
Speaker 2: to pay taxes. Charges are based on the theory that
Speaker 2: Goldstein opted to pay off other expenses, including gambling debts.
Speaker 2: First joining me is former federal prosecutor Marissa Darden. She's
Speaker 2: chair of the White Collar Government Investigations and Regulatory Practice
Speaker 2: Group at Benisch. Marissa tell us a little about Tom Goldstein.
Speaker 1: I think everybody revered him as one of the scions
Speaker 1: of the Supreme Court. He has argued some of the
Speaker 1: most important cases of our time. He has had some
Speaker 1: really successful wins for Google and for other huge companies
Speaker 1: in you know, sort of bet the stakes, you know,
Speaker 1: sort of anti trust and other sort of complicated, really
Speaker 1: sophisticated First Amendment issues, trying to persuade the Court in
Speaker 1: this favor, which he's done really well. I think, you know,
Speaker 1: I remember learning more about him in the bushby core
Speaker 1: Era because I think he was part of that original
Speaker 1: team with David Boyce. But he's you know, got a
Speaker 1: stellar reputation or at least had a stellar reputation in
Speaker 1: front of the Supreme Court, very successful Washington lawyer, and
Speaker 1: I think these allegations have all kind of come as
Speaker 1: a surprise and raise a lot of questions about the
Speaker 1: double lives that all of us might be leading.
Speaker 2: And what was the reaction in the legal community when
Speaker 2: he was charged.
Speaker 1: As a general rule, you know, Supreme Court clerks and
Speaker 1: people who work in the Supreme Court, people who work
Speaker 1: around the Supreme Court, the Solicitor General's office. You know,
Speaker 1: it is technically the most and realistically the most elite
Speaker 1: form of lawyering that one can do, right, and so
Speaker 1: most of the time people you meet are kind of
Speaker 1: nerdy to be honest, Like, you meet a lot of lawyers,
Speaker 1: or go to school with these lawyers who seem like
Speaker 1: they study all the time, They prioritize academic and personal excellence,
Speaker 1: They hold themselves to a high standard of integrity, and
Speaker 1: so you wouldn't really expect people like that to be
Speaker 1: also having, you know, a side hustle that involves online
Speaker 1: poker and gambling at a high level and high stakes
Speaker 1: of poker games, or you know, using call girls or
Speaker 1: other types of websites to find female companionships. I think,
Speaker 1: as a general rule, like lawyers, just like everybody else,
Speaker 1: are kind of snotty, and they think of themselves in
Speaker 1: an elitist category of people, and so the idea that
Speaker 1: anybody that you know, revere or think of at the
Speaker 1: highest echelon of your profession could be doing that. It's
Speaker 1: pretty shocking.
Speaker 2: Tell us about the charges he's facing.
Speaker 1: The United States District Court for the District of Maryland
Speaker 1: has charged him in a multi count indictment with several
Speaker 1: different violations of federal law, the most serious of which
Speaker 1: being tax evasion, aiding and assisting in the preparation of
Speaker 1: false and fraudulent tax returns, and making false statements to
Speaker 1: the government. So it's a fairly long indictment, it's about
Speaker 1: fifty pages. They go to great lengths in the indictment
Speaker 1: to lay out his gambling activities, the way he funded
Speaker 1: his poker games, and then some of the other employment
Speaker 1: arrangements and quote unquote employees he used or hired to
Speaker 1: do a range of activities according to the government that
Speaker 1: would not have been considered legitimate employment arrangements, some of
Speaker 1: which were, you know, women that he met online and whatnot.
Speaker 1: So the maximum term of imprisonment under tax evasion is
Speaker 1: up to five years, but the more serious penalties involved
Speaker 1: the fine. Typically in an indictment for tax evasion, there's
Speaker 1: going to be a settlement that's required in any results
Speaker 1: of the case, whether he goes to trial and loses
Speaker 1: or whether he pleads guilty, he will be subject to
Speaker 1: restitution and fines, which are usually sometimes double or triple
Speaker 1: the amount that you actually owe the irs. So he's
Speaker 1: in addition to jail time, he's looking at some pretty
Speaker 1: significant fines and penalties.
Speaker 2: Are you surprised that apparently he was offered plea deals
Speaker 2: twice and turn them down.
Speaker 1: Everybody's motivated by something different, So I can't say that
Speaker 1: I'm surprised given some of the allegations here, he seems
Speaker 1: to be really doubling down on the hubrious of what
Speaker 1: he did. I mean, he spoke to the New York
Speaker 1: Times magazine and Jeffrey Tuban and gave a really long
Speaker 1: interview that now the government is trying to use against
Speaker 1: him in their case in chief. And so the fact
Speaker 1: that he's willing to kind of go down swinging doesn't
Speaker 1: surprise me.
Speaker 2: Is the prosecution going to have a difficult time proving
Speaker 2: wilfulness here?
Speaker 1: Some people think that the tax evasion statutes there has
Speaker 1: to be willful, intentional misrepresentation of your taxes, right, But
Speaker 1: there's really only three elements that the government is required
Speaker 1: to prove. For the top count in tax evasion, you
Speaker 1: have to show a substantial tax was owed beyond what
Speaker 1: was reported, that the individual did some deliberate or intentional
Speaker 1: action to avoid paying the tax. And it can't just
Speaker 1: be that you omitted something, right, You have to actually
Speaker 1: intend to evade or obvious gate the income that was
Speaker 1: taxable that you owed, and then you have to do
Speaker 1: so with the intent, with the specific intent to evade
Speaker 1: the taxes. So in some ways it's complicated because the
Speaker 1: government has to do enough digging and create enough factual
Speaker 1: basis to prove that he intended to evade taxes beyond
Speaker 1: a reasonable doubt. But as a matter of fact, that's
Speaker 1: not that hard to do to a jury, right, I mean,
Speaker 1: you can consider or think about a host of factual
Speaker 1: situations and circumstances where you and I, as regular taxpayers,
Speaker 1: would owe x amount of dollars. Then if we just
Speaker 1: didn't do it but knew we had the responsibility and duty,
Speaker 1: that might be enough to convince a jury beyond a
Speaker 1: reasonable doubt that you intended to evade payton lawful taxes. So, yes,
Speaker 1: there's a high threshold in every criminal case. Of proving
Speaker 1: beyond a reasonable doubt the allegations that the government posits.
Speaker 1: But there are a whole host of facts here that
Speaker 1: suggests that he knew he was making income from illegal
Speaker 1: poker games and from gambling, and if he was not
Speaker 1: reporting that as taxable income, that could be a really
Speaker 1: serious problem for him. The other issue is I think
Speaker 1: the IRS agents and the US Attorney's office will generally
Speaker 1: sort of actually impute a higher level of responsibility to
Speaker 1: a person like an attorney, who basically should know better, right.
Speaker 1: I mean, this is not an average person off the
Speaker 1: streets who may or may not understand the full scope
Speaker 1: of the tax code. This is a very sophisticated, smart
Speaker 1: individual with a legal degree who's operated at the highest
Speaker 1: echelon of our career. It's just not going to be
Speaker 1: as plausible of an argument to say that he didn't
Speaker 1: know he was supposed to report this income.
Speaker 2: So I guess you tell the Times that the case
Speaker 2: may turn on whether the jury thinks he's a good
Speaker 2: guy or a bad guy.
Speaker 1: I don't disagree with that. Juries are fickle, sickle folks,
Speaker 1: and you don't know what they're going to focus on,
Speaker 1: and you hope as a prosecutor that you can make
Speaker 1: your case and lay it out. But studies after study
Speaker 1: has shown that the vast majority of jurors make up
Speaker 1: their mind an opening statement. Sometimes they lose attention or
Speaker 1: focus on very specific details and the things that the
Speaker 1: lawyers are focused on, who have lived this case and
Speaker 1: breathed this case for months or years in many cases
Speaker 1: don't always resonate with the common duror. So, yeah, credibility
Speaker 1: is everything. Evaluation of credibility is a very normal human response,
Speaker 1: and jurors are going to be looking to see, you know,
Speaker 1: whether they have then enough facts to deduce whether this
Speaker 1: is a good guy. I think he's very right on
Speaker 1: about that in many respects.
Speaker 2: Of course, no defendant has to take the stand, But
Speaker 2: in order to get that point across to the jury,
Speaker 2: would he realistically, not legally, but realistically almost have to
Speaker 2: take the stand.
Speaker 1: No, But it's a lot harder to make that argument
Speaker 1: if you don't, because I think the average duror again
Speaker 1: is thinking, Okay, well, now you have an opportunity to
Speaker 1: tell your side of the story and tell us who
Speaker 1: you are, and if you elect not to do that,
Speaker 1: the judge gives an instruction to jurors. That says, specifically,
Speaker 1: just because the defendant did not take the stand in
Speaker 1: their own defense, you are not to interpret that as
Speaker 1: evidence of guilt. But factually and colloquially jurors do that
Speaker 1: all the time. And so I think if he's wanting
Speaker 1: to put his credibility into the factual analysis here, then
Speaker 1: he's got to show the jury who he is, and
Speaker 1: the best way to do that is to take the stand.
Speaker 1: I wouldn't be surprised given these allegations if that's what
Speaker 1: he intends to do well.
Speaker 2: He's obviously been successful at convincing people of legal arguments
Speaker 2: through his career. The government has listed more than sixty
Speaker 2: potential witnesses and more than a thousand exhibits. So the
Speaker 2: trial is expected to last about a month. Is that
Speaker 2: long for a tax case?
Speaker 1: Maybe a little long, But given the amounts of money
Speaker 1: that mister Goldstein is alleged to have won and lost
Speaker 1: in these poker games and some of the other allegations,
Speaker 1: particularly if they feel as though Goldstein is a formidable
Speaker 1: opponent given his legal expertise in his legal mind, then
Speaker 1: the US Attorney's Office has to go the links to
Speaker 1: really demonstrate to the jury beyond a reasonable doubt as
Speaker 1: much as they can, as often as they can, and
Speaker 1: they don't want to leave anything on the floor. So
Speaker 1: it doesn't surprise me that they're willing to kind of
Speaker 1: go the extra distance here and try to go guns
Speaker 1: blazing to get a.
Speaker 2: Conviction, even though it's a tax case and normally I
Speaker 2: would say not too interesting, but this seems like it's
Speaker 2: going to be an interesting case with a lot of
Speaker 2: different facets.
Speaker 1: I think it's an interesting story. I'm excited to kind
Speaker 1: of see how things go. I'll be watching this child closely,
Speaker 1: just like I think a lot of lawyers are. The
Speaker 1: other thing that will be interesting to see is how
Speaker 1: the defense puts forward a case at all. Right, there's
Speaker 1: no constitutional mandate that the defense do anything. So are
Speaker 1: they going to bring character witnesses into defensive Goldstein? Is
Speaker 1: he going to try to enter his own record? What
Speaker 1: is he? Is he going to be calling the shots
Speaker 1: versus his own attorneys? So there's a lot to sort
Speaker 1: of watch outside of just how the evidence is put
Speaker 1: in to see how this all goes. I'm looking forward
Speaker 1: to it.
Speaker 2: Too bad there are no cameras in federal court though,
Speaker 2: thanks so much, Marissa. That's Marissa Darden of Benish, and
Speaker 2: that's it for this edition of The Bloomberg Law Show.
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