Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. This morning, President
Speaker 1: Trump tweeted that he has the absolute right to pardon himself,
Speaker 1: but quote, why would I do that when I have
Speaker 1: done nothing wrong, echoing the statements that his attorney Rudy
Speaker 1: Giuliani made on Sunday on NBC's Meet the Press, The
Speaker 1: President of the United States, um partnering himself would just
Speaker 1: be unthinkable, and it would. It would It would lead
Speaker 1: to probably an immediate impeachment. You know, you get your
Speaker 1: house sent up. Beyond the tremendous, tremendous pressure. Uh. President
Speaker 1: Trump has no need to do that. I didn't do
Speaker 1: anything wrong. My guest is Stephen bin Hack, former federal
Speaker 1: prosecutor and associate Independent Council in the White Wall Outer investigation.
Speaker 1: Steve The question of whether a president has the absolute
Speaker 1: right to pardon himself has never been litigated because no
Speaker 1: president has ever asserted so brashly that laws and traditions
Speaker 1: don't apply to him. Does Trump have the absolute right
Speaker 1: to pardon himself? Well, first of all, thanks for having
Speaker 1: me on, and I think the answer is yes. And
Speaker 1: I think the way to resolve that question is to
Speaker 1: go to the Constitution itself, which says that the president.
Speaker 1: This is an article to section two, which deals with
Speaker 1: the power of the President, says that he, meaning the President,
Speaker 1: shall have power to grant reprieves and pardons for offenses
Speaker 1: against the United States, except in cases of impeachment. What
Speaker 1: that means is there's no limitation except in cases of impeachment.
Speaker 1: And the Constitution is set up to have a separation
Speaker 1: of powers. So for those who think, oh my gosh,
Speaker 1: the president is going to pardon himself, the world is
Speaker 1: going to fall apart because no one has any recourse,
Speaker 1: that's not true. The president cannot change a case of impeachment.
Speaker 1: And in section four of the same article, Article two,
Speaker 1: it says the president, vice president of all civil officers
Speaker 1: in the United States shall be removed from office on
Speaker 1: impeachment foreign conviction of treason, bribery, or other high crescentimnist demeanors.
Speaker 1: So the fact of the matter is, although it has
Speaker 1: not been tacted. I think that the president could pardon himself,
Speaker 1: but immediately he could not, or immediately impeachment and proceedings
Speaker 1: would be uh would start and the Congress can impeach
Speaker 1: and remove him, and he could do nothing to stop that.
Speaker 1: So I think the Constitution has thought about the or
Speaker 1: the Framers thought about this, and they wrote into the
Speaker 1: Constitution what would happen. Do you see a pattern in
Speaker 1: the pardons that Trump has issued already and bypassing the
Speaker 1: pardon vetting procedures usually done by the Department of Justice. Yes,
Speaker 1: I do see a pattern. First, remember, the Constitution is
Speaker 1: different than the norms that we have in our government.
Speaker 1: We have certain norms between the president and the and
Speaker 1: his departments. One of those departments is the Department of Justice.
Speaker 1: The Department of Justice has a pardon attorney who normally
Speaker 1: takes care of pardons. There's rules about when you can
Speaker 1: start the pardon process, typically five years after the sentence
Speaker 1: is complete. There's a recommendation in the White House agrees
Speaker 1: that is not a constitutional requirement. And the President appears
Speaker 1: to be playing this particular situation as a political situation,
Speaker 1: and that means that he will if he wants to
Speaker 1: over ignore the norms and the regulations that are out
Speaker 1: there no constitutional requirement that he that he followed them,
Speaker 1: and he will have to live with the political consequences
Speaker 1: of his um pardons. I think these pardons are set
Speaker 1: up to gradually step us up to the point where
Speaker 1: the President could um could pardon himself. That is you,
Speaker 1: he's starting with a PIO and going, you know to
Speaker 1: Mr Susa. You have a pattern of parts where the
Speaker 1: President is saying these people were unfairly convicted. It was
Speaker 1: unrighteous prosecutions, unfair prosecutors. And if he lays the groundwork there,
Speaker 1: it's only a short step for him to say I'm
Speaker 1: in the same boat. And we saw the tweet today
Speaker 1: where the President says, I can absolutely pardon myself, but
Speaker 1: I don't need to because I didn't do anything wrong. Again,
Speaker 1: laying the groundwork to make the political play of making
Speaker 1: a pardon for himself, which would force the Congress to act.
Speaker 1: Let's turn to a private letter from Trump's legal team
Speaker 1: to Muller that was written in January but printed in
Speaker 1: The New York Times Friday. It's remarkably broad in asserting
Speaker 1: an unlimited right to stop federal investigations and issue pardons,
Speaker 1: and concludes that a president can't obstruct justice. What's your
Speaker 1: reaction to the legal claims in that letter. Well, there's
Speaker 1: a few different legal claims, and I have a different
Speaker 1: reactions either to several of them. I think that the
Speaker 1: president could try to stop this investigation by firing Mr Maller.
Speaker 1: If he did that, uh and um, and he was successful,
Speaker 1: I think then the Congress would have the right to
Speaker 1: impeach and remove him. That is no, not really different
Speaker 1: than the Saturday Night massacre that we saw under the
Speaker 1: Nixon administration. With regard to obstruction of justice, I think
Speaker 1: the president can obstruct justice in certain ways, but uh,
Speaker 1: it is not obstruction of justice. And I mean by
Speaker 1: obstruct justice, I'm talking about a criminal issue. The president
Speaker 1: can make the crime of obstructing justice by destroying documents,
Speaker 1: tampering with witnesses, bribing people. But I don't think that
Speaker 1: firing an inferior officer in his administration would make constant,
Speaker 1: would make the crime of of of obstruction of justice
Speaker 1: because the power the president has the power to do that.
Speaker 1: But for all the criminal obstruction of justice the president
Speaker 1: might do, there's the remedy of an indictment, and for
Speaker 1: any political obstruction of justice you have impeachment. So if
Speaker 1: the president were to bribe a witness to not say
Speaker 1: the truth, that would be a criminal act, subject to
Speaker 1: criminal prosecution and of course impeachment. But if the president
Speaker 1: just fired an inferior officer, then that would be subject,
Speaker 1: in my opinion, only to uh an impeachment proceeding. All right,
Speaker 1: and you have to rely on the Congress for that,
Speaker 1: on the House of Representatives. Thanks so much for joining us. Steve.
Speaker 1: That's Steve bin Hacky is a Miami attorney and a
Speaker 1: former federal prosecutor and associate Independent Council in the Whitewater investigation.
Speaker 1: In one of the most closely watched cases of the term,
Speaker 1: the Supreme Court throughout of finding that a Colorado baker
Speaker 1: illegally discriminated when he refused to make a cake for
Speaker 1: the wedding of the same sex couple. The seven to
Speaker 1: two decision was on narrow grounds and was written by
Speaker 1: Justice Anthony Kennedy. Joining us is Bloomberg New Supreme Court
Speaker 1: reporter Greg's store. Greg, it's the first really full scale
Speaker 1: fight over gay rights since the Court legalized same sex marriage.
Speaker 1: To what it bluntly did the justices in the majority punt.
Speaker 1: They did punt to a large degree. June UH they
Speaker 1: decided the case of Jack Phillips, and it's not clear
Speaker 1: they decided any more than that. And it actually it
Speaker 1: turns out there's even some disagreement as to exactly what
Speaker 1: it means for Jack Phillips. Essentially, they said that when
Speaker 1: considering his case, members of the Colorado Civil Rights Commission
Speaker 1: held an animous towards religion and because of that, the
Speaker 1: finding against him couldn't stand. And it seems that both
Speaker 1: sides can claim victory or are claiming victory. The a
Speaker 1: c l U, which argued for the gay couple, has
Speaker 1: released a couple of press releases and they said the
Speaker 1: court rejected the argument that businesses have a constitutional right
Speaker 1: to discriminate against LGBTQ people. Is that did the court
Speaker 1: actually do that? Well, they certainly didn't. Didn't hold that
Speaker 1: there is a constitutional right to discriminate. There is some
Speaker 1: language in here that is favorable to to advocates of
Speaker 1: gay rights. The court does talk about how in role
Speaker 1: UH anti discrimination laws can be enforced and businesses have
Speaker 1: to comply with them. Now, the court did leave open
Speaker 1: what's going to happen the next time some other business
Speaker 1: has a similar claim claiming I have a speech right
Speaker 1: or religious right not to take part in the same
Speaker 1: sex marriage ceremony or to to lend any support to it. Um.
Speaker 1: So that question is still on the table. But the
Speaker 1: general principle that um that uh, most businesses at least
Speaker 1: do have to comply with antidiscrimination laws, including protections on
Speaker 1: the basis of sexual orientation. That is in fact the case.
Speaker 1: So grig I remember that the oral arguments in this
Speaker 1: case were very dynamic. They went extra time on them.
Speaker 1: So do you think that what happened here is that
Speaker 1: they couldn't get a five member majority on any of
Speaker 1: the other big issues, or they just didn't want to
Speaker 1: tackle the big issues. It's probably more the latter. These
Speaker 1: were questions, these issues, the statements by the members of
Speaker 1: the Civil Rights Commission suggesting that religion has been used
Speaker 1: for some bad purposes over over history, those were issues
Speaker 1: that Justice Kennedy raised during the arguments. He was clearly
Speaker 1: very concerned about that. He clearly UH thought that there
Speaker 1: was some bias against religion lurking among members of the
Speaker 1: Colorado Civil Rights Commission. So Um, it's not. It doesn't
Speaker 1: have the feel of something that um, you know that
Speaker 1: this was their third choice is to decide this case.
Speaker 1: That seemed like the way Justice Kennedy felt like the
Speaker 1: case ought to be decided. So tell us what the
Speaker 1: two justices in the descent. That was Justice Ruth Bader
Speaker 1: Ginsburg wrote the descent, and she was joined by Justice
Speaker 1: Sonia Sotomayor. Tell us what the descent said. So, so
Speaker 1: it was a somewhat muted descent. Um. But what essentially
Speaker 1: what you said it said was, um, look, these were
Speaker 1: a couple of comments by members of a commission um,
Speaker 1: at least one of which maybe both of which are
Speaker 1: no longer on the commission. Uh. This is a case
Speaker 1: that went through a lot of process and through an
Speaker 1: administrative law judge, um, through uh the courts um, and
Speaker 1: so uh she essentially said, it's hard to see how
Speaker 1: that you know, any animus that might have existed among
Speaker 1: you know, as demonstrated by a couple of comments, how
Speaker 1: that should be allowed to override in this particular case
Speaker 1: of this general principle that uh that that uh, gay
Speaker 1: couples are entitled to be protected from discrimination under under
Speaker 1: Colorado Civil rights laws. Could this have any significance or
Speaker 1: point toward what may happen with the Trump travel ban,
Speaker 1: where the allegation is that it was based on animus.
Speaker 1: I don't want to read too much into this. I
Speaker 1: think what you can definitely see in this case that
Speaker 1: so there are seven justices in the majority, Justices Briar
Speaker 1: and Kagan, who uh you tended me with the liberal
Speaker 1: wing joined the majority a little bit of a consensus ruling. Um.
Speaker 1: One can imagine that that sort of model may happen
Speaker 1: again with the travel band very different issues. Remains to
Speaker 1: be seen. Um. It's you know, hard to sort of
Speaker 1: project too much from one case to the other, but
Speaker 1: it's certainly at least a sign that, uh, in one case,
Speaker 1: in this case, some members of the court were able
Speaker 1: to bridge whatever differences they had. Well, the case have
Speaker 1: any impact at all on states that have laws that
Speaker 1: bar discrimination based on sexual orientation by establishments that do
Speaker 1: business with the public. Or is it just that it
Speaker 1: won't have any effect on anything at all? Well, it
Speaker 1: will certainly be cited an awful lot because there is language,
Speaker 1: as we were discussing before that that says that in general,
Speaker 1: laws like that are enforceable against against private businesses, whether
Speaker 1: it's despositive, whether it tells you what the answer is
Speaker 1: when you get a case like this that remains to
Speaker 1: be seen. There is another case I should say that
Speaker 1: the Court could agree to take up in the next
Speaker 1: couple of weeks and involves a florist in Washington State,
Speaker 1: very similar things. She didn't want to provide flowers for
Speaker 1: the same sex wedding, and so it's possible the Court
Speaker 1: will will decide we're going to take up that case
Speaker 1: and actually decide these big questions. So, Greg, did you
Speaker 1: see you know, the language that Justice Kennedy has used
Speaker 1: in the cases involving gay rights. Did you see that
Speaker 1: in the opinion there was some of that. Uh, no question, Um,
Speaker 1: let me, I'll find it here. But he talked about
Speaker 1: the you know, the general right of gay people to
Speaker 1: be put it, uh, not treated as social outcasts or
Speaker 1: inferior in dignity and worth. Um. So he certainly reaffirmed
Speaker 1: that notion that was part of his gay marriage ruling
Speaker 1: from fifteen. At the same time, however, he said that
Speaker 1: quotes of the religious and philosophical objections to gay marriage
Speaker 1: are protective views and in some instances protected forms of expression.
Speaker 1: So he was trying to say that both sides in
Speaker 1: this debate, both gay people who are entitled to equality
Speaker 1: in people who have a religious opposition, both are entitled
Speaker 1: to respect. Well, we have a lot of other cases,
Speaker 1: high profile coming up, and we'll see if we get
Speaker 1: any blockbuster rulings with those. Thanks so much, Greg, That's
Speaker 1: Bloomberg News, Supreme Court reporter of Gregg's Store. Thanks for
Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and
Speaker 1: listen to the show on Apple podcast, SoundCloud, and on
Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is
Speaker 1: Bloomberg