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. We're live from
Speaker 1: the Bloomberg Interactive Broker studio today, Brett Kavanaugh heard his
Speaker 1: first oral arguments as a Supreme Court justice, taking his
Speaker 1: seat on the far right of the bench as a
Speaker 1: junior justice. After a long and contentious confirmation process. At
Speaker 1: a White House ceremony last night, Kavanaugh promised to serve
Speaker 1: on the Court without animosity over the confirmation process. Mr President,
Speaker 1: thank you for the great honor of appointing me to
Speaker 1: serve as a Justice of the Supreme Court. Joining me
Speaker 1: is Greg Store Bloomberg new Supreme Court reporter who was
Speaker 1: there for those first oral arguments? Greg, I understand there
Speaker 1: were lines outside the Court house this morning. What was
Speaker 1: it like inside the court for Kavanaugh's first oral arguments?
Speaker 1: You know, June, it was remarkably light. It was almost
Speaker 1: there was almost an error frivolity to the arguments. Um
Speaker 1: not especially huge cases they have to do with sentencing
Speaker 1: for gun crimes. Um, But there were plenty of jokes
Speaker 1: that the session started off with. Uh. Right before the argument,
Speaker 1: Justice Lena Kagan was was quietly joking with new Justice Kavanaugh.
Speaker 1: And then later on in the argument, there was a
Speaker 1: moment where Justice Sonya so so Do Mayor appeared to
Speaker 1: playfully pinch Justice Neil gorsch Um to demonstrate a point
Speaker 1: a question she was asking about the reach of this
Speaker 1: federal statute. Uh. No disruptions in the courtroom. Uh no,
Speaker 1: No signs for those couple of hours that there had
Speaker 1: been this incredibly contentious fight. Do you believe that this
Speaker 1: was deliberate on the part of the justice? Is this
Speaker 1: very lightheartedness? I do it. It's hard for not to be.
Speaker 1: And you know, certainly I mentioned Justice Kagan. She is
Speaker 1: somebody who's very much of coalition builder. She's somebody who
Speaker 1: cares off a lot about having good relations with with
Speaker 1: her colleagues, including the ones who don't agree with her,
Speaker 1: because she knows she might neither votes and in some cases,
Speaker 1: so it wasn't surprising to see her being very friendly
Speaker 1: towards Justice Kavanaugh. And I think you know, all the
Speaker 1: members of the Court would like to be able to
Speaker 1: take a deep breath and and you know, stay out
Speaker 1: of this political fray and just focus on uh, you know,
Speaker 1: you know, going about business as normal. And that was
Speaker 1: essentially what they were trying to do today. Judge Kavanaugh
Speaker 1: was known as an act or, should say, Justice Kavanaugh
Speaker 1: was known as an active question or on the d C.
Speaker 1: Circuit Court of Appeals. Did he ask many questions today?
Speaker 1: He did? Um, He asked, I believe a total of
Speaker 1: eight questions in the two one hour arguments. UM. In
Speaker 1: the first case, he asked questions of both sides. In
Speaker 1: the second case, just asking questions of the lawyer for
Speaker 1: the defendant. In the case, Um, he was focusing, among
Speaker 1: other things, on a key precedent about the reach of
Speaker 1: this federal law. In the first case, asking both sides,
Speaker 1: how do you square your argument with what we said
Speaker 1: and what the Supreme Court said in this case? Uh.
Speaker 1: He had definitely done his homework before the argument talking
Speaker 1: about President Okay, no tell us about his duties as
Speaker 1: the junior justice. Yeah, So, as you mentioned, he saits
Speaker 1: at the far end of the bench. Everything at the
Speaker 1: Supreme Court is done on the basis of seniority. He's
Speaker 1: the most junior, so he's sitting in the most junior
Speaker 1: spot on the bench. They're going to have a private
Speaker 1: conference later this week where they'll talk about pending cases.
Speaker 1: When they talk about a case, he'll be the last
Speaker 1: justice to speak uh in that discussion. Uh. And then
Speaker 1: there's this duty that the junior justice always has when
Speaker 1: they're in that conference room and it's just the nine
Speaker 1: of them. When everybody comes to the door to deliver
Speaker 1: something or pick something up, Uh, it's the junior justice
Speaker 1: who has to get up out of his or her
Speaker 1: chair and answer the door. Um, and then you know,
Speaker 1: pass on to some other justice whatever was was delivered.
Speaker 1: Justice Stephen Bryer had to do that for more than
Speaker 1: eleven years, and uh, Justice Kavana will we'll start doing
Speaker 1: it today. And Judge Neil Gorcich only had to do
Speaker 1: it for about a year. So there's no fairness there. Now,
Speaker 1: what cases are coming up that might draw more attention
Speaker 1: from the public and put more attention on Kavanaugh. Yes,
Speaker 1: So so this term that the cases they've granted are
Speaker 1: almost uniformly pretty low profile things. One interesting case they
Speaker 1: have granted having scheduled an argument yet could be December
Speaker 1: is a case that could affect Donald Trump's pardening power
Speaker 1: in the reach of it. It has to do with
Speaker 1: the double jeopardy clause, and essentially what it could mean
Speaker 1: is that a Trump pardon would also knock out some
Speaker 1: state law crimes that that a person may have been
Speaker 1: involved in. UM So that's one to watch. And then
Speaker 1: later on in the term, maybe next year, the Court
Speaker 1: could get back into the fray on partisan jurymandering. They
Speaker 1: could take up a case on federal job discrimination and
Speaker 1: whether the ban on job discrimination includes discrimin nation on
Speaker 1: the basis of sexual orientation. And they could have a
Speaker 1: case involving the DOCTA fight the UH the Obama policy
Speaker 1: that deferred deportation for some some young immigrants, and President
Speaker 1: Trump is trying to rescind that that's an issue they
Speaker 1: could could take up. And then of course there's a
Speaker 1: Moler investigation. There are issues that could come from that
Speaker 1: that could be huge deals here at the Court early
Speaker 1: next year. At Princeton University last Friday, Justice is Elena
Speaker 1: Kagan and Sonya Soto Mayor admitted they're concerned about a
Speaker 1: public perception that the Court is being politicized. Will there
Speaker 1: be pressure on Kavanaugh to recuse himself in some of
Speaker 1: those cases that you mentioned that involved President Trump or
Speaker 1: things that might apply to possible impeachment proceedings. There certainly
Speaker 1: will be pressure, but there's no requirement. Um. It's clear
Speaker 1: that Justice has has to recuse if if he or
Speaker 1: she has a financial interest in a case. But when
Speaker 1: we're talking about the appearance of a conflict because you
Speaker 1: may have said something in the past about an issue
Speaker 1: or a litigant, Justices had broad discretion and they rarely
Speaker 1: do recuse themselves themselves. So Ruth Bader Ginsburgh has not
Speaker 1: recused herself even though she called Donald Trump a faker.
Speaker 1: She hasn't refused herself from any Trump related cases. Anton
Speaker 1: and Scalia didn't refuse in cases involved in a case
Speaker 1: involving Vice President Cheney, even though the two of them
Speaker 1: went hunting together. Uh. It's really really rare for a
Speaker 1: justice to recuse for that sort of a reason, and
Speaker 1: I would be very surprised if Justice Kavanaugh did either.
Speaker 1: Only thirty seconds here, Greg, I have one last question.
Speaker 1: Did Justice Roberts say anything? Was there any acknowledgment of Kavanaugh? Yes,
Speaker 1: he acknowledged Justice Kavanaugh. He said, Uh, he wished him
Speaker 1: a long and happy career in our common calling, pretty
Speaker 1: much standard language he uses whenever somebody knew joins the courting.
Speaker 1: All right, thanks so much. That's Greg Store, Bloomberg News
Speaker 1: Supreme Court Rewarder. We're live from the Bloomberg Interactive Broker studio.
Speaker 1: Over the summer, President Trump announced that White House counts
Speaker 1: old Don McGann would be stepping down from his role
Speaker 1: after the confirmation of Brett Kavanaugh to the Supreme Court.
Speaker 1: At the time, Trump speculated about what McGann might do next.
Speaker 1: He'll be moving on probably the private sector, maybe the
Speaker 1: private sector, and he'll do very well. But he's he's
Speaker 1: done an excellent Joel joining me is Alberto Gonzalez, former
Speaker 1: U s Attorney General and White House Council. He is
Speaker 1: dean of the Belmont University School of Law. Thanks for
Speaker 1: joining us, Judge, Hello, how you doing okay? Well, let's
Speaker 1: start with your assessment of the job Don McGann has
Speaker 1: done in the job that you once occupied when George W.
Speaker 1: Bush was president. I think my most measures, and only
Speaker 1: by the words of the President, he's done a good job.
Speaker 1: Although much of I have to tell you that much
Speaker 1: of the work of the council goes unnoticed, It's unspoken about,
Speaker 1: and most council would say, you know, I shouldn't be
Speaker 1: in the news the work of the council. I'm like
Speaker 1: the work of the Attorney General generally your staffer, and
Speaker 1: that the publicity and the good works of the president
Speaker 1: come first, and the things that you do generally are
Speaker 1: not publicized. But I think as a general matter, Domagann
Speaker 1: is praised primarily for his work in getting the president's
Speaker 1: nominees confirmed, uh, not only to the Supreme Court, but
Speaker 1: also to the lower courts, and I think that will
Speaker 1: see meant President Trump's legacy police several generations. He is
Speaker 1: seen as one of the architects of Trump's success in
Speaker 1: that area. I want to go into just a little
Speaker 1: bit about the Brett Kavanaugh confirmation because, according to The
Speaker 1: New York Times, McGann made sure that some relevant questions
Speaker 1: were not explored in the FBI investigation of Brett Kavanaugh,
Speaker 1: and because of quote, potentially disastrous for Kavanaugh's chances of
Speaker 1: confirmation was that outside his legal authority as White House counsel, No,
Speaker 1: it would have been perfectly appropriate for the White House.
Speaker 1: As a general matter, would come through the White House
Speaker 1: Council to um give parameters to the FBI in terms
Speaker 1: of the breadth of their examination. Otherwise, you know, but
Speaker 1: if you're operating under a strict time frame, So I
Speaker 1: would say no. Now, there obviously can be political consequences
Speaker 1: to giving that kind of direction. And I don't know
Speaker 1: exactly what happened, what was said, what the direction was.
Speaker 1: But obviously some of the political opponents might claim that
Speaker 1: the direction given by the White House made it would
Speaker 1: have made it more difficult to uncover anything that would
Speaker 1: have been negative about Brett Kavanaugh. But after whether or
Speaker 1: not that happened and who was ultimately responsible, you know,
Speaker 1: I just have no idea. Turning now to Robert Mueller's investigation,
Speaker 1: McGan met with Special Council Robert Mueller's team for some
Speaker 1: thirty hours in the Russia investigation, which caused more of
Speaker 1: a rift with Trump. Was he required to do so
Speaker 1: and were there any restrictions on what he could say? Uh?
Speaker 1: Was he required? I would say probably required. Uh, if
Speaker 1: you're talking about personal conduct, uh, personal wrongdoing by the president. Yes,
Speaker 1: Don McGann. Don McGann is not the lawyer for Donald Trump.
Speaker 1: Don McGann as a government lawyer, and therefore, yes, he
Speaker 1: would be expected to come to cooperate with the special prosecutor.
Speaker 1: When I was a White House counsel, we had an
Speaker 1: investigation connection with the Valerie Playm investigation, and I told
Speaker 1: President Bush I was not his lawyer. I helped him
Speaker 1: get a private lawyer, and when I was asked by
Speaker 1: the Special Counsel Pat fiss Gerald to provide information, I voluntarily,
Speaker 1: you know, sat before the grand jury again because I
Speaker 1: don't represent I don't the Council does not represent the
Speaker 1: president and your government lawyer. As a government lawyer, you
Speaker 1: have an obligation to cooperate fully with investigation by the
Speaker 1: Department of Justice. Trump has indicated several times that he
Speaker 1: sees the FBI and the Justice Department as working for him.
Speaker 1: Do you think he understands the concepts of no attorney
Speaker 1: client privilege when he's talking to Don McGann. I don't
Speaker 1: know whether or not he understands that he understands the
Speaker 1: limits of privilege. Obviously, he's not a lawyer. One of
Speaker 1: the first things that I did when I became White
Speaker 1: House Council uh in dealing with a non lawyer President
Speaker 1: and George every bushes. We would have these kind of
Speaker 1: conversations about about legal issues, the legal authorities of the president,
Speaker 1: legal protections of the president. We talked about the kind
Speaker 1: of you know, judicial philosophy, uh that he might think
Speaker 1: about in connection with making an appointment. So one of
Speaker 1: the responsibilities I think of a White House council a
Speaker 1: good one, is to have these kind of conversations with
Speaker 1: the president as an initial matter, so that there's no
Speaker 1: misunderstanding about the scope of privilege or protections that a
Speaker 1: president might have with respect to his both official and
Speaker 1: unofficial conducts. Can you explain as White House count So
Speaker 1: at some points you may be giving advice that the
Speaker 1: president doesn't want to hear. Do you have to keep
Speaker 1: a certain good working relationship with the president or or
Speaker 1: you know you should leave the post. Well, obviously a
Speaker 1: good working relationship is important. It makes you more effective.
Speaker 1: But you have an obligation to be truthful and and
Speaker 1: uh be complete in your advice to the president. And yes,
Speaker 1: there are times when I had to say, as president,
Speaker 1: that's you know, we don't believe you have a legal
Speaker 1: authority to do this now as a as a legal matter,
Speaker 1: as a constitutional matter, the president's head of the executive branch,
Speaker 1: can override the advice of the Council, can override the
Speaker 1: bos the Astorney General, and make a decision as what
Speaker 1: is a legal position for the for the executive branch. Now,
Speaker 1: there are serious political consequences in doing so. As a
Speaker 1: general matter, you want the President of States following the
Speaker 1: advice of the Council and certainly following the advice of
Speaker 1: the Attorney General, because it is when when that decision
Speaker 1: is made by the President and that decision is challenge,
Speaker 1: it will be the Attorney General and the Department of
Speaker 1: Justice that defends the present's actions in the court. All right,
Speaker 1: thank you so much for joining us on this show. Judge.
Speaker 1: That's Alberto Gonzalez, former US Attorney General and White House Council.
Speaker 1: He is now Dean of the Belmont University School of Law.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
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