WEBVTT - Kavanaugh Hears First Oral Arguments on Supreme Court

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash Podcasts. We're live from

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<v Speaker 1>the Bloomberg Interactive Broker studio today, Brett Kavanaugh heard his

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<v Speaker 1>first oral arguments as a Supreme Court justice, taking his

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<v Speaker 1>seat on the far right of the bench as a

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<v Speaker 1>junior justice. After a long and contentious confirmation process. At

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<v Speaker 1>a White House ceremony last night, Kavanaugh promised to serve

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<v Speaker 1>on the Court without animosity over the confirmation process. Mr President,

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<v Speaker 1>thank you for the great honor of appointing me to

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<v Speaker 1>serve as a Justice of the Supreme Court. Joining me

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<v Speaker 1>is Greg Store Bloomberg new Supreme Court reporter who was

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<v Speaker 1>there for those first oral arguments? Greg, I understand there

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<v Speaker 1>were lines outside the Court house this morning. What was

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<v Speaker 1>it like inside the court for Kavanaugh's first oral arguments?

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<v Speaker 1>You know, June, it was remarkably light. It was almost

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<v Speaker 1>there was almost an error frivolity to the arguments. Um

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<v Speaker 1>not especially huge cases they have to do with sentencing

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<v Speaker 1>for gun crimes. Um, But there were plenty of jokes

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<v Speaker 1>that the session started off with. Uh. Right before the argument,

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<v Speaker 1>Justice Lena Kagan was was quietly joking with new Justice Kavanaugh.

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<v Speaker 1>And then later on in the argument, there was a

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<v Speaker 1>moment where Justice Sonya so so Do Mayor appeared to

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<v Speaker 1>playfully pinch Justice Neil gorsch Um to demonstrate a point

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<v Speaker 1>a question she was asking about the reach of this

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<v Speaker 1>federal statute. Uh. No disruptions in the courtroom. Uh no,

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<v Speaker 1>No signs for those couple of hours that there had

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<v Speaker 1>been this incredibly contentious fight. Do you believe that this

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<v Speaker 1>was deliberate on the part of the justice? Is this

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<v Speaker 1>very lightheartedness? I do it. It's hard for not to be.

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<v Speaker 1>And you know, certainly I mentioned Justice Kagan. She is

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<v Speaker 1>somebody who's very much of coalition builder. She's somebody who

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<v Speaker 1>cares off a lot about having good relations with with

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<v Speaker 1>her colleagues, including the ones who don't agree with her,

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<v Speaker 1>because she knows she might neither votes and in some cases,

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<v Speaker 1>so it wasn't surprising to see her being very friendly

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<v Speaker 1>towards Justice Kavanaugh. And I think you know, all the

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<v Speaker 1>members of the Court would like to be able to

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<v Speaker 1>take a deep breath and and you know, stay out

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<v Speaker 1>of this political fray and just focus on uh, you know,

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<v Speaker 1>you know, going about business as normal. And that was

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<v Speaker 1>essentially what they were trying to do today. Judge Kavanaugh

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<v Speaker 1>was known as an act or, should say, Justice Kavanaugh

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<v Speaker 1>was known as an active question or on the d C.

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<v Speaker 1>Circuit Court of Appeals. Did he ask many questions today?

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<v Speaker 1>He did? Um, He asked, I believe a total of

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<v Speaker 1>eight questions in the two one hour arguments. UM. In

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<v Speaker 1>the first case, he asked questions of both sides. In

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<v Speaker 1>the second case, just asking questions of the lawyer for

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<v Speaker 1>the defendant. In the case, Um, he was focusing, among

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<v Speaker 1>other things, on a key precedent about the reach of

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<v Speaker 1>this federal law. In the first case, asking both sides,

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<v Speaker 1>how do you square your argument with what we said

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<v Speaker 1>and what the Supreme Court said in this case? Uh.

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<v Speaker 1>He had definitely done his homework before the argument talking

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<v Speaker 1>about President Okay, no tell us about his duties as

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<v Speaker 1>the junior justice. Yeah, So, as you mentioned, he saits

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<v Speaker 1>at the far end of the bench. Everything at the

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<v Speaker 1>Supreme Court is done on the basis of seniority. He's

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<v Speaker 1>the most junior, so he's sitting in the most junior

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<v Speaker 1>spot on the bench. They're going to have a private

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<v Speaker 1>conference later this week where they'll talk about pending cases.

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<v Speaker 1>When they talk about a case, he'll be the last

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<v Speaker 1>justice to speak uh in that discussion. Uh. And then

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<v Speaker 1>there's this duty that the junior justice always has when

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<v Speaker 1>they're in that conference room and it's just the nine

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<v Speaker 1>of them. When everybody comes to the door to deliver

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<v Speaker 1>something or pick something up, Uh, it's the junior justice

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<v Speaker 1>who has to get up out of his or her

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<v Speaker 1>chair and answer the door. Um, and then you know,

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<v Speaker 1>pass on to some other justice whatever was was delivered.

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<v Speaker 1>Justice Stephen Bryer had to do that for more than

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<v Speaker 1>eleven years, and uh, Justice Kavana will we'll start doing

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<v Speaker 1>it today. And Judge Neil Gorcich only had to do

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<v Speaker 1>it for about a year. So there's no fairness there. Now,

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<v Speaker 1>what cases are coming up that might draw more attention

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<v Speaker 1>from the public and put more attention on Kavanaugh. Yes,

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<v Speaker 1>So so this term that the cases they've granted are

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<v Speaker 1>almost uniformly pretty low profile things. One interesting case they

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<v Speaker 1>have granted having scheduled an argument yet could be December

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<v Speaker 1>is a case that could affect Donald Trump's pardening power

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<v Speaker 1>in the reach of it. It has to do with

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<v Speaker 1>the double jeopardy clause, and essentially what it could mean

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<v Speaker 1>is that a Trump pardon would also knock out some

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<v Speaker 1>state law crimes that that a person may have been

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<v Speaker 1>involved in. UM So that's one to watch. And then

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<v Speaker 1>later on in the term, maybe next year, the Court

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<v Speaker 1>could get back into the fray on partisan jurymandering. They

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<v Speaker 1>could take up a case on federal job discrimination and

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<v Speaker 1>whether the ban on job discrimination includes discrimin nation on

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<v Speaker 1>the basis of sexual orientation. And they could have a

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<v Speaker 1>case involving the DOCTA fight the UH the Obama policy

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<v Speaker 1>that deferred deportation for some some young immigrants, and President

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<v Speaker 1>Trump is trying to rescind that that's an issue they

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<v Speaker 1>could could take up. And then of course there's a

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<v Speaker 1>Moler investigation. There are issues that could come from that

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<v Speaker 1>that could be huge deals here at the Court early

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<v Speaker 1>next year. At Princeton University last Friday, Justice is Elena

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<v Speaker 1>Kagan and Sonya Soto Mayor admitted they're concerned about a

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<v Speaker 1>public perception that the Court is being politicized. Will there

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<v Speaker 1>be pressure on Kavanaugh to recuse himself in some of

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<v Speaker 1>those cases that you mentioned that involved President Trump or

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<v Speaker 1>things that might apply to possible impeachment proceedings. There certainly

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<v Speaker 1>will be pressure, but there's no requirement. Um. It's clear

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<v Speaker 1>that Justice has has to recuse if if he or

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<v Speaker 1>she has a financial interest in a case. But when

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<v Speaker 1>we're talking about the appearance of a conflict because you

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<v Speaker 1>may have said something in the past about an issue

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<v Speaker 1>or a litigant, Justices had broad discretion and they rarely

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<v Speaker 1>do recuse themselves themselves. So Ruth Bader Ginsburgh has not

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<v Speaker 1>recused herself even though she called Donald Trump a faker.

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<v Speaker 1>She hasn't refused herself from any Trump related cases. Anton

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<v Speaker 1>and Scalia didn't refuse in cases involved in a case

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<v Speaker 1>involving Vice President Cheney, even though the two of them

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<v Speaker 1>went hunting together. Uh. It's really really rare for a

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<v Speaker 1>justice to recuse for that sort of a reason, and

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<v Speaker 1>I would be very surprised if Justice Kavanaugh did either.

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<v Speaker 1>Only thirty seconds here, Greg, I have one last question.

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<v Speaker 1>Did Justice Roberts say anything? Was there any acknowledgment of Kavanaugh? Yes,

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<v Speaker 1>he acknowledged Justice Kavanaugh. He said, Uh, he wished him

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<v Speaker 1>a long and happy career in our common calling, pretty

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<v Speaker 1>much standard language he uses whenever somebody knew joins the courting.

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<v Speaker 1>All right, thanks so much. That's Greg Store, Bloomberg News

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<v Speaker 1>Supreme Court Rewarder. We're live from the Bloomberg Interactive Broker studio.

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<v Speaker 1>Over the summer, President Trump announced that White House counts

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<v Speaker 1>old Don McGann would be stepping down from his role

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<v Speaker 1>after the confirmation of Brett Kavanaugh to the Supreme Court.

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<v Speaker 1>At the time, Trump speculated about what McGann might do next.

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<v Speaker 1>He'll be moving on probably the private sector, maybe the

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<v Speaker 1>private sector, and he'll do very well. But he's he's

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<v Speaker 1>done an excellent Joel joining me is Alberto Gonzalez, former

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<v Speaker 1>U s Attorney General and White House Council. He is

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<v Speaker 1>dean of the Belmont University School of Law. Thanks for

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<v Speaker 1>joining us, Judge, Hello, how you doing okay? Well, let's

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<v Speaker 1>start with your assessment of the job Don McGann has

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<v Speaker 1>done in the job that you once occupied when George W.

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<v Speaker 1>Bush was president. I think my most measures, and only

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<v Speaker 1>by the words of the President, he's done a good job.

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<v Speaker 1>Although much of I have to tell you that much

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<v Speaker 1>of the work of the council goes unnoticed, It's unspoken about,

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<v Speaker 1>and most council would say, you know, I shouldn't be

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<v Speaker 1>in the news the work of the council. I'm like

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<v Speaker 1>the work of the Attorney General generally your staffer, and

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<v Speaker 1>that the publicity and the good works of the president

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<v Speaker 1>come first, and the things that you do generally are

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<v Speaker 1>not publicized. But I think as a general matter, Domagann

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<v Speaker 1>is praised primarily for his work in getting the president's

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<v Speaker 1>nominees confirmed, uh, not only to the Supreme Court, but

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<v Speaker 1>also to the lower courts, and I think that will

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<v Speaker 1>see meant President Trump's legacy police several generations. He is

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<v Speaker 1>seen as one of the architects of Trump's success in

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<v Speaker 1>that area. I want to go into just a little

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<v Speaker 1>bit about the Brett Kavanaugh confirmation because, according to The

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<v Speaker 1>New York Times, McGann made sure that some relevant questions

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<v Speaker 1>were not explored in the FBI investigation of Brett Kavanaugh,

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<v Speaker 1>and because of quote, potentially disastrous for Kavanaugh's chances of

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<v Speaker 1>confirmation was that outside his legal authority as White House counsel, No,

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<v Speaker 1>it would have been perfectly appropriate for the White House.

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<v Speaker 1>As a general matter, would come through the White House

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<v Speaker 1>Council to um give parameters to the FBI in terms

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<v Speaker 1>of the breadth of their examination. Otherwise, you know, but

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<v Speaker 1>if you're operating under a strict time frame, So I

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<v Speaker 1>would say no. Now, there obviously can be political consequences

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<v Speaker 1>to giving that kind of direction. And I don't know

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<v Speaker 1>exactly what happened, what was said, what the direction was.

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<v Speaker 1>But obviously some of the political opponents might claim that

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<v Speaker 1>the direction given by the White House made it would

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<v Speaker 1>have made it more difficult to uncover anything that would

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<v Speaker 1>have been negative about Brett Kavanaugh. But after whether or

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<v Speaker 1>not that happened and who was ultimately responsible, you know,

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<v Speaker 1>I just have no idea. Turning now to Robert Mueller's investigation,

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<v Speaker 1>McGan met with Special Council Robert Mueller's team for some

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<v Speaker 1>thirty hours in the Russia investigation, which caused more of

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<v Speaker 1>a rift with Trump. Was he required to do so

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<v Speaker 1>and were there any restrictions on what he could say? Uh?

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<v Speaker 1>Was he required? I would say probably required. Uh, if

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<v Speaker 1>you're talking about personal conduct, uh, personal wrongdoing by the president. Yes,

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<v Speaker 1>Don McGann. Don McGann is not the lawyer for Donald Trump.

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<v Speaker 1>Don McGann as a government lawyer, and therefore, yes, he

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<v Speaker 1>would be expected to come to cooperate with the special prosecutor.

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<v Speaker 1>When I was a White House counsel, we had an

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<v Speaker 1>investigation connection with the Valerie Playm investigation, and I told

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<v Speaker 1>President Bush I was not his lawyer. I helped him

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<v Speaker 1>get a private lawyer, and when I was asked by

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<v Speaker 1>the Special Counsel Pat fiss Gerald to provide information, I voluntarily,

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<v Speaker 1>you know, sat before the grand jury again because I

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<v Speaker 1>don't represent I don't the Council does not represent the

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<v Speaker 1>president and your government lawyer. As a government lawyer, you

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<v Speaker 1>have an obligation to cooperate fully with investigation by the

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<v Speaker 1>Department of Justice. Trump has indicated several times that he

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<v Speaker 1>sees the FBI and the Justice Department as working for him.

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<v Speaker 1>Do you think he understands the concepts of no attorney

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<v Speaker 1>client privilege when he's talking to Don McGann. I don't

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<v Speaker 1>know whether or not he understands that he understands the

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<v Speaker 1>limits of privilege. Obviously, he's not a lawyer. One of

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<v Speaker 1>the first things that I did when I became White

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<v Speaker 1>House Council uh in dealing with a non lawyer President

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<v Speaker 1>and George every bushes. We would have these kind of

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<v Speaker 1>conversations about about legal issues, the legal authorities of the president,

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<v Speaker 1>legal protections of the president. We talked about the kind

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<v Speaker 1>of you know, judicial philosophy, uh that he might think

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<v Speaker 1>about in connection with making an appointment. So one of

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<v Speaker 1>the responsibilities I think of a White House council a

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<v Speaker 1>good one, is to have these kind of conversations with

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<v Speaker 1>the president as an initial matter, so that there's no

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<v Speaker 1>misunderstanding about the scope of privilege or protections that a

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<v Speaker 1>president might have with respect to his both official and

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<v Speaker 1>unofficial conducts. Can you explain as White House count So

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<v Speaker 1>at some points you may be giving advice that the

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<v Speaker 1>president doesn't want to hear. Do you have to keep

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<v Speaker 1>a certain good working relationship with the president or or

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<v Speaker 1>you know you should leave the post. Well, obviously a

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<v Speaker 1>good working relationship is important. It makes you more effective.

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<v Speaker 1>But you have an obligation to be truthful and and

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<v Speaker 1>uh be complete in your advice to the president. And yes,

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<v Speaker 1>there are times when I had to say, as president,

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<v Speaker 1>that's you know, we don't believe you have a legal

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<v Speaker 1>authority to do this now as a as a legal matter,

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<v Speaker 1>as a constitutional matter, the president's head of the executive branch,

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<v Speaker 1>can override the advice of the Council, can override the

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<v Speaker 1>bos the Astorney General, and make a decision as what

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<v Speaker 1>is a legal position for the for the executive branch. Now,

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<v Speaker 1>there are serious political consequences in doing so. As a

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<v Speaker 1>general matter, you want the President of States following the

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<v Speaker 1>advice of the Council and certainly following the advice of

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<v Speaker 1>the Attorney General, because it is when when that decision

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<v Speaker 1>is made by the President and that decision is challenge,

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<v Speaker 1>it will be the Attorney General and the Department of

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<v Speaker 1>Justice that defends the present's actions in the court. All right,

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<v Speaker 1>thank you so much for joining us on this show. Judge.

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<v Speaker 1>That's Alberto Gonzalez, former US Attorney General and White House Council.

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<v Speaker 1>He is now Dean of the Belmont University School of Law.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg Ye