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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It was Trump's

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Speaker 1: biggest showdown yet at the Supreme Court in a case

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Speaker 1: that could redefine presidential powers. More than four months after

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Speaker 1: letting Trump's travel Band take full effect, the Justice has

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Speaker 1: heard arguments this morning about a policy that opponents contend

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Speaker 1: unconstitutionally singles out Muslims while doing little to prevent terrorism.

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Speaker 1: Here's Justice Elena Kagan. In the context of this virulent

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Speaker 1: anti Semitism, what emerges is a proclamation that says, uh,

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Speaker 1: no one shall enter from Israel. Do you say mandel

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Speaker 1: puts an end to judicial review of that set of facts?

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Speaker 1: That was Justice Elena Kagan, and my guest is Kevin Johnson,

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Speaker 1: professor at U C. Davis School of Law. Kevin tell

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Speaker 1: us the constitutional question the justices will decide, Well, there's

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Speaker 1: two questions before the Supreme Court, and one of them

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Speaker 1: is whether the third version of the travel band violates

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Speaker 1: the Establishment Clause of the Constitution and unlawfully discriminates against

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Speaker 1: um non citizens of a particular religion Muslims in this instance.

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Speaker 1: The second question is whether the travel band violates the

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Speaker 1: Immigration Nationality Act by discriminating on the basis basis of

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Speaker 1: nationality or whether it's authorized by the Immigration Nationality Act

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Speaker 1: as as a way of protecting national security. UH. Those

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Speaker 1: are basically the two issues before the court. Most observers

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Speaker 1: say that the questioning appears to indicate that Trump is

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Speaker 1: likely to win the case. Chief Justice John Roberts and

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Speaker 1: Justice Anthony Kennedy signaling their support. If you believe what

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Speaker 1: the question seemed to indicate, what was their focus? I

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Speaker 1: think their their focus was on national security and what

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Speaker 1: can the president do to protect the national security the

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Speaker 1: United States? And when can immigration actions be taken by

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Speaker 1: the president to ensure the national security. I do think

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Speaker 1: it's important to note that it's hard to predict how

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Speaker 1: the Supreme Court is going to rule from the youral arguments.

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Speaker 1: Most people who heard the oral arguments in the Affordable

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Speaker 1: Care Act case predicted that the Obama administration was going

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Speaker 1: to be a loser in that case. And as we

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Speaker 1: all recall, the Affordable Care Act was upheld by the

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Speaker 1: Marine Court. So it's always hard to tell. Uh. And

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Speaker 1: we we get a sense from the Chief Justice and

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Speaker 1: from Justice Kennedy that they're worried about national security. Get

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Speaker 1: a sense from a justice course that's he's worried about

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Speaker 1: whether this case should belong and federal court at this

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Speaker 1: point at all time at all. But then also from

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Speaker 1: Justice Kagan and from Justice Sotomayor, uh, you hear concerns

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Speaker 1: about scrimination uh in in immigration UM procedures like this.

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Speaker 1: So so I do think that while there's some indication

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Speaker 1: that the majority of the Court may side with President

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Speaker 1: Trump on this third version of the travel band, it's

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Speaker 1: hard to predict and it's hazardous predict. Kevin, how much

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Speaker 1: does the court allowing the order to take effect while

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Speaker 1: the case awaited Supreme Court review signaled the results here?

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Speaker 1: I think that it's UM it ain't deciding whether to

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Speaker 1: stay uh an injunction as the Court was deciding in

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Speaker 1: this instance UM UH is an indication that UM that

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Speaker 1: they were sympathetic to the administration's concerns. At the same time, UH.

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Speaker 1: The oral argument and you know, the briefing in the

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Speaker 1: case is the first time that the justices were able

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Speaker 1: to get deep down into the legal weeds, UH so

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Speaker 1: to speak uh and look carefully at the or or

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Speaker 1: and evaluate its constitutionality and its uh lawfulness under under

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Speaker 1: the Immigration Nationality Act. So I do think while there

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Speaker 1: may be some indication from the granting of the stay

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Speaker 1: and allowing the trail band to go in effect, that

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Speaker 1: the Court was more sympathetic than it was the previous

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Speaker 1: versions of the travel band, it's not uh, it's not

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Speaker 1: certainly not a done deal. Now. There was some questioning

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Speaker 1: by several of the justices and Justice Kennedy included about

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Speaker 1: whether statements Trump made during the presidential campaign and tweets

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Speaker 1: should be considered in evaluating the administration's ban. How do

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Speaker 1: you feel Trump's campaign pledges and tweets should weigh in

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Speaker 1: this argument? Well, this is a very big issue. In

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Speaker 1: a case in the Fourth Circuit that struck down the

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Speaker 1: travel ban on establishment clause grounds, it looked very carefully

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Speaker 1: at Trump's tweets, a candidate, Trump's statements UH and found

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Speaker 1: that there was an indication that there was an effort

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Speaker 1: um um or evidence that this was a discriminatory act

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Speaker 1: towards Muslims. I think that when you're looking at actions

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Speaker 1: of government and trying to determine the quote intentive government. Uh,

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Speaker 1: You you often have to look at all available sources

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Speaker 1: of information. There's often not a smoking gun. Thing are

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Speaker 1: intended to discriminate. So usually courts look very broadly at

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Speaker 1: circumstantial evidence of possible discriminatory animus, possible animosity toward towards

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Speaker 1: particular groups. In this instance, um, Uh. You might debate

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Speaker 1: how much the tweets and the statements should be weighed,

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Speaker 1: but there certainly was a lot of discussion during the

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Speaker 1: campaign and during his presidency about the need for extreme

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Speaker 1: betting of Muslims, for example, uh, and a real concern

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Speaker 1: that that terrorists were being admitted to the United States.

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Speaker 1: So so so I think that UM, the tweaks, the statements,

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Speaker 1: they're probably one part of the overall record. Uh. In

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Speaker 1: this president is offered a very very thorough record about

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Speaker 1: his views on immigrants, UM, Muslims and others. What do

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Speaker 1: you make in about five seconds here of justice at

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Speaker 1: Kagan's hypothetical about a president who had made anti Semitic

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Speaker 1: remarks and whose administration found security reasons to band travel

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Speaker 1: from Israel, and she said, this is an out of

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Speaker 1: the box kind of president in my hypothetical, Yeah, I

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Speaker 1: think that she's concerned, and this is a concerned a

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Speaker 1: number of people. What do you do if if there,

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Speaker 1: in fact is a discriminatory animus directed it at particular

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Speaker 1: immigrants and they're punished because of their their their background,

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Speaker 1: religion or race. Race. And I think that question was

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Speaker 1: designed to test what are the limits of the arguments

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Speaker 1: being made with the president? Uh, should um the courts

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Speaker 1: simply defer to the president whatever whatever they say when

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Speaker 1: it comes to national security, or should the courts look

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Speaker 1: a little more carefully determine whether there is a discriminatory

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Speaker 1: intent behind the enforcement action? Thanks so much, Kevin. That's

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Speaker 1: Kevin Johnson, professor at U C. Davis School of Law.

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Speaker 1: Attorney General Jeff Sessions has decided against recusing himself from

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Speaker 1: the investigation to President Trump's personal lawyer, Michael Cohen. According

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Speaker 1: to a person familiar with the matter, Sessions will consider

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Speaker 1: stepping back from specific questions tied to the probe. This

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Speaker 1: contrast with sessions recusal from the Russia investigation, a decision

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Speaker 1: that has angered Trump. Joining me as William Banks, a

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Speaker 1: professor at Syracuse University, Bill Sessions was a top advisor

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Speaker 1: to Trump's presidential campaign, and in March of two thousand

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Speaker 1: seven teen, he said that he had decided to he

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Speaker 1: should steal steer clear of any matters arising from the

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Speaker 1: campaigns for president. So should he recuse himself from the

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Speaker 1: Cohen investigation, which reportedly involved violations of federal campaign finance law. Well,

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Speaker 1: it's you know, we're taking this one day at a time,

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Speaker 1: aren't we. So I think the decision yesterday for uh

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Speaker 1: Mr Sessions not to recuse himself in a blanket way

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Speaker 1: from the Cohen investigation is certainly defensible, and it might

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Speaker 1: even be very reasonable, because indeed, the Cohen investigation is

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Speaker 1: not part of the Mueller probe that's being handled by

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Speaker 1: the Southern District of New York and independent office headed

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Speaker 1: by United States Attorney who will hit that examination. And

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Speaker 1: of course, the the potential charges against Cohen have a

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Speaker 1: whole range of possible um sources and outcomes, and and

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Speaker 1: they buy and large may not be connected to President

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Speaker 1: Trump or to the Russia investigation. And as as Sessions

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Speaker 1: or his office in fact, said that if, if, and

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Speaker 1: when those connections are revealed in the further investigation of

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Speaker 1: Cohen for example, the stormy Daniel's manner. Then Sessions could

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Speaker 1: revisit the decision on whether or not to reccuse, and

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Speaker 1: he could recuse from particular pieces of that investigation. So

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Speaker 1: the Southern District of New York, where the Cohen case

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Speaker 1: is being prosecuted, is notoriously independent. It's sometimes called the

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Speaker 1: sovereign district. How much consultation with main Justice really goes

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Speaker 1: on beyond the huge decisions like the search of an

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Speaker 1: attorney's office, Yeah, probably not very much. And we know

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Speaker 1: that that the United States Attorney for the Southern District

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Speaker 1: had also recused himself in this case. We don't know why,

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Speaker 1: but his deputy has taken over, and and that that deputy,

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Speaker 1: Rozami I think is his name, will will conduct the

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Speaker 1: investigation very and much independent of Washington, as these things

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Speaker 1: tend to go all around the United States. Uh, Washington

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Speaker 1: can't very well supervised the nuts and bolts or the

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Speaker 1: nitty gritty of independent investigations in every federal district. They'd

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Speaker 1: never get any work done in Washington. Yeah. The the

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Speaker 1: Burman's deputy, Robert Kazami, is the one who's handling the

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Speaker 1: Cohen investigation now, let's just talk a moment about um,

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Speaker 1: the rumors that Trump might remove the Deputy Attorney General

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Speaker 1: Rod Rosenstein and put someone else in. But let's talk

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Speaker 1: about the fact that the office itself, the Southern District,

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Speaker 1: already has evidence from the Cohen raid and the Russian investigation,

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Speaker 1: and there are career prosecutors who can't easily be fired

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Speaker 1: by Trump or anyone else or anyone else. That's the point.

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Speaker 1: I think the President would be very foolished to try

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Speaker 1: to intervene. Uh. Indeed, Mr Sessions can't intervene, nor could

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Speaker 1: Rosenstein in this case. Those those prosecutors in the Southern District,

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Speaker 1: just like every other district, are protected UH to do

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Speaker 1: their jobs as they were employed to do. So I

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Speaker 1: think we're gonna have to let this lead where it may.

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Speaker 1: You know, I think we talked once before about the

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Speaker 1: questions of a privilege here. There's a great um deal

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Speaker 1: of material that has to be sorted through to side

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Speaker 1: what is fair game and the Cohen files in his

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Speaker 1: relationship with Mr Trump, much of it may be protected

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Speaker 1: by a turning client privilege. So that's you know, in

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Speaker 1: terms of getting close to uh, the Russian investigation, getting

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Speaker 1: close to Trump. That's gonna turn as much on client

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Speaker 1: confidentiality issues as it does who's looking over whose shoulder.

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Speaker 1: I want to talk about the appearance of impropriety because

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Speaker 1: Sessions is under pressure from Trump for accusing himself from

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Speaker 1: the Muller investigation, and five Republican House members asked him

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Speaker 1: in a letter that was released yesterday why he left

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Speaker 1: it up to Rosenstein to decide whether or not to

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Speaker 1: raid Cohen's office. So is there an appearance here of

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Speaker 1: impropriety that Sessions is recusing himself for fear of ire

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Speaker 1: from the President or Republicans. No, you know, I think

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Speaker 1: these decisions are are appropriate in the abstract and appropriate

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Speaker 1: so far as we know about the facts of any

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Speaker 1: given case. Uh. Sessions is a is a lawyer. He

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Speaker 1: knows about his professional responsibilities, and he was taking the

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Speaker 1: cautious approach here not to appear to be improper or

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Speaker 1: to act in anyway that was improper. And I think

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Speaker 1: the decision not to recuse, at least at this juncture

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Speaker 1: in the Coulin case, follows the same set of principles.

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Speaker 1: You know, if something comes along, it gets in the

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Speaker 1: way or that shows to connecttion to Trump and Russia,

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Speaker 1: then I suspect Mr Sessions would once again deliberate whether

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Speaker 1: to recuse in just about thirty seconds. Will he get

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Speaker 1: updates automatic updates on this investigation? He will, because you

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Speaker 1: know that's that's part of the supervisory responsibility of the

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Speaker 1: Attorney General. He has, of course, an enormous range of

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Speaker 1: duties and matters on his plate. Then I wouldn't think

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Speaker 1: he'd be paying particular attention to this. And as I

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Speaker 1: said a moment ago, there's so much complexity involved in

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Speaker 1: getting to what Mr Cohen may have in his files.

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Speaker 1: As someone has to vet which things can be, we

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Speaker 1: have to leave it there. Bill, Thanks so much. As always,

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Speaker 1: that's William Banks, professor at Syracuse University. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg

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Speaker 1: Bunting the Duck, the Delanded, and Duck the NUE