1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio 2 00:00:09,160 --> 00:00:12,760 Speaker 1: last Friday. In his first public comments since the Supreme 3 00:00:12,800 --> 00:00:17,599 Speaker 1: Court eliminated the constitutional right to abortion, Chief Justice John 4 00:00:17,720 --> 00:00:22,360 Speaker 1: Roberts defended the Court's legitimacy and emphasized the Court's role 5 00:00:22,440 --> 00:00:27,160 Speaker 1: as interpreter of the Constitution free from political influence. It's 6 00:00:27,200 --> 00:00:30,480 Speaker 1: a theme the Chief has returned to time and time again, 7 00:00:31,000 --> 00:00:33,960 Speaker 1: here in remarks at the University of Minnesota Law School 8 00:00:34,040 --> 00:00:38,200 Speaker 1: in October of We do not speak for the people, 9 00:00:38,960 --> 00:00:43,400 Speaker 1: but we speak for the Constitution. Our role is very clear. 10 00:00:44,640 --> 00:00:47,320 Speaker 1: We are to interpret the Constitution and laws of the 11 00:00:47,400 --> 00:00:53,040 Speaker 1: United States and ensure that the political branches act within them. 12 00:00:53,040 --> 00:00:56,720 Speaker 1: But this term has been transformational for the Court, with 13 00:00:56,840 --> 00:01:00,520 Speaker 1: the abortion decision reaking political and legal chaos, US A 14 00:01:00,520 --> 00:01:04,720 Speaker 1: decision expanding gun rights that reverse New York centurial law, 15 00:01:05,160 --> 00:01:08,080 Speaker 1: another restricting the authority of the e p A to 16 00:01:08,240 --> 00:01:13,040 Speaker 1: combat climate change, and decisions further eradicating the line between 17 00:01:13,120 --> 00:01:17,280 Speaker 1: church and state. Joining me as constitutional law scholar Harold Crent, 18 00:01:17,400 --> 00:01:20,720 Speaker 1: a professor at the Chicago Kent College of Law. Polls 19 00:01:20,760 --> 00:01:23,200 Speaker 1: do show that public confidence in the Court is at 20 00:01:23,200 --> 00:01:26,600 Speaker 1: an all time low. So should the Chief Justice be 21 00:01:26,720 --> 00:01:31,320 Speaker 1: concerned about people questioning the court's legitimacy. The Chief Justice 22 00:01:31,360 --> 00:01:33,920 Speaker 1: should be concerned about the legitimacy of the Court, and 23 00:01:33,959 --> 00:01:36,640 Speaker 1: I believe that he's generally concerned about it, and he 24 00:01:36,680 --> 00:01:39,319 Speaker 1: has staked much of his reputation as Chief Justice on 25 00:01:39,760 --> 00:01:42,640 Speaker 1: opposing diligimacy of the court. But I think he is 26 00:01:42,680 --> 00:01:47,000 Speaker 1: also partly to blame for the dip in court popularity 27 00:01:47,000 --> 00:01:48,840 Speaker 1: and for the faith in the court as well. His 28 00:01:49,000 --> 00:01:52,760 Speaker 1: vote carries no more weight than any of the other justices. 29 00:01:52,960 --> 00:01:56,000 Speaker 1: Explain why you think he's partly to blame for the 30 00:01:56,080 --> 00:01:58,600 Speaker 1: dip in confidence in the court. Well, there are a 31 00:01:58,640 --> 00:02:00,840 Speaker 1: number of things that the Court is on and obviously 32 00:02:00,880 --> 00:02:03,040 Speaker 1: not all of his doing. Every time there is an 33 00:02:03,080 --> 00:02:05,840 Speaker 1: era of politicization, people look at the court and say 34 00:02:05,880 --> 00:02:08,799 Speaker 1: it's more political because people see riffs all the time. 35 00:02:08,800 --> 00:02:10,919 Speaker 1: And of course he can't do anything about the rifts 36 00:02:10,919 --> 00:02:14,800 Speaker 1: between the conservatives and the liberals. But in many cases 37 00:02:14,919 --> 00:02:18,840 Speaker 1: he has seemingly tipped at the court by trying to 38 00:02:19,000 --> 00:02:21,079 Speaker 1: take cases that they don't have to take in order 39 00:02:21,120 --> 00:02:26,079 Speaker 1: to reach certain principles, by not being consistent in methodology, 40 00:02:26,200 --> 00:02:30,040 Speaker 1: and those types of moves that he probably can control, 41 00:02:30,480 --> 00:02:33,800 Speaker 1: undermine the legitimacy of the court. And of course the 42 00:02:33,800 --> 00:02:37,040 Speaker 1: most everybody's mind is the abortion case. He would have 43 00:02:37,280 --> 00:02:40,560 Speaker 1: upheld Rover's way, but limited it. He couldn't control the court, 44 00:02:40,720 --> 00:02:42,920 Speaker 1: and the Court pushed it back. And there's other cases 45 00:02:42,919 --> 00:02:46,760 Speaker 1: where precedents seem to be willing lily transcended by the 46 00:02:46,840 --> 00:02:49,679 Speaker 1: Court because the Court wants to basically put their own 47 00:02:49,680 --> 00:02:52,560 Speaker 1: stamp on the law and not be concerned with reliance 48 00:02:52,600 --> 00:02:56,560 Speaker 1: interests and not be concerned with looking like an incremental court. 49 00:02:57,040 --> 00:03:00,840 Speaker 1: You mentioned precedents, and the Court seem to be changing 50 00:03:00,880 --> 00:03:04,560 Speaker 1: the law, not respecting precedent. And the Chief Justice was 51 00:03:04,600 --> 00:03:08,440 Speaker 1: in the majority in the opinions that struck down New 52 00:03:08,520 --> 00:03:12,359 Speaker 1: York's hundred year old gun law, the case limiting the 53 00:03:12,360 --> 00:03:16,480 Speaker 1: EPA's ability to address climate change, the cases breaking down 54 00:03:16,520 --> 00:03:19,919 Speaker 1: the wall between church and states voting rights cases. He's 55 00:03:19,960 --> 00:03:23,040 Speaker 1: in the majority in all those cases. He is in 56 00:03:23,040 --> 00:03:26,760 Speaker 1: those cases and others I think suggest quite clearly that 57 00:03:26,800 --> 00:03:30,120 Speaker 1: the Court is concerned with having their moment in history 58 00:03:30,440 --> 00:03:33,720 Speaker 1: as opposed to being conservative in the old fashioned sense 59 00:03:33,760 --> 00:03:37,280 Speaker 1: of moving incrementally, of moving carefully. And I'll just give 60 00:03:37,320 --> 00:03:39,760 Speaker 1: you one example of the Chief Justice as well. He 61 00:03:39,960 --> 00:03:43,800 Speaker 1: has tried to impose a robust view of a unitary 62 00:03:43,880 --> 00:03:47,119 Speaker 1: or strong chief executive under Article two of our Constitution 63 00:03:47,280 --> 00:03:50,120 Speaker 1: on the country. And he's done so in the face 64 00:03:50,240 --> 00:03:53,000 Speaker 1: not only of precedent, but in the face of even 65 00:03:53,120 --> 00:03:55,720 Speaker 1: history and in the First Congress, because the First Congress 66 00:03:55,720 --> 00:03:59,360 Speaker 1: created many structures that were not unitary. And so for 67 00:03:59,440 --> 00:04:01,840 Speaker 1: him to say he's an originalist and believe and cares 68 00:04:01,880 --> 00:04:04,920 Speaker 1: about what the Constitution says and how the First Congress 69 00:04:05,000 --> 00:04:08,480 Speaker 1: implemented flies in the face of what he does as 70 00:04:08,560 --> 00:04:10,720 Speaker 1: chief and when he writes the cases. So that is 71 00:04:10,760 --> 00:04:14,440 Speaker 1: just one other example of how it's difficult to put 72 00:04:14,480 --> 00:04:18,560 Speaker 1: this idea of legitimacy and carefulness and we're act as 73 00:04:18,600 --> 00:04:21,880 Speaker 1: a court, not as a policymaking body, when so many 74 00:04:22,000 --> 00:04:24,560 Speaker 1: of those cases that you've mentioned, as well as the 75 00:04:24,640 --> 00:04:28,799 Speaker 1: unitary executive seemed to be policy oriented judgments. He said 76 00:04:28,839 --> 00:04:31,919 Speaker 1: that if the Court doesn't retain its legitimate function of 77 00:04:31,960 --> 00:04:35,440 Speaker 1: interpreting the Constitution, I'm not sure who would take up 78 00:04:35,480 --> 00:04:38,600 Speaker 1: that mantle. You don't want the political branches telling you 79 00:04:38,640 --> 00:04:41,440 Speaker 1: what the law is, and you don't want public opinion 80 00:04:41,480 --> 00:04:44,120 Speaker 1: to be the guide of what the appropriate decision is 81 00:04:44,760 --> 00:04:48,680 Speaker 1: that seems true but shortsighted. It's true, right, I mean, 82 00:04:48,960 --> 00:04:51,080 Speaker 1: there is an incredible rule for the court and an 83 00:04:51,120 --> 00:04:54,320 Speaker 1: important rule for the court in our fabric, and it's 84 00:04:54,360 --> 00:04:57,960 Speaker 1: basically occupied a critical role at various times in our history. 85 00:04:58,000 --> 00:05:01,279 Speaker 1: So no one can really dispute what the Chief Justice says. 86 00:05:01,480 --> 00:05:03,760 Speaker 1: But then he should try to work harder with his 87 00:05:03,800 --> 00:05:07,880 Speaker 1: own opinions and with the opinions of his fellow conservative 88 00:05:08,000 --> 00:05:11,560 Speaker 1: justices to try to uphold those ideals. There's not a 89 00:05:11,560 --> 00:05:15,640 Speaker 1: consistency in ideology. There's not a consistency in the cases 90 00:05:15,680 --> 00:05:18,080 Speaker 1: they take. One of the cases you mentioned earlier, which 91 00:05:18,120 --> 00:05:21,160 Speaker 1: was the climate change case. In that case, they decided 92 00:05:21,200 --> 00:05:24,920 Speaker 1: to resolve the case when the Biden administration had already 93 00:05:24,920 --> 00:05:27,160 Speaker 1: said we're not going to enforce the rule. There was 94 00:05:27,279 --> 00:05:29,760 Speaker 1: nothing for the Court to do except take this case 95 00:05:29,760 --> 00:05:34,320 Speaker 1: in order to articulate a principle limiting congressional delegations of 96 00:05:34,360 --> 00:05:37,880 Speaker 1: authority to affect climate change. So they reached out when 97 00:05:37,880 --> 00:05:40,920 Speaker 1: they shouldn't have to take a case, and that suggesting 98 00:05:40,960 --> 00:05:44,000 Speaker 1: the public mind they're out there picking and choosing cases 99 00:05:44,279 --> 00:05:47,839 Speaker 1: in order to again affect their own policy view of 100 00:05:47,880 --> 00:05:51,960 Speaker 1: the constitution and statutory landscape, so he's part to blame. 101 00:05:52,279 --> 00:05:57,080 Speaker 1: Besides not voting with the conservatives in those cases, what 102 00:05:57,200 --> 00:06:01,240 Speaker 1: else can he do because with the three Trump appointees 103 00:06:01,320 --> 00:06:07,359 Speaker 1: on the court, there's such a solid super conservative majority. Absolutely, 104 00:06:07,400 --> 00:06:09,800 Speaker 1: And as I said, is this is not entirely lay 105 00:06:09,960 --> 00:06:14,320 Speaker 1: at the Chief Justice's doorstep, because there's something you can do, 106 00:06:14,360 --> 00:06:16,920 Speaker 1: but not a lot when there's such deep political device 107 00:06:17,000 --> 00:06:19,600 Speaker 1: on the court. But what he could do was docket control. 108 00:06:19,680 --> 00:06:21,840 Speaker 1: I think many people would say that he can help 109 00:06:21,880 --> 00:06:25,160 Speaker 1: set the agenda for the Court by deciding which cases 110 00:06:25,200 --> 00:06:27,400 Speaker 1: to take and whether to take cases on the so 111 00:06:27,520 --> 00:06:30,679 Speaker 1: called shadow docket or not. In both in the shadow 112 00:06:30,720 --> 00:06:34,320 Speaker 1: docket and in the West Virginia climate control case, and 113 00:06:34,360 --> 00:06:37,960 Speaker 1: we just talked about, he has willingly decided to pay 114 00:06:38,000 --> 00:06:41,919 Speaker 1: cases that a truly conservative court in the historical sense 115 00:06:42,279 --> 00:06:45,760 Speaker 1: wouldn't have taken, and that again has fueled this notion 116 00:06:45,800 --> 00:06:48,000 Speaker 1: that court is not trying to make increminal change but 117 00:06:48,160 --> 00:06:51,680 Speaker 1: making dramatic change. So that is one way that I 118 00:06:51,760 --> 00:06:55,680 Speaker 1: think and many others think that he could stop the drift. 119 00:06:55,960 --> 00:06:59,680 Speaker 1: And of course his own opinions are not methodologically consistent either, 120 00:07:00,040 --> 00:07:02,360 Speaker 1: and now would be another way to stop the drift. 121 00:07:02,720 --> 00:07:06,920 Speaker 1: It only takes four votes to take a case, So 122 00:07:06,960 --> 00:07:10,600 Speaker 1: how can he stop four of the justices from voting 123 00:07:10,600 --> 00:07:14,280 Speaker 1: to take a case? But he can't unilatterally, but he 124 00:07:14,360 --> 00:07:16,520 Speaker 1: has does have a lot of influence. And it's a 125 00:07:16,640 --> 00:07:20,600 Speaker 1: much easier to persuade a fellow justice not to take 126 00:07:20,600 --> 00:07:22,600 Speaker 1: a case, or to wait for a term or two 127 00:07:22,680 --> 00:07:25,160 Speaker 1: until you take a case, than it is to persuade 128 00:07:25,600 --> 00:07:28,720 Speaker 1: a fellow justice to vote a particular way, as evidently 129 00:07:28,760 --> 00:07:31,840 Speaker 1: he tried to do very assiduously but unsuccessfully in the 130 00:07:31,920 --> 00:07:34,160 Speaker 1: Dobb's abortion case as well. So I think that he 131 00:07:34,200 --> 00:07:37,200 Speaker 1: has more influenced than the words in trying to push 132 00:07:37,360 --> 00:07:40,240 Speaker 1: his conservative justice is a certain way in terms of 133 00:07:40,360 --> 00:07:42,480 Speaker 1: establishing a doctor for the court than he does in 134 00:07:42,560 --> 00:07:45,360 Speaker 1: actually influencing opinions. I mean, you wouldn't want the Chief 135 00:07:45,400 --> 00:07:48,120 Speaker 1: Justice to be able to tell other justices how to vote, 136 00:07:48,240 --> 00:07:51,160 Speaker 1: and even though he's clearly tried from all sports. But 137 00:07:51,640 --> 00:07:53,480 Speaker 1: you know, on the other hand, I think we have 138 00:07:53,640 --> 00:07:55,800 Speaker 1: to allow him to do what he can, which at 139 00:07:55,880 --> 00:07:59,320 Speaker 1: least is to shape at the margins the kind of 140 00:07:59,360 --> 00:08:02,560 Speaker 1: cases that the court well here and the Court has 141 00:08:02,600 --> 00:08:06,240 Speaker 1: been very dramatic in trying to add cases that it 142 00:08:06,320 --> 00:08:08,880 Speaker 1: is interested in into the doctment even if the otherwise 143 00:08:08,880 --> 00:08:12,360 Speaker 1: you're not appropriate for review. We're seeing that next term 144 00:08:12,400 --> 00:08:15,920 Speaker 1: they're taking affirmative action cases, they're taking a case that 145 00:08:16,240 --> 00:08:21,920 Speaker 1: could change the way the state court supervised elections. So 146 00:08:22,320 --> 00:08:25,680 Speaker 1: next term seems like it's going to be just as 147 00:08:26,000 --> 00:08:29,760 Speaker 1: controversial as this term. Absolutely, And there's also more cases 148 00:08:29,880 --> 00:08:33,840 Speaker 1: dealing with the president's unitary executive authority as well. And 149 00:08:34,040 --> 00:08:37,760 Speaker 1: the independent State Legislature doctrine case that you mentioned has 150 00:08:37,800 --> 00:08:42,720 Speaker 1: a incredible potential for changing sort of the fairness of 151 00:08:43,000 --> 00:08:46,240 Speaker 1: federal elections across the whole country because in that case, 152 00:08:46,320 --> 00:08:48,840 Speaker 1: he's looking at a doctrine that has never been articulated 153 00:08:48,880 --> 00:08:51,920 Speaker 1: before and was signaled in the Shadow Doctor case that 154 00:08:52,040 --> 00:08:55,559 Speaker 1: the Court wanted to hear challenges based upon the independent 155 00:08:55,640 --> 00:08:58,520 Speaker 1: State Legislature doctrine, which again limits the authority of state 156 00:08:58,520 --> 00:09:02,120 Speaker 1: courts to tell state legislators that they air in trying 157 00:09:02,160 --> 00:09:05,959 Speaker 1: to create districts and methodologies for federal elections. So those 158 00:09:05,960 --> 00:09:08,920 Speaker 1: are just examples of what's in store for us, but 159 00:09:09,040 --> 00:09:11,920 Speaker 1: examples again of how the Court has again not all 160 00:09:12,080 --> 00:09:15,400 Speaker 1: Chief Justice Robert's fault, but the Court has signaled that 161 00:09:15,440 --> 00:09:18,840 Speaker 1: it wants to hear certain type of cases and in 162 00:09:19,400 --> 00:09:23,079 Speaker 1: areas of affirmative action. Chief Justice Roberts has long been 163 00:09:23,080 --> 00:09:25,760 Speaker 1: an opponent of affirmative action, so he's probably been a 164 00:09:25,920 --> 00:09:28,600 Speaker 1: supporter of taking the Harvard case in the North Carolina case, 165 00:09:28,880 --> 00:09:31,160 Speaker 1: and in terms of the unitary executive, he's long been 166 00:09:31,160 --> 00:09:33,800 Speaker 1: a support of the unitary executive. So there is a 167 00:09:33,840 --> 00:09:36,160 Speaker 1: case on the doctor right now, at least one that 168 00:09:36,280 --> 00:09:40,920 Speaker 1: implicates the removable authority of the president. So you know, 169 00:09:40,960 --> 00:09:44,440 Speaker 1: I think that, yes, I do believe he totally is 170 00:09:44,600 --> 00:09:47,559 Speaker 1: sincere in his belief in the importance of an independent 171 00:09:47,600 --> 00:09:50,080 Speaker 1: and respected judiciary. But I think he could do more 172 00:09:50,160 --> 00:09:53,280 Speaker 1: to try to use whatever power and influence he has, 173 00:09:53,280 --> 00:09:56,960 Speaker 1: both to persuade others on the court to go more slowly, 174 00:09:57,240 --> 00:09:59,439 Speaker 1: but also the heat for himself. There's been a lot 175 00:09:59,440 --> 00:10:03,200 Speaker 1: of criticism of Justice Thomas for not recusing himself from 176 00:10:03,280 --> 00:10:07,239 Speaker 1: cases where his wife has or could have a connection. 177 00:10:07,760 --> 00:10:11,800 Speaker 1: Can the Chief do anything about that? The difficulty confronting 178 00:10:12,000 --> 00:10:15,360 Speaker 1: Chief Justice Roberts is rather have been cause for recusal 179 00:10:15,920 --> 00:10:19,840 Speaker 1: of Justice Thomas because of his wife's involvement in the insurrection. 180 00:10:20,000 --> 00:10:23,680 Speaker 1: On January six, that he is steadfast and refused to 181 00:10:23,920 --> 00:10:28,040 Speaker 1: allow an ethical code to be imposed by Congress on 182 00:10:28,080 --> 00:10:31,920 Speaker 1: the Supreme Court, and those two things don't sit well together, right, 183 00:10:32,040 --> 00:10:34,320 Speaker 1: he should take some kind of action, whether it's an 184 00:10:34,320 --> 00:10:38,080 Speaker 1: adoption or changing of that ethical code to apply. Because 185 00:10:38,320 --> 00:10:42,240 Speaker 1: while I don't think that Justice Thomas's wife's involvement in 186 00:10:42,360 --> 00:10:46,640 Speaker 1: January six should force Thomas to resign necessarily, it should 187 00:10:46,679 --> 00:10:50,120 Speaker 1: force him to recuse himself in cases relating to that matter. 188 00:10:50,320 --> 00:10:53,440 Speaker 1: And so far, for what we know, Justice Roberts has 189 00:10:53,520 --> 00:10:56,120 Speaker 1: kept his silence. Maybe there's something going on behind the 190 00:10:56,160 --> 00:10:59,959 Speaker 1: scenes where one doesn't know, but certainly Jennie Thomas is 191 00:11:00,160 --> 00:11:03,599 Speaker 1: involvement in Generay six. Again, it's just another thorn in 192 00:11:03,640 --> 00:11:08,680 Speaker 1: the side of legitimacy of the Court. So, just three 193 00:11:08,760 --> 00:11:13,439 Speaker 1: days after the Chief Justice's comments, Justice Elina Kagan gave 194 00:11:13,559 --> 00:11:16,560 Speaker 1: a very different opinion on the Court's last term and 195 00:11:16,600 --> 00:11:21,040 Speaker 1: it's legitimacy. In remarks that the Temple Emmanuel L. Striker 196 00:11:21,160 --> 00:11:24,360 Speaker 1: Center in New York, Kagan warned that the Supreme Court 197 00:11:24,559 --> 00:11:29,720 Speaker 1: can lose legitimacy by disregarding precedent, the year's worth and 198 00:11:29,800 --> 00:11:32,520 Speaker 1: generation's worth of judges who have come before you and 199 00:11:32,559 --> 00:11:36,600 Speaker 1: have laid down legal principles step by step by step, 200 00:11:36,679 --> 00:11:41,320 Speaker 1: piece by piece. They deserve respect. And it's a way 201 00:11:41,360 --> 00:11:45,320 Speaker 1: to ensure that people see courts not as political actors. 202 00:11:45,520 --> 00:11:49,440 Speaker 1: Because if one judge dies or leaves a court and 203 00:11:49,520 --> 00:11:52,800 Speaker 1: another judge comes in and all of a sudden the 204 00:11:52,880 --> 00:11:55,080 Speaker 1: law changes on you, what does that say? You know, 205 00:11:55,160 --> 00:11:57,960 Speaker 1: that just doesn't seem a lot like law. If it 206 00:11:58,000 --> 00:12:04,079 Speaker 1: can depend so much on which particular person is in 207 00:12:04,880 --> 00:12:09,120 Speaker 1: the court, it just seems at that point local personal preference. 208 00:12:10,040 --> 00:12:12,920 Speaker 1: Is she spot on here? Well? I think most people 209 00:12:12,960 --> 00:12:15,720 Speaker 1: would agree with her, and I think Chief Justice Roberts 210 00:12:15,760 --> 00:12:18,400 Speaker 1: would agree with her in part. But I think the 211 00:12:18,440 --> 00:12:21,480 Speaker 1: spectacle of having justice a sparring at each other in 212 00:12:21,559 --> 00:12:24,560 Speaker 1: public and these speeches is not going to help the 213 00:12:24,760 --> 00:12:27,400 Speaker 1: legitimacy of the court either. And you know she's not 214 00:12:27,440 --> 00:12:30,559 Speaker 1: the first. I mean, Judge Alto and Judge Thomas has 215 00:12:30,559 --> 00:12:34,680 Speaker 1: spoken at conferences and tried to persuade others of the 216 00:12:34,760 --> 00:12:38,240 Speaker 1: drift in the court. And the more those kinds of 217 00:12:38,520 --> 00:12:42,440 Speaker 1: discussions get aired, than the other side wants to take 218 00:12:42,480 --> 00:12:43,960 Speaker 1: some of that air time and get some of that 219 00:12:44,040 --> 00:12:47,200 Speaker 1: press and push back and suggest that a different vision 220 00:12:47,200 --> 00:12:50,640 Speaker 1: of the court is more appropriate. So I think what 221 00:12:50,840 --> 00:12:54,320 Speaker 1: Justice Kagan says is spot on. I don't think most 222 00:12:54,320 --> 00:12:56,240 Speaker 1: people would disagree with her. They would just disagree as 223 00:12:56,280 --> 00:12:59,000 Speaker 1: to the implementation or as to the application of her 224 00:12:59,040 --> 00:13:02,520 Speaker 1: comments to what the Court has done today. She has 225 00:13:02,559 --> 00:13:07,680 Speaker 1: said similar things during oral arguments about the importance of precedent, 226 00:13:08,120 --> 00:13:10,800 Speaker 1: but this time she seemed to go a little bit 227 00:13:10,960 --> 00:13:14,720 Speaker 1: further when she said the entire legal system is up 228 00:13:14,720 --> 00:13:17,800 Speaker 1: for grabs whenever one justice leaves the Court and another 229 00:13:18,000 --> 00:13:21,640 Speaker 1: justice comes on. That doesn't seem a lot like law. 230 00:13:22,040 --> 00:13:26,800 Speaker 1: Is that? Uh swhite that Trump's appointees, Well, you know, 231 00:13:27,280 --> 00:13:30,959 Speaker 1: I think historically the Court has shifted on several different 232 00:13:30,960 --> 00:13:34,320 Speaker 1: occasions because of the appointment of one justice. Clearly, we 233 00:13:34,360 --> 00:13:36,679 Speaker 1: saw a little bit of that threat under the New 234 00:13:36,720 --> 00:13:40,000 Speaker 1: Deal and President Franklin Roosevelt, and we've seen it on 235 00:13:39,840 --> 00:13:41,960 Speaker 1: the Warrant Court as well. So I don't think it's 236 00:13:42,000 --> 00:13:44,480 Speaker 1: anything new. That's kind of reality. It's just that we 237 00:13:44,679 --> 00:13:47,800 Speaker 1: are in an era of greater partisanship, and that again 238 00:13:47,920 --> 00:13:50,400 Speaker 1: is something that Chief Justice Roberts is not responsible for. 239 00:13:50,720 --> 00:13:53,200 Speaker 1: But he wants to maintain the legitimacy of the Court, 240 00:13:53,280 --> 00:13:56,359 Speaker 1: he has to sort of contain the wave of partisanship 241 00:13:56,440 --> 00:13:59,920 Speaker 1: or politicization and try to stop that kind of perception 242 00:14:00,080 --> 00:14:04,360 Speaker 1: and that Justice Kagan was talking about because in reality, 243 00:14:04,400 --> 00:14:07,200 Speaker 1: if you do have a very politicized court, appointment of 244 00:14:07,240 --> 00:14:09,959 Speaker 1: one justice or two justices can make all the difference, 245 00:14:10,120 --> 00:14:14,240 Speaker 1: and obviously President Trump's appointments have made a very big difference. Indeed, 246 00:14:15,160 --> 00:14:18,840 Speaker 1: Kagan outline three key things courts can do to ensure 247 00:14:18,880 --> 00:14:23,840 Speaker 1: the public will follow their rulings, honoring precedent, consistently following 248 00:14:23,920 --> 00:14:28,760 Speaker 1: constrained methodologies for deciding cases, and deciding only what you 249 00:14:28,880 --> 00:14:31,600 Speaker 1: have to, which is something the Chief has been a 250 00:14:31,720 --> 00:14:35,160 Speaker 1: proponent of the latter. But the Chief said, I think 251 00:14:35,280 --> 00:14:38,640 Speaker 1: just moving forward from things that were unfortunate is the 252 00:14:38,720 --> 00:14:42,240 Speaker 1: best way to respond to it. So nothing's going to change, 253 00:14:42,280 --> 00:14:46,400 Speaker 1: it seems yeah. I mean I think again, what Justice 254 00:14:46,480 --> 00:14:49,840 Speaker 1: keg instead is critical. And it's not that the Court 255 00:14:50,280 --> 00:14:55,040 Speaker 1: is stuck by president. Occasionally it should overturn precedent and has. 256 00:14:55,440 --> 00:14:58,800 Speaker 1: It's just that all of these cases have snowball. We've 257 00:14:58,800 --> 00:15:01,760 Speaker 1: seen so many changes of precedents and disregarding we've seen 258 00:15:01,920 --> 00:15:04,000 Speaker 1: so many times when the Court has seemed to reach 259 00:15:04,040 --> 00:15:06,200 Speaker 1: out to take a case when it didn't have to. 260 00:15:06,800 --> 00:15:08,840 Speaker 1: And there are a lot of justices that have had 261 00:15:08,880 --> 00:15:12,960 Speaker 1: inconsistent methodologies over the years, but these justices what, they 262 00:15:13,000 --> 00:15:16,400 Speaker 1: have much more inconsistent methodologies than some. I mean, Justice 263 00:15:16,400 --> 00:15:19,920 Speaker 1: Scalia was known for being one of the more consistent 264 00:15:20,000 --> 00:15:23,640 Speaker 1: justices and methodology is not perfect, but really admirable, and 265 00:15:23,680 --> 00:15:26,480 Speaker 1: I think people had respect for that. And there are 266 00:15:26,680 --> 00:15:31,280 Speaker 1: no comparable justice today that has such a consistent methodology, 267 00:15:31,320 --> 00:15:36,680 Speaker 1: and that does take a toll on respect and institutional legitimacy. 268 00:15:36,920 --> 00:15:40,160 Speaker 1: What's the real concern with the public not respecting the 269 00:15:40,200 --> 00:15:44,280 Speaker 1: court when there's no danger at this point of packing 270 00:15:44,320 --> 00:15:47,280 Speaker 1: the court and the public may not respect the court, 271 00:15:47,440 --> 00:15:50,480 Speaker 1: but it's still following the law lays down. Well, that's 272 00:15:50,480 --> 00:15:53,360 Speaker 1: the question. I mean, when Bush versus Gore was decided, 273 00:15:53,720 --> 00:15:57,360 Speaker 1: many people thought that this was a lawless decision. And 274 00:15:57,440 --> 00:16:00,800 Speaker 1: yet I think most people said and need I think 275 00:16:01,000 --> 00:16:04,280 Speaker 1: Senator Gore said that I'm not going to challenge this. 276 00:16:04,280 --> 00:16:06,520 Speaker 1: This is the Supreme Court. I disagree with it. There's 277 00:16:06,520 --> 00:16:09,120 Speaker 1: gonna be a peaceful transition in government. And and the 278 00:16:09,320 --> 00:16:13,240 Speaker 1: fear would be that where the Court says wouldn't quell 279 00:16:13,480 --> 00:16:16,760 Speaker 1: not only a senator's opinion, but the publics whether the 280 00:16:16,880 --> 00:16:21,160 Speaker 1: question is on vaccination, the question is on abortion, question 281 00:16:21,280 --> 00:16:25,440 Speaker 1: is on religion or gun rights. If people lose respect 282 00:16:25,560 --> 00:16:29,080 Speaker 1: for a judicial decree, then the pronouncement by the court 283 00:16:29,160 --> 00:16:31,960 Speaker 1: will have no effect and won't really sort of quell 284 00:16:32,040 --> 00:16:35,520 Speaker 1: whatever kind of political divisions there are on an incendory 285 00:16:35,600 --> 00:16:41,240 Speaker 1: topic like abortion or gun rights. Fascinating historical footnote. Many 286 00:16:41,440 --> 00:16:45,880 Speaker 1: legal storians have looked at the whole question of integration 287 00:16:46,280 --> 00:16:49,680 Speaker 1: and whether or not the Supreme Courts putting themselves in 288 00:16:49,760 --> 00:16:55,080 Speaker 1: and sort of forcing integration in four had a backlash 289 00:16:55,320 --> 00:17:00,000 Speaker 1: and therefore actually slowed down the course of integration through 290 00:17:00,080 --> 00:17:04,159 Speaker 1: the whole country. And similarly, it's possible that the Supreme 291 00:17:04,200 --> 00:17:07,719 Speaker 1: Court decision on abortion, in a very different context on 292 00:17:07,760 --> 00:17:10,960 Speaker 1: the other side of the political spectrum, may cause a 293 00:17:11,119 --> 00:17:14,760 Speaker 1: political backlash for the Conservatives again, and obviously the votes 294 00:17:14,800 --> 00:17:18,000 Speaker 1: in Kansas and some other early primaries are suggesting that 295 00:17:18,200 --> 00:17:21,040 Speaker 1: it may have. Indeed, Thanks Hal that's Harold Grant of 296 00:17:21,080 --> 00:17:26,480 Speaker 1: the Chicago Kent College of Law. This is Bloomberg, hundreds 297 00:17:26,480 --> 00:17:30,520 Speaker 1: of miles from Washington, d C. The investigation into criminal 298 00:17:30,600 --> 00:17:35,120 Speaker 1: interference in the election by the district Attorney from Fulton 299 00:17:35,200 --> 00:17:38,959 Speaker 1: County Georgia may be the biggest legal threat to former 300 00:17:39,000 --> 00:17:42,439 Speaker 1: President Donald Trump. Joining me is Michael Moore, the former 301 00:17:42,520 --> 00:17:45,479 Speaker 1: United States Attorney for the Middle District of Georgia. An 302 00:17:45,520 --> 00:17:50,760 Speaker 1: apartment More Hall. Senator Lindsay Graham has been fighting vigorously 303 00:17:51,560 --> 00:17:55,520 Speaker 1: the subpoena from the Georgia Grand Jury, so the judge 304 00:17:55,840 --> 00:18:00,159 Speaker 1: ordered that he can be questioned about alleged efforts. You 305 00:18:00,280 --> 00:18:04,480 Speaker 1: encourage Georgia's Secretary of State Brad Ravensburger or others to 306 00:18:04,560 --> 00:18:08,439 Speaker 1: throw out ballots tell us about her restrictions. Though on 307 00:18:08,520 --> 00:18:11,320 Speaker 1: the questioning, she's a good judge. I mean, I think 308 00:18:11,359 --> 00:18:14,640 Speaker 1: that she basically is recognizing that there would be some 309 00:18:14,760 --> 00:18:17,879 Speaker 1: limitations under the Speech and Debate clause and sort of 310 00:18:18,280 --> 00:18:22,040 Speaker 1: broadly and just purely enslaged terms talk about legislative immunity 311 00:18:22,240 --> 00:18:25,480 Speaker 1: for things done infernuance of his job as a United 312 00:18:25,520 --> 00:18:28,240 Speaker 1: States centator. If he was doing something in that way, 313 00:18:28,240 --> 00:18:31,520 Speaker 1: that that could be limited and restricted from questioning by 314 00:18:31,560 --> 00:18:34,600 Speaker 1: the d A. But she's not allowing him to use 315 00:18:34,680 --> 00:18:38,040 Speaker 1: that clause and those privileges as a way to shield 316 00:18:38,119 --> 00:18:43,760 Speaker 1: himself from any potentially illegal conduct. So you can't say, well, 317 00:18:44,080 --> 00:18:46,639 Speaker 1: you know, for example, I'm a United States centator, but 318 00:18:46,680 --> 00:18:49,800 Speaker 1: I called Jim Jones down the street and I asked 319 00:18:49,880 --> 00:18:51,760 Speaker 1: him to go rob a bank. I did it from 320 00:18:51,760 --> 00:18:54,840 Speaker 1: my US Senate office. But that doesn't mean it's protective 321 00:18:54,840 --> 00:18:57,120 Speaker 1: of the speech of debate clause. You've made a call 322 00:18:57,160 --> 00:18:59,920 Speaker 1: about some potentially criminal conduct, and I think what she 323 00:19:00,119 --> 00:19:03,520 Speaker 1: saying here is, Look, there may be specific functions that 324 00:19:03,560 --> 00:19:06,000 Speaker 1: you have as a senator. You may have a legitimate 325 00:19:06,200 --> 00:19:09,679 Speaker 1: basis to claim that some of the activities that you 326 00:19:09,720 --> 00:19:12,600 Speaker 1: undertook were privileged. But this idea of putting pressure on 327 00:19:12,720 --> 00:19:15,320 Speaker 1: the state election official as a violation of state law, 328 00:19:15,600 --> 00:19:17,880 Speaker 1: and I'm not gonna let you shield yourself from that. 329 00:19:18,040 --> 00:19:20,840 Speaker 1: They let a circuit will ultimately, I gather take it 330 00:19:20,880 --> 00:19:24,480 Speaker 1: back up, and they will review her decision now that 331 00:19:24,520 --> 00:19:26,760 Speaker 1: she's laid these parameters out. And it seems to me 332 00:19:26,880 --> 00:19:29,880 Speaker 1: like his bite right now is more about dragging things 333 00:19:29,960 --> 00:19:33,160 Speaker 1: out than it is necessarily about when there's a legitimate 334 00:19:33,200 --> 00:19:35,360 Speaker 1: claim that he should or should not have to appear. 335 00:19:35,640 --> 00:19:38,240 Speaker 1: You know, and in full disclosure, remember I asked and 336 00:19:38,680 --> 00:19:41,400 Speaker 1: sent a letter to state elections right over his calls 337 00:19:41,560 --> 00:19:44,760 Speaker 1: to Raffingsburger that sent to Graham's called Raffingsburger saying he 338 00:19:44,760 --> 00:19:48,119 Speaker 1: ought to be investigated for because Ratsburger came out and 339 00:19:48,160 --> 00:19:51,320 Speaker 1: said I felt pressure, I was uncomfortable, and he he 340 00:19:51,400 --> 00:19:54,680 Speaker 1: makes some very public statements in the media about how 341 00:19:54,680 --> 00:19:57,639 Speaker 1: he took the call as opposed to being an inquiry 342 00:19:57,960 --> 00:20:02,240 Speaker 1: about some legitimate legislative option, um. And I think ultimately 343 00:20:02,240 --> 00:20:04,200 Speaker 1: that's that's where she's gonna let them go. Whether or 344 00:20:04,200 --> 00:20:07,840 Speaker 1: not they let a circuit agrees with that, um, we'll see. 345 00:20:08,160 --> 00:20:11,760 Speaker 1: But I really think probably once the message was set, 346 00:20:12,200 --> 00:20:15,879 Speaker 1: we want you to tailor the extent of his depth 347 00:20:15,920 --> 00:20:19,439 Speaker 1: of his grandeury testimony uh down to something else, and 348 00:20:19,520 --> 00:20:22,000 Speaker 1: she did that. It looks to me like they'll probably 349 00:20:22,040 --> 00:20:26,240 Speaker 1: require at least to appear. And so the restrictions she's 350 00:20:26,320 --> 00:20:29,840 Speaker 1: laid out leave enough room for the Fulton County d 351 00:20:29,880 --> 00:20:33,720 Speaker 1: A to get the answer she's looking for, well, I 352 00:20:33,760 --> 00:20:36,159 Speaker 1: think to get some answers. Uh. You know, it's a 353 00:20:36,200 --> 00:20:39,359 Speaker 1: little bit of a speculation on what exactly she is 354 00:20:39,400 --> 00:20:42,360 Speaker 1: looking for and how broad a net she's using right now, 355 00:20:43,119 --> 00:20:46,359 Speaker 1: but I think that it allows her to ask specific 356 00:20:46,440 --> 00:20:50,880 Speaker 1: questions about direction that Graham may have gotten from Trump 357 00:20:51,160 --> 00:20:53,640 Speaker 1: for communications that he had with him about making these 358 00:20:53,640 --> 00:20:57,080 Speaker 1: calls or making these inquiries, and that to me would 359 00:20:57,119 --> 00:21:00,920 Speaker 1: be likely the most damning information to them out as 360 00:21:00,960 --> 00:21:03,400 Speaker 1: it relates to her investigations. Who told you to make 361 00:21:03,400 --> 00:21:05,560 Speaker 1: the call, how did this come up? You know, what 362 00:21:05,680 --> 00:21:08,080 Speaker 1: else were you asked to do? Who was involved in 363 00:21:08,119 --> 00:21:11,399 Speaker 1: the decision making process. Those kinds of questions about the 364 00:21:11,480 --> 00:21:14,280 Speaker 1: specific calls would be I think enough to get her 365 00:21:14,800 --> 00:21:18,040 Speaker 1: if she's looking at potential election fraud, that seems to 366 00:21:18,080 --> 00:21:21,040 Speaker 1: me to be a way to get there using the 367 00:21:21,080 --> 00:21:24,280 Speaker 1: invitable element she has given the court room. But isn't. 368 00:21:24,320 --> 00:21:27,840 Speaker 1: What's likely to happen is let's say Lindsay Grand does 369 00:21:28,040 --> 00:21:30,960 Speaker 1: go to the grand jury to testify, and then she 370 00:21:31,040 --> 00:21:34,359 Speaker 1: asked those questions and he says, well, I can't because 371 00:21:34,400 --> 00:21:38,960 Speaker 1: of executive privilege concerns of the former president, and then 372 00:21:38,960 --> 00:21:42,080 Speaker 1: it sort of cuts it off. Well, my guess is 373 00:21:42,119 --> 00:21:44,879 Speaker 1: that that question is going to be answered, likely before 374 00:21:44,920 --> 00:21:47,879 Speaker 1: he ever appears. I'm sure we'll see something leven circuit 375 00:21:47,960 --> 00:21:51,480 Speaker 1: move that'll be an appeal or the quest for further 376 00:21:51,520 --> 00:21:55,360 Speaker 1: explanation or something to the eleventh Circuit, and we'll probably 377 00:21:55,400 --> 00:21:57,960 Speaker 1: know more about whether or not that's a viable objection 378 00:21:58,200 --> 00:22:01,680 Speaker 1: and the executive privilege claimed. As you know, even now 379 00:22:01,800 --> 00:22:05,160 Speaker 1: after the recent hearing on Trump's request for a special master, 380 00:22:05,480 --> 00:22:08,520 Speaker 1: following them all longest search, the executive privilege claim is 381 00:22:08,560 --> 00:22:11,920 Speaker 1: now back in play, at least in some respect. Whether 382 00:22:12,000 --> 00:22:14,680 Speaker 1: or not it's appropriately brought back in play under any 383 00:22:14,880 --> 00:22:18,080 Speaker 1: serious legal analysis, that's another thing. But it's clearly been 384 00:22:18,080 --> 00:22:21,200 Speaker 1: brought back in play. Whether our former president can assert 385 00:22:21,520 --> 00:22:25,479 Speaker 1: executive privilege and without the current president owns that privilege 386 00:22:25,560 --> 00:22:27,879 Speaker 1: with an out former press can shield all of his 387 00:22:28,040 --> 00:22:31,480 Speaker 1: conduct under a climate executive privilege even after he's left office. 388 00:22:31,680 --> 00:22:35,359 Speaker 1: I'd like to talk about how broad the investigation is. 389 00:22:35,880 --> 00:22:39,199 Speaker 1: The grand jury has saw a testimony from this wide 390 00:22:39,280 --> 00:22:43,200 Speaker 1: range of people, from a former publicist of Kanye West 391 00:22:43,280 --> 00:22:48,000 Speaker 1: to allegedly tried to pressure and election worker to the 392 00:22:48,040 --> 00:22:52,679 Speaker 1: state's governor, Brian Camp, who Trump tried to pressure. Do 393 00:22:52,760 --> 00:22:58,240 Speaker 1: you have a sense for what this investigation encompasses, because 394 00:22:58,280 --> 00:23:01,480 Speaker 1: she has put together a team in eating some uh 395 00:23:01,840 --> 00:23:06,640 Speaker 1: lawyers that have experienced with RICO prosecutions and uh sort 396 00:23:06,680 --> 00:23:12,040 Speaker 1: of organized criminal activity investigations. UH. My belief is that 397 00:23:12,119 --> 00:23:14,680 Speaker 1: she's looking to try to make this a bigger case 398 00:23:14,920 --> 00:23:18,000 Speaker 1: than maybe it began with and you know, I think it, 399 00:23:18,080 --> 00:23:20,280 Speaker 1: and I told you I feel like she had enough 400 00:23:20,520 --> 00:23:23,920 Speaker 1: if she wanted to seek an indictment early on without 401 00:23:24,000 --> 00:23:26,320 Speaker 1: going through the special grand jury process, she already had 402 00:23:26,320 --> 00:23:30,159 Speaker 1: the typical in play, and that's essentially a recording confession 403 00:23:30,240 --> 00:23:34,040 Speaker 1: by and large, which outlines efforts to influence the Secretary 404 00:23:34,080 --> 00:23:37,560 Speaker 1: of State. And so once she moved into a special 405 00:23:37,560 --> 00:23:40,399 Speaker 1: grand jury process and subpoena in all these witnesses, it 406 00:23:40,480 --> 00:23:42,879 Speaker 1: seems to me that she's trying to tell a story 407 00:23:43,359 --> 00:23:47,359 Speaker 1: about efforts by those within the Republican Party are certainly 408 00:23:47,400 --> 00:23:50,600 Speaker 1: those within the Trump's circle, to have a broader effect 409 00:23:51,080 --> 00:23:53,240 Speaker 1: than just the presidential election, but to have a broad 410 00:23:53,280 --> 00:23:57,359 Speaker 1: effect on the state process, whether that be as you 411 00:23:57,480 --> 00:23:59,879 Speaker 1: as we talked about earlier in the individuals who were 412 00:24:00,000 --> 00:24:02,800 Speaker 1: ain't an access following a fake elector whether it be 413 00:24:02,880 --> 00:24:06,240 Speaker 1: in the designation of fake electors in the state. She's 414 00:24:06,280 --> 00:24:09,480 Speaker 1: clearly going for a broader indictment or at least investigation 415 00:24:09,960 --> 00:24:12,680 Speaker 1: than just on Trump himself. And it may be as 416 00:24:12,680 --> 00:24:15,119 Speaker 1: well that she's made the decision, and we won't we 417 00:24:15,160 --> 00:24:17,000 Speaker 1: won't know this for some time, that she's not going 418 00:24:17,080 --> 00:24:19,160 Speaker 1: to seek an indictment against Trump, but she could seek 419 00:24:19,160 --> 00:24:22,760 Speaker 1: it against other players and key individuals who may have 420 00:24:22,760 --> 00:24:27,200 Speaker 1: been involved in efforts to essentially set aside or delegitimize 421 00:24:27,320 --> 00:24:32,160 Speaker 1: the boat here in Georgia and Fulton count But this 422 00:24:32,240 --> 00:24:37,679 Speaker 1: is the investigation that most legal analysts say is the 423 00:24:37,720 --> 00:24:41,800 Speaker 1: most dangerous for Trump, you know, more so than well 424 00:24:41,800 --> 00:24:45,160 Speaker 1: the New York investigation has sort of crumbled, and more 425 00:24:45,240 --> 00:24:48,520 Speaker 1: so than a federal investigation that we should be going 426 00:24:48,560 --> 00:24:51,960 Speaker 1: to all this trouble if she wasn't after Trump. I 427 00:24:52,000 --> 00:24:54,000 Speaker 1: think people have said that it may be the most 428 00:24:54,400 --> 00:24:56,520 Speaker 1: likely to result in some criminal charges. I don't know 429 00:24:56,520 --> 00:24:59,919 Speaker 1: if I would think it's the most dangerous investigation she 430 00:25:00,000 --> 00:25:03,080 Speaker 1: You would have to come in and present a case 431 00:25:03,480 --> 00:25:08,959 Speaker 1: specifically UH involving the former president, and have that case 432 00:25:09,520 --> 00:25:14,880 Speaker 1: both remain in a state court, which I think there's 433 00:25:14,920 --> 00:25:16,720 Speaker 1: a federal statute that would allow the case or at 434 00:25:16,760 --> 00:25:20,560 Speaker 1: least would allow emotion to remove the case to federal 435 00:25:20,560 --> 00:25:25,280 Speaker 1: court based on on his position time as president UM. 436 00:25:25,359 --> 00:25:28,760 Speaker 1: So she would have to survive that motion, allow the 437 00:25:28,800 --> 00:25:31,480 Speaker 1: case to remain and proceed, and actually get a conviction 438 00:25:31,800 --> 00:25:36,240 Speaker 1: on the case, and then have a conviction h survive 439 00:25:36,400 --> 00:25:39,440 Speaker 1: an appeal. I also think that there will be a 440 00:25:40,320 --> 00:25:44,000 Speaker 1: plethora of pre trial motions that you would see the 441 00:25:44,000 --> 00:25:47,000 Speaker 1: Trump team and other people who may be charged used 442 00:25:47,760 --> 00:25:54,280 Speaker 1: to try to essentially cut her criminal investigation and potentially 443 00:25:54,280 --> 00:25:58,080 Speaker 1: indictment offered the needs if they get that far. And 444 00:25:58,359 --> 00:26:01,439 Speaker 1: I think I think that's difficult. I think that's you know, 445 00:26:01,800 --> 00:26:05,640 Speaker 1: indicting someone. A good prosecutor can can get an indictment, 446 00:26:06,200 --> 00:26:08,760 Speaker 1: and that's not necessarily a difficult thing to do, because 447 00:26:08,760 --> 00:26:11,320 Speaker 1: as you and the grand jury and an investigator and 448 00:26:11,359 --> 00:26:14,080 Speaker 1: suddenly there's an indictment that you know comes out of 449 00:26:14,080 --> 00:26:16,480 Speaker 1: the joke, is that a prosecutor can have died a 450 00:26:16,560 --> 00:26:19,119 Speaker 1: ham sandwich at may not be the right thing to 451 00:26:19,160 --> 00:26:22,159 Speaker 1: do and not necessarily give everyone the most confidence in 452 00:26:22,200 --> 00:26:26,200 Speaker 1: the system, but getting an indictment is not the highest 453 00:26:26,240 --> 00:26:29,399 Speaker 1: bar in a criminal case. It's getting the conviction. And 454 00:26:29,440 --> 00:26:33,760 Speaker 1: it would she be able to convince twelve jurors um 455 00:26:34,080 --> 00:26:37,800 Speaker 1: from the Fulton County area that these that the Trump's 456 00:26:37,840 --> 00:26:41,520 Speaker 1: efforts were in fact illegal. That's that seems to me 457 00:26:41,560 --> 00:26:44,359 Speaker 1: to be a tough call, especially when you you know, 458 00:26:44,400 --> 00:26:48,280 Speaker 1: it takes one juror to prevent a conviction and to 459 00:26:48,560 --> 00:26:51,520 Speaker 1: hang the jury up, and so she would not be 460 00:26:51,560 --> 00:26:56,080 Speaker 1: able to assemble a jury of Trump haters any more 461 00:26:56,080 --> 00:26:58,280 Speaker 1: than Trump's team, if he were charged and was sitting 462 00:26:58,320 --> 00:27:00,959 Speaker 1: in the courtroom, would be able to assemble a jury 463 00:27:01,080 --> 00:27:04,320 Speaker 1: of Trump supporters. You'll get a cross section of people 464 00:27:04,840 --> 00:27:07,080 Speaker 1: and they'll have to listen actually to the evidence and 465 00:27:07,440 --> 00:27:10,320 Speaker 1: make a decision about that. But that's that's if the 466 00:27:10,359 --> 00:27:14,719 Speaker 1: case survives what I think would be pre trial motions 467 00:27:14,760 --> 00:27:17,840 Speaker 1: that would would head to the United States Supreme Court 468 00:27:17,880 --> 00:27:21,240 Speaker 1: at some point, because these are these are unique issues. 469 00:27:21,320 --> 00:27:25,600 Speaker 1: We are in uncharted waters here and um and the 470 00:27:25,640 --> 00:27:29,040 Speaker 1: magnitude one thing that I did agree with the judge 471 00:27:29,040 --> 00:27:34,600 Speaker 1: in Florida and her special masters, the magnitude of bringing 472 00:27:34,640 --> 00:27:38,879 Speaker 1: a case against the former president in this country cannot 473 00:27:38,920 --> 00:27:44,280 Speaker 1: be overstated. And I think that's, you know, that is 474 00:27:44,320 --> 00:27:48,080 Speaker 1: something that the appelic courts will consider, um and how 475 00:27:48,080 --> 00:27:50,920 Speaker 1: the law would apply there and what this means going forward, 476 00:27:51,520 --> 00:27:54,520 Speaker 1: all those things. So it may be a case where 477 00:27:55,160 --> 00:27:58,240 Speaker 1: you have a local d A they can get an indictment, 478 00:27:58,600 --> 00:28:02,120 Speaker 1: the questions can can that can the case survive an appeal? 479 00:28:03,000 --> 00:28:05,840 Speaker 1: I frantically think too that there's some I have some 480 00:28:05,960 --> 00:28:09,800 Speaker 1: concern and just as a general proposition in local d 481 00:28:10,000 --> 00:28:13,439 Speaker 1: as being able to indict a president or former president 482 00:28:13,560 --> 00:28:16,920 Speaker 1: or something that happened while but the president was in office. 483 00:28:17,680 --> 00:28:20,800 Speaker 1: I certainly don't agree with Trump's Trump's conduct and what happened, 484 00:28:20,800 --> 00:28:24,159 Speaker 1: and I've I've been clear about that. But you know, 485 00:28:24,600 --> 00:28:29,280 Speaker 1: can you imagine a scenario where a local d A, 486 00:28:29,480 --> 00:28:37,600 Speaker 1: perhaps along the Texas border, chooses to after Biden leaves office, 487 00:28:37,920 --> 00:28:40,400 Speaker 1: to indict Biden for something he said that he felt 488 00:28:40,440 --> 00:28:43,520 Speaker 1: like was encouraging people to break the immigration laws and 489 00:28:43,760 --> 00:28:48,000 Speaker 1: whether or not that's a meritorious case or not, And 490 00:28:48,040 --> 00:28:50,520 Speaker 1: I would argue that it would not be, but it's 491 00:28:50,560 --> 00:28:55,400 Speaker 1: still places an enormous amount of power within the local 492 00:28:55,480 --> 00:28:58,360 Speaker 1: d A. And I think that's why typically in these investigations, 493 00:28:58,360 --> 00:29:00,720 Speaker 1: you want to see the Department of Justice take the 494 00:29:00,840 --> 00:29:05,000 Speaker 1: lead because they they really have the resources and the 495 00:29:05,040 --> 00:29:09,520 Speaker 1: reputation and uh and most of these are career prosecutors, 496 00:29:09,600 --> 00:29:13,760 Speaker 1: not not elected prosecutors as we see with district attorneys, 497 00:29:13,840 --> 00:29:15,920 Speaker 1: but these are career people with the Department and either 498 00:29:15,920 --> 00:29:18,920 Speaker 1: works in the public Integrity section or other areas for 499 00:29:19,680 --> 00:29:23,160 Speaker 1: twenty some five years that that lead these types of 500 00:29:23,240 --> 00:29:26,440 Speaker 1: serious investigations and make decision about whether or not to 501 00:29:26,600 --> 00:29:29,760 Speaker 1: bring these types of way the charges as opposed to 502 00:29:29,040 --> 00:29:32,959 Speaker 1: a to a locally elected in some county and some 503 00:29:33,120 --> 00:29:37,120 Speaker 1: state in America. You know, does this person had been 504 00:29:38,040 --> 00:29:41,920 Speaker 1: do we want them basically being able to to charge 505 00:29:41,920 --> 00:29:44,880 Speaker 1: a president with with the with the crime? Uh? And 506 00:29:45,880 --> 00:29:48,600 Speaker 1: you take it. And we'd like to say that politics 507 00:29:48,640 --> 00:29:50,480 Speaker 1: doesn't play into it. And I think you can look 508 00:29:50,520 --> 00:29:54,000 Speaker 1: at the investigation thus far, and I think the three 509 00:29:54,000 --> 00:29:57,080 Speaker 1: by a nice could see that this was there's politics 510 00:29:57,080 --> 00:29:59,680 Speaker 1: that's played into it, whether we're talking about you know, 511 00:30:00,200 --> 00:30:04,560 Speaker 1: where the weird addressing, how she sent out the target letters, 512 00:30:04,640 --> 00:30:07,880 Speaker 1: or we're talking about the timing of subpoenas and you know, 513 00:30:08,040 --> 00:30:10,720 Speaker 1: asking to bring in a sitting governor of the opposite 514 00:30:10,720 --> 00:30:14,600 Speaker 1: party into the grand jury a couple of months before 515 00:30:15,520 --> 00:30:18,320 Speaker 1: statewide election. I mean, I I just think that some 516 00:30:18,440 --> 00:30:22,440 Speaker 1: of the moves have been so transparently political, at least 517 00:30:22,720 --> 00:30:26,920 Speaker 1: to the public, certainly doesn't give a air of confidence 518 00:30:26,920 --> 00:30:29,360 Speaker 1: that it's nott. I think that's concerning. And so I 519 00:30:29,360 --> 00:30:32,000 Speaker 1: don't know that you want to a locally elected district 520 00:30:32,040 --> 00:30:34,720 Speaker 1: attorney from the opposite party trying to take down a 521 00:30:34,840 --> 00:30:37,440 Speaker 1: president of form and president of the opposite party. And 522 00:30:37,480 --> 00:30:39,680 Speaker 1: that's why That's why I like to think that the 523 00:30:39,720 --> 00:30:43,920 Speaker 1: Department of Justice is the appropriate prosecution agency to be 524 00:30:44,080 --> 00:30:47,960 Speaker 1: those kinds of cases. What's her case against the sixteen 525 00:30:48,560 --> 00:30:52,600 Speaker 1: fake Trump electors? You know, that would be whether or 526 00:30:52,600 --> 00:30:56,040 Speaker 1: not there were false certifications that were made and someone 527 00:30:56,200 --> 00:30:59,880 Speaker 1: submit documents that were in sign off on documents of 528 00:31:00,000 --> 00:31:04,840 Speaker 1: were crafted to resemble a elector certificate and submit those 529 00:31:04,880 --> 00:31:07,720 Speaker 1: on behalf of the states. I think that primate primarily 530 00:31:07,760 --> 00:31:09,840 Speaker 1: is where she would be looking and was there an 531 00:31:09,840 --> 00:31:13,360 Speaker 1: effort to defraud perhaps the state or the United States 532 00:31:13,360 --> 00:31:16,200 Speaker 1: in that effort? And I have heard and again I've 533 00:31:16,200 --> 00:31:18,320 Speaker 1: not seen these documents, but you know, I've heard that 534 00:31:18,360 --> 00:31:21,280 Speaker 1: there were some even notations that may have been made 535 00:31:21,400 --> 00:31:24,040 Speaker 1: saying I'm signing this, you know, in the event that 536 00:31:24,160 --> 00:31:28,200 Speaker 1: the regular elector slate is set aside or whatever, almost 537 00:31:28,200 --> 00:31:30,240 Speaker 1: as a backup. I think that's a little bit tougher 538 00:31:30,280 --> 00:31:32,760 Speaker 1: case for her. But at the same time, she may 539 00:31:32,760 --> 00:31:36,200 Speaker 1: be looking to put pressure on them to get them 540 00:31:36,240 --> 00:31:39,239 Speaker 1: to give information for a bigger case. So she may 541 00:31:39,280 --> 00:31:41,320 Speaker 1: be looking at them to say, we're investigating you, and 542 00:31:41,360 --> 00:31:44,520 Speaker 1: we may charge you with some criminal offense. We could 543 00:31:44,560 --> 00:31:47,240 Speaker 1: offer you immunity if you give us information about who 544 00:31:47,280 --> 00:31:50,719 Speaker 1: the mastermind was behind that scheme. Did that come from Trump? 545 00:31:50,760 --> 00:31:53,160 Speaker 1: Didn't come from his legal team? How did this come about? 546 00:31:53,600 --> 00:31:56,200 Speaker 1: Did it come from a state wide elected official? Did 547 00:31:56,240 --> 00:31:58,440 Speaker 1: it come from a federal elected official of the state. 548 00:31:58,720 --> 00:32:01,480 Speaker 1: How did this information and this plan? You know who 549 00:32:01,520 --> 00:32:04,760 Speaker 1: gave birth to this idea and you know what inner 550 00:32:04,800 --> 00:32:07,680 Speaker 1: workings I guess went on behind closed doors to make 551 00:32:07,720 --> 00:32:10,320 Speaker 1: this happen. So she may be using that as a 552 00:32:10,360 --> 00:32:14,240 Speaker 1: way to exert pressure. That's not an uncostant tactic for prosecutors. 553 00:32:14,280 --> 00:32:17,400 Speaker 1: That's why you see and oftentimes in drug cases they 554 00:32:17,440 --> 00:32:20,040 Speaker 1: start with people who may be on below level. They 555 00:32:20,040 --> 00:32:22,560 Speaker 1: start with the street level drug dealers, and they arrest 556 00:32:22,640 --> 00:32:23,920 Speaker 1: him and they say, we're going to send you to 557 00:32:23,960 --> 00:32:25,520 Speaker 1: jail for the rest of your life unless you tell 558 00:32:25,560 --> 00:32:27,320 Speaker 1: us who was up the chain. And they get to 559 00:32:27,360 --> 00:32:29,320 Speaker 1: that person, they say, we're gonna send you the jail 560 00:32:29,480 --> 00:32:30,840 Speaker 1: for the rest of your life unless you tell us 561 00:32:30,840 --> 00:32:33,040 Speaker 1: who was up the chain. And so they get to 562 00:32:33,080 --> 00:32:35,800 Speaker 1: those places where they think that the decision or the 563 00:32:35,960 --> 00:32:39,000 Speaker 1: sort of the genesis of the criminal conduct occurred, and 564 00:32:39,640 --> 00:32:42,400 Speaker 1: that may very well be the purpose behind this state 565 00:32:42,480 --> 00:32:44,800 Speaker 1: electric scheme. I think that it would be interesting to 566 00:32:44,800 --> 00:32:48,040 Speaker 1: see what information these individuals had. And I really felt 567 00:32:48,080 --> 00:32:50,240 Speaker 1: like the subtomas when they re issued that that that 568 00:32:50,360 --> 00:32:52,480 Speaker 1: was the purpose of it. It was a pressure point 569 00:32:52,600 --> 00:32:55,880 Speaker 1: that she could make. Thanks Michael. That's Michael Moore, the 570 00:32:55,960 --> 00:32:58,960 Speaker 1: former United States Attorney for the Middle District of Georgia 571 00:32:59,240 --> 00:33:01,720 Speaker 1: and a partner more Hall. And that's it for this 572 00:33:01,840 --> 00:33:04,600 Speaker 1: edition of The Bloomberg Law Show. Remember you can always 573 00:33:04,600 --> 00:33:07,560 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 574 00:33:07,840 --> 00:33:10,840 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 575 00:33:11,000 --> 00:33:16,040 Speaker 1: www dot Bloomberg dot com, slash podcast Slash Law, And 576 00:33:16,080 --> 00:33:18,800 Speaker 1: remember to tune into The Bloomberg Law Show every week 577 00:33:18,960 --> 00:33:22,520 Speaker 1: night at ten BM Wall Street Time. I'm June Grosso 578 00:33:22,640 --> 00:33:24,240 Speaker 1: and you're listening to Bloomberg