WEBVTT - Trump Sentencing. Net Neutrality & DEI Programs 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.640 --> 0:00:12.280 President elect Donald Trump is scheduled to be sentenced this 0:00:12.440 --> 0:00:15.880 Fronde for his conviction on criminal charges in the New 0:00:15.960 --> 0:00:19.439 York hush money case. A jury convicted him back in 0:00:19.560 --> 0:00:22.640 May of thirty four felony counts in a scheme to 0:00:22.720 --> 0:00:25.880 hide hush money payments to a porn star during his 0:00:25.920 --> 0:00:30.960 twenty sixteen campaign, so clearly before he became president. The 0:00:31.000 --> 0:00:35.720 conviction made Trump the first US president, whether sitting or former, 0:00:35.920 --> 0:00:39.480 to be convicted of a crime, and now he's basically 0:00:39.520 --> 0:00:42.680 trying to erase the conviction so that he doesn't become 0:00:42.760 --> 0:00:45.919 the first felon to be sworn in as the president 0:00:45.960 --> 0:00:49.360 of the United States. Both the New York trial judge 0:00:49.360 --> 0:00:52.199 and an appellate judge have refused to put off his 0:00:52.360 --> 0:00:56.480 sentencing based on his arguments that a president elect is 0:00:56.640 --> 0:01:00.960 entitled to the same sweeping immunity that a sitting gets. 0:01:01.200 --> 0:01:04.319 So now Trump is going to the Supreme Court, which 0:01:04.360 --> 0:01:08.360 has been friendly to his claims of presidential immunity. He's 0:01:08.440 --> 0:01:11.880 asking the justices to intervene in the state hush money 0:01:11.880 --> 0:01:16.560 criminal case to prevent his sentencing from going forward quote, 0:01:16.680 --> 0:01:20.119 the Court should enter an immediate stay of further proceedings 0:01:20.160 --> 0:01:23.640 in the New York Trial Court to prevent grave injustice 0:01:23.720 --> 0:01:27.160 and harm to the institution of the Presidency and the 0:01:27.200 --> 0:01:31.400 operations of the federal government. Joining me is Bloomberg Legal 0:01:31.440 --> 0:01:35.040 reporter Eric Larson, who's been covering all the proceedings in 0:01:35.080 --> 0:01:37.800 New York and there have been many Eric tell us 0:01:37.840 --> 0:01:41.039 about Trump's latest filing with the Supreme Court. 0:01:41.400 --> 0:01:44.560 So late last night, his lawyers filed a petition with 0:01:44.920 --> 0:01:49.640 the Supreme Court asking for a stay of the sentencing 0:01:49.720 --> 0:01:53.160 hearing that is scheduled for Friday morning here in Manhattan. 0:01:53.520 --> 0:01:56.040 So this was sort of a fast track, sort of 0:01:56.080 --> 0:01:58.240 unexpected that he was going to go this quickly to 0:01:58.840 --> 0:02:03.120 the Supreme Court. But earlier a New York appellate judge 0:02:03.360 --> 0:02:06.960 in Manhattan had agreed with the trial judge and that 0:02:07.000 --> 0:02:10.360 the sense things should go forward. So with that ruling, 0:02:10.840 --> 0:02:12.960 he went ahead and went straight to the Supreme Court 0:02:13.000 --> 0:02:16.800 to request a stay while he continues to press his 0:02:17.000 --> 0:02:18.959 appeal in New York State Court. 0:02:19.600 --> 0:02:23.600 So what are the grounds for him asking the Supreme 0:02:23.639 --> 0:02:24.679 Court to step in. 0:02:25.120 --> 0:02:27.760 So they're the same arguments that he made with the 0:02:27.760 --> 0:02:30.520 New York Appellate Court, and with the judge who oversaw 0:02:30.560 --> 0:02:33.960 the hush money trial, it is all about his interpretation 0:02:34.160 --> 0:02:38.360 of presidential immunity. Of course, that the broad legal doctrine 0:02:38.680 --> 0:02:41.200 that was expanded by the Supreme Court last year or 0:02:41.200 --> 0:02:44.120 in a different criminal case against Trump, where they held 0:02:44.160 --> 0:02:47.520 for the first time that former presidents have brought immunity 0:02:47.560 --> 0:02:51.280 from criminal charges related to their official conduct in office. 0:02:51.520 --> 0:02:54.760 So even though this hush money case relates to his 0:02:54.840 --> 0:02:58.440 actions before he was elected in twenty sixteen, and even 0:02:58.440 --> 0:03:02.360 though he was tried convicted last year while he was 0:03:02.600 --> 0:03:05.480 just a private citizen, I mean, before he was even 0:03:05.600 --> 0:03:09.280 elected in the November election, notwithstanding all that, he argues 0:03:09.320 --> 0:03:12.760 that he's protected from this guilty verdict by the concept 0:03:12.760 --> 0:03:17.120 of presidential immunity. He argues that having this verdict the 0:03:17.200 --> 0:03:21.400 hanging over him would undermine his authorities and his credibility 0:03:21.400 --> 0:03:23.880 with world leaders and things like this, all of the 0:03:23.919 --> 0:03:28.040 reasons that the Supreme Court has previously granted this kind 0:03:28.080 --> 0:03:30.720 of immunity to presidents to begin with, to make sure 0:03:30.760 --> 0:03:33.480 that the office of the presidency is powerful and protected 0:03:33.520 --> 0:03:36.800 and whatnot. Clearly that is not how the Manhattan District 0:03:36.840 --> 0:03:39.640 Attorney sees it, and that's also not how the judge 0:03:39.640 --> 0:03:43.600 thought or the appellate judge who ruled against him. Will 0:03:43.640 --> 0:03:46.600 see what the Supreme Court thinks. But for now, he's 0:03:46.640 --> 0:03:50.560 saying that even though he's just president elect, this immunity 0:03:50.600 --> 0:03:52.360 should be extended to him. 0:03:52.640 --> 0:03:55.720 The judge in this case has already said that he's 0:03:55.800 --> 0:03:59.760 not going to sentence him to time or probation or anything. 0:04:00.200 --> 0:04:03.320 It's sort of like a formality, but it will put 0:04:03.360 --> 0:04:06.120 on the record that he's been convicted of felonies. 0:04:07.400 --> 0:04:11.520 It's an unconditional discharge, is what Judge Murchon called it. 0:04:11.520 --> 0:04:15.520 It means that, you know, because of these unusual circumstances 0:04:15.880 --> 0:04:19.920 with a defendant being convicted but then winning a presidential 0:04:19.920 --> 0:04:22.800 election before being sentenced, the judge went ahead and said, look, 0:04:22.880 --> 0:04:25.200 I'm not actually going to sentence you to any time 0:04:25.200 --> 0:04:28.240 behind bars, or probation or a fine or anything. He's 0:04:28.240 --> 0:04:32.480 getting an unconditional discharge, which means zero penalty other than 0:04:32.520 --> 0:04:37.360 having the conviction remain intact. But it's that that Trump 0:04:37.520 --> 0:04:40.960 wants to stop from happening. He doesn't even want that 0:04:41.200 --> 0:04:43.960 hanging over him, you know. His lawyer also made the 0:04:44.120 --> 0:04:47.640 argument that the appellate judge said was pretty weak. But 0:04:47.720 --> 0:04:50.080 his lawyer did argue that there's always the chance that 0:04:50.200 --> 0:04:54.600 Judge Mrchan could backtrack and sentence him to time in prison, 0:04:55.000 --> 0:04:57.840 even though he said he wouldn't. But the judge didn't 0:04:57.839 --> 0:05:00.400 really buy that argument. You know, if this this thing 0:05:00.440 --> 0:05:03.000 goes ahead on Friday, clearly Trump is not at any. 0:05:02.920 --> 0:05:04.919 Risk of going to jail, and he doesn't have to 0:05:05.000 --> 0:05:07.200 even be at the sentencing, right, that's right. 0:05:07.279 --> 0:05:09.719 Jes Mareschawan told him that he had the option to 0:05:09.720 --> 0:05:13.240 appear virtually according to court papers, Trump is already indicated 0:05:13.279 --> 0:05:14.440 that that is what he would do. 0:05:14.920 --> 0:05:16.200 What's unusual here. 0:05:16.440 --> 0:05:20.400 One unusual thing is that normally you have to wait 0:05:20.520 --> 0:05:25.040 until a case is litigated in the state courts before 0:05:25.080 --> 0:05:26.920 you go to the Supreme Court. 0:05:27.160 --> 0:05:29.679 And in this case, he's still appealing to the Court. 0:05:29.520 --> 0:05:33.200 Of Appeals, right, right, He does plan to continue to 0:05:33.240 --> 0:05:36.320 press the appeal through the New York state court system. 0:05:36.760 --> 0:05:39.440 He did say in his filing with the Supreme Court 0:05:39.520 --> 0:05:41.919 last night that he was filing a similar petition for 0:05:42.000 --> 0:05:45.760 a state simultaneously with the New York Court of Appeals, 0:05:45.839 --> 0:05:48.800 the highest court in New York. We couldn't verify that 0:05:48.800 --> 0:05:51.159 that had been filed. In fact, the court that it 0:05:51.240 --> 0:05:53.880 hadn't been, but it seems that Trump is at least 0:05:53.880 --> 0:05:57.279 planning to file something there to sort of connect the 0:05:57.320 --> 0:06:00.360 dots to the Supreme Court, as it were. But clearly 0:06:00.440 --> 0:06:02.919 time is of the essence and Trump's view, that's what 0:06:02.960 --> 0:06:04.960 they've said all along here, So that might be one 0:06:05.000 --> 0:06:07.000 of the reasons why they just trumped straight to the 0:06:07.040 --> 0:06:10.480 Supreme Court. Of course, Trump is due to be inaugurated 0:06:10.560 --> 0:06:13.479 just ten days after this sentencing hearing exept for Friday. 0:06:14.320 --> 0:06:17.560 Right now, since the Second Circuit is in the purview 0:06:17.640 --> 0:06:21.960 of Justice Sonya Soto Mayor, she's asked the Manhattan District 0:06:22.000 --> 0:06:23.320 attorney for papers. 0:06:24.880 --> 0:06:28.599 That's right. She directed Alvin Bragg, the district's attorney, to 0:06:28.800 --> 0:06:33.240 respond to Trump's filing by tomorrow morning. So we would expect, 0:06:33.400 --> 0:06:35.840 or we hope, that we'll get some ruling from the 0:06:35.880 --> 0:06:40.599 Supreme Court by tomorrow night. Given that the sentencing hearing 0:06:40.680 --> 0:06:43.320 is happening Friday morning, it would. 0:06:43.200 --> 0:06:47.120 Take five Supreme Court justices to grant to stay. In 0:06:47.160 --> 0:06:52.080 the case, of course, there were six justices who voted 0:06:52.440 --> 0:06:56.400 to give him that broad presidential immunity from criminal prosecution. 0:06:57.320 --> 0:07:00.840 And another point is that it's Trump that's been asking 0:07:01.360 --> 0:07:03.560 for these delays in sentencing. 0:07:03.960 --> 0:07:04.480 It's been the. 0:07:04.480 --> 0:07:08.680 Strategy of delay, delayed, delay, and now that he's been 0:07:08.720 --> 0:07:11.720 elected president, he doesn't want to just delay the sentencing. 0:07:11.800 --> 0:07:13.960 He wants to eliminate the sentencing. 0:07:14.480 --> 0:07:16.840 That's right. That's one of the points that the appellate 0:07:16.880 --> 0:07:20.560 judge made at the hearing yesterday. She said that, you know, 0:07:20.600 --> 0:07:25.320 this timing was so inconvenient for Trump that he should 0:07:25.360 --> 0:07:28.000 have gone ahead and went through with the sentencing earlier. 0:07:28.040 --> 0:07:29.920 It's been delayed at least a couple of times, and 0:07:29.960 --> 0:07:32.640 the most recent delay was as a result of the election, 0:07:33.560 --> 0:07:36.320 but it could have happened months before the election, so 0:07:36.440 --> 0:07:40.960 that that is a strong argument in favor of the prosecution. 0:07:41.160 --> 0:07:44.000 But you know, Trump has had good luck with the 0:07:44.040 --> 0:07:48.640 Supreme Court in previous arguments around presidential immunity, so it's 0:07:48.960 --> 0:07:51.520 impossible to know how much weight they'll give that particular 0:07:51.600 --> 0:07:52.680 argument exactly. 0:07:52.800 --> 0:07:58.760 And he has been using that controversial ruling on presidential 0:07:58.800 --> 0:08:02.200 immunity to try to get this New York hush money 0:08:02.200 --> 0:08:07.920 conviction thrown out, but the judge has denied his motions twice. 0:08:08.200 --> 0:08:11.680 So there's really two separate orders from Judge Marschan that 0:08:11.720 --> 0:08:15.160 Trump is appealing that both relates to presidential immunity. The 0:08:15.200 --> 0:08:19.800 first decision was from December, when Judge Mrshan rejected Trump's 0:08:19.880 --> 0:08:24.560 argument that presidential immunity ruling from the Supreme Court undermines 0:08:24.640 --> 0:08:27.640 the verdict. He claims that the trial itself had been 0:08:27.720 --> 0:08:31.240 painted by witness testimony and other evidence that would not 0:08:31.320 --> 0:08:35.120 have been allowed at trial if that Supreme Court standard 0:08:35.200 --> 0:08:38.040 on presidential meunity had been in place, which it wasn't. 0:08:38.080 --> 0:08:40.760 It wasn't handed down until a few months later. So 0:08:41.960 --> 0:08:45.000 this is attorney argues that no, whatever evidence might have 0:08:45.080 --> 0:08:48.679 been disallowed under that standard wouldn't have effected the outcome 0:08:48.720 --> 0:08:51.520 of the verdict, that the remaining evidence was so strong, 0:08:51.920 --> 0:08:55.920 And then indeed that's what the judge agreed and ruled 0:08:55.920 --> 0:08:59.480 against Trump on that. The other argument was the sort 0:08:59.480 --> 0:09:03.079 of broader argument that the judge ruled earlier this month, 0:09:03.400 --> 0:09:08.480 you know, rejecting Trump's argument that the broad presidential immunity 0:09:08.960 --> 0:09:12.760 extends to a president elect. That was the bigger argument, Trump, 0:09:12.880 --> 0:09:15.880 that I won the election. Therefore, this whole criminal case 0:09:15.920 --> 0:09:18.679 should be thrown out, including the jury's verdict. 0:09:19.360 --> 0:09:21.960 This is the only case that went to trial. 0:09:22.520 --> 0:09:28.559 And the only prosecution really that that has been successful 0:09:28.640 --> 0:09:29.520 against Trump. 0:09:29.559 --> 0:09:33.640 He's he's managed to. 0:09:32.880 --> 0:09:36.240 Get rid of the federal cases and the Atlantic case 0:09:36.400 --> 0:09:37.880 is also in doubt. 0:09:38.520 --> 0:09:41.160 Right, So the Atlanta case is still hanging out there, 0:09:41.200 --> 0:09:44.360 although it's definitely in limbo. It's suffering its own problem. 0:09:44.559 --> 0:09:48.160 But the two big federal prosecutions of Trump, they were 0:09:48.200 --> 0:09:51.560 both dropped by the Justice Department after Trump won the election, 0:09:51.760 --> 0:09:56.680 simply because of the long standing policy of not prosecuting 0:09:56.720 --> 0:09:59.319 a sitting president. They knew that the cases wouldn't be 0:09:59.360 --> 0:10:02.120 able to proceed trial while Trump was in office, and 0:10:02.160 --> 0:10:06.160 therefore they dropped those charges. But even before he won, 0:10:06.520 --> 0:10:11.080 that case over the twenty twenty election was significantly narrowed 0:10:11.160 --> 0:10:14.640 during that Supreme Court decision that we discussed, where they 0:10:15.080 --> 0:10:18.400 gave him broad immunity from criminal charges over anything related 0:10:18.440 --> 0:10:22.520 to his official conduct. But yeah, the presidential immunity doctrine 0:10:22.640 --> 0:10:25.760 is very broad, and that's why those two criminal cases 0:10:25.760 --> 0:10:28.920 were dropped by the Justice Department. That's also while he'll 0:10:29.040 --> 0:10:31.480 argue to have that Georgia State case, which is also 0:10:31.559 --> 0:10:34.240 over the twenty twenty election, will argue to have that 0:10:34.360 --> 0:10:37.120 one tossed out as well. But like they said, that 0:10:37.200 --> 0:10:39.880 case is already suffering from it from his own problems 0:10:39.920 --> 0:10:42.280 because the prosecutor was thrown out of the case by 0:10:42.320 --> 0:10:45.280 an appealed court over an affair she was having with 0:10:45.320 --> 0:10:47.720 an investigator. So totally separate drama. 0:10:48.120 --> 0:10:50.120 From a purely legal perspective. 0:10:50.640 --> 0:10:54.040 It's going to be fascinating to see what the Supreme 0:10:54.080 --> 0:10:55.000 Court does here. 0:10:55.640 --> 0:10:58.000 No one really knows what's going to happen, but it 0:10:58.040 --> 0:11:01.440 could be an interesting test to see how far the 0:11:01.480 --> 0:11:04.040 Supreme Court is going to go to help Trump out 0:11:04.040 --> 0:11:05.559 even before he takes office. 0:11:05.760 --> 0:11:08.600 Well, at least this should be resolved quickly one way 0:11:08.679 --> 0:11:12.040 or the other. Thanks so much, Eric, That's Bloomberg Legal 0:11:12.080 --> 0:11:15.840 reporter Eric Larson coming up next on the Bloomberg Law Show. 0:11:16.360 --> 0:11:19.600 Net neutrality appears to be dead after a Court of 0:11:19.640 --> 0:11:24.000 Appeals ruling deals a blow to the FCC. I'm June 0:11:24.040 --> 0:11:29.600 Grosso and you're listening to Bloomberg. After decades of fighting, 0:11:29.960 --> 0:11:33.920 it appears that the battle over net neutrality rules is over. 0:11:34.440 --> 0:11:37.160 The US Court of Appeals for the Sixth Circuit has 0:11:37.320 --> 0:11:41.960 acts the Federal Communications Commissions net neutrality rules, saying the 0:11:42.000 --> 0:11:45.680 agency didn't have the authority to issue the rules. The 0:11:45.760 --> 0:11:49.920 decision demonstrates the impact of the Supreme Court's ruling in 0:11:50.040 --> 0:11:53.760 June doing away with the Chevron doctrine and holding that 0:11:53.920 --> 0:11:58.960 judges shouldn't yield to agency's readings of unclear laws. Joining 0:11:59.000 --> 0:12:01.600 me is Christopher You, a professor at the University of 0:12:01.640 --> 0:12:06.520 Pennsylvania's Carrie Law School who's written extensively on administrative and 0:12:06.559 --> 0:12:10.960 telecommunications law. Will you start by explaining just what net 0:12:11.000 --> 0:12:11.840 neutrality is. 0:12:12.640 --> 0:12:14.920 Net neutrality is a political fight that's been going on 0:12:15.000 --> 0:12:19.040 since the early two thousands. On the one side are 0:12:19.600 --> 0:12:24.959 people who believe that ISPs provide Internet service to homes 0:12:24.960 --> 0:12:32.079 and businesses shouldn't exercise any editorial control over the content 0:12:32.200 --> 0:12:37.560 that they provide access to. Opponents of network neutrality argue 0:12:37.559 --> 0:12:41.400 that in the modern Internet, it has become important for 0:12:41.920 --> 0:12:48.120 ISPs to filter certain content, sometimes for security reasons, sometimes 0:12:48.440 --> 0:12:54.600 to avoid spam and unwanted content, sometimes to enforce copyright laws, 0:12:55.280 --> 0:12:58.400 but it can also be to provide a more refined 0:12:58.480 --> 0:13:04.040 and tailored service to customers who want increasingly more diverse 0:13:04.559 --> 0:13:08.880 offerings from the Internet. So, for example, online gamers are 0:13:08.920 --> 0:13:13.680 extremely sensitive to delay, and they may want content that's 0:13:13.720 --> 0:13:17.320 prioritized over other content. Another example is if you're on 0:13:17.360 --> 0:13:20.040 your cell phone and you're taking a voice call. If 0:13:20.080 --> 0:13:22.920 you're in a low bandwidth spot, you might want the 0:13:23.000 --> 0:13:25.920 system to hold your email and continue to give you 0:13:25.920 --> 0:13:29.080 your voice call to make sure that you get good 0:13:29.200 --> 0:13:32.719 quality voice communications, and the fact that you have to 0:13:32.760 --> 0:13:34.200 wait for your email is not a big deal. 0:13:35.040 --> 0:13:38.640 So the Sixth Circuit rule that the FCC doesn't have 0:13:38.679 --> 0:13:41.880 the authority to issue the net neutrality rules? 0:13:42.200 --> 0:13:44.760 What did they base their determination on? 0:13:45.320 --> 0:13:49.479 The Sixth Circuit basis determination on a Supreme Court decision 0:13:49.880 --> 0:13:54.679 that change the rules that courts will use to determine 0:13:55.000 --> 0:13:58.920 the legality of an agency's interpretation of a statute. Before 0:13:58.960 --> 0:14:02.720 this decision Loperbrite, which the Supreme Court rendered in June 0:14:02.760 --> 0:14:07.599 twenty twenty four, courts tended to defer to the agency's 0:14:07.679 --> 0:14:10.320 interpretation of the statute. That is, as long as it 0:14:10.480 --> 0:14:15.480 was reasonable within the broad range of possibility, courts would 0:14:15.520 --> 0:14:20.640 accept the agency interpretation. And on the basis of this principle, 0:14:21.000 --> 0:14:25.240 we've seen agencies flip flop and their interpretations of the 0:14:25.320 --> 0:14:29.440 legality of net neutrality rules, saying that initially that they 0:14:29.480 --> 0:14:32.880 should adopt a more deregulatory approach starting in two thousand 0:14:32.920 --> 0:14:35.800 and two, then changing in twenty ten to a more 0:14:35.800 --> 0:14:39.360 regulatory approach, then back to a more deregulatory approach in 0:14:39.400 --> 0:14:41.760 twenty eighteen, and back to a more regulatory approach in 0:14:41.800 --> 0:14:45.040 twenty twenty four. And what the Supreme Court held is 0:14:45.040 --> 0:14:48.200 that this sort of flip flopping is inconsistent with the 0:14:48.280 --> 0:14:51.840 rule of law, inconsistent with the role of courts and agencies, 0:14:52.160 --> 0:14:56.240 and is actually hurting consumers and people who have to 0:14:56.240 --> 0:14:59.160 comply with law by creating a great deal of uncertainty. 0:15:00.040 --> 0:15:03.440 And after June twenty twenty four, instead of deferring to 0:15:03.560 --> 0:15:08.520 agency interpretations, courts are supposed to exercise their own judgment 0:15:08.600 --> 0:15:10.760 as to the best reading of the statute and apply that. 0:15:11.240 --> 0:15:12.560 And that's what the Sixth Circuit did. 0:15:13.440 --> 0:15:14.400 Is it the fault of. 0:15:14.360 --> 0:15:18.080 The FCC for flip flopping on its. 0:15:18.200 --> 0:15:19.600 Readings of the statute? 0:15:20.000 --> 0:15:22.800 The Court said, applying low or bright means we can 0:15:22.880 --> 0:15:25.840 and the FCC's vacillations. 0:15:26.520 --> 0:15:29.320 The fact that the FCC was vacillating on the right 0:15:29.360 --> 0:15:32.880 interpretation of the statute when deciding whether to apply that 0:15:32.960 --> 0:15:36.320 neutrality isn't really the fault of the FCC. In fact, 0:15:36.440 --> 0:15:39.080 that complied with the law that existed at the time. 0:15:40.120 --> 0:15:43.600 The decision that called for courts to defer to agency 0:15:43.600 --> 0:15:46.680 decisions that's called Chevron and has been in place since 0:15:46.720 --> 0:15:52.080 nineteen eighty six explicitly recognized that agencies are likely to 0:15:52.200 --> 0:15:55.920 change their minds and in fact endorse that idea. So 0:15:56.320 --> 0:16:01.600 what the prior regime envisioned is that vrocations of statutes 0:16:01.600 --> 0:16:05.880 were policy decisions, and just like say, for example, foreign 0:16:05.920 --> 0:16:09.720 policy changes with the advent of a new administration, we 0:16:09.760 --> 0:16:14.200 would expect this degree of policy to change as well. 0:16:14.320 --> 0:16:17.440 The problem the Supreme Court had with that is statutes 0:16:17.480 --> 0:16:20.960 aren't policy. Statutes are law, and the change of administration 0:16:21.120 --> 0:16:23.560 does not involve the change in the statute or change 0:16:23.560 --> 0:16:26.120 in the law. It's a change in the interpretation of 0:16:26.160 --> 0:16:29.600 the law. And that opens the door to the claim 0:16:29.640 --> 0:16:35.600 that interpreting law is policy, not lawmaking. And that's where 0:16:35.640 --> 0:16:38.200 the Supreme Court said, we don't do that anymore. If 0:16:38.240 --> 0:16:40.320 you want to change the statute, you need to actually 0:16:40.320 --> 0:16:44.040 amend it. It's not open for reinterpretation just because someone 0:16:44.040 --> 0:16:45.360 else occupies the White House. 0:16:45.960 --> 0:16:49.760 Lober Bright said that prior decisions that relied on that 0:16:49.880 --> 0:16:54.920 doctor the Chevron doctrine still have binding power, starry decisives. 0:16:55.560 --> 0:16:57.480 How did the Sixth Circuit get around that? 0:16:57.920 --> 0:17:00.840 The issue you're raising has been around owned with us 0:17:00.920 --> 0:17:03.640 since certainly the days of the war in court. I 0:17:03.640 --> 0:17:07.200 mean to give you a simple example. Gideon versus Wainwright 0:17:07.920 --> 0:17:11.240 announced that all criminal defendants must be provided with defense 0:17:11.320 --> 0:17:14.720 counsel provided by the government. And you know we had 0:17:14.760 --> 0:17:18.000 never as a country it provided that to indigence. And 0:17:18.200 --> 0:17:21.080 it raised a question, so does that mean every single 0:17:21.680 --> 0:17:25.119 conviction going back to the beginning of the Republic was 0:17:25.119 --> 0:17:28.679 inherently suspect? And what the Supreme Court has developed is 0:17:29.160 --> 0:17:33.800 a doctrine which is, we will apply our best understanding 0:17:33.880 --> 0:17:37.639 of the law to all cases that are ongoing, but 0:17:37.720 --> 0:17:41.080 to cases that are final. We're not going to overturn 0:17:41.560 --> 0:17:46.320 convictions going back hundreds of years. So the real question is, 0:17:46.440 --> 0:17:50.360 in a particular matter, if the courts have resolved the issue, 0:17:51.040 --> 0:17:54.000 the Supreme Court said, we will not disturb that decision, 0:17:54.480 --> 0:17:58.760 but for new matters involving cases that are still ongoing 0:17:58.920 --> 0:18:02.040 or cases that are newly submitted, they will apply a 0:18:02.040 --> 0:18:05.760 new set of principles. Here, every prior decision about net 0:18:05.800 --> 0:18:11.080 neutrality regarded a different net neutrality order either the declaratory 0:18:11.119 --> 0:18:14.600 judgment in two thousand and two or orders in twenty ten, 0:18:14.680 --> 0:18:18.320 twenty fifteen, twenty eighteen, and all of those have been 0:18:18.359 --> 0:18:21.479 resolved under law, and all of those decisions are now final. 0:18:21.840 --> 0:18:24.159 The decision in front of the Sixth Circuit involved a 0:18:24.480 --> 0:18:27.040 order that came out of twenty twenty four that had 0:18:27.080 --> 0:18:30.560 never been resolved or addressed by a court, and as 0:18:30.600 --> 0:18:33.320 a result, it was still a live issue, and under 0:18:33.400 --> 0:18:37.080 the Supreme Court's guidance, the Sixth Circuit applied the current 0:18:37.160 --> 0:18:39.480 rules that have been placed ince June twenty twenty four 0:18:39.880 --> 0:18:42.639 to address the legality of the twenty twenty four action. 0:18:43.320 --> 0:18:45.919 So all they're saying really is that we're not going 0:18:45.960 --> 0:18:48.679 to upset the decisions regarding the twenty ten, twenty fifteen, 0:18:48.720 --> 0:18:51.200 twenty eighteen orders. We are going to look at the 0:18:51.240 --> 0:18:55.080 twenty twenty four order with new eyes under the Supreme 0:18:55.080 --> 0:18:59.520 Court's current rules for how courts should evaluate agency interpretations 0:18:59.520 --> 0:19:00.119 of the statue. 0:19:00.359 --> 0:19:05.000 Does this decision end the legal battle over net neutrality rules? 0:19:05.320 --> 0:19:09.760 Brendan Carr, who Trump has named as an incoming FCC chair, 0:19:10.400 --> 0:19:12.919 has been a strong critic of net neutrality. 0:19:12.920 --> 0:19:16.280 So is this the end the Sixth Circuit decision most 0:19:16.480 --> 0:19:20.520 likely ends the controversy over the legality of net neutrality. 0:19:21.520 --> 0:19:25.760 The parties who support the twenty twenty four order that 0:19:25.840 --> 0:19:29.240 the Sixth Circuit overturned could still appeal the issue to 0:19:29.280 --> 0:19:33.240 the Supreme Court, and so there remain some possibility that 0:19:33.480 --> 0:19:35.720 there will be further review of the Sixth Circuit decision. 0:19:36.440 --> 0:19:39.879 But honestly, having clorked on the court myself and having 0:19:39.920 --> 0:19:43.480 some experience in how they operate, my guess is that 0:19:43.560 --> 0:19:45.720 this is not likely to be the kind of case 0:19:45.760 --> 0:19:49.520 that they take. It doesn't bear the kinds of conflicts 0:19:49.520 --> 0:19:52.320 between different courts and different parts of the country that 0:19:52.359 --> 0:19:55.119 has been the hallmark of the types of cases the 0:19:55.119 --> 0:19:55.920 Supreme Court takes. 0:19:55.960 --> 0:19:58.120 Theseis as far as lowbribright. 0:19:58.440 --> 0:20:02.199 In general, are the courts around the country interpreting the 0:20:02.240 --> 0:20:07.560 decision there differently, are their conflicting decisions out there? 0:20:08.200 --> 0:20:11.040 There are no conflicting decisions on the net neutrality order, 0:20:11.880 --> 0:20:15.320 And in fact, the parties who litigated that case before 0:20:15.359 --> 0:20:18.040 the Sixth Circuit are now bound by that decision and 0:20:18.119 --> 0:20:21.200 are really obligated to follow it, so they're not really 0:20:21.240 --> 0:20:23.639 in a position to bring a new challenge to the 0:20:23.640 --> 0:20:26.600 twenty twenty four order. From a broader perspective, the Sixth 0:20:26.680 --> 0:20:30.320 Circuit has taken the approach that gives it a great 0:20:30.359 --> 0:20:36.840 deal of latitude to deviate from prior judicial decisions that 0:20:36.880 --> 0:20:41.280 presented the same issue but arose from a different agency order. 0:20:41.920 --> 0:20:45.919 And that actually opens the door to a fairly broad 0:20:46.000 --> 0:20:49.920 scope of action for courts to revisit issues that had 0:20:49.920 --> 0:20:52.960 been adjusted by prior courts and hadn't been resolved now. 0:20:53.000 --> 0:20:55.000 I don't think that's improper for the Sixth Circuit, and 0:20:55.040 --> 0:20:58.200 in fact, the Supreme Court, by changing the interpretive rules, 0:20:58.760 --> 0:21:01.600 expects there to be different outcomes. And in fact, if 0:21:01.640 --> 0:21:05.280 there was too little latitude for courts to apply their 0:21:05.320 --> 0:21:07.520 own judgment as to the best reading of the statute 0:21:07.840 --> 0:21:11.280 and instead to continue to defer to what agencies thought 0:21:11.280 --> 0:21:14.320 were the best reading, that would actually create a very 0:21:14.359 --> 0:21:16.960 little room for the kinds of changes in law that 0:21:17.000 --> 0:21:19.440 the Supreme Court has called for. And it's during twenty 0:21:19.480 --> 0:21:23.439 twenty four decision. I think the Sixth Circuit's opinion, while 0:21:23.680 --> 0:21:26.120 one of the first to address this issue, is likely 0:21:26.119 --> 0:21:28.159 to be borne out by further decisions in the future. 0:21:28.680 --> 0:21:29.240 And do you. 0:21:29.200 --> 0:21:33.640 Think that we're going to see more federal regulations at 0:21:33.680 --> 0:21:38.960 the FCC and other agencies followed out or you know, 0:21:39.000 --> 0:21:41.800 disregarded agencies. 0:21:41.280 --> 0:21:45.119 Like the FCC are certainly facing a more challenging environment 0:21:45.400 --> 0:21:49.159 in which courts are likely to be more skeptical of 0:21:49.200 --> 0:21:52.520 the actions they take. The previous regime gave them deference 0:21:52.760 --> 0:21:57.560 and so therefore they had a pretty wide latitude to 0:21:57.600 --> 0:22:00.639 follow the policies that they preferred. Now they're going to 0:22:00.680 --> 0:22:05.360 have to justify their actions a bit more specifically, and 0:22:05.400 --> 0:22:07.520 that's going to represent a clear challenge to them. 0:22:07.960 --> 0:22:11.600 There have been fights over net neutrality for decades. Does 0:22:11.600 --> 0:22:14.640 it seem odd that now this one court is going 0:22:14.640 --> 0:22:16.639 to put the whole issue to rest. 0:22:17.440 --> 0:22:21.879 Courts have to decide close cases all the time, and 0:22:22.000 --> 0:22:26.480 even if it's a very very narrow issue, they generally 0:22:26.680 --> 0:22:30.680 don't shy away from resolving those issues, and I think 0:22:30.720 --> 0:22:33.400 that sort of characterizes what's going on with net neutrality. 0:22:33.680 --> 0:22:36.000 I think there are good arguments on both sides. I 0:22:36.040 --> 0:22:38.640 personally agree with the way the Six Circuit resolve the issue, 0:22:38.760 --> 0:22:42.280 but I understand why other people feel differently. The bigger 0:22:42.320 --> 0:22:45.959 issue that the Supreme Court addressed is to eliminate the 0:22:46.040 --> 0:22:50.600 possibility or in this case, the net neutrality. The reality 0:22:50.880 --> 0:22:53.920 that we saw what was the laws flip flop every 0:22:53.960 --> 0:22:58.440 time the White House changed party. And in fact, many 0:22:58.480 --> 0:23:01.400 people would say, if there's a close issue, we're better 0:23:01.480 --> 0:23:06.560 off having courts resolving it once on the best terms 0:23:06.680 --> 0:23:11.280 it can and then letting that interpretation stand until Congress 0:23:11.280 --> 0:23:15.480 sees fit to amend it or not. The world in 0:23:15.520 --> 0:23:20.480 which we're in where we saw policy flip flop multiple times, 0:23:20.680 --> 0:23:24.760 is not one that's conducive to creating great Internet connectivity 0:23:25.119 --> 0:23:30.400 or to creating stable expectations for consumers and Internet users 0:23:30.720 --> 0:23:32.919 to understand what they're getting. And so, in fact, I 0:23:32.960 --> 0:23:35.639 think that the fact that there are tough cases is 0:23:35.680 --> 0:23:38.359 not a reason for courts to shy away from making 0:23:38.400 --> 0:23:44.560