Speaker 1: The votes in Georgia for the presidential election have been
Speaker 1: counted three times, confirming that President elect Joe Biden beat
Speaker 1: President Trump by eleven thousand, seven hundred seventy nine votes
Speaker 1: in the traditionally Republican state. But in a sixty two
Speaker 1: minute call on Saturday, just days before Congress is scheduled
Speaker 1: to certify the election results, President Trump pressured Georgia election
Speaker 1: officials to find thousands of votes and recalculate the election
Speaker 1: result to flip the state to him, just enough for
Speaker 1: him to pass Biden by one vote. All I wanna
Speaker 1: do is this. I just want to find uh eleven thousand,
Speaker 1: seven d eight votes, which is one more that we have.
Speaker 1: Georgia officials responded by saying they have no evidence of
Speaker 1: widespread fraud and they'll stand by the election results. Joining me,
Speaker 1: the elections law expert Richard Brofald, a professor at Columbia
Speaker 1: Law School, the first, well, what is your reaction to
Speaker 1: President Trump calling Georgia's secretary of state and asking him
Speaker 1: to find eleven thousand, seven eight votes. It looks a
Speaker 1: lot like he is asking the secretary of state to
Speaker 1: commit a crime, and in so doing, it looks like
Speaker 1: he is committing a crime. I mean, it is illegal
Speaker 1: to attempt to the private residence of the state of
Speaker 1: affair and impartial election. I'm quoted from the relevant federal law.
Speaker 1: It's illegal to procure or cause retabulation of ballots better
Speaker 1: known to be false or fraudulent. And that's again a
Speaker 1: pretty close paraphrase of the federal law. And there's a
Speaker 1: similar Georgia law that basically makes it a crime to
Speaker 1: solicit somebody to commit election fraud. Given all of the
Speaker 1: audits and re audits and recount that Georgia has been through,
Speaker 1: as well as all the litigation it's been resolved and
Speaker 1: resolved and resolved against, so to say, can't you find
Speaker 1: a seven thousand votes for me? Sounds an awful law,
Speaker 1: like asking somebody to commit fraud, and that itself to
Speaker 1: the crime. Now, the only thing that sort of draws
Speaker 1: you back from this is criminal laws usually require that
Speaker 1: the action be knowing and willful about that the person
Speaker 1: committing the act knows that it's a crime. And one
Speaker 1: thing that's a little hard to tell from all this
Speaker 1: is whether the president really believes that there are all
Speaker 1: these fraudulent votes out there and all these uncounted votes
Speaker 1: or whether it's just, you know, a gimmick, and whether
Speaker 1: maybe he should believe it given all of the court
Speaker 1: decisions and all of the recounts that have occurred. So
Speaker 1: to try and push somebody to coerce by threatening with prosecution,
Speaker 1: or to to now induce somebody to commit election fraud
Speaker 1: is itself a crime, both federally and in Georgia. And
Speaker 1: the only hold up is this issue of state of mind.
Speaker 1: You have to be able to prove that this was
Speaker 1: done knowing that since would be committing fraud. There's also
Speaker 1: the rambling nature of the call, with President Trump jumping
Speaker 1: back and forth between issues, and there's no explicit threat. Now.
Speaker 1: I mean, in some ways it's a little bit like
Speaker 1: from what we know about the Ukraine call, except this
Speaker 1: one's on tape. When he doesn't outright demand something, it's
Speaker 1: kind of what he's asking and then he's giving evidence.
Speaker 1: But you know, I haven't listened to very many types
Speaker 1: of mob bosses, but people tell me that that's what
Speaker 1: it sounds like. They very rarely say outright, you must
Speaker 1: do this. They kind of set it up in a
Speaker 1: certain way that puts pressure. I mean, I think it
Speaker 1: sure looks and feels a lot like asking somebody to
Speaker 1: commit collection fraud. Whether it actually crosses that line, given
Speaker 1: state of mind, and given if you parse it word
Speaker 1: by word, be a closer question that certainly, whatever it is,
Speaker 1: it's totally improper, whether it is an outright crime, and
Speaker 1: there's certainly a case for calling it an outright crime.
Speaker 1: It's the big question also is who would prosecute this crime? Well,
Speaker 1: of course right now general government camp was probably not
Speaker 1: going to prosecuting as the president, but presuming he doesn't
Speaker 1: attempt to pardon himself um, and there is a huge
Speaker 1: debate about whether a president can self pardon. Starting on
Speaker 1: January one, the U S Attorney UH, I guess, starting
Speaker 1: on the afternoon of January he was attorney to bring
Speaker 1: the case. And of course they violates or at least
Speaker 1: there is a good argument that it violates Georgia law.
Speaker 1: And presumably the a local district attorney UM, the attorney
Speaker 1: I guess of the county where the state officials were sitting.
Speaker 1: I think that's Fulton County. UH could also open an investigation.
Speaker 1: And the president cannot pardon himself for a crimes committed
Speaker 1: under state law. But Joe Biden has said that he's
Speaker 1: going to let the Justice Department do what if the
Speaker 1: Justice Department is supposed to do without any influence from him.
Speaker 1: There's also a political question of whether the Biden administration
Speaker 1: wants to start by prosecuting the former president, right. I mean,
Speaker 1: there are prudential questions as to whether this is a
Speaker 1: wise move. I mean, the case for opening in the
Speaker 1: instigation is that this is, Yeah, it's one thing to
Speaker 1: sort of try and have somebody to try and commit
Speaker 1: election for something else from President United States is himself
Speaker 1: involved in a possible election fraud, and so given mistakes,
Speaker 1: there's a lot to be said for saying, you know
Speaker 1: that nobody is above the law. On the other hand,
Speaker 1: I could certainly understand the desire to put it all behind,
Speaker 1: especially since it probably it's ever got into court. It
Speaker 1: probably is not completely open and shut, but there's certainly
Speaker 1: a lot of a lot there that could support an
Speaker 1: investigation and possibly an indictment. So far, we have a
Speaker 1: federal court dismissing the lawsuit that Congressman Louis Gohmert brought
Speaker 1: against Vice President Pans. What did you get from that dismissal? Well,
Speaker 1: they were utterly impatient with it. I mean, I think
Speaker 1: even more than the dismissial by the distrecorded dississial by
Speaker 1: the Court of Appeals, which shouldn't even wait till it
Speaker 1: was briefed, I mean over appealed immediately. Uh. And the
Speaker 1: Court of Appeals knocked it out before even for all
Speaker 1: the papers were filed. Um, it's a pretty preposterous lawsuit.
Speaker 1: I mean, it was not decided on the merits. That
Speaker 1: was decided on standing and other technical issues, but on
Speaker 1: the merits. Um. The idea that the vice president has
Speaker 1: a substantive role to play it just makes no sense
Speaker 1: given that you know, in many elections, including this one,
Speaker 1: the vice president himself will be affected by the outcome.
Speaker 1: So the idea that you would give him a role
Speaker 1: in deciding whether or not he wins his own election. Uh,
Speaker 1: and given a substantive role, just makes no sense. On Wednesday,
Speaker 1: nearly a dozen Senators are going to be joining with
Speaker 1: dozens of their colleagues in the House and objecting two
Speaker 1: votes from several closely fought states where Trump has claimed
Speaker 1: baselessly that fraud cost him the election. There is a
Speaker 1: legal basis for that, isn't there? Yeah? Um, so under
Speaker 1: the combination of the Constitution and the Electoral Account Act,
Speaker 1: which is the law that Congress adopted to govern the
Speaker 1: this exact process. Um. The the electoral votes are on
Speaker 1: January six, and this is my statute. Congress comes into session. Um.
Speaker 1: The envelopes that contain the submissions from the fifty states
Speaker 1: in district Columbia are opened um by the Vice President,
Speaker 1: who the President of the Senate, the Congress together the House,
Speaker 1: the Senate in one chamber of the House chamber, and
Speaker 1: then they're handed over to the clerks, and the clerks
Speaker 1: then read them in the states in alphabetical order. UM.
Speaker 1: My guess Alabama's first, I forget the number of actoral
Speaker 1: votes Alabama less. I think it's nine in a month.
Speaker 1: The confident of that, and that's accepted unless somebody objects.
Speaker 1: Under the law, you need to have one member of
Speaker 1: the House and one member of the Senate both objects.
Speaker 1: If only somebody from one chamber of objects, nothing happens,
Speaker 1: you need to have one number from each chamber to object.
Speaker 1: If that occurs, then they are supposed to resets. Each
Speaker 1: chamber is supposed to meet separately and debate for up
Speaker 1: to two hours as to whether or not they should
Speaker 1: accept or reject the vote from the the challenge state.
Speaker 1: But under the law, both chambers have to say no
Speaker 1: when presented with a set up with the electoral votes
Speaker 1: of the state if they want to reject it. So
Speaker 1: you would need both the House and the Senate to
Speaker 1: say no. It seems very unlikely that Alice is going
Speaker 1: to say no since House has a narrow Democratic majority,
Speaker 1: and given the number of Republican senators in the Senate
Speaker 1: who said they're not going to say no, it seems
Speaker 1: unlucky the sentup will say no either. But the process
Speaker 1: will take time because not only is there two hours
Speaker 1: of debate, but they actually would need to vote, and
Speaker 1: under COVID circumstances, with the chambers not being full, the
Speaker 1: vote could take some time, particularly in the House, which
Speaker 1: is a very big body. So it's conceivable of the
Speaker 1: vote itself will take an hour or more, and there
Speaker 1: would be a separate vote on each challenge state. And
Speaker 1: we don't know how many states the Republicans intend to challenge.
Speaker 1: I guess we've been hurting here. He read a maximum
Speaker 1: of six six states that were somewhat close and the
Speaker 1: final count. But that could mean that this could take
Speaker 1: at least twelve hours and probably at least eighteen and
Speaker 1: accounting the time it takes to vote, so they could
Speaker 1: be very well debating during the night, and this could
Speaker 1: very well take until the morning or maybe even midday
Speaker 1: on the seventh, until it's results if they really want
Speaker 1: to go ahead and have a debate on each of them,
Speaker 1: and I'm guessing at six states that they might want
Speaker 1: to challenge. So Rich, I have a question about that
Speaker 1: eighties law. Doesn't it contemplate that there's two competing groups
Speaker 1: of electors that are being presented by the state. There
Speaker 1: are two different scenarios. One is if there is one
Speaker 1: set of electors, and what I was describing with a
Speaker 1: scenario for challenging that that's all there is. There's no
Speaker 1: there are no other official submitted electors for many of
Speaker 1: the states. All the states have submitted just one set
Speaker 1: of electors. Other scenario, and this does deal with something
Speaker 1: which occurred in the election which led to the seven law,
Speaker 1: is that there were disagreements in the states, and in
Speaker 1: a couple of the states in the eighteen seventy six
Speaker 1: the governor sent in one set of electors and the
Speaker 1: legislature sent in something else. If it's two dueling sets
Speaker 1: of electors, um, the two chambers have to agree. But
Speaker 1: if if they can't agree, it's supposed to be the
Speaker 1: set that the governor signed, so there is a safety
Speaker 1: valve if they disagree. Or as if it's just one
Speaker 1: set of electors, if they disagree, that those electors count
Speaker 1: because you need both chambers to vote them down. So
Speaker 1: the prevailing wisdom is that there is no possible way
Speaker 1: that the votes won't be counted and Joe Biden won't
Speaker 1: be deemed the winner. Do you agree with no possible way?
Speaker 1: I'm going to say that, given how insane this entire
Speaker 1: year has been, I don't want to say that, UM,
Speaker 1: but I will say that there is no kind of
Speaker 1: legal or constitutional way that all of the law, the
Speaker 1: constitutional and legal provisions, and the votes that we know
Speaker 1: of in Congress all point in the direction that this
Speaker 1: may take longer than normal, longer than ever before, but
Speaker 1: that they will all be, that they will all be
Speaker 1: resolved and Biden will get is what I think. It's
Speaker 1: three hundred and six electoral votes. It might take twenty
Speaker 1: four hours, but that should be the way it works. Out.
Speaker 1: There is reporting that Vice President Pence's aids are developing
Speaker 1: a plan for him to acknowledge the reality of the
Speaker 1: November election, but at the same time making a statement
Speaker 1: about President Trump's claims about election fraud that have been disproven.
Speaker 1: Is their room for him to do that? To make
Speaker 1: a statement? My impressionist that's never happened. But I don't
Speaker 1: know that anything that would stop that. He is the
Speaker 1: presiding officer. He's got the castle, so it would be
Speaker 1: hard to see how he could be stopped. I suppose
Speaker 1: members of Congress could object, but um, since I don't
Speaker 1: think anything like that has happened before, we don't know
Speaker 1: how that scenario would play out. He does that, McCall,
Speaker 1: he is standing up on the rostrum, and it's possible.
Speaker 1: Thanks for being the Bloomberg Law Show. Rich that's Professor
Speaker 1: Richard Rofault of Columbia Law School. A DC federal appellate
Speaker 1: court has ruled that requests for information by Congressional Oversight
Speaker 1: panels don't require the approval of the majority members. The
Speaker 1: two to one decision overturned a district court opinion for
Speaker 1: the Trump administration. The appellate Court's decision affirms the right
Speaker 1: of minorities on the oversight committees at least seven members
Speaker 1: on the House Committee and five in the Senate to
Speaker 1: request information from federal agencies and to get the courts
Speaker 1: to step in if the agencies refused to comply with
Speaker 1: a request for information. That's distinct from the subpoena power
Speaker 1: of congressional committees, which requires a majority of the committee
Speaker 1: joining me. Is David Sklansky, a professor at Stanford Law School,
Speaker 1: start by explaining what the lawsuit was all about. But
Speaker 1: that's the lawsuit filed by Democratic members of the House
Speaker 1: Committee on Oversight and Reform. They sued the General Services
Speaker 1: Administration for failing to give them information that they had
Speaker 1: requested about the lease of the post office building in
Speaker 1: the District of Columbia to Donald Trump and company. So
Speaker 1: now this is under the seven member rule, not about
Speaker 1: a subpoena. That's correct. Um, There's a federal statute that
Speaker 1: says that certain number of members of either the Senate
Speaker 1: oversyche Committee or the House oversych Committee, it's five members
Speaker 1: of the Senate Committee or seven members of the House
Speaker 1: Committee can request information on any matter within the purview
Speaker 1: of the committee from the executive branch and the Executive
Speaker 1: branch has to supply it. That's without a subpoena. The
Speaker 1: lawsuit was brought by seven the Democratic members of the
Speaker 1: House Committee on Oversight and Reform, and they requested information
Speaker 1: pursuance of the federal statute, and the administration refused to
Speaker 1: provide it. So they went to court. So tell us
Speaker 1: what happened at the trial court level. The trial courts,
Speaker 1: the Settle dist the court um in the District of
Speaker 1: Columbia ruled against the plaintiffs because the trial courts said
Speaker 1: that they lacked standing, and standing as a technical legal
Speaker 1: doctrine that says that uh, federal courts can't decide questions
Speaker 1: the abstract. They can only decide questions. They can only
Speaker 1: take on a case when there's something concrete at stake,
Speaker 1: and it has to be at stake between the people
Speaker 1: who are bringing the case and the people who are
Speaker 1: being sued. So I can't see, for example, because I
Speaker 1: think that my son was unfairly taken advantage of or
Speaker 1: he did out of something. And you also can't see
Speaker 1: even if some organization that you're a part of has
Speaker 1: been wrong. So I'm a professor at Stanford, but I
Speaker 1: can't sue because I think Stanford University has a right
Speaker 1: that was infringed on somehow, or Stanford University was unfairly damaged.
Speaker 1: And that's true for members of Congress too. Members of
Speaker 1: Congress generally are not allowed to se because they think
Speaker 1: that Congress is not being treated well, but they can
Speaker 1: sue if they individually have been injured in some way
Speaker 1: that the court has the power to address. So the
Speaker 1: district court said that these members of Congress lack standing
Speaker 1: to complain about a violation of this statute because the
Speaker 1: statute didn't really protect them to protected Congress. So the
Speaker 1: House of Representatives could sue, but these individual members couldn't sue.
Speaker 1: That's what the trial court said. Okay, so tell us
Speaker 1: now what the appellate court said. The Power Court said,
Speaker 1: it's not true that these individual members of Congress weren't
Speaker 1: her they were hurt. This is a statute that gives
Speaker 1: a right two groups of congressional representatives to request information
Speaker 1: from the executive branch, even when they're in the minority.
Speaker 1: So it's an unusual statute in that way. And there
Speaker 1: is something we all have to stay to you. The
Speaker 1: Court of Appeal said, between these individual members and the administration,
Speaker 1: these individual members say we have a right to this
Speaker 1: information under the statutes, and the executive brand said, we're
Speaker 1: not giving it to you. So the Court of Appeal said,
Speaker 1: these members do have standings to pursue this lawsuit. Now,
Speaker 1: that doesn't mean that they're gonna win. It doesn't mean
Speaker 1: that they have a right to the information. It doesn't
Speaker 1: even mean that the court ultimately should decide whether they
Speaker 1: have a right to the information. Because the Court of
Speaker 1: Appeal said that the trial courts can consider uh an
Speaker 1: argument that the Trump administration raised, that it would be
Speaker 1: inappropriate for courts to get involved in this question altogether.
Speaker 1: The trial court also consider an argument that the Trump
Speaker 1: administration raised that this statute doesn't give right to members
Speaker 1: of Congress that they can pursue in court, and the
Speaker 1: trial courts can consider an argument that the Trump administration
Speaker 1: raised um that the kind of information that these members
Speaker 1: were requesting is not the kind of information that the
Speaker 1: statute authorizes them to request. So the Trump administration could
Speaker 1: still win in court when it goes back to the
Speaker 1: trial court, assuming that the administration continues to contest the lawsuits.
Speaker 1: So that the Court of Appeals didn't say that the
Speaker 1: point does automatically win. It just said they don't lose
Speaker 1: on standing grounds. Now, as a practical matter, Um, the
Speaker 1: administration is about the change hands. So there's gonna be
Speaker 1: a new director of the generalman Services Administration and the
Speaker 1: new president, and it's highly unlikely that the new administration
Speaker 1: is going to continue to resist giving this information to Congress,
Speaker 1: so the student is likely to become UH moved once
Speaker 1: the new ministration takes over. Um. What what will stay
Speaker 1: on the books, though, is the decision by the Court
Speaker 1: of Appeals that a minority UH a group of minority
Speaker 1: members of either of the Congressional oversight committees, the Senate
Speaker 1: Oversight Committee or the House Oversight Committee can sue in
Speaker 1: court two force the administration to comply with the requests
Speaker 1: that are made pursue into the Sederal Statute Section type
Speaker 1: of five. Does this ruling fit in with the way
Speaker 1: the Supreme Court has ruled in cases recently involving Congress suing. Well,
Speaker 1: that's what the Court of Appeals disagreed about. So that's
Speaker 1: the as is normal on a federal Court of Appeals.
Speaker 1: Beside the case, the case is decided by a three
Speaker 1: judge Channel three of the judges on the United States
Speaker 1: Court of Appeals for the discuss Columbius Circuit, and those
Speaker 1: judges slipped to one. Two of the judges thought that
Speaker 1: he requests that these members of Congress we're making and
Speaker 1: the lawsuit that they filed falls within the decisions of
Speaker 1: the United States Screme Court. Is made about when Congress
Speaker 1: is allowed to s and when Congressional committees are allowed
Speaker 1: to because the United States treame Court has made it
Speaker 1: clear that the House of Representatives can sue to get
Speaker 1: traditional enforcement UH, it's right under the law, and Congressional
Speaker 1: committees consue to enforce their subtoenas. On the other hand,
Speaker 1: individual members of Congress can't to complaint, meaning that the
Speaker 1: committee or UH or the House of Representatives as a
Speaker 1: whole or the Senate as a whole was unfairly treated
Speaker 1: and didn't get what they're entitled to under the law.
Speaker 1: So the question in the cases is a group of
Speaker 1: five members of the Senate committee or seven members of
Speaker 1: the House committee, is that UM like UH when those
Speaker 1: people sue. Is that like an individual member of Congress
Speaker 1: doing saying I think Congress has has been injured or
Speaker 1: is it like um individual members of Congress doing when
Speaker 1: they impact themselves have been injured. So there was a
Speaker 1: disagreement among the three judges, and two of them said
Speaker 1: that the Screen courts earlier decisions suggests that these members
Speaker 1: of Congress have standing, and one member of the court
Speaker 1: thought otherwise. He said that the decisions of the United
Speaker 1: Satescreen Corps proper the interpreted suggest that these members don't
Speaker 1: catch standing. Congressional subpoenas seem to be not worth the
Speaker 1: paper they're written on recently, at least in the last
Speaker 1: four years, because it doesn't seem like there's any enforcement power.
Speaker 1: They have to go into the courts and then it
Speaker 1: takes forever. And as we've seen in many cases, the
Speaker 1: Trump administration is coming to an end before some of
Speaker 1: these cases are coming to an end. So is this
Speaker 1: a better way, like for this one oversight committee to
Speaker 1: get information, an easier way than through subpoena? Well, it's
Speaker 1: easier in the sense that the party that is in
Speaker 1: the minority and request of information without getting the committee
Speaker 1: as a whole to approve it. But once the request
Speaker 1: is made, if the administration fails to comply, you have
Speaker 1: the same problem that you have with subpoena. That enforcing
Speaker 1: a right information in federal court can take a long
Speaker 1: time um and the administer ration can run down the clock.
Speaker 1: That's exactly what happened here in this decision is coming
Speaker 1: at the very end of the Trump administration. Now, I
Speaker 1: wouldn't say that that means that it's useless. It happens
Speaker 1: that Trump lost the election and he's on his way out.
Speaker 1: But if he had won the election, he would have
Speaker 1: been in office for another four years, and it would
Speaker 1: have been meaningful that the court had said that there
Speaker 1: was a right to this information. Still, it's unclear how
Speaker 1: quickly they would have gotten the information even with this ruling, because,
Speaker 1: as I mentioned, the ruling just says that that the
Speaker 1: standing doctrine doesn't block this too, the administration still had
Speaker 1: other arguments for why the lawsuits shouldn't be allowed and
Speaker 1: why they shouldn't be required to turn over the information,
Speaker 1: and it could well be that litigating those additional issues
Speaker 1: would have taken another four years. Thanks so much for
Speaker 1: being on the show. That's David Skolanski, professor at Stanford
Speaker 1: Law School. And that's it for the addition of the
Speaker 1: Bloomberg Law podcast. I'm June Grosso. Thanks so much. For listening,
Speaker 1: and remember you can always get the latest legal news
Speaker 1: on our Bloomberg Law podcast. You can find them on
Speaker 1: Apple Podcasts, Spotify, and wherever you get your favorite podcasts.
Speaker 1: And please listen to The Bloomberg Lawn Show every weeknight
Speaker 1: at ten pm Eastern on Bloomberg Radio