WEBVTT - Challenge to the Electoral College Count 0:00:00.160 --> 0:00:03.200 The votes in Georgia for the presidential election have been 0:00:03.240 --> 0:00:07.640 counted three times, confirming that President elect Joe Biden beat 0:00:07.680 --> 0:00:11.520 President Trump by eleven thousand, seven hundred seventy nine votes 0:00:11.880 --> 0:00:15.640 in the traditionally Republican state. But in a sixty two 0:00:15.680 --> 0:00:19.680 minute call on Saturday, just days before Congress is scheduled 0:00:19.680 --> 0:00:23.919 to certify the election results, President Trump pressured Georgia election 0:00:24.000 --> 0:00:28.320 officials to find thousands of votes and recalculate the election 0:00:28.400 --> 0:00:31.680 result to flip the state to him, just enough for 0:00:31.760 --> 0:00:36.000 him to pass Biden by one vote. All I wanna 0:00:36.080 --> 0:00:41.120 do is this. I just want to find uh eleven thousand, 0:00:41.800 --> 0:00:46.400 seven d eight votes, which is one more that we have. 0:00:47.159 --> 0:00:50.479 Georgia officials responded by saying they have no evidence of 0:00:50.520 --> 0:00:54.720 widespread fraud and they'll stand by the election results. Joining me, 0:00:54.800 --> 0:00:58.080 the elections law expert Richard Brofald, a professor at Columbia 0:00:58.160 --> 0:01:01.800 Law School, the first, well, what is your reaction to 0:01:02.280 --> 0:01:07.959 President Trump calling Georgia's secretary of state and asking him 0:01:08.000 --> 0:01:12.760 to find eleven thousand, seven eight votes. It looks a 0:01:12.880 --> 0:01:15.800 lot like he is asking the secretary of state to 0:01:15.800 --> 0:01:18.040 commit a crime, and in so doing, it looks like 0:01:18.400 --> 0:01:21.360 he is committing a crime. I mean, it is illegal 0:01:21.680 --> 0:01:24.280 to attempt to the private residence of the state of 0:01:24.360 --> 0:01:27.720 affair and impartial election. I'm quoted from the relevant federal law. 0:01:28.240 --> 0:01:33.240 It's illegal to procure or cause retabulation of ballots better 0:01:33.319 --> 0:01:35.840 known to be false or fraudulent. And that's again a 0:01:35.959 --> 0:01:39.000 pretty close paraphrase of the federal law. And there's a 0:01:39.040 --> 0:01:41.600 similar Georgia law that basically makes it a crime to 0:01:41.640 --> 0:01:45.840 solicit somebody to commit election fraud. Given all of the 0:01:45.880 --> 0:01:49.480 audits and re audits and recount that Georgia has been through, 0:01:49.520 --> 0:01:52.480 as well as all the litigation it's been resolved and 0:01:52.520 --> 0:01:55.200 resolved and resolved against, so to say, can't you find 0:01:55.200 --> 0:01:58.360 a seven thousand votes for me? Sounds an awful law, 0:01:58.640 --> 0:02:02.240 like asking somebody to commit fraud, and that itself to 0:02:02.320 --> 0:02:05.360 the crime. Now, the only thing that sort of draws 0:02:05.400 --> 0:02:08.400 you back from this is criminal laws usually require that 0:02:08.480 --> 0:02:11.840 the action be knowing and willful about that the person 0:02:12.280 --> 0:02:16.119 committing the act knows that it's a crime. And one 0:02:16.120 --> 0:02:18.480 thing that's a little hard to tell from all this 0:02:18.919 --> 0:02:22.200 is whether the president really believes that there are all 0:02:22.240 --> 0:02:25.040 these fraudulent votes out there and all these uncounted votes 0:02:25.480 --> 0:02:29.120 or whether it's just, you know, a gimmick, and whether 0:02:29.320 --> 0:02:32.240 maybe he should believe it given all of the court 0:02:32.280 --> 0:02:34.680 decisions and all of the recounts that have occurred. So 0:02:35.080 --> 0:02:38.720 to try and push somebody to coerce by threatening with prosecution, 0:02:38.840 --> 0:02:42.360 or to to now induce somebody to commit election fraud 0:02:42.480 --> 0:02:45.919 is itself a crime, both federally and in Georgia. And 0:02:46.000 --> 0:02:49.000 the only hold up is this issue of state of mind. 0:02:49.360 --> 0:02:51.800 You have to be able to prove that this was 0:02:51.880 --> 0:02:54.799 done knowing that since would be committing fraud. There's also 0:02:54.919 --> 0:02:59.000 the rambling nature of the call, with President Trump jumping 0:02:59.200 --> 0:03:04.800 back and forth between issues, and there's no explicit threat. Now. 0:03:04.840 --> 0:03:06.520 I mean, in some ways it's a little bit like 0:03:06.680 --> 0:03:08.800 from what we know about the Ukraine call, except this 0:03:08.840 --> 0:03:12.120 one's on tape. When he doesn't outright demand something, it's 0:03:12.200 --> 0:03:14.639 kind of what he's asking and then he's giving evidence. 0:03:14.680 --> 0:03:17.840 But you know, I haven't listened to very many types 0:03:17.880 --> 0:03:20.080 of mob bosses, but people tell me that that's what 0:03:20.160 --> 0:03:23.320 it sounds like. They very rarely say outright, you must 0:03:23.360 --> 0:03:25.000 do this. They kind of set it up in a 0:03:25.040 --> 0:03:27.679 certain way that puts pressure. I mean, I think it 0:03:27.800 --> 0:03:31.560 sure looks and feels a lot like asking somebody to 0:03:31.600 --> 0:03:36.320 commit collection fraud. Whether it actually crosses that line, given 0:03:36.360 --> 0:03:38.880 state of mind, and given if you parse it word 0:03:38.960 --> 0:03:42.920 by word, be a closer question that certainly, whatever it is, 0:03:43.040 --> 0:03:46.760 it's totally improper, whether it is an outright crime, and 0:03:46.760 --> 0:03:49.360 there's certainly a case for calling it an outright crime. 0:03:49.760 --> 0:03:53.680 It's the big question also is who would prosecute this crime? Well, 0:03:53.720 --> 0:03:57.480 of course right now general government camp was probably not 0:03:57.480 --> 0:04:00.840 going to prosecuting as the president, but presuming he doesn't 0:04:00.840 --> 0:04:04.040 attempt to pardon himself um, and there is a huge 0:04:04.080 --> 0:04:07.320 debate about whether a president can self pardon. Starting on 0:04:07.400 --> 0:04:11.640 January one, the U S Attorney UH, I guess, starting 0:04:11.640 --> 0:04:14.760 on the afternoon of January he was attorney to bring 0:04:14.840 --> 0:04:17.520 the case. And of course they violates or at least 0:04:17.560 --> 0:04:20.440 there is a good argument that it violates Georgia law. 0:04:20.480 --> 0:04:24.920 And presumably the a local district attorney UM, the attorney 0:04:24.920 --> 0:04:27.799 I guess of the county where the state officials were sitting. 0:04:27.800 --> 0:04:31.200 I think that's Fulton County. UH could also open an investigation. 0:04:31.680 --> 0:04:34.920 And the president cannot pardon himself for a crimes committed 0:04:34.960 --> 0:04:37.720 under state law. But Joe Biden has said that he's 0:04:37.720 --> 0:04:40.960 going to let the Justice Department do what if the 0:04:41.000 --> 0:04:44.400 Justice Department is supposed to do without any influence from him. 0:04:44.520 --> 0:04:48.640 There's also a political question of whether the Biden administration 0:04:48.680 --> 0:04:53.760 wants to start by prosecuting the former president, right. I mean, 0:04:53.800 --> 0:04:56.160 there are prudential questions as to whether this is a 0:04:56.839 --> 0:04:59.840 wise move. I mean, the case for opening in the 0:05:00.000 --> 0:05:05.120 instigation is that this is, Yeah, it's one thing to 0:05:05.200 --> 0:05:07.559 sort of try and have somebody to try and commit 0:05:07.600 --> 0:05:11.200 election for something else from President United States is himself 0:05:11.240 --> 0:05:15.520 involved in a possible election fraud, and so given mistakes, 0:05:15.560 --> 0:05:17.400 there's a lot to be said for saying, you know 0:05:17.440 --> 0:05:19.719 that nobody is above the law. On the other hand, 0:05:19.760 --> 0:05:22.680 I could certainly understand the desire to put it all behind, 0:05:23.320 --> 0:05:26.760 especially since it probably it's ever got into court. It 0:05:26.800 --> 0:05:30.080 probably is not completely open and shut, but there's certainly 0:05:30.080 --> 0:05:33.520 a lot of a lot there that could support an 0:05:33.520 --> 0:05:37.680 investigation and possibly an indictment. So far, we have a 0:05:37.760 --> 0:05:44.400 federal court dismissing the lawsuit that Congressman Louis Gohmert brought 0:05:44.760 --> 0:05:49.440 against Vice President Pans. What did you get from that dismissal? Well, 0:05:49.480 --> 0:05:52.080 they were utterly impatient with it. I mean, I think 0:05:52.120 --> 0:05:54.880 even more than the dismissial by the distrecorded dississial by 0:05:54.880 --> 0:05:57.800 the Court of Appeals, which shouldn't even wait till it 0:05:57.800 --> 0:06:02.160 was briefed, I mean over appealed immediately. Uh. And the 0:06:02.200 --> 0:06:05.280 Court of Appeals knocked it out before even for all 0:06:05.279 --> 0:06:09.320 the papers were filed. Um, it's a pretty preposterous lawsuit. 0:06:09.640 --> 0:06:12.000 I mean, it was not decided on the merits. That 0:06:12.160 --> 0:06:16.479 was decided on standing and other technical issues, but on 0:06:16.560 --> 0:06:20.280 the merits. Um. The idea that the vice president has 0:06:20.320 --> 0:06:23.360 a substantive role to play it just makes no sense 0:06:24.080 --> 0:06:27.160 given that you know, in many elections, including this one, 0:06:27.680 --> 0:06:30.240 the vice president himself will be affected by the outcome. 0:06:30.320 --> 0:06:31.839 So the idea that you would give him a role 0:06:32.279 --> 0:06:35.280 in deciding whether or not he wins his own election. Uh, 0:06:35.320 --> 0:06:40.159 and given a substantive role, just makes no sense. On Wednesday, 0:06:40.520 --> 0:06:44.400 nearly a dozen Senators are going to be joining with 0:06:44.680 --> 0:06:48.480 dozens of their colleagues in the House and objecting two 0:06:48.560 --> 0:06:53.000 votes from several closely fought states where Trump has claimed 0:06:53.120 --> 0:06:57.000 baselessly that fraud cost him the election. There is a 0:06:57.080 --> 0:07:01.400 legal basis for that, isn't there? Yeah? Um, so under 0:07:01.520 --> 0:07:04.760 the combination of the Constitution and the Electoral Account Act, 0:07:04.760 --> 0:07:08.839 which is the law that Congress adopted to govern the 0:07:09.120 --> 0:07:14.120 this exact process. Um. The the electoral votes are on 0:07:14.240 --> 0:07:19.160 January six, and this is my statute. Congress comes into session. Um. 0:07:19.240 --> 0:07:22.640 The envelopes that contain the submissions from the fifty states 0:07:22.640 --> 0:07:26.880 in district Columbia are opened um by the Vice President, 0:07:26.880 --> 0:07:30.200 who the President of the Senate, the Congress together the House, 0:07:30.240 --> 0:07:32.520 the Senate in one chamber of the House chamber, and 0:07:32.560 --> 0:07:35.320 then they're handed over to the clerks, and the clerks 0:07:35.320 --> 0:07:39.120 then read them in the states in alphabetical order. UM. 0:07:39.320 --> 0:07:42.040 My guess Alabama's first, I forget the number of actoral 0:07:42.120 --> 0:07:44.200 votes Alabama less. I think it's nine in a month. 0:07:44.880 --> 0:07:48.800 The confident of that, and that's accepted unless somebody objects. 0:07:49.080 --> 0:07:51.840 Under the law, you need to have one member of 0:07:51.880 --> 0:07:54.960 the House and one member of the Senate both objects. 0:07:55.000 --> 0:07:57.600 If only somebody from one chamber of objects, nothing happens, 0:07:57.840 --> 0:07:59.640 you need to have one number from each chamber to object. 0:07:59.720 --> 0:08:03.640 If that occurs, then they are supposed to resets. Each 0:08:03.720 --> 0:08:06.720 chamber is supposed to meet separately and debate for up 0:08:06.720 --> 0:08:09.400 to two hours as to whether or not they should 0:08:09.400 --> 0:08:13.600 accept or reject the vote from the the challenge state. 0:08:14.520 --> 0:08:18.040 But under the law, both chambers have to say no 0:08:18.800 --> 0:08:21.240 when presented with a set up with the electoral votes 0:08:21.240 --> 0:08:23.520 of the state if they want to reject it. So 0:08:23.600 --> 0:08:25.480 you would need both the House and the Senate to 0:08:25.520 --> 0:08:28.240 say no. It seems very unlikely that Alice is going 0:08:28.320 --> 0:08:31.280 to say no since House has a narrow Democratic majority, 0:08:31.600 --> 0:08:34.360 and given the number of Republican senators in the Senate 0:08:34.600 --> 0:08:36.640 who said they're not going to say no, it seems 0:08:36.679 --> 0:08:39.480 unlucky the sentup will say no either. But the process 0:08:39.520 --> 0:08:42.440 will take time because not only is there two hours 0:08:42.440 --> 0:08:45.840 of debate, but they actually would need to vote, and 0:08:46.040 --> 0:08:50.040 under COVID circumstances, with the chambers not being full, the 0:08:50.120 --> 0:08:52.880 vote could take some time, particularly in the House, which 0:08:52.920 --> 0:08:55.360 is a very big body. So it's conceivable of the 0:08:55.440 --> 0:08:59.000 vote itself will take an hour or more, and there 0:08:59.000 --> 0:09:02.520 would be a separate vote on each challenge state. And 0:09:02.640 --> 0:09:06.200 we don't know how many states the Republicans intend to challenge. 0:09:07.120 --> 0:09:09.080 I guess we've been hurting here. He read a maximum 0:09:09.080 --> 0:09:12.680 of six six states that were somewhat close and the 0:09:12.679 --> 0:09:15.760 final count. But that could mean that this could take 0:09:16.240 --> 0:09:19.199 at least twelve hours and probably at least eighteen and 0:09:19.240 --> 0:09:21.680 accounting the time it takes to vote, so they could 0:09:21.679 --> 0:09:24.000 be very well debating during the night, and this could 0:09:24.120 --> 0:09:27.080 very well take until the morning or maybe even midday 0:09:27.360 --> 0:09:29.480 on the seventh, until it's results if they really want 0:09:29.480 --> 0:09:32.560 to go ahead and have a debate on each of them, 0:09:32.600 --> 0:09:35.040 and I'm guessing at six states that they might want 0:09:35.040 --> 0:09:37.880 to challenge. So Rich, I have a question about that 0:09:38.280 --> 0:09:44.880 eighties law. Doesn't it contemplate that there's two competing groups 0:09:44.880 --> 0:09:48.960 of electors that are being presented by the state. There 0:09:49.000 --> 0:09:53.000 are two different scenarios. One is if there is one 0:09:53.040 --> 0:09:56.480 set of electors, and what I was describing with a 0:09:56.520 --> 0:09:59.840 scenario for challenging that that's all there is. There's no 0:10:00.000 --> 0:10:04.200 there are no other official submitted electors for many of 0:10:04.240 --> 0:10:07.080 the states. All the states have submitted just one set 0:10:07.080 --> 0:10:11.000 of electors. Other scenario, and this does deal with something 0:10:11.040 --> 0:10:15.440 which occurred in the election which led to the seven law, 0:10:15.920 --> 0:10:18.280 is that there were disagreements in the states, and in 0:10:18.360 --> 0:10:20.160 a couple of the states in the eighteen seventy six 0:10:20.400 --> 0:10:22.880 the governor sent in one set of electors and the 0:10:22.960 --> 0:10:26.760 legislature sent in something else. If it's two dueling sets 0:10:26.760 --> 0:10:30.800 of electors, um, the two chambers have to agree. But 0:10:31.040 --> 0:10:33.840 if if they can't agree, it's supposed to be the 0:10:33.880 --> 0:10:36.960 set that the governor signed, so there is a safety 0:10:37.040 --> 0:10:39.959 valve if they disagree. Or as if it's just one 0:10:39.960 --> 0:10:44.200 set of electors, if they disagree, that those electors count 0:10:44.240 --> 0:10:48.160 because you need both chambers to vote them down. So 0:10:48.840 --> 0:10:53.920 the prevailing wisdom is that there is no possible way 0:10:54.040 --> 0:10:57.520 that the votes won't be counted and Joe Biden won't 0:10:57.559 --> 0:11:01.520 be deemed the winner. Do you agree with no possible way? 0:11:01.720 --> 0:11:04.520 I'm going to say that, given how insane this entire 0:11:04.640 --> 0:11:07.680 year has been, I don't want to say that, UM, 0:11:07.679 --> 0:11:11.199 but I will say that there is no kind of 0:11:11.640 --> 0:11:15.560 legal or constitutional way that all of the law, the 0:11:15.600 --> 0:11:19.000 constitutional and legal provisions, and the votes that we know 0:11:19.080 --> 0:11:22.840 of in Congress all point in the direction that this 0:11:22.920 --> 0:11:27.160 may take longer than normal, longer than ever before, but 0:11:27.360 --> 0:11:30.040 that they will all be, that they will all be 0:11:30.080 --> 0:11:33.040 resolved and Biden will get is what I think. It's 0:11:33.040 --> 0:11:36.000 three hundred and six electoral votes. It might take twenty 0:11:36.000 --> 0:11:39.280 four hours, but that should be the way it works. Out. 0:11:40.160 --> 0:11:44.800 There is reporting that Vice President Pence's aids are developing 0:11:44.880 --> 0:11:48.760 a plan for him to acknowledge the reality of the 0:11:48.800 --> 0:11:53.280 November election, but at the same time making a statement 0:11:53.600 --> 0:11:59.360 about President Trump's claims about election fraud that have been disproven. 0:11:59.880 --> 0:12:01.600 Is their room for him to do that? To make 0:12:01.600 --> 0:12:04.800 a statement? My impressionist that's never happened. But I don't 0:12:05.040 --> 0:12:06.600 know that anything that would stop that. He is the 0:12:06.600 --> 0:12:10.400 presiding officer. He's got the castle, so it would be 0:12:10.520 --> 0:12:14.079 hard to see how he could be stopped. I suppose 0:12:14.760 --> 0:12:18.560 members of Congress could object, but um, since I don't 0:12:18.559 --> 0:12:21.920 think anything like that has happened before, we don't know 0:12:22.000 --> 0:12:25.440 how that scenario would play out. He does that, McCall, 0:12:25.480 --> 0:12:28.800 he is standing up on the rostrum, and it's possible. 0:12:29.679 --> 0:12:32.520 Thanks for being the Bloomberg Law Show. Rich that's Professor 0:12:32.600 --> 0:12:37.680 Richard Rofault of Columbia Law School. A DC federal appellate 0:12:37.679 --> 0:12:41.280 court has ruled that requests for information by Congressional Oversight 0:12:41.360 --> 0:12:45.280 panels don't require the approval of the majority members. The 0:12:45.320 --> 0:12:48.240 two to one decision overturned a district court opinion for 0:12:48.280 --> 0:12:52.439 the Trump administration. The appellate Court's decision affirms the right 0:12:52.480 --> 0:12:56.080 of minorities on the oversight committees at least seven members 0:12:56.080 --> 0:12:58.520 on the House Committee and five in the Senate to 0:12:58.640 --> 0:13:02.360 request information from federal agencies and to get the courts 0:13:02.400 --> 0:13:05.080 to step in if the agencies refused to comply with 0:13:05.080 --> 0:13:08.480 a request for information. That's distinct from the subpoena power 0:13:08.480 --> 0:13:12.000 of congressional committees, which requires a majority of the committee 0:13:12.520 --> 0:13:16.280 joining me. Is David Sklansky, a professor at Stanford Law School, 0:13:16.800 --> 0:13:20.920 start by explaining what the lawsuit was all about. But 0:13:21.040 --> 0:13:26.000 that's the lawsuit filed by Democratic members of the House 0:13:26.000 --> 0:13:31.240 Committee on Oversight and Reform. They sued the General Services 0:13:31.280 --> 0:13:36.719 Administration for failing to give them information that they had 0:13:36.760 --> 0:13:42.280 requested about the lease of the post office building in 0:13:42.320 --> 0:13:47.360 the District of Columbia to Donald Trump and company. So 0:13:47.440 --> 0:13:50.880 now this is under the seven member rule, not about 0:13:50.880 --> 0:13:57.120 a subpoena. That's correct. Um, There's a federal statute that 0:13:57.360 --> 0:14:02.240 says that certain number of members of either the Senate 0:14:02.760 --> 0:14:05.840 oversyche Committee or the House oversych Committee, it's five members 0:14:05.880 --> 0:14:08.560 of the Senate Committee or seven members of the House 0:14:08.559 --> 0:14:14.400 Committee can request information on any matter within the purview 0:14:14.440 --> 0:14:18.800 of the committee from the executive branch and the Executive 0:14:18.800 --> 0:14:23.200 branch has to supply it. That's without a subpoena. The 0:14:23.320 --> 0:14:28.160 lawsuit was brought by seven the Democratic members of the 0:14:28.200 --> 0:14:33.800 House Committee on Oversight and Reform, and they requested information 0:14:33.920 --> 0:14:37.800 pursuance of the federal statute, and the administration refused to 0:14:37.840 --> 0:14:41.120 provide it. So they went to court. So tell us 0:14:41.160 --> 0:14:44.720 what happened at the trial court level. The trial courts, 0:14:44.760 --> 0:14:47.320 the Settle dist the court um in the District of 0:14:47.360 --> 0:14:52.800 Columbia ruled against the plaintiffs because the trial courts said 0:14:52.840 --> 0:14:57.720 that they lacked standing, and standing as a technical legal 0:14:58.440 --> 0:15:05.040 doctrine that says that uh, federal courts can't decide questions 0:15:05.080 --> 0:15:08.720 the abstract. They can only decide questions. They can only 0:15:09.200 --> 0:15:13.640 take on a case when there's something concrete at stake, 0:15:14.320 --> 0:15:17.120 and it has to be at stake between the people 0:15:17.440 --> 0:15:20.320 who are bringing the case and the people who are 0:15:20.360 --> 0:15:26.000 being sued. So I can't see, for example, because I 0:15:26.040 --> 0:15:32.200 think that my son was unfairly taken advantage of or 0:15:33.160 --> 0:15:36.480 he did out of something. And you also can't see 0:15:36.600 --> 0:15:40.480 even if some organization that you're a part of has 0:15:40.520 --> 0:15:43.760 been wrong. So I'm a professor at Stanford, but I 0:15:43.840 --> 0:15:48.760 can't sue because I think Stanford University has a right 0:15:48.880 --> 0:15:53.280 that was infringed on somehow, or Stanford University was unfairly damaged. 0:15:53.600 --> 0:15:56.760 And that's true for members of Congress too. Members of 0:15:56.840 --> 0:16:02.400 Congress generally are not allowed to se because they think 0:16:02.520 --> 0:16:05.480 that Congress is not being treated well, but they can 0:16:05.520 --> 0:16:09.120 sue if they individually have been injured in some way 0:16:09.200 --> 0:16:12.560 that the court has the power to address. So the 0:16:12.600 --> 0:16:18.040 district court said that these members of Congress lack standing 0:16:18.600 --> 0:16:23.720 to complain about a violation of this statute because the 0:16:23.840 --> 0:16:28.960 statute didn't really protect them to protected Congress. So the 0:16:29.000 --> 0:16:33.680 House of Representatives could sue, but these individual members couldn't sue. 0:16:34.200 --> 0:16:37.480 That's what the trial court said. Okay, so tell us 0:16:37.480 --> 0:16:41.240 now what the appellate court said. The Power Court said, 0:16:41.440 --> 0:16:45.960 it's not true that these individual members of Congress weren't 0:16:45.960 --> 0:16:50.720 her they were hurt. This is a statute that gives 0:16:50.800 --> 0:16:57.880 a right two groups of congressional representatives to request information 0:16:58.280 --> 0:17:01.960 from the executive branch, even when they're in the minority. 0:17:02.440 --> 0:17:06.400 So it's an unusual statute in that way. And there 0:17:06.480 --> 0:17:08.480 is something we all have to stay to you. The 0:17:08.560 --> 0:17:13.480 Court of Appeal said, between these individual members and the administration, 0:17:13.600 --> 0:17:16.320 these individual members say we have a right to this 0:17:16.440 --> 0:17:21.280 information under the statutes, and the executive brand said, we're 0:17:21.320 --> 0:17:24.040 not giving it to you. So the Court of Appeal said, 0:17:24.359 --> 0:17:29.479 these members do have standings to pursue this lawsuit. Now, 0:17:29.680 --> 0:17:32.960 that doesn't mean that they're gonna win. It doesn't mean 0:17:33.000 --> 0:17:36.320 that they have a right to the information. It doesn't 0:17:36.400 --> 0:17:41.200 even mean that the court ultimately should decide whether they 0:17:41.240 --> 0:17:44.720 have a right to the information. Because the Court of 0:17:44.720 --> 0:17:50.280 Appeal said that the trial courts can consider uh an 0:17:50.359 --> 0:17:54.800 argument that the Trump administration raised, that it would be 0:17:54.840 --> 0:17:58.560 inappropriate for courts to get involved in this question altogether. 0:17:59.240 --> 0:18:02.120 The trial court also consider an argument that the Trump 0:18:02.160 --> 0:18:07.639 administration raised that this statute doesn't give right to members 0:18:07.640 --> 0:18:12.280 of Congress that they can pursue in court, and the 0:18:12.359 --> 0:18:15.240 trial courts can consider an argument that the Trump administration 0:18:15.320 --> 0:18:19.760 raised um that the kind of information that these members 0:18:19.760 --> 0:18:23.200 were requesting is not the kind of information that the 0:18:23.280 --> 0:18:28.200 statute authorizes them to request. So the Trump administration could 0:18:28.200 --> 0:18:32.159 still win in court when it goes back to the 0:18:32.200 --> 0:18:38.920 trial court, assuming that the administration continues to contest the lawsuits. 0:18:38.960 --> 0:18:42.359 So that the Court of Appeals didn't say that the 0:18:42.400 --> 0:18:45.919 point does automatically win. It just said they don't lose 0:18:45.960 --> 0:18:50.240 on standing grounds. Now, as a practical matter, Um, the 0:18:50.280 --> 0:18:53.240 administration is about the change hands. So there's gonna be 0:18:53.280 --> 0:18:56.840 a new director of the generalman Services Administration and the 0:18:56.920 --> 0:19:01.400 new president, and it's highly unlikely that the new administration 0:19:01.520 --> 0:19:07.000 is going to continue to resist giving this information to Congress, 0:19:07.000 --> 0:19:11.720 so the student is likely to become UH moved once 0:19:12.160 --> 0:19:16.320 the new ministration takes over. Um. What what will stay 0:19:16.320 --> 0:19:20.000 on the books, though, is the decision by the Court 0:19:20.000 --> 0:19:26.200 of Appeals that a minority UH a group of minority 0:19:26.280 --> 0:19:30.720 members of either of the Congressional oversight committees, the Senate 0:19:30.800 --> 0:19:35.719 Oversight Committee or the House Oversight Committee can sue in 0:19:35.840 --> 0:19:41.879 court two force the administration to comply with the requests 0:19:41.880 --> 0:19:47.000 that are made pursue into the Sederal Statute Section type 0:19:47.000 --> 0:19:51.200 of five. Does this ruling fit in with the way 0:19:51.200 --> 0:19:57.840 the Supreme Court has ruled in cases recently involving Congress suing. Well, 0:19:57.840 --> 0:20:00.520 that's what the Court of Appeals disagreed about. So that's 0:20:00.680 --> 0:20:03.879 the as is normal on a federal Court of Appeals. 0:20:03.920 --> 0:20:06.720 Beside the case, the case is decided by a three 0:20:06.840 --> 0:20:10.000 judge Channel three of the judges on the United States 0:20:10.000 --> 0:20:14.359 Court of Appeals for the discuss Columbius Circuit, and those 0:20:14.480 --> 0:20:19.800 judges slipped to one. Two of the judges thought that 0:20:19.920 --> 0:20:24.000 he requests that these members of Congress we're making and 0:20:24.080 --> 0:20:28.840 the lawsuit that they filed falls within the decisions of 0:20:28.840 --> 0:20:32.119 the United States Screme Court. Is made about when Congress 0:20:32.200 --> 0:20:35.840 is allowed to s and when Congressional committees are allowed 0:20:35.920 --> 0:20:38.320 to because the United States treame Court has made it 0:20:38.359 --> 0:20:44.440 clear that the House of Representatives can sue to get 0:20:44.480 --> 0:20:49.399 traditional enforcement UH, it's right under the law, and Congressional 0:20:49.440 --> 0:20:55.280 committees consue to enforce their subtoenas. On the other hand, 0:20:55.720 --> 0:21:00.720 individual members of Congress can't to complaint, meaning that the 0:21:00.840 --> 0:21:04.720 committee or UH or the House of Representatives as a 0:21:04.760 --> 0:21:08.480 whole or the Senate as a whole was unfairly treated 0:21:08.840 --> 0:21:12.840 and didn't get what they're entitled to under the law. 0:21:13.400 --> 0:21:16.320 So the question in the cases is a group of 0:21:16.920 --> 0:21:20.919 five members of the Senate committee or seven members of 0:21:20.920 --> 0:21:25.720 the House committee, is that UM like UH when those 0:21:25.760 --> 0:21:29.639 people sue. Is that like an individual member of Congress 0:21:29.680 --> 0:21:33.480 doing saying I think Congress has has been injured or 0:21:33.600 --> 0:21:38.080 is it like um individual members of Congress doing when 0:21:38.119 --> 0:21:41.760 they impact themselves have been injured. So there was a 0:21:41.840 --> 0:21:46.000 disagreement among the three judges, and two of them said 0:21:46.520 --> 0:21:51.040 that the Screen courts earlier decisions suggests that these members 0:21:51.080 --> 0:21:54.440 of Congress have standing, and one member of the court 0:21:54.840 --> 0:21:58.840 thought otherwise. He said that the decisions of the United 0:21:58.840 --> 0:22:02.560 Satescreen Corps proper the interpreted suggest that these members don't 0:22:02.600 --> 0:22:07.080 catch standing. Congressional subpoenas seem to be not worth the 0:22:07.119 --> 0:22:10.000 paper they're written on recently, at least in the last 0:22:10.000 --> 0:22:13.399 four years, because it doesn't seem like there's any enforcement power. 0:22:13.440 --> 0:22:14.919 They have to go into the courts and then it 0:22:14.960 --> 0:22:18.200 takes forever. And as we've seen in many cases, the 0:22:18.240 --> 0:22:20.760 Trump administration is coming to an end before some of 0:22:20.800 --> 0:22:23.680 these cases are coming to an end. So is this 0:22:23.840 --> 0:22:27.439 a better way, like for this one oversight committee to 0:22:27.480 --> 0:22:31.640 get information, an easier way than through subpoena? Well, it's 0:22:31.680 --> 0:22:35.040 easier in the sense that the party that is in 0:22:35.119 --> 0:22:41.680 the minority and request of information without getting the committee 0:22:41.680 --> 0:22:45.960 as a whole to approve it. But once the request 0:22:46.080 --> 0:22:49.760 is made, if the administration fails to comply, you have 0:22:49.800 --> 0:22:53.840 the same problem that you have with subpoena. That enforcing 0:22:54.240 --> 0:22:57.080 a right information in federal court can take a long 0:22:57.160 --> 0:23:01.320 time um and the administer ration can run down the clock. 0:23:02.000 --> 0:23:05.480 That's exactly what happened here in this decision is coming 0:23:05.720 --> 0:23:08.840 at the very end of the Trump administration. Now, I 0:23:08.840 --> 0:23:13.000 wouldn't say that that means that it's useless. It happens 0:23:13.080 --> 0:23:15.960 that Trump lost the election and he's on his way out. 0:23:16.560 --> 0:23:19.080 But if he had won the election, he would have 0:23:19.119 --> 0:23:21.400 been in office for another four years, and it would 0:23:21.400 --> 0:23:24.120 have been meaningful that the court had said that there 0:23:24.160 --> 0:23:28.120 was a right to this information. Still, it's unclear how 0:23:28.200 --> 0:23:31.920 quickly they would have gotten the information even with this ruling, because, 0:23:31.920 --> 0:23:35.480 as I mentioned, the ruling just says that that the 0:23:35.600 --> 0:23:39.880 standing doctrine doesn't block this too, the administration still had 0:23:40.000 --> 0:23:43.520 other arguments for why the lawsuits shouldn't be allowed and 0:23:43.560 --> 0:23:46.440 why they shouldn't be required to turn over the information, 0:23:46.760 --> 0:23:50.280 and it could well be that litigating those additional issues 0:23:50.440 --> 0:23:52.879 would have taken another four years. Thanks so much for 0:23:52.920 --> 0:23:56.800 being on the show. That's David Skolanski, professor at Stanford 0:23:56.880 --> 0:23:59.280 Law School. And that's it for the addition of the 0:23:59.320 --> 0:24:03.120 Bloomberg Law podcast. I'm June Grosso. Thanks so much. For listening, 0:24:03.520 --> 0:24:05.840 and remember you can always get the latest legal news 0:24:05.920 --> 0:24:08.679 on our Bloomberg Law podcast. You can find them on 0:24:08.760 --> 0:24:13.160 Apple Podcasts, Spotify, and wherever you get your favorite podcasts. 0:24:13.480 --> 0:24:16.400 And please listen to The Bloomberg Lawn Show every weeknight 0:24:16.400 --> 0:24:18.879 at ten pm Eastern on Bloomberg Radio