1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,320 --> 00:00:13,680 Speaker 1: I say to Mr Trump, Mr President, at least twenty 3 00:00:13,680 --> 00:00:17,160 Speaker 1: one years in my tax returns, we talk about corruption. 4 00:00:17,640 --> 00:00:23,680 Speaker 1: Release yours are shut up curious. You probably remember how 5 00:00:23,800 --> 00:00:27,560 Speaker 1: Joe Biden prodded former President Donald Trump to release his 6 00:00:27,720 --> 00:00:31,360 Speaker 1: taxes during the campaign, So it may surprise you that 7 00:00:31,440 --> 00:00:36,800 Speaker 1: as President, Biden is now protecting Trump's tax returns. Four 8 00:00:36,880 --> 00:00:40,440 Speaker 1: months into Biden's term and the Johnstice Department is still 9 00:00:40,520 --> 00:00:44,800 Speaker 1: fighting to keep secret documents related to Trump. These include 10 00:00:44,840 --> 00:00:48,760 Speaker 1: an internal memo to former Attorney General William Barr justifying 11 00:00:48,800 --> 00:00:51,760 Speaker 1: the decision not to charge Trump in the Mueller probe, 12 00:00:52,200 --> 00:00:56,560 Speaker 1: grand jury material in the Russia investigation, and yes, Trump's 13 00:00:56,600 --> 00:01:00,200 Speaker 1: tax returns. The Joice Department is following the lead need 14 00:01:00,200 --> 00:01:03,640 Speaker 1: of prior administrations in protecting the power of the executive 15 00:01:03,680 --> 00:01:08,679 Speaker 1: branch through that legal doctor known as executive privilege. Joining 16 00:01:08,680 --> 00:01:11,160 Speaker 1: me is Harold Crent, a professor at the Chicago Kent 17 00:01:11,360 --> 00:01:16,400 Speaker 1: College of Law. Also, executive privilege is a court made doctrine. 18 00:01:16,640 --> 00:01:19,480 Speaker 1: Tell us how it came about? No mission of executive 19 00:01:19,480 --> 00:01:23,800 Speaker 1: privilege and the Constitution. Nonetheless, Presidents from George Washington on 20 00:01:24,319 --> 00:01:28,560 Speaker 1: have felt the need to keep some information confidential, not 21 00:01:28,640 --> 00:01:31,280 Speaker 1: to share it with Congress or the courts or interested 22 00:01:31,280 --> 00:01:35,560 Speaker 1: in individuals, because you can't run a government unless you 23 00:01:35,600 --> 00:01:37,959 Speaker 1: can have some kind of secret to some kind of 24 00:01:38,040 --> 00:01:43,399 Speaker 1: promise of confidentiality to encourage candid discussions. So then there 25 00:01:43,440 --> 00:01:47,800 Speaker 1: are no right lines as far as what should be 26 00:01:48,040 --> 00:01:52,040 Speaker 1: protected by executive privilege and what should not be. There 27 00:01:52,040 --> 00:01:56,200 Speaker 1: are no bright lines, and courts at times have intervened 28 00:01:56,360 --> 00:01:59,600 Speaker 1: and vague decisions, such as in the recent Trump tax case, 29 00:01:59,840 --> 00:02:03,600 Speaker 1: to try to reconcile the rights of those interested. But 30 00:02:04,080 --> 00:02:07,880 Speaker 1: most questions about confidentially out if communications are resolved outside 31 00:02:07,880 --> 00:02:11,360 Speaker 1: of courts, and the presidents decide what to release, and 32 00:02:11,480 --> 00:02:13,920 Speaker 1: Congress the size if it wants to make a stink 33 00:02:14,240 --> 00:02:18,000 Speaker 1: and try to take some kind of action to encourage 34 00:02:18,080 --> 00:02:22,080 Speaker 1: or to incentivize the president to disclose more information. So 35 00:02:22,200 --> 00:02:24,680 Speaker 1: these battles are hard. They've been in and out of 36 00:02:24,720 --> 00:02:27,720 Speaker 1: court for centuries, and we don't know exactly where the 37 00:02:27,760 --> 00:02:30,840 Speaker 1: lines are to be drawn. Was the Nixon case the 38 00:02:30,960 --> 00:02:35,560 Speaker 1: first big executive privilege case or were there cases before that? 39 00:02:35,880 --> 00:02:38,280 Speaker 1: The Nixon case case was the biggest case. It's the 40 00:02:38,360 --> 00:02:42,359 Speaker 1: Bellwether because they are. The Court clearly recognized the existence 41 00:02:42,520 --> 00:02:46,239 Speaker 1: of the communications privilege within Article two of the Constitution, 42 00:02:46,600 --> 00:02:50,080 Speaker 1: but held that, at least with respect to claims arising 43 00:02:50,080 --> 00:02:54,920 Speaker 1: out of specific criminal cases, that the interest in trying 44 00:02:54,960 --> 00:02:59,400 Speaker 1: to get information in the executive's hands was so important 45 00:02:59,400 --> 00:03:02,040 Speaker 1: to the misery of justice that will outweighed the separation 46 00:03:02,080 --> 00:03:05,880 Speaker 1: of powers concerned expressed by the President. So now, I 47 00:03:05,919 --> 00:03:09,360 Speaker 1: think a lot of people assume that when Joe Biden 48 00:03:09,400 --> 00:03:13,639 Speaker 1: became president that all the documents that the Democrats were 49 00:03:13,639 --> 00:03:18,440 Speaker 1: looking for from the Trump presidency would be turned over. 50 00:03:18,960 --> 00:03:24,560 Speaker 1: But not. So. Let's start with the memo prepared by 51 00:03:24,680 --> 00:03:28,400 Speaker 1: the Office of Legal Counsel. Where does that stand? So, 52 00:03:28,680 --> 00:03:31,760 Speaker 1: on the one hand, the two thousand nine Office of 53 00:03:31,800 --> 00:03:34,320 Speaker 1: Legal Council memorandum should be an easy case because the 54 00:03:34,360 --> 00:03:36,800 Speaker 1: Office of Legal Counsel is to give advice in the 55 00:03:36,840 --> 00:03:40,320 Speaker 1: Department of Justice, so give advice to executive branch agencies 56 00:03:40,360 --> 00:03:42,400 Speaker 1: as well as to the President on all sorts of 57 00:03:42,480 --> 00:03:46,880 Speaker 1: legal issues that arise and confront the administration. But the 58 00:03:46,920 --> 00:03:50,080 Speaker 1: problem here is that the memo was first of all 59 00:03:50,120 --> 00:03:54,040 Speaker 1: relied upon by a trained general bar in deciding and 60 00:03:54,240 --> 00:03:58,680 Speaker 1: announcing why he would not prosecute President Trump. But it 61 00:03:58,800 --> 00:04:04,000 Speaker 1: turns out a to Judge Amy Jackson that this oil 62 00:04:04,040 --> 00:04:08,400 Speaker 1: C memorandum is really part of the public relations effort 63 00:04:08,640 --> 00:04:11,120 Speaker 1: of the government, so it wasn't advice, so it wouldn't 64 00:04:11,160 --> 00:04:15,080 Speaker 1: be covered by deliberative process privilege the way it ordinarily 65 00:04:15,080 --> 00:04:18,680 Speaker 1: would be, because it was part of the far orchestration 66 00:04:19,040 --> 00:04:23,080 Speaker 1: of trying to distance the administration from the Muller investigation. 67 00:04:23,360 --> 00:04:27,200 Speaker 1: So what would have ordinarily been covered by deliberative process 68 00:04:27,320 --> 00:04:32,400 Speaker 1: privilege as advice in this case seems to be something else, 69 00:04:32,520 --> 00:04:36,000 Speaker 1: seems to be result oriented, And therefore the question is 70 00:04:36,040 --> 00:04:41,159 Speaker 1: why is the administration not willing to release it? Other 71 00:04:41,240 --> 00:04:43,839 Speaker 1: than the fact that it might embarrass the Justice Department. 72 00:04:44,320 --> 00:04:48,039 Speaker 1: It seems like a memorandum by the Office of Legal Counsel. 73 00:04:48,080 --> 00:04:51,200 Speaker 1: Shouldn't it be something that everyone can read to know 74 00:04:51,680 --> 00:04:58,000 Speaker 1: where the department stands. Administration's consistently have held that it's 75 00:04:58,080 --> 00:05:03,600 Speaker 1: up to the Office of Also whether to disclose these memoranda. Indeed, 76 00:05:03,640 --> 00:05:07,160 Speaker 1: there's ongoing litigation under the Freedom of Information Act in 77 00:05:07,200 --> 00:05:10,599 Speaker 1: many other contexts right now about whether or not the 78 00:05:10,640 --> 00:05:14,240 Speaker 1: opposite lead Council has to disclose the advice It gives 79 00:05:14,240 --> 00:05:17,360 Speaker 1: to various agencies, and the Executive Branch has taken the 80 00:05:17,440 --> 00:05:21,080 Speaker 1: consistent position that most everything that the Office of Legal 81 00:05:21,120 --> 00:05:24,800 Speaker 1: Council does is advice. It's not binding, therefore it falls 82 00:05:24,839 --> 00:05:28,839 Speaker 1: within the deliberative process privilege. And they have the fact 83 00:05:28,920 --> 00:05:33,600 Speaker 1: Lee decided not to reveal certain amounts of OLC documents, 84 00:05:33,720 --> 00:05:38,320 Speaker 1: of course, including the one about the Muller investigation itself. 85 00:05:38,360 --> 00:05:41,159 Speaker 1: But I think the real issue here is not whether 86 00:05:41,240 --> 00:05:44,120 Speaker 1: it ordinarily would be part of the deliberative process privilege, 87 00:05:44,240 --> 00:05:48,400 Speaker 1: but was this really a traditional OLC memorandum or is 88 00:05:48,400 --> 00:05:51,839 Speaker 1: this something that was hatched up by Attorney General bar 89 00:05:52,160 --> 00:05:55,440 Speaker 1: in order to paper over the very damning information in 90 00:05:55,480 --> 00:05:58,560 Speaker 1: the Mullar report. And so now the Justice Department is 91 00:05:58,600 --> 00:06:03,520 Speaker 1: appealing Judge Jackson's decision to the DC Circuit Court of Appeals. 92 00:06:03,520 --> 00:06:07,120 Speaker 1: How important is this case in context? And I think 93 00:06:07,120 --> 00:06:09,800 Speaker 1: this may well make law. And the real questions was 94 00:06:09,839 --> 00:06:13,920 Speaker 1: the motivation of the Biden administration and Merrick Island. Are 95 00:06:13,960 --> 00:06:18,000 Speaker 1: they trying to preserve the tarnished image of the Department 96 00:06:18,040 --> 00:06:21,359 Speaker 1: of Justice or is their advice in this memorandum that 97 00:06:21,560 --> 00:06:26,159 Speaker 1: would routinely be protected by the deliberative process privilege? Let's 98 00:06:26,200 --> 00:06:31,040 Speaker 1: turn to Trump's taxes. During the campaign, Biden kept pressing 99 00:06:31,240 --> 00:06:35,200 Speaker 1: Trump to release his taxes, and every president since Richard 100 00:06:35,279 --> 00:06:39,720 Speaker 1: Nixon has voluntarily released his taxes, and yet the Biden 101 00:06:39,760 --> 00:06:44,240 Speaker 1: administration is fighting to keep from giving Trump's taxes to 102 00:06:44,279 --> 00:06:47,839 Speaker 1: the House. That sort of defies logic in my mind. 103 00:06:48,320 --> 00:06:50,280 Speaker 1: I must confess, I agree with you on that one. 104 00:06:50,279 --> 00:06:54,760 Speaker 1: I don't understand how Trump's taxes are subject to any 105 00:06:54,839 --> 00:06:59,560 Speaker 1: kind of recognized privilege. Obviously there's privacy issues involved with 106 00:06:59,600 --> 00:07:02,400 Speaker 1: all of our taxes, but Congress can easily override that. 107 00:07:02,839 --> 00:07:06,160 Speaker 1: And in fact, there's a statute which demands that anybody 108 00:07:06,200 --> 00:07:10,320 Speaker 1: turn over the taxes is subject to a legitimate congressional inquiry. 109 00:07:10,720 --> 00:07:12,400 Speaker 1: And so I think that it should have been a 110 00:07:12,520 --> 00:07:17,200 Speaker 1: very straightforward issue about allowing Congress to look at those taxes, 111 00:07:17,280 --> 00:07:20,800 Speaker 1: because it is the basis upon which future legislation may arise. 112 00:07:21,000 --> 00:07:24,120 Speaker 1: And of course, the Manhattan District Attorney already has Trump's 113 00:07:24,240 --> 00:07:28,480 Speaker 1: tax returns for his investigation. Now, one issue that has 114 00:07:28,560 --> 00:07:32,360 Speaker 1: been resolved after a two year battle, Former White House 115 00:07:32,360 --> 00:07:36,960 Speaker 1: Counsel Don McGan testified to the House Judiciary Committee behind 116 00:07:37,040 --> 00:07:40,960 Speaker 1: closed doors on Friday. Was there sort of a standoff 117 00:07:41,000 --> 00:07:44,559 Speaker 1: in court, there was no final resolution of the question 118 00:07:44,560 --> 00:07:47,240 Speaker 1: about what to do with McGann's testimony, but that led 119 00:07:47,320 --> 00:07:52,120 Speaker 1: to finally a brokered agreement where McGann will be able 120 00:07:52,160 --> 00:07:56,920 Speaker 1: to testify about narrow issues before the House Committee. And 121 00:07:57,000 --> 00:08:00,240 Speaker 1: it's a very complicated issue because personal McGee and was 122 00:08:00,280 --> 00:08:03,520 Speaker 1: a former White House official, he wasn't currently in the 123 00:08:03,560 --> 00:08:07,200 Speaker 1: office when he was being subpoenat. But clearly the information 124 00:08:07,520 --> 00:08:10,680 Speaker 1: that the Congress was interested in getting had to do 125 00:08:10,840 --> 00:08:16,280 Speaker 1: with his communications to the President about the Mueller investigation. 126 00:08:16,560 --> 00:08:21,080 Speaker 1: So it became a centerpiece of potential obstruction because he 127 00:08:21,160 --> 00:08:24,280 Speaker 1: was so termed in the room when all these various 128 00:08:24,320 --> 00:08:28,600 Speaker 1: actions by the President took place. So for him, clearly 129 00:08:28,720 --> 00:08:32,439 Speaker 1: the presidential privilege would apply, but it could be overridden 130 00:08:33,000 --> 00:08:36,920 Speaker 1: if it involved some kind of witness to criminal activity. 131 00:08:37,320 --> 00:08:40,040 Speaker 1: And so that's why it became so contentious. And then 132 00:08:40,360 --> 00:08:45,160 Speaker 1: the Biden administration again broker this compromised so that mcdan 133 00:08:45,240 --> 00:08:48,240 Speaker 1: would be able to testify, but only with respect to 134 00:08:48,480 --> 00:08:52,280 Speaker 1: the same matters that have been publicly disclosed. You look 135 00:08:52,320 --> 00:08:55,040 Speaker 1: at this trying to assess who won the power struggle 136 00:08:55,120 --> 00:08:58,319 Speaker 1: between Congress and the president. It's the president with respect 137 00:08:58,400 --> 00:09:01,960 Speaker 1: to McGann's testimony, And here I think it's easier to 138 00:09:02,000 --> 00:09:06,760 Speaker 1: see the Biden administration's perspective. All presidential administrations try to 139 00:09:07,240 --> 00:09:11,520 Speaker 1: preserve the confidentiality of White House Council. So President Biden 140 00:09:11,600 --> 00:09:15,040 Speaker 1: is probably worried about any kind of precedent allowing a 141 00:09:15,240 --> 00:09:20,080 Speaker 1: Congress to brake a former presidential council over the cold. 142 00:09:20,360 --> 00:09:23,959 Speaker 1: That was the incentive for the president to be tough 143 00:09:24,240 --> 00:09:27,079 Speaker 1: and Congress back down, and so this is a very 144 00:09:27,320 --> 00:09:33,319 Speaker 1: limited victory for Congress. Has the trend been for presidents 145 00:09:33,360 --> 00:09:38,520 Speaker 1: to assert executive privilege more? Have recent presidents asserted it 146 00:09:38,600 --> 00:09:41,640 Speaker 1: more than in the past. So I think there's a 147 00:09:41,840 --> 00:09:46,640 Speaker 1: historical track record of many presidents invoking executive privilege. President Eisenhower, 148 00:09:46,720 --> 00:09:50,160 Speaker 1: if I recall, invoted forty times, and that indeed it 149 00:09:50,240 --> 00:09:53,760 Speaker 1: was under his administration where the term executive privilege was coined. 150 00:09:54,040 --> 00:09:56,400 Speaker 1: So this is not a new creation. But I do 151 00:09:56,480 --> 00:09:59,480 Speaker 1: think the trend we see is that the courts, with 152 00:09:59,520 --> 00:10:03,080 Speaker 1: the accept perhaps of the tax case, are more likely 153 00:10:03,160 --> 00:10:07,200 Speaker 1: to override claims of privilege when they interfere with judicial 154 00:10:07,200 --> 00:10:10,920 Speaker 1: fortunes than they do with congressional functions or its seemed 155 00:10:10,960 --> 00:10:13,440 Speaker 1: to want to stay out of the fray and allow 156 00:10:13,600 --> 00:10:17,280 Speaker 1: Congress in the presidence to hash out any differences themselves. 157 00:10:17,400 --> 00:10:21,680 Speaker 1: But when the courts are involved, or individuals claiming the 158 00:10:21,800 --> 00:10:24,880 Speaker 1: need for information in the President's hand in order to 159 00:10:24,920 --> 00:10:27,240 Speaker 1: try to vindicate an interest in the court system, then 160 00:10:27,240 --> 00:10:29,840 Speaker 1: the courts have been brought in and are more willing 161 00:10:29,880 --> 00:10:33,560 Speaker 1: to second guess the invocation of privilege. So again, the 162 00:10:33,559 --> 00:10:36,680 Speaker 1: court seemed to be more willing to investigate the limit 163 00:10:36,760 --> 00:10:39,760 Speaker 1: of privilege when it's vital to resolve a court case, 164 00:10:39,880 --> 00:10:43,920 Speaker 1: and they want to allow the two majoritarian branches, Congress 165 00:10:43,920 --> 00:10:46,760 Speaker 1: and the President to fight through issues of access to 166 00:10:46,800 --> 00:10:50,800 Speaker 1: information on their own. It seems that so far the 167 00:10:50,840 --> 00:10:56,719 Speaker 1: Biden administration's position is executive privilege rules. They haven't been 168 00:10:56,720 --> 00:11:00,880 Speaker 1: willing to give over anything readily. That's correc and I 169 00:11:00,920 --> 00:11:03,560 Speaker 1: think many people are surprised at the extent that they 170 00:11:03,760 --> 00:11:07,400 Speaker 1: have defended presidential privilege. No one expected them to abandon 171 00:11:07,679 --> 00:11:10,400 Speaker 1: presidential privilege. It's just the extent to which they are 172 00:11:10,440 --> 00:11:14,480 Speaker 1: even protecting President Trump's interests has been surprising too many. 173 00:11:14,760 --> 00:11:18,040 Speaker 1: Thanks Hal. That's Harold Grant of the Chicago Kent College 174 00:11:18,080 --> 00:11:22,280 Speaker 1: of Law, Johnson and Johnson will be writing a check 175 00:11:22,320 --> 00:11:26,079 Speaker 1: for two point one billion dollars plus interest to twenty 176 00:11:26,120 --> 00:11:29,319 Speaker 1: women who claim it's baby powder was tainted with cancer 177 00:11:29,400 --> 00:11:33,160 Speaker 1: causing asbestos. That's because the Supreme Court refused to take 178 00:11:33,240 --> 00:11:37,520 Speaker 1: Jay and Jay's appeal from a St. Louis jury's verdict. 179 00:11:38,240 --> 00:11:40,840 Speaker 1: Joining me is Eric Gordon, a professor of business at 180 00:11:40,840 --> 00:11:44,600 Speaker 1: the University of Michigan. Eric, the court rejected JA and 181 00:11:44,720 --> 00:11:47,600 Speaker 1: J without comment. Why do you think they left in 182 00:11:47,679 --> 00:11:51,960 Speaker 1: place this staggering verdict? We can only guess as to 183 00:11:52,160 --> 00:11:55,320 Speaker 1: why the Supreme Court declined to take the appeal, because 184 00:11:55,320 --> 00:12:00,000 Speaker 1: the Supreme Court never gives its reasons. It just decided. 185 00:12:00,679 --> 00:12:05,120 Speaker 1: But the Supreme Court can only take appeals in very 186 00:12:05,280 --> 00:12:09,240 Speaker 1: narrow circumstances. They can't take an appeal just because they 187 00:12:09,360 --> 00:12:12,840 Speaker 1: disagree with the verdict. There has to be a narrow 188 00:12:12,960 --> 00:12:17,640 Speaker 1: constitutional issue. The issues J and J raised were due 189 00:12:17,920 --> 00:12:23,760 Speaker 1: process issues, and apparently the Supreme Court didn't think that 190 00:12:23,840 --> 00:12:28,200 Speaker 1: the due process issues needed to be decided. So now 191 00:12:28,480 --> 00:12:32,000 Speaker 1: two of the justices didn't participate. We don't know why, 192 00:12:32,040 --> 00:12:34,760 Speaker 1: but Samuel Alito does own Stock and J and J 193 00:12:35,400 --> 00:12:40,120 Speaker 1: and Brett Kavanaugh's father lobby J and J not to 194 00:12:40,240 --> 00:12:45,840 Speaker 1: include a warning apparently on the baby powder. So could 195 00:12:45,840 --> 00:12:49,960 Speaker 1: the fact that those two conservative justices didn't take part. 196 00:12:50,000 --> 00:12:52,440 Speaker 1: Could that have been part of the reason why they 197 00:12:52,440 --> 00:12:56,120 Speaker 1: couldn't get four justices to take the case. That could 198 00:12:56,120 --> 00:12:59,040 Speaker 1: be it because it leads only seven. So you go 199 00:12:59,160 --> 00:13:01,560 Speaker 1: from needing four out of nine to needing four out 200 00:13:01,559 --> 00:13:05,480 Speaker 1: of seven with two justices who might say, look, this 201 00:13:05,559 --> 00:13:10,680 Speaker 1: is an important issue. This huge multibillion dollar punitive damage 202 00:13:10,880 --> 00:13:14,760 Speaker 1: award against J and J. That's really an important due 203 00:13:14,760 --> 00:13:19,240 Speaker 1: process question, where the more liberal justices might think, well, 204 00:13:19,400 --> 00:13:22,640 Speaker 1: you know, it's just the big company paying money, we're 205 00:13:22,640 --> 00:13:26,200 Speaker 1: not so interested in it. It is a staggering amount, though. 206 00:13:27,080 --> 00:13:30,839 Speaker 1: One of the interesting features is that each woman, no 207 00:13:30,920 --> 00:13:36,240 Speaker 1: matter what she suffered, was awarded twenty five million dollars 208 00:13:36,280 --> 00:13:42,320 Speaker 1: in competatory damages and then an equal share of about 209 00:13:42,360 --> 00:13:47,400 Speaker 1: a billion six in punitive damages. So it's a lot 210 00:13:47,480 --> 00:13:52,040 Speaker 1: of money per plaintiff. The judge in this case said 211 00:13:52,080 --> 00:13:56,800 Speaker 1: that he found J and J's conduct particularly reprehensible, yet 212 00:13:56,920 --> 00:13:59,439 Speaker 1: J and J has won some of these cases. It's 213 00:13:59,480 --> 00:14:04,560 Speaker 1: almost a prizing that there are juries that overlooked the 214 00:14:04,720 --> 00:14:08,920 Speaker 1: conduct and apparently looked at the science that J and J. 215 00:14:09,200 --> 00:14:14,640 Speaker 1: Was presenting because juries are usually pretty sympathetic in these cases. 216 00:14:15,440 --> 00:14:18,840 Speaker 1: I think it's a miracle when J and J wins 217 00:14:18,880 --> 00:14:21,600 Speaker 1: in front of a jury, because when you say cancer, 218 00:14:22,200 --> 00:14:25,880 Speaker 1: and when you talk about women suffering with cancer, how 219 00:14:25,920 --> 00:14:28,840 Speaker 1: do you get a juror to say, well, look, let's 220 00:14:28,880 --> 00:14:31,200 Speaker 1: just let's look at this, let's look at the science. 221 00:14:31,560 --> 00:14:33,520 Speaker 1: You have a big company with a lot of money, 222 00:14:34,120 --> 00:14:37,960 Speaker 1: you have women who have suffered horribly. To get a 223 00:14:38,040 --> 00:14:41,960 Speaker 1: juror to focus just on causation, what's the science of 224 00:14:42,080 --> 00:14:46,600 Speaker 1: causation as opposed to sort of the humanity of what's 225 00:14:46,640 --> 00:14:49,880 Speaker 1: going on here, it's really hard. It's really really hard 226 00:14:49,960 --> 00:14:53,200 Speaker 1: to do. Well. How did the appellate court handle the 227 00:14:53,240 --> 00:14:57,440 Speaker 1: due process issues that J and J. Raised? The appellate court, 228 00:14:57,520 --> 00:15:02,840 Speaker 1: which was a state court Missouri State Court, said, well, look, 229 00:15:03,160 --> 00:15:06,080 Speaker 1: all of these problems that J and J. Has brought up, 230 00:15:06,360 --> 00:15:10,520 Speaker 1: the fact that twenty two different plaintiffs were in the 231 00:15:10,600 --> 00:15:14,480 Speaker 1: same courtroom at the same time, the fact that jurors 232 00:15:14,560 --> 00:15:19,680 Speaker 1: decided twenty two cases at once, the fact that the 233 00:15:19,720 --> 00:15:24,720 Speaker 1: trial court took five hours to walk the jurors through 234 00:15:24,760 --> 00:15:28,960 Speaker 1: the laws of a dozen different states as the jury instructions. 235 00:15:29,440 --> 00:15:34,280 Speaker 1: The Missouri State Court of Appeals said, well, we're going 236 00:15:34,400 --> 00:15:41,480 Speaker 1: to assume that the jury followed the trial court's instructions, 237 00:15:41,680 --> 00:15:45,480 Speaker 1: and following those instructions that came up with twenty five 238 00:15:45,520 --> 00:15:49,480 Speaker 1: million dollars. Well, the Missouri Appeals Court made it what 239 00:15:49,560 --> 00:15:53,560 Speaker 1: seems like a pretty big assumption that the jurors understood 240 00:15:53,880 --> 00:15:57,680 Speaker 1: instructions from twelve different states after five hours. What we 241 00:15:57,840 --> 00:16:02,040 Speaker 1: don't know is if the Supreme Court justice has said, Okay, well, 242 00:16:02,120 --> 00:16:06,000 Speaker 1: all right, we agree that the jury instructions are sufficient 243 00:16:06,200 --> 00:16:09,480 Speaker 1: to cure any of these problems. It could just be 244 00:16:09,600 --> 00:16:12,280 Speaker 1: that the Supreme Court thought, well, this case isn't interesting 245 00:16:12,440 --> 00:16:15,080 Speaker 1: enough for us to take, because the Supreme Court takes 246 00:16:15,200 --> 00:16:19,280 Speaker 1: very few cases. They take about three percent of the 247 00:16:19,360 --> 00:16:22,720 Speaker 1: cases that people pitch at them. J and J also 248 00:16:22,880 --> 00:16:25,920 Speaker 1: argued that the punitive damages were so out of sync 249 00:16:25,960 --> 00:16:30,360 Speaker 1: with the compensatory damages that it violated its due process rights. 250 00:16:30,600 --> 00:16:35,160 Speaker 1: The compensatory damage award was sixty million dollars and the 251 00:16:35,200 --> 00:16:39,320 Speaker 1: punitive damages were one point six billion dollars. What has 252 00:16:39,360 --> 00:16:42,440 Speaker 1: the Supreme Court said on the subject. So, the Supreme 253 00:16:42,440 --> 00:16:45,600 Speaker 1: Court has said it is a violation of due process too, 254 00:16:46,120 --> 00:16:49,120 Speaker 1: to use the legal term get angry and sock it 255 00:16:49,240 --> 00:16:53,800 Speaker 1: to and come up with ridiculous punitive damages. Now, even 256 00:16:53,840 --> 00:16:56,960 Speaker 1: the federal courts of appeal don't all agree with each 257 00:16:57,000 --> 00:17:00,560 Speaker 1: other on just what they have to do based on 258 00:17:00,600 --> 00:17:04,480 Speaker 1: the Supreme Court's decisions. There's a question about whether one 259 00:17:04,520 --> 00:17:07,199 Speaker 1: of the main things the court said is actually the 260 00:17:07,320 --> 00:17:10,600 Speaker 1: law or just dicta a comment on the law. So 261 00:17:10,800 --> 00:17:13,840 Speaker 1: some of the federal courts of appeal have said, well, 262 00:17:14,160 --> 00:17:17,920 Speaker 1: one to one a dollar of punitive damages for each 263 00:17:17,960 --> 00:17:25,040 Speaker 1: dollar of compensatory damages, is you more or less the limit. Interestingly, 264 00:17:25,560 --> 00:17:30,760 Speaker 1: the Federal Court of Appeals that covers Missouri follows that 265 00:17:31,000 --> 00:17:33,760 Speaker 1: if this case has been in federal court and this 266 00:17:33,840 --> 00:17:37,480 Speaker 1: has gone to a federal court of appeals, those punitive 267 00:17:37,520 --> 00:17:40,520 Speaker 1: damages probably would have been swatted down. But this is 268 00:17:40,520 --> 00:17:43,840 Speaker 1: a state court case, and there are other federal courts 269 00:17:43,840 --> 00:17:46,080 Speaker 1: of appeals at to say, we don't have to follow 270 00:17:46,119 --> 00:17:48,879 Speaker 1: that one to one thing exactly. We just have to 271 00:17:48,920 --> 00:17:52,639 Speaker 1: look at the punitive damages and make sure they're not unreasonable. 272 00:17:53,040 --> 00:17:56,480 Speaker 1: What J and J said was, look, Supreme Court, these 273 00:17:56,480 --> 00:17:59,920 Speaker 1: punitive damages are ridiculous, and this is a good oper 274 00:18:00,040 --> 00:18:05,000 Speaker 1: tunity for you to resolve this disagreement amongst the federal 275 00:18:05,080 --> 00:18:08,359 Speaker 1: courts of appeal, but the Supreme Court declined. J and 276 00:18:08,440 --> 00:18:12,960 Speaker 1: J still faces about twenty six thousand similar cases, and 277 00:18:13,000 --> 00:18:17,800 Speaker 1: its attorney argued that other plaintiffs could look at this 278 00:18:17,920 --> 00:18:20,439 Speaker 1: case and use it as sort of a script for 279 00:18:20,560 --> 00:18:25,000 Speaker 1: their cases. Is that a good argument, Well, it's something 280 00:18:25,040 --> 00:18:29,120 Speaker 1: that the defense attorneys fear. They fear that the plaintiffs 281 00:18:29,200 --> 00:18:34,240 Speaker 1: attorneys will say, Wow, this is what worked with that jury, 282 00:18:34,960 --> 00:18:38,760 Speaker 1: so we will use it with our jury. I think 283 00:18:39,000 --> 00:18:43,439 Speaker 1: that the plaintiff's bar is pretty sophisticated. They do a 284 00:18:43,520 --> 00:18:48,560 Speaker 1: lot of testing, They test their testimony in front of 285 00:18:48,760 --> 00:18:52,840 Speaker 1: mock jurors, they hire psychologists. Yeah, this is a data 286 00:18:52,920 --> 00:18:55,879 Speaker 1: point for the plaintiff's bar that the plaintiffs bar in 287 00:18:55,920 --> 00:19:00,480 Speaker 1: these high stakes case they're really sophisticated. They will come 288 00:19:00,480 --> 00:19:05,440 Speaker 1: at you with tested testimony, very well crafted testimony. With 289 00:19:05,680 --> 00:19:07,919 Speaker 1: or without this case. What effect does this have on 290 00:19:07,960 --> 00:19:11,199 Speaker 1: the J and J litigation going forward? I think it 291 00:19:11,240 --> 00:19:15,359 Speaker 1: does make settling harder. I think other courts will be 292 00:19:15,760 --> 00:19:20,439 Speaker 1: less likely to allow that kind of punitive damages. I 293 00:19:20,480 --> 00:19:22,520 Speaker 1: think other courts are going to be less likely to 294 00:19:22,680 --> 00:19:27,520 Speaker 1: allow twenty two different plaintiffs from twelve different states to 295 00:19:27,680 --> 00:19:30,360 Speaker 1: sue at the same time. So I don't think jan 296 00:19:30,440 --> 00:19:32,920 Speaker 1: J is going to be up against the deck that's 297 00:19:33,040 --> 00:19:35,800 Speaker 1: sort of shuffled quite the same way as it was 298 00:19:36,160 --> 00:19:41,240 Speaker 1: in Missouri. In future cases, do the punitive damages add 299 00:19:41,320 --> 00:19:44,359 Speaker 1: up so that another jury can't give as much in 300 00:19:44,480 --> 00:19:48,439 Speaker 1: punitive damages because they're cumulative to punish J and J. 301 00:19:49,320 --> 00:19:56,920 Speaker 1: Every jury is free to assess punitive damages. You can't say, wait, 302 00:19:57,320 --> 00:20:00,359 Speaker 1: we've already paid one point six billion dollar, there's com 303 00:20:00,359 --> 00:20:05,760 Speaker 1: punitive damages, no more. Um It can be stacked one 304 00:20:05,920 --> 00:20:08,920 Speaker 1: on top of the other. Uh and and that's a 305 00:20:09,000 --> 00:20:14,120 Speaker 1: real danger. The punitive damages can can add up. Even 306 00:20:14,160 --> 00:20:18,680 Speaker 1: if the punitive damages are limited to sort of one 307 00:20:18,760 --> 00:20:22,560 Speaker 1: for one the dollar per dollar with compensatory damages idea, 308 00:20:23,440 --> 00:20:26,359 Speaker 1: you know, even at one to one, it doubles the 309 00:20:26,440 --> 00:20:29,280 Speaker 1: compensatory damages. It basically says, all right, if you pay 310 00:20:29,280 --> 00:20:32,639 Speaker 1: a million dollars in compensatory damages, your total bill is 311 00:20:32,680 --> 00:20:35,159 Speaker 1: going to be two million dollars. So this is the 312 00:20:35,320 --> 00:20:37,840 Speaker 1: end for J and J in this case. They have 313 00:20:37,920 --> 00:20:41,000 Speaker 1: to pay up now. The next step in this case 314 00:20:41,119 --> 00:20:44,560 Speaker 1: is to write a check. There is no more avenue 315 00:20:44,640 --> 00:20:47,200 Speaker 1: for appeal. So they're going to write a check. Uh, 316 00:20:48,080 --> 00:20:50,760 Speaker 1: it's going to be more than the two point one 317 00:20:50,840 --> 00:20:53,280 Speaker 1: billion dollars. They're going to pay a check. With interest, 318 00:20:53,320 --> 00:20:55,560 Speaker 1: it will probably be more like two point four two 319 00:20:55,560 --> 00:20:59,280 Speaker 1: point five billion dollars. Not a good day for J 320 00:20:59,440 --> 00:21:02,400 Speaker 1: and J. Thanks for Vanna, Bloomberg Lass Show Eric. That's 321 00:21:02,520 --> 00:21:08,400 Speaker 1: Eric Gordon of the University of Michigan. Supreme Court Justice 322 00:21:08,480 --> 00:21:12,240 Speaker 1: Neil Gorst rejected a request from two churches to block 323 00:21:12,280 --> 00:21:15,840 Speaker 1: a Colorado law that lets the state issue emergency orders. 324 00:21:16,200 --> 00:21:19,399 Speaker 1: Joining me is Bloomberg News Supreme Court reporter Greg Store. 325 00:21:20,000 --> 00:21:23,040 Speaker 1: What were the two churches complaining about? What do they 326 00:21:23,080 --> 00:21:26,080 Speaker 1: want from the Supreme Court? Originally, the two churches were 327 00:21:26,080 --> 00:21:30,679 Speaker 1: complaining about COVID restrictions and capacity limits and distancing requirements 328 00:21:30,680 --> 00:21:33,240 Speaker 1: that Colorado was imposing on them. But by the time 329 00:21:33,240 --> 00:21:35,560 Speaker 1: I get the case got to the Supreme Court, all 330 00:21:35,600 --> 00:21:38,480 Speaker 1: those restrictions were gone. And so what they were asking 331 00:21:38,520 --> 00:21:42,439 Speaker 1: the court to do was to block the disaster emergency 332 00:21:42,560 --> 00:21:46,560 Speaker 1: law that Colorado was using to impose these restrictions, and 333 00:21:46,600 --> 00:21:50,240 Speaker 1: that law also applies to things like, you know, earthquakes 334 00:21:50,240 --> 00:21:53,720 Speaker 1: and wildfires. So it was a very broader request that 335 00:21:53,760 --> 00:21:58,280 Speaker 1: these churches were making. Justice Neil Gorsuch handles emergencies from Colorado. 336 00:21:58,520 --> 00:22:01,480 Speaker 1: Explain how that works with the justice is handling you know, 337 00:22:01,520 --> 00:22:05,280 Speaker 1: a section of the country. Yeah, each justice has one 338 00:22:05,359 --> 00:22:09,440 Speaker 1: or more circuits parts of the country that they're responsible 339 00:22:09,480 --> 00:22:13,640 Speaker 1: for Justice Course, which has the tenth circuit, which includes Colorado, 340 00:22:14,000 --> 00:22:18,280 Speaker 1: and so any emergency request from their first go to him, 341 00:22:18,320 --> 00:22:21,359 Speaker 1: and he then has the option of acting on himself 342 00:22:21,880 --> 00:22:25,719 Speaker 1: or referring it to the full nine member court. In 343 00:22:25,720 --> 00:22:29,560 Speaker 1: this particular case, he just acted on his own denied it. 344 00:22:29,560 --> 00:22:32,720 Speaker 1: It's theoretically possible the churches could now go to a 345 00:22:32,800 --> 00:22:35,159 Speaker 1: different justice and ask for the same thing they're asking 346 00:22:35,200 --> 00:22:37,760 Speaker 1: Justice courses war. But if it ain't at Justice Courses, 347 00:22:37,880 --> 00:22:40,359 Speaker 1: his vote, it's it's it's pretty clear that the Court 348 00:22:40,359 --> 00:22:42,040 Speaker 1: as a whole is not going to grant the request. 349 00:22:42,320 --> 00:22:45,520 Speaker 1: So what does it indicate that he did not even 350 00:22:45,560 --> 00:22:49,160 Speaker 1: refer it to the full court. Well, that sometimes can 351 00:22:49,320 --> 00:22:52,119 Speaker 1: can indicate that it wasn't a very serious request and 352 00:22:52,160 --> 00:22:54,920 Speaker 1: it wasn't worth the bother of sending it to to 353 00:22:55,040 --> 00:22:57,840 Speaker 1: all the other justices. In this case, though, if you 354 00:22:58,119 --> 00:23:01,639 Speaker 1: read the tea leaves, it's a little less clear because 355 00:23:02,119 --> 00:23:05,280 Speaker 1: this request, which was originally filed on May the third, 356 00:23:05,520 --> 00:23:09,840 Speaker 1: and Justice Corsage gave the State of Colorado a fair 357 00:23:09,840 --> 00:23:12,840 Speaker 1: amount of times to follow its response, and then he 358 00:23:12,880 --> 00:23:15,960 Speaker 1: took a while to issue a decision that didn't include 359 00:23:16,000 --> 00:23:19,840 Speaker 1: any explanations. So it seems likely that there were some 360 00:23:19,840 --> 00:23:24,280 Speaker 1: some behind the scenes machinations going on. Uh he may 361 00:23:24,320 --> 00:23:27,760 Speaker 1: have probably did talk to some of his colleagues about 362 00:23:27,800 --> 00:23:30,480 Speaker 1: how they were going to handle the case. We don't 363 00:23:30,480 --> 00:23:32,680 Speaker 1: know that, but that the amount of time that elapsed 364 00:23:32,680 --> 00:23:35,960 Speaker 1: suggests that something was going on. Explain how the Court 365 00:23:35,960 --> 00:23:40,280 Speaker 1: has been handling these emergency appeals from churches during the 366 00:23:40,280 --> 00:23:43,439 Speaker 1: pandemic well as a general matter, at least since Justice 367 00:23:43,440 --> 00:23:45,560 Speaker 1: Barrett has joined the Court and gave the Court a 368 00:23:45,600 --> 00:23:48,560 Speaker 1: more solid conservative majority. As a general matter, they have 369 00:23:48,640 --> 00:23:52,119 Speaker 1: been granting these requests from from churches, even with regard 370 00:23:52,200 --> 00:23:54,800 Speaker 1: to restrictions that are no longer in place at the 371 00:23:54,840 --> 00:23:57,639 Speaker 1: time of the request, and the Court is actually, in 372 00:23:57,680 --> 00:24:01,520 Speaker 1: the minds of many experts, really banded religious rights in 373 00:24:01,880 --> 00:24:04,400 Speaker 1: the process, even though these are emergency matters where they're 374 00:24:04,400 --> 00:24:08,159 Speaker 1: not supposed to be making making new law. But the Court, 375 00:24:08,560 --> 00:24:11,520 Speaker 1: in a series of decisions has essentially created what people 376 00:24:11,560 --> 00:24:14,159 Speaker 1: are calling a most Favored Nation status for churches. In 377 00:24:14,160 --> 00:24:17,119 Speaker 1: other words, if there's any other entity that is not 378 00:24:17,200 --> 00:24:21,200 Speaker 1: subject to similar restrictions and it is similarly situated, it 379 00:24:21,320 --> 00:24:24,439 Speaker 1: can impose them on on churches. It's been a significant 380 00:24:24,440 --> 00:24:28,280 Speaker 1: deal in terms of blocking states and local governments from 381 00:24:28,560 --> 00:24:32,280 Speaker 1: imposing capacity requirements that affect churches as well as some, 382 00:24:32,480 --> 00:24:37,040 Speaker 1: but not all, other entities. And did that start when 383 00:24:37,600 --> 00:24:43,040 Speaker 1: Justice Amy Corney Barrett came to the Court. It did before, 384 00:24:43,480 --> 00:24:47,360 Speaker 1: back when Justice Ginsburg was still alive. Chief Justice Roberts 385 00:24:47,440 --> 00:24:53,919 Speaker 1: had joined with the Court's liberals to allow COVID restrictions 386 00:24:53,960 --> 00:24:57,160 Speaker 1: to go forward. There's an opinion where the Court said, 387 00:24:57,400 --> 00:24:59,679 Speaker 1: we have to give them a lot of space, especially 388 00:25:00,359 --> 00:25:04,840 Speaker 1: during an emergency situation like a pandemic, to impose the 389 00:25:04,920 --> 00:25:08,520 Speaker 1: restrictions they think are warranted and not second guests states 390 00:25:08,520 --> 00:25:12,280 Speaker 1: and local governments. And then once Jefficsparrick joined the Court, 391 00:25:12,359 --> 00:25:16,280 Speaker 1: that started to shift. And in some cases John Roberts 392 00:25:16,320 --> 00:25:19,640 Speaker 1: from found himself in the minority, or at least by 393 00:25:19,760 --> 00:25:21,879 Speaker 1: himself and not not wanting to go as far as 394 00:25:21,920 --> 00:25:25,400 Speaker 1: some of his conservative colleagues. So we have certainly seen 395 00:25:25,440 --> 00:25:29,240 Speaker 1: movement in this area towards more deference towards houses of 396 00:25:29,280 --> 00:25:32,240 Speaker 1: worship since just Ae Sparit joined the court. So we're 397 00:25:32,280 --> 00:25:36,200 Speaker 1: waiting now for all the decisions that we've been waiting 398 00:25:36,240 --> 00:25:39,440 Speaker 1: for for quite a while. Is the only one involving religion, 399 00:25:39,560 --> 00:25:44,280 Speaker 1: the Fulton County case where it's a question of gay 400 00:25:44,359 --> 00:25:48,000 Speaker 1: rights versus religious rights. Yeah, that's certainly the big one 401 00:25:48,200 --> 00:25:52,800 Speaker 1: involving religion. It's a case where the City of Philadelphia 402 00:25:53,000 --> 00:25:57,320 Speaker 1: has a foster care program and they use private organizations 403 00:25:57,480 --> 00:26:00,680 Speaker 1: that helped run the foster care program at least certain 404 00:26:00,680 --> 00:26:03,280 Speaker 1: parts of it. And and one thing that those groups 405 00:26:03,280 --> 00:26:06,000 Speaker 1: do is screen out applicants people who want to be 406 00:26:06,080 --> 00:26:10,960 Speaker 1: foster parents, and Catholic Social Services will not certify same 407 00:26:11,000 --> 00:26:13,080 Speaker 1: sex couples. If the same sex couple were to go 408 00:26:13,119 --> 00:26:15,320 Speaker 1: to Tatholic Social Services and say we want to be 409 00:26:15,520 --> 00:26:19,399 Speaker 1: approved as a foster family, Catholic Social Services would refer 410 00:26:19,400 --> 00:26:22,359 Speaker 1: them elsewhere. And so the city is saying that violates 411 00:26:22,440 --> 00:26:25,800 Speaker 1: our anti discrimination policy that we have here, and so 412 00:26:26,200 --> 00:26:30,960 Speaker 1: Catholic Social Services cannot continue as one of our screening agencies. 413 00:26:31,400 --> 00:26:34,320 Speaker 1: And that case does have the potential, like that's the 414 00:26:34,359 --> 00:26:36,800 Speaker 1: court to overturn a pretty significant precedence. It does have 415 00:26:36,840 --> 00:26:40,240 Speaker 1: the potential to be a very big religious rights decision 416 00:26:40,760 --> 00:26:44,399 Speaker 1: that would further bolster religious rights as or stand alongside 417 00:26:44,440 --> 00:26:48,520 Speaker 1: this COVID decision as being a real turning point in 418 00:26:48,520 --> 00:26:51,920 Speaker 1: this debate over the rights of churches and in this case, 419 00:26:52,000 --> 00:26:56,120 Speaker 1: gay rights. Thanks Craig. That's Bloomberg News Supreme Court Reporter 420 00:26:56,200 --> 00:26:58,879 Speaker 1: Greg's store, and that's it for this edition of the 421 00:26:58,920 --> 00:27:02,400 Speaker 1: Bloomberg Launscha. Remember you can always at the latest legal 422 00:27:02,440 --> 00:27:05,080 Speaker 1: news on our Bloomberg Glow podcast. 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