WEBVTT - Why Is Biden Protecting Trump's Tax Returns? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.320 --> 0:00:13.680 I say to Mr Trump, Mr President, at least twenty 0:00:13.680 --> 0:00:17.160 one years in my tax returns, we talk about corruption. 0:00:17.640 --> 0:00:23.680 Release yours are shut up curious. You probably remember how 0:00:23.800 --> 0:00:27.560 Joe Biden prodded former President Donald Trump to release his 0:00:27.720 --> 0:00:31.360 taxes during the campaign, So it may surprise you that 0:00:31.440 --> 0:00:36.800 as President, Biden is now protecting Trump's tax returns. Four 0:00:36.880 --> 0:00:40.440 months into Biden's term and the Johnstice Department is still 0:00:40.520 --> 0:00:44.800 fighting to keep secret documents related to Trump. These include 0:00:44.840 --> 0:00:48.760 an internal memo to former Attorney General William Barr justifying 0:00:48.800 --> 0:00:51.760 the decision not to charge Trump in the Mueller probe, 0:00:52.200 --> 0:00:56.560 grand jury material in the Russia investigation, and yes, Trump's 0:00:56.600 --> 0:01:00.200 tax returns. The Joice Department is following the lead need 0:01:00.200 --> 0:01:03.640 of prior administrations in protecting the power of the executive 0:01:03.680 --> 0:01:08.679 branch through that legal doctor known as executive privilege. Joining 0:01:08.680 --> 0:01:11.160 me is Harold Crent, a professor at the Chicago Kent 0:01:11.360 --> 0:01:16.400 College of Law. Also, executive privilege is a court made doctrine. 0:01:16.640 --> 0:01:19.480 Tell us how it came about? No mission of executive 0:01:19.480 --> 0:01:23.800 privilege and the Constitution. Nonetheless, Presidents from George Washington on 0:01:24.319 --> 0:01:28.560 have felt the need to keep some information confidential, not 0:01:28.640 --> 0:01:31.280 to share it with Congress or the courts or interested 0:01:31.280 --> 0:01:35.560 in individuals, because you can't run a government unless you 0:01:35.600 --> 0:01:37.959 can have some kind of secret to some kind of 0:01:38.040 --> 0:01:43.399 promise of confidentiality to encourage candid discussions. So then there 0:01:43.440 --> 0:01:47.800 are no right lines as far as what should be 0:01:48.040 --> 0:01:52.040 protected by executive privilege and what should not be. There 0:01:52.040 --> 0:01:56.200 are no bright lines, and courts at times have intervened 0:01:56.360 --> 0:01:59.600 and vague decisions, such as in the recent Trump tax case, 0:01:59.840 --> 0:02:03.600 to try to reconcile the rights of those interested. But 0:02:04.080 --> 0:02:07.880 most questions about confidentially out if communications are resolved outside 0:02:07.880 --> 0:02:11.360 of courts, and the presidents decide what to release, and 0:02:11.480 --> 0:02:13.920 Congress the size if it wants to make a stink 0:02:14.240 --> 0:02:18.000 and try to take some kind of action to encourage 0:02:18.080 --> 0:02:22.080 or to incentivize the president to disclose more information. So 0:02:22.200 --> 0:02:24.680 these battles are hard. They've been in and out of 0:02:24.720 --> 0:02:27.720 court for centuries, and we don't know exactly where the 0:02:27.760 --> 0:02:30.840 lines are to be drawn. Was the Nixon case the 0:02:30.960 --> 0:02:35.560 first big executive privilege case or were there cases before that? 0:02:35.880 --> 0:02:38.280 The Nixon case case was the biggest case. It's the 0:02:38.360 --> 0:02:42.359 Bellwether because they are. The Court clearly recognized the existence 0:02:42.520 --> 0:02:46.239 of the communications privilege within Article two of the Constitution, 0:02:46.600 --> 0:02:50.080 but held that, at least with respect to claims arising 0:02:50.080 --> 0:02:54.920 out of specific criminal cases, that the interest in trying 0:02:54.960 --> 0:02:59.400 to get information in the executive's hands was so important 0:02:59.400 --> 0:03:02.040 to the misery of justice that will outweighed the separation 0:03:02.080 --> 0:03:05.880 of powers concerned expressed by the President. So now, I 0:03:05.919 --> 0:03:09.360 think a lot of people assume that when Joe Biden 0:03:09.400 --> 0:03:13.639 became president that all the documents that the Democrats were 0:03:13.639 --> 0:03:18.440 looking for from the Trump presidency would be turned over. 0:03:18.960 --> 0:03:24.560 But not. So. Let's start with the memo prepared by 0:03:24.680 --> 0:03:28.400 the Office of Legal Counsel. Where does that stand? So, 0:03:28.680 --> 0:03:31.760 on the one hand, the two thousand nine Office of 0:03:31.800 --> 0:03:34.320 Legal Council memorandum should be an easy case because the 0:03:34.360 --> 0:03:36.800 Office of Legal Counsel is to give advice in the 0:03:36.840 --> 0:03:40.320 Department of Justice, so give advice to executive branch agencies 0:03:40.360 --> 0:03:42.400 as well as to the President on all sorts of 0:03:42.480 --> 0:03:46.880 legal issues that arise and confront the administration. But the 0:03:46.920 --> 0:03:50.080 problem here is that the memo was first of all 0:03:50.120 --> 0:03:54.040 relied upon by a trained general bar in deciding and 0:03:54.240 --> 0:03:58.680 announcing why he would not prosecute President Trump. But it 0:03:58.800 --> 0:04:04.000 turns out a to Judge Amy Jackson that this oil 0:04:04.040 --> 0:04:08.400 C memorandum is really part of the public relations effort 0:04:08.640 --> 0:04:11.120 of the government, so it wasn't advice, so it wouldn't 0:04:11.160 --> 0:04:15.080 be covered by deliberative process privilege the way it ordinarily 0:04:15.080 --> 0:04:18.680 would be, because it was part of the far orchestration 0:04:19.040 --> 0:04:23.080 of trying to distance the administration from the Muller investigation. 0:04:23.360 --> 0:04:27.200 So what would have ordinarily been covered by deliberative process 0:04:27.320 --> 0:04:32.400 privilege as advice in this case seems to be something else, 0:04:32.520 --> 0:04:36.000 seems to be result oriented, And therefore the question is 0:04:36.040 --> 0:04:41.159 why is the administration not willing to release it? Other 0:04:41.240 --> 0:04:43.839 than the fact that it might embarrass the Justice Department. 0:04:44.320 --> 0:04:48.039 It seems like a memorandum by the Office of Legal Counsel. 0:04:48.080 --> 0:04:51.200 Shouldn't it be something that everyone can read to know 0:04:51.680 --> 0:04:58.000 where the department stands. Administration's consistently have held that it's 0:04:58.080 --> 0:05:03.600 up to the Office of Also whether to disclose these memoranda. Indeed, 0:05:03.640 --> 0:05:07.160 there's ongoing litigation under the Freedom of Information Act in 0:05:07.200 --> 0:05:10.599 many other contexts right now about whether or not the 0:05:10.640 --> 0:05:14.240 opposite lead Council has to disclose the advice It gives 0:05:14.240 --> 0:05:17.360 to various agencies, and the Executive Branch has taken the 0:05:17.440 --> 0:05:21.080 consistent position that most everything that the Office of Legal 0:05:21.120 --> 0:05:24.800 Council does is advice. It's not binding, therefore it falls 0:05:24.839 --> 0:05:28.839 within the deliberative process privilege. And they have the fact 0:05:28.920 --> 0:05:33.600 Lee decided not to reveal certain amounts of OLC documents, 0:05:33.720 --> 0:05:38.320 of course, including the one about the Muller investigation itself. 0:05:38.360 --> 0:05:41.159 But I think the real issue here is not whether 0:05:41.240 --> 0:05:44.120 it ordinarily would be part of the deliberative process privilege, 0:05:44.240 --> 0:05:48.400 but was this really a traditional OLC memorandum or is 0:05:48.400 --> 0:05:51.839 this something that was hatched up by Attorney General bar 0:05:52.160 --> 0:05:55.440 in order to paper over the very damning information in 0:05:55.480 --> 0:05:58.560 the Mullar report. And so now the Justice Department is 0:05:58.600 --> 0:06:03.520 appealing Judge Jackson's decision to the DC Circuit Court of Appeals. 0:06:03.520 --> 0:06:07.120 How important is this case in context? And I think 0:06:07.120 --> 0:06:09.800 this may well make law. And the real questions was 0:06:09.839 --> 0:06:13.920 the motivation of the Biden administration and Merrick Island. Are 0:06:13.960 --> 0:06:18.000 they trying to preserve the tarnished image of the Department 0:06:18.040 --> 0:06:21.359 of Justice or is their advice in this memorandum that 0:06:21.560 --> 0:06:26.159 would routinely be protected by the deliberative process privilege? Let's 0:06:26.200 --> 0:06:31.040 turn to Trump's taxes. During the campaign, Biden kept pressing 0:06:31.240 --> 0:06:35.200 Trump to release his taxes, and every president since Richard 0:06:35.279 --> 0:06:39.720 Nixon has voluntarily released his taxes, and yet the Biden 0:06:39.760 --> 0:06:44.240 administration is fighting to keep from giving Trump's taxes to 0:06:44.279 --> 0:06:47.839 the House. That sort of defies logic in my mind. 0:06:48.320 --> 0:06:50.280 I must confess, I agree with you on that one. 0:06:50.279 --> 0:06:54.760 I don't understand how Trump's taxes are subject to any 0:06:54.839 --> 0:06:59.560 kind of recognized privilege. Obviously there's privacy issues involved with 0:06:59.600 --> 0:07:02.400 all of our taxes, but Congress can easily override that. 0:07:02.839 --> 0:07:06.160 And in fact, there's a statute which demands that anybody 0:07:06.200 --> 0:07:10.320 turn over the taxes is subject to a legitimate congressional inquiry. 0:07:10.720 --> 0:07:12.400 And so I think that it should have been a 0:07:12.520 --> 0:07:17.200 very straightforward issue about allowing Congress to look at those taxes, 0:07:17.280 --> 0:07:20.800 because it is the basis upon which future legislation may arise. 0:07:21.000 --> 0:07:24.120 And of course, the Manhattan District Attorney already has Trump's 0:07:24.240 --> 0:07:28.480 tax returns for his investigation. Now, one issue that has 0:07:28.560 --> 0:07:32.360 been resolved after a two year battle, Former White House 0:07:32.360 --> 0:07:36.960 Counsel Don McGan testified to the House Judiciary Committee behind 0:07:37.040 --> 0:07:40.960 closed doors on Friday. Was there sort of a standoff 0:07:41.000 --> 0:07:44.559 in court, there was no final resolution of the question 0:07:44.560 --> 0:07:47.240 about what to do with McGann's testimony, but that led 0:07:47.320 --> 0:07:52.120 to finally a brokered agreement where McGann will be able 0:07:52.160 --> 0:07:56.920 to testify about narrow issues before the House Committee. And 0:07:57.000 --> 0:08:00.240 it's a very complicated issue because personal McGee and was 0:08:00.280 --> 0:08:03.520 a former White House official, he wasn't currently in the 0:08:03.560 --> 0:08:07.200 office when he was being subpoenat. But clearly the information 0:08:07.520 --> 0:08:10.680 that the Congress was interested in getting had to do 0:08:10.840 --> 0:08:16.280 with his communications to the President about the Mueller investigation. 0:08:16.560 --> 0:08:21.080 So it became a centerpiece of potential obstruction because he 0:08:21.160 --> 0:08:24.280 was so termed in the room when all these various 0:08:24.320 --> 0:08:28.600 actions by the President took place. So for him, clearly 0:08:28.720 --> 0:08:32.439 the presidential privilege would apply, but it could be overridden 0:08:33.000 --> 0:08:36.920 if it involved some kind of witness to criminal activity. 0:08:37.320 --> 0:08:40.040 And so that's why it became so contentious. And then 0:08:40.360 --> 0:08:45.160 the Biden administration again broker this compromised so that mcdan 0:08:45.240 --> 0:08:48.240 would be able to testify, but only with respect to 0:08:48.480 --> 0:08:52.280 the same matters that have been publicly disclosed. You look 0:08:52.320 --> 0:08:55.040 at this trying to assess who won the power struggle 0:08:55.120 --> 0:08:58.319 between Congress and the president. It's the president with respect 0:08:58.400 --> 0:09:01.960 to McGann's testimony, And here I think it's easier to 0:09:02.000 --> 0:09:06.760 see the Biden administration's perspective. All presidential administrations try to 0:09:07.240 --> 0:09:11.520 preserve the confidentiality of White House Council. So President Biden 0:09:11.600 --> 0:09:15.040 is probably worried about any kind of precedent allowing a 0:09:15.240 --> 0:09:20.080 Congress to brake a former presidential council over the cold. 0:09:20.360 --> 0:09:23.959 That was the incentive for the president to be tough 0:09:24.240 --> 0:09:27.079 and Congress back down, and so this is a very 0:09:27.320 --> 0:09:33.319 limited victory for Congress. Has the trend been for presidents 0:09:33.360 --> 0:09:38.520 to assert executive privilege more? Have recent presidents asserted it 0:09:38.600 --> 0:09:41.640 more than in the past. So I think there's a 0:09:41.840 --> 0:09:46.640 historical track record of many presidents invoking executive privilege. President Eisenhower, 0:09:46.720 --> 0:09:50.160 if I recall, invoted forty times, and that indeed it 0:09:50.240 --> 0:09:53.760 was under his administration where the term executive privilege was coined. 0:09:54.040 --> 0:09:56.400 So this is not a new creation. But I do 0:09:56.480 --> 0:09:59.480 think the trend we see is that the courts, with 0:09:59.520 --> 0:10:03.080 the accept perhaps of the tax case, are more likely 0:10:03.160 --> 0:10:07.200 to override claims of privilege when they interfere with judicial 0:10:07.200 --> 0:10:10.920 fortunes than they do with congressional functions or its seemed 0:10:10.960 --> 0:10:13.440 to want to stay out of the fray and allow 0:10:13.600 --> 0:10:17.280 Congress in the presidence to hash out any differences themselves. 0:10:17.400 --> 0:10:21.680 But when the courts are involved, or individuals claiming the 0:10:21.800 --> 0:10:24.880 need for information in the President's hand in order to 0:10:24.920 --> 0:10:27.240 try to vindicate an interest in the court system, then 0:10:27.240 --> 0:10:29.840 the courts have been brought in and are more willing 0:10:29.880 --> 0:10:33.560 to second guess the invocation of privilege. So again, the 0:10:33.559 --> 0:10:36.680 court seemed to be more willing to investigate the limit 0:10:36.760 --> 0:10:39.760 of privilege when it's vital to resolve a court case, 0:10:39.880 --> 0:10:43.920 and they want to allow the two majoritarian branches, Congress 0:10:43.920 --> 0:10:46.760 and the President to fight through issues of access to 0:10:46.800 --> 0:10:50.800 information on their own. It seems that so far the 0:10:50.840 --> 0:10:56.719 Biden administration's position is executive privilege rules. They haven't been 0:10:56.720 --> 0:11:00.880 willing to give over anything readily. That's correc and I 0:11:00.920 --> 0:11:03.560 think many people are surprised at the extent that they 0:11:03.760 --> 0:11:07.400 have defended presidential privilege. No one expected them to abandon 0:11:07.679 --> 0:11:10.400 presidential privilege. It's just the extent to which they are 0:11:10.440 --> 0:11:14.480 even protecting President Trump's interests has been surprising too many. 0:11:14.760 --> 0:11:18.040 Thanks Hal. That's Harold Grant of the Chicago Kent College 0:11:18.080 --> 0:11:22.280 of Law, Johnson and Johnson will be writing a check 0:11:22.320 --> 0:11:26.079 for two point one billion dollars plus interest to twenty 0:11:26.120 --> 0:11:29.319 women who claim it's baby powder was tainted with cancer 0:11:29.400 --> 0:11:33.160 causing asbestos. That's because the Supreme Court refused to take 0:11:33.240 --> 0:11:37.520 Jay and Jay's appeal from a St. Louis jury's verdict. 0:11:38.240 --> 0:11:40.840 Joining me is Eric Gordon, a professor of business at 0:11:40.840 --> 0:11:44.600 the University of Michigan. Eric, the court rejected JA and 0:11:44.720 --> 0:11:47.600 J without comment. Why do you think they left in 0:11:47.679 --> 0:11:51.960 place this staggering verdict? We can only guess as to 0:11:52.160 --> 0:11:55.320 why the Supreme Court declined to take the appeal, because 0:11:55.320 --> 0:12:00.000 the Supreme Court never gives its reasons. It just decided. 0:12:00.679 --> 0:12:05.120 But the Supreme Court can only take appeals in very 0:12:05.280 --> 0:12:09.240 narrow circumstances. They can't take an appeal just because they 0:12:09.360 --> 0:12:12.840 disagree with the verdict. There has to be a narrow 0:12:12.960 --> 0:12:17.640 constitutional issue. The issues J and J raised were due 0:12:17.920 --> 0:12:23.760 process issues, and apparently the Supreme Court didn't think that 0:12:23.840 --> 0:12:28.200 the due process issues needed to be decided. So now 0:12:28.480 --> 0:12:32.000 two of the justices didn't participate. We don't know why, 0:12:32.040 --> 0:12:34.760 but Samuel Alito does own Stock and J and J 0:12:35.400 --> 0:12:40.120 and Brett Kavanaugh's father lobby J and J not to 0:12:40.240 --> 0:12:45.840 include a warning apparently on the baby powder. So could 0:12:45.840 --> 0:12:49.960 the fact that those two conservative justices didn't take part. 0:12:50.000 --> 0:12:52.440 Could that have been part of the reason why they 0:12:52.440 --> 0:12:56.120 couldn't get four justices to take the case. That could 0:12:56.120 --> 0:12:59.040 be it because it leads only seven. So you go 0:12:59.160 --> 0:13:01.560 from needing four out of nine to needing four out 0:13:01.559 --> 0:13:05.480 of seven with two justices who might say, look, this 0:13:05.559 --> 0:13:10.680 is an important issue. This huge multibillion dollar punitive damage 0:13:10.880 --> 0:13:14.760 award against J and J. That's really an important due 0:13:14.760 --> 0:13:19.240 process question, where the more liberal justices might think, well, 0:13:19.400 --> 0:13:22.640 you know, it's just the big company paying money, we're 0:13:22.640 --> 0:13:26.200 not so interested in it. It is a staggering amount, though. 0:13:27.080 --> 0:13:30.839 One of the interesting features is that each woman, no 0:13:30.920 --> 0:13:36.240 matter what she suffered, was awarded twenty five million dollars 0:13:36.280 --> 0:13:42.320 in competatory damages and then an equal share of about 0:13:42.360 --> 0:13:47.400 a billion six in punitive damages. So it's a lot 0:13:47.480 --> 0:13:52.040 of money per plaintiff. The judge in this case said 0:13:52.080 --> 0:13:56.800 that he found J and J's conduct particularly reprehensible, yet 0:13:56.920 --> 0:13:59.439 J and J has won some of these cases. It's 0:13:59.480 --> 0:14:04.560 almost a prizing that there are juries that overlooked the 0:14:04.720 --> 0:14:08.920 conduct and apparently looked at the science that J and J. 0:14:09.200 --> 0:14:14.640 Was presenting because juries are usually pretty sympathetic in these cases. 0:14:15.440 --> 0:14:18.840 I think it's a miracle when J and J wins 0:14:18.880 --> 0:14:21.600 in front of a jury, because when you say cancer, 0:14:22.200 --> 0:14:25.880 and when you talk about women suffering with cancer, how 0:14:25.920 --> 0:14:28.840 do you get a juror to say, well, look, let's 0:14:28.880 --> 0:14:31.200 just let's look at this, let's look at the science. 0:14:31.560 --> 0:14:33.520 You have a big company with a lot of money, 0:14:34.120 --> 0:14:37.960 you have women who have suffered horribly. To get a 0:14:38.040 --> 0:14:41.960 juror to focus just on causation, what's the science of 0:14:42.080 --> 0:14:46.600 causation as opposed to sort of the humanity of what's 0:14:46.640 --> 0:14:49.880 going on here, it's really hard. It's really really hard 0:14:49.960 --> 0:14:53.200 to do. Well. How did the appellate court handle the 0:14:53.240 --> 0:14:57.440 due process issues that J and J. Raised? The appellate court, 0:14:57.520 --> 0:15:02.840 which was a state court Missouri State Court, said, well, look, 0:15:03.160 --> 0:15:06.080 all of these problems that J and J. Has brought up, 0:15:06.360 --> 0:15:10.520 the fact that twenty two different plaintiffs were in the 0:15:10.600 --> 0:15:14.480 same courtroom at the same time, the fact that jurors 0:15:14.560 --> 0:15:19.680 decided twenty two cases at once, the fact that the 0:15:19.720 --> 0:15:24.720 trial court took five hours to walk the jurors through 0:15:24.760 --> 0:15:28.960 the laws of a dozen different states as the jury instructions. 0:15:29.440 --> 0:15:34.280 The Missouri State Court of Appeals said, well, we're going 0:15:34.400 --> 0:15:41.480 to assume that the jury followed the trial court's instructions, 0:15:41.680 --> 0:15:45.480 and following those instructions that came up with twenty five 0:15:45.520 --> 0:15:49.480 million dollars. Well, the Missouri Appeals Court made it what 0:15:49.560 --> 0:15:53.560 seems like a pretty big assumption that the jurors understood 0:15:53.880 --> 0:15:57.680 instructions from twelve different states after five hours. What we 0:15:57.840 --> 0:16:02.040 don't know is if the Supreme Court justice has said, Okay, well, 0:16:02.120 --> 0:16:06.000 all right, we agree that the jury instructions are sufficient 0:16:06.200 --> 0:16:09.480 to cure any of these problems. It could just be 0:16:09.600 --> 0:16:12.280 that the Supreme Court thought, well, this case isn't interesting 0:16:12.440 --> 0:16:15.080 enough for us to take, because the Supreme Court takes 0:16:15.200 --> 0:16:19.280 very few cases. They take about three percent of the 0:16:19.360 --> 0:16:22.720 cases that people pitch at them. J and J also 0:16:22.880 --> 0:16:25.920 argued that the punitive damages were so out of sync 0:16:25.960 --> 0:16:30.360 with the compensatory damages that it violated its due process rights. 0:16:30.600 --> 0:16:35.160 The compensatory damage award was sixty million dollars and the 0:16:35.200 --> 0:16:39.320 punitive damages were one point six billion dollars. What has 0:16:39.360 --> 0:16:42.440 the Supreme Court said on the subject. So, the Supreme 0:16:42.440 --> 0:16:45.600 Court has said it is a violation of due process too, 0:16:46.120 --> 0:16:49.120 to use the legal term get angry and sock it 0:16:49.240 --> 0:16:53.800 to and come up with ridiculous punitive damages. Now, even 0:16:53.840 --> 0:16:56.960 the federal courts of appeal don't all agree with each 0:16:57.000 --> 0:17:00.560 other on just what they have to do based on 0:17:00.600 --> 0:17:04.480 the Supreme Court's decisions. There's a question about whether one 0:17:04.520 --> 0:17:07.199 of the main things the court said is actually the 0:17:07.320 --> 0:17:10.600 law or just dicta a comment on the law. So 0:17:10.800 --> 0:17:13.840 some of the federal courts of appeal have said, well, 0:17:14.160 --> 0:17:17.920 one to one a dollar of punitive damages for each 0:17:17.960 --> 0:17:25.040 dollar of compensatory damages, is you more or less the limit. Interestingly, 0:17:25.560 --> 0:17:30.760 the Federal Court of Appeals that covers Missouri follows that 0:17:31.000 --> 0:17:33.760 if this case has been in federal court and this 0:17:33.840 --> 0:17:37.480 has gone to a federal court of appeals, those punitive 0:17:37.520 --> 0:17:40.520 damages probably would have been swatted down. But this is 0:17:40.520 --> 0:17:43.840 a state court case, and there are other federal courts 0:17:43.840 --> 0:17:46.080 of appeals at to say, we don't have to follow 0:17:46.119 --> 0:17:48.879 that one to one thing exactly. We just have to 0:17:48.920 --> 0:17:52.639 look at the punitive damages and make sure they're not unreasonable. 0:17:53.040 --> 0:17:56.480 What J and J said was, look, Supreme Court, these 0:17:56.480 --> 0:17:59.920 punitive damages are ridiculous, and this is a good oper 0:18:00.040 --> 0:18:05.000 tunity for you to resolve this disagreement amongst the federal 0:18:05.080 --> 0:18:08.359 courts of appeal, but the Supreme Court declined. J and 0:18:08.440 --> 0:18:12.960 J still faces about twenty six thousand similar cases, and 0:18:13.000 --> 0:18:17.800 its attorney argued that other plaintiffs could look at this 0:18:17.920 --> 0:18:20.439 case and use it as sort of a script for 0:18:20.560 --> 0:18:25.000 their cases. Is that a good argument, Well, it's something 0:18:25.040 --> 0:18:29.120 that the defense attorneys fear. They fear that the plaintiffs 0:18:29.200 --> 0:18:34.240 attorneys will say, Wow, this is what worked with that jury, 0:18:34.960 --> 0:18:38.760 so we will use it with our jury. I think 0:18:39.000 --> 0:18:43.439 that the plaintiff's bar is pretty sophisticated. They do a 0:18:43.520 --> 0:18:48.560 lot of testing, They test their testimony in front of 0:18:48.760 --> 0:18:52.840 mock jurors, they hire psychologists. Yeah, this is a data 0:18:52.920 --> 0:18:55.879 point for the plaintiff's bar that the plaintiffs bar in 0:18:55.920 --> 0:19:00.480 these high stakes case they're really sophisticated. They will come 0:19:00.480 --> 0:19:05.440 at you with tested testimony, very well crafted testimony. With 0:19:05.680 --> 0:19:07.919 or without this case. What effect does this have on 0:19:07.960 --> 0:19:11.199 the J and J litigation going forward? I think it 0:19:11.240 --> 0:19:15.359 does make settling harder. I think other courts will be 0:19:15.760 --> 0:19:20.439 less likely to allow that kind of punitive damages. I 0:19:20.480 --> 0:19:22.520 think other courts are going to be less likely to 0:19:22.680 --> 0:19:27.520 allow twenty two different plaintiffs from twelve different states to 0:19:27.680 --> 0:19:30.360 sue at the same time. So I don't think jan 0:19:30.440 --> 0:19:32.920 J is going to be up against the deck that's 0:19:33.040 --> 0:19:35.800 sort of shuffled quite the same way as it was 0:19:36.160 --> 0:19:41.240 in Missouri. In future cases, do the punitive damages add 0:19:41.320 --> 0:19:44.359 up so that another jury can't give as much in 0:19:44.480 --> 0:19:48.439 punitive damages because they're cumulative to punish J and J. 0:19:49.320 --> 0:19:56.920 Every jury is free to assess punitive damages. You can't say, wait, 0:19:57.320 --> 0:20:00.359 we've already paid one point six billion dollar, there's com 0:20:00.359 --> 0:20:05.760 punitive damages, no more. Um It can be stacked one 0:20:05.920 --> 0:20:08.920 on top of the other. Uh and and that's a 0:20:09.000 --> 0:20:14.120 real danger. The punitive damages can can add up. Even 0:20:14.160 --> 0:20:18.680 if the punitive damages are limited to sort of one 0:20:18.760 --> 0:20:22.560 for one the dollar per dollar with compensatory damages idea, 0:20:23.440 --> 0:20:26.359 you know, even at one to one, it doubles the 0:20:26.440 --> 0:20:29.280 compensatory damages. It basically says, all right, if you pay 0:20:29.280 --> 0:20:32.639 a million dollars in compensatory damages, your total bill is 0:20:32.680 --> 0:20:35.159 going to be two million dollars. So this is the 0:20:35.320 --> 0:20:37.840 end for J and J in this case. They have 0:20:37.920 --> 0:20:41.000 to pay up now. The next step in this case 0:20:41.119 --> 0:20:44.560 is to write a check. There is no more avenue 0:20:44.640 --> 0:20:47.200 for appeal. So they're going to write a check. Uh, 0:20:48.080 --> 0:20:50.760 it's going to be more than the two point one 0:20:50.840 --> 0:20:53.280 billion dollars. They're going to pay a check. With interest, 0:20:53.320 --> 0:20:55.560 it will probably be more like two point four two 0:20:55.560 --> 0:20:59.280 point five billion dollars. Not a good day for J 0:20:59.440 --> 0:21:02.400 and J. Thanks for Vanna, Bloomberg Lass Show Eric. That's 0:21:02.520 --> 0:21:08.400 Eric Gordon of the University of Michigan. Supreme Court Justice 0:21:08.480 --> 0:21:12.240 Neil Gorst rejected a request from two churches to block 0:21:12.280 --> 0:21:15.840 a Colorado law that lets the state issue emergency orders. 0:21:16.200 --> 0:21:19.399 Joining me is Bloomberg News Supreme Court reporter Greg Store. 0:21:20.000 --> 0:21:23.040 What were the two churches complaining about? What do they 0:21:23.080 --> 0:21:26.080 want from the Supreme Court? Originally, the two churches were 0:21:26.080 --> 0:21:30.679 complaining about COVID restrictions and capacity limits and distancing requirements 0:21:30.680 --> 0:21:33.240 that Colorado was imposing on them. But by the time 0:21:33.240 --> 0:21:35.560 I get the case got to the Supreme Court, all 0:21:35.600 --> 0:21:38.480 those restrictions were gone. And so what they were asking 0:21:38.520 --> 0:21:42.439 the court to do was to block the disaster emergency 0:21:42.560 --> 0:21:46.560 law that Colorado was using to impose these restrictions, and 0:21:46.600 --> 0:21:50.240 that law also applies to things like, you know, earthquakes 0:21:50.240 --> 0:21:53.720 and wildfires. So it was a very broader request that 0:21:53.760 --> 0:21:58.280 these churches were making. Justice Neil Gorsuch handles emergencies from Colorado. 0:21:58.520 --> 0:22:01.480 Explain how that works with the justice is handling you know, 0:22:01.520 --> 0:22:05.280 a section of the country. Yeah, each justice has one 0:22:05.359 --> 0:22:09.440 or more circuits parts of the country that they're responsible 0:22:09.480 --> 0:22:13.640 for Justice Course, which has the tenth circuit, which includes Colorado, 0:22:14.000 --> 0:22:18.280 and so any emergency request from their first go to him, 0:22:18.320 --> 0:22:21.359 and he then has the option of acting on himself 0:22:21.880 --> 0:22:25.719 or referring it to the full nine member court. In 0:22:25.720 --> 0:22:29.560 this particular case, he just acted on his own denied it. 0:22:29.560 --> 0:22:32.720 It's theoretically possible the churches could now go to a 0:22:32.800 --> 0:22:35.159 different justice and ask for the same thing they're asking 0:22:35.200 --> 0:22:37.760 Justice courses war. But if it ain't at Justice Courses, 0:22:37.880 --> 0:22:40.359 his vote, it's it's it's pretty clear that the Court 0:22:40.359 --> 0:22:42.040 as a whole is not going to grant the request. 0:22:42.320 --> 0:22:45.520 So what does it indicate that he did not even 0:22:45.560 --> 0:22:49.160 refer it to the full court. Well, that sometimes can 0:22:49.320 --> 0:22:52.119 can indicate that it wasn't a very serious request and 0:22:52.160 --> 0:22:54.920 it wasn't worth the bother of sending it to to 0:22:55.040 --> 0:22:57.840 all the other justices. In this case, though, if you 0:22:58.119 --> 0:23:01.639 read the tea leaves, it's a little less clear because 0:23:02.119 --> 0:23:05.280 this request, which was originally filed on May the third, 0:23:05.520 --> 0:23:09.840 and Justice Corsage gave the State of Colorado a fair 0:23:09.840 --> 0:23:12.840 amount of times to follow its response, and then he 0:23:12.880 --> 0:23:15.960 took a while to issue a decision that didn't include 0:23:16.000 --> 0:23:19.840 any explanations. So it seems likely that there were some 0:23:19.840 --> 0:23:24.280 some behind the scenes machinations going on. Uh he may 0:23:24.320 --> 0:23:27.760 have probably did talk to some of his colleagues about 0:23:27.800 --> 0:23:30.480 how they were going to handle the case. We don't 0:23:30.480 --> 0:23:32.680 know that, but that the amount of time that elapsed 0:23:32.680 --> 0:23:35.960 suggests that something was going on. Explain how the Court 0:23:35.960 --> 0:23:40.280 has been handling these emergency appeals from churches during the 0:23:40.280 --> 0:23:43.439 pandemic well as a general matter, at least since Justice 0:23:43.440 --> 0:23:45.560 Barrett has joined the Court and gave the Court a 0:23:45.600 --> 0:23:48.560 more solid conservative majority. As a general matter, they have 0:23:48.640 --> 0:23:52.119 been granting these requests from from churches, even with regard 0:23:52.200 --> 0:23:54.800 to restrictions that are no longer in place at the 0:23:54.840 --> 0:23:57.639 time of the request, and the Court is actually, in 0:23:57.680 --> 0:24:01.520 the minds of many experts, really banded religious rights in 0:24:01.880 --> 0:24:04.400 the process, even though these are emergency matters where they're 0:24:04.400 --> 0:24:08.159 not supposed to be making making new law. But the Court, 0:24:08.560 --> 0:24:11.520 in a series of decisions has essentially created what people 0:24:11.560 --> 0:24:14.159 are calling a most Favored Nation status for churches. In 0:24:14.160 --> 0:24:17.119 other words, if there's any other entity that is not 0:24:17.200 --> 0:24:21.200 subject to similar restrictions and it is similarly situated, it 0:24:21.320 --> 0:24:24.439 can impose them on on churches. It's been a significant 0:24:24.440 --> 0:24:28.280 deal in terms of blocking states and local governments from 0:24:28.560 --> 0:24:32.280 imposing capacity requirements that affect churches as well as some, 0:24:32.480 --> 0:24:37.040 but not all, other entities. And did that start when 0:24:37.600 --> 0:24:43.040 Justice Amy Corney Barrett came to the Court. It did before, 0:24:43.480 --> 0:24:47.360 back when Justice Ginsburg was still alive. Chief Justice Roberts 0:24:47.440 --> 0:24:53.919 had joined with the Court's liberals to allow COVID restrictions 0:24:53.960 --> 0:24:57.160 to go forward. There's an opinion where the Court said, 0:24:57.400 --> 0:24:59.679 we have to give them a lot of space, especially 0:25:00.359 --> 0:25:04.840 during an emergency situation like a pandemic, to impose the 0:25:04.920 --> 0:25:08.520 restrictions they think are warranted and not second guests states 0:25:08.520 --> 0:25:12.280 and local governments. And then once Jefficsparrick joined the Court, 0:25:12.359 --> 0:25:16.280 that started to shift. And in some cases John Roberts 0:25:16.320 --> 0:25:19.640 from found himself in the minority, or at least by 0:25:19.760 --> 0:25:21.879 himself and not not wanting to go as far as 0:25:21.920 --> 0:25:25.400 some of his conservative colleagues. So we have certainly seen 0:25:25.440 --> 0:25:29.240 movement in this area towards more deference towards houses of 0:25:29.280 --> 0:25:32.240 worship since just Ae Sparit joined the court. So we're 0:25:32.280 --> 0:25:36.200 waiting now for all the decisions that we've been waiting 0:25:36.240 --> 0:25:39.440 for for quite a while. Is the only one involving religion, 0:25:39.560 --> 0:25:44.280 the Fulton County case where it's a question of gay 0:25:44.359 --> 0:25:48.000 rights versus religious rights. Yeah, that's certainly the big one 0:25:48.200 --> 0:25:52.800