1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:09,080 --> 00:00:12,280 Speaker 2: Senator, I will say that President Trump trusts me to 3 00:00:12,320 --> 00:00:16,919 Speaker 2: give him counsel. Council does not mean any recognized man 4 00:00:17,200 --> 00:00:19,480 Speaker 2: and so, and that's true in my case, like it 5 00:00:19,520 --> 00:00:20,960 Speaker 2: should be in any attorney's generals. 6 00:00:21,239 --> 00:00:25,360 Speaker 3: Todd Blanche tried to assure skeptical senators that he was 7 00:00:25,440 --> 00:00:29,560 Speaker 3: no longer acting as President Trump's personal lawyer. But then 8 00:00:29,600 --> 00:00:32,880 Speaker 3: there was this answer which seemed to indicate that the 9 00:00:33,040 --> 00:00:38,080 Speaker 3: Justice Department would not be independent from Trump under Blanche's leadership. 10 00:00:38,159 --> 00:00:40,800 Speaker 2: The Department of Justice, like every single department in the 11 00:00:40,880 --> 00:00:43,640 Speaker 2: executive is part of the executive. I mean Article two 12 00:00:43,640 --> 00:00:47,400 Speaker 2: of the Constitution gives the power of the executive to 13 00:00:47,520 --> 00:00:51,760 Speaker 2: President Trump. So we certainly operate with integrity. We certainly 14 00:00:51,800 --> 00:00:55,120 Speaker 2: operate in the single mindset to serve the American people 15 00:00:55,160 --> 00:00:58,160 Speaker 2: and do the right thing. But I am a member, 16 00:00:58,240 --> 00:01:01,320 Speaker 2: if confirmed, I will a member of the cabinet. 17 00:01:01,600 --> 00:01:06,360 Speaker 3: For five contentious hours, Blanche was questioned about his brief 18 00:01:06,400 --> 00:01:10,640 Speaker 3: but tumultuous tenure as acting Attorney General, which saw the 19 00:01:10,680 --> 00:01:14,720 Speaker 3: bungle release of the Epstein files, the prosecution of the 20 00:01:14,720 --> 00:01:20,040 Speaker 3: president's political enemies, criticism of DOJ lawyers by federal judges, 21 00:01:20,440 --> 00:01:24,200 Speaker 3: and the topic that drew the most questions was Blanche's 22 00:01:24,240 --> 00:01:28,120 Speaker 3: creation of a one point eight billion dollar anti weaponization 23 00:01:28,360 --> 00:01:33,680 Speaker 3: fund to compensate Trump's allies. Though Blanche insisted the fund 24 00:01:33,800 --> 00:01:37,319 Speaker 3: is dead, Trump hasn't agreed to that. In writing and 25 00:01:37,440 --> 00:01:42,039 Speaker 3: under questioning by Republican Senator John Cornyn, Blanche admitted that 26 00:01:42,120 --> 00:01:44,080 Speaker 3: the agreement could be resurrected. 27 00:01:44,360 --> 00:01:47,800 Speaker 4: Is a settlement agreement enforceable as a contract by the parties? 28 00:01:49,080 --> 00:01:52,680 Speaker 2: Well, yes, it's an enforceable document. So I suppose if 29 00:01:52,800 --> 00:02:00,760 Speaker 2: President Trump's council sought to enforce it, that they potentially could. 30 00:01:59,360 --> 00:02:02,520 Speaker 5: Including theanization fund, Well, they could try to enforce them. 31 00:02:02,840 --> 00:02:06,680 Speaker 3: With Democrats united against Blanche, he needs the votes of 32 00:02:06,920 --> 00:02:11,240 Speaker 3: every Republican on the Senate Judiciary Committee or his nomination 33 00:02:11,440 --> 00:02:15,520 Speaker 3: will fail. Joining me is constitutional law expert David Souper, 34 00:02:15,680 --> 00:02:19,799 Speaker 3: a professor at Georgetown Law. David, what's your general impression 35 00:02:19,840 --> 00:02:21,120 Speaker 3: of how Blanche? Did? 36 00:02:21,480 --> 00:02:24,560 Speaker 4: I mean? He's a smart lawyer. There are some lawyers 37 00:02:24,600 --> 00:02:28,000 Speaker 4: in Trump's orbit who are completely incompetent. Blanche is certainly 38 00:02:28,000 --> 00:02:32,400 Speaker 4: not one of those, and he's I think fairly quick 39 00:02:32,520 --> 00:02:37,200 Speaker 4: on his feet. But he's got a record that's very 40 00:02:37,240 --> 00:02:40,720 Speaker 4: difficult to defend, and he's got a boss who won't 41 00:02:40,800 --> 00:02:44,679 Speaker 4: let him promise to do things that any reasonable attorney 42 00:02:44,720 --> 00:02:48,920 Speaker 4: general would do. So he's been at a box several times. 43 00:02:49,280 --> 00:02:52,480 Speaker 4: Some of the Democrats have done a pretty good job 44 00:02:52,680 --> 00:02:56,920 Speaker 4: of pinning him down, some of them have done a 45 00:02:57,280 --> 00:02:59,520 Speaker 4: less good job of pinning him down, and some of 46 00:02:59,560 --> 00:03:00,400 Speaker 4: them have just talked. 47 00:03:00,720 --> 00:03:03,720 Speaker 3: There are a lot of questions about whether Blanche would 48 00:03:03,760 --> 00:03:07,840 Speaker 3: be independent from President Trump, and in response to a 49 00:03:07,919 --> 00:03:12,480 Speaker 3: question from Democratic Senator Chris Coons, Blanche basically said that 50 00:03:12,919 --> 00:03:17,160 Speaker 3: the Justice Department is part of the executive branch. If confirmed, 51 00:03:17,200 --> 00:03:19,919 Speaker 3: he'll be part of the cabinet, and we all serve 52 00:03:20,000 --> 00:03:22,560 Speaker 3: at the pleasure of the president. I don't know that 53 00:03:22,639 --> 00:03:26,840 Speaker 3: he ever really asserted independence from the president. 54 00:03:27,200 --> 00:03:30,079 Speaker 4: Well, he really didn't, and at one point he said 55 00:03:30,520 --> 00:03:34,359 Speaker 4: that we will act with integrity. At another point he 56 00:03:34,440 --> 00:03:38,600 Speaker 4: made the predictable statement that, of course, if he was 57 00:03:38,640 --> 00:03:41,600 Speaker 4: asked to do something illegal, he would resign, but that 58 00:03:41,640 --> 00:03:46,000 Speaker 4: would never happen with this president. But he is part 59 00:03:46,080 --> 00:03:51,760 Speaker 4: of a Justice Department that is asserting a historically broad 60 00:03:51,920 --> 00:03:57,000 Speaker 4: reading of presidential powers, which includes no independence for anybody 61 00:03:57,320 --> 00:04:01,880 Speaker 4: in the executive branch, himself included, so he can't claim 62 00:04:02,000 --> 00:04:06,000 Speaker 4: to be independent without having that used against his own 63 00:04:06,080 --> 00:04:09,640 Speaker 4: lawyers when they're asserting their unified executive theory. 64 00:04:09,960 --> 00:04:13,320 Speaker 3: So everyone knew that a big point was going to 65 00:04:13,400 --> 00:04:17,599 Speaker 3: be the so called Anti Weaponization Fund. He said several 66 00:04:17,640 --> 00:04:21,839 Speaker 3: times the fund is dead, but Republican Senator John Cornyn, 67 00:04:22,080 --> 00:04:25,479 Speaker 3: who's a key vote, pinned him down, and Blanche admitted 68 00:04:25,520 --> 00:04:28,480 Speaker 3: that the settlement agreement is a contract and it could 69 00:04:28,560 --> 00:04:30,279 Speaker 3: conceivably be resurrected. 70 00:04:30,800 --> 00:04:33,920 Speaker 4: That leads me to believe that the President is not 71 00:04:34,080 --> 00:04:39,440 Speaker 4: comfortable with the Weaponization Fund being dead, because mister Blanche 72 00:04:39,480 --> 00:04:42,000 Speaker 4: could have gotten himself out of a lot of trouble 73 00:04:42,240 --> 00:04:47,040 Speaker 4: by agreeing to provide a letter declaring that and he 74 00:04:47,080 --> 00:04:51,120 Speaker 4: wouldn't do it. And when he was pressed on whether 75 00:04:52,040 --> 00:04:57,120 Speaker 4: they could sue for breach of contract, he more or 76 00:04:57,240 --> 00:05:01,920 Speaker 4: less acknowledged that they could and didn't really have much 77 00:05:01,920 --> 00:05:05,520 Speaker 4: of an answer to that. So I think President Trump 78 00:05:05,600 --> 00:05:09,279 Speaker 4: has made a firm decision that he wants to help 79 00:05:09,400 --> 00:05:13,599 Speaker 4: the January sixth rioters, and mister Blanche is trying to 80 00:05:13,680 --> 00:05:17,480 Speaker 4: avoid saying anything that will burn Bridges that he knows 81 00:05:17,480 --> 00:05:19,440 Speaker 4: he's going to have to cross. 82 00:05:19,480 --> 00:05:23,760 Speaker 3: And on Monday, in a scathing opinion, a Florida federal 83 00:05:23,920 --> 00:05:28,280 Speaker 3: judge said Blanche's involvement in settling Trump's lawsuit with the 84 00:05:28,320 --> 00:05:32,640 Speaker 3: IRS raised conflict of interest concerns because he was Trump's 85 00:05:32,680 --> 00:05:35,680 Speaker 3: former defense lawyer, and she ordered a copy of her 86 00:05:35,760 --> 00:05:38,920 Speaker 3: decision to be sent to the state bar in New York, 87 00:05:39,000 --> 00:05:44,240 Speaker 3: where there are several other complaints alleging serious ethical breaches 88 00:05:44,400 --> 00:05:48,159 Speaker 3: by Blanche, won by hundreds of former federal judges. When 89 00:05:48,160 --> 00:05:51,599 Speaker 3: he was confronted with that, Blanche said, well, that's not 90 00:05:51,680 --> 00:05:54,960 Speaker 3: a referral. But it is in essence a referral, isn't it. 91 00:05:55,320 --> 00:05:58,200 Speaker 4: That's a referral. I'm quite convinced that New York State 92 00:05:58,279 --> 00:06:01,159 Speaker 4: Bar can spring for a on line search and get 93 00:06:01,160 --> 00:06:03,799 Speaker 4: a copy of the opinion on their own. The fact 94 00:06:03,880 --> 00:06:06,159 Speaker 4: that she is sending it to them suggests that she 95 00:06:06,480 --> 00:06:10,760 Speaker 4: independently believes there's material in there that they ought to see, 96 00:06:10,800 --> 00:06:14,320 Speaker 4: and given how scathing it is, that's obviously correct. The 97 00:06:14,360 --> 00:06:18,640 Speaker 4: Attorney General is the highest law enforcement official in the country, 98 00:06:19,080 --> 00:06:22,720 Speaker 4: has many responsibilities to the American people, and certainly one 99 00:06:22,720 --> 00:06:26,679 Speaker 4: of them is to set a standard for ethical behavior. Now, 100 00:06:26,760 --> 00:06:30,000 Speaker 4: anyone can file a complaint, and the mere fact that 101 00:06:30,040 --> 00:06:33,640 Speaker 4: a complaint has been filed should not be pivotal. But 102 00:06:34,040 --> 00:06:38,880 Speaker 4: the fact that some fairly serious people whose reputations matter 103 00:06:39,440 --> 00:06:42,560 Speaker 4: filed complaints should give us cause, and I would think 104 00:06:42,560 --> 00:06:44,600 Speaker 4: the committee should get to the bottom of them. If 105 00:06:44,640 --> 00:06:47,839 Speaker 4: mister Blanche has not done anything on ethical complaint, shouldn't 106 00:06:47,839 --> 00:06:51,919 Speaker 4: stand in his way. But there's certainly are reasons to 107 00:06:52,040 --> 00:06:53,880 Speaker 4: question some things that have happened. 108 00:06:54,200 --> 00:06:58,000 Speaker 3: There wasn't much questioning about something I think is critical, 109 00:06:58,520 --> 00:07:03,240 Speaker 3: and that's the Justice to Department losing credibility with federal judges. 110 00:07:03,600 --> 00:07:06,920 Speaker 3: But Democratic Senator Sheldon Whitehouse did ask about that. 111 00:07:07,760 --> 00:07:12,920 Speaker 6: Between judges appointed by every president harshly criticizing the department's 112 00:07:12,960 --> 00:07:17,520 Speaker 6: work in your tenure, grand juries, rejecting indictments, judicial findings 113 00:07:17,520 --> 00:07:23,920 Speaker 6: of outright misconduct, capable lawyers fleeing the stinking ship. This 114 00:07:24,000 --> 00:07:27,680 Speaker 6: seems to be the most troubled Department of Justice skin history. 115 00:07:28,040 --> 00:07:32,960 Speaker 3: David, We've talked before about how federal judges are repeatedly 116 00:07:33,160 --> 00:07:37,920 Speaker 3: finding fault with the Justice Department and its attorneys. Blanche 117 00:07:37,960 --> 00:07:39,880 Speaker 3: denied that, but that is true. 118 00:07:40,600 --> 00:07:45,040 Speaker 4: I think it's unfortunate that this part of the hearing 119 00:07:45,200 --> 00:07:49,080 Speaker 4: is played so theatrically. I would have loved to see 120 00:07:49,240 --> 00:07:53,880 Speaker 4: a senator take a list of orders, read from this order, 121 00:07:54,400 --> 00:07:58,040 Speaker 4: ask mister Blanche, why did your Justice Department do that? 122 00:07:58,200 --> 00:08:00,640 Speaker 4: Then read from the next order, why did your Justice 123 00:08:00,680 --> 00:08:05,920 Speaker 4: Department do that? And show by repeated questions just how 124 00:08:06,000 --> 00:08:10,600 Speaker 4: prevalent this is, which is enormous and utterly unprecedented. As 125 00:08:10,680 --> 00:08:13,840 Speaker 4: someone who is livingated against the Justice Department, their lawyers 126 00:08:13,840 --> 00:08:17,080 Speaker 4: are a total pain in the act. But they don't why. 127 00:08:17,320 --> 00:08:20,440 Speaker 4: They say nasty things, but they don't why, except now 128 00:08:20,560 --> 00:08:20,920 Speaker 4: they do. 129 00:08:21,600 --> 00:08:25,760 Speaker 3: Blanche was questioned by several senators about the bungled release 130 00:08:26,000 --> 00:08:30,640 Speaker 3: of the Epstein files. He defended the release, but acknowledged 131 00:08:30,680 --> 00:08:34,920 Speaker 3: that mistakes had been made, and he apologized to the victims. 132 00:08:35,360 --> 00:08:38,760 Speaker 3: But Democratic Senator Corey Booker pressed him on the fact 133 00:08:38,800 --> 00:08:43,640 Speaker 3: that Galaine Maxwell was transferred to a low security prison 134 00:08:43,720 --> 00:08:48,360 Speaker 3: camp just days after Blanche interviewed her, and Booker shot 135 00:08:48,480 --> 00:08:51,960 Speaker 3: down Blanche's answer that it was because she was getting threats. 136 00:08:52,480 --> 00:08:56,160 Speaker 7: When people are under threats in a bure prison facility, 137 00:08:56,720 --> 00:09:00,800 Speaker 7: they're put into solitary confinement or protectives, not moved to 138 00:09:00,880 --> 00:09:04,080 Speaker 7: a camp that's not always true. What is what is 139 00:09:04,120 --> 00:09:07,280 Speaker 7: true is someone that is accused of child sex trafficking 140 00:09:08,120 --> 00:09:12,240 Speaker 7: under the Bureau of Prison's own policies is not put 141 00:09:12,320 --> 00:09:17,080 Speaker 7: in a facility like this that seems clearly like a reward. 142 00:09:17,200 --> 00:09:21,120 Speaker 4: Cener Booker did get him to state explicitly that he 143 00:09:21,160 --> 00:09:25,079 Speaker 4: had no involvement in the transfer. I don't particularly believe that. 144 00:09:25,640 --> 00:09:29,199 Speaker 4: You don't sound like you particularly believe that. But there 145 00:09:29,200 --> 00:09:32,120 Speaker 4: are lower level people who know the answer to that. 146 00:09:32,360 --> 00:09:35,240 Speaker 4: And if he lied about that, then he has just 147 00:09:35,400 --> 00:09:39,120 Speaker 4: opened himself up to a perjury prosecution, and the statute 148 00:09:39,160 --> 00:09:43,000 Speaker 4: of limitations on that will extend into the next presidential turn. 149 00:09:43,400 --> 00:09:46,960 Speaker 3: At least Blanche succeeded in keeping the temperature down with 150 00:09:47,080 --> 00:09:48,920 Speaker 3: his sort of measured answers. 151 00:09:49,600 --> 00:09:55,640 Speaker 4: I was struck with how he kept trying to wriggle 152 00:09:55,720 --> 00:09:58,599 Speaker 4: out of questions when it would seem that there was 153 00:09:58,640 --> 00:10:01,480 Speaker 4: a fairly simple way to aim answer them. Would he 154 00:10:01,520 --> 00:10:06,240 Speaker 4: agree to meet the Epstein victims? Evasion? Evasion? Evasion? Did 155 00:10:06,320 --> 00:10:10,360 Speaker 4: ethics approve his dinner with the people whose anti trust 156 00:10:10,440 --> 00:10:16,280 Speaker 4: investigation he was about to terminate? Evasion? Evasion? Evasion? If 157 00:10:16,320 --> 00:10:19,200 Speaker 4: he had nothing to hide, why not just say yes 158 00:10:19,720 --> 00:10:24,280 Speaker 4: to some of these questions, and maybe that comes down 159 00:10:24,360 --> 00:10:29,200 Speaker 4: to combativeness, but I assume it's because there's more to 160 00:10:29,240 --> 00:10:30,480 Speaker 4: be said to the story. 161 00:10:30,920 --> 00:10:34,800 Speaker 3: I question if these hearings really matter lately, they seem 162 00:10:34,880 --> 00:10:37,760 Speaker 3: to be just performative. It seems to be coming down 163 00:10:37,840 --> 00:10:41,560 Speaker 3: to one Republican Senator, John Cornyn, who said he's not 164 00:10:42,080 --> 00:10:47,120 Speaker 3: decided yet, but with these judiciary hearings, the Republican senators 165 00:10:47,480 --> 00:10:50,360 Speaker 3: all seem to fall in line and vote the party 166 00:10:50,400 --> 00:10:52,600 Speaker 3: line in the end. Do you think that's what will 167 00:10:52,600 --> 00:10:53,240 Speaker 3: happen here? 168 00:10:53,600 --> 00:10:57,960 Speaker 4: I think so, and I find that very distressing. There's 169 00:10:58,000 --> 00:11:00,960 Speaker 4: no question that President Trump will get an attorney general 170 00:11:01,000 --> 00:11:03,400 Speaker 4: to his liking and an attorney general who will do 171 00:11:03,480 --> 00:11:06,320 Speaker 4: what he says on a great many things. But to 172 00:11:06,520 --> 00:11:10,960 Speaker 4: confirm someone as attorney General who has already been personally 173 00:11:11,000 --> 00:11:17,640 Speaker 4: involved in so much misconduct seems very unfortunate. And I 174 00:11:17,720 --> 00:11:21,440 Speaker 4: wish more senators would say you get your person, but 175 00:11:21,520 --> 00:11:22,280 Speaker 4: not this one. 176 00:11:22,360 --> 00:11:24,840 Speaker 3: We'll find out what they say in a few weeks. 177 00:11:25,360 --> 00:11:29,640 Speaker 3: Thanks so much, David. That's Professor David super of Georgetown Law. 178 00:11:30,040 --> 00:11:33,679 Speaker 3: Coming up next on The Bloomberg Law Show, Twelve Democratic 179 00:11:33,800 --> 00:11:37,839 Speaker 3: led states make a last ditch effort to stop Paramounts 180 00:11:37,960 --> 00:11:42,120 Speaker 3: one hundred eleven billion dollar takeover of Warner Brothers. They 181 00:11:42,160 --> 00:11:46,079 Speaker 3: say it violates antitrust law, and they filed suit. I'm 182 00:11:46,160 --> 00:11:49,320 Speaker 3: June Grosso, and you're listening to Bloomberg. 183 00:11:49,200 --> 00:11:54,600 Speaker 8: Movie theaters, basic cable TV distributors, and audiences on every 184 00:11:54,640 --> 00:11:58,640 Speaker 8: sofa and in every movie scene would feel the impact 185 00:11:58,800 --> 00:11:59,640 Speaker 8: of this un. 186 00:11:59,640 --> 00:12:04,120 Speaker 3: Lawful California is leading a lawsuit by a dozen states 187 00:12:04,160 --> 00:12:07,320 Speaker 3: to block the largest merger in the history of Hollywood. 188 00:12:07,640 --> 00:12:11,480 Speaker 3: The states allege that Paramounts one hundred and ten billion 189 00:12:11,559 --> 00:12:16,599 Speaker 3: dollar takeover of Warner Brothers Discovery would result in less competition, 190 00:12:17,080 --> 00:12:21,319 Speaker 3: higher prices for consumers, and fewer choices on the big 191 00:12:21,360 --> 00:12:26,320 Speaker 3: and small screens. The Justice Department cleared the transaction without 192 00:12:26,360 --> 00:12:31,080 Speaker 3: any conditions last month, and California Attorney General Rob Bonta 193 00:12:31,280 --> 00:12:35,000 Speaker 3: says the states are suing because the federal government is 194 00:12:35,040 --> 00:12:37,560 Speaker 3: not enforcing the anti trust laws. 195 00:12:37,679 --> 00:12:42,040 Speaker 9: DJ The federal government has advocated its responsibility to engage 196 00:12:42,080 --> 00:12:44,559 Speaker 9: in firm and fair anti trust enforcement. 197 00:12:44,600 --> 00:12:46,160 Speaker 1: That's been our traditional role they've played. 198 00:12:46,200 --> 00:12:48,240 Speaker 9: They're not playing it now. Not only are they not 199 00:12:48,280 --> 00:12:51,000 Speaker 9: playing it, but they're actually affirmatively making things worse by 200 00:12:51,360 --> 00:12:53,520 Speaker 9: trying to usher through deals that are unlawful. 201 00:12:53,760 --> 00:12:58,160 Speaker 3: Paramount vowed to vigorously defend the transaction. My guest is 202 00:12:58,200 --> 00:13:02,000 Speaker 3: an expert in anti trust law, Professor Harry First of 203 00:13:02,280 --> 00:13:06,360 Speaker 3: NYU Law School. Harry the States claimed that this deal 204 00:13:06,440 --> 00:13:08,920 Speaker 3: would create a media behemoth. 205 00:13:09,520 --> 00:13:14,120 Speaker 10: So, yes, there are five big companies, but monopolistic and 206 00:13:14,280 --> 00:13:17,440 Speaker 10: five don't go together, maybe, you know, in talking about 207 00:13:17,640 --> 00:13:20,680 Speaker 10: power in sort of a colloquial way, by from a 208 00:13:20,800 --> 00:13:23,920 Speaker 10: legal point of view, we're not talking about monopoly, but 209 00:13:24,000 --> 00:13:28,240 Speaker 10: we are talking about significant power and or any trust. 210 00:13:28,280 --> 00:13:32,480 Speaker 10: Its market power or Hollywood, it's money for many people, 211 00:13:32,520 --> 00:13:36,640 Speaker 10: it's cultural power, and apparently for the president it's CNN. 212 00:13:36,920 --> 00:13:38,520 Speaker 10: I mean, I don't know, but that seems to be. 213 00:13:38,760 --> 00:13:41,920 Speaker 10: So it's lots of things colliding, you know, which makes 214 00:13:42,040 --> 00:13:47,200 Speaker 10: the merger really interesting, you know, along many dimensions. So 215 00:13:47,640 --> 00:13:51,880 Speaker 10: what makes it also interesting and horrible in a way 216 00:13:52,160 --> 00:13:55,480 Speaker 10: is that the story plays out in a way that 217 00:13:55,720 --> 00:13:59,600 Speaker 10: we're too familiar with today in the Trump administration. But 218 00:14:00,040 --> 00:14:04,360 Speaker 10: really we've never seen before in this direct overt way, 219 00:14:04,440 --> 00:14:08,079 Speaker 10: which is there's the law and there we don't care 220 00:14:08,120 --> 00:14:12,520 Speaker 10: about the law. It's what the president wants today, and 221 00:14:12,880 --> 00:14:16,160 Speaker 10: this case has played along those two tracks, and the 222 00:14:16,200 --> 00:14:20,280 Speaker 10: spoiler in this is also partly political, but has to 223 00:14:20,320 --> 00:14:23,160 Speaker 10: play on the legal track, can't play on the political track, 224 00:14:23,200 --> 00:14:25,000 Speaker 10: and that's the States. 225 00:14:24,680 --> 00:14:26,600 Speaker 3: As you refer to there. The merger has been the 226 00:14:26,680 --> 00:14:31,600 Speaker 3: subject of intense lobbying in DC by Paramount, So tell 227 00:14:31,680 --> 00:14:33,840 Speaker 3: us about the political track of the deal. 228 00:14:34,360 --> 00:14:40,400 Speaker 10: The background. The political background starts unusually before Paramount's bid 229 00:14:40,440 --> 00:14:44,680 Speaker 10: for Warner is accepted or really made legally. And if 230 00:14:44,720 --> 00:14:47,800 Speaker 10: you read what the Justice Department did at the very end, 231 00:14:48,280 --> 00:14:52,560 Speaker 10: they said in June that we've been investigating this for 232 00:14:52,800 --> 00:14:56,880 Speaker 10: eight months. That's pretty interesting since the merger was just 233 00:14:57,080 --> 00:14:59,920 Speaker 10: noticed to them in February. I know. My math is 234 00:15:00,000 --> 00:15:02,440 Speaker 10: it's bad, but it's not that bad. That means they 235 00:15:02,480 --> 00:15:08,080 Speaker 10: started investigating this case before the merger was officially notified. Now, 236 00:15:08,520 --> 00:15:11,760 Speaker 10: normal practice is you can't get the Justice Department to 237 00:15:11,840 --> 00:15:14,880 Speaker 10: tell you what they're going to do until you do something. 238 00:15:15,160 --> 00:15:16,840 Speaker 10: You can't call them up and say, excuse me, will 239 00:15:16,880 --> 00:15:19,800 Speaker 10: you give me an advisory opinion, and some jurisdictions you can. 240 00:15:20,240 --> 00:15:23,640 Speaker 10: In the United States you can't. But apparently these people 241 00:15:24,080 --> 00:15:27,400 Speaker 10: could because this was going on at a time when 242 00:15:27,400 --> 00:15:31,080 Speaker 10: the President was just putting a big thumb, I don't 243 00:15:31,120 --> 00:15:35,600 Speaker 10: know hand arm on the scales for paramount. Okay. So 244 00:15:36,120 --> 00:15:39,760 Speaker 10: in February, this deal gets cleared without what's called a 245 00:15:39,880 --> 00:15:44,200 Speaker 10: second request. So in important mergers, the government says, excuse me, 246 00:15:44,200 --> 00:15:47,560 Speaker 10: you can't close the deal until we look more deeply 247 00:15:47,680 --> 00:15:50,360 Speaker 10: at all the documents. So you have to hold off 248 00:15:50,640 --> 00:15:54,360 Speaker 10: until you've produced all the documents to our satisfaction. That's 249 00:15:54,400 --> 00:15:56,600 Speaker 10: the norm, and a big deal like this. Not for 250 00:15:56,680 --> 00:15:58,840 Speaker 10: this deal. In February, they say, we're not even going 251 00:15:58,880 --> 00:15:59,880 Speaker 10: to do a second request. 252 00:16:00,320 --> 00:16:02,720 Speaker 3: That's the political track. What about the legal track to 253 00:16:02,760 --> 00:16:03,120 Speaker 3: the deal? 254 00:16:03,520 --> 00:16:07,920 Speaker 10: They go through some sort of investigation and they close 255 00:16:08,000 --> 00:16:12,480 Speaker 10: the investigation, which they've already sort of closed by not 256 00:16:12,600 --> 00:16:16,160 Speaker 10: issuing a second request. They close this just in June. 257 00:16:16,760 --> 00:16:20,880 Speaker 10: And a couple things interesting about that. Normally the Justice 258 00:16:20,920 --> 00:16:26,080 Speaker 10: Department does not issue closing statements to explain what they're doing. 259 00:16:26,360 --> 00:16:29,800 Speaker 10: It's very rare, and one of the problems with filing 260 00:16:29,840 --> 00:16:32,520 Speaker 10: closing statements is that the people who write them have 261 00:16:32,800 --> 00:16:35,760 Speaker 10: certain goals want to justify what they've done, but another 262 00:16:35,840 --> 00:16:39,440 Speaker 10: goal may be to short circuit other plaintiffs. So if 263 00:16:39,480 --> 00:16:42,400 Speaker 10: you can write this and say, you know, my god, 264 00:16:42,480 --> 00:16:46,680 Speaker 10: this case was buff you know nothing there, baby, and 265 00:16:46,920 --> 00:16:49,400 Speaker 10: you think the states are going to file You know 266 00:16:49,520 --> 00:16:52,280 Speaker 10: that a federal is going to read that and maybe 267 00:16:52,360 --> 00:16:54,000 Speaker 10: it will affect what they do. 268 00:16:54,360 --> 00:16:57,479 Speaker 3: Can you give us the highlights of the Justice Department's 269 00:16:57,560 --> 00:16:58,560 Speaker 3: closing statement. 270 00:16:59,240 --> 00:17:02,920 Speaker 10: There are certain things that are not there, and certain 271 00:17:03,000 --> 00:17:07,200 Speaker 10: things presented in an interesting way. So they start out 272 00:17:07,200 --> 00:17:11,160 Speaker 10: with streaming, as you know, nothing to see here. Well, 273 00:17:11,240 --> 00:17:13,600 Speaker 10: in some ways that actually is the weaker part or 274 00:17:13,680 --> 00:17:16,400 Speaker 10: the less suspicious part of the case. There are three 275 00:17:16,480 --> 00:17:20,800 Speaker 10: major streaming services and a fourth if you put in Disney, 276 00:17:21,400 --> 00:17:26,840 Speaker 10: HBO Max and Paramount Plus. You know, these are distant competitors, 277 00:17:27,280 --> 00:17:29,880 Speaker 10: so you can make a credible claim that it's still 278 00:17:29,920 --> 00:17:33,480 Speaker 10: a very competitive market and not want to sue about. 279 00:17:33,960 --> 00:17:37,159 Speaker 10: So that's where they start, and then they go to 280 00:17:37,440 --> 00:17:40,239 Speaker 10: what they call linear TV, which I think is an 281 00:17:40,320 --> 00:17:44,160 Speaker 10: interesting description. You know, I'm not sure exactly what they 282 00:17:44,240 --> 00:17:49,240 Speaker 10: mean by that, except they've combined two words that indicate junk. 283 00:17:49,760 --> 00:17:53,480 Speaker 10: So it's supposed to be cable. Hard to say exactly, 284 00:17:53,480 --> 00:17:57,240 Speaker 10: They're not really clear, but they say, you know, no 285 00:17:57,440 --> 00:18:01,960 Speaker 10: problem here because this kind of TV faces so much 286 00:18:02,000 --> 00:18:07,080 Speaker 10: competition from pay services, from streaming from live from sports, 287 00:18:07,520 --> 00:18:11,560 Speaker 10: from blah blah from who knows, not a problem here. 288 00:18:12,240 --> 00:18:14,840 Speaker 10: And then of course they say, for last the thing 289 00:18:14,880 --> 00:18:18,880 Speaker 10: that you might start with first, which is studio film production, 290 00:18:19,200 --> 00:18:23,080 Speaker 10: because this is where the parties are direct competitors Paramount 291 00:18:23,119 --> 00:18:26,720 Speaker 10: and Warner. You know they make blockbusters, but you know, 292 00:18:26,880 --> 00:18:30,320 Speaker 10: nothing to see here because after all lots of competitors. 293 00:18:30,400 --> 00:18:35,920 Speaker 10: Netflix makes theatrical releases. Yeah, I guess Amazon and Disney, 294 00:18:35,960 --> 00:18:39,920 Speaker 10: and there's lots of other stuff, and so don't worry 295 00:18:39,920 --> 00:18:44,240 Speaker 10: about that, and don't worry about impact on workers in 296 00:18:44,280 --> 00:18:48,280 Speaker 10: Hollywood because all the incentives are to make more films 297 00:18:48,440 --> 00:18:53,200 Speaker 10: and distribute them theatrically. Nothing about viewpoint diversity, which a 298 00:18:53,240 --> 00:18:55,280 Speaker 10: lot of people are worried about, but it's hard to 299 00:18:55,320 --> 00:18:58,280 Speaker 10: make out as any trust matter. You know, CNN and 300 00:18:58,480 --> 00:19:02,760 Speaker 10: CBS under the same. Enough concern about CBS now, but 301 00:19:02,920 --> 00:19:05,920 Speaker 10: now they're going to control CNN. No mention of that 302 00:19:06,640 --> 00:19:09,920 Speaker 10: doesn't give us any market shares. So that's the first 303 00:19:09,960 --> 00:19:13,720 Speaker 10: thing you look for. But doesn't mention that, And to 304 00:19:13,800 --> 00:19:16,760 Speaker 10: cap it off nicely, the Wall Street Journal follows with 305 00:19:16,800 --> 00:19:21,439 Speaker 10: this story that says shock and amazement. The staffers working 306 00:19:21,480 --> 00:19:25,760 Speaker 10: on this were surprised when the closing statement was issued, 307 00:19:25,960 --> 00:19:28,840 Speaker 10: which they had no role in drafting. Sound familiar. 308 00:19:29,200 --> 00:19:32,760 Speaker 3: Yes, it happened when the Justice Department in DC settled 309 00:19:32,760 --> 00:19:37,160 Speaker 3: the Live Nation Ticketmaster suit without telling the career attorneys 310 00:19:37,200 --> 00:19:40,840 Speaker 3: who were prepping for trial, Harry, Did the States draft 311 00:19:40,920 --> 00:19:45,760 Speaker 3: their complaint around or in response to what the Justice 312 00:19:45,840 --> 00:19:50,320 Speaker 3: Department had stated in its summary of why it was 313 00:19:50,400 --> 00:19:52,760 Speaker 3: declining to prosecute the case. 314 00:19:53,359 --> 00:19:56,120 Speaker 10: You know, if you were being skeptical of this complaint, 315 00:19:56,160 --> 00:19:58,719 Speaker 10: you'd say, this is the complaint to save all the 316 00:19:59,040 --> 00:20:02,680 Speaker 10: parts of Hollywood. Everyone says it's dead, the movie theaters, 317 00:20:03,000 --> 00:20:07,200 Speaker 10: the big motion picture batrical producers, and the cable companies. 318 00:20:07,480 --> 00:20:11,879 Speaker 10: And it's basic cable. It's not fancy cable that we 319 00:20:12,000 --> 00:20:16,680 Speaker 10: pay for with bazillions of dollars. It's basic cable that 320 00:20:17,040 --> 00:20:20,960 Speaker 10: gets you the basic channels, not the premium channels. It 321 00:20:21,000 --> 00:20:24,560 Speaker 10: gets you the over the air broadcasting. So that's the 322 00:20:24,600 --> 00:20:28,560 Speaker 10: focus of this complaint. It's not on streaming. This is, 323 00:20:29,160 --> 00:20:36,240 Speaker 10: to my first reading, a non ideological, carefully drafted complaint 324 00:20:37,000 --> 00:20:42,879 Speaker 10: designed to stop this merger and not get embroiled in 325 00:20:43,080 --> 00:20:46,440 Speaker 10: any fancy theories. There's no labor market theory in this. 326 00:20:46,920 --> 00:20:51,000 Speaker 10: They start with the place where justice stops, which is 327 00:20:51,320 --> 00:20:55,960 Speaker 10: wide release theatrical films, you know, where the competition is direct. 328 00:20:56,440 --> 00:21:00,879 Speaker 10: And then they go to the super sellers, the anticipated 329 00:21:00,920 --> 00:21:05,000 Speaker 10: top grossing theatrical films, which is something the Justice Department 330 00:21:05,080 --> 00:21:08,080 Speaker 10: did in the bookseller's merger, you know, the New York 331 00:21:08,119 --> 00:21:12,040 Speaker 10: Times Bestsellers was the market there, the Bertlesman case, so 332 00:21:12,160 --> 00:21:15,840 Speaker 10: their echoes there. This is carefully done. And then licensing 333 00:21:15,840 --> 00:21:19,439 Speaker 10: a basic cable channels, and it points out how the 334 00:21:19,480 --> 00:21:23,720 Speaker 10: two companies are bringing together turner stuff, all sorts of stuff, 335 00:21:23,760 --> 00:21:27,360 Speaker 10: and the cable companies need the package, you know, they 336 00:21:27,400 --> 00:21:30,879 Speaker 10: need the bundle of stuff. And maybe the fancy people 337 00:21:31,280 --> 00:21:33,680 Speaker 10: have cut the cord, but there's still a lot of 338 00:21:33,720 --> 00:21:37,639 Speaker 10: people who are looking at their cable and it's aimed 339 00:21:37,680 --> 00:21:39,560 Speaker 10: at that. And I think it's very clever. 340 00:21:39,960 --> 00:21:43,000 Speaker 3: Do the States talk numbers which the Feds didn't. 341 00:21:43,520 --> 00:21:47,920 Speaker 10: We now have concentration figures perf and doll Hirshman index, 342 00:21:48,320 --> 00:21:51,400 Speaker 10: the fancy way of saying that these are concentrated markets. 343 00:21:51,440 --> 00:21:55,280 Speaker 10: And the complaint references the merger guidelines, the federal merger 344 00:21:55,280 --> 00:21:58,200 Speaker 10: guidelines like these are way over the top. Nice job, 345 00:21:58,600 --> 00:22:02,800 Speaker 10: and they're looking direct a horizontal competition and price raising 346 00:22:02,920 --> 00:22:05,679 Speaker 10: sort of one final thing that I noticed. It's co 347 00:22:05,840 --> 00:22:09,400 Speaker 10: signed in council by a private law firm that's been 348 00:22:09,560 --> 00:22:15,760 Speaker 10: hired by California and signed by a very highly respected 349 00:22:15,840 --> 00:22:19,679 Speaker 10: anti trust litigator, Rich Parker. This is a well done, 350 00:22:19,800 --> 00:22:23,880 Speaker 10: careful complaint from my reading, well done. So this deal 351 00:22:24,040 --> 00:22:26,840 Speaker 10: is not over yet, and it's not, you know, a 352 00:22:26,880 --> 00:22:28,040 Speaker 10: throwaway complaint. 353 00:22:28,240 --> 00:22:32,919 Speaker 3: In response to the lawsuit, Paramount said, numerous antitrust authorities 354 00:22:33,000 --> 00:22:37,200 Speaker 3: around the world have concluded the transaction creates a stronger 355 00:22:37,280 --> 00:22:42,760 Speaker 3: competitor against dominant streaming and technology platforms that have harmed 356 00:22:42,800 --> 00:22:47,080 Speaker 3: the market for theatrical exhibition and jobs in the entertainment industry. 357 00:22:47,400 --> 00:22:50,440 Speaker 10: So that's a clever political statement. It's a bad legal statement. 358 00:22:50,480 --> 00:22:52,560 Speaker 10: I mean, it's not an effective legal statement, but that's 359 00:22:52,560 --> 00:22:54,960 Speaker 10: not supposed to be. I guess to say that you know, 360 00:22:55,000 --> 00:22:58,520 Speaker 10: the merger will help streaming is sort of irrelevant under 361 00:22:58,600 --> 00:23:02,040 Speaker 10: basic anti trust law, which has not been challenged. That 362 00:23:02,119 --> 00:23:05,160 Speaker 10: you can't justify a merger that hurts competition in one 363 00:23:05,200 --> 00:23:08,040 Speaker 10: market by saying, oh, but look over here, Gosh, we've 364 00:23:08,040 --> 00:23:11,320 Speaker 10: got some help over in a different market. So that's 365 00:23:11,400 --> 00:23:13,800 Speaker 10: not going to work. Now, if you're going to somehow 366 00:23:13,840 --> 00:23:18,400 Speaker 10: say this will help competition in the market for theatrical 367 00:23:18,560 --> 00:23:22,320 Speaker 10: movie releases. Well, you know that's going to be a 368 00:23:22,440 --> 00:23:25,760 Speaker 10: bit of a hard sell, I think, you know, going 369 00:23:25,800 --> 00:23:29,200 Speaker 10: around in this Although the closing statement doesn't mention, there's 370 00:23:29,240 --> 00:23:32,840 Speaker 10: a lot of talk about their promise of thirty new 371 00:23:33,200 --> 00:23:36,439 Speaker 10: films after this merger, and you know a lot of 372 00:23:36,480 --> 00:23:39,800 Speaker 10: commentaries saying, you know, what are you smoking. You know, 373 00:23:39,920 --> 00:23:42,720 Speaker 10: those sort of promises tend to be discounted as a 374 00:23:42,800 --> 00:23:45,640 Speaker 10: general matter, but people pointing out that releases have been 375 00:23:45,680 --> 00:23:49,639 Speaker 10: contracted a number of years ahead with exhibitors, So you know, 376 00:23:49,680 --> 00:23:51,040 Speaker 10: the idea that all of a sudden you're going to 377 00:23:51,080 --> 00:23:54,600 Speaker 10: increase output by thirty more is going to be up 378 00:23:54,640 --> 00:23:57,320 Speaker 10: to them to prove. That's going to be their burden, 379 00:23:57,600 --> 00:23:59,840 Speaker 10: you know, the justification. It's on them. 380 00:24:00,119 --> 00:24:03,600 Speaker 3: The States made a motion to pause the takeover, and 381 00:24:03,640 --> 00:24:06,680 Speaker 3: a federal judge said she'll rule on their request by 382 00:24:06,760 --> 00:24:10,640 Speaker 3: next Wednesday, so we shall see what happens. Thanks so much, 383 00:24:10,640 --> 00:24:14,560 Speaker 3: Harriet's always a pleasure. That's Professor Harry First of NYU 384 00:24:14,640 --> 00:24:17,840 Speaker 3: Law School. Coming up next on The Bloomberg Law Show. 385 00:24:18,119 --> 00:24:22,000 Speaker 3: Supreme Court justices are asking Congress for more money for 386 00:24:22,119 --> 00:24:27,320 Speaker 3: next year's budget because they're getting increasing threats. I'm June Grosso, 387 00:24:27,520 --> 00:24:29,399 Speaker 3: and this is bloomberg. 388 00:24:31,640 --> 00:24:34,560 Speaker 5: For some of us. Those threats have come very close, 389 00:24:35,000 --> 00:24:37,200 Speaker 5: and all of us live with the knowledge that they 390 00:24:37,280 --> 00:24:38,960 Speaker 5: may again materialize. 391 00:24:39,359 --> 00:24:42,760 Speaker 3: Justice is Elena Kagan and Amy Cony Barrett made a 392 00:24:42,880 --> 00:24:46,840 Speaker 3: rare appearance before Congress this week as the Supreme Court 393 00:24:46,960 --> 00:24:51,440 Speaker 3: seeks millions of dollars to befump security because of increasing 394 00:24:51,560 --> 00:24:55,399 Speaker 3: threats against the justices. Justice Barrett said the threats have 395 00:24:55,520 --> 00:24:59,160 Speaker 3: forced her children to think about and see things that 396 00:24:59,280 --> 00:25:03,160 Speaker 3: children should and have to. She described an incident after 397 00:25:03,240 --> 00:25:06,960 Speaker 3: her security detail gave her a bulletproof vest following the 398 00:25:07,040 --> 00:25:10,720 Speaker 3: leak of the Dobbs decision overturning the right to abortion. 399 00:25:11,359 --> 00:25:14,360 Speaker 11: When threats to my life were particularly intense a few 400 00:25:14,440 --> 00:25:17,119 Speaker 11: years ago, around the time of the Dobs leak, my 401 00:25:17,200 --> 00:25:19,960 Speaker 11: security detail sent me home with a bulletproof vest and 402 00:25:20,000 --> 00:25:22,400 Speaker 11: I carried it into my house, put it into my bedroom, 403 00:25:22,640 --> 00:25:24,879 Speaker 11: dropped it down on a table, turned around, and my 404 00:25:24,880 --> 00:25:27,439 Speaker 11: twelve year old son was standing in the doorway of 405 00:25:27,440 --> 00:25:29,840 Speaker 11: my bedroom and he wanted to know what it was 406 00:25:30,240 --> 00:25:32,760 Speaker 11: and why I had it. And I didn't know how 407 00:25:32,800 --> 00:25:35,800 Speaker 11: to respond because maybe I lack imagination, but I didn't 408 00:25:35,920 --> 00:25:38,879 Speaker 11: expect that performing this service was going to put me 409 00:25:38,920 --> 00:25:41,520 Speaker 11: in the position of explaining to my children what a 410 00:25:41,520 --> 00:25:43,680 Speaker 11: bulletproof vest was and why I had to wear one. 411 00:25:43,760 --> 00:25:47,280 Speaker 3: Barrett also described a swatting hoax at her home just 412 00:25:47,359 --> 00:25:50,480 Speaker 3: six weeks ago. The Supreme Court is asking for a 413 00:25:50,520 --> 00:25:54,320 Speaker 3: fourteen point six million dollar increase in their budget for 414 00:25:54,400 --> 00:25:58,560 Speaker 3: additional agents to protect the justices and six point five 415 00:25:58,640 --> 00:26:02,480 Speaker 3: million to design of visitors screening facility at the Court. 416 00:26:02,960 --> 00:26:05,840 Speaker 3: In total, the Court is asking for two hundred and 417 00:26:05,880 --> 00:26:09,480 Speaker 3: twenty eight million dollars for next year's budget. Joining me 418 00:26:09,560 --> 00:26:13,720 Speaker 3: is constitutional law expert Lewis Michael Sideman, a professor at 419 00:26:13,760 --> 00:26:18,320 Speaker 3: Georgetown Law. The Justices having come to testify to Congress 420 00:26:18,480 --> 00:26:23,320 Speaker 3: about their budget since twenty nineteen. So what's the significance 421 00:26:23,359 --> 00:26:24,280 Speaker 3: of this appearance. 422 00:26:24,920 --> 00:26:28,000 Speaker 1: Well, I think they're there now because they're worried about 423 00:26:28,040 --> 00:26:34,119 Speaker 1: their security, and that's completely legitimate. There are serious security 424 00:26:34,160 --> 00:26:36,399 Speaker 1: problems and they are to be taken care of. But 425 00:26:36,520 --> 00:26:40,760 Speaker 1: the fact is that being properly respectful of another branch 426 00:26:40,800 --> 00:26:44,000 Speaker 1: of government doesn't just mean showing up when you want 427 00:26:44,040 --> 00:26:47,560 Speaker 1: something from them. They are built into the Constitution checks 428 00:26:47,560 --> 00:26:51,200 Speaker 1: and balances. The Court can check Congress, but Congress also 429 00:26:51,280 --> 00:26:54,600 Speaker 1: has the power to check the Court. And frankly, I 430 00:26:54,600 --> 00:26:57,600 Speaker 1: think Congress ought to be doing a better job of that. 431 00:26:58,160 --> 00:27:01,720 Speaker 1: And one way of doing a better job Congress controls 432 00:27:01,960 --> 00:27:04,960 Speaker 1: the Court's budget. You know, if Congress wanted to, they 433 00:27:04,960 --> 00:27:08,080 Speaker 1: could cut off the lights and air conditioning. So I 434 00:27:08,119 --> 00:27:11,120 Speaker 1: think they have more power than they realize they do have, 435 00:27:11,240 --> 00:27:13,520 Speaker 1: and I think they ought to start using it. 436 00:27:13,840 --> 00:27:16,360 Speaker 3: I mean, has there been a Congress in our history 437 00:27:16,400 --> 00:27:20,720 Speaker 3: that's cut off or limited funding to the Supreme Court. 438 00:27:21,040 --> 00:27:25,480 Speaker 1: So at the very beginning of our history, Congress terminated 439 00:27:25,680 --> 00:27:29,000 Speaker 1: an entire term of the Court. The Court did not 440 00:27:29,240 --> 00:27:32,160 Speaker 1: meet for over a year because of what Congress did. 441 00:27:32,280 --> 00:27:36,240 Speaker 1: This was run up to a famous case called Marbury v. Madison, 442 00:27:36,320 --> 00:27:39,520 Speaker 1: where Congress canceled the term of the court because they 443 00:27:39,520 --> 00:27:42,159 Speaker 1: didn't want the Court to hear the case. That's a 444 00:27:42,200 --> 00:27:45,520 Speaker 1: long time ago. It hasn't happened recently, but that doesn't 445 00:27:45,560 --> 00:27:49,040 Speaker 1: mean it can't happen. So here's an example of something 446 00:27:49,119 --> 00:27:53,240 Speaker 1: Congress could do. Each Supreme Court justice has four law clerks. 447 00:27:53,880 --> 00:27:57,000 Speaker 1: Years ago they had only one years ago. They would 448 00:27:57,040 --> 00:28:00,000 Speaker 1: decide something like one hundred and sixty cases a year, 449 00:28:00,400 --> 00:28:04,320 Speaker 1: and now they're down to about sixty with a quadrupled staff. 450 00:28:04,560 --> 00:28:07,840 Speaker 1: There's a kind of dirty little secret. The Supreme Court 451 00:28:08,040 --> 00:28:11,680 Speaker 1: justices don't write their own opinions. Often they get these 452 00:28:11,840 --> 00:28:14,560 Speaker 1: young law students to do it for them. So I 453 00:28:14,560 --> 00:28:18,000 Speaker 1: think it would be perfectly appropriate for Congress to cut 454 00:28:18,040 --> 00:28:21,080 Speaker 1: the line item for law clerks, make them do their 455 00:28:21,080 --> 00:28:25,080 Speaker 1: own work for goodness sake. But more broadly, if Congress 456 00:28:25,160 --> 00:28:28,800 Speaker 1: is not happy with how the Supreme Court is behaving, 457 00:28:29,119 --> 00:28:33,439 Speaker 1: they have perfectly legitimate and constitutional means to fight back, 458 00:28:33,600 --> 00:28:36,359 Speaker 1: and they ought to be more seriously thinking about using 459 00:28:36,440 --> 00:28:37,119 Speaker 1: those means. 460 00:28:37,640 --> 00:28:40,360 Speaker 3: I think the problem is that Congress doesn't agree. So 461 00:28:40,400 --> 00:28:43,840 Speaker 3: you'd have the Democratic lawmakers on one side and the 462 00:28:43,840 --> 00:28:46,800 Speaker 3: Republican lawmakers on the other end. You know, I think 463 00:28:46,800 --> 00:28:49,960 Speaker 3: the Republicans are pretty happy with the Supreme Court as 464 00:28:50,000 --> 00:28:50,360 Speaker 3: it is. 465 00:28:50,920 --> 00:28:53,800 Speaker 1: Well, they're happy about some things, not about others. True, 466 00:28:53,920 --> 00:28:56,520 Speaker 1: But yeah, sure, I think you're right. But the real 467 00:28:56,600 --> 00:29:00,720 Speaker 1: problem is on the Democratic side. If they're unhappy, they 468 00:29:00,760 --> 00:29:04,760 Speaker 1: can be making noise about doing something. And there seems 469 00:29:04,800 --> 00:29:07,920 Speaker 1: to be this widespread perception, and I don't know where 470 00:29:07,960 --> 00:29:12,600 Speaker 1: it comes from that somehow it's illegitimate for dissatisfied members 471 00:29:12,600 --> 00:29:15,760 Speaker 1: of Congress to fight back. The fact is that just 472 00:29:15,800 --> 00:29:20,360 Speaker 1: in the last couple of weeks, the Supreme Court struck 473 00:29:20,440 --> 00:29:24,640 Speaker 1: down maybe the most important statute Congress has passed in 474 00:29:24,680 --> 00:29:27,520 Speaker 1: the twentieth century, that is to say, the Voting Rights Act. 475 00:29:27,560 --> 00:29:32,400 Speaker 1: They effectively struck it down. They have now destroyed the 476 00:29:32,440 --> 00:29:37,840 Speaker 1: ability of Congress to control the terms of executive branch employees. 477 00:29:38,400 --> 00:29:42,640 Speaker 1: Those are major shots across the bow at a coordinate 478 00:29:42,640 --> 00:29:46,200 Speaker 1: branch of government, and Congress has the right to respond. 479 00:29:46,480 --> 00:29:49,120 Speaker 3: I won't hold my breath for Congress to respond, at 480 00:29:49,200 --> 00:29:52,000 Speaker 3: least not this Congress. And I do think that this 481 00:29:52,200 --> 00:29:56,080 Speaker 3: Congress is going to give the justices the additional money 482 00:29:56,240 --> 00:29:59,320 Speaker 3: because they made such a compelling case of the need 483 00:29:59,400 --> 00:30:04,080 Speaker 3: for addition security to address these increasing threats and court 484 00:30:04,120 --> 00:30:07,480 Speaker 3: observers and legal scholars so they couldn't recall a more 485 00:30:07,560 --> 00:30:12,040 Speaker 3: vivid accounting from sitting justices of the security challenge as 486 00:30:12,080 --> 00:30:12,600 Speaker 3: they face. 487 00:30:13,520 --> 00:30:17,920 Speaker 1: I think the security concerns are completely justified. Things really 488 00:30:18,240 --> 00:30:21,880 Speaker 1: have changed, and they've changed for the worst. Years ago, 489 00:30:22,360 --> 00:30:25,960 Speaker 1: when I worked for a Justice Marshall, not only did 490 00:30:25,960 --> 00:30:30,200 Speaker 1: he have no security detail, his number was listed in 491 00:30:30,240 --> 00:30:33,080 Speaker 1: the phone book along with his address. Oh wow, So 492 00:30:33,240 --> 00:30:36,080 Speaker 1: things are just not like that anymore, and that's a 493 00:30:36,200 --> 00:30:37,120 Speaker 1: legitimate concern. 494 00:30:37,200 --> 00:30:37,440 Speaker 7: Now. 495 00:30:37,840 --> 00:30:40,960 Speaker 1: I do think Congress has a role to play in 496 00:30:41,000 --> 00:30:45,560 Speaker 1: deciding exactly what form the security should take. So, for example, 497 00:30:46,120 --> 00:30:49,200 Speaker 1: it's not completely obvious to me that the best thing 498 00:30:49,280 --> 00:30:52,240 Speaker 1: to do is to set up a visitor center outside 499 00:30:52,280 --> 00:30:55,400 Speaker 1: the Supreme Court. I'm not an expert on security. Maybe 500 00:30:55,440 --> 00:30:58,640 Speaker 1: that's necessary, maybe it's not. But I think Congress has 501 00:30:58,680 --> 00:31:02,040 Speaker 1: some role to slight about what the best way to 502 00:31:02,080 --> 00:31:05,520 Speaker 1: proceed is. But they certainly deserve to be safe, and 503 00:31:05,720 --> 00:31:09,240 Speaker 1: the threats of the justices are a serious matter and 504 00:31:09,560 --> 00:31:11,360 Speaker 1: ought to be handled appropriately. 505 00:31:12,040 --> 00:31:15,200 Speaker 3: There were some questions that were outside the budget, and 506 00:31:15,240 --> 00:31:18,600 Speaker 3: one was about the Code of Ethics. All nine Justices 507 00:31:18,640 --> 00:31:21,160 Speaker 3: agreed to the code in twenty twenty three because there 508 00:31:21,200 --> 00:31:25,160 Speaker 3: was all that criticism over undisclosed trips and gifts from 509 00:31:25,640 --> 00:31:30,560 Speaker 3: wealthy benefactors to some justices, but Kagan and Barrett split 510 00:31:30,760 --> 00:31:33,600 Speaker 3: on the need for a mechanism to enforce the code. 511 00:31:33,920 --> 00:31:36,920 Speaker 3: Justice Kaigan said she stood by her earlier position that 512 00:31:37,000 --> 00:31:40,840 Speaker 3: there should be an enforcement mechanism, but Justice Barrett said 513 00:31:40,840 --> 00:31:44,720 Speaker 3: there are significant questions over who would do the enforcing. 514 00:31:45,200 --> 00:31:48,120 Speaker 11: So I'm not saying that it would be impossible, you know, 515 00:31:48,160 --> 00:31:50,400 Speaker 11: to have an enforcement mechanism, but I think it's been 516 00:31:50,440 --> 00:31:54,040 Speaker 11: complicated to figure out exactly what that would be given 517 00:31:54,080 --> 00:31:57,480 Speaker 11: the position of the Supreme Court within our constitutional structure 518 00:31:57,560 --> 00:32:00,480 Speaker 11: and within the judicial branch of government. I do want 519 00:32:00,480 --> 00:32:03,600 Speaker 11: to stress ranking member read that none of my colleagues, 520 00:32:03,600 --> 00:32:07,640 Speaker 11: and certainly not I think ourselves above the law, above 521 00:32:07,680 --> 00:32:08,680 Speaker 11: ethics in any way. 522 00:32:09,920 --> 00:32:12,560 Speaker 5: I have come to rest on the need for an 523 00:32:12,640 --> 00:32:16,680 Speaker 5: enforcement mechanism. If the enforcement mechanism is of the right kind, 524 00:32:17,160 --> 00:32:19,800 Speaker 5: it's not because I think that we're ignoring the code 525 00:32:19,840 --> 00:32:23,000 Speaker 5: of conduct. I do not think that at all, but 526 00:32:23,120 --> 00:32:26,040 Speaker 5: it's important, I think for public perception of the court. 527 00:32:26,120 --> 00:32:31,000 Speaker 5: I think it's also important to give the justices a 528 00:32:31,000 --> 00:32:34,280 Speaker 5: way to show that some of the charges against them are, 529 00:32:34,880 --> 00:32:36,080 Speaker 5: you know, so much poppycock. 530 00:32:36,600 --> 00:32:39,480 Speaker 3: But how useful is a code of ethics if there's 531 00:32:39,560 --> 00:32:40,960 Speaker 3: nothing to enforce it. 532 00:32:41,480 --> 00:32:45,080 Speaker 1: Well, there needs to be enforcement. What's happened with a 533 00:32:45,160 --> 00:32:50,760 Speaker 1: number of Supreme Court justices, frankly, is disgraceful. And you know, 534 00:32:50,840 --> 00:32:54,840 Speaker 1: if you have life tenure and you wear these rogues 535 00:32:54,920 --> 00:32:59,120 Speaker 1: that were associated with being priests, and everybody stands up 536 00:32:59,120 --> 00:33:01,480 Speaker 1: and says you'r honor whenever you walk into the room. 537 00:33:01,640 --> 00:33:05,160 Speaker 1: Even for normal people, that produces a kind of arrogance, 538 00:33:05,200 --> 00:33:08,440 Speaker 1: I think, and that's an occupational hazard for the Supreme Court. 539 00:33:08,760 --> 00:33:12,160 Speaker 1: So there ought to be enforceable code of ethics for them, 540 00:33:12,360 --> 00:33:14,800 Speaker 1: like there is for almost everybody else in the government. 541 00:33:15,000 --> 00:33:19,720 Speaker 1: And again, Congress would be within its powers to impose 542 00:33:19,760 --> 00:33:20,600 Speaker 1: that on the Court. 543 00:33:21,320 --> 00:33:24,800 Speaker 3: That difference you just talked about showed even in this hearing, 544 00:33:25,280 --> 00:33:29,720 Speaker 3: because it wasn't at all combative. There were very respectful 545 00:33:29,840 --> 00:33:32,680 Speaker 3: questions asked very respectfully. 546 00:33:33,280 --> 00:33:37,320 Speaker 1: Being a Supreme Court justice is never having to explain yourself, right, 547 00:33:37,360 --> 00:33:41,840 Speaker 1: the justices, they don't hold press conferences, They only rarely 548 00:33:41,880 --> 00:33:45,320 Speaker 1: appear before Congress. As I said before, they often don't 549 00:33:45,320 --> 00:33:50,320 Speaker 1: write their own opinions. They are unaccountable, and that creates 550 00:33:50,360 --> 00:33:54,160 Speaker 1: a kind of mindset that can be really quite dangerous. 551 00:33:54,520 --> 00:33:59,120 Speaker 3: They also fielded questions about the use of the emergency docket, 552 00:33:59,520 --> 00:34:03,000 Speaker 3: often referred to as the shadow docket. These orders that 553 00:34:03,040 --> 00:34:07,840 Speaker 3: are typically issued early in cases and without much reasoning 554 00:34:07,880 --> 00:34:12,000 Speaker 3: from the justices, have been criticized, including by some of 555 00:34:12,040 --> 00:34:13,160 Speaker 3: the liberal justices. 556 00:34:13,800 --> 00:34:17,240 Speaker 1: Justice Kagan said she thought the problem had gotten somewhat better, 557 00:34:18,000 --> 00:34:21,160 Speaker 1: and I think it has. The justices are doing more 558 00:34:21,239 --> 00:34:25,600 Speaker 1: to explain themselves, but there still is something of a problem. 559 00:34:25,680 --> 00:34:29,760 Speaker 1: And I think one downside of these emergency orders without 560 00:34:29,800 --> 00:34:34,000 Speaker 1: opinions is it leaves very unclear for lower court judges 561 00:34:34,000 --> 00:34:36,840 Speaker 1: who are trying to do what Spoon for Boston to do. 562 00:34:37,480 --> 00:34:40,080 Speaker 1: If the Court doesn't tell them clearly what they're supposed 563 00:34:40,080 --> 00:34:42,359 Speaker 1: to do, then it's very very hard for them. 564 00:34:42,560 --> 00:34:44,799 Speaker 3: What would you have asked the justices if you were 565 00:34:44,840 --> 00:34:46,239 Speaker 3: on the committee. 566 00:34:46,040 --> 00:34:50,840 Speaker 1: Well, I think it's appropriate to ask the justices about 567 00:34:51,040 --> 00:34:54,440 Speaker 1: cases that they've decided. That's not a popular view. I 568 00:34:54,440 --> 00:34:58,239 Speaker 1: think most other law professors would disagree with that, but 569 00:34:58,320 --> 00:35:01,160 Speaker 1: I don't really see what's wrong with it. As I say, 570 00:35:01,280 --> 00:35:05,239 Speaker 1: Congress is a coordinate branch of government, and if the 571 00:35:05,239 --> 00:35:09,239 Speaker 1: Court chooses to invalidate, as I said before, maybe the 572 00:35:09,280 --> 00:35:12,720 Speaker 1: most important law passed in the twentieth century the nineteen 573 00:35:12,760 --> 00:35:15,000 Speaker 1: sixty five Voting Rights Act, and by the way, the 574 00:35:15,040 --> 00:35:17,920 Speaker 1: amendments to that which were at stake were signed by 575 00:35:17,960 --> 00:35:21,799 Speaker 1: President Reagan and passed by a bipartisan Congress. If they 576 00:35:21,920 --> 00:35:24,920 Speaker 1: chose to invalidate that, then they ought to be subject 577 00:35:25,040 --> 00:35:29,080 Speaker 1: to questions about what their reasons are. And I just 578 00:35:29,200 --> 00:35:32,480 Speaker 1: wish the legislative branch were a little more assertive and 579 00:35:32,560 --> 00:35:35,520 Speaker 1: asserting the powers that it has under our Constitution. 580 00:35:36,000 --> 00:35:39,480 Speaker 3: And in the opening statement, Kagan was careful to announce 581 00:35:39,600 --> 00:35:44,440 Speaker 3: that they can't address individual cases. You know, the justicees 582 00:35:44,560 --> 00:35:48,720 Speaker 3: testified about the budget for decades. I remember Justice Kagan 583 00:35:48,760 --> 00:35:53,160 Speaker 3: appearing with Justice Samuel Alito in twenty nineteen. Why did 584 00:35:53,160 --> 00:35:55,480 Speaker 3: they stop coming to Congress to testify? 585 00:35:56,200 --> 00:36:00,000 Speaker 1: This is another aspect of the Court's lack of accountability. 586 00:36:00,560 --> 00:36:03,719 Speaker 1: For years and years, it was traditional that every year 587 00:36:03,840 --> 00:36:07,520 Speaker 1: the Chief Justice would come and testify. Then there was 588 00:36:08,200 --> 00:36:12,280 Speaker 1: controversy about the Code of Ethics. Congress wanted the Chief 589 00:36:12,440 --> 00:36:15,319 Speaker 1: Justice to come and explain, and he refused to do so. 590 00:36:15,400 --> 00:36:17,200 Speaker 1: And so this is the first time in a long 591 00:36:17,239 --> 00:36:20,600 Speaker 1: time that anybody's actually come to the Hill and talked 592 00:36:20,640 --> 00:36:22,880 Speaker 1: to the Senators and representatives. 593 00:36:23,480 --> 00:36:26,520 Speaker 3: Well, see if they make a return appearance next year. 594 00:36:26,920 --> 00:36:30,200 Speaker 3: Thanks so much for joining me. That's Professor Lewis Michael 595 00:36:30,280 --> 00:36:33,839 Speaker 3: Sideman of Georgetown Law. His new book is called The 596 00:36:33,920 --> 00:36:37,960 Speaker 3: Constitution Cannot Save Us? Why we can no longer rely 597 00:36:38,239 --> 00:36:41,279 Speaker 3: on our founding document? And that's it for this edition 598 00:36:41,280 --> 00:36:43,960 Speaker 3: of The Bloomberg Law Show. Remember you can always get 599 00:36:43,960 --> 00:36:47,120 Speaker 3: the latest legal news on our Bloomberg Law Podcast. You 600 00:36:47,160 --> 00:36:51,239 Speaker 3: can find them on Apple Podcasts, Spotify, and at www 601 00:36:51,360 --> 00:36:55,600 Speaker 3: dot bloomberg dot com slash podcast Slash Law, And remember 602 00:36:55,680 --> 00:36:58,640 Speaker 3: to tune into The Bloomberg Law Show every weeknight at 603 00:36:58,640 --> 00:37:02,120 Speaker 3: ten pm Wall Street Time. I'm Jim Grosso and you're 604 00:37:02,239 --> 00:37:03,400 Speaker 3: listening to Bloomberg. 605 00:37:08,080 --> 00:37:08,480 Speaker 7: Mm hmm