1
00:00:02,880 --> 00:00:07,600
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

2
00:00:09,039 --> 00:00:13,200
Speaker 2: Like last week President encouraged me vied through social and

3
00:00:13,360 --> 00:00:19,599
Speaker 2: also reviaophone called to be more aggressive, and I was like, okay, yep, yes, sir,

4
00:00:19,680 --> 00:00:21,119
Speaker 2: as President, we'll.

5
00:00:21,040 --> 00:00:21,560
Speaker 3: Give you that.

6
00:00:21,720 --> 00:00:25,560
Speaker 4: One thing Elon Musk cannot be accused of is not

7
00:00:25,640 --> 00:00:29,920
Speaker 4: being aggressive enough. A barrage of lawsuits testified to that,

8
00:00:30,240 --> 00:00:34,640
Speaker 4: as plaintiffs from state attorneys general to unions to fired

9
00:00:34,720 --> 00:00:38,080
Speaker 4: federal workers try to reign in the billionaire and his

10
00:00:38,240 --> 00:00:43,800
Speaker 4: relentless campaign to slash government spending by firing thousands of workers,

11
00:00:44,040 --> 00:00:51,240
Speaker 4: dismantling agencies, canceling contracts, and accessing sensitive information with speed

12
00:00:51,400 --> 00:00:55,320
Speaker 4: and secrecy and DOGE. Many of the lawsuits argue that

13
00:00:55,360 --> 00:01:00,840
Speaker 4: the virtually unchecked authority Musk wields is unconstitutional. In fact,

14
00:01:00,920 --> 00:01:04,720
Speaker 4: judges are questioning Musk's role in DOGE and the government,

15
00:01:04,920 --> 00:01:07,640
Speaker 4: and the answer from the White House has been that

16
00:01:07,760 --> 00:01:10,480
Speaker 4: Musk isn't the head of DOGE, but rather is a

17
00:01:10,560 --> 00:01:14,360
Speaker 4: senior advisor to the President with no authority to make

18
00:01:14,400 --> 00:01:19,120
Speaker 4: government decisions. But that was contradicted by President Trump himself

19
00:01:19,240 --> 00:01:21,679
Speaker 4: as he gave a shout out to Musk during his

20
00:01:21,760 --> 00:01:23,440
Speaker 4: speech on Tuesday night.

21
00:01:23,640 --> 00:01:29,399
Speaker 5: I have created the brand new Department of Government Efficiency Goes.

22
00:01:30,400 --> 00:01:37,560
Speaker 5: Perhaps you've heard of it, perhaps, which is headed by

23
00:01:37,760 --> 00:01:41,080
Speaker 5: Elon Musk, who's in the gallery tonight.

24
00:01:41,360 --> 00:01:44,959
Speaker 4: In the gallery, in the Oval office, at cabinet meetings,

25
00:01:45,240 --> 00:01:50,000
Speaker 4: and on Capitol Hill. The unelected billionaire seems to be everywhere,

26
00:01:50,280 --> 00:01:54,280
Speaker 4: and courts want to know just what is Elon Musk's role.

27
00:01:54,760 --> 00:01:58,360
Speaker 4: My guest is an expert in constitutional law, Jamal Green,

28
00:01:58,520 --> 00:02:02,080
Speaker 4: a professor at Columbia Law School. Some of the lawsuits,

29
00:02:02,080 --> 00:02:06,840
Speaker 4: including the one by fourteen Democratic Attorneys General, argue that

30
00:02:06,920 --> 00:02:13,160
Speaker 4: Trump's granting sweeping powers to Mosque without proper authorization from Congress,

31
00:02:13,440 --> 00:02:16,400
Speaker 4: and that it's a violation of the appointment's clause. Can

32
00:02:16,440 --> 00:02:17,800
Speaker 4: you tell us more about that argument?

33
00:02:18,320 --> 00:02:20,560
Speaker 6: So, the first thing to note is we don't actually

34
00:02:20,639 --> 00:02:23,560
Speaker 6: have a whole lot of transparency about exactly what the

35
00:02:23,639 --> 00:02:26,640
Speaker 6: nature of his appointment is. But what we do know

36
00:02:26,760 --> 00:02:30,800
Speaker 6: from a constitutional perspective is that if you are exercising

37
00:02:31,040 --> 00:02:34,200
Speaker 6: what the Supreme Court refers to as significant authority on

38
00:02:34,320 --> 00:02:37,240
Speaker 6: behalf of the United States, and if you don't have

39
00:02:37,280 --> 00:02:40,360
Speaker 6: a supervisor other than the President, then you have to

40
00:02:40,400 --> 00:02:43,799
Speaker 6: be appointed consistent with the Constitution, and for that kind

41
00:02:43,840 --> 00:02:47,840
Speaker 6: of person, a high level figure exercising authority on behalf

42
00:02:47,880 --> 00:02:50,720
Speaker 6: of the United States, it has to be presidential appointment

43
00:02:50,760 --> 00:02:53,120
Speaker 6: and Senate confirmation, and we know for sure he hasn't

44
00:02:53,160 --> 00:02:56,080
Speaker 6: been confirmed by the Senate. So the argument would be

45
00:02:56,160 --> 00:02:59,720
Speaker 6: that he is basically exercising government power without going through

46
00:02:59,760 --> 00:03:03,840
Speaker 6: the accountability that the Constitution provides for officials of that sort.

47
00:03:04,120 --> 00:03:08,320
Speaker 4: As you mentioned, there's no transparency about Musk's role and

48
00:03:08,720 --> 00:03:12,160
Speaker 4: what DOJE is doing behind the scenes, and judges in

49
00:03:12,240 --> 00:03:15,320
Speaker 4: many of these cases have been trying to find out,

50
00:03:15,919 --> 00:03:19,880
Speaker 4: and the Justice Department has argued that Musk may carry

51
00:03:19,960 --> 00:03:24,360
Speaker 4: sway or influence within the executive branch, even significant influence,

52
00:03:24,600 --> 00:03:28,160
Speaker 4: but that's not the same as exercising authority that the

53
00:03:28,240 --> 00:03:32,520
Speaker 4: Constitution's appointments clause says is reserved for officers of the

54
00:03:32,639 --> 00:03:36,240
Speaker 4: United States. So they're contending that his role is more

55
00:03:36,320 --> 00:03:37,600
Speaker 4: like a senior advisor.

56
00:03:38,040 --> 00:03:41,080
Speaker 6: Yes, that's the argument they'd make. That's probably the argument

57
00:03:41,120 --> 00:03:43,240
Speaker 6: I would make if I were them, That there are

58
00:03:43,280 --> 00:03:45,720
Speaker 6: people in the president's orbit, and the Chief of Staff

59
00:03:45,800 --> 00:03:47,640
Speaker 6: is an example of that, who don't have to go

60
00:03:47,720 --> 00:03:50,040
Speaker 6: through the appointment's clause, and the reason they don't have

61
00:03:50,080 --> 00:03:52,880
Speaker 6: to go through the appointment's clause is they're essentially acting

62
00:03:52,960 --> 00:03:55,240
Speaker 6: on behalf of the president and kind of conveying the

63
00:03:55,240 --> 00:03:58,880
Speaker 6: president's wishes, but they themselves are not the ones exercising

64
00:03:58,960 --> 00:04:02,200
Speaker 6: the authority that Here's that kind of argument can try

65
00:04:02,240 --> 00:04:04,600
Speaker 6: to get to the bottom of the facts of the matter.

66
00:04:04,800 --> 00:04:07,520
Speaker 6: The President himself said that Elon Musk is the head

67
00:04:07,560 --> 00:04:10,520
Speaker 6: of this entity called DOGE. He said that in front

68
00:04:10,520 --> 00:04:13,520
Speaker 6: of a joint meeting of Congress, and others in the

69
00:04:13,560 --> 00:04:16,920
Speaker 6: administration have said that they're taking some directions from Musk.

70
00:04:17,040 --> 00:04:19,479
Speaker 6: Musk is showing up at cabinet meetings, and all the

71
00:04:19,520 --> 00:04:22,520
Speaker 6: cabinet officials are people who are principal officers, So it

72
00:04:22,520 --> 00:04:25,440
Speaker 6: can be a matter of kind of semantic to say, well,

73
00:04:25,480 --> 00:04:28,919
Speaker 6: he's not actually been appointed to had an agency, but

74
00:04:28,960 --> 00:04:32,479
Speaker 6: if he's actually exercising authority, he's actually issuing directions, you know,

75
00:04:32,560 --> 00:04:35,000
Speaker 6: he sort of walks like a cabinet official, talks like

76
00:04:35,040 --> 00:04:38,200
Speaker 6: one a court can certainly say that he's exercising authority

77
00:04:38,240 --> 00:04:40,279
Speaker 6: in the way in which the Secretary of the Treasury

78
00:04:40,360 --> 00:04:42,760
Speaker 6: or the Attorney general or someone else who counts as

79
00:04:42,800 --> 00:04:45,880
Speaker 6: what's called the principal officer would be exercising authority.

80
00:04:45,920 --> 00:04:48,080
Speaker 4: I think it just took a few hours for the

81
00:04:48,160 --> 00:04:52,400
Speaker 4: lawyers in one of the lawsuits to cite what President

82
00:04:52,440 --> 00:04:56,480
Speaker 4: Trump said about Elon Musk in his speech as an

83
00:04:56,480 --> 00:05:00,280
Speaker 4: admission that Elon Musk is acting as a head of

84
00:05:00,320 --> 00:05:00,960
Speaker 4: an agency.

85
00:05:01,360 --> 00:05:03,320
Speaker 6: Yeah, he sure doesn't sound like an advisor in the

86
00:05:03,360 --> 00:05:06,120
Speaker 6: way in which the President himself spoke about him and

87
00:05:06,560 --> 00:05:09,840
Speaker 6: in the aggressiveness with which he's proceeding. You know, if

88
00:05:09,839 --> 00:05:13,039
Speaker 6: this is directions directly from the President and you're trying

89
00:05:13,080 --> 00:05:15,200
Speaker 6: to litigate this kind of thing, you'd want to hear

90
00:05:15,480 --> 00:05:17,840
Speaker 6: more from the President about the way in which he's

91
00:05:17,880 --> 00:05:21,640
Speaker 6: operating according to directions. But he seems pretty autonomous from

92
00:05:21,640 --> 00:05:22,279
Speaker 6: what we can tell.

93
00:05:22,720 --> 00:05:27,760
Speaker 4: So are they trying to insulate Mosque from oversight by

94
00:05:27,760 --> 00:05:31,480
Speaker 4: making him an advisor he would enjoy executive privilege.

95
00:05:31,520 --> 00:05:34,480
Speaker 6: Then well, if he's really an advisor and really is

96
00:05:34,520 --> 00:05:38,760
Speaker 6: not actually exercising authority on behalf of the government, then

97
00:05:38,960 --> 00:05:41,200
Speaker 6: if he's in the White House and it's just a

98
00:05:41,240 --> 00:05:44,000
Speaker 6: White House advisor, he wouldn't be subject to Freedom of

99
00:05:44,120 --> 00:05:47,400
Speaker 6: Information Act requests, whereas if he's part of an agency

100
00:05:47,480 --> 00:05:49,920
Speaker 6: or issuing directions to the agency he starts to fall

101
00:05:49,960 --> 00:05:54,400
Speaker 6: within federal transparency laws so as to oversight. Congress isn't

102
00:05:54,400 --> 00:05:57,640
Speaker 6: really doing much oversight right now, but if it were,

103
00:05:58,200 --> 00:06:02,120
Speaker 6: he may have certain kinds of defenses grounded in what's

104
00:06:02,160 --> 00:06:05,880
Speaker 6: called a presidential communications privilege, so that he is issuing

105
00:06:06,279 --> 00:06:09,000
Speaker 6: orders based on his conversations with the president or the

106
00:06:09,000 --> 00:06:11,719
Speaker 6: wishes of the president. That I think doesn't depend so

107
00:06:11,839 --> 00:06:14,800
Speaker 6: much on what his actual position is. It depends more

108
00:06:14,839 --> 00:06:17,520
Speaker 6: on the nature of his interactions with the White House.

109
00:06:18,080 --> 00:06:20,960
Speaker 4: I'm not sure that the Justice Department has raised that

110
00:06:21,200 --> 00:06:23,719
Speaker 4: in any of these lawsuits. I haven't seen it referred to.

111
00:06:24,080 --> 00:06:26,120
Speaker 4: You know that he has executive privilege.

112
00:06:26,279 --> 00:06:28,800
Speaker 6: Well, depending on what the nature of the privilege is.

113
00:06:29,080 --> 00:06:31,120
Speaker 6: You know, anyone in the executive branch might be able

114
00:06:31,200 --> 00:06:33,680
Speaker 6: to claim some kind of executive privilege. It depends on

115
00:06:34,040 --> 00:06:38,240
Speaker 6: what is being shielded. Now Here, we actually have orders

116
00:06:38,279 --> 00:06:44,360
Speaker 6: being issued to departments to actually engage in activity, cutting programs,

117
00:06:44,680 --> 00:06:48,600
Speaker 6: canceling contracts, and so forth. Those are final actions of

118
00:06:48,640 --> 00:06:51,960
Speaker 6: the executive branch and finding out whether those things are

119
00:06:51,960 --> 00:06:54,599
Speaker 6: happening or not. It is something that the American people

120
00:06:54,760 --> 00:06:56,400
Speaker 6: have a right to know, and I don't just mean

121
00:06:56,440 --> 00:06:59,880
Speaker 6: that in a general sense, but based on federal transparency laws,

122
00:07:00,040 --> 00:07:01,880
Speaker 6: so that those aren't things that he'd be able to

123
00:07:01,880 --> 00:07:04,359
Speaker 6: claim privilege about. He might be able to claim a

124
00:07:04,400 --> 00:07:07,000
Speaker 6: privilege if you know, someone were to ask, when did

125
00:07:07,040 --> 00:07:09,160
Speaker 6: the President tell you to do this? If he were

126
00:07:09,160 --> 00:07:11,280
Speaker 6: to say, well, let's privilege, well, that might be something

127
00:07:11,400 --> 00:07:13,960
Speaker 6: that someone could claim privilege about. But there are actions

128
00:07:14,000 --> 00:07:16,840
Speaker 6: being taken and they're coming from somewhere, and that's not

129
00:07:16,880 --> 00:07:17,680
Speaker 6: a privileged back.

130
00:07:18,320 --> 00:07:22,680
Speaker 4: Several judges, perhaps all the judges, are having trouble finding

131
00:07:22,720 --> 00:07:27,360
Speaker 4: out the information about Musk and Doge. For example, Marilyn

132
00:07:27,440 --> 00:07:31,880
Speaker 4: Judge Theodore Schwang was brought in government lawyers for clarity

133
00:07:32,000 --> 00:07:36,560
Speaker 4: on Musk's role, and he said their answers were highly suspicious.

134
00:07:36,920 --> 00:07:41,840
Speaker 4: Another problem is the judges are getting conflicting information from

135
00:07:41,960 --> 00:07:45,080
Speaker 4: the Justice Department lawyers or no information at all. A

136
00:07:45,080 --> 00:07:47,440
Speaker 4: lot of the time, the Justice Department lawyers can't answer

137
00:07:47,520 --> 00:07:49,840
Speaker 4: the questions that the judges are asking.

138
00:07:50,360 --> 00:07:53,400
Speaker 6: Yeah, and there's a real irony about this, which is

139
00:07:53,440 --> 00:07:58,480
Speaker 6: that part of the overall philosophy of the administration is

140
00:07:58,640 --> 00:08:01,640
Speaker 6: what sometimes referred to as unitary executive theory, which is

141
00:08:01,720 --> 00:08:04,880
Speaker 6: sort of all power in the executive branch runs to

142
00:08:04,960 --> 00:08:08,280
Speaker 6: the president and is accountable to the president. And that's

143
00:08:08,320 --> 00:08:11,520
Speaker 6: a theory that is popular among some circles of legal

144
00:08:11,520 --> 00:08:14,440
Speaker 6: scholars and judges and so forth, but it relies on

145
00:08:14,520 --> 00:08:17,400
Speaker 6: a theory of accountability. And when you don't even know

146
00:08:17,520 --> 00:08:21,240
Speaker 6: who's exercising authority, how they're appointed, where they got their

147
00:08:21,240 --> 00:08:23,800
Speaker 6: power from, whether they're answering to the president or not,

148
00:08:24,080 --> 00:08:28,440
Speaker 6: and those basic questions are unclear, it's entirely at odds

149
00:08:28,440 --> 00:08:31,720
Speaker 6: with the idea of unitary executive theory. It's really kind

150
00:08:31,760 --> 00:08:34,480
Speaker 6: of a chaotic environment. And I have to think that

151
00:08:34,520 --> 00:08:37,560
Speaker 6: for at least some judges, some of the arguments that

152
00:08:37,920 --> 00:08:41,480
Speaker 6: the president has to have certain levels of control over

153
00:08:41,520 --> 00:08:44,760
Speaker 6: the executive branch are going to start to fall flat

154
00:08:44,880 --> 00:08:47,080
Speaker 6: when it seems as though there are other entities or

155
00:08:47,120 --> 00:08:50,200
Speaker 6: other power centers within the executive branch that are either

156
00:08:50,240 --> 00:08:53,400
Speaker 6: not controlled by the president or that the administration is

157
00:08:53,480 --> 00:08:55,320
Speaker 6: unwilling to be transparent about.

158
00:08:55,640 --> 00:09:00,000
Speaker 4: On Thursday, the Supreme Court rejected Trump's request to talk

159
00:09:00,120 --> 00:09:03,880
Speaker 4: us out a lower court ruling that requires the quick

160
00:09:03,920 --> 00:09:07,720
Speaker 4: dispersement of as much as two billion dollars owed to

161
00:09:08,040 --> 00:09:13,400
Speaker 4: contractors for already completed work. Four justices dissented. Does that

162
00:09:13,520 --> 00:09:17,400
Speaker 4: indicate to you that there are at least five justices

163
00:09:17,440 --> 00:09:19,920
Speaker 4: who are willing to put the brakes on Trump.

164
00:09:20,320 --> 00:09:23,200
Speaker 6: I think the most we can say from that decision

165
00:09:23,840 --> 00:09:26,480
Speaker 6: and from the few other ways in which the Supreme

166
00:09:26,480 --> 00:09:28,800
Speaker 6: Court has weighed in so far on the Trump administration,

167
00:09:29,440 --> 00:09:33,559
Speaker 6: is that the Court is acting extremely cautiously. So by

168
00:09:33,600 --> 00:09:35,560
Speaker 6: the court, I mean the middle of the court, which

169
00:09:35,600 --> 00:09:38,920
Speaker 6: in this case is Chief Justice Roberts and Amy Clay Barrett.

170
00:09:39,000 --> 00:09:41,640
Speaker 6: I think the Court knows that whenever it weighs in,

171
00:09:41,679 --> 00:09:43,680
Speaker 6: people are going to be paying a lot of attention

172
00:09:43,720 --> 00:09:46,319
Speaker 6: and reading those tea leaves very carefully, and so they're

173
00:09:46,760 --> 00:09:50,079
Speaker 6: kind of holding their powder a little bit until they

174
00:09:50,120 --> 00:09:52,600
Speaker 6: really have to rule on something. And so in this

175
00:09:52,960 --> 00:09:57,720
Speaker 6: USAID related case involving money owed under contracts, they didn't

176
00:09:57,800 --> 00:10:00,600
Speaker 6: really weigh in on whether the money was road or

177
00:10:00,640 --> 00:10:03,120
Speaker 6: anything like that. It was really just to say, we're

178
00:10:03,120 --> 00:10:05,559
Speaker 6: not going to throw out what the district Court has done,

179
00:10:05,880 --> 00:10:08,680
Speaker 6: but we're going to ask it to make sure that

180
00:10:08,720 --> 00:10:11,600
Speaker 6: it clarifies exactly what it's asking the government to do,

181
00:10:11,679 --> 00:10:13,640
Speaker 6: so that it can give the government a very specific

182
00:10:13,800 --> 00:10:16,960
Speaker 6: order rather than something broader than that. It's really kind

183
00:10:16,960 --> 00:10:19,640
Speaker 6: of a we're not going to reveal too much kind

184
00:10:19,679 --> 00:10:22,760
Speaker 6: of decision that I would interpret as at least there

185
00:10:22,800 --> 00:10:25,200
Speaker 6: are five people on the court who are not willing

186
00:10:25,480 --> 00:10:29,200
Speaker 6: at this stage to give the Trump administration everything at once,

187
00:10:29,360 --> 00:10:31,640
Speaker 6: But that doesn't necessarily mean that they won't get there

188
00:10:31,679 --> 00:10:32,520
Speaker 6: at some point.

189
00:10:32,800 --> 00:10:36,200
Speaker 4: Lower courts have been stepping into these cases. But do

190
00:10:36,200 --> 00:10:39,320
Speaker 4: you think they can move quickly enough to stop what

191
00:10:39,480 --> 00:10:42,800
Speaker 4: Musk is doing or will he be done before the

192
00:10:42,800 --> 00:10:43,800
Speaker 4: cases are done?

193
00:10:44,080 --> 00:10:46,720
Speaker 6: So they are moving as quickly as we ever really

194
00:10:46,760 --> 00:10:49,240
Speaker 6: see courts move. A lot of these decisions are coming

195
00:10:49,280 --> 00:10:51,480
Speaker 6: within a matter of days. A lot of these courts,

196
00:10:51,559 --> 00:10:54,080
Speaker 6: especially in the District of Columbia, are really in un

197
00:10:54,160 --> 00:10:56,320
Speaker 6: days with a lot of cases, so they are certainly

198
00:10:56,360 --> 00:10:59,080
Speaker 6: working extremely hard and working around the clock on this.

199
00:10:59,320 --> 00:11:02,560
Speaker 6: But even the fastest courts in the world can't operate

200
00:11:02,640 --> 00:11:06,240
Speaker 6: as quickly as the so called doge seems to be operating.

201
00:11:06,360 --> 00:11:08,480
Speaker 6: Where if you can just send someone into agency and

202
00:11:08,520 --> 00:11:12,720
Speaker 6: then attach a flash driver, have access to payment systems,

203
00:11:12,920 --> 00:11:17,680
Speaker 6: fire people, freeze contracts, refuse to pay out money. However illegal,

204
00:11:17,840 --> 00:11:21,240
Speaker 6: so many of these things are They do damage immediately

205
00:11:21,360 --> 00:11:23,480
Speaker 6: if someone isn't getting a drug that they need that

206
00:11:23,640 --> 00:11:26,600
Speaker 6: day or that hour. Then even if a court says

207
00:11:26,880 --> 00:11:29,040
Speaker 6: two days later, you've got to pay that money and

208
00:11:29,040 --> 00:11:32,439
Speaker 6: you've got to provide those resources, and then that winds

209
00:11:32,480 --> 00:11:34,640
Speaker 6: its way through the system, and then another day passes.

210
00:11:34,679 --> 00:11:37,400
Speaker 6: You know that person may lose their life in that interim,

211
00:11:37,679 --> 00:11:41,800
Speaker 6: And so multiply that by hundreds of thousands of potential cases,

212
00:11:41,840 --> 00:11:44,320
Speaker 6: and there's really a lot that can happen even if

213
00:11:44,360 --> 00:11:46,160
Speaker 6: courts are moving as fast as they can.

214
00:11:46,480 --> 00:11:49,480
Speaker 4: More than one hundred lawsuits have already been filed over

215
00:11:49,960 --> 00:11:54,480
Speaker 4: Trump administration actions. It's sort of astonishing in such a

216
00:11:54,520 --> 00:11:55,479
Speaker 4: short time.

217
00:11:55,559 --> 00:11:57,880
Speaker 6: We're at the beginning rather than the end of this,

218
00:11:58,080 --> 00:12:00,040
Speaker 6: and that they're going to do more things. But you

219
00:12:00,120 --> 00:12:02,800
Speaker 6: haven't really seen yet his spoil litigation. Trying to figure

220
00:12:02,800 --> 00:12:05,640
Speaker 6: out what's going on inside of these agencies, because after

221
00:12:05,679 --> 00:12:08,080
Speaker 6: you file a floya SAT, there are twenty business days

222
00:12:08,080 --> 00:12:11,600
Speaker 6: before you can file litigation between the requests and the litigation,

223
00:12:11,720 --> 00:12:13,560
Speaker 6: and so we'll just be getting to the point where

224
00:12:13,679 --> 00:12:15,800
Speaker 6: you'll see lots of foil litigation and that's all going

225
00:12:15,840 --> 00:12:18,280
Speaker 6: to go to the same courts in DC, and there'll

226
00:12:18,280 --> 00:12:20,679
Speaker 6: be lots of rulings of various sorts, so it'll get

227
00:12:20,679 --> 00:12:21,520
Speaker 6: harder to follow.

228
00:12:21,640 --> 00:12:25,160
Speaker 4: Especially because often the same issue is being decided by

229
00:12:25,440 --> 00:12:27,920
Speaker 4: different courts. Thanks so much for being on the show.

230
00:12:28,120 --> 00:12:32,160
Speaker 4: That's Professor Jamal Green of Columbia Law School. Mexico is

231
00:12:32,240 --> 00:12:36,040
Speaker 4: suing US gun makers for the violence committed by drug

232
00:12:36,080 --> 00:12:40,280
Speaker 4: cartels with the thousands of guns that are trafficked across

233
00:12:40,320 --> 00:12:44,479
Speaker 4: the border each year, but it appears that Mexico's lawsuit

234
00:12:44,679 --> 00:12:47,760
Speaker 4: will end at the Supreme Court, where both liberal and

235
00:12:47,840 --> 00:12:52,640
Speaker 4: conservative justices appeared skeptical that the claims could clear the

236
00:12:52,720 --> 00:12:56,720
Speaker 4: hurdles in US law that protect gun makers from most

237
00:12:56,720 --> 00:13:01,480
Speaker 4: civil lawsuits. Liberal just as Elena Kagan said Mexico wasn't

238
00:13:01,520 --> 00:13:06,480
Speaker 4: pointing out specific gun makers that were deliberately supplying the firearms.

239
00:13:07,040 --> 00:13:10,160
Speaker 7: What you don't have is particular dealers, right, I mean,

240
00:13:10,200 --> 00:13:13,720
Speaker 7: it's a pretty There are lots of dealers, and you're

241
00:13:13,760 --> 00:13:16,160
Speaker 7: just saying they know that some of them do and

242
00:13:16,280 --> 00:13:18,360
Speaker 7: which some of them? I mean, who are they aiding

243
00:13:18,440 --> 00:13:19,880
Speaker 7: and a betting in this complaint?

244
00:13:20,480 --> 00:13:25,720
Speaker 4: And Conservative Justice Brett Cavanaugh was concerned that allowing Mexico's

245
00:13:25,840 --> 00:13:28,880
Speaker 4: aiding and a betting claims to go forward could have

246
00:13:28,960 --> 00:13:33,880
Speaker 4: repercautions for US companies when they're products from baseball bats

247
00:13:33,920 --> 00:13:37,080
Speaker 4: to prescription drugs are used to commit crimes.

248
00:13:38,160 --> 00:13:40,640
Speaker 8: You make baseball outs and you know they're being used

249
00:13:40,880 --> 00:13:45,720
Speaker 8: in a particular way in particular areas by particular gangs,

250
00:13:48,080 --> 00:13:50,679
Speaker 8: and you should. So therefore, yeah, we got to make

251
00:13:50,720 --> 00:13:53,280
Speaker 8: sure that we're not selling to those sporting goods stores

252
00:13:53,360 --> 00:13:55,280
Speaker 8: that are in particular neighborhoods.

253
00:13:55,559 --> 00:13:58,880
Speaker 4: Joining me is Andrew Willinger, executive director of the Duke

254
00:13:59,000 --> 00:14:03,360
Speaker 4: Center for Firearms Law. Andrew tell us about Mexico's claims here.

255
00:14:03,720 --> 00:14:08,720
Speaker 9: So, Mexico is alleging in this case that a group

256
00:14:08,920 --> 00:14:15,000
Speaker 9: of major US gun manufacturers aided and embedded the illegal

257
00:14:15,440 --> 00:14:20,320
Speaker 9: trafficking of guns into Mexico through straw purchasers that were

258
00:14:20,320 --> 00:14:23,480
Speaker 9: conducted by people within the United States who then trafficked

259
00:14:23,560 --> 00:14:26,640
Speaker 9: the guns across the border. That those guns were then

260
00:14:26,840 --> 00:14:31,600
Speaker 9: used by cartels in Mexico to commit various active violence,

261
00:14:31,920 --> 00:14:36,280
Speaker 9: and Mexico is seeking to recover for the costs of

262
00:14:36,320 --> 00:14:40,120
Speaker 9: that violence that occurred in the country. And the issue

263
00:14:40,120 --> 00:14:44,560
Speaker 9: before the court is what are these claims are barred

264
00:14:44,720 --> 00:14:49,800
Speaker 9: by a federal statute that immunizes gun makers from certain

265
00:14:49,920 --> 00:14:54,479
Speaker 9: legal claims based on the third party misuse of their products,

266
00:14:54,640 --> 00:14:58,600
Speaker 9: or whether Mexico's claims fit within one of the listed

267
00:14:58,720 --> 00:15:00,960
Speaker 9: exceptions in federal law.

268
00:15:01,400 --> 00:15:04,600
Speaker 4: That federal law is called the Protection of Lawful Commerce

269
00:15:04,800 --> 00:15:08,040
Speaker 4: in Arms Act from two thousand and five. So the

270
00:15:08,160 --> 00:15:12,920
Speaker 4: exception is that it allows suits against gun makers that

271
00:15:13,080 --> 00:15:16,320
Speaker 4: knowingly violate a state or federal gun law.

272
00:15:16,800 --> 00:15:19,840
Speaker 9: Yes, that's right. So this is one of a series

273
00:15:19,880 --> 00:15:24,920
Speaker 9: of exception to the immunity shield in PLACA. It's often

274
00:15:24,960 --> 00:15:28,440
Speaker 9: called the predicate exception, and it allows, as you said,

275
00:15:28,560 --> 00:15:33,040
Speaker 9: actions where a manufacturer knowingly violates a state or federal

276
00:15:33,080 --> 00:15:36,840
Speaker 9: statute that's applicable to the sailor marketing of a gun,

277
00:15:37,320 --> 00:15:40,120
Speaker 9: and then that violation has to be the proximate cause

278
00:15:40,560 --> 00:15:43,400
Speaker 9: of the harm for which the plaintiffs is seeking to recover.

279
00:15:44,440 --> 00:15:49,240
Speaker 4: No Francisco, the former US Solicitor General, represented the gun

280
00:15:49,280 --> 00:15:54,280
Speaker 4: makers who claim they're so far removed from Mexico's injuries

281
00:15:54,680 --> 00:15:58,680
Speaker 4: that their actions can't be the foreseeable results or proximate cause.

282
00:15:59,040 --> 00:16:02,760
Speaker 10: Indeed, if Mexico right, then every law enforcement organization in

283
00:16:02,840 --> 00:16:07,480
Speaker 10: America has missed the largest criminal conspiracy in history, operating

284
00:16:07,600 --> 00:16:11,240
Speaker 10: right under their nose and Budweiser is liable for every

285
00:16:11,280 --> 00:16:15,119
Speaker 10: accident caused by underage drinkers, since it knows that teenagers

286
00:16:15,160 --> 00:16:18,479
Speaker 10: will buy beer, drive drunk and crash.

287
00:16:18,560 --> 00:16:21,720
Speaker 4: That was also a concern of Justice Brett Kavanaugh, who

288
00:16:21,760 --> 00:16:26,080
Speaker 4: started talking about baseball bat manufacturers being held liable if

289
00:16:26,080 --> 00:16:27,520
Speaker 4: their back cause is injury.

290
00:16:28,120 --> 00:16:30,760
Speaker 9: Yeah, that's right. There are a lot of extended hypothetical

291
00:16:30,800 --> 00:16:34,800
Speaker 9: discussions about baseball bats, about beer makers and sort of

292
00:16:34,920 --> 00:16:41,240
Speaker 9: what level of knowledge or specific marketing to underage individuals

293
00:16:41,280 --> 00:16:44,800
Speaker 9: of beer, for example, might be sufficient to give rise

294
00:16:44,840 --> 00:16:48,120
Speaker 9: to liability. And you know, I think this is a

295
00:16:48,520 --> 00:16:52,920
Speaker 9: sort of broader concern about what the impact would be

296
00:16:53,160 --> 00:16:57,680
Speaker 9: in various industries of extending liability in this way. You know,

297
00:16:57,840 --> 00:17:01,120
Speaker 9: it really underlies all aspects the case at this stage,

298
00:17:01,160 --> 00:17:04,840
Speaker 9: both the proximate cause question and the question of whether

299
00:17:05,200 --> 00:17:09,080
Speaker 9: aiding and a betting liability. So the theory that here

300
00:17:09,160 --> 00:17:12,880
Speaker 9: the gun makers have aided and abetted these retailers who

301
00:17:12,880 --> 00:17:17,400
Speaker 9: are actually selling to straw purchasers, knowing that they're going

302
00:17:17,480 --> 00:17:20,479
Speaker 9: to bring the guns into Mexico. Whether allowing these claims

303
00:17:20,480 --> 00:17:25,120
Speaker 9: to proceed could have damaging consequences beyond the gun industry.

304
00:17:25,560 --> 00:17:25,879
Speaker 9: I mean it.

305
00:17:25,880 --> 00:17:30,600
Speaker 4: Seemed to be liberals and conservatives across the board, we're

306
00:17:30,640 --> 00:17:33,160
Speaker 4: having a problem with Mexico's lawsuit.

307
00:17:33,640 --> 00:17:36,440
Speaker 9: I think that's right. That was my impression from the

308
00:17:36,560 --> 00:17:39,320
Speaker 9: arguments as well. And actually I was notable is that

309
00:17:39,560 --> 00:17:43,960
Speaker 9: Justice Tanji Brown Jackson had this line of questioning. You know,

310
00:17:44,040 --> 00:17:48,280
Speaker 9: she seemed to be very concerned about this threshold issue

311
00:17:48,480 --> 00:17:54,400
Speaker 9: of whether PLACA even contemplates sort of broader common law

312
00:17:54,480 --> 00:17:58,920
Speaker 9: aiding and a betting as a potential predicate exception claim

313
00:17:59,040 --> 00:18:03,240
Speaker 9: that could be brought notwithstanding the immunity shield. So she

314
00:18:03,320 --> 00:18:06,560
Speaker 9: seemed to be voicing some concern that maybe, you know,

315
00:18:06,680 --> 00:18:10,240
Speaker 9: Congress when it enacted PLACO was actually thinking about something

316
00:18:10,320 --> 00:18:13,199
Speaker 9: far narrower in terms of the lawsuits that it would allow,

317
00:18:13,320 --> 00:18:17,240
Speaker 9: and she was worried. It seemed about courts, about judges

318
00:18:17,400 --> 00:18:20,480
Speaker 9: putting in their own more expansive view of what the

319
00:18:20,600 --> 00:18:23,800
Speaker 9: exception could permit. So I thought that was interesting. And

320
00:18:23,880 --> 00:18:27,280
Speaker 9: you know, it's always difficult to speculate about how justice

321
00:18:27,320 --> 00:18:30,119
Speaker 9: will vote based solely on their questions and oral argument,

322
00:18:30,240 --> 00:18:32,879
Speaker 9: but Justice Jackson seemed very concerned about that point, and

323
00:18:32,920 --> 00:18:35,840
Speaker 9: it would suggest to me that maybe she's more on

324
00:18:35,880 --> 00:18:37,639
Speaker 9: the fence, or maybe even on the side of the

325
00:18:37,640 --> 00:18:38,840
Speaker 9: gunmakers in this case.

326
00:18:39,359 --> 00:18:42,280
Speaker 4: So then what issue do you think the decision will

327
00:18:42,320 --> 00:18:42,720
Speaker 4: turn on?

328
00:18:43,040 --> 00:18:46,119
Speaker 9: I had to predict. I think based post on how

329
00:18:46,160 --> 00:18:48,920
Speaker 9: the argument went, it's most likely that the Court will

330
00:18:48,960 --> 00:18:51,719
Speaker 9: decide this on the aiding and a betting point. That

331
00:18:51,720 --> 00:18:54,000
Speaker 9: the Court won't really want to get into the proximate

332
00:18:54,160 --> 00:18:57,000
Speaker 9: cause case law, which you know, at various times, and

333
00:18:57,040 --> 00:18:58,960
Speaker 9: the arguments that we heard it called kind of a

334
00:18:59,040 --> 00:19:01,720
Speaker 9: mess and very and you know that it's not clear

335
00:19:01,760 --> 00:19:04,520
Speaker 9: exactly you know, what the court requires in terms of

336
00:19:04,520 --> 00:19:07,840
Speaker 9: approximate cause in its past case law. So there seemed

337
00:19:07,880 --> 00:19:10,199
Speaker 9: to be more of an appetite among several of the

338
00:19:10,359 --> 00:19:13,440
Speaker 9: justices to decide, you know, on the basis of aiding

339
00:19:13,440 --> 00:19:16,040
Speaker 9: in a betting, which would mean, as I suspect, the

340
00:19:16,160 --> 00:19:19,960
Speaker 9: court sides with the gunmakers and then throws this case out,

341
00:19:20,359 --> 00:19:24,800
Speaker 9: it would say that Mexico's allegations did not plausibly establish

342
00:19:24,840 --> 00:19:28,520
Speaker 9: and aiding in a betting violation of the straw sales

343
00:19:28,600 --> 00:19:31,760
Speaker 9: by these retailers further down the line.

344
00:19:32,359 --> 00:19:36,399
Speaker 4: So then could Mexico come back with new information, you know,

345
00:19:36,600 --> 00:19:40,560
Speaker 4: specific dealers or straw purchasers or whatever that would allow

346
00:19:40,640 --> 00:19:42,119
Speaker 4: them to bring the case again.

347
00:19:42,840 --> 00:19:45,399
Speaker 9: I think that's possible. I could imagine there being a

348
00:19:45,520 --> 00:19:48,720
Speaker 9: more sort of limited case where they're again, you know,

349
00:19:48,760 --> 00:19:51,040
Speaker 9: reading a little bit between the lines of the arguments,

350
00:19:51,160 --> 00:19:54,000
Speaker 9: some justices seem to maybe be pushing in this direction

351
00:19:54,160 --> 00:19:57,199
Speaker 9: that if this were a complaint that was based on

352
00:19:57,560 --> 00:20:02,040
Speaker 9: specific transactions, where Mexico is saying, you know, these specific

353
00:20:02,040 --> 00:20:05,560
Speaker 9: gunmakers sold these guns to these distributors and then dealers,

354
00:20:05,600 --> 00:20:07,880
Speaker 9: and they knew that they were going to go into

355
00:20:07,920 --> 00:20:10,960
Speaker 9: the hands of straw purchasers and go into Mexico on

356
00:20:11,000 --> 00:20:14,840
Speaker 9: a transaction by transaction basis listing that out, that maybe

357
00:20:15,000 --> 00:20:17,439
Speaker 9: that would be a different outcome. That would obviously be

358
00:20:17,480 --> 00:20:20,560
Speaker 9: a much different type of case. The damages will presumably

359
00:20:20,760 --> 00:20:23,080
Speaker 9: much lower because we would be talking about fewer guns.

360
00:20:23,200 --> 00:20:24,920
Speaker 9: But I think that's theoretically possible.

361
00:20:25,280 --> 00:20:29,480
Speaker 4: This comes at a time for US Mexico relations, and

362
00:20:29,600 --> 00:20:33,399
Speaker 4: President Trump has said that the threatened tariffs are aimed

363
00:20:33,440 --> 00:20:37,560
Speaker 4: at forcing Mexico to step up its fight against illicit

364
00:20:37,640 --> 00:20:41,440
Speaker 4: drugs and illegal migrants crossing the southern border. I didn't

365
00:20:41,440 --> 00:20:43,760
Speaker 4: think that that would enter into the arguments, But then

366
00:20:43,960 --> 00:20:48,960
Speaker 4: just as Samuel Alito asked the lawyer representing Mexico this question.

367
00:20:49,520 --> 00:20:52,760
Speaker 11: There are Americans who think that Mexican government officials are

368
00:20:52,840 --> 00:20:57,800
Speaker 11: contributing to a lot of illegal conduct here. So suppose

369
00:20:57,840 --> 00:21:01,520
Speaker 11: that one of the fifty States the government of Mexico

370
00:21:01,640 --> 00:21:05,399
Speaker 11: for aiding and a betting illegal conduct within the state's orders.

371
00:21:05,840 --> 00:21:09,159
Speaker 11: It costs the state to incur law enforcement costs, public

372
00:21:09,160 --> 00:21:15,360
Speaker 11: welfare costs, other costs. Would your client be willing to

373
00:21:15,560 --> 00:21:18,240
Speaker 11: litigate that case in the courts of the United States.

374
00:21:18,720 --> 00:21:22,680
Speaker 4: I thought that was a very aggressive question that clearly

375
00:21:22,800 --> 00:21:24,360
Speaker 4: revealed his position.

376
00:21:25,080 --> 00:21:27,439
Speaker 9: Yeah, I was very surprised to hear this question be

377
00:21:27,480 --> 00:21:29,600
Speaker 9: asked that oral argument. I will say, you know, he's

378
00:21:29,720 --> 00:21:32,480
Speaker 9: Justice Aledo did preface it by sort of, you know,

379
00:21:32,600 --> 00:21:34,400
Speaker 9: put it in some kind of disclaimer of you know, well,

380
00:21:34,440 --> 00:21:36,600
Speaker 9: this doesn't actually relate to any of the legal issues

381
00:21:36,600 --> 00:21:39,040
Speaker 9: in the case, which of course it doesn't. And you know,

382
00:21:39,080 --> 00:21:41,760
Speaker 9: it's certainly true that this is going on in the background,

383
00:21:41,840 --> 00:21:44,560
Speaker 9: that you know, the case itself has become kind of

384
00:21:44,600 --> 00:21:48,520
Speaker 9: a bargaining ship in some sense in these negotiations or

385
00:21:48,560 --> 00:21:51,560
Speaker 9: discussions between the US and Mexico. But it wasn't clear

386
00:21:51,600 --> 00:21:55,040
Speaker 9: to me exactly what this question was meant to do,

387
00:21:55,160 --> 00:21:57,960
Speaker 9: other than just to kind of put this idea on

388
00:21:58,000 --> 00:22:01,359
Speaker 9: the record, because clearly Mexico attorney in this case was

389
00:22:01,400 --> 00:22:04,280
Speaker 9: not going to go down the path of saying that

390
00:22:04,320 --> 00:22:06,760
Speaker 9: the Mexican government would waive a sovereign immunity and in

391
00:22:06,800 --> 00:22:09,960
Speaker 9: some kind of future hypothetical litigation. So this surprised me

392
00:22:10,000 --> 00:22:12,119
Speaker 9: as well. I didn't expect it to come up so

393
00:22:12,840 --> 00:22:14,639
Speaker 9: viscerally at oral arguments.

394
00:22:14,920 --> 00:22:17,359
Speaker 4: Yeah, I felt for the attorney at that point, because

395
00:22:17,640 --> 00:22:21,439
Speaker 4: how could you possibly answer that question? So do you

396
00:22:21,440 --> 00:22:24,600
Speaker 4: think they'll just write an opinion throwing out the case,

397
00:22:24,880 --> 00:22:29,520
Speaker 4: or that the opinion might have implications for other cases.

398
00:22:30,560 --> 00:22:32,920
Speaker 9: This case, of course, is a little bit unique deals

399
00:22:33,000 --> 00:22:35,320
Speaker 9: with a foreign country. I think one of the real

400
00:22:35,400 --> 00:22:40,639
Speaker 9: questions will be what impact, if any, the decision has

401
00:22:40,720 --> 00:22:45,680
Speaker 9: on domestic tort lawsuits against the gun industry, and specifically

402
00:22:46,080 --> 00:22:50,960
Speaker 9: lawsuits that are brought pursuant to a recently enacted set

403
00:22:51,000 --> 00:22:54,040
Speaker 9: of laws in a handful of states that are designed

404
00:22:54,119 --> 00:22:57,240
Speaker 9: specifically within the predicate exception and provide you know, a

405
00:22:57,320 --> 00:23:02,040
Speaker 9: statutory claim. These are sometimes called or industry nuisance statutes

406
00:23:02,080 --> 00:23:04,720
Speaker 9: that have been passed in states like New York and California,

407
00:23:04,800 --> 00:23:07,760
Speaker 9: for example. And I think it's going to depend on

408
00:23:07,840 --> 00:23:11,159
Speaker 9: what basis the court decides this case, because one of

409
00:23:11,200 --> 00:23:14,480
Speaker 9: the reasons that states are passing these laws is sort

410
00:23:14,480 --> 00:23:18,040
Speaker 9: of to have less doubt out there about whether a

411
00:23:18,119 --> 00:23:22,199
Speaker 9: predicate violation is actually something being alleged. So instead of

412
00:23:22,240 --> 00:23:24,199
Speaker 9: having to rely on the type of aiding in a

413
00:23:24,240 --> 00:23:28,360
Speaker 9: betting theory that Mexico did here, if you are operating

414
00:23:28,400 --> 00:23:30,719
Speaker 9: under one of these state laws, you have an actual

415
00:23:30,760 --> 00:23:33,680
Speaker 9: statute that you can point to and say, I'm alleging

416
00:23:33,720 --> 00:23:37,760
Speaker 9: that this gun manufacturer violated this specific state law. But

417
00:23:37,960 --> 00:23:41,200
Speaker 9: on the other hand, there's still proximate cause requirements. So

418
00:23:41,640 --> 00:23:44,280
Speaker 9: the extent the court does say something about proximate cause,

419
00:23:44,560 --> 00:23:48,040
Speaker 9: that could have an impact on these domestic lawsuits, and

420
00:23:48,320 --> 00:23:52,119
Speaker 9: anything that is in that opinion that talks more broadly

421
00:23:52,359 --> 00:23:55,919
Speaker 9: about PLACA, about the intent of PLACA, what types of

422
00:23:56,000 --> 00:23:59,120
Speaker 9: lawsuits PLACA was meant to sort of cut off. Any

423
00:23:59,160 --> 00:24:03,280
Speaker 9: of those broader atmospheric statements could be pretty impactful, even

424
00:24:03,359 --> 00:24:04,880
Speaker 9: in these domestic cases.

425
00:24:05,080 --> 00:24:07,960
Speaker 4: So it appears we know the final decision, but not

426
00:24:08,080 --> 00:24:11,280
Speaker 4: how the justices will get there. Thanks so much, Andrew.

427
00:24:11,440 --> 00:24:13,560
Speaker 4: That's Andrew Willinger of Duke Law School.

428
00:24:16,200 --> 00:24:20,640
Speaker 1: Since I was born, I dreamed of being a Budweiser Clydesdale.

429
00:24:21,320 --> 00:24:26,040
Speaker 1: The only problem is I was born a donkey, so

430
00:24:26,119 --> 00:24:28,720
Speaker 1: all my life I practiced the Clydesdale walk.

431
00:24:29,160 --> 00:24:32,840
Speaker 4: Who hasn't felt a tug at their heartstrings as the

432
00:24:32,880 --> 00:24:38,240
Speaker 4: Budweiser Clydesdale's have bonded with donkeys, puppies and yes bulls,

433
00:24:38,600 --> 00:24:42,199
Speaker 4: fought against the odds, played football in the snow, and

434
00:24:42,400 --> 00:24:46,280
Speaker 4: even fallen in love with a dancing circus horse, winning

435
00:24:46,320 --> 00:24:50,520
Speaker 4: hearts in nearly fifty Super Bowl ads. It's no wonder, then,

436
00:24:50,640 --> 00:24:55,520
Speaker 4: that Brenton Marchisi wanted a Clydesdale ever since seeing Budweiser's

437
00:24:55,520 --> 00:24:58,520
Speaker 4: famous team when he was a boy, and his dream

438
00:24:58,600 --> 00:25:01,920
Speaker 4: came true in twenty fifteen when a friend showed him

439
00:25:01,920 --> 00:25:05,360
Speaker 4: a photo of a foal named Michigan Breeze and said

440
00:25:05,400 --> 00:25:09,320
Speaker 4: he could buy her for eleven hundred dollars. Marquisi says

441
00:25:09,480 --> 00:25:13,159
Speaker 4: it melted my heart. Breeze became the cornerstone of his

442
00:25:13,320 --> 00:25:16,800
Speaker 4: life until a hit and run accident last December took

443
00:25:16,840 --> 00:25:20,879
Speaker 4: her from him. What followed brought Marquesi to the Delaware

444
00:25:21,000 --> 00:25:25,800
Speaker 4: Chancery Court and Chief Judge Kathleen McCormick. The same judge

445
00:25:25,840 --> 00:25:29,879
Speaker 4: in court that Elon Musk and his online followers have

446
00:25:30,000 --> 00:25:33,320
Speaker 4: been attacking for nearly a year. Joining me is Jennifer

447
00:25:33,400 --> 00:25:37,679
Speaker 4: Ka Bloomberg Lost Senior correspondent. Jennifer tell us about the

448
00:25:37,800 --> 00:25:41,639
Speaker 4: history and relationship between Marquisi and Breeze.

449
00:25:42,119 --> 00:25:46,320
Speaker 3: So friend in Marquisi is a construction worker, lives in

450
00:25:46,359 --> 00:25:51,680
Speaker 3: a small Delaware town outside of Wilmington and its famous courthouses.

451
00:25:52,080 --> 00:25:55,000
Speaker 3: Is a pretty rural area for the most part, and

452
00:25:55,080 --> 00:25:59,040
Speaker 3: he has had this Clydesdale for about a decade. He

453
00:25:59,440 --> 00:26:02,040
Speaker 3: bought her when she was just a few months old.

454
00:26:02,359 --> 00:26:06,119
Speaker 3: She came with the name Michigan's Breeze, and you know,

455
00:26:06,200 --> 00:26:08,640
Speaker 3: for him, it was kind of love at first sight.

456
00:26:08,920 --> 00:26:11,840
Speaker 3: That first sight being a picture on a friend's cell

457
00:26:11,880 --> 00:26:14,399
Speaker 3: phone front of a friend was selling the horse, and

458
00:26:14,520 --> 00:26:18,320
Speaker 3: he had always wanted a Clydesdale ever since being the

459
00:26:18,400 --> 00:26:22,280
Speaker 3: Budweiser team when he was a kid. Brenton Marquisi has

460
00:26:22,320 --> 00:26:25,720
Speaker 3: not had, I think, the easiest life. He's definitely had

461
00:26:25,760 --> 00:26:30,840
Speaker 3: some losses and some difficult relationships, but the one steady

462
00:26:30,880 --> 00:26:34,280
Speaker 3: presence in his life was always this horse, Breeze, and

463
00:26:34,480 --> 00:26:36,680
Speaker 3: she turned out to be that way for a lot

464
00:26:36,720 --> 00:26:39,280
Speaker 3: of his friends as well. Some of them are military

465
00:26:39,359 --> 00:26:43,119
Speaker 3: veterans coming home with trauma that they need to process.

466
00:26:43,160 --> 00:26:48,080
Speaker 3: And instead of turning maybe to different substances, you know,

467
00:26:48,119 --> 00:26:51,439
Speaker 3: Marquisi knew that he could always turn to this horse

468
00:26:51,480 --> 00:26:54,320
Speaker 3: who always needed him to show up every day, and

469
00:26:54,400 --> 00:26:57,199
Speaker 3: so she became kind of an emotional support animal for

470
00:26:57,440 --> 00:27:01,399
Speaker 3: his social network. That she was always there, always happy

471
00:27:01,440 --> 00:27:04,719
Speaker 3: to see them, always needing them to show up, and

472
00:27:05,240 --> 00:27:08,800
Speaker 3: was just that kind of one steady presence. So he

473
00:27:09,080 --> 00:27:12,640
Speaker 3: and breathe. They had a routine of just going out

474
00:27:12,720 --> 00:27:17,160
Speaker 3: for a short ride after work every day. And in December,

475
00:27:17,200 --> 00:27:19,719
Speaker 3: it was a day like any other. They were riding

476
00:27:19,800 --> 00:27:23,400
Speaker 3: back to the barn where she lived in a kind

477
00:27:23,440 --> 00:27:26,359
Speaker 3: of a double stall because she's such a large horse,

478
00:27:26,840 --> 00:27:30,800
Speaker 3: and unfortunately, that's when a driver came up behind them,

479
00:27:31,200 --> 00:27:35,080
Speaker 3: going really fast and clips her in the hind legs

480
00:27:35,160 --> 00:27:37,960
Speaker 3: just as she was moving, you know, off the road

481
00:27:38,119 --> 00:27:41,960
Speaker 3: into the shoulder of the road, and the driver briefly stopped,

482
00:27:42,080 --> 00:27:45,800
Speaker 3: Ben just kept right on going, and unfortunately, no one

483
00:27:45,960 --> 00:27:48,520
Speaker 3: got to look at the car or the license plate,

484
00:27:48,960 --> 00:27:53,720
Speaker 3: and mister Marquisi was injured. Amazingly, he walked away without

485
00:27:53,760 --> 00:27:56,800
Speaker 3: any broken bones, but he was injured at the scene,

486
00:27:56,840 --> 00:27:59,520
Speaker 3: and the paramedics wanted him to go to the hospital.

487
00:28:00,040 --> 00:28:02,320
Speaker 3: He was near the barn where the horse lived, so

488
00:28:02,400 --> 00:28:05,920
Speaker 3: the barn's owner came out and was waiting for a

489
00:28:06,000 --> 00:28:09,119
Speaker 3: veterinarian to come and take a look at the horse.

490
00:28:09,760 --> 00:28:14,280
Speaker 3: And mister Marquisi knew it was pretty bad, you know,

491
00:28:14,320 --> 00:28:18,440
Speaker 3: with the horse breaks its leg, that's usually a fatal injury.

492
00:28:18,880 --> 00:28:21,040
Speaker 3: He knew it was bad, but he also knew that

493
00:28:21,119 --> 00:28:23,560
Speaker 3: everybody who was at the scene knew how much he

494
00:28:23,640 --> 00:28:26,600
Speaker 3: loved this horse and that he wouldn't want her just

495
00:28:26,720 --> 00:28:29,520
Speaker 3: taken away and forgotten that he would want to honor her,

496
00:28:29,640 --> 00:28:32,800
Speaker 3: that he'd always said that he would plan to cremate

497
00:28:32,920 --> 00:28:36,000
Speaker 3: any of his pets or animals, and so when he

498
00:28:36,040 --> 00:28:38,000
Speaker 3: left in an ambulance, he kind of left her in

499
00:28:38,040 --> 00:28:41,000
Speaker 3: the care of the small number of people at the scene,

500
00:28:41,200 --> 00:28:44,840
Speaker 3: and unfortunately, somewhere between the accident and the hospital, he

501
00:28:44,960 --> 00:28:47,760
Speaker 3: lost track of his phone. He wasn't able to get,

502
00:28:47,960 --> 00:28:50,400
Speaker 3: you know, clear word on what had happened to the horse,

503
00:28:50,560 --> 00:28:53,160
Speaker 3: So it was pretty much twenty four hours later before

504
00:28:53,280 --> 00:28:57,480
Speaker 3: he really got the messages that unfortunately the horse had

505
00:28:57,560 --> 00:29:01,000
Speaker 3: to be put down there at the scene and then

506
00:29:01,280 --> 00:29:04,960
Speaker 3: someone at the scene gave the okay for the horse

507
00:29:05,000 --> 00:29:07,760
Speaker 3: to be transported to a landfill, and that was the

508
00:29:07,760 --> 00:29:09,600
Speaker 3: one thing that he really didn't want to do with

509
00:29:09,640 --> 00:29:10,160
Speaker 3: his animal.

510
00:29:10,560 --> 00:29:14,360
Speaker 4: And when the landfill refused to let Marquisi enter to

511
00:29:14,480 --> 00:29:18,080
Speaker 4: get Breeze's remains, he turned to his only hope, which

512
00:29:18,240 --> 00:29:21,600
Speaker 4: was the Delaware Chancery Court, which was in the spotlight

513
00:29:21,680 --> 00:29:22,200
Speaker 4: at the time.

514
00:29:23,000 --> 00:29:25,680
Speaker 3: Chancery Court has become famous, I think as the place

515
00:29:25,840 --> 00:29:28,680
Speaker 3: that Elon Musk loves to hate, because this is the

516
00:29:28,720 --> 00:29:31,240
Speaker 3: court that made him by Twitter in the first place.

517
00:29:31,760 --> 00:29:34,960
Speaker 3: Is the court where the same judge has said no

518
00:29:35,880 --> 00:29:39,680
Speaker 3: your pay package at Tesla for fifty six billion dollars

519
00:29:39,840 --> 00:29:42,800
Speaker 3: that wasn't past reclation. There were too many conflicts of

520
00:29:42,800 --> 00:29:45,640
Speaker 3: interest on the board. You can't have that. He's been

521
00:29:45,760 --> 00:29:51,520
Speaker 3: using those rulings as a means of attacking the Court

522
00:29:51,960 --> 00:29:56,640
Speaker 3: of questioning basically the bedrock of corporate loss for Corporate

523
00:29:56,640 --> 00:29:59,480
Speaker 3: America for the Fortune five hundred. You know, all of

524
00:29:59,480 --> 00:30:03,760
Speaker 3: his criticis has led now to new corporate law amendments

525
00:30:03,800 --> 00:30:07,000
Speaker 3: being proposed in the Delawares legislature. There's a lot of

526
00:30:07,040 --> 00:30:09,760
Speaker 3: criticism directed at the court that this is not how

527
00:30:10,080 --> 00:30:12,920
Speaker 3: judges are supposed to act, and some of that criticism

528
00:30:13,000 --> 00:30:16,320
Speaker 3: is coming from people who just really aren't regular to

529
00:30:16,360 --> 00:30:20,120
Speaker 3: the corporate law world. So this court is really the

530
00:30:20,200 --> 00:30:24,240
Speaker 3: home for any legal question involving the fortune five hundred

531
00:30:24,360 --> 00:30:28,200
Speaker 3: because all the judges are business law experts, including Chancellor

532
00:30:28,280 --> 00:30:31,959
Speaker 3: Kathleen McCormick, who has overseen the Elon Musk cases. But

533
00:30:32,000 --> 00:30:36,280
Speaker 3: it's also this very traditional court where anyone who is

534
00:30:36,360 --> 00:30:40,160
Speaker 3: looking for some kind of remedy that doesn't involve money,

535
00:30:40,560 --> 00:30:43,000
Speaker 3: Like if you have a property dispute and money isn't

536
00:30:43,040 --> 00:30:45,400
Speaker 3: really going to solve the problem for you, you go

537
00:30:45,480 --> 00:30:47,960
Speaker 3: to chancery court. If you have a will that you

538
00:30:48,000 --> 00:30:50,280
Speaker 3: need to contest, or in a state that's sort of

539
00:30:50,400 --> 00:30:53,360
Speaker 3: in question, you go to chancery court. So all of

540
00:30:53,360 --> 00:30:55,960
Speaker 3: these judges also from time to time have to take

541
00:30:56,000 --> 00:31:00,400
Speaker 3: on these so called smaller cases that don't really eyes

542
00:31:00,520 --> 00:31:03,760
Speaker 3: to the headlines that you see with Elon Musk. It's

543
00:31:03,800 --> 00:31:08,000
Speaker 3: a very old fashioned kind of court in that sense.

544
00:31:08,120 --> 00:31:10,960
Speaker 3: Most states don't have a court like this. They just

545
00:31:11,080 --> 00:31:13,720
Speaker 3: kind of go through civil court regardless of what the

546
00:31:13,840 --> 00:31:16,520
Speaker 3: question is. But in Delaware there are really two civil

547
00:31:16,600 --> 00:31:19,320
Speaker 3: courts and chancery court. Is the one where you go

548
00:31:19,360 --> 00:31:22,280
Speaker 3: when money isn't really going to solve the problem for you.

549
00:31:22,520 --> 00:31:25,560
Speaker 3: And in this case, what mister Marquise he wanted wasn't

550
00:31:25,640 --> 00:31:28,640
Speaker 3: money for his course. He just really wanted the horseback.

551
00:31:29,320 --> 00:31:33,360
Speaker 4: So on the afternoon of Christmas Eve, Marquis's lawyer, who

552
00:31:33,440 --> 00:31:36,680
Speaker 4: was representing him pro bono, got a call from the

553
00:31:36,760 --> 00:31:38,040
Speaker 4: Chancery Court.

554
00:31:38,720 --> 00:31:43,520
Speaker 3: So this crash happened basically late in the week before Christmas,

555
00:31:43,560 --> 00:31:46,000
Speaker 3: and it was I believe December twenty third when the

556
00:31:46,000 --> 00:31:51,440
Speaker 3: petition was filed, and the attorney, Angelica Mamani, she didn't

557
00:31:51,480 --> 00:31:53,600
Speaker 3: think anybody at the court was actually going to see

558
00:31:53,600 --> 00:31:56,360
Speaker 3: it until after Christmas because it was so close to

559
00:31:56,400 --> 00:31:59,720
Speaker 3: the holiday and things tend to shut down for holidays.

560
00:32:00,160 --> 00:32:03,280
Speaker 3: She got word in the afternoon on Christmas Eve that

561
00:32:03,440 --> 00:32:07,560
Speaker 3: Chancellor McCormick have a position and wanted to hold a

562
00:32:07,640 --> 00:32:11,360
Speaker 3: zoom meeting that night to try to see what she

563
00:32:11,440 --> 00:32:14,600
Speaker 3: could do to resolve the question because there was this

564
00:32:14,880 --> 00:32:15,880
Speaker 3: urgency behind it.

565
00:32:16,280 --> 00:32:18,480
Speaker 4: So what was the question before the judge?

566
00:32:18,880 --> 00:32:22,040
Speaker 3: All Breton mccusey wanted was to reclaim the remains of

567
00:32:22,080 --> 00:32:25,200
Speaker 3: his horse so that he could have her cremated and

568
00:32:25,320 --> 00:32:28,760
Speaker 3: he could celebrate her life with some dignity. He didn't

569
00:32:28,760 --> 00:32:31,400
Speaker 3: want to just leave her remains dumped in the landfill,

570
00:32:31,640 --> 00:32:35,400
Speaker 3: because he had seen other horse owners who really mistreated

571
00:32:35,440 --> 00:32:38,440
Speaker 3: their horses, their animals, you know, just ended up dumped,

572
00:32:38,680 --> 00:32:42,680
Speaker 3: uncared for, unloved, and Breeze wasn't unloved. What he wanted

573
00:32:42,840 --> 00:32:45,920
Speaker 3: was a court order go in and retrieved the horse's

574
00:32:46,000 --> 00:32:48,400
Speaker 3: remained so that he could take it and cremate it.

575
00:32:48,640 --> 00:32:52,040
Speaker 3: The state agency that runs the landfill, however, said, look,

576
00:32:52,160 --> 00:32:55,600
Speaker 3: we understand these issue. We're not, you know, trying to

577
00:32:55,720 --> 00:32:59,479
Speaker 3: keep mister Murkuisi from grieving his horse, but we we

578
00:32:59,520 --> 00:33:03,800
Speaker 3: can't allow allow people in because landfills just aren't meant

579
00:33:04,200 --> 00:33:07,320
Speaker 3: for this purpose. When something is in, we're not going

580
00:33:07,360 --> 00:33:10,120
Speaker 3: to go in and try to disturb the infrastructure. We

581
00:33:10,160 --> 00:33:13,880
Speaker 3: don't want to release any toxic gases or other hazardous

582
00:33:13,920 --> 00:33:17,320
Speaker 3: material out where it might harm public safety. So these

583
00:33:17,320 --> 00:33:21,440
Speaker 3: are the questions that Chancellor McCormick suddenly had to consider

584
00:33:21,560 --> 00:33:22,520
Speaker 3: on Christmas Eve.

585
00:33:22,680 --> 00:33:25,400
Speaker 4: And so how did she weigh the equities.

586
00:33:25,920 --> 00:33:29,840
Speaker 3: Chancellor McCormick said that this case was presenting new questions

587
00:33:29,840 --> 00:33:33,120
Speaker 3: for her that she had never had to consider in

588
00:33:33,200 --> 00:33:36,360
Speaker 3: all of her experience in corporate law, and as a

589
00:33:36,480 --> 00:33:38,600
Speaker 3: judge at the chancery court, you know, first of all,

590
00:33:38,640 --> 00:33:42,360
Speaker 3: has this ever happened? And has anyone been able to

591
00:33:42,640 --> 00:33:46,040
Speaker 3: go into a landfill to retrieve something that was wrongly

592
00:33:46,080 --> 00:33:49,719
Speaker 3: placed there? And then how was she supposed to balance

593
00:33:49,760 --> 00:33:53,280
Speaker 3: public safety with the rights of this person whose property

594
00:33:53,400 --> 00:33:56,840
Speaker 3: was taken without their consent? And so she said, this

595
00:33:56,960 --> 00:33:59,680
Speaker 3: was just a really really hard question, that there was

596
00:33:59,720 --> 00:34:03,600
Speaker 3: no out that mister Marquisi loved his horse and wanted

597
00:34:03,640 --> 00:34:06,160
Speaker 3: to do right by her and really just had a

598
00:34:06,200 --> 00:34:09,200
Speaker 3: simple request. He didn't want anything else out of a landfill.

599
00:34:09,320 --> 00:34:12,160
Speaker 3: He just wanted his property. But she had to acknowledge

600
00:34:12,200 --> 00:34:16,840
Speaker 3: that landfills are really delicate things, and you know, balancing

601
00:34:16,880 --> 00:34:21,480
Speaker 3: the equities required her to compare the relative importance of

602
00:34:21,920 --> 00:34:25,719
Speaker 3: the public safety and a landfills infrastructure with you know,

603
00:34:25,800 --> 00:34:30,480
Speaker 3: the dignity of this horse that was wrongly interred there. Ultimately,

604
00:34:30,520 --> 00:34:33,480
Speaker 3: she decided that the risks to public safety and public

605
00:34:33,520 --> 00:34:36,680
Speaker 3: health were too high to allow him to go into

606
00:34:36,760 --> 00:34:40,200
Speaker 3: the landfill. The state argued during one of the hearings

607
00:34:40,239 --> 00:34:43,520
Speaker 3: before her that really no one had ever been allowed

608
00:34:43,600 --> 00:34:47,120
Speaker 3: to go into a landfill and search for something except

609
00:34:47,200 --> 00:34:50,280
Speaker 3: for a murder case about thirty years ago, a famous

610
00:34:50,360 --> 00:34:53,720
Speaker 3: murder case involving an ubernatorial aid named Anne Marie Fahey.

611
00:34:54,080 --> 00:34:57,000
Speaker 4: And how did Marquisi feel the judge treated him and

612
00:34:57,560 --> 00:34:59,120
Speaker 4: handle the case for.

613
00:34:59,160 --> 00:35:02,879
Speaker 3: These interactions the Chancellor McCormick, he met with her over

614
00:35:03,000 --> 00:35:06,440
Speaker 3: Zoom and she really let him talk at great length

615
00:35:06,680 --> 00:35:09,759
Speaker 3: about his relationship with his horse and why he was

616
00:35:09,840 --> 00:35:13,359
Speaker 3: so adamant about retrieving her remains. He said, look, I

617
00:35:13,480 --> 00:35:15,560
Speaker 3: didn't get what I wanted, but I know that I

618
00:35:15,640 --> 00:35:18,560
Speaker 3: was heard, and she let me talk, and she listened

619
00:35:18,600 --> 00:35:21,520
Speaker 3: to me and responded to what I was saying, not

620
00:35:22,040 --> 00:35:25,239
Speaker 3: what she wanted to hear. And that he could at

621
00:35:25,280 --> 00:35:28,640
Speaker 3: least walk away from the experience knowing that she treated

622
00:35:28,719 --> 00:35:32,640
Speaker 3: him compassionately even if she couldn't give him what he

623
00:35:32,760 --> 00:35:34,560
Speaker 3: thought he should have gotten out of this.

624
00:35:34,960 --> 00:35:37,800
Speaker 4: And how did lawyers in Delaware feel about this opinion?

625
00:35:38,400 --> 00:35:41,960
Speaker 3: You know, it's really interesting. This opinion came out right

626
00:35:42,000 --> 00:35:45,839
Speaker 3: after New Year's kind of in between two big rulings

627
00:35:45,880 --> 00:35:49,000
Speaker 3: involving Elon Musk and Tesla. And I think when this

628
00:35:49,080 --> 00:35:52,200
Speaker 3: one posted and it had Chancellor McCormick's name on it,

629
00:35:52,680 --> 00:35:56,960
Speaker 3: and they actually read it and saw how torn she

630
00:35:57,160 --> 00:36:00,120
Speaker 3: was in making this decision against the horse's own own

631
00:36:00,920 --> 00:36:04,280
Speaker 3: They were really struck by how she took the time

632
00:36:04,560 --> 00:36:08,080
Speaker 3: when she's under fire from the world's richest man and

633
00:36:08,239 --> 00:36:11,200
Speaker 3: all of his fans who have been warming the court

634
00:36:11,280 --> 00:36:14,319
Speaker 3: with online criticism, that she would take the time to

635
00:36:14,560 --> 00:36:17,960
Speaker 3: listen to this one man about his horse that he

636
00:36:18,040 --> 00:36:20,839
Speaker 3: can't get back out of a landfill. That really struck

637
00:36:21,040 --> 00:36:23,920
Speaker 3: people as such shows how special this court is, that

638
00:36:24,000 --> 00:36:27,200
Speaker 3: it's not only set up to weigh these kinds of

639
00:36:27,320 --> 00:36:31,080
Speaker 3: questions as though they are the most important questions prip

640
00:36:31,239 --> 00:36:34,840
Speaker 3: before a corporate board or a billionaire. She was able

641
00:36:34,840 --> 00:36:39,359
Speaker 3: to turn around this opinion really quickly, and she kind

642
00:36:39,360 --> 00:36:42,880
Speaker 3: of let everybody walk away feeling like they were heard,

643
00:36:43,440 --> 00:36:45,920
Speaker 3: even if they couldn't get exactly what they wanted. No

644
00:36:46,000 --> 00:36:49,239
Speaker 3: one felt like they were disadvantage or that she was

645
00:36:49,320 --> 00:36:51,520
Speaker 3: biased against them or anything like that.

646
00:36:51,800 --> 00:36:54,160
Speaker 4: This is a great story, Jennifer, about how the Delaware

647
00:36:54,239 --> 00:36:57,359
Speaker 4: chance record has these two very different sides to it.

648
00:36:57,520 --> 00:37:01,520
Speaker 4: That's Bloomberg Law Senior Correspondent Jennifer K. And that's it

649
00:37:01,600 --> 00:37:04,160
Speaker 4: for this edition of The Bloomberg Law Show. Remember you

650
00:37:04,200 --> 00:37:06,680
Speaker 4: can always get the latest legal news on our Bloomberg

651
00:37:06,760 --> 00:37:10,400
Speaker 4: Law podcasts. You can find them on Apple Podcasts, Spotify,

652
00:37:10,560 --> 00:37:15,600
Speaker 4: and at www dot bloomberg dot com, slash podcast slash Law,

653
00:37:16,000 --> 00:37:18,600
Speaker 4: and remember to tune into The Bloomberg Law Show every

654
00:37:18,640 --> 00:37:22,560
Speaker 4: weeknight at ten pm Wall Street Time. I'm June Grosso

655
00:37:22,680 --> 00:37:24,279
Speaker 4: and you're listening to Bloomberg