WEBVTT - Texas Ruling Shows Roe v. Wade in Jeopardy 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.440 --> 0:00:14.400 Abortion rights advocates say the Supreme Court effectively blessed Texas's 0:00:14.480 --> 0:00:17.759 ban on abortion, the strictest in the nation, with a 0:00:17.920 --> 0:00:21.680 narrow ruling that left the law in force. The decision 0:00:21.760 --> 0:00:24.959 said clinics and doctors could press claims in a federal 0:00:25.040 --> 0:00:28.479 trial court against a handful of state officials, but not 0:00:28.720 --> 0:00:31.800 others named in the lawsuit. The ruling could be a 0:00:31.840 --> 0:00:35.479 bad sign for abortion rights advocates as they wait word 0:00:35.560 --> 0:00:38.640 on the fate of Roe v. Wade, the landmark ruling 0:00:38.640 --> 0:00:42.920 that legalized abortion in this country. My guest is Elizabeth Stepper, 0:00:43.159 --> 0:00:46.320 a professor at the University of Texas Law School, tell 0:00:46.440 --> 0:00:50.519 us what the Supreme Court decided. The Supreme Court issued 0:00:50.960 --> 0:00:55.720 a very narrow win for abortion providers. That's really more 0:00:55.760 --> 0:00:59.040 of a loss in practice. So the Supreme Court held 0:00:59.080 --> 0:01:02.720 that the abortion provide riders could proceed in their lawsuits 0:01:02.760 --> 0:01:07.520 only against state licensing authorities, so the sort of medical boards, 0:01:07.600 --> 0:01:12.319 nursing boards that discipline doctors and nurses. But the court 0:01:12.400 --> 0:01:16.200 said that the abortion providers can't pursue their lawsuit against 0:01:16.440 --> 0:01:20.679 court clerks or state court judges or the Attorney General 0:01:20.880 --> 0:01:24.039 of the State of Texas. In practice, what this means 0:01:24.200 --> 0:01:27.120 is that the abortion providers will go back to federal 0:01:27.120 --> 0:01:30.360 district Court in the state of Texas to litigate against 0:01:30.400 --> 0:01:34.560 the licensing authorities. It means though that sp eight remains 0:01:34.600 --> 0:01:37.600 an effect, it also means that the abortion providers are 0:01:37.640 --> 0:01:40.880 going to have a hard time getting the relief that 0:01:40.920 --> 0:01:45.479 they really need to resume their procedures because even if 0:01:45.480 --> 0:01:49.280 they win in junctions against the licensing authorities and the 0:01:49.320 --> 0:01:53.480 district court concludes that sp A is unconstitutional, that injunction 0:01:53.560 --> 0:01:57.160 isn't going to apply against the court clerks, and the 0:01:57.200 --> 0:02:00.720 court clerks are really essential because the argument us they 0:02:00.800 --> 0:02:04.840 could stop SBA lawsuits from going forward, they would just 0:02:04.920 --> 0:02:10.440 be enjoined blocked, that is, from docketing complaints by private 0:02:10.480 --> 0:02:13.680 citizens that can be filed under the Texas law. So 0:02:13.760 --> 0:02:16.440 because they don't have that, abortion providers really are facing 0:02:16.440 --> 0:02:20.000 a laws they can't start up serving patients again, at 0:02:20.040 --> 0:02:22.760 least at this point. Do you think the court was 0:02:22.840 --> 0:02:25.360 just trying to find a way to allow the case 0:02:25.440 --> 0:02:30.639 to continue to try to quiet the public fewer around it. 0:02:31.240 --> 0:02:35.440 If so, it was very strange, right, Um, It's sort 0:02:35.440 --> 0:02:40.160 of baffling what happened at the Court over the past months, 0:02:40.200 --> 0:02:44.400 because the Supreme Court had SBA before it at the 0:02:44.600 --> 0:02:48.320 end of August, had the opportunity to stop SB eight 0:02:48.440 --> 0:02:51.440 from going into effect, when it failed to do so, 0:02:51.600 --> 0:02:55.000 and frankly surprised a lot of people and failing to 0:02:55.080 --> 0:02:57.960 block the law before it went into effect, given that 0:02:58.080 --> 0:03:02.320 it's straightforwardly uncons institutional to have a six week ban 0:03:02.600 --> 0:03:05.800 under the Court's presidents, that was shocking. So when the 0:03:05.840 --> 0:03:10.359 Court then took up the issue of SPID again, that 0:03:10.520 --> 0:03:14.400 seemed to suggest that the Court was responding to public 0:03:14.480 --> 0:03:17.880 pressure and was going to act differently, if only to 0:03:18.000 --> 0:03:22.760 preserve the authority of federal courts to decide constitutional questions. 0:03:23.120 --> 0:03:27.079 But that's not really what happened. Then last week when 0:03:27.080 --> 0:03:30.520 we got a ruling again from the Court, because the 0:03:30.560 --> 0:03:34.920 Court didn't say that federal courts have the power to 0:03:35.320 --> 0:03:40.800 substantively block these state court clerks from docketing the petition, 0:03:40.880 --> 0:03:44.360 and it's sort of weak relief for the abortion providers 0:03:44.400 --> 0:03:47.880 that they might get an injunction against the licensing authorities, 0:03:47.920 --> 0:03:51.360 because really the licensing authority power is a power to 0:03:51.480 --> 0:03:56.840 discipline after the providers have been sued and after a 0:03:56.960 --> 0:04:01.320 judgment has been issued under spiate in favor of private plaintiffs. 0:04:01.320 --> 0:04:04.400 So it's not super helpful to the providers. It doesn't 0:04:05.000 --> 0:04:09.520 lift the status in Texas, which is that abortion is 0:04:09.560 --> 0:04:13.600 effectively blocked and we don't have our constitutional right to 0:04:13.640 --> 0:04:18.560 abortion in place. Justice Neil Gorst wrote the majority opinion, 0:04:19.040 --> 0:04:23.240 explain his reasoning. So it was an eight one decision, 0:04:23.520 --> 0:04:28.440 but it doesn't really reflect unanimity of the court justice course, 0:04:28.480 --> 0:04:31.480 which had to go through a number of the defendants 0:04:31.640 --> 0:04:36.200 named by the abortion providers. So he said that the 0:04:36.279 --> 0:04:42.360 judges and court clerks have sovereign immunity, so they're immunized 0:04:42.760 --> 0:04:48.440 due to concerns about federalism. So federal courts are limited 0:04:48.480 --> 0:04:53.680 in their ability to tell state actor, especially state court systems, 0:04:53.760 --> 0:04:57.240 what to do, how to approach litigation, and so his 0:04:57.360 --> 0:05:01.799 argument was that these actors have immunity under a doctor 0:05:01.960 --> 0:05:05.320 known as ex parte young. He also said there wasn't 0:05:05.320 --> 0:05:09.840 a real case in controversy because the judges and the 0:05:09.839 --> 0:05:13.680 court clerks are not oppositional to the abortion providers the 0:05:13.760 --> 0:05:17.240 way your average defendant would be. He then said that 0:05:17.480 --> 0:05:21.120 Attorney General Paxton was not a proper defendant. Here, the 0:05:21.160 --> 0:05:25.440 abortion providers had argued that essentially the Attorney General had 0:05:25.760 --> 0:05:30.960 delegated authority, had empowered private citizens around the country to 0:05:31.120 --> 0:05:35.240 act as his agents in the enforcement of this statute. 0:05:35.520 --> 0:05:39.080 But here too, Justice Corsets said the abortion providers had 0:05:39.200 --> 0:05:42.800 not identified a proper defendant, that the Attorney General doesn't 0:05:42.839 --> 0:05:45.919 have the power to force sp A to all that 0:05:46.040 --> 0:05:49.960 was left where the licensing authorities, and they're Justice Gorsuch said, 0:05:50.000 --> 0:05:52.520 you know what, there is evidence in the way that 0:05:52.600 --> 0:05:57.080 the statutory structure worked that the licensing authorities could ultimately 0:05:57.200 --> 0:06:00.240 enforce sp A. The problem with that reason in thing 0:06:00.560 --> 0:06:03.040 is that we could see the State of Texas go 0:06:03.120 --> 0:06:06.360 back to the drawing board, make clear that the licensing 0:06:06.440 --> 0:06:10.640 authorities don't have any power to enforce SB eight, and 0:06:10.680 --> 0:06:13.359 then there's no defendant left at all, no one for 0:06:13.400 --> 0:06:16.320 the abortion providers to sue. And I expect we will 0:06:16.360 --> 0:06:19.719 see that model in other states that are thinking about 0:06:19.800 --> 0:06:24.200 copycat SBA abortion laws. It was an eight to one vote, 0:06:24.279 --> 0:06:28.960 but there is a blistering descent by the liberals. Justice 0:06:28.960 --> 0:06:31.840 Sonia Sotomayor wrote the court should have put an end 0:06:31.880 --> 0:06:35.360 to this madness months ago, before s b A first 0:06:35.400 --> 0:06:39.359 went into effect. So Justice Spread of Mayor on the 0:06:39.400 --> 0:06:43.840 issue of state immunity pointed to the fact that ex 0:06:43.920 --> 0:06:48.839 per Day Young contains an important principle, and that principle 0:06:49.040 --> 0:06:55.000 is that states can't create an end run around the Constitution. 0:06:55.480 --> 0:06:59.719 They can't create a system that doesn't allow federal court 0:07:00.040 --> 0:07:03.520 oversight of federal rights. So even though there's a language 0:07:03.520 --> 0:07:07.200 and export a Young that suggests that normally state court 0:07:07.279 --> 0:07:11.240 judges can't be sued, um that the Supreme Court here 0:07:11.360 --> 0:07:15.560 should have allowed state court clerk to be sued and 0:07:15.560 --> 0:07:19.360 should have done so on the basis that otherwise Texas 0:07:19.440 --> 0:07:25.160 has purposely created a statute that avoids the federal courts 0:07:25.240 --> 0:07:31.120 and allows end run around individuals constitutional rights. What happens 0:07:31.120 --> 0:07:35.440 now in Texas courts, So there's still so much going on. 0:07:35.720 --> 0:07:39.280 So the abortion providers returned to federal courts, and in 0:07:39.360 --> 0:07:44.520 the district court there is litigation in Texas involving fourteen 0:07:44.640 --> 0:07:49.600 cases that were consolidated and where the Texas Judge judge 0:07:49.640 --> 0:07:53.360 people just last week did conclude that a number of 0:07:53.360 --> 0:07:58.720 the provisions were unconstitutional as a matter of the Texas constitutions. 0:07:58.760 --> 0:08:02.200 This was a decision, as he said, was about civil procedure, 0:08:02.360 --> 0:08:05.080 not abortion. So he made a number of rulings in 0:08:05.120 --> 0:08:09.760 those fourteen cases on the issue of standing and the 0:08:09.760 --> 0:08:14.600 statutory damages award, and also where the proceedings can be filed. 0:08:15.240 --> 0:08:19.040 He did not issue an injunction, but we can expect 0:08:19.040 --> 0:08:21.760 that when the providers go back to the various courts 0:08:21.800 --> 0:08:25.000 in which these fourteen cases have been filed, that some 0:08:25.840 --> 0:08:30.280 injunctions will issue again. The problem is that sp eight 0:08:30.600 --> 0:08:35.720 has constructed a regime that doesn't really allow for finality. 0:08:35.880 --> 0:08:39.440 And finality is an important due process rule of law 0:08:39.559 --> 0:08:44.559 value that means you can't keep being food you don't 0:08:44.679 --> 0:08:49.079 have the specter of a future lawsuit hanging over you 0:08:49.200 --> 0:08:53.160 after you win. But SPA creates that exact system, so 0:08:54.120 --> 0:08:56.800 it says things like that there's not going to be 0:08:56.840 --> 0:08:59.959 issue our claim preclusion, so once he's litigated a claim, 0:09:00.080 --> 0:09:04.920 me litigated an issue, it's then not final for later lawsuits. 0:09:04.960 --> 0:09:08.240 It also says that even if you win, if your 0:09:08.280 --> 0:09:12.600 win is ultimately overturned on appeal, you're going to be 0:09:12.679 --> 0:09:17.360 held liable for the abortions provided in the interim. So 0:09:17.400 --> 0:09:20.559 it is possible that we will see some abortion providers 0:09:20.600 --> 0:09:25.520 based on judge People's decision in the Texas courts, and 0:09:25.559 --> 0:09:28.920 the and the subsequent decisions in Texas Court begin to 0:09:29.040 --> 0:09:32.400 perform abortions again, but they will only do so with 0:09:32.600 --> 0:09:39.280 a real cloud of possible potential future litigation hanging over them. 0:09:39.320 --> 0:09:43.560 Everyone is looking towards the Mississippi case. Does this in 0:09:43.640 --> 0:09:46.480 any way indicate what the Court will do in the 0:09:46.520 --> 0:09:51.800 Mississippi case that it will overturn Roe v. Wade. I 0:09:51.840 --> 0:09:55.560 would read the Mississippi case uh one where the outcome 0:09:55.640 --> 0:09:59.120 is fairly predictable, um that Mississippi is going to win. 0:09:59.760 --> 0:10:03.680 I'm not sure the degree to which the SB eight 0:10:03.760 --> 0:10:08.600 opinion tells us anything we didn't already know. Maybe what 0:10:08.760 --> 0:10:12.920 it suggests is that the Conservatives are going to act 0:10:13.080 --> 0:10:16.360 as a block. And I think you know, after the 0:10:16.520 --> 0:10:20.120 oral argument in the Mississippi case, there continued to be 0:10:20.160 --> 0:10:24.079 a lot of discussion over whether Chief Justice Roberts could 0:10:24.120 --> 0:10:29.600 convince other conservative justices to adopt something that looks slightly 0:10:29.720 --> 0:10:32.840 more moderate. It would not be moderate, but slightly more 0:10:32.960 --> 0:10:37.959 moderate or sneaky than saying the words we overrule Roe v. 0:10:38.120 --> 0:10:41.800 Waves I would say that s the eight opinion maybe 0:10:41.840 --> 0:10:45.800 suggests that he has really lost controls of the court, 0:10:46.160 --> 0:10:49.480 that it's no longer the Roberts Court, it might be 0:10:49.679 --> 0:10:52.640 the Barratt Court, it might be the kavanaughh Court, it 0:10:52.720 --> 0:10:55.520 might be the Gorsage Court. And it doesn't look like 0:10:55.640 --> 0:11:00.240 he's going to be able to push conservative justices to 0:11:00.400 --> 0:11:03.440 at least, through a sleight of hand, pretend that they're 0:11:03.520 --> 0:11:08.760 less conservative than they've seen. And without any explanation, the 0:11:08.800 --> 0:11:13.000 Supreme Court turned away the Justice departments bid to block 0:11:13.280 --> 0:11:18.200 the Texas law. What do you make of that? Right? So, 0:11:18.480 --> 0:11:23.280 the Justice Apartment Department had actually um sued and received 0:11:23.520 --> 0:11:26.200 relief on the merits, but district court had ruled that 0:11:26.400 --> 0:11:31.000 s P eight was unconstitutional under Supreme Court doctrine UM. 0:11:31.080 --> 0:11:33.160 And then the Keiths went up to the Fifth Circuit, 0:11:33.320 --> 0:11:39.400 which lifted UH, stayed the injunction um, and blocked abortions 0:11:39.480 --> 0:11:42.880 yet again. They briefly were being performed for about a 0:11:42.880 --> 0:11:46.680 thirty six hour period UM, and the Justice Department went 0:11:46.720 --> 0:11:50.440 to the Supreme Court, which is now UH dismissed the 0:11:50.440 --> 0:11:54.800 petition as improvidently granted, which is a Supreme Court way 0:11:54.840 --> 0:11:57.880 of saying, oops, we should not have granted this petition. 0:11:58.320 --> 0:12:00.960 Let's send it back to the Fifth ar gut for 0:12:01.200 --> 0:12:04.840 oral argument and decision on the merits. So the Justice 0:12:04.840 --> 0:12:08.840 Department is now in the fifth circuit um and we'll 0:12:08.880 --> 0:12:12.920 see when the Court is willing to hear arguments in 0:12:13.000 --> 0:12:16.760 that matter. I would suspect sometime early in the new year. 0:12:17.360 --> 0:12:19.559 Was it was that just a Supreme Court kicking the 0:12:19.640 --> 0:12:23.160 can down the road for a bit. So it was, 0:12:24.000 --> 0:12:28.120 you know, after oral argument on s B A, folks 0:12:28.280 --> 0:12:31.600 predicted that the abortion providers would win. And because the 0:12:31.640 --> 0:12:37.160 abortion providers won and would be able to speak full relief, 0:12:37.960 --> 0:12:40.640 it made less sense for the Department of Justice to 0:12:40.679 --> 0:12:45.160 pursue a lawsuit because there were individuals who could assert 0:12:45.800 --> 0:12:50.160 the Constitution against this law. But the Supreme Court didn't 0:12:50.160 --> 0:12:54.360 really give abortion providers a win. Right. There's still no 0:12:55.480 --> 0:12:59.680 person who can globally challenge s B eight in the 0:12:59.679 --> 0:13:02.600 federal all courts. So that actually should have put more 0:13:02.720 --> 0:13:06.959 pressure on siding with the United States at the Supreme Court. 0:13:07.080 --> 0:13:09.400 But it's exactly the opposite of what the Court did. 0:13:09.640 --> 0:13:12.959 It really did kick the can down the road, maybe 0:13:13.000 --> 0:13:17.120 with the idea that by the time the Justice Department 0:13:17.200 --> 0:13:20.439 suit comes back to it, it will have a viscerated 0:13:20.520 --> 0:13:25.160 the right to abortion in the Mississippi Gay Indscent Justice 0:13:25.240 --> 0:13:29.800 Sonia Soto Mayor said the ruling could reach beyond abortion 0:13:30.080 --> 0:13:35.400 to enact laws that nullify constitutional rights from abortion to guns, 0:13:35.440 --> 0:13:39.240 to religion. And that's exactly what the governor is trying 0:13:39.280 --> 0:13:45.080 to do in California with regard to guns. Yes and no, um, 0:13:45.120 --> 0:13:49.520 you know, to some extent, it's a political stunt. Um, 0:13:49.559 --> 0:13:55.040 it's a political stunt because the California law that the 0:13:55.120 --> 0:13:59.480 governor may or may not propose is one that doesn't 0:13:59.559 --> 0:14:05.040 actually infringe on constitutional rights. Right. So the idea is that, um, 0:14:05.120 --> 0:14:09.120 the law would allow one s fellow citizens to sue 0:14:09.120 --> 0:14:14.720 one for you know, providing ghost guns, providing assault weapons 0:14:14.800 --> 0:14:18.840 and manufacturing them, um, and so on owning them. But 0:14:18.960 --> 0:14:22.000 none if those are rights protected by the U. S. 0:14:22.040 --> 0:14:26.400 Constitution or any interpretation of the Supreme Court. The Supreme 0:14:26.480 --> 0:14:32.280 Court relatively recently determined that the Second Amendment, which creates 0:14:32.320 --> 0:14:36.440 a right to form militias, extends to gun ownership in 0:14:36.560 --> 0:14:39.520 one's home. But they were talking about handguns, and they 0:14:39.520 --> 0:14:43.160 were talking about in one's home. And courts of appeals 0:14:43.160 --> 0:14:47.360 that have dealt with issues of assault weapons or ghost 0:14:47.400 --> 0:14:51.920 guns have actually sided with the government held that there 0:14:52.040 --> 0:14:55.760 was no violation of constitutional rights. So in that sense, 0:14:55.800 --> 0:14:58.280 it's the dis analogy. We would have to see something 0:14:58.800 --> 0:15:02.720 um that got it with core of constitutional rights, which 0:15:02.760 --> 0:15:06.520 is possible. The Supreme Court has really handed both blue 0:15:06.560 --> 0:15:10.480 and red states a template for designing an espiate that 0:15:10.720 --> 0:15:14.680 applies the speech or guns or the takings clause. Thanks 0:15:14.680 --> 0:15:17.520 for being on the Bloomberg Last Show, Liz. That's Professor 0:15:17.560 --> 0:15:23.360 Elizabeth Supper of the University of Texas Law School. The 0:15:23.400 --> 0:15:26.000 House has voted to whole former White House Chief of 0:15:26.080 --> 0:15:29.960 Staff Mark Meadows in contempt of Congress after he stopped 0:15:30.000 --> 0:15:34.280 cooperating with the January six committee investigating the Capital Insurrection. 0:15:34.560 --> 0:15:37.360 Meadows is the first former White House Chief of Staff 0:15:37.600 --> 0:15:41.920 nearly fifty years to face prosecution. Here's Committee Chair Benny 0:15:42.040 --> 0:15:45.680 Thompson and Committee Vice Chair Liz Cheney. And when a 0:15:45.760 --> 0:15:50.479 witness defies the law, that amounts to more than obstruction 0:15:51.080 --> 0:15:54.760 our investigation. It's an attack on the rule of law. 0:15:56.440 --> 0:15:59.360 We wish that we did not have to meet today 0:16:00.240 --> 0:16:05.480 to urge our colleagues to vote vote criminal contempt for 0:16:05.560 --> 0:16:07.760 one of our former colleagues and the former chief of 0:16:07.800 --> 0:16:11.800 staff to President Trump. We don't take this step lightly, 0:16:12.520 --> 0:16:16.920 but Republicans denounced what they called overreached by the Democrats. 0:16:16.960 --> 0:16:21.120 Here's Representative Jim Banks. MR. Meadows agreed to sit for 0:16:21.160 --> 0:16:25.040 a deposition if it was limited to areas not protected 0:16:25.080 --> 0:16:29.600 by executive privilege. He tried to cooperate, but the Select 0:16:29.640 --> 0:16:34.600 Committee didn't care. The near party line two two to 0:16:34.720 --> 0:16:38.000 two hundred eight vote on Tuesday is the second time 0:16:38.040 --> 0:16:40.440 the Special Committee has sought to punish a witness for 0:16:40.560 --> 0:16:44.640 defying a subpoena. Former Trump adviser Steve Bannon has already 0:16:44.680 --> 0:16:48.200 been indicted for criminal contempt for refusing to testify to 0:16:48.240 --> 0:16:51.720 the panel, and he awaits trial in July. The question 0:16:51.760 --> 0:16:55.120 now is whether the Justice Department will decide to prosecute 0:16:55.160 --> 0:16:59.440 Meadows as it's prosecuting Bannon. Joining me is William Banks, 0:16:59.440 --> 0:17:03.560 a profess or at Syracuse University Law School. What's the 0:17:03.640 --> 0:17:07.400 import of the House voting to hold Meadows in contempt 0:17:07.440 --> 0:17:11.600 of Congress? Well, I think the Meadows case is similar 0:17:11.680 --> 0:17:15.399 to the Bannon matter and others that may be coming 0:17:15.440 --> 0:17:19.760 down the pike. With the continuing investigation. They authorized the 0:17:19.880 --> 0:17:24.280 Justice Department to proceed with prosecution. It's a referral, it's 0:17:24.320 --> 0:17:27.199 not a prosecution itself, and it is certainly not the 0:17:27.320 --> 0:17:29.760 end of the road. So, just as they did in 0:17:29.800 --> 0:17:32.600 the Bannon matter, the Department is going to have to 0:17:32.680 --> 0:17:37.320 consider whether to convene a grand jury to indict Meadows. 0:17:37.480 --> 0:17:40.280 The questions are a bit different with Meadows than they 0:17:40.280 --> 0:17:42.800 were with Bannon, because the Meadows, of course, with Chief 0:17:42.800 --> 0:17:46.080 of Staff, he had a close relationship with the President 0:17:46.119 --> 0:17:49.199 as an official matter. Bannon did not certainly did not 0:17:49.359 --> 0:17:53.400 at that time. So the questions about executive privilege will 0:17:53.440 --> 0:17:58.439 be a little more delicate and nuanced, I suppose in 0:17:58.680 --> 0:18:02.560 deciding to what extent Meadows might be privileged in the 0:18:02.640 --> 0:18:06.720 material that he wishes to withhold from the committees. As 0:18:06.760 --> 0:18:10.080 we know, he was cooperating up to a point, and 0:18:10.160 --> 0:18:12.840 some of the stuff that he turned over seemingly is 0:18:12.960 --> 0:18:17.240 of value in the January sixth investigation. So I would 0:18:17.240 --> 0:18:20.239 think that there's more there that the committees would very 0:18:20.320 --> 0:18:23.119 much like to have, and Justice will have to figure 0:18:23.119 --> 0:18:26.240 out whether they can reasonably request it in light of 0:18:26.280 --> 0:18:29.399 claims of privilege that he might make. His claims of 0:18:29.480 --> 0:18:32.600 privilege would have been stronger if he hadn't turned over 0:18:32.640 --> 0:18:36.720 those documents, and if he hadn't written a book on 0:18:36.880 --> 0:18:39.879 his time in the White House. Will justice consider that 0:18:39.960 --> 0:18:43.080 as well? I think they will, And you know, I 0:18:43.119 --> 0:18:46.920 think there's lots of room to navigate the area of 0:18:47.520 --> 0:18:50.840 executive privilege. And you know, underlying all of this is 0:18:50.840 --> 0:18:53.920 the fact now that the president that he was trying 0:18:53.920 --> 0:18:56.800 to protect is no longer the president, and that the 0:18:56.800 --> 0:19:01.440 current president has authorized the investigations, so that colors what 0:19:01.640 --> 0:19:05.320 the courts might say about arguments of privilege at this 0:19:05.480 --> 0:19:09.479 stage of the game. Turning to another subject, the District 0:19:09.560 --> 0:19:13.360 of Columbia has sued the Proud Boys and the Oathkeepers 0:19:13.880 --> 0:19:17.840 to right wing groups for allegedly conspiring to terrorize the 0:19:17.960 --> 0:19:23.840 US capital on January six. Tell us more about the lawsuit. Well, 0:19:23.880 --> 0:19:27.960 this is a very interesting development. The government of the 0:19:28.040 --> 0:19:33.760 District of Columbia is suing in civil court the Proud 0:19:33.800 --> 0:19:37.040 Boys and the Oathkeepers and many of the individual members 0:19:37.080 --> 0:19:41.560 of those organizations for damages as a result of their 0:19:41.600 --> 0:19:45.639 attack on the Capitol on January the six. As we 0:19:45.720 --> 0:19:51.159 all know, there there is ongoing criminal investigations of January 0:19:51.240 --> 0:19:54.280 six by the federal government, and many of the Proud 0:19:54.320 --> 0:19:59.320 Boys and Oathkeepers have been implicated in those criminal investigations. 0:19:59.320 --> 0:20:01.840 Some of them have than charged, a few of them 0:20:01.840 --> 0:20:06.240 have even taken Please most of them are defending against 0:20:06.240 --> 0:20:09.920 those actions, but the civil suit is something different. D C. 0:20:10.160 --> 0:20:13.360 Of course, the DC police in particular, we're a hard 0:20:13.480 --> 0:20:19.840 hit on January six and the many injuries two officers. 0:20:20.200 --> 0:20:25.040 Tremendous amount of resource was committed to defending the District 0:20:25.119 --> 0:20:28.960 Columbia on that day and the days after, So the 0:20:29.280 --> 0:20:33.159 DC is trying to recoup some of what they lost. 0:20:34.280 --> 0:20:38.639 The Proud Boys dissolved their national leadership after January six. 0:20:38.680 --> 0:20:42.239 That is being run by local chapters. So where is 0:20:42.640 --> 0:20:48.040 the money for damages going to come from? If DC wins. Yeah, 0:20:48.119 --> 0:20:50.560 well that's a very good question. There may not be 0:20:50.720 --> 0:20:53.439 much money for damages except to the scent any of 0:20:53.480 --> 0:20:57.679 these individuals have have means, and probably not many of 0:20:57.720 --> 0:21:01.200 them do. It is true that they've dissolved their national 0:21:01.280 --> 0:21:04.520 leadership and their strategy seems to have changed to try 0:21:04.560 --> 0:21:11.679 to influence local communities, school boards, local governments, and the like. 0:21:12.480 --> 0:21:16.080 That certainly doesn't insulate them from from the reach of 0:21:16.200 --> 0:21:19.919 federal law and litigation, but they may be judgment proof, 0:21:20.200 --> 0:21:22.239 so that you know if there is a judgment. I 0:21:22.240 --> 0:21:25.199 think the law lines up very strongly in favor of 0:21:25.240 --> 0:21:28.800 the government here. If they do get a judgment in court, 0:21:29.280 --> 0:21:33.280 it may be relatively unenforceable, but still would send an 0:21:33.320 --> 0:21:37.960 important symbolic message. The d C Attorney General said, this 0:21:38.080 --> 0:21:40.159 act was not a protest or a rally. It was 0:21:40.200 --> 0:21:44.440 a coordinated act of domestic terrorism. So why aren't they 0:21:44.480 --> 0:21:50.760 being prosecuted for that by the Justice Department Domestic terrorism? Yeah, well, 0:21:51.600 --> 0:21:54.399 there are a couple of issues here. The basic issue 0:21:54.480 --> 0:21:58.800 is that there is not a discrete crime of domestic terrorism. 0:21:58.880 --> 0:22:01.920 There are a series of times that can be charged 0:22:02.080 --> 0:22:05.240 related to the acts that we would call domestic terrorism, 0:22:05.800 --> 0:22:08.800 but because of concerns about the First Amendment, and because 0:22:08.800 --> 0:22:13.800 of concerns based on our history of protecting expressive conduct, 0:22:14.240 --> 0:22:18.760 we've been very careful not to define something called domestic terrorism. 0:22:19.359 --> 0:22:22.200 The other point, though, is that you know the law 0:22:22.440 --> 0:22:25.960 is an historical irony here. The law into which these 0:22:26.440 --> 0:22:30.960 individuals are being sued was was passed after the Civil War, 0:22:31.000 --> 0:22:34.399 and it's known euphemistically as the Ku Klux Klan Act 0:22:35.080 --> 0:22:37.680 because it was put into place in eighteen seventy one 0:22:38.119 --> 0:22:40.960 to allow the government to stand in the way of 0:22:41.040 --> 0:22:44.760 the clan that was trying to disrupt the newly reconstituted 0:22:44.800 --> 0:22:47.920 states in the South, and they were doing essentially with 0:22:48.040 --> 0:22:51.000 the Proud Boys and the Oathkeepers did on January six, 0:22:51.400 --> 0:22:54.520 trying to interfere with the conduct of government affairs and 0:22:54.640 --> 0:22:57.679 government business by getting in the way of government officials. 0:22:58.520 --> 0:23:01.119 So I want you to listen to what a lawyer 0:23:01.160 --> 0:23:06.159 for two of the defendants named in the suit, Jonathan Moseley, said, quote, 0:23:06.359 --> 0:23:09.359 neither the Proud Boys nor the Oath Keepers were remotely 0:23:09.480 --> 0:23:13.240 interested in obstructing the Joint Session of Congress on January six, 0:23:13.600 --> 0:23:16.880 because that would leave no one as president, elevating Nancy 0:23:16.920 --> 0:23:21.239 Pelosi to the presidency. So I'm wondering how you take that, 0:23:21.320 --> 0:23:23.919 whether it's just sort of tongue in cheek. It's not 0:23:24.000 --> 0:23:28.280 a real defense. It's not a defense. I mean. So, 0:23:28.440 --> 0:23:33.119 of course, the charges in the indictment or in the 0:23:33.200 --> 0:23:36.359 civil action here today. The complaint by the way, runs 0:23:36.359 --> 0:23:41.560 at pages I read through it this morning and and 0:23:41.640 --> 0:23:49.080 I was cursing you under my breath. I'm sorry, I'm joking. 0:23:49.600 --> 0:23:52.800 Is quite an interesting complaint. So that the charges under 0:23:52.840 --> 0:23:55.359 the federal law of the so called ku Klux Klan 0:23:55.440 --> 0:23:58.720 actor is going to require that the development who that 0:23:58.880 --> 0:24:05.359 the individuals conspired to intend to intimidate, to coerce, to 0:24:05.600 --> 0:24:09.560 disrupt UH these officials from going about their business. I 0:24:09.560 --> 0:24:12.640 think from what we've learned in the criminal investigation so 0:24:12.680 --> 0:24:15.200 far and what we could see from video and still 0:24:15.200 --> 0:24:18.720 images of that day, that's exactly what was going on. 0:24:19.640 --> 0:24:23.000 Whether it was to leave Nancy Pelosi as as putative 0:24:23.040 --> 0:24:26.760 president or not. They were attempting to disrupt the affairs 0:24:26.960 --> 0:24:29.960 of Congress as they tried to certify the results of 0:24:30.040 --> 0:24:34.520 the election. So it's going to require proof. But the proof, 0:24:35.040 --> 0:24:39.960 you know, is essentially been developed by the Justice Department 0:24:40.000 --> 0:24:43.080 on the criminal side and and the civil court. The 0:24:43.160 --> 0:24:47.359 dc UH officials who are prosecuting the case bringing the 0:24:47.440 --> 0:24:51.600 case concertainly suit use that material to approve their case 0:24:51.640 --> 0:24:55.320 against these individual Proud Boys and Keepers and against the 0:24:55.400 --> 0:24:59.600 organizations themselves. This isn't the first civil lawsuit that's been 0:24:59.720 --> 0:25:02.800 fine held against the members of the extremist groups who 0:25:02.840 --> 0:25:06.480 stormed the capital, because several members of Congress have sued 0:25:06.560 --> 0:25:09.919 leaders of the two organizations, former President Donald Trump and 0:25:10.000 --> 0:25:15.640 his former attorney Rudy Giuliani for conspiring to incite the insurrection. 0:25:15.840 --> 0:25:19.840 Seven Capital police officers have also filed a similar lawsuit, 0:25:20.119 --> 0:25:23.280 so the cases would seem to have the same witnesses. 0:25:23.600 --> 0:25:28.520 Could the cases be consolidated and tried together? That seems 0:25:28.600 --> 0:25:32.960 unlikely given the disperate nature of the plaintiffs here. You know, 0:25:33.400 --> 0:25:36.080 members of Congress and the DC government aren't going to 0:25:36.160 --> 0:25:41.400 be co plaintiffs in a lawsuit. There would be an 0:25:41.440 --> 0:25:44.879 interest in consolidating at least for the purposes of proof, 0:25:44.920 --> 0:25:49.840 and maybe the the federal district court judges in DC 0:25:49.920 --> 0:25:52.720 can figure out a way to get that done if 0:25:52.760 --> 0:25:55.480 it goes that far. You know. The other the other 0:25:55.560 --> 0:25:58.520 important action here that serves as a president, of course, 0:25:59.119 --> 0:26:03.719 is the Charlotteville judgment against some of the same groups 0:26:03.720 --> 0:26:07.760 and individuals. It was recently determined by a federal court 0:26:08.080 --> 0:26:13.520 in Charlottesville with massive assessment of damages. As you question 0:26:13.600 --> 0:26:16.320 you raised before about whereas that money going to come 0:26:16.400 --> 0:26:19.760 from to pay the damages? No one knows, but you know, 0:26:19.800 --> 0:26:24.720 a significant million, multimillion dollar damages award was given for 0:26:24.800 --> 0:26:30.600 the actions undertaken in seventeen in the Charlottesville riot. Thanks 0:26:30.640 --> 0:26:33.240 for being in the show, Bill. That's William Banks, a 0:26:33.280 --> 0:26:39.720 professor at Syracuse University Law School, a divine. US Supreme 0:26:39.800 --> 0:26:43.960 Court left in force New York's mandate that healthcare workers 0:26:44.040 --> 0:26:48.679 be vaccinated against COVID nineteen, refusing to order exemptions for 0:26:48.800 --> 0:26:51.879 twenty providers who say they object to the shot on 0:26:52.000 --> 0:26:55.639 religious grounds. There was no explanation from the majority, but 0:26:55.760 --> 0:26:58.960 this case follows a similar rejection in a main case 0:26:59.000 --> 0:27:03.320 in October, Justice says Neil Gorsuch, Clarence Thomas, and Samuel 0:27:03.359 --> 0:27:07.640 Alito dissented, with gore Such suggesting that New York Governor 0:27:07.720 --> 0:27:11.639