Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio.
Speaker 1: The entire thing has been a witch hunt and there
Speaker 1: is no collusion between certainly myself and my campaign. But
Speaker 1: I can always speak for myself and the Russians zero.
Speaker 1: This is a pure and simple witch hunt. This is
Speaker 1: a political witch hunt, Calisa, which nobody's that are seen
Speaker 1: towards a pure witch hunt. It's a hoax. It's a
Speaker 1: disgraceful situation. It's a total witch hunt. I've been saying
Speaker 1: it for a long time. Former President Donald Trump has
Speaker 1: repeatedly called the Russia investigation a witch hunt, a hoax,
Speaker 1: a deep state conspiracy to frame him, and Special counsel
Speaker 1: John Durham was tasked with uncovering government misconduct during that investigation,
Speaker 1: But after three years of investigating the investigation, Durham's only
Speaker 1: case to go to trial was prosecution of Michael Sussman,
Speaker 1: a lawyer for Hillary Clinton's twenty sixteen presidential campaign, on
Speaker 1: a single charge of lying to the FBI lying not
Speaker 1: about a conspiracy, but about the identity of his clients
Speaker 1: when he passed a tip on in September of and
Speaker 1: after about six hours of deliberations. The jury found the
Speaker 1: prosecution hadn't proved its case and acquitted Sessman. I told
Speaker 1: the truth to the FBI, and the jury wreck clearly
Speaker 1: recognized that with their unanimous verdict. My guest his former
Speaker 1: federal prosecutor Robert Mintz, a partner McCarter and English. This
Speaker 1: was Durham's first major courtroom test after a three year investigation.
Speaker 1: How big a setback is this for him? Well, it's
Speaker 1: a huge setback for Special Counsel John Durham because this
Speaker 1: is the very first case that's gone to trial after
Speaker 1: three years of investigating whether federal agents who investigated the
Speaker 1: twenty steen Trump campaign committed any wrongdoing. So this sense,
Speaker 1: the Special Counsel's office had really put everything on the
Speaker 1: line in this case, even though it ultimately was a
Speaker 1: fairly simple case which charged a single count A lying
Speaker 1: to the FBI. So in a meeting with the General
Speaker 1: Council of the FBI, Sussman presented research that he said
Speaker 1: suggested a possible secret back channel of communications between computer
Speaker 1: service for Russia based Alpha Bank and the Trump organization.
Speaker 1: But that wasn't what the issue was here. The jurors had,
Speaker 1: as you mentioned, this really narrow issue to decide one
Speaker 1: false statement, tell us what that was. Sure, So the
Speaker 1: whole case turned on the simple question of whether or
Speaker 1: not Sussman when he came to the FBI had the
Speaker 1: single meeting with the General Council of the FBI, whether
Speaker 1: she was there in his individual capacity as an individual
Speaker 1: citizen giving information to the FBI that affected potential national
Speaker 1: security issues, or whether he was there on behalf of
Speaker 1: a client. Now, what the defense argue it ultimately successfully
Speaker 1: was that it didn't really matter because the FBI would
Speaker 1: have done the same thing had they known that he
Speaker 1: was there on behalf of the Clinton campaign. And ultimately
Speaker 1: FBI did investigate the information and find out that it
Speaker 1: was without basis, but Sussman said he was there at
Speaker 1: his individual capacity even though he was working for the
Speaker 1: Clinton campaign at the time. On the defense also argued
Speaker 1: that it was well known that Sussman had worked for
Speaker 1: Democratic organizations and for the Democratic Party, and so the
Speaker 1: fact that he was tied to the Democrats was well
Speaker 1: known to the FBI at the time they received the information,
Speaker 1: So whether he was actually acting on their behalf at
Speaker 1: that moment didn't have a material impact on how the
Speaker 1: FBI treated that information. You will go back to that
Speaker 1: materiality in a moment. But the case depended on the
Speaker 1: testimony of one witness, James Baker, who was the FBI's
Speaker 1: general counsel, when he met with Sussman alone, and he
Speaker 1: took no notes of that meeting, so he had some
Speaker 1: credibility problems that the defense brought out. But that's exactly right,
Speaker 1: and I think that was one of the reasons this
Speaker 1: was a very difficult case from the start, because it's
Speaker 1: really one person's word against the other as to what
Speaker 1: happened at that meeting. And as you mentioned, James Baker
Speaker 1: that did not take notes. So although his testimony was
Speaker 1: he was ad percent confident that Sussman insisted to him
Speaker 1: that he was not acting on behalf of a client,
Speaker 1: and that if he had known he was acting on
Speaker 1: behalf of a client, he may have handled the conversation
Speaker 1: or the meeting differently. The fact was the defense was
Speaker 1: able to impeach that testimony somewhat by pointing out that
Speaker 1: Sussman had represented cybersecurity clients in the past and that
Speaker 1: Baker had said at various times that he didn't remember
Speaker 1: certain parts of that conversation. And when he took to
Speaker 1: witness stand, he said he couldn't remember a hundred sixteen
Speaker 1: times when the defense to asked him questions, and so
Speaker 1: his testimony wasn't rock solid. Despite the fact that he
Speaker 1: said he was a percent confident, the defense was able
Speaker 1: to bring out instances where his recollection was not entirely
Speaker 1: solid as to what was said at that exact meeting,
Speaker 1: and ultimate to leave, the defense was able to make
Speaker 1: a big issue of the fact that this entire case
Speaker 1: was really turning on the question of what happened at
Speaker 1: a brief, thirty minute meeting more than five years ago.
Speaker 1: I think the jury ultimately looked at this case and
Speaker 1: decided that it was more political than criminal, and that's
Speaker 1: why they ultimately acquitted Sessement after this trial, in only
Speaker 1: a day and a half of deliberations, Bob prosecutors used
Speaker 1: the case to try to put forward a larger conspiracy theory,
Speaker 1: and in the closing arguments, the defense attorney denigrated that effort.
Speaker 1: Sean Berkowitz said the prosecution was trying to turn a
Speaker 1: thirty minute meeting more than five years ago into a
Speaker 1: giant political conspiracy theory. Apparently that was pretty effective because
Speaker 1: the jury, four women said the prosecution never should have
Speaker 1: brought this case. Do you think that it hurt the
Speaker 1: prosecution to put this in context or did they have
Speaker 1: to put it in context? Well, that was the buying
Speaker 1: the prosecution ultimately was in from the start of this
Speaker 1: case goes. On the one hand, prosecutor said, this case
Speaker 1: is not about politics. It's about telling the truth. It's
Speaker 1: about whether sessamen lie to the FBI in order to
Speaker 1: get that meeting. When he said that he was not
Speaker 1: acting on behalf of a client. But ultimately it was
Speaker 1: about politics, and they had to go back to the
Speaker 1: scene that this was really an attempt by the Clinton
Speaker 1: campaign to try to get the FBI to investigate this
Speaker 1: alleged tie between the Trump organization and this Russian bank
Speaker 1: and then leak that information to the media in the
Speaker 1: hopes that it would get out there in the final
Speaker 1: days of the campaign and affect the campaign in some way.
Speaker 1: That was really what they were trying to suggest, and ultimately,
Speaker 1: I think the defense was able to turn that around
Speaker 1: on its head and say this is simply what's done
Speaker 1: all the time, it's opposition research. And they were also
Speaker 1: able to point out that there was some information from
Speaker 1: the Clinton campaign that said that they did not want
Speaker 1: these allegations to be taken up by the FBI at
Speaker 1: that point because they were concerned that a new story
Speaker 1: about the issue and the investigation might complicate the news
Speaker 1: stories that might come out about it. So it wasn't
Speaker 1: entirely clear that it was in the interest of the
Speaker 1: Clinton campaign to have the FBI investigated. They simply wanted
Speaker 1: the news media to write about the potential league because
Speaker 1: they thought that would have more of an impact on
Speaker 1: the election than an FBI investigation. Sussman decided not to
Speaker 1: take the witness stand in his own defense. Obviously, in hindsight,
Speaker 1: that was the right decision, But what kinds of considerations
Speaker 1: would the defense have been weighing. I think that was
Speaker 1: a very shrewd strategic decision by the defense because they
Speaker 1: did not want to make this trial about Michael Sussman.
Speaker 1: They wanted to make this trial about the inconsistent recollection
Speaker 1: of James Baker, and by not having Sussman take the
Speaker 1: stand and recall what went on at that meeting, the
Speaker 1: defense was able to focus the entire case about what
Speaker 1: James Baker recalled about that brief thirty minute meeting that
Speaker 1: occurred more than five years ago, on the fact that
Speaker 1: he took no contemporaneous notes and was simply recalling from
Speaker 1: memory what was said at that meeting. Pub Let me
Speaker 1: ask you this, Since you're a prosecutor for so long,
Speaker 1: isn't it like a matter of course for FBI agents
Speaker 1: or people in the FBI to take notes when they're
Speaker 1: interviewing someone like that. Well, it was a bit of
Speaker 1: an unusual meeting because it was this phone call placed
Speaker 1: from Sussman to the FBI General Council. This is not
Speaker 1: something that occurs on a daily basis, and typically it
Speaker 1: would be something that would be handled by agents rather
Speaker 1: than by the General Council. But yes, that is usually
Speaker 1: the practice of the FBI, first of all, to not
Speaker 1: meet with anybody alone, So that seemed to be someone
Speaker 1: unusual that there would be only one person from the
Speaker 1: FBI at the meeting, and secondly that there were no
Speaker 1: contemporaries notes taken. But at the time, remember, the meeting
Speaker 1: was simply to get information that the FBI may or
Speaker 1: may not use to launch an investigation, so it's not
Speaker 1: completely surprising that there wasn't a full memorandum of that meeting,
Speaker 1: but it is surprising that they were not least contemporaneous
Speaker 1: notes that would have corroborated Baker's testimony about what Sussman
Speaker 1: said to him as to why he was there and
Speaker 1: who may have sent him. Let's talk about materiality, because
Speaker 1: part of the reason why this was an uphill battle
Speaker 1: is that the prosecutor had to convince the jury beyond
Speaker 1: a reasonable doubt not only that Sussman lied to Baker,
Speaker 1: but that the lie was material enough to influence the
Speaker 1: FBI's actions or decisions. The testimony from Baker again was
Speaker 1: critical on this point, because he testified that had he
Speaker 1: known that Sussman was acting on behalf of the Clinton campaign,
Speaker 1: he may not have taken the meeting at all, or
Speaker 1: he would have treated the information differently. That was the
Speaker 1: government's proof that it was material. Now, in response, the
Speaker 1: defense made a compelling case that the FBI was well
Speaker 1: aware that Michael Sussman had worked on behalf of interest
Speaker 1: for the Democratic Party in the past, and so whether
Speaker 1: or not he was acting on behalf of the Clinton
Speaker 1: campaign at the time he was at that meeting, or
Speaker 1: whether he simply had worked for Democratic campaigns and the
Speaker 1: Clinton campaign in other context was really not a material factor.
Speaker 1: In other words, they knew that Michael Sussman was not
Speaker 1: working on behalf of the Republican Party. They knew that
Speaker 1: Michael Sussman was not working on behalf of conservative elements
Speaker 1: in the Republican Party. They knew that this is somebody
Speaker 1: who aligned himself with the Democratic Party, and so whether
Speaker 1: or not he was acting officially on their behalf at
Speaker 1: that moment or not really wouldn't have made any difference
Speaker 1: in terms of how the FBI treated that information. And
Speaker 1: of course, ultimately the FBI took the information and investigated
Speaker 1: it and found out that there was nothing to the
Speaker 1: alleged connection between the Trump organization and this Russian bank. So,
Speaker 1: in essence, the process worked regardless of where the information
Speaker 1: came from. The FBI ran it to ground and decided
Speaker 1: that there was nothing to it. So I think at
Speaker 1: the end of the day, one of the problems of
Speaker 1: prosecution had was convincing jurors that this case really mattered,
Speaker 1: that it really mattered whether or not he identified himself
Speaker 1: as working for the Clinton campaign at that moment, since
Speaker 1: the defense argued the FBI was well aware that he
Speaker 1: had worked on behalf of democratic interest in the past.
Speaker 1: To that point, the jury four person said the case
Speaker 1: never should have been brought and that the time could
Speaker 1: have been spent more wisely. And the prosecution couldn't get
Speaker 1: around the fact that the FBI agent they put on
Speaker 1: the stand who initially investigated said that he wouldn't have
Speaker 1: done anything differently if he'd known the tip originated from
Speaker 1: a partisan source. So one wonders, with that kind of testimony,
Speaker 1: why Durham even chose to bring this case. That's a
Speaker 1: good question. I think that the Special Counsel looked at
Speaker 1: this case un thought that they had a clear lie here,
Speaker 1: that there was enough evidence to convince a jury that
Speaker 1: Michael Sussman was acting on behalf the Clinton campaign. Remember,
Speaker 1: they did pull his billing records, and they were able
Speaker 1: to show at least a compelling argument that Michael Sussman
Speaker 1: was billing the Clinton camp pain at the time he
Speaker 1: was sitting in on this meeting with Michael Baker, and
Speaker 1: I believe prosecutors thought that was enough. Ultimately, the defense
Speaker 1: was able to show that those billing records were not
Speaker 1: quite as clear as maybe they seemed initially that there
Speaker 1: was billing for the Clinton campaign on the day of
Speaker 1: that meeting, but it wasn't entirely clear that he built
Speaker 1: for the meeting. That even went so far as to
Speaker 1: show that Michael Suftman build the Clinton campaign for the
Speaker 1: cost of the flash drive on which he handed the
Speaker 1: information over to the FBI. So I think they thought
Speaker 1: that that was going to be enough. But ultimately the
Speaker 1: downfall for the prosecution here, in my opinion, is that
Speaker 1: it turned on this one meeting between two individuals that
Speaker 1: occurred five years ago, and there were no contemporaneous notes,
Speaker 1: so it was essentially one person's recollection against the other.
Speaker 1: On the defense was able to raise a reasonable doubt
Speaker 1: in the mind of jurors as to whether or not
Speaker 1: Baker's recollection of what was said at that meeting was
Speaker 1: actually accurate. We want to look at the big picture
Speaker 1: for a moment. Durham's invested gation has now gone on
Speaker 1: longer than the Muller investigation. In he got a guilty
Speaker 1: plea from a former FBI lawyer for altering an email
Speaker 1: relating to a surveillance request, and that lawyer got probation.
Speaker 1: This Suessman case was based on a lie to the
Speaker 1: FBI and failed in October, Dorms bring a case against
Speaker 1: an analyst who's also charged with lying to the FBI
Speaker 1: about the sources of his information. So these cases are
Speaker 1: not about misconduct by the FBI in the Russian investigation.
Speaker 1: They're prosecuting lies from people about seemingly peripheral issues. That's
Speaker 1: a great point. And if you remember back to the
Speaker 1: beginning of all this, that was the question. You had
Speaker 1: a couple of FBI agents who had exchanged text messages
Speaker 1: which tended to show that they were not in favor
Speaker 1: of the election of then candidate Trump, and the focus
Speaker 1: of this was going to be on whether or not
Speaker 1: it was the FBI itself that was out to prevent
Speaker 1: then candidate Trump I'm getting elected president. These cases are
Speaker 1: all about information that is being brought to the FBI,
Speaker 1: and in fact invalidates the fact that the FBI treated
Speaker 1: them fairly and partially and ran them to ground based
Speaker 1: solely on the evidence because they did not pursue in
Speaker 1: this case leads that there was this a leg tied
Speaker 1: between the Trump organization on this Russian bank. They investigated
Speaker 1: and have found there was nothing to it. So this
Speaker 1: is really a case where the process worked and the
Speaker 1: only question is whether or not the people who brought
Speaker 1: the information to the FBI were acting improperly. And I
Speaker 1: often think about this when I see that a prosecution
Speaker 1: ends up being about lying to the FBI. Is that
Speaker 1: almost an admission that you know you couldn't make a
Speaker 1: prosecution based on the charges you were initially looking for,
Speaker 1: so you fall back on this line to the FBI,
Speaker 1: which is a crime, a felony, but still well. I
Speaker 1: do think that plays into the general public perception of
Speaker 1: these types of cases. And now, of course we don't
Speaker 1: really know what else the Special Counsel's Office ad investigating.
Speaker 1: It's possible that there could be other cases that they
Speaker 1: bring in the future that may be more serious than
Speaker 1: the ones that they've brought to date, but generally you
Speaker 1: want to bring your best cases first, and these are
Speaker 1: the kind of cases that are sort of around the
Speaker 1: periphery of their general mission. And I do think it
Speaker 1: raises a question in the mind of the public as
Speaker 1: to whether or not this three year investigation by John
Speaker 1: Durham and his Special Counsel Office ultimately has led to
Speaker 1: anything that shows that the FBI was corrupted on The
Speaker 1: FBI conducted investigations in a less than impartial and professional manner.
Speaker 1: These are cases, as I said earlier, that go to
Speaker 1: the integrity of people bringing information to the FBI. But
Speaker 1: so far we've seen no evidence of the FBI acting
Speaker 1: improperly with the information that they receive. We'll see what
Speaker 1: the next trial in October brings out. Thanks so much, Bob.
Speaker 1: That's former federal prosecutor Robert Mints, a partner in mcarter.
Speaker 1: In English, we see that the First Amendment is under
Speaker 1: assault by the social media companies and that is not
Speaker 1: going to be tolerated. In Texas, Texas Governor Greg Abbott
Speaker 1: said that a law barring social media platforms from removing
Speaker 1: content based on the views expressed was needed to protect
Speaker 1: conservative voices from being silenced. But tech groups said the
Speaker 1: law would unconstitutionally require social media companies like Twitter and
Speaker 1: Facebook to allow hate speech and extremism on their platforms,
Speaker 1: and by a five to four vote, the justices put
Speaker 1: the law on hold while a constitutional challenge goes forward
Speaker 1: in a lower court. Joining me is Eric Goldman, a
Speaker 1: professor at Santa Clara University School of Law. Eric tell
Speaker 1: us about this Texas law and its purpose. So last summer,
Speaker 1: Texas enacted a law that was styled a social media
Speaker 1: censorship law, and the sensible purpose is to prevent internet
Speaker 1: services from engaging in biased content moderation, especially moderation that
Speaker 1: would be biased against conservatives. But in fact the bill
Speaker 1: is a form of censorship of social media, so the
Speaker 1: titling was unfortunately ironic. If someone was advocating violence against
Speaker 1: a certain group, would that be allowed under this law?
Speaker 1: The short answer is we don't know, but most likely
Speaker 1: anyone whose content was removed because it was hate speech,
Speaker 1: because it was targeting particular demographics, would likely have a
Speaker 1: claim to assert that they were discriminating against by the service,
Speaker 1: and as a result, the services are going to be
Speaker 1: inhibited in making those decisions. So whether or not the
Speaker 1: law would specifically permit or deny content moderation and circumstance,
Speaker 1: the announce services would likely not touch it. Are there
Speaker 1: certain kinds of speech that social media platforms have to remove? Yes,
Speaker 1: there are. There's actually a wide range of things that
Speaker 1: under existing law, internet services are required to take down,
Speaker 1: and some of this is governed by a statute that
Speaker 1: says that services are protected from third party content, but
Speaker 1: it has exceptions, for example, related to violations of federal
Speaker 1: criminal law, also with respect to things like intellectual property violations.
Speaker 1: So you know, services are legally compelled to remove some content,
Speaker 1: and then things like the Texas Bill might say, if
Speaker 1: you're not legally compelled to require it, you have to
Speaker 1: leave it up or face extreme liability. So put student
Speaker 1: services in this really awful position of having to be
Speaker 1: precisely accurate with every single moderation decision to make. So
Speaker 1: what are the arguments that we're made to the court
Speaker 1: here excessis argument is that it's protecting its citizens from
Speaker 1: discrimination that's being imposed by services that don't have the
Speaker 1: legal right to do so. And so they've analogized, for example,
Speaker 1: to the telephone service, saying the telephone service doesn't get
Speaker 1: to hang up on your calls because of the fact
Speaker 1: that you might be engaging in each speech. The argument
Speaker 1: against the law is that it's a bald faced imposition
Speaker 1: of government control of editorial decision making the advanced services
Speaker 1: decide which content is fit for their audience or not,
Speaker 1: and the government is imposing its will, saying you can't
Speaker 1: make the decisions, We're going to make them for you.
Speaker 1: So from the opponent standpoint, this is just flat out censorship.
Speaker 1: Am I being crazy and saying that Texas argument sounds ludicrous? No,
Speaker 1: you're not crazy to think that the argument sounds ludicrous.
Speaker 1: And part of that is because this law really was
Speaker 1: never meant to pass. This law, like many others that
Speaker 1: have been introduced across the country, were designed to send
Speaker 1: a message to the voters that the legislature and the
Speaker 1: governor were working to take care of them. But they
Speaker 1: didn't actually want to enact the law. They just needed
Speaker 1: to tell the voters that they cared. So once it
Speaker 1: became law, it became in this huge dilemma because it
Speaker 1: was never meant to actually be effective, and nobody, even
Speaker 1: the proponents, actually want the law to do what it's
Speaker 1: supposed to do. One more thing that's really unusual about
Speaker 1: the Texas Law and a sign that this is a
Speaker 1: law that nobody actually wants. The Texas Law bands spam filtering.
Speaker 1: It basically makes it difficult or impossible for email service
Speaker 1: writers to filter spam out of your inbox. Now that's
Speaker 1: just bad policy. It's really actually unbelievable that any legislator
Speaker 1: would think that that's the right result, and it's a
Speaker 1: sign that this law was really a messaging bill. It
Speaker 1: was never meant to become law, because nobody wants an
Speaker 1: email inbox that's not subject to spam filtering. So these
Speaker 1: quote messaging bills designed to send a message but not
Speaker 1: meant to pass are hugely problematic. But if they actually passed,
Speaker 1: they're even more problematic. But yet you had Aldo's dissent
Speaker 1: joined by Thomas and Gorsage. It's a little hard to
Speaker 1: read into the descent that Justice Alito wrote. Has the
Speaker 1: case came to the Supreme Court in a procedurally awkward way,
Speaker 1: And I think that it's understandable that the justices were
Speaker 1: not excited about making a substant decision when they hadn't
Speaker 1: had a chance to be fully briefed in a normal
Speaker 1: appellate process. So I took Justice Alito's opinion as a
Speaker 1: sign that he didn't like the procedural posture of the case,
Speaker 1: which is understandable. I didn't like it either. And yet
Speaker 1: what troubles me is that the consequence of his opinion
Speaker 1: would have been to let this law that's never really
Speaker 1: meant to be law that sounds like it's clearly sensorial,
Speaker 1: go into a fact depending for the proceedings. But Justice
Speaker 1: Thomas last year suggested that the government might constitutionally be
Speaker 1: able to limit Twitter's ability to ban users. Yeah, and
Speaker 1: in that statement that he made, he admitted that he
Speaker 1: had not had the benefit of proper briefing. He was
Speaker 1: just writing. He was just talking um, which of course
Speaker 1: is really troubling because that's not really what we expect
Speaker 1: Supreme Court justices to do. We expect them to hear
Speaker 1: all the evidence, to hear the perspectives of both sides,
Speaker 1: and then rule on a live case in front of them.
Speaker 1: And Justice Thomas's statement was none of that. So it
Speaker 1: was really actually a tell on Justice Thomas that he
Speaker 1: was willing to pipe up when nobody asked him, and
Speaker 1: he wasn't actually properly prepared. Some people are making a
Speaker 1: lot out of the fact that there was an unusual
Speaker 1: alignment in descent because Justice Kagan joined the three Conservatives,
Speaker 1: but she didn't join Alito's descent, So might this be
Speaker 1: a protest on her part about another decision on the
Speaker 1: shadow docket. It's a little hard to read into Justice
Speaker 1: Kagan's vote in this dicular case, but I don't put
Speaker 1: a lot of stock in it in the sense that
Speaker 1: it ultimately didn't change the outcome nating direction, and she
Speaker 1: very well may have had reservations about the procedural posture
Speaker 1: of the case. As I said, all of us do.
Speaker 1: It is not the best way to frame the case.
Speaker 1: So I've looked at her vote as probably more procedurally
Speaker 1: driven and that I have no idea where she'll stand
Speaker 1: when she's probably briefed in a normal appeal. So the
Speaker 1: Fifth Circuit, which is based in New Orleans, considered the
Speaker 1: most conservative appellate court in the country, let this law
Speaker 1: take effect. They haven't issued the opinion yet, But the
Speaker 1: Eleventh Circuit, based in Atlanta, also conservative, blocked the core
Speaker 1: of a similar Florida law. Is the Florida law different
Speaker 1: enough from this to have that makes sense? Or or
Speaker 1: are these two circuits in conflict. Well, we really don't
Speaker 1: know what's going on in the Fifth Circuit. And this
Speaker 1: is why the Supreme Court appeal was so procedurally awkward,
Speaker 1: because the Fifth Circuit changed the status quo. It let
Speaker 1: the law go into effect without providing its reasons. It
Speaker 1: didn't explain why it thought that the law should go
Speaker 1: into effect. So everyone had to speculate in the Supreme
Speaker 1: Court appeal about what the Fifth Circuit was even thinking. Now,
Speaker 1: someday we're going to get an opinion from them that
Speaker 1: will clarify that and then we can properly critique where
Speaker 1: their heads at, But today we don't know. I think
Speaker 1: that the Eleventh Circuit opinion was extremely well done. It
Speaker 1: was a very thoughtful opinion written by someone who understands
Speaker 1: the concerns of conservatives both in the Fifth Circuit and
Speaker 1: on the Supreme Court. So it's a very well done opinion.
Speaker 1: And I think that the Eleventh Circuit opinion applies pretty
Speaker 1: much in toto to the Texas law as well as
Speaker 1: the Florida law. In other words, I think that if
Speaker 1: the Fifth Circuit is listening to its appelled peers, that
Speaker 1: this opinion ought to get them to rethink what they
Speaker 1: were doing. But if they're marching to their own drummer,
Speaker 1: that creates what's called a circuit split, where the circuits
Speaker 1: are not in agreement but with the laws. And that's
Speaker 1: the kind of thing that very much interests the Supreme Court. Yeah,
Speaker 1: it seems like if this continues that this this will
Speaker 1: come before the Supreme Court again. Do you have faith
Speaker 1: that the you know, the vote would be the same,
Speaker 1: or at least that the law would not be upheld.
Speaker 1: There's no doubt that this that these two laws are
Speaker 1: headed to the Supreme Court, and Justice Alito's opinion actually
Speaker 1: said I would vote in favor of hearing these cases.
Speaker 1: So it seems like there's always three of the nine
Speaker 1: justices were ready to vote to accept review of the laws.
Speaker 1: What happens at that point, I think is it's actually
Speaker 1: really unpredictable. Because the Supreme Court has become unpredictable. We
Speaker 1: don't really know which which biases or norms they're going
Speaker 1: to allow to surface above and beyond the legal review
Speaker 1: that we expect them to do from a pure legal standpoint,
Speaker 1: from a standard constitutional law analysis, I don't even think
Speaker 1: it's a close question. If the Supreme Court applied its
Speaker 1: presidents as they developed over the last several decades, there
Speaker 1: should be no question but that both the Florida Texas
Speaker 1: laws will be struck down in large part, if not
Speaker 1: in total. But the only reason why we don't believe
Speaker 1: that is because we're not sure how much the Supreme
Speaker 1: Court of sticking to espresso. Thanks Eric. That's Professor Eric
Speaker 1: Goldman of Santa Clara University School of Law. And that's
Speaker 1: it for the edition of the Bloomberg Law Show. I'm
Speaker 1: June Grasso. When you're listening to Bloomberg