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NYC Mayor Off the Hook & Musk Loses · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: As I said all along, this case should have never
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Speaker 2: been brought and I did nothing wrong. I'm not happy
0:21
Speaker 2: that our city can finally close the book on this
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Speaker 2: and focus solely on the future of our great city.
0:29
Speaker 3: New York City Mayor Eric Adams is free and clear.
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Speaker 3: A federal judge has dismissed the corruption case against him,
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Speaker 3: putting a permanent end to the case and the extraordinary
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Speaker 3: series of events that caused discord within the Justice Department.
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Speaker 3: Judge Dale Hoose said he wasn't commenting on the merits
0:47
Speaker 3: of the case against Adams, but that courts can't force
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Speaker 3: prosecutors to move forward on a case. It was a
0:54
Speaker 3: mixed decision for the Justice Department. It got the dismissal
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Speaker 3: of the charges it requested, but the judge dismissed them
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Speaker 3: with prejudice, meaning they can't be brought again. And the
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Speaker 3: judge slam the Justice Department many times in his opinion
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Speaker 3: quote everything here smacks of a bargain dismissal of the
1:14
Speaker 3: indictment in exchange for immigration policy concessions. My guest is
1:19
Speaker 3: former federal prosecutor Robert Mintz, a partner Maccarter and English.
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Speaker 3: So the judge had basically no choice but to drop
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Speaker 3: this case, but he didn't do it in the way
1:30
Speaker 3: the Justice Department had wanted him to.
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Speaker 1: Heeding the advice of the Court appointed Council Paul Clement,
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Speaker 1: the former Solicitor General, the judge decided to dismiss the
1:41
Speaker 1: case with prejudice, as opposed to without prejudice, as had
1:46
Speaker 1: been originally requested by the Department of Justice, because the
1:49
Speaker 1: judge found that dismissing the case without prejudice would essentially
1:54
Speaker 1: leave Mayor Adams under the specter of reindictment at essentially
1:58
Speaker 1: any time and for any reason, and by doing that,
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Speaker 1: it would create the unavoidable perception that the Mayor's freedom
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Speaker 1: depended on his ability to carry out the immigration and
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Speaker 1: forcing priorities of the administration, and that he might be
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Speaker 1: more beholding to the demands of the federal government than
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Speaker 1: to the wishes of his own constituents.
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Speaker 3: The judge slammed the reasons the government gave for dropping
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Speaker 3: the charges, calling it unprecedented and breathtaking in its sweep.
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Speaker 4: So this was a.
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Speaker 1: Quite extraordinary seventy eight page opinion that the judge issued
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Speaker 1: here on what was a relatively straightforward motion to dismiss
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Speaker 1: the criminal case. But this case was really not like
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Speaker 1: any other that any judge had dealt with before. Given
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Speaker 1: the reasons that the Department of Justice had given for
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Speaker 1: the dismissal, what the judge did here was to go
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Speaker 1: through them one by one and basically refute the reasons
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Speaker 1: that the government gave for the dismissal. The government, for example,
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Speaker 1: first argued that the prosecution had been painted by appearance
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Speaker 1: of impropriety. The judge found that that was unsupported by
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Speaker 1: any objective evidence, and really stood up for this Southern
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Speaker 1: District US Attorney's office here by making a finding in
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Speaker 1: this opinion that the prosecutors who worked on the case
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Speaker 1: followed all appropriate Justice Department guidelines. He even went so
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Speaker 1: far as to say there is no evidence zero that
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Speaker 1: they had any improper motives, and so in that respect
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Speaker 1: he did not agree with that basis for the dismissal.
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Speaker 1: He also took issue with the dog's assertion that the case,
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Speaker 1: which had been brought nine months before the twenty twenty
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Speaker 1: five New York City mayoral primary election, was somehow amounting
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Speaker 1: to election interference He said that that lacked any support
3:43
Speaker 1: in Justice Department guidelines or past practice, and that the
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Speaker 1: timing of the case, he said, was entirely consistent with
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Speaker 1: prior public corruption prosecution. And then finally, he turned into
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Speaker 1: what was clearly the most controversial basis for the dismissal
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Speaker 1: of this criminal and day, which was that the indictment
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Speaker 1: itself was interfering with the mayor's ability to assist with
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Speaker 1: immigration enforcement. In other words, the Department of Justice was
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Speaker 1: arguing that, by virtue of the mayor's position as the
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Speaker 1: mayor of New York, someone who the administration was looking
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Speaker 1: to gain assistance and carrying out their immigration enforcement priorities,
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Speaker 1: that this criminal case was interfering with that ability. The
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Speaker 1: judge said that that was simply not true. He noted
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Speaker 1: that after the DOJ had made the decision to seek
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Speaker 1: dismissal of the case, the mayor announced that he would
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Speaker 1: permit immigration and Customs enforcement to operate on Rikers Island,
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Speaker 1: a decision that he said appears to be contrary to
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Speaker 1: New York law. And so essentially what the court found
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Speaker 1: here was the record did not show that this case
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Speaker 1: impaired the mayor's ability in his immigration enforcement efforts. Quite
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Speaker 1: the contrary, The judge said, it showed that after the
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Speaker 1: DOJ decided to seek dismissal of the case, took at
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Speaker 1: least one new immigration related action consistent with the preferences
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Speaker 1: of the new administration. And then the judge wrote something
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Speaker 1: that I think was the most scathing comment in this
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Speaker 1: entire opinion. The judge wrote, everything here smacks of a
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Speaker 1: bargain dismissal of the indictment in exchange for immigration policy concessions.
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Speaker 3: I mean, basically, he admitted that he had no choice
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Speaker 3: but to drop the case. I guess unless he would
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Speaker 3: want to appoint a special prosecutor to prosecute it going forward.
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Speaker 3: That seems unwieldy.
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Speaker 1: So, you know, having made all these findings, where the
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Speaker 1: judge really challenged the basis for the DOJ's request to
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Speaker 1: dismiss this case, he characterized the Department of Justice's positions
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Speaker 1: as both unprecedented and breasttaking. He said, the DOJ site
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Speaker 1: no examples, and the court is unable to find any
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Speaker 1: where the government had dismissed charges against an elected official
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Speaker 1: because doing so would enable that elected official to facilitate
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Speaker 1: federal policy goals. He said that the dog's position that
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Speaker 1: was argued by the acting Deputy Attorney General Ema beauvet
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Speaker 1: in seeking the dismissal of this case would essentially amount
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Speaker 1: to a quote virtually unreviewable, close quote license to dismiss
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Speaker 1: charges on this basis. He said that it would basically
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Speaker 1: imply that public officials may receive special dispensation if they
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Speaker 1: are compliant with the incumbent administration's policy priorities. And he
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Speaker 1: found that very troubling, very troubling.
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Speaker 3: But that's what happened. I mean, Eric Adams is getting
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Speaker 3: off scott free from these charges, never has to face
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Speaker 3: them again because he's the mayor of New York who
6:40
Speaker 3: agreed to cooperate with the Trump administration. That's what this
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Speaker 3: case is about.
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Speaker 1: And I think what we see here is that the
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Speaker 1: judge agreed with many of the submissions to the court
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Speaker 1: Friend of the Court briefs as they're called, where a
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Speaker 1: different outside party had urged the judge to deny this
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Speaker 1: motion altogether, to not grant the government's motion to dismiss
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Speaker 1: the law case on the basis that the reasons offered
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Speaker 1: by the government were improper and unprecedented. But ultimately the
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Speaker 1: judge decided that his hands were essentially tie here, and
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Speaker 1: while he did sympathize with those who suggested that the
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Speaker 1: case should go forward, he ultimately decided that the court
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Speaker 1: has no ability to move a case forward where prosecutors
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Speaker 1: simply refuse to continue to bring the case. He noted
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Speaker 1: that there are examples where an individual prosecutor who might
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Speaker 1: be seeking to dismiss the case for improper reasons could
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Speaker 1: be replaced and somebody else then steps in to prosecute
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Speaker 1: the case, but he noted that in this case, where
7:38
Speaker 1: it was the Department of Justice itself that was seeking
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Speaker 1: the dismissal, he really had no choice. He noted that
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Speaker 1: the court cannot force the Department's Justice to prosecute a defendant,
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Speaker 1: and that the court's role in a criminal case is
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Speaker 1: to preside over the matter, not to decide whether the
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Speaker 1: defendant should be prosecuted. The court also addressed an issue
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Speaker 1: that had been braced by some of the outside parties
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Speaker 1: who urged that he not dismissed the case, to say
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Speaker 1: that a special prosecutor, an independent prosecutor outside of the
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Speaker 1: Department of Justice, could be appointed to prosecute this case,
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Speaker 1: but he found no basis to do that. Outside of
8:13
Speaker 1: the limited context of criminal contempt. So essentially, although the
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Speaker 1: judge did not agree with the bases that the Department's
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Speaker 1: Justice was arguing in dismissal his case, he found that
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Speaker 1: he had no choice but to dismiss the case, but
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Speaker 1: he wanted to do it with prejudice so that it
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Speaker 1: would at least avoid the appearance that the government was
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Speaker 1: hanging this case over Mayor Adam's head in order to
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Speaker 1: enforce his continued cooperation with their immigration policy, and.
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Speaker 3: Perhaps because Mayor Adams and his defense attorney often interpret
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Speaker 3: the different decisions in this case as proving his innocence.
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Speaker 3: The judge said he wasn't making any decision about whether
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Speaker 3: Adams is innocent or guilty.
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Speaker 1: That's absolutely right, and the Court went to great lengths
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Speaker 1: to make very clear that this was not a decision
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Speaker 1: on the merit. The court said it was not deciding
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Speaker 1: whether the Mayor was innocent or guilty. Obviously, Mayor Adams,
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Speaker 1: like any other criminal defendant, is presumed innocent until proven guilty.
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Speaker 1: But the Court wanted to make clear that the Department
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Speaker 1: of Justice's decision to abandon this case will mean that
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Speaker 1: that question is never answered, and that the Court is
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Speaker 1: in no way pining on the strength of the criminal
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Speaker 1: case or the wisdom of bringing it or dismissing it.
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Speaker 3: I've been reading that this recognizes the president's power to
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Speaker 3: determine the fate of prosecutions. But is there anything really
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Speaker 3: new here in that regard except there was a fight
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Speaker 3: not to drop the charges. But the executive branch has
9:41
Speaker 3: always had the ability to drop charges, right.
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Speaker 1: I mean, that's really an excellent point here, because to
9:47
Speaker 1: many people this looks as if this is some new
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Speaker 1: power that the executive is wielding here that they've never
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Speaker 1: had before, that the Department of Justice can now dismiss
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Speaker 1: the criminal case for virtually any reason at all. But
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Speaker 1: the reality is that has always been the case. We've
10:03
Speaker 1: just never seen the Department of Justice go on the
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Speaker 1: records and state that the basis for dismissing a case
10:09
Speaker 1: is to allow an elected official to carry out a
10:12
Speaker 1: policy priority for the administration. But the reality is that
10:17
Speaker 1: courts cannot force prosecutors to continue to prostitute cases. The role,
10:22
Speaker 1: as the judge said here, of the court is simply
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Speaker 1: to hear those cases and to rule over the trial,
10:28
Speaker 1: but not to make decisions about which cases to bring
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Speaker 1: and which cases to.
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Speaker 3: Dismiss and Judge Hoe's ruling was basically in line with
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Speaker 3: the recommendations of the court appointed legal expert Paul Clement.
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Speaker 1: Yes, so what happened in this case is to cause
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Speaker 1: both the defense and the government were aligned in their
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Speaker 1: position that the case should be dismissed. The judge wanted
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Speaker 1: somebody to put on the record the arguments either for
10:56
Speaker 1: or against the dismissal, and so he sought out the
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Speaker 1: court of pointed assistance of Paul Clement, who had been
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Speaker 1: the US Solicitor General and who was a well regarded
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Speaker 1: conservative lawyer, to take a look at this issue and
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Speaker 1: to advise the Court on what to do here. And
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Speaker 1: ultimately Paul Clement recommended to the Court that the case
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Speaker 1: be dismissed with prejudice to avoid that appearance that the
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Speaker 1: government continued to hold the sword of Damocles, so to
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Speaker 1: speak over the mayor if he did not carry out
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Speaker 1: the administration's policy objectives. But at the same time, Paul
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Speaker 1: Clement noted that all roads here lead to dismissal with prejudice,
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Speaker 1: and that was really the only option for the court
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Speaker 1: under these circumstances.
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Speaker 3: So for once we can really say case closed. Thanks
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Speaker 3: so much, Bob. That's Robert Mints of maccarter and English
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Speaker 3: coming up next on the Bloomberg Law Show. The most
11:48
Speaker 3: expensive judicial race in history and what it tells us
11:53
Speaker 3: I'm June Gross when you're listening to Bloomberg.
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Speaker 5: All right, Wisconsin, we did it.
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Speaker 3: It's the most expensive judicial race in our history. And
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Speaker 3: in Wisconsin, Democratic backed judge Susan Crawford defeated a challenger
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Speaker 3: endorsed by President Trump and billionaire Elon Musk in the
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Speaker 3: state Supreme Court election. The win cements a liberal majority
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Speaker 3: on the state's top court for at least three more years,
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Speaker 3: and Crawford touted her victory as a win against powerful interests.
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Speaker 5: Wisconsin's stood up and said loudly that justice does not
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Speaker 5: have a price. Our courts are not for sale.
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Speaker 3: Musk and groups he backed had spent more than twenty
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Speaker 3: one million dollars in an effort to defeat Crawford. He
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Speaker 3: even traveled to Wisconsin two days before the election to
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Speaker 3: personally hand over one million dollar checks to two voters.
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Speaker 3: Crawford defeated Republican backed Brad Schimmel in a race that
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Speaker 3: broke record. It's for spending was the highest turnout Wisconsin
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Speaker 3: Supreme Court election ever and became a proxy fight for
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Speaker 3: the nation's political battles and voters feelings about the new administration.
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Speaker 3: Joining me is elections law expert Richard Brefaldt, a professor
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Speaker 3: at Columbia Law School. This Wisconsin Supreme Court race is
13:19
Speaker 3: officially non part is in, but it seemed nothing but
13:23
Speaker 3: part is in from early on.
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Speaker 6: Well, even a non partisan simply means that there's no
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Speaker 6: partisan line on the ballot. Obviously, parties are free to
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Speaker 6: make endorsements of candidates and even to designate that this
13:36
Speaker 6: is the party's preferred candidates. In effect, nominate candidates just
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Speaker 6: that the party line doesn't appear on the ballot. This
13:42
Speaker 6: is pretty common in many non partisan elections. What nonpartisans
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Speaker 6: means is simply there's no partisan affiliation on the ballot.
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Speaker 6: There's nothing that could stop parties from nominating candidates from
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Speaker 6: making endorsements. Indeed, they have that constitutional right.
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Speaker 3: This is officially the most money spent for judicial election,
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Speaker 3: right over one hundred million dollars. Why is this race
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Speaker 3: so important to both Democrats and Republicans.
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Speaker 6: Well, I think it was important in two ways. One
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Speaker 6: is the more the narrow Wisconsin on significance, which is
14:14
Speaker 6: not to be too light about it. The Wisconsin Supreme Court,
14:17
Speaker 6: which is a right now a narrow four to three
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Speaker 6: majority of liberals versus conservatives, which was established two years
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Speaker 6: ago when a liberal judge won and thereby flipping the
14:28
Speaker 6: control of the court from four to three conservatives. They
14:31
Speaker 6: have a number of important issues in front of One
14:33
Speaker 6: of them is abortion. With the Dabbs decision, tw one
14:35
Speaker 6: hundred and seventy year old Wisconsin law banning abortions could
14:38
Speaker 6: potentially come back on the books, so the status of
14:41
Speaker 6: abortion in Wisconsin is up for grabs. There are some
14:43
Speaker 6: issues dealing with the recognition of public employ unions, and
14:47
Speaker 6: there's potentially a lawsuit challenging the districting of Wisconsin's congressional
14:51
Speaker 6: delegation as a gerrymanderin violation of the state constitution. Wisconsin
14:56
Speaker 6: is a pre evenly divided state, but the congressional delegation
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Speaker 6: is six Republicans the two Democrats. So all these things
15:03
Speaker 6: meant that the stakes were pretty high in Wisconsin. And
15:06
Speaker 6: then of course you throw in the fact that this
15:07
Speaker 6: was really the first you could call it the first
15:10
Speaker 6: by election, the first significant statewide by election since Trump's election,
15:16
Speaker 6: and it became very quickly on a kind of a
15:18
Speaker 6: little early referendum on Trump and especially on Musk. Since
15:22
Speaker 6: Musk threw himself into this election very personally, very dramatically,
15:27
Speaker 6: himself committing tens of millions of dollars and personally campaigning
15:31
Speaker 6: for the Republican candidate. It became very much a referendum
15:35
Speaker 6: on trumpet especially on Musk's role I think in the
15:38
Speaker 6: Trump administration. And so it really became a focus of
15:42
Speaker 6: nationwide spending. Money coming from all over the country, I
15:45
Speaker 6: should say, rather, and supporters coming from all over the country.
15:48
Speaker 6: And Trump also made an endorsement, and some prominent Democrats
15:51
Speaker 6: came and campaigned for the Democratic judge.
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Speaker 3: Yeah, I mean, I think more people know about this
15:56
Speaker 3: race because of Musk's involvement than anything else. He's the
16:00
Speaker 3: same playbook that he used in twenty twenty four, you know,
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Speaker 3: the pouring of millions of dollars bought paid canvassers, broadcast ads,
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Speaker 3: and he gave away a handful of checks in the
16:12
Speaker 3: amount of one million dollars to voters who signed a
16:14
Speaker 3: petition circulated by his super Political Action Committee. They tried
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Speaker 3: to fight that the Democrats, but the state Supreme Court
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Speaker 3: didn't take the case.
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Speaker 6: Is that legal, Well, what he has figured it out
16:26
Speaker 6: is you can sidestep the state laws that prohibit paying
16:30
Speaker 6: people for voting, which most states have laws something like that.
16:33
Speaker 6: It would be illegal to pay somebody to vote or
16:36
Speaker 6: pay somebody because they voted. So what he did both
16:38
Speaker 6: in the presidential election last year in Pennsylvania and here
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Speaker 6: is to sidestep that and say I'm paying you to
16:44
Speaker 6: sign a petition. I think in both cases, or at
16:46
Speaker 6: least in this one, was a petition opposing activist judges.
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Speaker 6: I think it was originally offering small amounts for that,
16:52
Speaker 6: and they're offering very big amounts for people who would become,
16:54
Speaker 6: in his words, spokesman for his campaign against activist judges.
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Speaker 6: So I think the two people received a million dollar
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Speaker 6: checks were selected as spokesman. And although initially he said
17:05
Speaker 6: you're not eligible for this, you're not eligible for some
17:08
Speaker 6: other things he was giving away unless you could show
17:10
Speaker 6: that you voted, was a way of given an incentive
17:13
Speaker 6: to people to vote early. When it was pointed out
17:16
Speaker 6: that that was probably illegal, immediately dropped the voting requirement
17:20
Speaker 6: and says it's open to everybody, or raping opatol registered voters.
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Speaker 6: All you've got to do is sign a petition. And
17:25
Speaker 6: by moving away from voting to signing a petition, he
17:29
Speaker 6: was able to sidestep the prohibition on vote buying now
17:33
Speaker 6: established as a technique. And I think here or arthurs
17:35
Speaker 6: will get away with that.
17:36
Speaker 3: I mean, voter turnout was over fifty two percent, and
17:41
Speaker 3: the record in twenty twenty three was forty percent. So
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Speaker 3: I don't know if it was driven by Musk or
17:49
Speaker 3: driven by the fact that the tilt of the state
17:52
Speaker 3: Supreme Court was dependent on this election.
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Speaker 6: Or the two together. I mean, I think must clearly.
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Speaker 6: I mean, I think Musk went into sort of I
18:00
Speaker 6: love the Republican vote, and at the same time and
18:02
Speaker 6: so doing, he also drove up the Democratic vote. I
18:04
Speaker 6: think it just shows what, you know, what a polarizing
18:07
Speaker 6: figure he is. He probably increased the vote on both
18:10
Speaker 6: sides if we look.
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Speaker 3: At this as an indicator of how Trump is doing
18:16
Speaker 3: or the reaction to Musk. Yet, in Florida, Republicans safely
18:22
Speaker 3: held onto their seats, winning about fifty seven percent of
18:25
Speaker 3: the votes in both districts, although it's down from the
18:30
Speaker 3: two thirds that the Republican candidates won in the last elections.
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Speaker 3: Does that show that these elections really aren't sort of
18:37
Speaker 3: a referendum on the Trump administration so far?
18:41
Speaker 6: It's hard to say. I mean, I think, right, it's
18:43
Speaker 6: glasses half empty, glasses half full. Republicans won both of
18:46
Speaker 6: those seats, but those were heavily Republican seats, and I
18:49
Speaker 6: think not only did Trump win those districts by like
18:51
Speaker 6: over seventy percent, but the Republicans they replaced Matt Gates
18:55
Speaker 6: and the current National Security devisor also I think won
18:58
Speaker 6: like seventy percent of the vote. And so I mean
19:00
Speaker 6: it's true, going from you know, fifty six to fifty
19:03
Speaker 6: seven percent, which I think is what the two Republicans got,
19:06
Speaker 6: that's a pretty big victory. It's like it is a
19:08
Speaker 6: fourteen to fifteen point margin, but it was thirty points
19:11
Speaker 6: in prior. So these are districts that would be almost
19:14
Speaker 6: impossible for Democrats to take. They did better. So I think,
19:18
Speaker 6: you know, in the latest round of there are a couple
19:21
Speaker 6: of special elections for state legislature in Pennsylvania and Iowa,
19:24
Speaker 6: and Democrats have done better than they were doing before.
19:27
Speaker 1: Is it?
19:27
Speaker 6: And off with as it tell us. It's hard to say.
19:29
Speaker 6: I think in some ways the biggest takeaway, the biggest
19:32
Speaker 6: Democratic victory was the one in Wisconsin, and that was
19:35
Speaker 6: about Musk. And it may be telling us that whereas
19:38
Speaker 6: Trump still I think is numbers are still just above water.
19:42
Speaker 6: The DOGE part may not be that popular. Trump was,
19:45
Speaker 6: you know, elected on a bunch of issues involving immigration
19:47
Speaker 6: and inflation, and you know those may be popular, but
19:51
Speaker 6: you know, the widespread kind of unreasoned, extensive cuts, you know,
19:56
Speaker 6: firing large numbers of federal employees, slashing agents, that may
20:00
Speaker 6: not be that popular. And you know, this may be
20:03
Speaker 6: a way in some ways of giving a split verdict
20:05
Speaker 6: and saying, you know, we still want Republicans in charge
20:08
Speaker 6: the people of voters, and floyerd to say, but we
20:10
Speaker 6: don't want Musk in charge. And that's what the voters
20:12
Speaker 6: in Wisconsin said.
20:14
Speaker 3: Political has reported that Trump told his inner circle that
20:18
Speaker 3: Musk will leave soon.
20:20
Speaker 6: He's gone back and forth on that. I mean in theory,
20:24
Speaker 6: and in theory, Musk is what called a special government
20:27
Speaker 6: employee in SGE, which basically is a term use for
20:30
Speaker 6: people who are from the private sector who come into
20:33
Speaker 6: government and work for no more than one hundred and
20:35
Speaker 6: thirty days as a result of which they are subject
20:38
Speaker 6: to some restrictions that apply to government employees but not
20:42
Speaker 6: to all of them, so they can maintain their outside jobs,
20:45
Speaker 6: among other things. And the assumption that Musk is working
20:48
Speaker 6: full time around the clock, as he says, one hundred
20:51
Speaker 6: and thirty days, will you know, expire some time in May. Now,
20:54
Speaker 6: there's not much enforcement that would happen if he kept
20:58
Speaker 6: remaining in his current position, but that does suggest that
21:02
Speaker 6: that might provide a hook for reducing his role. There's
21:05
Speaker 6: also nothing to prevent them from reappointing him as an
21:08
Speaker 6: SG Again, I mean, it would require somebody to enforce this,
21:11
Speaker 6: and it's not clear that anybody in the government is
21:13
Speaker 6: interested in enforcing that rule. But that is the rule.
21:17
Speaker 3: A lot of rules are not being followed, so we
21:19
Speaker 3: will see what happens. Thanks so much, rich that's Professor
21:22
Speaker 3: Richard Rafault of Columbia Law School. I'm June Grosso. When
21:26
Speaker 3: you're listening to Bloomberg. The Supreme Court appeared divided today
21:31
Speaker 3: in oral arguments over whether state should be able to
21:34
Speaker 3: cut off medicaid funding to plan parenthood. The arguments come
21:39
Speaker 3: amid a wider push from abortion opponents to defund the
21:42
Speaker 3: nation's largest abortion provider. The court is considering a legal
21:47
Speaker 3: question that could have wider effects, whether Medicaid patients can
21:51
Speaker 3: continue to sue over the right to choose their own
21:55
Speaker 3: qualified provider. Joining me is an expert in reproductive rights,
21:59
Speaker 3: Marry Ziegler, a professor at UC Davis Law School. The
22:04
Speaker 3: case is not technically about abortion, but it involves Planned Parenthood,
22:09
Speaker 3: the nation's biggest abortion provider, and it's drawing a lot
22:13
Speaker 3: of attention, even demonstrations outside the courthouse. I mean, what's
22:17
Speaker 3: the issue that's strong people?
22:19
Speaker 4: Well, I think that people understand that this case could
22:24
Speaker 4: have a major impact on Planned Parenthood and on certainly
22:29
Speaker 4: access to abortion and access to other reproductive health services. So,
22:35
Speaker 4: even though this is not a case about abortion, it
22:37
Speaker 4: will have impacts on abortion and on reproductive healthcare. And
22:41
Speaker 4: that's because South Carolina is trying to basically keep Planned
22:46
Speaker 4: Parenthood out of its Medicaid program, and that would have
22:50
Speaker 4: downstream consequences for Planned Parenthood and for patients.
22:54
Speaker 3: The South Carolina governor cut off Medicaid funding for Planned
22:58
Speaker 3: Parenthood because it provides abortion services, saying it was like
23:02
Speaker 3: taxpayer funding for abortion. The issue, though, is a technical
23:06
Speaker 3: question about statutory interpretation.
23:09
Speaker 4: That's correct, right. So the issue in the case is
23:12
Speaker 4: about the Medicaid Statute, a particular part of it called
23:15
Speaker 4: the choice of provider provision, which says that Medicaid beneficiaries
23:21
Speaker 4: have a right to choose their own medical provider. So
23:24
Speaker 4: the court is considering whether that language actually gives patients
23:28
Speaker 4: a right to go to federal court when they're denied
23:32
Speaker 4: that choice of provider, or whether Congress wasn't clear enough
23:36
Speaker 4: about that right existing in the federal law.
23:38
Speaker 3: And so tell me what the basic argument of planned
23:41
Speaker 3: parenthood and what the argument of South Carolina is.
23:45
Speaker 1: Well.
23:45
Speaker 4: South Carolina has said, essentially that the words that Congress
23:51
Speaker 4: used were not right, conferring enough right. They didn't use
23:55
Speaker 4: the magic word like right or privilege or entitlement, and
23:59
Speaker 4: Plan Karnhood is arguing that Congress shouldn't have to do that,
24:03
Speaker 4: and that under the court's precedence, Congress was plenty clear
24:06
Speaker 4: enough that there was in fact a right in federal court.
24:09
Speaker 4: So the question really is about how clear Congress was
24:13
Speaker 4: number one, and number two, how clear Congress needs to
24:16
Speaker 4: be in this context and more generally when doing rights conferral.
24:21
Speaker 3: So it seemed that the three liberal justices at least
24:25
Speaker 3: suggested that Congress had clearly established an obligation on the
24:30
Speaker 3: States to allow patients to see any qualified provider and
24:33
Speaker 3: to go to court to vindicate that. Justice Kagan said
24:37
Speaker 3: that blocking them from suing would be a real change.
24:41
Speaker 3: This is kind of changing the rules mid stream, Isn't
24:44
Speaker 3: it Tell me what she means by that?
24:46
Speaker 4: Well, I think what Justice Kagan was saying was that
24:49
Speaker 4: for a long time, most of the circuit courts had
24:52
Speaker 4: assumed that a right to sue existed as far as
24:57
Speaker 4: the choice of provider provision was concerned, and that this
25:00
Speaker 4: would be essentially telling those beneficiaries that's no longer the case,
25:05
Speaker 4: telling Congress that the rules for creating a right to
25:09
Speaker 4: sue are different, right, which would have potential impacts not
25:13
Speaker 4: just in the medicaid context, not just in the abortion context,
25:16
Speaker 4: but well beyond it. And so Justice Kagan was essentially
25:19
Speaker 4: saying what had always been good enough or clear enough
25:22
Speaker 4: before should be good enough or clear enough now.
25:24
Speaker 3: The sort of justice in the middle, the Chief Justice
25:27
Speaker 3: John Roberts and just Amy Cony Barrett did ask some
25:31
Speaker 3: questions that seemed to express concerns that people on Medicaid
25:37
Speaker 3: wouldn't have any real way to challenge a state's decision
25:41
Speaker 3: to nix their preferred healthcare provider.
25:46
Speaker 4: Yeah, I think that's exactly right. I think that South
25:49
Speaker 4: Carolina had emphasized that they were sort of administrative procedures
25:54
Speaker 4: by which someone could challenge a denial of provider. But
25:58
Speaker 4: both the Chief Justice Justice Spirit didn't seem entirely convinced
26:03
Speaker 4: that that would give beneficiaries a remedy. And then you know,
26:07
Speaker 4: the question is, well, so what. But I think both
26:10
Speaker 4: the Chief Justice and Justice Spirit recognized the Congress clearly
26:13
Speaker 4: wanted to give beneficiaries a right to choose their own provider.
26:18
Speaker 4: That's unambiguous in the statute. And if you have a
26:21
Speaker 4: right with no way to enforce it, then aren't you
26:24
Speaker 4: kind of subverting congresses intent? I think that's what the
26:27
Speaker 4: Chief Justice and Justice Spirit were asking.
26:29
Speaker 3: Where do you think the more conservative justices were?
26:34
Speaker 4: Well, I think you saw the more conservative justices essentially saying,
26:38
Speaker 4: you know, clearly there's a disagreement within the circuit courts
26:42
Speaker 4: about this, and that just means that we the court
26:44
Speaker 4: haven't been clear enough so we need to provide a
26:47
Speaker 4: new test, a narrower test, right to make a parent
26:52
Speaker 4: what Congress needs to say, And they were willing, I think,
26:54
Speaker 4: in that process to potentially make it much harder to
26:58
Speaker 4: bring private rights of action, you know, in a bunch
27:01
Speaker 4: of settings, not just in this one.
27:04
Speaker 3: So I mean, do you think that there are five
27:06
Speaker 3: votes in favor of Planned Parenthood and the right to sue?
27:11
Speaker 4: There might be. I mean, I think there's definitely possibility
27:14
Speaker 4: that Justice Barrett and Chief Justice Roberts will go that way.
27:17
Speaker 4: There were some interesting moments where Justice Barrett also telegraphed
27:20
Speaker 4: that there were other questions that might keep Planned Parenthood
27:23
Speaker 4: from receiving Medicaid anyway, In particular, the question of whether
27:27
Speaker 4: Planned Parenthood is a qualified provider right this case was
27:30
Speaker 4: about whether you have a right to sue if you're
27:32
Speaker 4: right to pick a qualified provider willing to participate in
27:36
Speaker 4: the medicaid program is denied. But that doesn't answer the
27:39
Speaker 4: question about whether South Carolina can just declare that Planned
27:42
Speaker 4: Parenthood isn't a qualified Medicaid provider, And Justice spirit suggested
27:47
Speaker 4: that she, you know, hadn't necessarily made up her mind
27:50
Speaker 4: on that point. The kind of whether qualified question, So
27:54
Speaker 4: we may see more litigation anyway.
27:57
Speaker 3: Could they decide not to decide or to send back
28:00
Speaker 3: for different questions.
28:02
Speaker 4: Yeah, I mean, I think this case is about the
28:04
Speaker 4: narrow issue of whether or not this language of the
28:07
Speaker 4: choice of provider provision creates a right to sue in
28:10
Speaker 4: federal court or not. But there could be separate litigation
28:15
Speaker 4: about whether planned parenthood is qualified. This case does not
28:18
Speaker 4: involve that question, but another one could.
28:22
Speaker 2: So.
28:22
Speaker 3: Isn't there a twenty twenty three ruling involving the rights
28:26
Speaker 3: of nursing home residents where the Supreme Court said that
28:30
Speaker 3: laws like Medicaid give individuals the right to sue.
28:35
Speaker 6: Yeah.
28:35
Speaker 4: Yeah, So there was a twenty twenty three ruling from
28:38
Speaker 4: the Supreme Court that you know, laid out a framework
28:41
Speaker 4: for determining when you have a right to sue. It
28:43
Speaker 4: was about a different part of the Medicaid statute, but
28:46
Speaker 4: it was about a right to sue under a part
28:48
Speaker 4: of the Medicaid statute. So I think again, some of
28:52
Speaker 4: the justices were simply saying, well, we've already answered this question.
28:56
Speaker 4: We were clear enough. We don't need to rewrite the
28:59
Speaker 4: test in narrow rights to sue, even further or create
29:02
Speaker 4: an even higher bar for Congress to clear when it
29:05
Speaker 4: wants to suggest that there is in fact a right
29:07
Speaker 4: to sue, and some of the justices, like Justice Kavanaugh,
29:10
Speaker 4: at various points said the fact that this case exists,
29:13
Speaker 4: the fact that their disagreements within the circuit courts, suggests
29:16
Speaker 4: that the Court should tweak that twenty twenty three rulings further.
29:22
Speaker 3: There seems to be a real divide in the views
29:25
Speaker 3: of the people who heard the oral arguments about which
29:29
Speaker 3: side the justices were leaning in.
29:33
Speaker 4: Yeah, I didn't get a clear reading on it either.
29:36
Speaker 4: I think that if you're trying to place bets, if
29:40
Speaker 4: people are that not in accord on what the justices
29:43
Speaker 4: are doing, it's safe to assume that we don't know
29:46
Speaker 4: what the justices are doing, so that there's more uncertainty
29:50
Speaker 4: going in in terms of whether this decision goes the
29:54
Speaker 4: way of planned parenthood or not. I mean, I think ultimately,
29:57
Speaker 4: whatever happens, the effort to defund planned parenthood is going
30:00
Speaker 4: to continue. The other thing that's probably worth emphasizing is
30:04
Speaker 4: that's in part because keeping planned parenthood out of some
30:07
Speaker 4: states medicaid programs will have the least significant impact on
30:11
Speaker 4: Planned Parenthood's political and advocacy work. It will have the
30:15
Speaker 4: most impact on the ability of affiliates in states like
30:18
Speaker 4: South Carolina to provide non abortion services. So that's really
30:24
Speaker 4: what's on the line here, and there will likely be
30:28
Speaker 4: ongoing efforts to defund that kind of work regardless of
30:31
Speaker 4: what Supreme Court does here.
30:32
Speaker 3: Three states, right, Texas, Arkansas, Missouri already block Planned Parenthood
30:37
Speaker 3: from seeing Medicaid patients.
30:39
Speaker 4: That's correct, and we would expect to see more follow
30:42
Speaker 4: suit if the Supreme Court gives the green light.
30:45
Speaker 3: Have there been suits over that those three states?
30:47
Speaker 4: Yeah, I mean there have been lots of suits over
30:50
Speaker 4: time about this choice of provider provision. There have been
30:54
Speaker 4: efforts to keep Planned Parenthood out of the Medicaid program,
30:57
Speaker 4: going back at least to the two thousand oughts in
31:00
Speaker 4: twenty tens, all of them kicked off by Lilah Rose
31:04
Speaker 4: and her now famous viral videos that were heavily edited
31:08
Speaker 4: and shot at Planned Parenthood. So we've seen litigation of
31:12
Speaker 4: this kind often on now for decades. And what was notable,
31:17
Speaker 4: of course, is the Supreme Court even took this case, right,
31:19
Speaker 4: I mean, there had not been four votes on the
31:21
Speaker 4: Court to take the case about the Medicaid choice of
31:24
Speaker 4: provider provision. To date, even though there has been fighting
31:27
Speaker 4: in the lower courts about it for some time.
31:29
Speaker 3: Trump in his first term tried to strip funding from
31:33
Speaker 3: Planned parenthood. What's he doing in this second term.
31:36
Speaker 4: So far, Well, we've seen different sort of ways the
31:40
Speaker 4: Trump administration is attacking this kind of funding. So obviously,
31:46
Speaker 4: just a day ago, the Trump administration announced it was
31:51
Speaker 4: withholding tens of millions of dollars from Planned parenthood clinics
31:55
Speaker 4: under the Title ten program. At the moment, the notification
31:59
Speaker 4: said the funding was being temporarily withheld on the basis
32:03
Speaker 4: of quote possible violations unquote of federal civil rights laws.
32:08
Speaker 4: In particular, there were references to DEI programming and subsitization
32:13
Speaker 4: of open borders, nothing particularly about a work or contraception,
32:18
Speaker 4: and no sense in which these grants will necessarily be permanent.
32:22
Speaker 4: But of course, in the last Trump administration there was
32:25
Speaker 4: subsequently rule making on Title ten that led to essentially
32:31
Speaker 4: not allowing Title ten recipients to refer patients for abortion
32:35
Speaker 4: or discuss it as an option, and those rules were
32:38
Speaker 4: later scrapped by the Biden administration. We could see more
32:41
Speaker 4: rulemaking like that from Trump in the future. But rulemaking
32:44
Speaker 4: is you know, obviously more time consuming and a slower
32:48
Speaker 4: process than what we're already seeing, which is this temporary pause.
32:54
Speaker 3: Finally, can you sum up what the ramifications of a
32:57
Speaker 3: ruling against Planned parenthood would be.
33:00
Speaker 4: It would not be an end to Planned Parenthood as
33:03
Speaker 4: a kind of major political player, because Planned parenthod's bylaws
33:08
Speaker 4: ensure that a lot of the money it takes in
33:10
Speaker 4: from private donations and foundations, which often tends to take
33:13
Speaker 4: in more money in the face of adverse rulings like this,
33:16
Speaker 4: goes to Planned Parents' advocacy work. So the impact of
33:21
Speaker 4: being kicked out of Medicaid programs in some Red states
33:24
Speaker 4: and probably a growing number of Red states, would fall
33:26
Speaker 4: most heavily on local affiliates that rely on those Medicaid
33:30
Speaker 4: reimbursements and on donations to them, specifically often from local donors,
33:35
Speaker 4: so they would take the hit financially, and that would
33:37
Speaker 4: have likely an adverse impact on patients in communities that
33:40
Speaker 4: already have a lack of access to primary healthcare and
33:44
Speaker 4: certainly to obstetric and gynecological care. Though it would be
33:48
Speaker 4: less of a blow to Planned parent as a political
33:51
Speaker 4: actor and more of a blow to patients in underserved communities.
33:55
Speaker 3: Always a pleasure, Mary, Thanks so much. That's Professor Mary Ziegler.
33:59
Speaker 3: I've used law school. And that's it for this edition
34:02
Speaker 3: of The Bloomberg Law Show. Remember you can always get
34:05
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