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Cases to Watch in the Supreme Court's New Term · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
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Speaker 2: Honorable, the Chief Justice and the Associate Justices of the
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Speaker 2: Supreme Court of the United States.
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Speaker 3: Oh yay, oh yay, Oh yay.
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Speaker 4: The Supreme Court justices returned to the bench on Monday
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Speaker 4: to kick off a new term with high profile cases
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Speaker 4: over transgender rights, ghost guns, and the death penalty. The
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Speaker 4: justices are coming off a blockbustered term marked by a
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Speaker 4: barrage of highly controversial, far reaching rulings, including decisions on
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Speaker 4: presidential immunity and rolling back the power of federal agencies.
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Speaker 4: The Court is facing continuing criticism and calls for reform
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Speaker 4: after ethical controversies, and with public trust in the Court
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Speaker 4: continuing its downward spiral to historic lows. Add to that
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Speaker 4: the fact that some of the justices have publicly expressed
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Speaker 4: concerns about the Court's direction. Justice Sonya Sotomayor revealed that
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Speaker 4: there are days when she comes back to her office
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Speaker 4: after the announcement of a decision, closes the door and cries.
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Speaker 1: Every loss truly traumatizes me in my stomach and in
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Speaker 1: my heart. But I have to get up the next
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Speaker 1: morning and keep on fighting.
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Speaker 4: Justice Elena Kagan says, she expresses her frustrations about the
1:31
Speaker 4: Court not playing by the rules in a different way.
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Speaker 5: I got where the frustration comes from. I'm more of
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Speaker 5: a wolf slammer, you know, come back to my room
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Speaker 5: and punch you know. Yeah, I am frustrated and saddened
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Speaker 5: by that. And what I take that to me in
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Speaker 5: is you know that courts should respect precedent except in
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Speaker 5: unusual cases. I take it to me, and that courts
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Speaker 5: should spect and adhere to their own methodological commitments.
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Speaker 4: The new term is shaping up to be less contentious
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Speaker 4: than the last, but it's still early. More cases will
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Speaker 4: be added to the docket and the Court could be
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Speaker 4: drawn into the contentious presidential election. Joining me is former
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Speaker 4: United States Solicitor General Gregory gar the Global Chair of
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Speaker 4: the Supreme Court and appellate practice at Latham and Watkins.
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Speaker 4: Greg The Supreme Court's coming off this blockbuster term some
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Speaker 4: highly controversial six to three decisions. There are continuing calls
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Speaker 4: for reform. Public trust is on a downward slide. What's
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Speaker 4: on the line, if anything, for the Court this term.
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Speaker 6: Well, I think a lots on the line. Every year
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Speaker 6: for the Supreme Court is a big year. As you say,
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Speaker 6: there's been some clouds surrounding the Supreme Court recently, and
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Speaker 6: so they've got to go back to work, and they've
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Speaker 6: got to, you know, as always, work on building and
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Speaker 6: sustaining the public trust. They've got twenty eight cases so far,
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Speaker 6: which is light as the docket's been in recent terms.
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Speaker 6: But things always heat up in October and we expect
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Speaker 6: that the Court will add to its docket, and for
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Speaker 6: all we know, there could be election related cases down
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Speaker 6: the pipeline as well.
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Speaker 4: Well, let's take a look at some of the cases
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Speaker 4: coming up at the court.
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Speaker 7: If you order practice like this and over here, it
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Speaker 7: includes the parts you need, the direction of assembling a
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Speaker 7: functioning firem. You bought a gun.
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Speaker 4: President Joe Biden demonstrated how easy ghost guns are to
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Speaker 4: assemble at home in less than thirty minutes. Now his
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Speaker 4: administration is at the Supreme Court defending its regulation of
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Speaker 4: ghost guns, and this case will be argued on Tuesday.
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Speaker 8: Greg tell us about the issues.
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Speaker 6: So, the Court has taken a number of gun cases
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Speaker 6: in recent years, and they sort of fall into two dockets.
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Speaker 6: One set of cases involves challenges under the Second Amendment
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Speaker 6: and the individual right to their firearms. The second involves
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Speaker 6: more traditional administrative law type challenges, where the argument is
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Speaker 6: that an agency has to rule involving guns that exceeds
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Speaker 6: its statutory authority. The ghost gun case falls into that
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Speaker 6: latter category. As you noted, it involves a challenge of
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Speaker 6: twenty twenty two regulation by the Bureau of Alcohol, Tobacco
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Speaker 6: and Firearms that defines kits that are sold with parts
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Speaker 6: that can be used to assemble a gun in as
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Speaker 6: little as thirty minutes. And the rule says that those
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Speaker 6: kits qualify as a firearm under the Gun Control Act
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Speaker 6: and can be regulated as such. And that's important, the
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Speaker 6: government claims, because the guns, once assembled, lack serial numbers,
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Speaker 6: and so that's why they're known as ghost guns. So
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Speaker 6: this case is a lot like the bump stock case
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Speaker 6: that the Supreme Court decided last year Garland versus car Hill.
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Speaker 6: In that case, the court invalidated a rule regulating bump
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Speaker 6: stocks as going beyond the technical definition in a statute
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Speaker 6: barring machine guns. So we can expect a very technical
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Speaker 6: review of the part kits and ghost guns in this
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Speaker 6: case and whether that assemblage qualif as a firearm under
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Speaker 6: the Gun Control Act. The Court previously undered in order
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Speaker 6: in this case, allowing the government to reinstate the rule
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Speaker 6: while it was being litigated. But Justices Thomas, Alito and
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Speaker 6: Gorsich and Kavanaugh all descended from that, which means that
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Speaker 6: the Chief Justice and Justice Barrett likely hold the controlling
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Speaker 6: votes in this case.
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Speaker 4: Can you read anything into the fact that the Court
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Speaker 4: is allowing the rule to be enforced until it's settled
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Speaker 4: at the Supreme Court.
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Speaker 6: I wouldn't read too much into that, June. You know,
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Speaker 6: now that the case is before the Court, I think
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Speaker 6: the justices will take a close look at it. I
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Speaker 6: think what is significant is that in that prior order
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Speaker 6: you had four justices descending, So you can expect that
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Speaker 6: those justices are probably skeptical of the rule as it
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Speaker 6: arives at the Court.
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Speaker 4: As you said, this is really a conventional statutory interpretation case.
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Speaker 4: The Justices sidestepped a lot of appeals over the Second Amendment,
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Speaker 4: including challenges to bans in Illinois on assault style weapons
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Speaker 4: and large capacity magazines and federal bands on firearm possession
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Speaker 4: by felons and drug users. Do you think they're taking
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Speaker 4: a break from the Second Amendment.
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Speaker 6: I think some of them would like to take a
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Speaker 6: break from the Second Amendment, but the cases keep coming.
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Speaker 6: The recent decision a few terms ago in Bruin sort
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Speaker 6: of re establishing the framework for evaluating Second Amendment challenges,
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Speaker 6: has created a lot of litigation. There's more cases in
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Speaker 6: the pipeline, so I think, whether anyone likes it or not,
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Speaker 6: I think we're going to see a stream of gun
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Speaker 6: cases arriving at the Supreme Court.
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Speaker 4: On Wednesday, the court is going to hear a death
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Speaker 4: penalty case that dates back to two thousand and four
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Speaker 4: when Richard Glossip was convicted of murder and sentenced to death.
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Speaker 4: His execution date has been set nine times and he's
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Speaker 4: had his last meal three times.
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Speaker 9: It does get to the point where you go through
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Speaker 9: it so many times and you're sitting there thinking to yourself, Man,
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Speaker 9: is this ever going to end? I mean, one way
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Speaker 9: or the other. Either give me my freedom back and
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Speaker 9: we've already proven that I'm in it there, or you'll
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Speaker 9: just get it over with that you don't have to
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Speaker 9: keep going through it.
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Speaker 4: The documentary Killing Richard Glossop added to the notoriety. His
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Speaker 4: case is gained. Greg Glossip remains on death row, despite
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Speaker 4: the fact that the case against him has fallen apart
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Speaker 4: in many ways over the last twenty years.
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Speaker 6: This is truly someone who has had almost nine lives already.
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Speaker 6: So he was sentenced to death for a killing at
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Speaker 6: a motel in Oklahoma City in which the case really
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Speaker 6: turned on the testimony of one individual who worked at
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Speaker 6: the hotel and who said that Richard Glossip paid demand
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Speaker 6: to kill the victim. And what makes this case really
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Speaker 6: interesting today is that Glossop's challenge is now supported by
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Speaker 6: the people who sought the death penalty against him, the
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Speaker 6: prosecutor's attorney general in this case of Yoklahoma, who now agrees,
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Speaker 6: based on newly discovered evidence that glossop conviction is tainted
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Speaker 6: by constitutional errors, including very important Brady error. Brady is
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Speaker 6: the decision in which puts an obligation on the prosecution
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Speaker 6: to come forward with excilpblatory evidence in criminal cases. In
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Speaker 6: this case, the claim is based on the prosecution's failure
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Speaker 6: to turn over excilplatory evidence that bore in the credibility
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Speaker 6: of the state's star witness, again, this man who claimed
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Speaker 6: that Glossip paid him to kill the victim. The Oklahoma
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Speaker 6: Court of Appeals refused to set aside gloss of death sentence.
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Speaker 6: Even notwithstanding the attorney general's own confession of error in
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Speaker 6: the case, Supreme Court, which hasn't taken many death cases
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Speaker 6: in the past few years, granted review. So now it'll
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Speaker 6: be really interesting to see what the Supreme Court does
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Speaker 6: as it reviews gloss of claims of constitutional error again
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Speaker 6: with the attorney general of the state separately represented are
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Speaker 6: doing alongside glossop and then looking in the background of
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Speaker 6: this case is the interesting question of how courts should
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Speaker 6: treat a state's own confession of error in a decade's
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Speaker 6: old case. On the one hand, you think that would
9:00
Speaker 6: be a pretty compelling reason to re examine and perhaps
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Speaker 6: set aside a conviction. On the other hand, there have
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Speaker 6: been some concerns of political considerations that could enter the
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Speaker 6: mix as you go from one administration to the next.
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Speaker 6: So that the court's going to take a close and
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Speaker 6: fresh look at this case.
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Speaker 4: The Court's not going to consider all the alleged errors
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Speaker 4: by police and prosecutors, but just that prosecutors didn't turn
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Speaker 4: over these handwritten notes that the state's key witness was
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Speaker 4: suffering from a serious mental disorder.
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Speaker 6: Yeah, that's exactly right. There are a lot of claims
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Speaker 6: in the case. But the Supreme Court's review here is
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Speaker 6: going to focus on that Rady error, which involved the
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Speaker 6: failure to turn over those notes which mister Glossip claims
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Speaker 6: could have been used to impeach this witness, whose testimony
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Speaker 6: the case I think both sides agree basically turned on.
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Speaker 4: The Supreme Court has a history of allowing executions to
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Speaker 4: go forward, finding that state conviction should remain final even
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Speaker 4: when evidence reveals the convictions to be unreliable. Just last week,
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Speaker 4: in a six to three decision, the Court allowed Missouri
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Speaker 4: to execute a man despite opposition to the execution from
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Speaker 4: the prosecutor's office and the victim's family. So if the
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Speaker 4: Court sticks to the idea that state convictions should be final,
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Speaker 4: will it make any difference how strong the evidence of
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Speaker 4: a constitutional violation is in Glossop's case.
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Speaker 6: I think you're right, June, that the Court has been
10:29
Speaker 6: hesitant to overturn state court convictions in a way. It
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Speaker 6: has to be because of the statutory law governing habeas
10:37
Speaker 6: corpus and the like. But nevertheless, here there are clean
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Speaker 6: constitutional claims of error, including Brady, and that's something that
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Speaker 6: justices on both sides of the ideological spectrum they have
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Speaker 6: taken very seriously, and the fact that this is a
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Speaker 6: death case only raises the stake. So I think it's
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Speaker 6: the court it looks at this record and agrees there
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Speaker 6: is constitutional error here. I would supprise if it didn't
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Speaker 6: take some form of corrective action, But there's no doubt
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Speaker 6: that those challenging death sentences face an uphill battle before
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Speaker 6: the current court.
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Speaker 4: Stay with me, Greg. Coming up next on the Bloomberg
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Speaker 4: Law Show, I'll continue this conversation with former US Solicitor
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Speaker 4: General Gregory gar will discuss probably the most high profile
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Speaker 4: case this term, involving a polarizing issue in this country,
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Speaker 4: a ban on gender transition care for minors, plus a
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Speaker 4: free speech case involving age verification requirements for pornographic websites,
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Speaker 4: and a challenge to the FDA's refusal to allow flavored
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Speaker 4: VP products on the market. I'm June Gross when you're
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Speaker 4: listening to Bloomberg, we.
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Speaker 7: Need to push back against the hundreds of callous and
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Speaker 7: cynical bills and laws introduced in states targeting transgender children,
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Speaker 7: terrifying families, and criminalizing doctors and nurses. These bills and
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Speaker 7: laws attack the most basic values freedoms we have as Americans.
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Speaker 7: That's not hyperble, that's a fact, the right to be yourself.
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Speaker 4: On Pride Day last year, President Joe Biden addressed perhaps
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Speaker 4: one of the most politically divisive issues in the country,
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Speaker 4: gender transition care for miners. In the last three years alone,
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Speaker 4: half the states have enacted laws barring miners from accessing
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Speaker 4: gender affirming healthcare, and now the Biden administration will be
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Speaker 4: challenging Tennessee's ban on gender transition care for miners at
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Speaker 4: the Supreme Court in one of the most high profile
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Speaker 4: cases of the term. I've been talking to former US
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Speaker 4: Solicitor General Gregory Garr, a partner at Latham and Watkins
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Speaker 4: Greig tell us about the issues in this case.
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Speaker 6: So this is really the one big culture war case
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Speaker 6: that's currently on the docket right now. It involves a
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Speaker 6: challenge to a Tennessee law that bars gender type medical
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Speaker 6: procedures or treatment for miners, including surgeries and puberty blockers
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Speaker 6: and hormone treatments and the like. And it's a lot
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Speaker 6: that twenty one others day have enacted right now in
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Speaker 6: similar form, and several individuals backed by the Biden administration
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Speaker 6: itself have challenged the law on the ground that it
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Speaker 6: rests on a sex based classification that violates the Equal
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Speaker 6: Protection Clause. The Sixth Circuit upheld the law below Supreme
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Speaker 6: Court granted review and that the key question now is
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Speaker 6: whether the law triggers heightened scrutiny under the equal Protection
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Speaker 6: clause or instead the much lower rational basis review. And
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Speaker 6: that turns on whether you view the Tennessee laws making
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Speaker 6: a classification based on sex or instead one that is
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Speaker 6: based on the regulation of access to medical care and
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Speaker 6: that acts on an even handed basis among miners regardless
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Speaker 6: of sex. And what's interesting about this is that question
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Speaker 6: implicates a case from a few terms ago Bostk versus
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Speaker 6: Clayton County, in which the Court, in a closely divided
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Speaker 6: opinion written by Justice Gorsicic joining with the more liberal justices,
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Speaker 6: held the Title seven's prohibition against sex based discrimination applies
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Speaker 6: to sexual or so. The US argues that the reason
14:02
Speaker 6: of Mastuk leads to the conclusion that laws concerning access
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Speaker 6: to gender treatments are sex based in the sense that
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Speaker 6: one who is male at birth can get testosterone treatments,
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Speaker 6: but a female at birth can't. Whereas the state argues
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Speaker 6: in this case that the law doesn't draw any distinction
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Speaker 6: based on sex because it simply applies to all minors
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Speaker 6: and borrowers access to these treatments in the case of
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Speaker 6: gender type procedures for all individuals regardless of sex. Lurking
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Speaker 6: in the background of this case is a debate over
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Speaker 6: the medical importance of these treatments for those seeking access
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Speaker 6: to them, which you could well color the legal arguments
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Speaker 6: on both sides of the case.
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Speaker 4: So could this decision establish a landmark legal precedent.
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Speaker 6: I think it's going to be quite important because this
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Speaker 6: is one of the early cases in which the Court
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Speaker 6: has confronted the issue of transgender rights and laws drawing
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Speaker 6: classifications of this type. So, although I suspect that the
15:01
Speaker 6: Court's decision will be focused on the Tennessee law at
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Speaker 6: issue here, I think it could have long term implications
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Speaker 6: for laws and actions dealing with this important question.
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Speaker 4: Another case involving miners is about age verification for pornographic websites,
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Speaker 4: and it's a First Amendment case.
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Speaker 6: So Texas enacted a law that says that any website
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Speaker 6: that publishes pornographic or other harmful material must require users
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Speaker 6: to verify that they're eighteen years or older in order
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Speaker 6: to access the site using various forms of virtual ideas.
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Speaker 6: And the argument that the plan is brought in this
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Speaker 6: case is that the law violates the First Amendment by
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Speaker 6: burdening adults rights to access the material on such websites
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Speaker 6: by basically making it more burdens than their cumbersome to
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Speaker 6: have to show an idea or the like to get
15:54
Speaker 6: onto the site. The Fifth Circuit upheld the law in
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Speaker 6: the Supreme Court granted review. This is another case where
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Speaker 6: that the big ques question is how strictly the court
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Speaker 6: has to review the law. Do you apply strict scrutiny
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Speaker 6: or the much lower form of review rational basis, And
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Speaker 6: that turns on the Court's reading of a fifty five
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Speaker 6: year old case called Ginsburg versus New York in nineteen
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Speaker 6: sixty eight, in which the Court held that the States
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Speaker 6: may restrict miners' access to pornographic material. But in more
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Speaker 6: recent cases, including case ten years or so ago in
16:23
Speaker 6: Ashcroft versus acl You, the Court has subjected laws restricting
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Speaker 6: adult access to websites and the like to strict scrutiny.
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Speaker 6: And this court has established itself as very pro First
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Speaker 6: Amendment and arguably is one of the most pro First
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Speaker 6: Amendment courts in the Court's history, so it'll be interesting
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Speaker 6: to see how it analyzes this law.
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Speaker 4: So the Supreme Court in April refused a request by
16:47
Speaker 4: the challengers to halt enforcement of the law while litigation.
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Speaker 8: In the dispute proceeds.
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Speaker 4: Every time they do something like that, I say, does
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Speaker 4: that indicate where they're going here?
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Speaker 6: I mean, of course, if the court really hates a law,
17:01
Speaker 6: it's kind of prevented from being in forced, So that
17:03
Speaker 6: that's a strong indication it's not going to get a
17:05
Speaker 6: favorable reception when it arrives. But it's a really high
17:08
Speaker 6: standard to invalidate a law during litigation. And so I
17:13
Speaker 6: think that's, you know, one sort of tea leaf. But
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Speaker 6: I think that in itself is unlikely to tell us
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Speaker 6: much about how the Court would resolve this case. So
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Speaker 6: this well could be a case that involves an interesting
17:22
Speaker 6: lineup in a narrow decision.
17:24
Speaker 4: And another case concerns vaping and young people and get
17:27
Speaker 4: your head.
17:28
Speaker 2: Out of the cloud.
17:29
Speaker 3: Today nearly eight thousand kids will start vaping in maybe
17:32
Speaker 3: even yours learn about the dangers.
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Speaker 4: Despite the many warnings, middle and high school students used
17:39
Speaker 4: e cigarettes or vapes more than any other tobacco product
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Speaker 4: this year, and most of them used flavored vapes, according
17:46
Speaker 4: to the CDC. So Greg, the Supreme Court is going
17:49
Speaker 4: to hear this case over the Food and Drug Administration's
17:52
Speaker 4: power to bar flavored vaping products over concerns they're likely
17:57
Speaker 4: to appeal to young people.
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Speaker 6: And here it's a challenge to the FDA's defense of
18:03
Speaker 6: its rejection of the applications by two companies who sell
18:06
Speaker 6: flavored vaping products. The FAA declined the application, as it
18:10
Speaker 6: has done for most similar applications, because of public health
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Speaker 6: concerns stemming from the use of flavored vaping products and
18:17
Speaker 6: the attraction of minors. And so the companies argued here
18:20
Speaker 6: that the FDA had violated the Administrative Procedures Act by
18:24
Speaker 6: acting arbitrarily and capriciously, in that it engaged in sort
18:27
Speaker 6: of an unfair surprise by changing the rules for evaluating
18:32
Speaker 6: these applications in midstream with that fair notice, and improperly
18:36
Speaker 6: refusing to consider certain evidence. It was something of a
18:39
Speaker 6: surprise that the Fifth Circuit here broke with other courts
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Speaker 6: that had faced similar challenges and finding that the FDA
18:45
Speaker 6: had acted unlawfully into approving these applications, and so I
18:49
Speaker 6: think that this could be a sleeper case. And it's
18:52
Speaker 6: definitely an interesting case to follow because it's really more
18:55
Speaker 6: of a Nuts and Bolt's administrative law case than sort
18:58
Speaker 6: of an e cigarette case. But a decision upholding the
19:01
Speaker 6: Fifth Circuit I think would invigorate arbitrary and capricious challenges
19:06
Speaker 6: to all sorts of rules. And one thing that we've
19:09
Speaker 6: seen in the past few years, as you know, is
19:11
Speaker 6: the Supreme Court taking an intense interest in administrative law
19:15
Speaker 6: cases and really sort of pushing back on various aspects
19:19
Speaker 6: of the administrative state kept off last term. Of course,
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Speaker 6: in the decision overturning several deference.
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Speaker 4: Could there be far reaching implications of ruling against the
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Speaker 4: FDA in a case like this concerning the health of
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Speaker 4: young people? Or is the issue narrower in just concerning
19:38
Speaker 4: the arbitrary and capricious standard.
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Speaker 6: In a sense, it's broader, June, I think it does
19:44
Speaker 6: raise public health implications of allowing these sorts of products
19:48
Speaker 6: which FDA is regulating. And of course, if the Supreme
19:51
Speaker 6: Court affirms the Fifth Circuit here, it doesn't mean that
19:53
Speaker 6: the applications would be granted, it would mean that the
19:56
Speaker 6: FDA would have to go back and take another look
19:58
Speaker 6: at them. Presumably, the broader implications here are if the
20:02
Speaker 6: Supreme Court agrees that the agencies acted arbitrarily here, then
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Speaker 6: I think what it would mean is that courts would
20:08
Speaker 6: have to take a much closer look at agency decision
20:12
Speaker 6: making and claims that agencies have changed the rules sort
20:16
Speaker 6: of in the course of an administrative decision making process.
20:20
Speaker 6: That's the sort of claim that agencies, you know, typically
20:24
Speaker 6: at one a decade or so ago, and you know
20:27
Speaker 6: it's tougher sledding these days. So I do think that
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Speaker 6: this is a really important case to keep our eyes home.
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Speaker 4: Next, let's turn to a business case involving the legal
20:36
Speaker 4: standards for investor claims in shareholder lawsuits. And this also
20:42
Speaker 4: happens to involve Crypto. Tell us a little about this case.
20:46
Speaker 6: So this is a technical securities case. The question is
20:49
Speaker 6: whether the heightened pleading requirements of the Private Securities Litigation
20:52
Speaker 6: Formact apply to allegations of security fraud based on internal
20:56
Speaker 6: company documents. That's a plan of seeking to establish the
21:00
Speaker 6: enter using company documents, have to allege the actual contents
21:05
Speaker 6: of those documents. And the question tends to come up
21:08
Speaker 6: when securities planets claim that a company's internal documents contradict
21:12
Speaker 6: its public statements that the company's executives and the like
21:16
Speaker 6: are making two investors. But oftentimes, or sometimes at leaves,
21:19
Speaker 6: the planets don't actually have their hands on the documents,
21:21
Speaker 6: so they're making allegations based on what they surmise are
21:24
Speaker 6: in the documents. In this case, the planeffs claim that
21:27
Speaker 6: the CEO of Navidia, a company in the manufacturer's computer chips,
21:31
Speaker 6: made public statements at odds with the company's reports about
21:34
Speaker 6: whether crypto miners or gamers were buying their chips, which
21:38
Speaker 6: became important when Navidia's revenues dropped after the twenty eighteen
21:43
Speaker 6: crypto crash. The planets argue that imposing a heightened pleading
21:47
Speaker 6: standard in this context is at odds with the PSLRA
21:50
Speaker 6: and the court's prior precedents, and the Supreme Court, though
21:53
Speaker 6: in prior cases, has generally sort of rigorously enforced these
21:58
Speaker 6: heightened pleading standards. There's a related question that comes up
22:01
Speaker 6: in this case which is interesting, which is whether a
22:03
Speaker 6: planeff can rely on expert testimony itself to establish the
22:07
Speaker 6: falsity of internal documents based on an assumption of what
22:11
Speaker 6: the information the documents contain. So that'll be one we
22:15
Speaker 6: want to follow as well. You know, the backdrop of
22:17
Speaker 6: this case is that business really has had something of
22:20
Speaker 6: a mixed record before this court in the past few terms.
22:24
Speaker 6: This is not a court that is reflectively ruling in
22:27
Speaker 6: favor of business, and so it will be interesting to
22:30
Speaker 6: follow this case and see where the court ends up here.
22:33
Speaker 4: So a decision here could give companies leverage for earlier
22:37
Speaker 4: dismissal of shareholder lawsuits.
22:40
Speaker 6: Exactly. If the heightened pleating standards apply to these sorts
22:44
Speaker 6: of claims and internal documents, then it's going to be
22:46
Speaker 6: much harder for plantiffs to bring claims based on internal
22:50
Speaker 6: company documents because they often don't have access to the
22:53
Speaker 6: full contents of those documents.
22:55
Speaker 4: Also on the docket an environmental case involving water pollution
23:01
Speaker 4: and the EPA's powers. And this is San Francisco suing
23:05
Speaker 4: the EPA. Not one of the cities I would expect
23:08
Speaker 4: to go against the EPA.
23:10
Speaker 6: Yeah, it's kind of an indication of where we arrived
23:12
Speaker 6: with aggressive environmental enforcement, where you've got San Francisco itself
23:16
Speaker 6: taking on the APA. So this case arises out of
23:19
Speaker 6: a permit issued by EPA under the Clean Water Act
23:22
Speaker 6: for San Francisco's discharge of sewage into the Pacific Ocean,
23:26
Speaker 6: and the question is whether the Clean Water Act authorizes
23:28
Speaker 6: EPA to impose general water quality standards on San Francisco
23:32
Speaker 6: and other jurisdictions for the quality of the receiving waters
23:36
Speaker 6: as opposed to specific what's called effluent limitations on discharges.
23:40
Speaker 6: San Francisco itself taking on the APA. So San Francisco
23:43
Speaker 6: argues that the Clean Water Act was intentionally designed to
23:46
Speaker 6: enable EPA to regulate what was coming out of the
23:49
Speaker 6: pipe or what's known as point sources through these effluent limitations,
23:53
Speaker 6: which impose specific limits on particular pollutants, and that you know,
23:56
Speaker 6: EPA is sort of changing the game when it's trying
23:59
Speaker 6: to imposed general water quality standards on the regulated which
24:04
Speaker 6: then is much more abstract and difficult for jurisdictions to
24:08
Speaker 6: comply with. But EPA says not so fast. EPA says
24:11
Speaker 6: that that the Clean Water Act can't be interpreted that narrowly,
24:15
Speaker 6: that although it refers to effluent limitations on discharge, that
24:19
Speaker 6: it also allows EPA to regulate water quality in other ways.
24:23
Speaker 6: The case really boils down to whether EPA's interpretation violates
24:26
Speaker 6: the Administrative Procedure Act on the ground that it contravenes
24:29
Speaker 6: the Statute. Now, this is exactly the sort of thing
24:32
Speaker 6: to which EPA would have asked for and received Chevron
24:35
Speaker 6: deference a decade or so ago after the liver Bright
24:38
Speaker 6: decision Last Room, though, it's going to have to fight
24:40
Speaker 6: this one out on the level playing field.
24:42
Speaker 4: And do you think that Lowerbright and the courts I'm
24:46
Speaker 4: going to say tendency to eliminate environmental protections or to
24:50
Speaker 4: rule against the EPA. I mean, last Rum, the Court
24:53
Speaker 4: blocked EPA's good neighbor ozone rule. Do you think that
24:58
Speaker 4: bodes ill for the EPA?
25:00
Speaker 6: I think it could. I mean there's been something of
25:02
Speaker 6: a perfect storm where you combine aggressive agency enforcement with
25:07
Speaker 6: reliance on broad statu story provisions, which is what we've
25:11
Speaker 6: seen come up time and again in these cases. And
25:13
Speaker 6: if that's the way the Supreme Court views this case,
25:16
Speaker 6: then EPA may be in for a fight.
25:19
Speaker 4: It's going to be an interesting term. Thanks so much
25:22
Speaker 4: for joining me, Greg for our yearly preview of the
25:25
Speaker 4: Supreme Court's term that's former US Solicitor General Gregory garr,
25:30
Speaker 4: a partner at Latham and Watkins. Coming up next. New
25:33
Speaker 4: York City Mayor Eric Adams may have more legal trouble.
25:37
Speaker 4: I'm June Grosso and you're listening to Bloomberg.
25:41
Speaker 10: I don't know any elected officials in this city that
25:45
Speaker 10: does not make a call on behalf of a constituent
25:49
Speaker 10: to address an issue. And I'm hopeful because I think,
25:54
Speaker 10: and I will continue to say, I did nothing wrong.
25:56
Speaker 4: New York City Mayor Eric Adams remains defined, proclaiming his
26:01
Speaker 4: innocence of federal corruption charges and resisting calls to resign,
26:06
Speaker 4: despite prosecutors revealing in court that there may be additional
26:10
Speaker 4: charges against the mayor and there will likely be indictments
26:14
Speaker 4: of people around him. Adams is already facing charges of bribery, conspiracy,
26:20
Speaker 4: and breaking campaign finance laws. Federal prosecutors say the former
26:24
Speaker 4: police captain secretly accepted illegal campaign contributions from foreign nationals
26:30
Speaker 4: and improper benefits, including luxury travel and perks from foreign
26:35
Speaker 4: business people. Adam's attorney has rolled out an aggressive defense
26:39
Speaker 4: both in court and in public, making a motion to
26:43
Speaker 4: dismiss part of the case accusing the government of leaking
26:47
Speaker 4: grand jury information and holding a press conference to attack
26:51
Speaker 4: the indictment. Alex Spiro says the mayor's flights, upgrades, meals,
26:55
Speaker 4: and hotel rooms do not count as bribes under federal law.
27:00
Speaker 3: Congressmen get upgrades, they get corner suites, they get better
27:04
Speaker 3: tables at restaurants, they get free appetizers, they have their
27:07
Speaker 3: iced t filled up. That's just what happens. That's the truth.
27:11
Speaker 3: And we don't in the law leave these public servants
27:15
Speaker 3: to be asking themselves every single time, every single day
27:18
Speaker 3: they have any interaction with the public, is accepting this
27:21
Speaker 3: or taking that appetizer or not waiting in line a
27:24
Speaker 3: violation of federal law.
27:25
Speaker 4: Joining me is former federal prosecutor Jennifer Rogers, a lecturer
27:29
Speaker 4: in law at Columbia Law School.
27:32
Speaker 8: The defense is.
27:32
Speaker 4: Being very aggressive. They made a motion to dismiss part
27:36
Speaker 4: of the case. Within days of the indictment. The defense
27:39
Speaker 4: attorney held a press conference. Is this for political purposes,
27:44
Speaker 4: a political strategy or is there a legal strategy in here?
27:48
Speaker 2: Well, I think they're trying to do all of it right.
27:51
Speaker 2: I Mean, he's a sitting official, so clearly they want
27:54
Speaker 2: to work on the political side, but you know, this
27:56
Speaker 2: is a legal case, their legal motions to be made,
27:59
Speaker 2: and you know, even the notion of him aggressively saying
28:03
Speaker 2: he's going to stay in office has legal implications because
28:08
Speaker 2: resigning could be part of a plea agreement, maybe getting
28:11
Speaker 2: him a more favorable deal if he wanted to do that.
28:14
Speaker 2: So I think it's all part and parcel of an
28:16
Speaker 2: aggressive overall defense strategy. But they really are being aggressive.
28:22
Speaker 2: I mean, you rarely see the motions about the grand
28:25
Speaker 2: jury lease alleging that prosecutors or agents somehow the government
28:29
Speaker 2: leaked information out of the grand jury. So I mean
28:32
Speaker 2: they're firing on all cylinders right now. It's going to
28:36
Speaker 2: keep the Southern District busy for sure.
28:38
Speaker 8: I mean that was.
28:39
Speaker 4: A point blank accusation that the Southern District had been
28:43
Speaker 4: leaking information about Adam's alleged crime for nearly a year.
28:49
Speaker 2: Yeah, I mean, I don't know what they're basing that on,
28:53
Speaker 2: and I think, you know, they better have receipts if
28:55
Speaker 2: they're going to allege something like that, So we'll see
28:58
Speaker 2: what they say. That would be unprecedented for the Southern
29:02
Speaker 2: District to be found guilty of something like that, so
29:06
Speaker 2: you know, my inclination is to say that that it's
29:08
Speaker 2: not true and that they won't find any basis to
29:11
Speaker 2: belief that that happened. But you know, obviously you never know.
29:14
Speaker 2: I mean, there could be a bad seed somewhere, but
29:16
Speaker 2: that is so opposite of the ethos of that office
29:20
Speaker 2: that you know, it would shock me if that ended
29:23
Speaker 2: up being true. So, you know, we'll see how it
29:25
Speaker 2: lays out.
29:26
Speaker 4: They're making a motion to dismiss the bribery charge, and
29:30
Speaker 4: the defense attorney said that doesn't amount to a federal
29:33
Speaker 4: crime at all. At first, they're saying there's no quid
29:36
Speaker 4: pro quo, that there was no contemporary exchange of this
29:41
Speaker 4: for that, and that Adams allegedly received these benefits over
29:46
Speaker 4: years and it wasn't connected to helping Turkey open its consulate.
29:51
Speaker 4: I mean, does there have to be a contemporaneous quid
29:54
Speaker 4: pro quo?
29:56
Speaker 2: So you have to have an agreement to do some
30:00
Speaker 2: thing before you give over whatever the benefit is. The
30:04
Speaker 2: Supreme Court ruled in the last term that it can't
30:07
Speaker 2: be a gratuity, which would mean kind of a tip
30:10
Speaker 2: after the fact. It has to be an agreement before.
30:13
Speaker 2: But I think the defense is being a little too
30:16
Speaker 2: aggressive with what they're saying. It has to be right.
30:19
Speaker 2: They're providing a more strict reading of the statute than
30:23
Speaker 2: is in the statutory language and then has been blessed
30:26
Speaker 2: by the Supreme Court. What has happened in the last
30:29
Speaker 2: fifteen years or so is all of these public corruption
30:33
Speaker 2: statutes have gone up for interpretation of the Supreme Court
30:36
Speaker 2: and have been narrowed and made more strict, except this one,
30:40
Speaker 2: which is Section sixty six six Federal Program bribery. This
30:44
Speaker 2: is the one that hasn't really been considered by the
30:46
Speaker 2: Court yet on this point. So you know, listen, they're
30:50
Speaker 2: kind of pitching an interpretation of this statute that it's
30:55
Speaker 2: theoretically possible the Supreme Court could agree with if this
30:58
Speaker 2: case or another case life gets up to the Supreme Court.
31:01
Speaker 2: But where the law sits now, I think they're being
31:05
Speaker 2: overly strict with what they're saying. So I think what's
31:08
Speaker 2: going to happen is that the judge is going to
31:11
Speaker 2: reject this motion right now and say it's a question
31:15
Speaker 2: of fact and the jury will have to decide whether
31:17
Speaker 2: or not they've met the quid pro quo requirement in
31:20
Speaker 2: this case. Per the statutory language, and then if Adams
31:24
Speaker 2: is convicted, as he appeals up the chain afterwards, then
31:27
Speaker 2: we'll see whether the Second Circuit and ultimately the Supreme
31:31
Speaker 2: Court are more in his mindset as far as what
31:35
Speaker 2: the statutes would be. But I think for now, prosecutors
31:38
Speaker 2: they're on safe ground with the charge as it is.
31:41
Speaker 4: Also, Mayor Adams and his defense counsel have said that
31:46
Speaker 4: courtesies to politicians are not federal crimes. His attorney, Spiro said,
31:51
Speaker 4: Congressmen get upgrades, they get corner suites, they get better
31:54
Speaker 4: tables and restaurants, they get free appetizers, they have their
31:57
Speaker 4: iced tea filled up.
31:58
Speaker 2: Yeah, okay, but you can't do it in exchange. You know,
32:02
Speaker 2: you can't offer benefits in exchange for those things of
32:06
Speaker 2: value that you're taking. There are also rules that apply
32:09
Speaker 2: to Adams that require him to file disclosure forms about
32:13
Speaker 2: benefits that he's getting over a certain amount of money,
32:16
Speaker 2: and he didn't file those forms properly with respect to
32:19
Speaker 2: all these benefits that are listed in the indictment. So
32:22
Speaker 2: you know, there's a non disclosure part of this that
32:27
Speaker 2: makes it look more suspicious that he understood that these
32:30
Speaker 2: were things that he should not be taking. And again
32:33
Speaker 2: it's all about the exchange, like could he take an
32:35
Speaker 2: upgrade if randomly he went to check in for his
32:38
Speaker 2: flight and someone said, hey, you're a great mayor. We'd
32:41
Speaker 2: like to upgrade you to business class. If there wasn't
32:44
Speaker 2: anything about and I expect something from you in return,
32:47
Speaker 2: then sure that wouldn't be bribery. But that's not what's
32:51
Speaker 2: being alleged here. So you know, part of their job
32:54
Speaker 2: is to try to kind of pooh pooh the allegations
32:56
Speaker 2: and make it seem like no big deal. So that's
32:58
Speaker 2: what they're doing here, and I understand that. But when
33:02
Speaker 2: they say things kind of generically like oh, it's like
33:05
Speaker 2: filling up your IC, it's not like filling up your IC.
33:09
Speaker 4: Now the donations from foreign sources through straw donors. His
33:13
Speaker 4: attorney said those charges are based on one Adam staffer
33:17
Speaker 4: who lied.
33:19
Speaker 2: Well, so this is interesting. I mean, listen, they want
33:21
Speaker 2: to say something about every part of the case, right,
33:23
Speaker 2: They don't want to concede anything at this point. What
33:26
Speaker 2: they're saying about this part of the case is what
33:28
Speaker 2: you would expect when there's a cooperating witness. Okay, there's
33:32
Speaker 2: evidence against our guy. Okay, this looks really bad, but
33:34
Speaker 2: that person is a liar. That's the oldest argument in
33:38
Speaker 2: the book, right, and that is clearly a question of facts.
33:41
Speaker 2: It's going to be for the jury at trial. There's
33:44
Speaker 2: no way that piece of the case is getting dismissed
33:46
Speaker 2: at this point or any point before trial and the jury.
33:50
Speaker 2: We'll have to sort it out when this person tensifies.
33:52
Speaker 2: Do we believe her? Is she credible? Is there other
33:55
Speaker 2: evidence in the case that corroborates her? And prosecutors, as
33:58
Speaker 2: you know, will be working hard. They are they have been,
34:00
Speaker 2: I'm sure, but will continue to work hard to find
34:03
Speaker 2: corroborating evidence that they will present to the jury so
34:06
Speaker 2: that they can say it's not just her, it's all
34:08
Speaker 2: this other information. It's text messages, it's you know, other
34:11
Speaker 2: people testifying similarly, and so on. The one thing about
34:15
Speaker 2: this piece of the case, which generally I think is
34:18
Speaker 2: quite strong given what's listed in the indictment, is that
34:22
Speaker 2: it's not all that much money, at least as they've
34:25
Speaker 2: laid it out so far. I mean, they talk about
34:29
Speaker 2: ten million dollars in matching funds that the campaign received,
34:33
Speaker 2: but that's the overall amount of matching funds, not the
34:36
Speaker 2: amount of funds that were foreign donors or the use
34:40
Speaker 2: of straw donors. So that amount seems to be much
34:43
Speaker 2: much smaller. And so it'll be interesting to see as
34:46
Speaker 2: this case developed, if they will come up with more,
34:50
Speaker 2: you know, if they're currently scrubbing all of his donations
34:53
Speaker 2: to try to see if there were other straw donors
34:54
Speaker 2: or other foreign donors, because I think they will want
34:57
Speaker 2: to get that to be as big a number as possible.
35:00
Speaker 2: Otherwise you risk the jury saying really, only you know,
35:03
Speaker 2: fourteen thousand dollars or whatever it is, that's not a
35:06
Speaker 2: lot of money to be taken from the city.
35:09
Speaker 4: Is this count the straw donor's count? Is that a
35:11
Speaker 4: more straightforward count legally than the bribery, whereas it's more factual.
35:17
Speaker 2: Yeah, they're both factual, but this one is cleaner. I mean,
35:21
Speaker 2: if the people who gave them money were foreign, you
35:24
Speaker 2: can prove the straw donor scheme, and you prove that
35:27
Speaker 2: Adams knew about it, and how did people do it purposefully?
35:31
Speaker 2: Then that's it. You don't have to worry about, you know,
35:34
Speaker 2: the timing of the exchange and was.
35:37
Speaker 4: This for that?
35:38
Speaker 2: And it is a little cleaner, I think, which is
35:40
Speaker 2: why I say it's stronger. And the only concern that
35:44
Speaker 2: I have about that piece of it is that I
35:46
Speaker 2: just don't think the amounts seemed to be very high. Now,
35:49
Speaker 2: the foreign element of it, the fact that there were
35:52
Speaker 2: foreign donors, the amount doesn't really matter. I mean, you're
35:55
Speaker 2: not allowed to accept money in your campaign from foreign people,
35:59
Speaker 2: or even on New York City residents. I mean, it's
36:01
Speaker 2: not just out of the US. You know, these people
36:03
Speaker 2: have to be New York City residents in order to
36:06
Speaker 2: get the matching funds, so that doesn't really have an
36:08
Speaker 2: amount tied to it per se. But for the New
36:11
Speaker 2: York City residents for whom matching funds were given at
36:14
Speaker 2: an eight to one ratio, So if you give up
36:17
Speaker 2: to two hundred and fifty dollars, it's matched eight to one,
36:20
Speaker 2: you get two thousand dollars from the city. That's where
36:23
Speaker 2: I think they don't have a high number of straw
36:26
Speaker 2: donors that they can say definitively, at least in the indictment.
36:30
Speaker 2: Now were straw donors from these foreign donations. So I'm
36:34
Speaker 2: looking to see if they actually come up with a
36:36
Speaker 2: bigger number as they continue to investigate well.
36:39
Speaker 4: At a hearing this week, the federal prosecutors said they're
36:42
Speaker 4: pursuing several related investigations that could lead to additional corruption
36:46
Speaker 4: charges against Atoms and quite likely indictments for people in
36:51
Speaker 4: his orbit.
36:52
Speaker 2: Yeah, and that's the way that they work, That's how
36:55
Speaker 2: I would expect them to do things. I mean, we
36:57
Speaker 2: know already that there have been investigations in members of
37:00
Speaker 2: his administration, and those may be unrelated to Adams, so
37:05
Speaker 2: that may not result in any more charges for him.
37:08
Speaker 2: But I also think they will try to expand this
37:10
Speaker 2: particular investigation. The indictment suggests that there were numerous other
37:14
Speaker 2: people who were involved in this game, right, who were
37:16
Speaker 2: helping him, not just the one aid of his So
37:19
Speaker 2: I would think that there will be more people charged
37:23
Speaker 2: or if not charged along with Adams, that they would
37:26
Speaker 2: please separately and become cooperating witnesses. You know, one of
37:29
Speaker 2: the things that always happened after you bring an indictment
37:32
Speaker 2: is that people come forward, right, So people who were
37:35
Speaker 2: previously maybe afraid to talk will come forward. People who
37:39
Speaker 2: think that they're now in danger of being caught up
37:42
Speaker 2: in the case themselves may actually start to cooperate. So
37:45
Speaker 2: As you get more witnesses in and you learn more,
37:49
Speaker 2: you may find out things. You may find out that
37:51
Speaker 2: when this investigation broke and they started talking to people
37:54
Speaker 2: that Eric Adams are, people close to him were contacting
37:57
Speaker 2: potential witnesses and telling them, you know, not to cooperate,
38:00
Speaker 2: to wipe their phones. There's already some evidence in the
38:03
Speaker 2: indictment about you should erased all your text messages with me, etc.
38:07
Speaker 2: So as more and more people are coming forward with information,
38:10
Speaker 2: they'll see whether they could actually bring more charges.
38:13
Speaker 4: A lot more to come in the case. Thanks so much, Jennifer.
38:16
Speaker 4: That's former federal prosecutor Jennifer Rogers, and that's it for
38:19
Speaker 4: this edition of the Bloomberg Law Podcast. Remember you can
38:22
Speaker 4: always get the latest legal news by subscribing and listening
38:25
Speaker 4: to the show on Apple Podcasts, Spotify, and at Bloomberg
38:29
Speaker 4: dot com, slash podcast, Slash Law.
38:32
Speaker 8: I'm June Grosso and this is Bloomberg