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SCOTUS on Transgender Sports Bans · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:09
Speaker 2: The Supreme Court's conservative majority signal it's likely to deal
0:13
Speaker 2: another blow to LGBTQ rights. During oral arguments today over
0:19
Speaker 2: state laws in Idaho and West Virginia that ban transgender
0:23
Speaker 2: girls and women from competing for their schools on female
0:27
Speaker 2: athletic teams, Conservative justices like Samuel Alito and Brett Cavanaugh
0:33
Speaker 2: directed skeptical questions at the lawyers for the transgender athletes
0:38
Speaker 2: who are challenging these bans as violating the Constitution's Equal
0:43
Speaker 2: Protection Clause and Title nine, which prohibit sex discrimination in education.
0:49
Speaker 3: There are an awful lot of female athletes who are
0:54
Speaker 3: strongly opposed to participation by trans athletes and competitions with them.
1:02
Speaker 3: What do you say about them? They Are they bigots?
1:07
Speaker 3: Are they deluded in thinking that they are subjected to
1:10
Speaker 3: unfair competition?
1:13
Speaker 4: You know, there's some states in the federal government, and
1:15
Speaker 4: the NCAA and the Olympic Committee. So these are a
1:19
Speaker 4: variety of groups who study this issue think that allowing
1:24
Speaker 4: transgender women and girls to participate will undermine or reverse
1:31
Speaker 4: that amazing success and will.
1:36
Speaker 2: Create unfairness LGBTQ advocates haven't had a major Supreme Court
1:42
Speaker 2: win since twenty twenty, when the Court ruled six to
1:46
Speaker 2: three that the main federal job bias law known as
1:49
Speaker 2: Title seven Barr's Discrimination against Sexual Orientation and gender identity.
1:55
Speaker 2: Joining me is Suzanne Goldberg, a professor at Columbia Law
1:58
Speaker 2: School and director of the Sexuality and Gender Law Clinic. Suzanne,
2:04
Speaker 2: based on the oral arguments, did it seem like the
2:08
Speaker 2: Supreme Court is likely to uphold the state laws that
2:12
Speaker 2: ban transgender girls and women from competing on female athletic teams.
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Speaker 5: I always hesitate to predict outcomes in the wake of
2:22
Speaker 5: an oral argument. I think what is fair to say
2:25
Speaker 5: and interesting about the argument is that most of the
2:29
Speaker 5: justices really appear to be grappling with the hard questions
2:33
Speaker 5: and the implications of a ruling either way, Meaning that
2:37
Speaker 5: while I think a couple of the justices on both sides,
2:40
Speaker 5: some of the justices on both sides were pretty clear
2:43
Speaker 5: about how they would come out, several of them seem
2:47
Speaker 5: to understand that ruling strongly in one direction or another
2:52
Speaker 5: might pose great risks to constitutional law and to protections
2:57
Speaker 5: under Title nine against sex discrimination. The lawyers for both
3:02
Speaker 5: of the athletes in these cases made what I thought
3:06
Speaker 5: were quite strong arguments that there is not enough information
3:10
Speaker 5: in the record in front of the court for the
3:12
Speaker 5: court actually to decide that big questions about whether transgender
3:17
Speaker 5: athletes are sometimes or always sufficiently controlling any effects of
3:23
Speaker 5: testosterone to be able to compete on the same basis
3:26
Speaker 5: as non transgender athletes. So I think there are a
3:29
Speaker 5: lot of fact questions in the mix, and the lawyers
3:33
Speaker 5: for both of the athletes, I think made strong arguments
3:36
Speaker 5: that the cases should actually go back to the lower
3:38
Speaker 5: courts for full development of a record or dismissal.
3:42
Speaker 6: In the case of the college student.
3:44
Speaker 2: So explain what the legal issue is.
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Speaker 5: The cases are centrally about whether states can ban transgender
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Speaker 5: female students a girl in one case, and a college
3:57
Speaker 5: student and a young woman and another from participating on
4:01
Speaker 5: the girls and women's sports teams. These state laws are
4:05
Speaker 5: categorical bands, meaning it doesn't matter how much a student
4:10
Speaker 5: has mitigated the effects of testosterone, or in the case
4:14
Speaker 5: of the West Virginia young student, she's not gone through
4:18
Speaker 5: male puberty, she's going through female puberty, and so the
4:22
Speaker 5: legal question in the case is can the state impose
4:26
Speaker 5: categorical bands on every transgender girl and woman from ever
4:30
Speaker 5: participating on a girls or women's team. The legal questions
4:35
Speaker 5: come under the Equal Protection Clause of the US Constitution,
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Speaker 5: which guarantees equal treatment and says the government must have
4:42
Speaker 5: a good enough reason if it is going to draw
4:45
Speaker 5: lines based on sex. And there is also, in the
4:49
Speaker 5: case of the West Virginia student, a claim under Title nine,
4:52
Speaker 5: which is the federal law that prohibits sex discrimination, and
4:56
Speaker 5: that claim is that states, of course can have separate
5:00
Speaker 5: girls and boys teams, but it is unreasonable to keep
5:05
Speaker 5: this student who is going through female puberty and never
5:09
Speaker 5: gone through male puberty off of the girls team.
5:12
Speaker 2: So there were a lot of sort of broad statements
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Speaker 2: about transgender women. Samuel Alito asked, looking at the broader
5:20
Speaker 2: issue that a lot of people are interested in. There're
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Speaker 2: an awful lot of female athletes who are strongly opposed
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Speaker 2: to participation by trans athletes in competitions with them. Are
5:30
Speaker 2: they bigots? And just as Kavanaugh said, the court can't
5:34
Speaker 2: look past what he characterized as the harm that transgender
5:38
Speaker 2: inclusive sports policies impose on cisgender women and girls' sports
5:43
Speaker 2: team For the individual girl who doesn't make the team,
5:46
Speaker 2: or doesn't get on the stand for the medal, or
5:48
Speaker 2: doesn't make all leagues, there's a harm, and I think
5:50
Speaker 2: we can sweep that aside. So do you think that
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Speaker 2: a lot of the justices were looking at stereotypes of
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Speaker 2: transgender athletes.
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Speaker 5: I think the lawyers responded very clearly to the concern
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Speaker 5: expressed by the justices related to some girls and women
6:14
Speaker 5: objecting to transgender girls and women on their sports teams,
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Speaker 5: and what they said was, no, nobody is accusing anybody
6:23
Speaker 5: of being a bigot, and you know, of course competition
6:26
Speaker 5: is important.
6:28
Speaker 6: The question in.
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Speaker 5: These cases is whether it is reasonable or discriminatory to
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Speaker 5: say every single transgender girl and woman, no matter to
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Speaker 5: what extent she's mitigated the effects of testosterone or not
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Speaker 5: even experienced them, that it is unreasonable to keep those
6:48
Speaker 5: students off of girls and women's teams. You know, it's
6:52
Speaker 5: tough always to not make the team or not win
6:55
Speaker 5: the competition, but that is part of sports. And part
7:00
Speaker 5: of the point the lawyers were making was even when
7:04
Speaker 5: somebody is upset about losing, it doesn't necessarily mean their
7:07
Speaker 5: loss violates the law or violates the constitution. Always right,
7:13
Speaker 5: one athlete wins right, one athlete is better than another.
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Speaker 5: And in these cases the point was, it's not because
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Speaker 5: this other student is transgender.
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Speaker 6: It's because the other student either has.
7:24
Speaker 5: You know, practices harder or having a better day of competition,
7:28
Speaker 5: or may have more natural ability. But none of that
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Speaker 5: in these cases is keyed to a student being transgender.
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Speaker 1: Right.
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Speaker 5: Athletes vary in many ways, and that is the point
7:41
Speaker 5: of the lawyers and the plaintiffs in these cases.
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Speaker 2: Aren't these laws, though, based on a belief that transgender
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Speaker 2: women or girls have a better chance at women's athletics
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Speaker 2: because they're transgender.
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Speaker 5: Yeah, the laws are based on a view that transgender
8:03
Speaker 5: girls and women are always and automatically going to be
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Speaker 5: stronger and faster in ways that matter for athletics because
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Speaker 5: they're transgender. The facts in these cases about the two
8:17
Speaker 5: athletes show that that is not always true, and the
8:21
Speaker 5: science shows that's not always true. One of the questions
8:25
Speaker 5: that came up quite a bit during the argument is, well,
8:28
Speaker 5: how much should the court get involved in the science,
8:31
Speaker 5: especially as the science is under development. The response from
8:35
Speaker 5: the athletes lawyers was the records in these cases, which
8:39
Speaker 5: is what the court has to look at to examine
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Speaker 5: the facts are incomplete and if anything, if this, if
8:47
Speaker 5: the court wants to get into the science, then the
8:49
Speaker 5: cases should be sent back to the lower courts for
8:52
Speaker 5: a trial and development of a full record and the
8:56
Speaker 5: trial court's consideration of the compete. Experts and the experts
9:02
Speaker 5: in science for the athletes say students can mitigate their
9:08
Speaker 5: testosterone levels, and again BPJ the West Virginia student's case,
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Speaker 5: she has not never experienced male puberty, has only experienced
9:17
Speaker 5: female hormonal puberty, and so to suggest that she is
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Speaker 5: somehow advantaged by male puberty is incorrect and is belied
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Speaker 5: by the record. A lawyer for the college student athlete
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Speaker 5: made the point that there is some scientific evidence that
9:35
Speaker 5: transgender women are at a disadvantage because they may, if
9:40
Speaker 5: they've gone through mail puberty, have a larger body frame,
9:44
Speaker 5: but because they've dropped their testosterone to typical levels for
9:49
Speaker 5: women may not have the muscle mass and the strength
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Speaker 5: that is needed to propel that larger body frame. So
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Speaker 5: there is some scientific evidence showing a disadvantage rather than
9:59
Speaker 5: the kind of advantage to the state claims.
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Speaker 2: Will you explain? West Virginia is arguing that the laws
10:05
Speaker 2: about sex, not gender.
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Speaker 5: You know, one of the questions in this case is
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Speaker 5: do the state laws impose discrimination based on gender identity
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Speaker 5: or do they impose discrimination based on sex. Title nine
10:23
Speaker 5: cover sex discrimination, and in constitutional law, the Court has
10:27
Speaker 5: long applied heightened scrutiny to sex discrimination. So the states
10:32
Speaker 5: in these cases and the government in these cases are
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Speaker 5: arguing that these laws don't actually discriminate against transgender people.
10:40
Speaker 5: They do draw lines based on biology, and that kind
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Speaker 5: of line drawing is permissible. The lawyers for the athletes
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Speaker 5: in these cases are arguing, yes, in general, line drawing
10:55
Speaker 5: based on biology when it comes to sports might be permissible,
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Speaker 5: but categoric banning all transgender girls and women from playing
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Speaker 5: girls and women's sports is not reasonable. It defies the science,
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Speaker 5: and most importantly, it defies the fact about the athlete.
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Speaker 2: Teams cases coming up next on the Bloomberg Law Show,
11:14
Speaker 2: could a ruling favoring the bands in Idaho and West
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Speaker 2: Virginia affects states that permit transgender girls and women to
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Speaker 2: participate on female teams. Remember, you can always get the
11:27
Speaker 2: latest legal news by listening to our Bloomberg Law podcasts.
11:30
Speaker 2: You can find them on Apple Podcasts. Spotify and at
11:33
Speaker 2: Bloomberg dot com, slash podcast Slash Law. I'm June Grasso,
11:38
Speaker 2: and you're listening to Bloomberg. Idaho and West Virginia are
11:44
Speaker 2: among twenty seven states with laws restricting transgender student athletes,
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Speaker 2: all enacted since twenty twenty. During three hours of oral
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Speaker 2: arguments today, the Supreme Court's conservatives suggested their law likely
12:00
Speaker 2: to uphol those state bands, but Justice Brett Kavanaugh raised
12:05
Speaker 2: the question of whether a ruling favoring those state bans
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Speaker 2: would affect laws in states that allowed transgender girls and
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Speaker 2: women to participate on female teams.
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Speaker 4: And those states who do allow it, are they is
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Speaker 4: your position that they are violating the Constitution the Equal
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Speaker 4: Protection claus rights of biological girls and women by allowing that,
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Speaker 4: or do you say that's up to each state to decide,
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Speaker 4: and that the Constitution gives discretion to the state whether
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Speaker 4: to allow it or not to allow it. I have
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Speaker 4: not yet been persuaded by a constitutional theory that would
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Speaker 4: let us use the egal protection clause to impose our
12:48
Speaker 4: policy on other states in this matter.
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Speaker 2: I've been talking to Columbia Law School professor Suzanne Goldberg.
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Speaker 2: Suzanne in the Bosta case the twenty twenty case where
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Speaker 2: the Court ruled six to three Title seven protects transgender
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Speaker 2: workers from discrimination based on sexual orientation and gender identity.
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Speaker 2: But did it appear that both the Chief Justice, who
13:13
Speaker 2: was in the majority in Bosstok, and Justice Neil Gorsich,
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Speaker 2: who wrote the opinion in Bosstok, were backing away from
13:20
Speaker 2: it in this case.
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Speaker 5: I think it's fair to say that Justice Gorsic and
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Speaker 5: Chief Justice Roberts did not heartily endorse.
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Speaker 6: The application of Bostok to Title nine.
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Speaker 5: At one point, Justice Gorsich even said, I wonder how
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Speaker 5: straightforward this all is, and this was after several hours
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Speaker 5: of oral argument. Bosstok does not have to be applied
13:40
Speaker 5: for the individual athletes to prevail in these cases.
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Speaker 6: But I think it is.
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Speaker 5: Fair to say that they don't see an easy connection
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Speaker 5: or a direct connection between prohibiting sex discrimination under Title
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Speaker 5: seven in employment against gay or transgender employees to carry
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Speaker 5: over to Title nine, which prohibits sex discrimination in education.
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Speaker 5: I mean, obviously we'll see what they have to say
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Speaker 5: in their opinions, but they did not say anything in
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Speaker 5: the argument to indicate that they see an easy carryover
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Speaker 5: of boss Stock from one setting to the other.
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Speaker 2: Were lawyers for the transgender athletes, hoping that there would
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Speaker 2: be a carryover from Boss Stoc.
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Speaker 5: The lawyers for the athletes made the argument that, of
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Speaker 5: course there's a connection both in terms of the specifics
14:30
Speaker 5: of the language of Title nine and Title seven. In
14:35
Speaker 5: interpreting Title nine, the Supreme Court often looks to its
14:38
Speaker 5: rulings under Title seven to keep the two statutes and
14:43
Speaker 5: their understandings of discrimination in sync, and so the normal
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Speaker 5: course would be that a case like Boss Stock, which
14:51
Speaker 5: is an important interpretation of Title seven, would carry over
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Speaker 5: to Title nine. The athletes lawyers also make the point,
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Speaker 5: which I think is very fair, that whether the decision
15:02
Speaker 5: carries over formally or not, it's logic certainly should carry over,
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Speaker 5: which is that when a government draws a line, or
15:12
Speaker 5: when there's line drawing that says all transgender people are
15:16
Speaker 5: on one side of the line, that necessarily is a
15:20
Speaker 5: kind of sex discrimination. It says we will treat you
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Speaker 5: differently and worse because we don't conform to your expectations
15:29
Speaker 5: of what a man or woman should be. And that's
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Speaker 5: exactly the kind of discrimination that Title seven is understood
15:35
Speaker 5: to prohibit.
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Speaker 2: Were the three liberal justices on the same page.
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Speaker 5: I would say that the three liberal justices seem troubled
15:45
Speaker 5: by the state's laws. Their questions reinforced one another. They
15:51
Speaker 5: were troubled, especially by an argument made by the state
15:55
Speaker 5: and the federal government that, you know, if the group
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Speaker 5: that's discriminated against is really small, and the group of
16:03
Speaker 5: transgender people are really small, then the Constitution isn't so
16:08
Speaker 5: concerned about that. I think that is that argument is
16:12
Speaker 5: wildly incorrect and misstates the law, and it seemed that
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Speaker 5: that was a key point of concern for those justices.
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Speaker 2: Justice Brett Kavanaugh several times asked about the roughly two
16:25
Speaker 2: dozen states that allow transgender athletes to compete and whether
16:30
Speaker 2: they'd be forced to change course if the Justice is
16:34
Speaker 2: uphold state ban so he said, are those states violating
16:37
Speaker 2: the constitutional rights of biological girls and women by allowing that?
16:42
Speaker 2: And Justice Kagan also asked that question.
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Speaker 5: I think this is one important takeaway from this argument
16:49
Speaker 5: is that the governments trying to defend these laws did
16:54
Speaker 5: not argue that it would violate the rights of cisgender
17:00
Speaker 5: girls to allow transgender girls to compete against them on
17:04
Speaker 5: girls or women's teams. And so, you know, a key
17:08
Speaker 5: takeaway here is no one seemed to be embracing an
17:12
Speaker 5: argument that it would be unconstitutional for nearly half of
17:16
Speaker 5: the states in the country to allow transgender girls and
17:20
Speaker 5: women to compete on girls and women's teams. The lawyer
17:24
Speaker 5: for the United States specifically argued that they were not
17:27
Speaker 5: asking the court to address this. The United States has
17:30
Speaker 5: taken the position that it violates Title nine for states
17:33
Speaker 5: to allow transgender girls and women to participate on girls
17:37
Speaker 5: and women's teams. But the lawyer for the government in
17:42
Speaker 5: this case try to strongly make the point that that
17:45
Speaker 5: is not what this case is about, and it would
17:47
Speaker 5: be surprising, I think if the court were to reach
17:50
Speaker 5: that question here.
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Speaker 2: So, I mean, we've talked about this before, about how
17:55
Speaker 2: there have been setbacks to transgender rights from this court
18:00
Speaker 2: allowing Donald Trump to ban transgender people from the military,
18:05
Speaker 2: blocking transgender and non binary people from choosing passport sex markers,
18:10
Speaker 2: as well as the ruling that upheld Tennessee's ban on
18:14
Speaker 2: gender affirming care for transgender youth. And when you listen
18:18
Speaker 2: to the oral arguments, you know you have the three liberals,
18:21
Speaker 2: and then it seems hard for me to find two
18:24
Speaker 2: more justices who would side with the transgender athletes in
18:28
Speaker 2: these cases. And also it would just be a continuation
18:32
Speaker 2: of what the Supreme Court has been doing in recent years,
18:35
Speaker 2: which is cutting back on transgender rights.
18:39
Speaker 5: It's certainly true that in recent years, and especially this
18:42
Speaker 5: past year, the Supreme Court has cut back in profound
18:46
Speaker 5: ways on the rights of transgender people by upholding an
18:50
Speaker 5: executive order excluding transgender people from military service on an
18:56
Speaker 5: emergency basis, or allowing that order to stay in place,
19:00
Speaker 5: by allowing an order to stay in place that blocks
19:03
Speaker 5: transgender people from getting accurate gender identity documents through the
19:07
Speaker 5: passport service, by upholding a ban on access to gender
19:13
Speaker 5: firming healthcare for transgender youth. This case presents a different
19:19
Speaker 5: type of question because it squarely asks on the merits
19:25
Speaker 5: of the case, at least in this early stage. Is
19:28
Speaker 5: it a violation of the rights of transgender people directly
19:32
Speaker 5: to be excluded from athletics participation? Right, this is not
19:36
Speaker 5: a national security issue like with passports or like with
19:40
Speaker 5: the military service. It's not a medical care issue that
19:44
Speaker 5: states often regulated, like with the gender affirming care case.
19:49
Speaker 5: So the question really is, you know, can kids and
19:52
Speaker 5: young people be kept out of part of their educational
19:55
Speaker 5: program because they're transgender. It's a different kind of ca case.
20:00
Speaker 5: We will see where the court comes out. I do
20:04
Speaker 5: think the lawyers for the athletes presented the facts in
20:10
Speaker 5: a way that was so clearly showing that there isn't
20:15
Speaker 5: on the facts.
20:16
Speaker 6: In these cases.
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Speaker 5: These two students were not at some sort of special
20:21
Speaker 5: advantage because they were transgender. And so the question is,
20:25
Speaker 5: can states override the right of these two students to
20:30
Speaker 5: participate in girls and women's teams even when the facts
20:34
Speaker 5: show that these students are similarly situated to their female peers.
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Speaker 2: There was also a discussion about the small percentage of
20:43
Speaker 2: athletes made up by transgender athletes.
20:47
Speaker 5: You know, one of the interesting legal questions the court
20:51
Speaker 5: may need to address here is what happens when a
20:55
Speaker 5: small group of people challenge a law saying this law
20:59
Speaker 5: is not a reasonable fit when applied to us, and
21:04
Speaker 5: the law discriminates against us based on sex. The governments
21:08
Speaker 5: in these cases we're arguing, well, you know, the law
21:13
Speaker 5: doesn't have to be a perfect fit, it just has
21:15
Speaker 5: to be reasonable, and well, you know, it's too bad
21:18
Speaker 5: if some people are left out, but the constitution allows that.
21:22
Speaker 5: I do think that even some of the justices in
21:27
Speaker 5: the middle would be troubled to reach that kind of
21:30
Speaker 5: conclusion because it is fairly damning, I think to suggest
21:34
Speaker 5: that the equal protection guarantee in the Constitution does not
21:38
Speaker 5: guarantee minority groups, however, defined the ability to challenge discriminatory
21:45
Speaker 5: laws as applied to those groups.
21:47
Speaker 6: That's the whole point of the equal Protection clause.
21:49
Speaker 5: It's to say, yes, of course governments can engage in
21:53
Speaker 5: line drawing, but they cannot engage in line drawing that
21:57
Speaker 5: is unreasonable with respect and certainly illegitimate with respect to
22:01
Speaker 5: any group. And in these cases, as applied to students
22:05
Speaker 5: who are transgender girls and women who have mitigated the
22:10
Speaker 5: effects of testosterone and are able to compete against other
22:13
Speaker 5: girls and women, those are unreasonable rules, right. They categorically
22:18
Speaker 5: exclude those students from those teams, and I think the
22:21
Speaker 5: court will have to take that up, and some of
22:23
Speaker 5: the justices will be troubled by that.
22:26
Speaker 2: Also. I found it odd that the girl in the
22:30
Speaker 2: Idaho case wanted to drop the case, but Idaho officials,
22:36
Speaker 2: who are the defendants, don't want the case to be dropped.
22:39
Speaker 5: So the college student went back to the trial court
22:43
Speaker 5: and said, I'm not going to participate in school athletics anymore. Right,
22:48
Speaker 5: I'm going to focus on finishing college, and you know
22:52
Speaker 5: it will be harmful to me. I've already come under
22:55
Speaker 5: a lot of scrutiny, you know, having.
22:56
Speaker 6: This case decided.
22:57
Speaker 5: My case decided by the Supreme Court will not be
23:00
Speaker 5: in my interest.
23:01
Speaker 6: I don't want to play anymore.
23:03
Speaker 5: And so there's a question whether the court actually can
23:07
Speaker 5: address her case or should address her cases. The government
23:10
Speaker 5: tried to argue that there are other similar cases in
23:13
Speaker 5: the past when the court has gone ahead and said, yes,
23:16
Speaker 5: we're going to address your case anyway, but none of
23:18
Speaker 5: those situations really apply here. And at the end of
23:23
Speaker 5: the day, I think if the court were to go
23:25
Speaker 5: ahead and say, you know what, you were a plaintiff before,
23:29
Speaker 5: so we're making you stick on through this whole case,
23:32
Speaker 5: even though you want to drop it, that would have
23:34
Speaker 5: implications far beyond this case and would actually be quite dangerous,
23:38
Speaker 5: I think for the court to pursue on a separate
23:41
Speaker 5: Another question that came up was, well, what about laws
23:45
Speaker 5: that treat boys and girls differently for other purposes? Right,
23:49
Speaker 5: what about restrictions on a chess club or restrictions on
23:55
Speaker 5: participation of girls in calculus classes or other things. How
23:59
Speaker 5: far can discrimination extend? And this was connected to this
24:03
Speaker 5: question about well, what a science show? And if science
24:06
Speaker 5: somehow showed that men or boys were better at math
24:11
Speaker 5: or better at chess, would that mean that the state
24:14
Speaker 5: could then exclude girls and women? That also, the court
24:18
Speaker 5: seemed troubled by pretty much everybody, And so I suspect
24:22
Speaker 5: that whatever the justices do, at least most of them
24:26
Speaker 5: are going to want to stay away from those questions.
24:29
Speaker 2: Thanks so much, Suzanne. That's Professor Suzanne Goldberg of Columbia
24:33
Speaker 2: Law School coming up next. Former Supreme Court advocate on trial.
24:38
Speaker 2: This is Bloomberg. Tom Goldstein was a top Supreme Court
24:44
Speaker 2: advocate who shocked the legal community when he was charged
24:47
Speaker 2: with tax evasion and his double life was revealed. The
24:52
Speaker 2: allegations and the indictment painted a picture of a wild
24:55
Speaker 2: lifestyle that included ultra high stakes poker games, million in
25:00
Speaker 2: gambling debts, extramarital affairs, and more. Goldstein faces charges of
25:06
Speaker 2: tax evasion and making a false statement. The tax charges
25:10
Speaker 2: revolve primarily around Goldstein's alleged mischaracterization of business and personal
25:16
Speaker 2: expenses and failure to report certain income the willful failure
25:21
Speaker 2: to pay taxes. Charges are based on the theory that
25:24
Speaker 2: Goldstein opted to pay off other expenses, including gambling debts.
25:30
Speaker 2: First joining me is former federal prosecutor Marissa Darden. She's
25:35
Speaker 2: chair of the White Collar Government Investigations and Regulatory Practice
25:39
Speaker 2: Group at Benisch. Marissa tell us a little about Tom Goldstein.
25:45
Speaker 1: I think everybody revered him as one of the scions
25:48
Speaker 1: of the Supreme Court. He has argued some of the
25:52
Speaker 1: most important cases of our time. He has had some
25:56
Speaker 1: really successful wins for Google and for other huge companies
26:01
Speaker 1: in you know, sort of bet the stakes, you know,
26:03
Speaker 1: sort of anti trust and other sort of complicated, really
26:07
Speaker 1: sophisticated First Amendment issues, trying to persuade the Court in
26:10
Speaker 1: this favor, which he's done really well. I think, you know,
26:13
Speaker 1: I remember learning more about him in the bushby core
26:16
Speaker 1: Era because I think he was part of that original
26:18
Speaker 1: team with David Boyce. But he's you know, got a
26:21
Speaker 1: stellar reputation or at least had a stellar reputation in
26:24
Speaker 1: front of the Supreme Court, very successful Washington lawyer, and
26:28
Speaker 1: I think these allegations have all kind of come as
26:31
Speaker 1: a surprise and raise a lot of questions about the
26:34
Speaker 1: double lives that all of us might be leading.
26:36
Speaker 2: And what was the reaction in the legal community when
26:39
Speaker 2: he was charged.
26:41
Speaker 1: As a general rule, you know, Supreme Court clerks and
26:46
Speaker 1: people who work in the Supreme Court, people who work
26:50
Speaker 1: around the Supreme Court, the Solicitor General's office. You know,
26:53
Speaker 1: it is technically the most and realistically the most elite
26:58
Speaker 1: form of lawyering that one can do, right, and so
27:02
Speaker 1: most of the time people you meet are kind of
27:04
Speaker 1: nerdy to be honest, Like, you meet a lot of lawyers,
27:09
Speaker 1: or go to school with these lawyers who seem like
27:11
Speaker 1: they study all the time, They prioritize academic and personal excellence,
27:16
Speaker 1: They hold themselves to a high standard of integrity, and
27:20
Speaker 1: so you wouldn't really expect people like that to be
27:24
Speaker 1: also having, you know, a side hustle that involves online
27:28
Speaker 1: poker and gambling at a high level and high stakes
27:31
Speaker 1: of poker games, or you know, using call girls or
27:35
Speaker 1: other types of websites to find female companionships. I think,
27:39
Speaker 1: as a general rule, like lawyers, just like everybody else,
27:42
Speaker 1: are kind of snotty, and they think of themselves in
27:45
Speaker 1: an elitist category of people, and so the idea that
27:48
Speaker 1: anybody that you know, revere or think of at the
27:50
Speaker 1: highest echelon of your profession could be doing that. It's
27:53
Speaker 1: pretty shocking.
27:54
Speaker 2: Tell us about the charges he's facing.
27:57
Speaker 1: The United States District Court for the District of Maryland
28:00
Speaker 1: has charged him in a multi count indictment with several
28:05
Speaker 1: different violations of federal law, the most serious of which
28:08
Speaker 1: being tax evasion, aiding and assisting in the preparation of
28:12
Speaker 1: false and fraudulent tax returns, and making false statements to
28:15
Speaker 1: the government. So it's a fairly long indictment, it's about
28:19
Speaker 1: fifty pages. They go to great lengths in the indictment
28:24
Speaker 1: to lay out his gambling activities, the way he funded
28:27
Speaker 1: his poker games, and then some of the other employment
28:31
Speaker 1: arrangements and quote unquote employees he used or hired to
28:37
Speaker 1: do a range of activities according to the government that
28:41
Speaker 1: would not have been considered legitimate employment arrangements, some of
28:46
Speaker 1: which were, you know, women that he met online and whatnot.
28:49
Speaker 1: So the maximum term of imprisonment under tax evasion is
28:54
Speaker 1: up to five years, but the more serious penalties involved
28:59
Speaker 1: the fine. Typically in an indictment for tax evasion, there's
29:04
Speaker 1: going to be a settlement that's required in any results
29:08
Speaker 1: of the case, whether he goes to trial and loses
29:11
Speaker 1: or whether he pleads guilty, he will be subject to
29:15
Speaker 1: restitution and fines, which are usually sometimes double or triple
29:19
Speaker 1: the amount that you actually owe the irs. So he's
29:22
Speaker 1: in addition to jail time, he's looking at some pretty
29:24
Speaker 1: significant fines and penalties.
29:26
Speaker 2: Are you surprised that apparently he was offered plea deals
29:31
Speaker 2: twice and turn them down.
29:34
Speaker 1: Everybody's motivated by something different, So I can't say that
29:37
Speaker 1: I'm surprised given some of the allegations here, he seems
29:41
Speaker 1: to be really doubling down on the hubrious of what
29:44
Speaker 1: he did. I mean, he spoke to the New York
29:46
Speaker 1: Times magazine and Jeffrey Tuban and gave a really long
29:48
Speaker 1: interview that now the government is trying to use against
29:53
Speaker 1: him in their case in chief. And so the fact
29:56
Speaker 1: that he's willing to kind of go down swinging doesn't
29:59
Speaker 1: surprise me.
30:00
Speaker 2: Is the prosecution going to have a difficult time proving
30:03
Speaker 2: wilfulness here?
30:05
Speaker 1: Some people think that the tax evasion statutes there has
30:09
Speaker 1: to be willful, intentional misrepresentation of your taxes, right, But
30:14
Speaker 1: there's really only three elements that the government is required
30:16
Speaker 1: to prove. For the top count in tax evasion, you
30:19
Speaker 1: have to show a substantial tax was owed beyond what
30:22
Speaker 1: was reported, that the individual did some deliberate or intentional
30:27
Speaker 1: action to avoid paying the tax. And it can't just
30:31
Speaker 1: be that you omitted something, right, You have to actually
30:34
Speaker 1: intend to evade or obvious gate the income that was
30:39
Speaker 1: taxable that you owed, and then you have to do
30:42
Speaker 1: so with the intent, with the specific intent to evade
30:45
Speaker 1: the taxes. So in some ways it's complicated because the
30:49
Speaker 1: government has to do enough digging and create enough factual
30:53
Speaker 1: basis to prove that he intended to evade taxes beyond
30:58
Speaker 1: a reasonable doubt. But as a matter of fact, that's
31:02
Speaker 1: not that hard to do to a jury, right, I mean,
31:05
Speaker 1: you can consider or think about a host of factual
31:08
Speaker 1: situations and circumstances where you and I, as regular taxpayers,
31:13
Speaker 1: would owe x amount of dollars. Then if we just
31:16
Speaker 1: didn't do it but knew we had the responsibility and duty,
31:19
Speaker 1: that might be enough to convince a jury beyond a
31:21
Speaker 1: reasonable doubt that you intended to evade payton lawful taxes. So, yes,
31:27
Speaker 1: there's a high threshold in every criminal case. Of proving
31:31
Speaker 1: beyond a reasonable doubt the allegations that the government posits.
31:35
Speaker 1: But there are a whole host of facts here that
31:38
Speaker 1: suggests that he knew he was making income from illegal
31:43
Speaker 1: poker games and from gambling, and if he was not
31:46
Speaker 1: reporting that as taxable income, that could be a really
31:50
Speaker 1: serious problem for him. The other issue is I think
31:53
Speaker 1: the IRS agents and the US Attorney's office will generally
31:59
Speaker 1: sort of actually impute a higher level of responsibility to
32:05
Speaker 1: a person like an attorney, who basically should know better, right.
32:08
Speaker 1: I mean, this is not an average person off the
32:10
Speaker 1: streets who may or may not understand the full scope
32:13
Speaker 1: of the tax code. This is a very sophisticated, smart
32:17
Speaker 1: individual with a legal degree who's operated at the highest
32:20
Speaker 1: echelon of our career. It's just not going to be
32:23
Speaker 1: as plausible of an argument to say that he didn't
32:25
Speaker 1: know he was supposed to report this income.
32:28
Speaker 2: So I guess you tell the Times that the case
32:31
Speaker 2: may turn on whether the jury thinks he's a good
32:33
Speaker 2: guy or a bad guy.
32:35
Speaker 1: I don't disagree with that. Juries are fickle, sickle folks,
32:39
Speaker 1: and you don't know what they're going to focus on,
32:43
Speaker 1: and you hope as a prosecutor that you can make
32:46
Speaker 1: your case and lay it out. But studies after study
32:49
Speaker 1: has shown that the vast majority of jurors make up
32:52
Speaker 1: their mind an opening statement. Sometimes they lose attention or
32:55
Speaker 1: focus on very specific details and the things that the
32:58
Speaker 1: lawyers are focused on, who have lived this case and
33:01
Speaker 1: breathed this case for months or years in many cases
33:04
Speaker 1: don't always resonate with the common duror. So, yeah, credibility
33:09
Speaker 1: is everything. Evaluation of credibility is a very normal human response,
33:13
Speaker 1: and jurors are going to be looking to see, you know,
33:17
Speaker 1: whether they have then enough facts to deduce whether this
33:19
Speaker 1: is a good guy. I think he's very right on
33:22
Speaker 1: about that in many respects.
33:24
Speaker 2: Of course, no defendant has to take the stand, But
33:27
Speaker 2: in order to get that point across to the jury,
33:30
Speaker 2: would he realistically, not legally, but realistically almost have to
33:35
Speaker 2: take the stand.
33:37
Speaker 1: No, But it's a lot harder to make that argument
33:40
Speaker 1: if you don't, because I think the average duror again
33:43
Speaker 1: is thinking, Okay, well, now you have an opportunity to
33:47
Speaker 1: tell your side of the story and tell us who
33:49
Speaker 1: you are, and if you elect not to do that,
33:52
Speaker 1: the judge gives an instruction to jurors. That says, specifically,
33:56
Speaker 1: just because the defendant did not take the stand in
33:59
Speaker 1: their own defense, you are not to interpret that as
34:02
Speaker 1: evidence of guilt. But factually and colloquially jurors do that
34:07
Speaker 1: all the time. And so I think if he's wanting
34:11
Speaker 1: to put his credibility into the factual analysis here, then
34:16
Speaker 1: he's got to show the jury who he is, and
34:17
Speaker 1: the best way to do that is to take the stand.
34:20
Speaker 1: I wouldn't be surprised given these allegations if that's what
34:23
Speaker 1: he intends to do well.
34:25
Speaker 2: He's obviously been successful at convincing people of legal arguments
34:30
Speaker 2: through his career. The government has listed more than sixty
34:35
Speaker 2: potential witnesses and more than a thousand exhibits. So the
34:39
Speaker 2: trial is expected to last about a month. Is that
34:42
Speaker 2: long for a tax case?
34:45
Speaker 1: Maybe a little long, But given the amounts of money
34:49
Speaker 1: that mister Goldstein is alleged to have won and lost
34:55
Speaker 1: in these poker games and some of the other allegations,
34:59
Speaker 1: particularly if they feel as though Goldstein is a formidable
35:03
Speaker 1: opponent given his legal expertise in his legal mind, then
35:07
Speaker 1: the US Attorney's Office has to go the links to
35:11
Speaker 1: really demonstrate to the jury beyond a reasonable doubt as
35:15
Speaker 1: much as they can, as often as they can, and
35:18
Speaker 1: they don't want to leave anything on the floor. So
35:20
Speaker 1: it doesn't surprise me that they're willing to kind of
35:23
Speaker 1: go the extra distance here and try to go guns
35:26
Speaker 1: blazing to get a.
35:27
Speaker 2: Conviction, even though it's a tax case and normally I
35:30
Speaker 2: would say not too interesting, but this seems like it's
35:34
Speaker 2: going to be an interesting case with a lot of
35:36
Speaker 2: different facets.
35:38
Speaker 1: I think it's an interesting story. I'm excited to kind
35:40
Speaker 1: of see how things go. I'll be watching this child closely,
35:44
Speaker 1: just like I think a lot of lawyers are. The
35:47
Speaker 1: other thing that will be interesting to see is how
35:49
Speaker 1: the defense puts forward a case at all. Right, there's
35:54
Speaker 1: no constitutional mandate that the defense do anything. So are
35:58
Speaker 1: they going to bring character witnesses into defensive Goldstein? Is
36:01
Speaker 1: he going to try to enter his own record? What
36:04
Speaker 1: is he? Is he going to be calling the shots
36:06
Speaker 1: versus his own attorneys? So there's a lot to sort
36:09
Speaker 1: of watch outside of just how the evidence is put
36:12
Speaker 1: in to see how this all goes. I'm looking forward
36:16
Speaker 1: to it.
36:16
Speaker 2: Too bad there are no cameras in federal court though,
36:19
Speaker 2: thanks so much, Marissa. That's Marissa Darden of Benish, and
36:24
Speaker 2: that's it for this edition of The Bloomberg Law Show.
36:26
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