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SCOTUS Cases: Transgender Athletes, Death Penalty & Guns · Bloomberg Law

0:02
Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 2: Over the next two months, the Supreme Court will be
0:11
Speaker 2: considering several high profile cases, many involving hot button social issues.
0:17
Speaker 2: They range from cases over handguns in public places and
0:21
Speaker 2: transgender athletes to President Trump's firing of a Federal Reserve
0:26
Speaker 2: governor and the death penalty. Some of these cases involve
0:30
Speaker 2: novel issues of law, while others involve longstanding precedents that
0:35
Speaker 2: could be overturned. My guest is constitutional law expert David Souper,
0:40
Speaker 2: a professor at Georgetown Law David. On Monday, the Justices
0:44
Speaker 2: heard oral arguments in the case of Cox Communications versus
0:50
Speaker 2: Sony Music Entertainment, which is a case about the music
0:55
Speaker 2: industry suing Cox Communications for not shutting down the accounts
0:59
Speaker 2: of customers who repeatedly downloaded and distributed songs without permission.
1:04
Speaker 1: This is basically about whether you can hold Internet service
1:10
Speaker 1: providers and other intermediators responsible for violations of law by
1:17
Speaker 1: their subscribers. We all know that these web platforms are
1:21
Speaker 1: used for variety of illegal activities, including copyright violations, defamation, revenge, porn,
1:28
Speaker 1: and so on, and the question is can the Internet
1:33
Speaker 1: service providers be held accountable if they allow this and
1:38
Speaker 1: facilitate this lawful activity without making any effort to shut
1:43
Speaker 1: it down?
1:44
Speaker 2: A jury came back with a one billion dollar damage award.
1:48
Speaker 1: That could really cut into the profit statement.
1:50
Speaker 2: Yes, so the jury wasn't moved by it. But Cox
1:53
Speaker 2: argued that Grandma will be thrown off the Internet because
1:57
Speaker 2: Junior visited an illegally downloaded song. But the music industry
2:02
Speaker 2: said that Cox opted instead to keep the subscription revenues
2:06
Speaker 2: rolling rather than terminating a serial infringer. What's the legal issue?
2:12
Speaker 1: I mean, the legal issue is to what extent one
2:15
Speaker 1: is accountable for facilitating illegal activities. If I provide you
2:22
Speaker 1: with weapons and a getaway car and masks, and you
2:28
Speaker 1: show up and rob the First National Bank, I'm going
2:31
Speaker 1: to be held accountable for that, even if I never
2:33
Speaker 1: came near the bank myself. And here is an Internet
2:38
Speaker 1: service provider doing the equivalent and saying who me? Why
2:42
Speaker 1: are you talking to me?
2:43
Speaker 2: But do you think the Supreme Court took the case
2:45
Speaker 2: to reverse it?
2:47
Speaker 1: I don't know. The Supreme Court has generally been pretty
2:52
Speaker 1: unsympathetic with efforts to deal with other kinds of illegal
2:58
Speaker 1: activities that internet service providers have done. But it does
3:03
Speaker 1: care some about property rights, and I think it's a
3:07
Speaker 1: close call. The Supreme Court has been willing to upend
3:12
Speaker 1: the tech industry in defensive copyright in the past, and
3:15
Speaker 1: that might be willing to do that here.
3:17
Speaker 2: So in December second, the Court's going to hear the
3:19
Speaker 2: case of First Women's Choice Resource Center versus Plotkin. So
3:25
Speaker 2: this involves an attempt by New Jersey's Attorney General to
3:29
Speaker 2: subpoena the records of First Choice Women's Resource Centers. So
3:35
Speaker 2: tell us about this. This is about a pregnancy a
3:41
Speaker 2: pregnancy services organization and whether or not it well New
3:47
Speaker 2: Jersey thought that it was giving out vibes that it
3:50
Speaker 2: was going to provide people with references for referrals for abortions,
3:56
Speaker 2: when it's just the opposite.
3:59
Speaker 1: Yeah. The idea here is that these organizations are doing
4:04
Speaker 1: everything they can to simulate an abersion referral service to
4:10
Speaker 1: get women who are pregnant and considering abortions in their
4:13
Speaker 1: doors so they can talk them out of abortions. And
4:17
Speaker 1: the concern is that these are vulnerable people at a
4:20
Speaker 1: very difficult time in their life, and that they are
4:23
Speaker 1: in effect being defrauded and coerced. The facts in individual
4:28
Speaker 1: cases I'm obviously not privy to, but that's the concern.
4:32
Speaker 1: In New Jersey wanted to investigate such a center and
4:36
Speaker 1: issued a subpoena asking for a lot of information about
4:41
Speaker 1: how the place operates, to try to figure out if
4:44
Speaker 1: it is committing fraud, if it is coercing people, if
4:48
Speaker 1: it is misrepresenting itself. And there are procedures in state
4:53
Speaker 1: law that the facility could use to either challenge or
4:57
Speaker 1: just ignore. The subpoena forced the state to come after it,
5:01
Speaker 1: but the center instead went into federal court and sought
5:06
Speaker 1: an order to shut down the state's investigation. This case
5:10
Speaker 1: is whether you get to run straight to federal court
5:13
Speaker 1: or have to play within the state law rules.
5:15
Speaker 2: Do you think that, considering that religion iss entwined here
5:20
Speaker 2: and its abortion connected, that the conservatives will be magnanimous
5:28
Speaker 2: in allowing them to go to federal court.
5:32
Speaker 1: I actually don't. Certainly the majority is going to be
5:35
Speaker 1: sympathetic with the Center. But there has been an agenda
5:40
Speaker 1: going back fifty years or more of keeping people in
5:45
Speaker 1: state court, preventing them from going to federal court when
5:49
Speaker 1: their state court proceedings underway, and I would be shocked
5:53
Speaker 1: if the Supreme Court was willing to reverse field on
5:56
Speaker 1: that just because it likes a particular plaintiff. I would
6:01
Speaker 1: expect if the Court is consistent with what it said,
6:04
Speaker 1: that it would make them sort things out in state court.
6:08
Speaker 1: If it doesn't. If it does rule in favor of
6:11
Speaker 1: the pregnancy center, that's going to open the doors to
6:14
Speaker 1: a lot of civil rights plaintiffs that have not thought
6:17
Speaker 1: they could go to federal court.
6:19
Speaker 2: So, now Olivier versus City of Brandon, this involves a
6:23
Speaker 2: preacher who wanted to preach in an area where the
6:27
Speaker 2: munits beal ordinances did not allow him to. So tell
6:31
Speaker 2: us about this and why it's a Supreme Court case.
6:35
Speaker 1: Well, the preacher likes to do open air preaching to
6:39
Speaker 1: the general public with amplifiers and so on, has already
6:44
Speaker 1: been ticketed and fined for that, and believes this ordinance
6:49
Speaker 1: is unconstitutionally denying him his right to proselytize for his religion.
6:54
Speaker 1: The Supreme Court, in some very technical cases, has said
6:59
Speaker 1: you can't bring us civil rights case to challenge a
7:02
Speaker 1: criminal conviction. You have to do that within the criminal
7:05
Speaker 1: law system. So the contention here is that if he
7:10
Speaker 1: doesn't like this law, he needs to fight it through
7:14
Speaker 1: appeals of punishments the state issues him. There. The Supreme
7:19
Speaker 1: Court invited this sort of thing by creating this technical
7:23
Speaker 1: rule to try to keep challenges to civil rights out
7:28
Speaker 1: of federal court, and now they have this extremely complicated
7:32
Speaker 1: question of whether by having been previously fined, he lost
7:39
Speaker 1: his right to file a civil rights action.
7:41
Speaker 2: A big case. One of the biggest cases of the
7:43
Speaker 2: term is going to be Texas the slaughter about Donald
7:48
Speaker 2: Trump firing a Federal Trade commissioner. This is a huge case.
7:53
Speaker 2: Tell us why.
7:54
Speaker 1: It's a huge case, because it would allow the president
7:59
Speaker 1: to so effectively disregard all the provisions designed to give
8:05
Speaker 1: independence to federal regulatory agencies. The Federal Trade Commission is
8:10
Speaker 1: in charge of ensuring that people don't engage in anti
8:14
Speaker 1: competitive practices and don't trick consumers, and that's something that
8:19
Speaker 1: companies with ties to either party could engage in. So
8:23
Speaker 1: Congress set up the FTC to be somewhat independent. It's
8:28
Speaker 1: got commissioners appointed by presidents but for fixed terms, and
8:32
Speaker 1: they can't be thrown out in the middle of their
8:34
Speaker 1: term without showing misconduct. That way, the FTC is free
8:39
Speaker 1: to investigate the president's friends or the preends of other
8:43
Speaker 1: influential politicians. And what President Trump is saying is, no,
8:48
Speaker 1: I'm in charge of everything in the executive branch. Only
8:52
Speaker 1: my people should serve on any of these agencies, and
8:55
Speaker 1: I should be able to get rid of these commissioners
8:57
Speaker 1: at will.
8:58
Speaker 2: Now, this involves the Humphrey's Executor case, which the Conservatives
9:03
Speaker 2: have been chipping away at, and the question is whether
9:07
Speaker 2: it's going to survive this case. And also the Conservatives
9:12
Speaker 2: here over descents from the Liberals, refused to let Rebecca
9:17
Speaker 2: Slaughter stay in her job while the case played out,
9:21
Speaker 2: which may be an indication or not of what they're thinking.
9:24
Speaker 1: I suspect it is an indication of what they're thinking.
9:27
Speaker 1: And they have all but signaled that they're willing to
9:32
Speaker 1: overrule Humphrey's Executor in every instance except perhaps the Federal Reserve.
9:38
Speaker 1: But there's a very curious dynamic here because Humphrey's Executor
9:42
Speaker 1: is a Conservative case. It was used to rein in
9:46
Speaker 1: President Franklin Roosevelt and force him to put up with
9:51
Speaker 1: a Herbert Hoover appointee who was opposing his new deal
9:55
Speaker 1: and so here you have a precedent that was put
9:58
Speaker 1: in to reign in a wildly popular Democratic president that
10:04
Speaker 1: we are chucking when it is limiting a far less
10:08
Speaker 1: popular Republican president. And it's not the first time this
10:12
Speaker 1: has happened. Chevron was a decision that validated Ronald Reagan's
10:16
Speaker 1: anti invenmental policies, and then when it was helpful to
10:21
Speaker 1: Joe Biden and Democratic agencies, the Supreme Court overruled it
10:26
Speaker 1: a couple of years ago in Low for pride, if
10:29
Speaker 1: you have a rule of law, once you establish these
10:32
Speaker 1: procedural rules they ought to apply to both Democrats and Republicans.
10:37
Speaker 2: Doesn't it seem as if this particular Supreme Court is
10:40
Speaker 2: less concerned perhaps about precedent than prior Supreme courts.
10:46
Speaker 1: If they overrule Humphrey's executor, that will be the inescapable conclusion.
10:52
Speaker 1: And they've certainly given us every indication. Indeed, they've criticized
10:57
Speaker 1: lower courts for continuing to follow humphrey Executor, which has
11:01
Speaker 1: not been overruled. A very strange process.
11:04
Speaker 2: You mentioned the Federal Reserve, and on January twenty first,
11:08
Speaker 2: the justices will hear oral arguments in the case of
11:12
Speaker 2: Trump versus Cook. Trump wants to fire Federal Reserve Governor
11:17
Speaker 2: Lisa Cook. He said he had a reason to fire her,
11:20
Speaker 2: which was an unproven allegation of mortgage fraud. The Justice
11:25
Speaker 2: is allowed Cook to stay in her role as a
11:27
Speaker 2: Federal Reserve governor while the case plays out. Do you
11:31
Speaker 2: think that this will be a different result than the
11:34
Speaker 2: Slaughter case.
11:35
Speaker 1: It's a little hard to know. There was some language
11:38
Speaker 1: in one of the Supreme Court shadow doct cases about
11:43
Speaker 1: independent agencies where they said this shouldn't apply to the
11:48
Speaker 1: Federal Reserve because, by way of its tradition and independence,
11:54
Speaker 1: that's somewhat separate. I find that a little bit strange.
11:57
Speaker 1: The Federal Trade Commission is a few months younger than
12:00
Speaker 1: in the Federal Reserve. They were created almost back to back.
12:04
Speaker 1: So if there's tradition on behalf of the Federal Reserve,
12:08
Speaker 1: there probably is on the behalf of the Federal Trade Commission.
12:12
Speaker 1: But they pretty clearly was firing a warning shot across
12:15
Speaker 1: the administration's bow, don't make us decide a Federal Reserve case.
12:20
Speaker 1: And the administration, i think, rather disrespectfully said no, we
12:24
Speaker 1: are going to make you decide a Federal Reserve case.
12:27
Speaker 1: And they fired doctor Cook.
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Speaker 2: I guess the administration is really testing the limits. Coming
12:32
Speaker 2: up next, I'll continue this conversation with Georgetown Law professor
12:36
Speaker 2: David Super. We'll talk about upcoming cases involving campaign finance
12:41
Speaker 2: and transgender athletes. I'm June Grosso and you're listening to Bloomberg.
12:47
Speaker 2: Fifteen cases are on the Supreme Court's argument calendar for
12:52
Speaker 2: the months of December and January. The cases cover issues
12:56
Speaker 2: from handguns in public places and transgender athletes, lead to
13:00
Speaker 2: President Trump's ability to fire a federal Reserve governor, and
13:04
Speaker 2: the damp penalty. I've been talking to constitutional law professor
13:08
Speaker 2: David Souper of Georgetown Law. David. Coming up on December
13:13
Speaker 2: ninth is a case involving campaign finance, National Republican Senatorial
13:20
Speaker 2: Committee versus Federal Election Commission, and the Supreme Court's going
13:25
Speaker 2: to consider Republican calls to strike down federal caps on
13:30
Speaker 2: the money political parties can spend on advertisements in coordination
13:35
Speaker 2: with congressional candidates. So an attempt to strike down more
13:40
Speaker 2: political spending caps.
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Speaker 1: Yes, there's no limit apparently that they don't want to
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Speaker 1: strike down. They got their way in Citizen United and
13:50
Speaker 1: a bunch of other cases, but they are apparently not
13:53
Speaker 1: done yet. And their argument here is that even when
13:58
Speaker 1: there are independent funding organizations that are supposedly separate from
14:06
Speaker 1: the parties and campaigns, that they should be allowed to
14:10
Speaker 1: function as annexes or adjuncts to the campaigns and coordinate
14:16
Speaker 1: their policies. If this happens, no one in their right
14:19
Speaker 1: mind would ever give anything to the Republican Party or
14:22
Speaker 1: the Democratic Party. They'd give all their money to these
14:25
Speaker 1: outside organizations with much less obligation to disclose, and they
14:30
Speaker 1: would then do whatever the parties told them to.
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Speaker 2: So in this case, when the Trump administration came in,
14:36
Speaker 2: they said they weren't going to defend the law, So
14:39
Speaker 2: the Supreme Court gave the Democrats an opportunity to step
14:42
Speaker 2: in and defend the law. Why are the Republicans against
14:46
Speaker 2: these spending caps and the Democrats are for the spending caps.
14:51
Speaker 2: It seems like what would be good for one political
14:54
Speaker 2: party would be good for the other.
14:56
Speaker 1: There's more of a constituency in the Democratic party campaign
15:00
Speaker 1: finance reform. The McCain fine Gold Law had both Democratic
15:06
Speaker 1: or Republican votes, but more Democratic ones, and the prominent
15:10
Speaker 1: Republican supporters are now largely gone. So the Republican Party,
15:16
Speaker 1: I think has felt that overall, the more money goes
15:21
Speaker 1: into elections, the better off they are, And with many
15:26
Speaker 1: of its members on principle opposed to money dominated politics
15:31
Speaker 1: and having been badly earned by mister Musk's spending in
15:36
Speaker 1: the last election, I think that Democrats may be getting
15:39
Speaker 1: religion here like.
15:41
Speaker 2: Less term, there is a case involving a death row inmate,
15:46
Speaker 2: and this is about whether he can be executed in
15:49
Speaker 2: the light of conflicting IQ scores.
15:53
Speaker 1: Yes, the Supreme Court decided a long time ago that
15:57
Speaker 1: the Eighth Amendments prohibition Cruel and Unusual Punishment means that
16:02
Speaker 1: we shouldn't be executing people who are severely mentally deficient.
16:09
Speaker 1: We can keep them in jail, but we shouldn't kill them.
16:11
Speaker 1: That they may not be able to fully understand what
16:14
Speaker 1: we're doing to them, and that that's just blatant cruelty.
16:19
Speaker 1: But of course, once you say that, you have to
16:21
Speaker 1: define what it is to be mentally deficient. And this
16:25
Speaker 1: has come down to IQ scores, typically old ones before
16:29
Speaker 1: someone turned eighteen, and the petitioner here has IQ scores
16:35
Speaker 1: that are all in a pretty similar range. This is
16:38
Speaker 1: not a smart person at all. This is a pretty
16:41
Speaker 1: limited person. But the question is what do you do
16:45
Speaker 1: about the fairly modest variation among these scores? And the
16:50
Speaker 1: Eleventh Circuit in the Southeast looked at them as a
16:55
Speaker 1: whole and said, we think this man is too intellectually
17:00
Speaker 1: deficient to execute. And the Supreme Court is going to
17:04
Speaker 1: now tell us either there's a new formula to use
17:08
Speaker 1: with these IQ scores, or how at least you're supposed
17:12
Speaker 1: to put the other scores that have minor differences in them.
17:16
Speaker 1: This is not a precise science. It's not like weighing
17:20
Speaker 1: a stone or determining the carots of a diamond. This
17:24
Speaker 1: is a very imprecise thing. The numbers for this inmate
17:30
Speaker 1: very relatively little. I've represented people in disability cases where
17:34
Speaker 1: the numbers were a lot broader than these. But the
17:37
Speaker 1: government is pressing ahead and insisting that we must must
17:41
Speaker 1: execute this man, and the Supreme Court will tell us
17:44
Speaker 1: whether that's so.
17:45
Speaker 2: Yeah, and the Eleventh Circuit is one of the more
17:48
Speaker 2: conservative circuits. Let's look now at some cases that will
17:53
Speaker 2: definitely be among the most high profile of the term,
17:57
Speaker 2: involving transgender athletes in Idaho and West Virginia prohibit transgender
18:03
Speaker 2: women and girls from participating on women's and girls sports teams.
18:07
Speaker 2: I mean, this is a huge issue across the country.
18:11
Speaker 2: Explain what the Supreme Court will be looking at in
18:15
Speaker 2: these cases.
18:16
Speaker 1: Well, there are various civil rights laws, including ones that
18:20
Speaker 1: apply in the educational context, that prohibit discrimination because of sex.
18:26
Speaker 1: And the question is are you discriminating against these women
18:31
Speaker 1: and girls because of their sex when they're specifically are transgender.
18:37
Speaker 1: The leading opinion on this from the Supreme Court is
18:39
Speaker 1: by Justice Gorsic, and he said that if these women
18:45
Speaker 1: and girls were not born identified as male, no one
18:51
Speaker 1: would be hassling them. So it is because of sex,
18:54
Speaker 1: because of their sex assigned at birth, that these states
18:58
Speaker 1: are treating them a problems, so they are covered by
19:00
Speaker 1: civil rights laws. The question, though, is whether there is
19:05
Speaker 1: a majority to affirm that position. The three liberal justices
19:09
Speaker 1: likely would, I imagine Justice Coursuch would, But then the
19:13
Speaker 1: question is where do you get the fifth vote?
19:15
Speaker 2: Since that case, since the Boss Stoc Case, this Court
19:18
Speaker 2: has ruled consistently against LGBTQ rights in just about every
19:24
Speaker 2: case I can think of. So would it be easy
19:27
Speaker 2: for the conservative justices to distinguish Bosstoc from the facts.
19:33
Speaker 2: In these cases, I.
19:34
Speaker 1: Don't know how you do that. In the other cases
19:37
Speaker 1: they did distinguish Bosstoc, sometimes persuasively, sometimes not very persuasively.
19:44
Speaker 1: But this one I think probably forces them to overrule Bosstoc,
19:49
Speaker 1: or make Bosstoc a complete shell of itself, or else
19:53
Speaker 1: to follow it. And my hope is that even if
19:57
Speaker 1: there are not five justices that would a hand down
20:00
Speaker 1: boss Stock today if it was up to them, that
20:03
Speaker 1: their respect for their own credibility is going to make
20:07
Speaker 1: them reluctant to overrule a case that is so recent.
20:11
Speaker 2: Finally, there's on January twentieth Wolford versus Lopez, and this
20:16
Speaker 2: is about the right to carry in public places in Hawaii.
20:21
Speaker 1: This is, depending on how you look at it, a
20:23
Speaker 1: property rights case or a gun rights case. And the
20:28
Speaker 1: gun owners say that why did a horrible thing when
20:33
Speaker 1: it said you need permission to go into private property
20:37
Speaker 1: that is open to the public with a gun. And
20:41
Speaker 1: a property right argument is that people have control over
20:46
Speaker 1: who comes onto their land. If I don't want you
20:48
Speaker 1: on my land, I can say no. If I don't
20:51
Speaker 1: want you to bring your gun, I can say no.
20:53
Speaker 1: If I don't want you to bring your book, I
20:55
Speaker 1: can say no, and if you don't like my conditions,
20:58
Speaker 1: you just don't come on to my land. Hawaii is
21:01
Speaker 1: saying there are a lot of people who don't want
21:04
Speaker 1: guns on their land for a variety of reasons, philosophical reasons,
21:09
Speaker 1: personal safety reasons, or concerned about liability. If you have
21:14
Speaker 1: someone with a gun on your land and they shoot
21:17
Speaker 1: someone or it goes off, you could be facing huge
21:20
Speaker 1: liability and in the interim, your insurance premiums go up.
21:24
Speaker 1: So the notion here is that we don't want people
21:27
Speaker 1: on other people's private property with guns unless they've got permission.
21:33
Speaker 1: The practical effect of this likely would be that if
21:37
Speaker 1: it's upheld, that stores will start posting signs saying you
21:40
Speaker 1: have our permission to be here with your gun, or
21:43
Speaker 1: not posting such signs, in which case you can't take
21:46
Speaker 1: your gun in there. But this is said to be
21:49
Speaker 1: an intrusion on Second Amendment rights, and this will tell
21:54
Speaker 1: us whether the court cares more about private property or guns.
21:57
Speaker 2: I don't know the answer to that one. I guess
21:59
Speaker 2: we'll find out. Thanks so much, David for this preview
22:02
Speaker 2: of the cases coming up. That's Professor David super of
22:06
Speaker 2: Georgetown Law. The first appeals court to weigh in on
22:14
Speaker 2: the Trump administration's attempts to install temporary US attorneys has
22:20
Speaker 2: given a thumbs down to President Trump's pick of Alina Habba,
22:24
Speaker 2: his former personal attorney, to lead the US Attorney's Office
22:28
Speaker 2: in New Jersey. The Third Circuit Court of Appeals said
22:31
Speaker 2: that Haba was not lawfully appointed to the job, despite
22:35
Speaker 2: the administration's attempt to rely on at least seven statutes
22:40
Speaker 2: and a variety of titles for Habba Interim US Attorney,
22:44
Speaker 2: Acting US Attorney, first Assistant US Attorney, and special Attorney.
22:49
Speaker 2: Joining me is constitutional law Professor Harold Krant of the
22:52
Speaker 2: Chicago Kent College of Law. How will you explain the
22:57
Speaker 2: sort of tortured attempts to keep Alena Habba in charge
23:03
Speaker 2: of the US Attorney's Office in New Jersey.
23:07
Speaker 3: The administration is trying to dispense with the niceties of
23:10
Speaker 3: the littal Vacancy's reformat, which Congress has passed in order
23:16
Speaker 3: to structure who can fill vacant positions, and the administration
23:20
Speaker 3: obviously wanted Alena Habba to be the interim US Attorney
23:24
Speaker 3: and had the right to under the statute to appoint
23:28
Speaker 3: her as interim us attorney, but under that particular statutory
23:32
Speaker 3: provision it only lasted for one hundred and twenty days.
23:36
Speaker 3: At the expiration of the one hundred and twenty days, therefore,
23:39
Speaker 3: under the statute, the right to appoint the interim then
23:43
Speaker 3: defaults to the district court judges of that circuit. The
23:47
Speaker 3: district court judges met and decided who should replace Alena
23:51
Speaker 3: Hobba at the end of the one hundred and twenty days. Unfortunately,
23:55
Speaker 3: the administration didn't want to comply with their choice, so
23:59
Speaker 3: fired that choice and then tried to strategize how they
24:03
Speaker 3: could reappoint Alena Habba into that position even though the
24:07
Speaker 3: one hundred and twenty days were over, and they tried
24:10
Speaker 3: to appoint her as a special attorney or as interim
24:13
Speaker 3: use Attorney a second time in order to fill that position.
24:18
Speaker 3: In the meantime, the President had duly transferred to Senate
24:24
Speaker 3: his choice for permanent use Attorney, which was Alena Habba.
24:28
Speaker 3: The Senate, however, did not act on it because of
24:31
Speaker 3: the lack of support, and so the President then was
24:34
Speaker 3: embarrassed with that and so rescinded the nomination. So even
24:38
Speaker 3: though he tried, at one point tried to follow the
24:41
Speaker 3: constitutionally mandated path of making an appointment and subject to
24:44
Speaker 3: Senate appointment. He then realized that it wasn't working and
24:48
Speaker 3: so tried to get around it the second way by
24:51
Speaker 3: withdrawing the nomination and reappointing.
24:54
Speaker 4: Her to the interim position.
24:55
Speaker 3: So that then led to this brujaha with drug defenders
25:00
Speaker 3: sort of trying to get their indictment dismissed and disqualify
25:04
Speaker 3: Elena hobbob from continuing in that role, and the District
25:08
Speaker 3: Court and now the Quarter of Appeals has basically said, okay,
25:13
Speaker 3: Baba should be disqualified, though you're going to we're not
25:15
Speaker 3: going to dismiss the indictments.
25:17
Speaker 2: The appeals Court panel, which consisted of two George W.
25:21
Speaker 2: Bush appointees and a Barack Obama appointee, found Hobba's appointment
25:27
Speaker 2: was unlawful on two grounds. Tell us about them.
25:31
Speaker 3: And they first held that once the one hundred and
25:33
Speaker 3: twenty days are over, the person can no longer fulfill
25:36
Speaker 3: the role of interim attorney under the governing federal statute.
25:41
Speaker 3: And then secondly they said that there's a bar in
25:44
Speaker 3: the statute that no one can serve as interim attorney
25:47
Speaker 3: who had been nominated to actually take the job permanently.
25:52
Speaker 3: So on those two independent grounds, the Quarter of Appeals
25:55
Speaker 3: chastised the President and said the appointment's clause is important,
25:59
Speaker 3: and following Congress's guidance of what to do if there's
26:03
Speaker 3: a vacancy is important. You didn't do either one. And therefore,
26:08
Speaker 3: how they can no longer serve as in om attorney
26:11
Speaker 3: and chaos I'm sure is raining in the US Attorney's
26:15
Speaker 3: office in New.
26:16
Speaker 2: Jersey, impossibly elsewhere. So the courts in New Jersey have
26:21
Speaker 2: already been operating in a sort of limbo given her
26:24
Speaker 2: uncertain status. Certain types of criminal cases were slowed, and
26:28
Speaker 2: some grand jury proceedings. But as you mentioned, the Appeals
26:31
Speaker 2: Court decision doesn't touch on the indictments brought under Habba's leadership,
26:39
Speaker 2: So where does that stand? And you know, as far
26:41
Speaker 2: as the criminal defendants in this very.
26:43
Speaker 4: Case, the prosecution can go forward.
26:46
Speaker 3: I mean, the question is who will actually decide who
26:49
Speaker 3: should prosecute what.
26:51
Speaker 4: Cases in New Jersey?
26:52
Speaker 3: Because there's no head right now, it's ruderless, it's a
26:55
Speaker 3: rudderless ship.
26:56
Speaker 4: And so it's it's not that nobody can be prosecuted.
27:00
Speaker 4: There's two things.
27:01
Speaker 3: One is, there are some limited functions that only the
27:04
Speaker 3: head of the office can do, some kind of wiretaps
27:07
Speaker 3: and other kinds of activities, So that is a difficult position.
27:12
Speaker 3: They'll have to get input from Pam Bondi as the
27:14
Speaker 3: Attorney General to take over those kinds of duties. But otherwise,
27:18
Speaker 3: just in terms of who prosecutes what case, what are
27:21
Speaker 3: the priorities of the office, who presents information to the
27:24
Speaker 3: grand jury? No one knows who's going to make those
27:26
Speaker 3: sort of decisions. Pam bond you will have to come
27:29
Speaker 3: in and in essence be the de facto interim US
27:33
Speaker 3: attorney unless they finally decide just for bureaucratic sanity, that
27:37
Speaker 3: they put someone in the office. But as you mentioned,
27:40
Speaker 3: the indictments still stand, and the two individuals who brought
27:44
Speaker 3: this disqualification motion to Lena Haba still face the prison
27:50
Speaker 3: if somebody who is a prosecutor can actually take their
27:54
Speaker 3: cases and try them before the jury.
27:56
Speaker 2: There have been many challenges of federal prosecutors installed as
28:01
Speaker 2: interim and acting US attorneys, and judges have ruled that
28:06
Speaker 2: not only Habba's appointment was illegal, but also the appointment
28:11
Speaker 2: of interim US attorneys in Los Angeles and Nevada, and
28:16
Speaker 2: of course in the Eastern District of Virginia. Or a
28:20
Speaker 2: judge dismissed the indictments of former FBI Director James Comy
28:26
Speaker 2: and New York Attorney General Letitia James because of the
28:29
Speaker 2: unlawful appointment of Lindsay Halligan. Explain why the judge throughout
28:33
Speaker 2: the indictments that Lindsay Halligan had obtained but not those
28:37
Speaker 2: under HABA.
28:38
Speaker 3: The Linda Halligan case was special because she was the
28:40
Speaker 3: only person who presented to the grand jury. She was
28:43
Speaker 3: the one that got the indictment, and of course that
28:45
Speaker 3: was after career prosecutors have refused to bring the case
28:49
Speaker 3: against Comy and James because they were concerned about the
28:53
Speaker 3: probity of the evidence. So now those cases the indictments
28:57
Speaker 3: were dismissed, We'll see if they can be reinstated, which
29:00
Speaker 3: is possible. But in this case, the indictments stand. But
29:05
Speaker 3: the pattern you suggest goes deeper. I mean, it suggests
29:08
Speaker 3: that even though Cratcle two is very close to the
29:12
Speaker 3: President's heart because he believes he needs to control everybody
29:15
Speaker 3: in the bureaucracy in terms of both by appointment and discharge.
29:19
Speaker 4: He's not complying with it, and he's not complying with it.
29:21
Speaker 3: By refusing to give appointments for the consent Senate's consent,
29:27
Speaker 3: and the courts are rebuffing him, saying, you know, look,
29:30
Speaker 3: this is a very important constitutional provision. It's important to you,
29:33
Speaker 3: it's important to us. You've just got to follow it.
29:36
Speaker 3: And the President has set passively refused.
29:39
Speaker 2: Yeah, I mean so. In the Lindsay Halligan case, the
29:43
Speaker 2: DOJ's Office of Legal Counsel last week said that Halligan
29:48
Speaker 2: should continue to be referred to as the Eastern District
29:51
Speaker 2: of Virginia's US attorney in court filings, and also in
29:56
Speaker 2: California with the US Attorney for Los Angeles. The federal
30:01
Speaker 2: judge ruled that he was unlawfully appointed, but is allowing
30:05
Speaker 2: him to stay on as the top supervising prosecutor. I mean,
30:08
Speaker 2: those decisions don't make any sense to me. Could Haba
30:11
Speaker 2: be back in there?
30:13
Speaker 3: Yeah, I mean, obviously that's what Pam Bondi tried to
30:16
Speaker 3: do by naming her a special prosecutor, which she does
30:19
Speaker 3: have the power to name special attorneys to take on
30:22
Speaker 3: certain responsibilities of the Department of Justice.
30:25
Speaker 4: But courts are trying to maintain, I think, a very
30:29
Speaker 4: fine line.
30:29
Speaker 3: They're trying to follow the statutes, follow the Constitution, but
30:33
Speaker 3: at the same time gives some slack to the administration.
30:36
Speaker 3: Not so sure that they should create such a fine line,
30:39
Speaker 3: because the president's not complying with the Constitution or the statutes,
30:43
Speaker 3: and they've said that, And I'm not sure sure that
30:45
Speaker 3: there should be as charitable by allowing these individuals to
30:48
Speaker 3: still play such an important role in these offices. So
30:52
Speaker 3: we'll have to see if the Department of Justice takes
30:55
Speaker 3: any kind of remedial steps to try to put somebody
30:57
Speaker 3: else who's a first assistant, for instance.
31:00
Speaker 4: Into the office, as the statute provides.
31:03
Speaker 2: Turning to the Supreme Court for a moment, the Justice
31:07
Speaker 2: has declined for now to let President Trump oust the
31:11
Speaker 2: director of the US Copyright Office, deferring a decision until
31:16
Speaker 2: they consider two other clashes over Trump's firings. Does that
31:21
Speaker 2: just seem logical.
31:23
Speaker 3: It's a really interesting case because obviously the Supreme Court
31:26
Speaker 3: has taken the position that they want to cut back
31:29
Speaker 3: on the idea of if independent agency heads, the idea
31:33
Speaker 3: that the president has to have close control over all
31:37
Speaker 3: subordinates who are exercising executive power.
31:40
Speaker 4: And they've expanded the notion of executive.
31:42
Speaker 3: Power with respect to ruling so far, dealing with the
31:46
Speaker 3: National Relations Board, with the Federal Trade Commission, the mayor
31:49
Speaker 3: as Systems Protection Board, and others. But now they're pausing
31:54
Speaker 3: because the question here is can the President also summilary
31:58
Speaker 3: dismiss or is at least one of his subordinates. Can
32:00
Speaker 3: summary dismiss someone who is head of the Copyright Office,
32:04
Speaker 3: which is actually within the Librarian of Congress. So the
32:09
Speaker 3: question in this case is really what is executive power?
32:13
Speaker 3: Is executive power anything that Congress delegates, or is executive
32:17
Speaker 3: power something which is under the president's control Because theoretically
32:22
Speaker 3: the gradustor of copyrights is part of the legislative branch,
32:26
Speaker 3: gives advice to the Congress and tries to accept the
32:31
Speaker 3: Congress's agenda with respect to what to do about copyrights,
32:34
Speaker 3: and so can the president therefore have that same kind
32:38
Speaker 3: of close control over a officer who is closely aligned
32:43
Speaker 3: with Congress, as the Supreme Court seems to want to
32:46
Speaker 3: give the president to have close control over officers that
32:49
Speaker 3: are closely aligned with the president. So this case somewhat
32:54
Speaker 3: challenges their construct of who the president has to have
32:58
Speaker 3: close dominion over in terms of officers of the United States.
33:03
Speaker 3: So I think the court this is only a preliminary posture.
33:05
Speaker 3: There's been no final rulings in this case about whether
33:08
Speaker 3: the Register of Copyrights can be discharged for no reason
33:11
Speaker 3: at all, as President Trump directed. But I think the
33:15
Speaker 3: Court paused because they realize this is a harder case
33:18
Speaker 3: because even if they decide that the so called unitary
33:23
Speaker 3: executive should expand to include the Federal Trade Commission, of
33:27
Speaker 3: the National Labor Relations Board, et cetera, that's another step
33:31
Speaker 3: to ask whether it should also apply to officers whom
33:35
Speaker 3: Congress has place within the legislative branch.
33:38
Speaker 4: So I think the.
33:39
Speaker 3: Court is smart to pause and not to take this
33:43
Speaker 3: at this point, because it realizes that these kind of
33:46
Speaker 3: placements that is trying to say is non executive officer
33:49
Speaker 3: significant executive officer not a significant officer are very much
33:53
Speaker 3: up for grabs, and they should really go more slowly,
33:56
Speaker 3: more carefully in decision making.
33:59
Speaker 2: Thanks hell, that's Professor Harold Krent of the Chicago Kent
34:02
Speaker 2: College of Law. And that's it for this edition of
34:04
Speaker 2: the Bloomberg Law Show. Remember you can always get the
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