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Weekend Law: The Next AG, Justices Testify & Blocking Paramount Takeover · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 2: Senator, I will say that President Trump trusts me to
0:12
Speaker 2: give him counsel. Council does not mean any recognized man
0:17
Speaker 2: and so, and that's true in my case, like it
0:19
Speaker 2: should be in any attorney's generals.
0:21
Speaker 3: Todd Blanche tried to assure skeptical senators that he was
0:25
Speaker 3: no longer acting as President Trump's personal lawyer. But then
0:29
Speaker 3: there was this answer which seemed to indicate that the
0:33
Speaker 3: Justice Department would not be independent from Trump under Blanche's leadership.
0:38
Speaker 2: The Department of Justice, like every single department in the
0:40
Speaker 2: executive is part of the executive. I mean Article two
0:43
Speaker 2: of the Constitution gives the power of the executive to
0:47
Speaker 2: President Trump. So we certainly operate with integrity. We certainly
0:51
Speaker 2: operate in the single mindset to serve the American people
0:55
Speaker 2: and do the right thing. But I am a member,
0:58
Speaker 2: if confirmed, I will a member of the cabinet.
1:01
Speaker 3: For five contentious hours, Blanche was questioned about his brief
1:06
Speaker 3: but tumultuous tenure as acting Attorney General, which saw the
1:10
Speaker 3: bungle release of the Epstein files, the prosecution of the
1:14
Speaker 3: president's political enemies, criticism of DOJ lawyers by federal judges,
1:20
Speaker 3: and the topic that drew the most questions was Blanche's
1:24
Speaker 3: creation of a one point eight billion dollar anti weaponization
1:28
Speaker 3: fund to compensate Trump's allies. Though Blanche insisted the fund
1:33
Speaker 3: is dead, Trump hasn't agreed to that. In writing and
1:37
Speaker 3: under questioning by Republican Senator John Cornyn, Blanche admitted that
1:42
Speaker 3: the agreement could be resurrected.
1:44
Speaker 4: Is a settlement agreement enforceable as a contract by the parties?
1:49
Speaker 2: Well, yes, it's an enforceable document. So I suppose if
1:52
Speaker 2: President Trump's council sought to enforce it, that they potentially could.
1:59
Speaker 5: Including theanization fund, Well, they could try to enforce them.
2:02
Speaker 3: With Democrats united against Blanche, he needs the votes of
2:06
Speaker 3: every Republican on the Senate Judiciary Committee or his nomination
2:11
Speaker 3: will fail. Joining me is constitutional law expert David Souper,
2:15
Speaker 3: a professor at Georgetown Law. David, what's your general impression
2:19
Speaker 3: of how Blanche? Did?
2:21
Speaker 4: I mean? He's a smart lawyer. There are some lawyers
2:24
Speaker 4: in Trump's orbit who are completely incompetent. Blanche is certainly
2:28
Speaker 4: not one of those, and he's I think fairly quick
2:32
Speaker 4: on his feet. But he's got a record that's very
2:37
Speaker 4: difficult to defend, and he's got a boss who won't
2:40
Speaker 4: let him promise to do things that any reasonable attorney
2:44
Speaker 4: general would do. So he's been at a box several times.
2:49
Speaker 4: Some of the Democrats have done a pretty good job
2:52
Speaker 4: of pinning him down, some of them have done a
2:57
Speaker 4: less good job of pinning him down, and some of
2:59
Speaker 4: them have just talked.
3:00
Speaker 3: There are a lot of questions about whether Blanche would
3:03
Speaker 3: be independent from President Trump, and in response to a
3:07
Speaker 3: question from Democratic Senator Chris Coons, Blanche basically said that
3:12
Speaker 3: the Justice Department is part of the executive branch. If confirmed,
3:17
Speaker 3: he'll be part of the cabinet, and we all serve
3:20
Speaker 3: at the pleasure of the president. I don't know that
3:22
Speaker 3: he ever really asserted independence from the president.
3:27
Speaker 4: Well, he really didn't, and at one point he said
3:30
Speaker 4: that we will act with integrity. At another point he
3:34
Speaker 4: made the predictable statement that, of course, if he was
3:38
Speaker 4: asked to do something illegal, he would resign, but that
3:41
Speaker 4: would never happen with this president. But he is part
3:46
Speaker 4: of a Justice Department that is asserting a historically broad
3:51
Speaker 4: reading of presidential powers, which includes no independence for anybody
3:57
Speaker 4: in the executive branch, himself included, so he can't claim
4:02
Speaker 4: to be independent without having that used against his own
4:06
Speaker 4: lawyers when they're asserting their unified executive theory.
4:09
Speaker 3: So everyone knew that a big point was going to
4:13
Speaker 3: be the so called Anti Weaponization Fund. He said several
4:17
Speaker 3: times the fund is dead, but Republican Senator John Cornyn,
4:22
Speaker 3: who's a key vote, pinned him down, and Blanche admitted
4:25
Speaker 3: that the settlement agreement is a contract and it could
4:28
Speaker 3: conceivably be resurrected.
4:30
Speaker 4: That leads me to believe that the President is not
4:34
Speaker 4: comfortable with the Weaponization Fund being dead, because mister Blanche
4:39
Speaker 4: could have gotten himself out of a lot of trouble
4:42
Speaker 4: by agreeing to provide a letter declaring that and he
4:47
Speaker 4: wouldn't do it. And when he was pressed on whether
4:52
Speaker 4: they could sue for breach of contract, he more or
4:57
Speaker 4: less acknowledged that they could and didn't really have much
5:01
Speaker 4: of an answer to that. So I think President Trump
5:05
Speaker 4: has made a firm decision that he wants to help
5:09
Speaker 4: the January sixth rioters, and mister Blanche is trying to
5:13
Speaker 4: avoid saying anything that will burn Bridges that he knows
5:17
Speaker 4: he's going to have to cross.
5:19
Speaker 3: And on Monday, in a scathing opinion, a Florida federal
5:23
Speaker 3: judge said Blanche's involvement in settling Trump's lawsuit with the
5:28
Speaker 3: IRS raised conflict of interest concerns because he was Trump's
5:32
Speaker 3: former defense lawyer, and she ordered a copy of her
5:35
Speaker 3: decision to be sent to the state bar in New York,
5:39
Speaker 3: where there are several other complaints alleging serious ethical breaches
5:44
Speaker 3: by Blanche, won by hundreds of former federal judges. When
5:48
Speaker 3: he was confronted with that, Blanche said, well, that's not
5:51
Speaker 3: a referral. But it is in essence a referral, isn't it.
5:55
Speaker 4: That's a referral. I'm quite convinced that New York State
5:58
Speaker 4: Bar can spring for a on line search and get
6:01
Speaker 4: a copy of the opinion on their own. The fact
6:03
Speaker 4: that she is sending it to them suggests that she
6:06
Speaker 4: independently believes there's material in there that they ought to see,
6:10
Speaker 4: and given how scathing it is, that's obviously correct. The
6:14
Speaker 4: Attorney General is the highest law enforcement official in the country,
6:19
Speaker 4: has many responsibilities to the American people, and certainly one
6:22
Speaker 4: of them is to set a standard for ethical behavior. Now,
6:26
Speaker 4: anyone can file a complaint, and the mere fact that
6:30
Speaker 4: a complaint has been filed should not be pivotal. But
6:34
Speaker 4: the fact that some fairly serious people whose reputations matter
6:39
Speaker 4: filed complaints should give us cause, and I would think
6:42
Speaker 4: the committee should get to the bottom of them. If
6:44
Speaker 4: mister Blanche has not done anything on ethical complaint, shouldn't
6:47
Speaker 4: stand in his way. But there's certainly are reasons to
6:52
Speaker 4: question some things that have happened.
6:54
Speaker 3: There wasn't much questioning about something I think is critical,
6:58
Speaker 3: and that's the Justice to Department losing credibility with federal judges.
7:03
Speaker 3: But Democratic Senator Sheldon Whitehouse did ask about that.
7:07
Speaker 6: Between judges appointed by every president harshly criticizing the department's
7:12
Speaker 6: work in your tenure, grand juries, rejecting indictments, judicial findings
7:17
Speaker 6: of outright misconduct, capable lawyers fleeing the stinking ship. This
7:24
Speaker 6: seems to be the most troubled Department of Justice skin history.
7:28
Speaker 3: David, We've talked before about how federal judges are repeatedly
7:33
Speaker 3: finding fault with the Justice Department and its attorneys. Blanche
7:37
Speaker 3: denied that, but that is true.
7:40
Speaker 4: I think it's unfortunate that this part of the hearing
7:45
Speaker 4: is played so theatrically. I would have loved to see
7:49
Speaker 4: a senator take a list of orders, read from this order,
7:54
Speaker 4: ask mister Blanche, why did your Justice Department do that?
7:58
Speaker 4: Then read from the next order, why did your Justice
8:00
Speaker 4: Department do that? And show by repeated questions just how
8:06
Speaker 4: prevalent this is, which is enormous and utterly unprecedented. As
8:10
Speaker 4: someone who is livingated against the Justice Department, their lawyers
8:13
Speaker 4: are a total pain in the act. But they don't why.
8:17
Speaker 4: They say nasty things, but they don't why, except now
8:20
Speaker 4: they do.
8:21
Speaker 3: Blanche was questioned by several senators about the bungled release
8:26
Speaker 3: of the Epstein files. He defended the release, but acknowledged
8:30
Speaker 3: that mistakes had been made, and he apologized to the victims.
8:35
Speaker 3: But Democratic Senator Corey Booker pressed him on the fact
8:38
Speaker 3: that Galaine Maxwell was transferred to a low security prison
8:43
Speaker 3: camp just days after Blanche interviewed her, and Booker shot
8:48
Speaker 3: down Blanche's answer that it was because she was getting threats.
8:52
Speaker 7: When people are under threats in a bure prison facility,
8:56
Speaker 7: they're put into solitary confinement or protectives, not moved to
9:00
Speaker 7: a camp that's not always true. What is what is
9:04
Speaker 7: true is someone that is accused of child sex trafficking
9:08
Speaker 7: under the Bureau of Prison's own policies is not put
9:12
Speaker 7: in a facility like this that seems clearly like a reward.
9:17
Speaker 4: Cener Booker did get him to state explicitly that he
9:21
Speaker 4: had no involvement in the transfer. I don't particularly believe that.
9:25
Speaker 4: You don't sound like you particularly believe that. But there
9:29
Speaker 4: are lower level people who know the answer to that.
9:32
Speaker 4: And if he lied about that, then he has just
9:35
Speaker 4: opened himself up to a perjury prosecution, and the statute
9:39
Speaker 4: of limitations on that will extend into the next presidential turn.
9:43
Speaker 3: At least Blanche succeeded in keeping the temperature down with
9:47
Speaker 3: his sort of measured answers.
9:49
Speaker 4: I was struck with how he kept trying to wriggle
9:55
Speaker 4: out of questions when it would seem that there was
9:58
Speaker 4: a fairly simple way to aim answer them. Would he
10:01
Speaker 4: agree to meet the Epstein victims? Evasion? Evasion? Evasion? Did
10:06
Speaker 4: ethics approve his dinner with the people whose anti trust
10:10
Speaker 4: investigation he was about to terminate? Evasion? Evasion? Evasion? If
10:16
Speaker 4: he had nothing to hide, why not just say yes
10:19
Speaker 4: to some of these questions, and maybe that comes down
10:24
Speaker 4: to combativeness, but I assume it's because there's more to
10:29
Speaker 4: be said to the story.
10:30
Speaker 3: I question if these hearings really matter lately, they seem
10:34
Speaker 3: to be just performative. It seems to be coming down
10:37
Speaker 3: to one Republican Senator, John Cornyn, who said he's not
10:42
Speaker 3: decided yet, but with these judiciary hearings, the Republican senators
10:47
Speaker 3: all seem to fall in line and vote the party
10:50
Speaker 3: line in the end. Do you think that's what will
10:52
Speaker 3: happen here?
10:53
Speaker 4: I think so, and I find that very distressing. There's
10:58
Speaker 4: no question that President Trump will get an attorney general
11:01
Speaker 4: to his liking and an attorney general who will do
11:03
Speaker 4: what he says on a great many things. But to
11:06
Speaker 4: confirm someone as attorney General who has already been personally
11:11
Speaker 4: involved in so much misconduct seems very unfortunate. And I
11:17
Speaker 4: wish more senators would say you get your person, but
11:21
Speaker 4: not this one.
11:22
Speaker 3: We'll find out what they say in a few weeks.
11:25
Speaker 3: Thanks so much, David. That's Professor David super of Georgetown Law.
11:30
Speaker 3: Coming up next on The Bloomberg Law Show, Twelve Democratic
11:33
Speaker 3: led states make a last ditch effort to stop Paramounts
11:37
Speaker 3: one hundred eleven billion dollar takeover of Warner Brothers. They
11:42
Speaker 3: say it violates antitrust law, and they filed suit. I'm
11:46
Speaker 3: June Grosso, and you're listening to Bloomberg.
11:49
Speaker 8: Movie theaters, basic cable TV distributors, and audiences on every
11:54
Speaker 8: sofa and in every movie scene would feel the impact
11:58
Speaker 8: of this un.
11:59
Speaker 3: Lawful California is leading a lawsuit by a dozen states
12:04
Speaker 3: to block the largest merger in the history of Hollywood.
12:07
Speaker 3: The states allege that Paramounts one hundred and ten billion
12:11
Speaker 3: dollar takeover of Warner Brothers Discovery would result in less competition,
12:17
Speaker 3: higher prices for consumers, and fewer choices on the big
12:21
Speaker 3: and small screens. The Justice Department cleared the transaction without
12:26
Speaker 3: any conditions last month, and California Attorney General Rob Bonta
12:31
Speaker 3: says the states are suing because the federal government is
12:35
Speaker 3: not enforcing the anti trust laws.
12:37
Speaker 9: DJ The federal government has advocated its responsibility to engage
12:42
Speaker 9: in firm and fair anti trust enforcement.
12:44
Speaker 1: That's been our traditional role they've played.
12:46
Speaker 9: They're not playing it now. Not only are they not
12:48
Speaker 9: playing it, but they're actually affirmatively making things worse by
12:51
Speaker 9: trying to usher through deals that are unlawful.
12:53
Speaker 3: Paramount vowed to vigorously defend the transaction. My guest is
12:58
Speaker 3: an expert in anti trust law, Professor Harry First of
13:02
Speaker 3: NYU Law School. Harry the States claimed that this deal
13:06
Speaker 3: would create a media behemoth.
13:09
Speaker 10: So, yes, there are five big companies, but monopolistic and
13:14
Speaker 10: five don't go together, maybe, you know, in talking about
13:17
Speaker 10: power in sort of a colloquial way, by from a
13:20
Speaker 10: legal point of view, we're not talking about monopoly, but
13:24
Speaker 10: we are talking about significant power and or any trust.
13:28
Speaker 10: Its market power or Hollywood, it's money for many people,
13:32
Speaker 10: it's cultural power, and apparently for the president it's CNN.
13:36
Speaker 10: I mean, I don't know, but that seems to be.
13:38
Speaker 10: So it's lots of things colliding, you know, which makes
13:42
Speaker 10: the merger really interesting, you know, along many dimensions. So
13:47
Speaker 10: what makes it also interesting and horrible in a way
13:52
Speaker 10: is that the story plays out in a way that
13:55
Speaker 10: we're too familiar with today in the Trump administration. But
14:00
Speaker 10: really we've never seen before in this direct overt way,
14:04
Speaker 10: which is there's the law and there we don't care
14:08
Speaker 10: about the law. It's what the president wants today, and
14:12
Speaker 10: this case has played along those two tracks, and the
14:16
Speaker 10: spoiler in this is also partly political, but has to
14:20
Speaker 10: play on the legal track, can't play on the political track,
14:23
Speaker 10: and that's the States.
14:24
Speaker 3: As you refer to there. The merger has been the
14:26
Speaker 3: subject of intense lobbying in DC by Paramount, So tell
14:31
Speaker 3: us about the political track of the deal.
14:34
Speaker 10: The background. The political background starts unusually before Paramount's bid
14:40
Speaker 10: for Warner is accepted or really made legally. And if
14:44
Speaker 10: you read what the Justice Department did at the very end,
14:48
Speaker 10: they said in June that we've been investigating this for
14:52
Speaker 10: eight months. That's pretty interesting since the merger was just
14:57
Speaker 10: noticed to them in February. I know. My math is
15:00
Speaker 10: it's bad, but it's not that bad. That means they
15:02
Speaker 10: started investigating this case before the merger was officially notified. Now,
15:08
Speaker 10: normal practice is you can't get the Justice Department to
15:11
Speaker 10: tell you what they're going to do until you do something.
15:15
Speaker 10: You can't call them up and say, excuse me, will
15:16
Speaker 10: you give me an advisory opinion, and some jurisdictions you can.
15:20
Speaker 10: In the United States you can't. But apparently these people
15:24
Speaker 10: could because this was going on at a time when
15:27
Speaker 10: the President was just putting a big thumb, I don't
15:31
Speaker 10: know hand arm on the scales for paramount. Okay. So
15:36
Speaker 10: in February, this deal gets cleared without what's called a
15:39
Speaker 10: second request. So in important mergers, the government says, excuse me,
15:44
Speaker 10: you can't close the deal until we look more deeply
15:47
Speaker 10: at all the documents. So you have to hold off
15:50
Speaker 10: until you've produced all the documents to our satisfaction. That's
15:54
Speaker 10: the norm, and a big deal like this. Not for
15:56
Speaker 10: this deal. In February, they say, we're not even going
15:58
Speaker 10: to do a second request.
16:00
Speaker 3: That's the political track. What about the legal track to
16:02
Speaker 3: the deal?
16:03
Speaker 10: They go through some sort of investigation and they close
16:08
Speaker 10: the investigation, which they've already sort of closed by not
16:12
Speaker 10: issuing a second request. They close this just in June.
16:16
Speaker 10: And a couple things interesting about that. Normally the Justice
16:20
Speaker 10: Department does not issue closing statements to explain what they're doing.
16:26
Speaker 10: It's very rare, and one of the problems with filing
16:29
Speaker 10: closing statements is that the people who write them have
16:32
Speaker 10: certain goals want to justify what they've done, but another
16:35
Speaker 10: goal may be to short circuit other plaintiffs. So if
16:39
Speaker 10: you can write this and say, you know, my god,
16:42
Speaker 10: this case was buff you know nothing there, baby, and
16:46
Speaker 10: you think the states are going to file You know
16:49
Speaker 10: that a federal is going to read that and maybe
16:52
Speaker 10: it will affect what they do.
16:54
Speaker 3: Can you give us the highlights of the Justice Department's
16:57
Speaker 3: closing statement.
16:59
Speaker 10: There are certain things that are not there, and certain
17:03
Speaker 10: things presented in an interesting way. So they start out
17:07
Speaker 10: with streaming, as you know, nothing to see here. Well,
17:11
Speaker 10: in some ways that actually is the weaker part or
17:13
Speaker 10: the less suspicious part of the case. There are three
17:16
Speaker 10: major streaming services and a fourth if you put in Disney,
17:21
Speaker 10: HBO Max and Paramount Plus. You know, these are distant competitors,
17:27
Speaker 10: so you can make a credible claim that it's still
17:29
Speaker 10: a very competitive market and not want to sue about.
17:33
Speaker 10: So that's where they start, and then they go to
17:37
Speaker 10: what they call linear TV, which I think is an
17:40
Speaker 10: interesting description. You know, I'm not sure exactly what they
17:44
Speaker 10: mean by that, except they've combined two words that indicate junk.
17:49
Speaker 10: So it's supposed to be cable. Hard to say exactly,
17:53
Speaker 10: They're not really clear, but they say, you know, no
17:57
Speaker 10: problem here because this kind of TV faces so much
18:02
Speaker 10: competition from pay services, from streaming from live from sports,
18:07
Speaker 10: from blah blah from who knows, not a problem here.
18:12
Speaker 10: And then of course they say, for last the thing
18:14
Speaker 10: that you might start with first, which is studio film production,
18:19
Speaker 10: because this is where the parties are direct competitors Paramount
18:23
Speaker 10: and Warner. You know they make blockbusters, but you know,
18:26
Speaker 10: nothing to see here because after all lots of competitors.
18:30
Speaker 10: Netflix makes theatrical releases. Yeah, I guess Amazon and Disney,
18:35
Speaker 10: and there's lots of other stuff, and so don't worry
18:39
Speaker 10: about that, and don't worry about impact on workers in
18:44
Speaker 10: Hollywood because all the incentives are to make more films
18:48
Speaker 10: and distribute them theatrically. Nothing about viewpoint diversity, which a
18:53
Speaker 10: lot of people are worried about, but it's hard to
18:55
Speaker 10: make out as any trust matter. You know, CNN and
18:58
Speaker 10: CBS under the same. Enough concern about CBS now, but
19:02
Speaker 10: now they're going to control CNN. No mention of that
19:06
Speaker 10: doesn't give us any market shares. So that's the first
19:09
Speaker 10: thing you look for. But doesn't mention that, And to
19:13
Speaker 10: cap it off nicely, the Wall Street Journal follows with
19:16
Speaker 10: this story that says shock and amazement. The staffers working
19:21
Speaker 10: on this were surprised when the closing statement was issued,
19:25
Speaker 10: which they had no role in drafting. Sound familiar.
19:29
Speaker 3: Yes, it happened when the Justice Department in DC settled
19:32
Speaker 3: the Live Nation Ticketmaster suit without telling the career attorneys
19:37
Speaker 3: who were prepping for trial, Harry, Did the States draft
19:40
Speaker 3: their complaint around or in response to what the Justice
19:45
Speaker 3: Department had stated in its summary of why it was
19:50
Speaker 3: declining to prosecute the case.
19:53
Speaker 10: You know, if you were being skeptical of this complaint,
19:56
Speaker 10: you'd say, this is the complaint to save all the
19:59
Speaker 10: parts of Hollywood. Everyone says it's dead, the movie theaters,
20:03
Speaker 10: the big motion picture batrical producers, and the cable companies.
20:07
Speaker 10: And it's basic cable. It's not fancy cable that we
20:12
Speaker 10: pay for with bazillions of dollars. It's basic cable that
20:17
Speaker 10: gets you the basic channels, not the premium channels. It
20:21
Speaker 10: gets you the over the air broadcasting. So that's the
20:24
Speaker 10: focus of this complaint. It's not on streaming. This is,
20:29
Speaker 10: to my first reading, a non ideological, carefully drafted complaint
20:37
Speaker 10: designed to stop this merger and not get embroiled in
20:43
Speaker 10: any fancy theories. There's no labor market theory in this.
20:46
Speaker 10: They start with the place where justice stops, which is
20:51
Speaker 10: wide release theatrical films, you know, where the competition is direct.
20:56
Speaker 10: And then they go to the super sellers, the anticipated
21:00
Speaker 10: top grossing theatrical films, which is something the Justice Department
21:05
Speaker 10: did in the bookseller's merger, you know, the New York
21:08
Speaker 10: Times Bestsellers was the market there, the Bertlesman case, so
21:12
Speaker 10: their echoes there. This is carefully done. And then licensing
21:15
Speaker 10: a basic cable channels, and it points out how the
21:19
Speaker 10: two companies are bringing together turner stuff, all sorts of stuff,
21:23
Speaker 10: and the cable companies need the package, you know, they
21:27
Speaker 10: need the bundle of stuff. And maybe the fancy people
21:31
Speaker 10: have cut the cord, but there's still a lot of
21:33
Speaker 10: people who are looking at their cable and it's aimed
21:37
Speaker 10: at that. And I think it's very clever.
21:39
Speaker 3: Do the States talk numbers which the Feds didn't.
21:43
Speaker 10: We now have concentration figures perf and doll Hirshman index,
21:48
Speaker 10: the fancy way of saying that these are concentrated markets.
21:51
Speaker 10: And the complaint references the merger guidelines, the federal merger
21:55
Speaker 10: guidelines like these are way over the top. Nice job,
21:58
Speaker 10: and they're looking direct a horizontal competition and price raising
22:02
Speaker 10: sort of one final thing that I noticed. It's co
22:05
Speaker 10: signed in council by a private law firm that's been
22:09
Speaker 10: hired by California and signed by a very highly respected
22:15
Speaker 10: anti trust litigator, Rich Parker. This is a well done,
22:19
Speaker 10: careful complaint from my reading, well done. So this deal
22:24
Speaker 10: is not over yet, and it's not, you know, a
22:26
Speaker 10: throwaway complaint.
22:28
Speaker 3: In response to the lawsuit, Paramount said, numerous antitrust authorities
22:33
Speaker 3: around the world have concluded the transaction creates a stronger
22:37
Speaker 3: competitor against dominant streaming and technology platforms that have harmed
22:42
Speaker 3: the market for theatrical exhibition and jobs in the entertainment industry.
22:47
Speaker 10: So that's a clever political statement. It's a bad legal statement.
22:50
Speaker 10: I mean, it's not an effective legal statement, but that's
22:52
Speaker 10: not supposed to be. I guess to say that you know,
22:55
Speaker 10: the merger will help streaming is sort of irrelevant under
22:58
Speaker 10: basic anti trust law, which has not been challenged. That
23:02
Speaker 10: you can't justify a merger that hurts competition in one
23:05
Speaker 10: market by saying, oh, but look over here, Gosh, we've
23:08
Speaker 10: got some help over in a different market. So that's
23:11
Speaker 10: not going to work. Now, if you're going to somehow
23:13
Speaker 10: say this will help competition in the market for theatrical
23:18
Speaker 10: movie releases. Well, you know that's going to be a
23:22
Speaker 10: bit of a hard sell, I think, you know, going
23:25
Speaker 10: around in this Although the closing statement doesn't mention, there's
23:29
Speaker 10: a lot of talk about their promise of thirty new
23:33
Speaker 10: films after this merger, and you know a lot of
23:36
Speaker 10: commentaries saying, you know, what are you smoking. You know,
23:39
Speaker 10: those sort of promises tend to be discounted as a
23:42
Speaker 10: general matter, but people pointing out that releases have been
23:45
Speaker 10: contracted a number of years ahead with exhibitors, So you know,
23:49
Speaker 10: the idea that all of a sudden you're going to
23:51
Speaker 10: increase output by thirty more is going to be up
23:54
Speaker 10: to them to prove. That's going to be their burden,
23:57
Speaker 10: you know, the justification. It's on them.
24:00
Speaker 3: The States made a motion to pause the takeover, and
24:03
Speaker 3: a federal judge said she'll rule on their request by
24:06
Speaker 3: next Wednesday, so we shall see what happens. Thanks so much,
24:10
Speaker 3: Harriet's always a pleasure. That's Professor Harry First of NYU
24:14
Speaker 3: Law School. Coming up next on The Bloomberg Law Show.
24:18
Speaker 3: Supreme Court justices are asking Congress for more money for
24:22
Speaker 3: next year's budget because they're getting increasing threats. I'm June Grosso,
24:27
Speaker 3: and this is bloomberg.
24:31
Speaker 5: For some of us. Those threats have come very close,
24:35
Speaker 5: and all of us live with the knowledge that they
24:37
Speaker 5: may again materialize.
24:39
Speaker 3: Justice is Elena Kagan and Amy Cony Barrett made a
24:42
Speaker 3: rare appearance before Congress this week as the Supreme Court
24:46
Speaker 3: seeks millions of dollars to befump security because of increasing
24:51
Speaker 3: threats against the justices. Justice Barrett said the threats have
24:55
Speaker 3: forced her children to think about and see things that
24:59
Speaker 3: children should and have to. She described an incident after
25:03
Speaker 3: her security detail gave her a bulletproof vest following the
25:07
Speaker 3: leak of the Dobbs decision overturning the right to abortion.
25:11
Speaker 11: When threats to my life were particularly intense a few
25:14
Speaker 11: years ago, around the time of the Dobs leak, my
25:17
Speaker 11: security detail sent me home with a bulletproof vest and
25:20
Speaker 11: I carried it into my house, put it into my bedroom,
25:22
Speaker 11: dropped it down on a table, turned around, and my
25:24
Speaker 11: twelve year old son was standing in the doorway of
25:27
Speaker 11: my bedroom and he wanted to know what it was
25:30
Speaker 11: and why I had it. And I didn't know how
25:32
Speaker 11: to respond because maybe I lack imagination, but I didn't
25:35
Speaker 11: expect that performing this service was going to put me
25:38
Speaker 11: in the position of explaining to my children what a
25:41
Speaker 11: bulletproof vest was and why I had to wear one.
25:43
Speaker 3: Barrett also described a swatting hoax at her home just
25:47
Speaker 3: six weeks ago. The Supreme Court is asking for a
25:50
Speaker 3: fourteen point six million dollar increase in their budget for
25:54
Speaker 3: additional agents to protect the justices and six point five
25:58
Speaker 3: million to design of visitors screening facility at the Court.
26:02
Speaker 3: In total, the Court is asking for two hundred and
26:05
Speaker 3: twenty eight million dollars for next year's budget. Joining me
26:09
Speaker 3: is constitutional law expert Lewis Michael Sideman, a professor at
26:13
Speaker 3: Georgetown Law. The Justices having come to testify to Congress
26:18
Speaker 3: about their budget since twenty nineteen. So what's the significance
26:23
Speaker 3: of this appearance.
26:24
Speaker 1: Well, I think they're there now because they're worried about
26:28
Speaker 1: their security, and that's completely legitimate. There are serious security
26:34
Speaker 1: problems and they are to be taken care of. But
26:36
Speaker 1: the fact is that being properly respectful of another branch
26:40
Speaker 1: of government doesn't just mean showing up when you want
26:44
Speaker 1: something from them. They are built into the Constitution checks
26:47
Speaker 1: and balances. The Court can check Congress, but Congress also
26:51
Speaker 1: has the power to check the Court. And frankly, I
26:54
Speaker 1: think Congress ought to be doing a better job of that.
26:58
Speaker 1: And one way of doing a better job Congress controls
27:01
Speaker 1: the Court's budget. You know, if Congress wanted to, they
27:04
Speaker 1: could cut off the lights and air conditioning. So I
27:08
Speaker 1: think they have more power than they realize they do have,
27:11
Speaker 1: and I think they ought to start using it.
27:13
Speaker 3: I mean, has there been a Congress in our history
27:16
Speaker 3: that's cut off or limited funding to the Supreme Court.
27:21
Speaker 1: So at the very beginning of our history, Congress terminated
27:25
Speaker 1: an entire term of the Court. The Court did not
27:29
Speaker 1: meet for over a year because of what Congress did.
27:32
Speaker 1: This was run up to a famous case called Marbury v. Madison,
27:36
Speaker 1: where Congress canceled the term of the court because they
27:39
Speaker 1: didn't want the Court to hear the case. That's a
27:42
Speaker 1: long time ago. It hasn't happened recently, but that doesn't
27:45
Speaker 1: mean it can't happen. So here's an example of something
27:49
Speaker 1: Congress could do. Each Supreme Court justice has four law clerks.
27:53
Speaker 1: Years ago they had only one years ago. They would
27:57
Speaker 1: decide something like one hundred and sixty cases a year,
28:00
Speaker 1: and now they're down to about sixty with a quadrupled staff.
28:04
Speaker 1: There's a kind of dirty little secret. The Supreme Court
28:08
Speaker 1: justices don't write their own opinions. Often they get these
28:11
Speaker 1: young law students to do it for them. So I
28:14
Speaker 1: think it would be perfectly appropriate for Congress to cut
28:18
Speaker 1: the line item for law clerks, make them do their
28:21
Speaker 1: own work for goodness sake. But more broadly, if Congress
28:25
Speaker 1: is not happy with how the Supreme Court is behaving,
28:29
Speaker 1: they have perfectly legitimate and constitutional means to fight back,
28:33
Speaker 1: and they ought to be more seriously thinking about using
28:36
Speaker 1: those means.
28:37
Speaker 3: I think the problem is that Congress doesn't agree. So
28:40
Speaker 3: you'd have the Democratic lawmakers on one side and the
28:43
Speaker 3: Republican lawmakers on the other end. You know, I think
28:46
Speaker 3: the Republicans are pretty happy with the Supreme Court as
28:50
Speaker 3: it is.
28:50
Speaker 1: Well, they're happy about some things, not about others. True,
28:53
Speaker 1: But yeah, sure, I think you're right. But the real
28:56
Speaker 1: problem is on the Democratic side. If they're unhappy, they
29:00
Speaker 1: can be making noise about doing something. And there seems
29:04
Speaker 1: to be this widespread perception, and I don't know where
29:07
Speaker 1: it comes from that somehow it's illegitimate for dissatisfied members
29:12
Speaker 1: of Congress to fight back. The fact is that just
29:15
Speaker 1: in the last couple of weeks, the Supreme Court struck
29:20
Speaker 1: down maybe the most important statute Congress has passed in
29:24
Speaker 1: the twentieth century, that is to say, the Voting Rights Act.
29:27
Speaker 1: They effectively struck it down. They have now destroyed the
29:32
Speaker 1: ability of Congress to control the terms of executive branch employees.
29:38
Speaker 1: Those are major shots across the bow at a coordinate
29:42
Speaker 1: branch of government, and Congress has the right to respond.
29:46
Speaker 3: I won't hold my breath for Congress to respond, at
29:49
Speaker 3: least not this Congress. And I do think that this
29:52
Speaker 3: Congress is going to give the justices the additional money
29:56
Speaker 3: because they made such a compelling case of the need
29:59
Speaker 3: for addition security to address these increasing threats and court
30:04
Speaker 3: observers and legal scholars so they couldn't recall a more
30:07
Speaker 3: vivid accounting from sitting justices of the security challenge as
30:12
Speaker 3: they face.
30:13
Speaker 1: I think the security concerns are completely justified. Things really
30:18
Speaker 1: have changed, and they've changed for the worst. Years ago,
30:22
Speaker 1: when I worked for a Justice Marshall, not only did
30:25
Speaker 1: he have no security detail, his number was listed in
30:30
Speaker 1: the phone book along with his address. Oh wow, So
30:33
Speaker 1: things are just not like that anymore, and that's a
30:36
Speaker 1: legitimate concern.
30:37
Speaker 7: Now.
30:37
Speaker 1: I do think Congress has a role to play in
30:41
Speaker 1: deciding exactly what form the security should take. So, for example,
30:46
Speaker 1: it's not completely obvious to me that the best thing
30:49
Speaker 1: to do is to set up a visitor center outside
30:52
Speaker 1: the Supreme Court. I'm not an expert on security. Maybe
30:55
Speaker 1: that's necessary, maybe it's not. But I think Congress has
30:58
Speaker 1: some role to slight about what the best way to
31:02
Speaker 1: proceed is. But they certainly deserve to be safe, and
31:05
Speaker 1: the threats of the justices are a serious matter and
31:09
Speaker 1: ought to be handled appropriately.
31:12
Speaker 3: There were some questions that were outside the budget, and
31:15
Speaker 3: one was about the Code of Ethics. All nine Justices
31:18
Speaker 3: agreed to the code in twenty twenty three because there
31:21
Speaker 3: was all that criticism over undisclosed trips and gifts from
31:25
Speaker 3: wealthy benefactors to some justices, but Kagan and Barrett split
31:30
Speaker 3: on the need for a mechanism to enforce the code.
31:33
Speaker 3: Justice Kaigan said she stood by her earlier position that
31:37
Speaker 3: there should be an enforcement mechanism, but Justice Barrett said
31:40
Speaker 3: there are significant questions over who would do the enforcing.
31:45
Speaker 11: So I'm not saying that it would be impossible, you know,
31:48
Speaker 11: to have an enforcement mechanism, but I think it's been
31:50
Speaker 11: complicated to figure out exactly what that would be given
31:54
Speaker 11: the position of the Supreme Court within our constitutional structure
31:57
Speaker 11: and within the judicial branch of government. I do want
32:00
Speaker 11: to stress ranking member read that none of my colleagues,
32:03
Speaker 11: and certainly not I think ourselves above the law, above
32:07
Speaker 11: ethics in any way.
32:09
Speaker 5: I have come to rest on the need for an
32:12
Speaker 5: enforcement mechanism. If the enforcement mechanism is of the right kind,
32:17
Speaker 5: it's not because I think that we're ignoring the code
32:19
Speaker 5: of conduct. I do not think that at all, but
32:23
Speaker 5: it's important, I think for public perception of the court.
32:26
Speaker 5: I think it's also important to give the justices a
32:31
Speaker 5: way to show that some of the charges against them are,
32:34
Speaker 5: you know, so much poppycock.
32:36
Speaker 3: But how useful is a code of ethics if there's
32:39
Speaker 3: nothing to enforce it.
32:41
Speaker 1: Well, there needs to be enforcement. What's happened with a
32:45
Speaker 1: number of Supreme Court justices, frankly, is disgraceful. And you know,
32:50
Speaker 1: if you have life tenure and you wear these rogues
32:54
Speaker 1: that were associated with being priests, and everybody stands up
32:59
Speaker 1: and says you'r honor whenever you walk into the room.
33:01
Speaker 1: Even for normal people, that produces a kind of arrogance,
33:05
Speaker 1: I think, and that's an occupational hazard for the Supreme Court.
33:08
Speaker 1: So there ought to be enforceable code of ethics for them,
33:12
Speaker 1: like there is for almost everybody else in the government.
33:15
Speaker 1: And again, Congress would be within its powers to impose
33:19
Speaker 1: that on the Court.
33:21
Speaker 3: That difference you just talked about showed even in this hearing,
33:25
Speaker 3: because it wasn't at all combative. There were very respectful
33:29
Speaker 3: questions asked very respectfully.
33:33
Speaker 1: Being a Supreme Court justice is never having to explain yourself, right,
33:37
Speaker 1: the justices, they don't hold press conferences, They only rarely
33:41
Speaker 1: appear before Congress. As I said before, they often don't
33:45
Speaker 1: write their own opinions. They are unaccountable, and that creates
33:50
Speaker 1: a kind of mindset that can be really quite dangerous.
33:54
Speaker 3: They also fielded questions about the use of the emergency docket,
33:59
Speaker 3: often referred to as the shadow docket. These orders that
34:03
Speaker 3: are typically issued early in cases and without much reasoning
34:07
Speaker 3: from the justices, have been criticized, including by some of
34:12
Speaker 3: the liberal justices.
34:13
Speaker 1: Justice Kagan said she thought the problem had gotten somewhat better,
34:18
Speaker 1: and I think it has. The justices are doing more
34:21
Speaker 1: to explain themselves, but there still is something of a problem.
34:25
Speaker 1: And I think one downside of these emergency orders without
34:29
Speaker 1: opinions is it leaves very unclear for lower court judges
34:34
Speaker 1: who are trying to do what Spoon for Boston to do.
34:37
Speaker 1: If the Court doesn't tell them clearly what they're supposed
34:40
Speaker 1: to do, then it's very very hard for them.
34:42
Speaker 3: What would you have asked the justices if you were
34:44
Speaker 3: on the committee.
34:46
Speaker 1: Well, I think it's appropriate to ask the justices about
34:51
Speaker 1: cases that they've decided. That's not a popular view. I
34:54
Speaker 1: think most other law professors would disagree with that, but
34:58
Speaker 1: I don't really see what's wrong with it. As I say,
35:01
Speaker 1: Congress is a coordinate branch of government, and if the
35:05
Speaker 1: Court chooses to invalidate, as I said before, maybe the
35:09
Speaker 1: most important law passed in the twentieth century the nineteen
35:12
Speaker 1: sixty five Voting Rights Act, and by the way, the
35:15
Speaker 1: amendments to that which were at stake were signed by
35:17
Speaker 1: President Reagan and passed by a bipartisan Congress. If they
35:21
Speaker 1: chose to invalidate that, then they ought to be subject
35:25
Speaker 1: to questions about what their reasons are. And I just
35:29
Speaker 1: wish the legislative branch were a little more assertive and
35:32
Speaker 1: asserting the powers that it has under our Constitution.
35:36
Speaker 3: And in the opening statement, Kagan was careful to announce
35:39
Speaker 3: that they can't address individual cases. You know, the justicees
35:44
Speaker 3: testified about the budget for decades. I remember Justice Kagan
35:48
Speaker 3: appearing with Justice Samuel Alito in twenty nineteen. Why did
35:53
Speaker 3: they stop coming to Congress to testify?
35:56
Speaker 1: This is another aspect of the Court's lack of accountability.
36:00
Speaker 1: For years and years, it was traditional that every year
36:03
Speaker 1: the Chief Justice would come and testify. Then there was
36:08
Speaker 1: controversy about the Code of Ethics. Congress wanted the Chief
36:12
Speaker 1: Justice to come and explain, and he refused to do so.
36:15
Speaker 1: And so this is the first time in a long
36:17
Speaker 1: time that anybody's actually come to the Hill and talked
36:20
Speaker 1: to the Senators and representatives.
36:23
Speaker 3: Well, see if they make a return appearance next year.
36:26
Speaker 3: Thanks so much for joining me. That's Professor Lewis Michael
36:30
Speaker 3: Sideman of Georgetown Law. His new book is called The
36:33
Speaker 3: Constitution Cannot Save Us? Why we can no longer rely
36:38
Speaker 3: on our founding document? And that's it for this edition
36:41
Speaker 3: of The Bloomberg Law Show. Remember you can always get
36:43
Speaker 3: the latest legal news on our Bloomberg Law Podcast. You
36:47
Speaker 3: can find them on Apple Podcasts, Spotify, and at www
36:51
Speaker 3: dot bloomberg dot com slash podcast Slash Law, And remember
36:55
Speaker 3: to tune into The Bloomberg Law Show every weeknight at
36:58
Speaker 3: ten pm Wall Street Time. I'm Jim Grosso and you're
37:02
Speaker 3: listening to Bloomberg.
37:08
Speaker 7: Mm hmm