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Weekend Law: Who Won SCOTUS Term & Felony Vandalism · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It was a Supreme Court term in which the conservative
0:12
Speaker 2: super majority transformed the law in several significant ways, expanding
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Speaker 2: presidential power, dismantling landmark civil rights legislation, enhancing gun rights,
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Speaker 2: and eliminating campaigns spending restrictions, while overturning decades old precedent
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Speaker 2: and undercutting laws passed by Congress. The Republican appointed justices
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Speaker 2: certainly didn't act with the judicial restraint that Chief Justice
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Speaker 2: John Roberts famously professed to during his confirmation hearings.
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Speaker 3: Judges are like umpires. Umpires don't make the rules, they
0:49
Speaker 3: apply them. The role of an umpire and a judge
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Speaker 3: is critical. They make sure everybody plays by the rules,
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Speaker 3: but it is a limited role. Nobody ever went to
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Speaker 3: a ballgame to see the umpire. Judges have to have
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Speaker 3: the humility to recognize that they operate within a system
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Speaker 3: of precedent.
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Speaker 2: It was also a term where the ideological differences on
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Speaker 2: the Court were never more apparent. Nearly a quarter of
1:16
Speaker 2: the decisions were six to three, with the Republican appointees
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Speaker 2: in the majority and the Democratic appointees in dissent. My
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Speaker 2: guest is constitutional law expert Michael Dorf, a professor at
1:27
Speaker 2: Cornell Law School. Mike, let's start with presidential power. The
1:31
Speaker 2: court blocked Trump's tariffs, rejected his attempt to end birthright citizenship,
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Speaker 2: and prevented the immediate firing of a Federal Reserve governor.
1:41
Speaker 2: But the court gave Trump and future presidents greater control
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Speaker 2: over federal agencies, allowing them to fire top federal regulators.
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Speaker 2: And in the immigration area, the court allowed Trump to
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Speaker 2: pursue his aggressive immigration agenda in just about every case. So,
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Speaker 2: on the whole, did Trump win or lose this term.
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Speaker 1: I think that you have to say he won because
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Speaker 1: in the cases in which he lost, his position was
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Speaker 1: so extreme that even getting the Supreme Court to divide
2:16
Speaker 1: on the issue was kind of a victory. It moved
2:20
Speaker 1: the Overton window to the right, or in this case,
2:23
Speaker 1: to the direction of greater executive power. So you know,
2:28
Speaker 1: in Cook, for example, that's the case with the federal
2:30
Speaker 1: Reserve governor. He gets most of the conservatives to sign
2:35
Speaker 1: on to his position that what he did was enough
2:39
Speaker 1: under the statute to fire a member of the Fed,
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Speaker 1: and that effectively, if that position had prevailed would have
2:45
Speaker 1: given him control of the Federal Reserve. He came very
2:48
Speaker 1: close to getting that. Likewise, with respect to birthright citizenship,
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Speaker 1: which you know, nobody was even talking about as part
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Speaker 1: of what we thought was reasonably contestable prior to the
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Speaker 1: present Sidence executive order. There he gets, you know, a
3:03
Speaker 1: ninety page descent by Clarence Thomas. He gets Justice Alito
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Speaker 1: Justice Corsuch to propose various alternatives, all of which takes
3:12
Speaker 1: seriously this theory that most serious historians say is based on,
3:20
Speaker 1: you know, chewing gum and old newspapers that are sort
3:23
Speaker 1: of cobbled together from out of context quotes from the
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Speaker 1: reconstruction era. And yet he almost wins there. And then
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Speaker 1: when you look at the wins, the wins are huge. Right.
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Speaker 1: So in the Slaughter case, which is he gets to
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Speaker 1: fire members of the Federal Trade Commission Court overrules a
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Speaker 1: ninety year old precedent in Humphrey's executor, and this gives him,
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Speaker 1: you know, nearly complete control of what were formerly independent agencies.
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Speaker 1: There's this tiny carve out for the FED in the cookcase,
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Speaker 1: but it looks like that carve out is going to
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Speaker 1: be available only there, and maybe with respect to non
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Speaker 1: Article three judges, but it also suggests even further sweeping
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Speaker 1: presidential power. So, for example, the dissent points out that
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Speaker 1: the majority's rationale for upholding the president's power to fire
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Speaker 1: people at will would seem to apply to civil servants
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Speaker 1: as well, not just heads of agencies. So I think
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Speaker 1: the civil service is potentially in the firing line next.
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Speaker 2: And even in the extreme cases like birthright citizenship and
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Speaker 2: the tariffs, two of the most conservative Supreme Court justices
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Speaker 2: Clarence Thomas and Samuel Alito, always found reasons to side
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Speaker 2: with Trump. Would you say, exemplifying the real split in the.
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Speaker 1: Court, you might say, well, you know, in all those
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Speaker 1: cases Sodom I, R. Kagan, and Jackson vote against Trump.
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Speaker 1: You know that is true. That is to say that
4:53
Speaker 1: this is an ideologically divided court. I think the best
4:58
Speaker 1: way to think of it is is that it's a
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Speaker 1: court that has sort of three and a half center
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Speaker 1: right judges. It's got two and a half extreme right judges,
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Speaker 1: and then three liberal justices, including Justice Gorsuch in the
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Speaker 1: sometimes centrist, sometimes on the extreme right because that's how
5:16
Speaker 1: he votes, except in cases involving Native Americans, in which
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Speaker 1: is the most liberal justice in the history of the
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Speaker 1: Supreme Court. And you know, that's just where they are.
5:24
Speaker 1: What's striking, I think is that, for the most part,
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Speaker 1: with a few exceptions for Justice Thomas on cases of
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Speaker 1: relatively low salience, right, for the most part, the ideological
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Speaker 1: divides are also partisan divides. Right. So the place where
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Speaker 1: I think this is most apparent is in Louisiana against Cala,
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Speaker 1: which is the Voting Rights Act case. Even though it's
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Speaker 1: not technically about executive power, we know that it was
5:55
Speaker 1: going to be and has been leverage for redistrict for
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Speaker 1: partisan ends by Republicans, which was a top priority and
6:05
Speaker 1: continues to be a top priority of President Trump. And
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Speaker 1: they're what's I think very revealing is how utterly closely
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Speaker 1: the sort of conservative ideological position aligns with the Republican
6:19
Speaker 1: partisan position. So, you know, the conservative ideological position is
6:23
Speaker 1: government shouldn't use race as a criterion for anything. Constitution
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Speaker 1: is colorblind. In Louisiana against Kela, what the Court says is, well,
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Speaker 1: political gerry mandering is fine. Therefore, we're not going to
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Speaker 1: find any kind of race discrimination against minority voters sufficient
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Speaker 1: to create a majority minority district. And the result will
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Speaker 1: be we're going to empower Republican controlled state legislatures to
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Speaker 1: engage in political gerrymandering that is also to facto racial
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Speaker 1: gerry mandering. So you can now have your ideological cake
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Speaker 1: and eat your politically partisan cake as well.
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Speaker 2: I mean, it's been said that dismantling the Voting Rights
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Speaker 2: Act is something that has been on the chiefs agenda,
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Speaker 2: let's say, since he was a lawyer in the Reagan administration.
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Speaker 2: We saw the first strike against the Voting Rights Act
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Speaker 2: in the Shelby County versus Holder case back in twenty thirteen.
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Speaker 1: Right, So you can think of it as a one
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Speaker 1: to two punch. So in Shelby County against Holder, they
7:28
Speaker 1: said that the coverage formula of which areas were subject
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Speaker 1: to preclearance was unconstitutional, and so that eliminated the executive
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Speaker 1: branch as the enforcer of the Voting Rights Act. What
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Speaker 1: they did in the Cala case this term was to
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Speaker 1: say that the threshold for binding that there has been
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Speaker 1: improper use of race is so high because it's so
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Speaker 1: hard to distinguish, in their view between racial and political gerrymandering.
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Speaker 1: That effect, now you've taken the judiciary out of the picture.
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Speaker 1: What's left. I think, since you can no longer say
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Speaker 1: that disparate impact is sufficient, what's left is to say
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Speaker 1: that if state legislators are stupid enough to expressly say
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Speaker 1: we are gerry mandering here because we have racial animis, well,
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Speaker 1: then that's a violation of the Voting Rights Act, and
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Speaker 1: that just seems extraordinarily unlikely.
8:27
Speaker 2: Democrats did have a rare win when the court upheld
8:30
Speaker 2: Mississippi's right to count ballots that are received after election
8:35
Speaker 2: day as long as they're postmarked by election day, and
8:38
Speaker 2: that was a five to four vote, with the Chief
8:41
Speaker 2: and Justice Amy Coney Barrett joining the liberals. Were you
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Speaker 2: surprised by that decision?
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Speaker 1: I wasn't terribly surprised hardly, because although this has been
8:52
Speaker 1: a priority of President Trump, right to go after mail
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Speaker 1: in ballots, it hasn't been a priority of the Republican
9:01
Speaker 1: Party because it doesn't actually benefit the Republican Party as such.
9:06
Speaker 1: The parties both take advantage of mail in voting. I mean,
9:11
Speaker 1: the fact that it was Mississippi tells you something. Mississippi
9:13
Speaker 1: is a deep red state, but they're the ones who
9:16
Speaker 1: are defending their particular timing rules. The other problem for
9:22
Speaker 1: the argument against this is that if you take it literally,
9:26
Speaker 1: then what about the fact that there's early voting in
9:29
Speaker 1: a lot of states. It would really have been extremely
9:32
Speaker 1: disruptive of the way that many states, both red and blue,
9:36
Speaker 1: conduct their elections, and without the clear partisan valance, it
9:40
Speaker 1: didn't surprise me.
9:41
Speaker 2: Turning to campaign finance regulations, in another Republican win, the
9:46
Speaker 2: court struck down federal limits on spending by political parties
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Speaker 2: in coordination with candidates. That case overturned a twenty five
9:54
Speaker 2: year old precedent and was down ideological lines.
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Speaker 1: You know, you can think of that in the same
10:01
Speaker 1: category of cases going back to Citizens United, where the
10:05
Speaker 1: Court is taking a very restrictive view of what Congress
10:09
Speaker 1: can do to regulate campaign finance. And one of the
10:14
Speaker 1: criticisms of Citizens United is that the Court was sort
10:18
Speaker 1: of naive about the way in which money affects politics, saying, well,
10:23
Speaker 1: you know, someone makes an independent expenditure that's not going
10:26
Speaker 1: to buy a candidate, but of course the candidates know
10:29
Speaker 1: that that's going on. Same thing is true here, right
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Speaker 1: The court says, well, you know, of course parties are
10:36
Speaker 1: going to coordinate their campaigns with the candidates. That's true,
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Speaker 1: but That's not what coordination is about, is the dissenters
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Speaker 1: point out in the case, the whole point of this
10:47
Speaker 1: restriction was to prevent circumvention of the limits on giving
10:53
Speaker 1: money to an individual candidate. Right, So, you can only
10:56
Speaker 1: give you know, probably about four thousand dollars in the
10:59
Speaker 1: next camp pain cycle to a candidate, once for the
11:02
Speaker 1: primary and once for the general election. But if you
11:05
Speaker 1: can give you know, hundreds of thousands of dollars to
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Speaker 1: the party and then have that earmarked for that candidate,
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Speaker 1: well then you've essentially here's that word again, gutted the
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Speaker 1: campaign contribution limits with respect to individual candidates. I think
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Speaker 1: that is the goal of the Roberts Court here.
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Speaker 2: Frankly, coming up nixt on the Bloomberg Law Show, was
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Speaker 2: Trump the winner of the term or was it really
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Speaker 2: conservatives that won? And remember, you can listen to all
11:31
Speaker 2: the latest legal news anytime on our Bloomberg Law podcasts.
11:35
Speaker 2: You can find them on Apple Podcasts, Spotify, or wherever
11:39
Speaker 2: you get your favorite podcasts. I'm June Grosso and you're
11:42
Speaker 2: listening to Bloomberg. Chief Justice John Roberts has repeatedly stressed
11:49
Speaker 2: the importance of an independent judiciary as a key feature
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Speaker 2: of the US constitutional system. For years, the Court has
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Speaker 2: been divided down partisan lines on hot button issues like abortion,
12:02
Speaker 2: gun rights, LGBTQ rights, immigration, The list goes on, but
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Speaker 2: Roberts continues to insist that judges are not like politicians
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Speaker 2: in robes, and that their decisions don't line up with
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Speaker 2: whether they're Democratic or Republican appointees.
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Speaker 1: And the other thing.
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Speaker 4: The notion that we carry forward the views of the
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Speaker 4: people that appointed us is absurd. President George W. Bush
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Speaker 4: appointed me twenty years ago. The idea that I'm carrying
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Speaker 4: out his agenda somehow is absurd.
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Speaker 2: But this term, the Court was split down partisan lines
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Speaker 2: in nearly a quarter of the cases, most often involving
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Speaker 2: those hot button social issues. I've been talking to constitutional
12:50
Speaker 2: law professor Michael Dorf of Cornell Law School. Mike Roberts
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Speaker 2: loves to say that the judiciary is different from the
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Speaker 2: other branches of government when you have cases like some
13:01
Speaker 2: of the ones we've been talking about, voting rights cases
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Speaker 2: that set off redistricting in Republican states in the South,
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Speaker 2: campaign finance cases that favor the Republican party, cases expanding
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Speaker 2: presidential power. Right now, a Republican president's power and the
13:17
Speaker 2: Republican appointees are on one side and the Democratic appointees
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Speaker 2: are on the other. I mean, doesn't it paint the
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Speaker 2: court as political?
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Speaker 1: Yes? And I would add that this is exacerbated by
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Speaker 1: the fact that in recent years we've had a court
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Speaker 1: in which the most liberal Republican appointee is nonetheless much
13:43
Speaker 1: more conservative than the most conservative Democratic appointee. That wasn't
13:48
Speaker 1: always true, and it wasn't true in a big way
13:51
Speaker 1: in periods that are still within living memory. So certainly,
13:55
Speaker 1: during the Warren Court, right, the two most influential liberal
13:59
Speaker 1: justices were Earl Warr himself and William Brennan, both of
14:02
Speaker 1: whom were appointed by President Eisenhower, who's a Republican. You know,
14:07
Speaker 1: it wasn't all that long ago that this court still
14:11
Speaker 1: had David Souter, Sandrade O'Connor, John Paul Stevens, Anthony Kennedy,
14:17
Speaker 1: all of whom were Republican appointees who, to one degree
14:20
Speaker 1: or another had a liberal or moderate streak. It's been
14:24
Speaker 1: a while since we had the last conservative Democrat. That
14:29
Speaker 1: was probably Byron White. But the reason why it's been
14:32
Speaker 1: a while is because there's so few Democratic appointees lately,
14:35
Speaker 1: and so I think that the fact that we have
14:39
Speaker 1: such a partisan court and visibly parties in court is
14:43
Speaker 1: partly to do with greater polarization in our politics. You know,
14:48
Speaker 1: the era when you had moderate to liberal Republicans was
14:52
Speaker 1: an era when you still had New England and Midwestern
14:57
Speaker 1: Republicans who were liberal on a lot of issues, and
15:00
Speaker 1: had Dixiecrats who were conservative on a lot of issues.
15:03
Speaker 1: And so it wasn't that unusual for a Republican president
15:07
Speaker 1: to appoint a moderate to liberal or a Democratic president
15:10
Speaker 1: to appoint a moderate to conservative. That just doesn't happen anymore.
15:14
Speaker 1: And so now you're seeing this perfect alignment of ideology
15:18
Speaker 1: and partisan politics.
15:19
Speaker 2: Let's turn to the two Second Amendment cases, and the
15:23
Speaker 2: one where the justice is ruled that a marijuana smoker
15:27
Speaker 2: can't be prosecuted for having a gun was actually unanimous.
15:32
Speaker 1: So this is the case where there's this Texas man
15:35
Speaker 1: who admits to using marijuana roughly every other day, and
15:40
Speaker 1: under a federal statute that's a basis for taking away
15:45
Speaker 1: his firearms and criminally convicting him. And the court unanimously says, oh,
15:51
Speaker 1: come on, you know, but the basis for doing it
15:54
Speaker 1: is in some ways ridiculous. It's this test that they
15:58
Speaker 1: announced in the Bruin case few years ago, which says
16:02
Speaker 1: that in order or a regulation of firearms to be valid,
16:06
Speaker 1: it has to be analogous to a regulation of firearms
16:11
Speaker 1: either in seventeen ninety one when the Second Aendment was adopted,
16:15
Speaker 1: or maybe in eighteen sixty eight when the fourteenth Amendment
16:17
Speaker 1: was adopted. We're not going to tell you which, And
16:19
Speaker 1: it had to have been the kind of regulation that
16:21
Speaker 1: was widespread at the time, whichever of those times. And
16:24
Speaker 1: so of course the government said, well, you know, there
16:26
Speaker 1: were these laws that disarmed habitual drunkards at the founding era.
16:30
Speaker 1: And then there's a debate over how similar or not
16:33
Speaker 1: being a marijuana user is to being an habitual drunkard,
16:36
Speaker 1: and the Cord ultimately concludes it's not that similar at all.
16:38
Speaker 1: But that's sort of ridiculous, right. The real question should
16:41
Speaker 1: be does using marijuana roughly every other day distinguish somebody
16:47
Speaker 1: enough from the average person that they shouldn't be able
16:49
Speaker 1: to have a gun if everybody else can have a gun.
16:51
Speaker 1: And you know, to their credit some of the concurring justices,
16:54
Speaker 1: there was a concurrence by Justice Alito joined by Justice Kagan,
16:58
Speaker 1: which is not typical lineup right, said, look, you know,
17:01
Speaker 1: people use marijuana now the way that people drink, and
17:05
Speaker 1: it's been decriminalized, and you know most of the states
17:08
Speaker 1: federal government doesn't enforce. This doesn't make any sense. So
17:11
Speaker 1: there's like a kind of common sense idea there.
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Speaker 2: Now. The other Second Amendment case was a six to
17:16
Speaker 2: three vote down ideological lines, where the Court strengthen the
17:20
Speaker 2: constitutional right to carry a gun, striking down a Hawaii law.
17:25
Speaker 1: Kawaii has a law that they enacted post Bruin that says,
17:30
Speaker 1: if you are a private property owner, we are going
17:34
Speaker 1: to presume you don't want people coming on your property
17:37
Speaker 1: with firearms unless you explicitly, either orally or in writing consent.
17:43
Speaker 1: And this was challenged on the ground that, well, you
17:47
Speaker 1: know what about a gas station, private property owner, or
17:50
Speaker 1: a drug store or a supermarket. You know, when you
17:53
Speaker 1: apply this presumption, you're going to say that people that
17:55
Speaker 1: effectively can't carry their firearms in public. And the back
17:59
Speaker 1: and between the majority and the descent, primarily Justice Jackson
18:03
Speaker 1: in descent on this point is over whether this is
18:06
Speaker 1: really a regulation of firearms at all, Justice Jackson says, no, no, no,
18:10
Speaker 1: this is a regulation of property. Everybody agrees that private
18:14
Speaker 1: property owner can say you can't come on to my
18:16
Speaker 1: property with a gun. You could say you can't come
18:18
Speaker 1: on to my private property with a hat if you
18:20
Speaker 1: wanted to. And so you know wat's the issue here.
18:23
Speaker 1: And the majority says no, no, this is a regulation
18:26
Speaker 1: of guns in the same way. And this is the
18:28
Speaker 1: line that Justice Barrett gives. In the same way.
18:31
Speaker 5: That if the law said we're going to presume that
18:35
Speaker 5: people don't give permission to somebody to come on their
18:38
Speaker 5: property wearing a HyG job, that would be religious discrimination.
18:41
Speaker 1: Well, this is a violation of your Second Amendment rights.
18:44
Speaker 1: And that sounds like a pretty good analogy, except that
18:48
Speaker 1: you know, the First Amendment is a kind of anti
18:50
Speaker 1: discrimination principle. It can't discriminate it the basis of religion.
18:53
Speaker 1: You can't censor by drawing distinctions based on speech. Second
18:56
Speaker 1: Amendment is mostly not an equality principle. It's a liberty principle.
19:00
Speaker 1: So I'm not sure how well that fits. But now
19:03
Speaker 1: you know, this is another category of laws that we
19:06
Speaker 1: know are going to be subject to this second event
19:09
Speaker 1: scrutiny in.
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Speaker 2: Another high profile case that was decided down ideological lines,
19:15
Speaker 2: the Court allowed states to ban transgender athletes from female teams.
19:20
Speaker 2: I mean, I don't think anyone ever expected that the
19:23
Speaker 2: Conservatives were going to vote any which way besides upholding
19:26
Speaker 2: these bands.
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Speaker 1: Well, the reason to have some hope, it was a
19:30
Speaker 1: hope that was dashed. But the reason to have some
19:31
Speaker 1: hope was the fact that in the boss Stock case
19:36
Speaker 1: back in twenty twenty, the Supreme Court, in an opinion
19:40
Speaker 1: by Justice Neil Gorsuch joined by Chief Justice John Roberts
19:43
Speaker 1: and the more liberal justices, said that Title seven, which
19:47
Speaker 1: is the federal employment discrimination Statute when it forbids sex discrimination,
19:53
Speaker 1: also therefore forbidds discrimination on the basis of sexual orientation
19:57
Speaker 1: and transgender status. And this case arose under both the
20:02
Speaker 1: egal Protection Clause at the Fourteenth Amendment and Title nine
20:06
Speaker 1: of that same Civil Rights Act. And Title nine is
20:10
Speaker 1: broadly similar to Title seven. So there was at least
20:13
Speaker 1: a cymopacia, that is, you know, first instance argument that
20:18
Speaker 1: what's true of Title seven should be true of Title nine. Now,
20:21
Speaker 1: there were reasons to think that, as the Court ultimately held,
20:25
Speaker 1: that might not work. Part of it is there's this
20:27
Speaker 1: provision in Title nine adopted a couple of years after
20:30
Speaker 1: the adoption of Title line itself, called the Javits Amendment,
20:33
Speaker 1: which allows for sex segregated athletic teams. There's no parallel
20:38
Speaker 1: allowance in Title seven. But still the so called boss
20:41
Speaker 1: Stock analogy was pretty powerful, I should say, turned out
20:45
Speaker 1: not to be that way. Even the liberal justices rejected
20:48
Speaker 1: the statutory claim, although they accepted the egal protection claim.
20:51
Speaker 1: If you're viewing it from a you know, social policy lens, like,
20:55
Speaker 1: you know, how far is this court going to go?
20:58
Speaker 1: I think I shared your going into the case, and
21:01
Speaker 1: certainly after the oral argument that there weren't going to
21:05
Speaker 1: be the votes there to say that what the states
21:08
Speaker 1: were doing in these cases was unlawful. But that doesn't
21:12
Speaker 1: mean that the legal argument was so bad. It just
21:15
Speaker 1: means that, you know, you look at the justices and
21:18
Speaker 1: you think they're not ready for this, and you know,
21:20
Speaker 1: to be fair, the argument for excluding transgender women from
21:27
Speaker 1: women's sports and transgender girls from girls' sports is at
21:31
Speaker 1: least in many cases stronger than it is for keeping
21:36
Speaker 1: out you know, someone who's gay or trends from just
21:39
Speaker 1: any job. And so the result was not especially shocking
21:44
Speaker 1: for that reason.
21:45
Speaker 2: So, Mike, what are your broad conclusions about the term?
21:48
Speaker 1: So I want to offer as a foil one alternate
21:52
Speaker 1: way of thinking about the term right you might think,
21:54
Speaker 1: and I've seen some versions of this that on the
21:58
Speaker 1: issues that have been of long running concern to conservatives,
22:03
Speaker 1: the conservative side, one on the voting rights, on Second
22:07
Speaker 1: Amendment rights, on you know, LGBT culture, war issues, presidential power,
22:12
Speaker 1: et cetera. But on the sort of Trump specific issues,
22:17
Speaker 1: the president didn't do so well. So you know, tariffs
22:19
Speaker 1: have not been a long standing position of conservatives. Generally,
22:22
Speaker 1: Conservatives have been for free trade prior to Trump, and
22:25
Speaker 1: so he loses on Tariff's birthright citizenship not really on
22:29
Speaker 1: the table prior to the president's executive order on his
22:33
Speaker 1: first day of his second term, and so he loses
22:35
Speaker 1: on that. And I think that's sort of right. But
22:38
Speaker 1: I think it's important to understand the reason he loses
22:41
Speaker 1: is not because there's this rift between the sort of
22:46
Speaker 1: elite legal conservatives and Trump. There might be such a
22:50
Speaker 1: rift between Ke, Justice Roberts and Trump. But you know,
22:54
Speaker 1: he's getting Thomas and Alito, as you said, in all
22:57
Speaker 1: of these cases, he's getting some combat nation of Gorsuch, Kavanaugh,
23:02
Speaker 1: Barrett in some of these cases. And so the only
23:05
Speaker 1: reason he's losing in the cases he loses is because
23:08
Speaker 1: all the Liberals vote against him, and then you know,
23:10
Speaker 1: two or occasionally three of the conservatives also vote against him,
23:14
Speaker 1: and on the cases he wins, even when he's winning
23:18
Speaker 1: on traditional conservative issues, right, I think this Court is
23:23
Speaker 1: being willfully blind or at best hyperopic, which is the
23:28
Speaker 1: opposite of myopic. They're seeing off in the distance but
23:31
Speaker 1: not what's in front of them, so they're not seeing
23:34
Speaker 1: the immediate consequences of giving all of this presidential power, right,
23:39
Speaker 1: which is something they've wanted to expand for years, but
23:41
Speaker 1: giving it to this particular president who has shown that
23:45
Speaker 1: he and the people he appoints are going to abuse
23:47
Speaker 1: that power. And so, to my mind, the story here
23:51
Speaker 1: is that Trump is winning, and it really doesn't matter
23:55
Speaker 1: whether he's winning because the Supreme Court likes what he's
23:59
Speaker 1: doing or you know, they're pursuing their own agenda. They're
24:02
Speaker 1: at the very least allowing him to win and thus
24:06
Speaker 1: allowing the concentration of power, in my view, in very
24:09
Speaker 1: dangerous hands.
24:10
Speaker 2: Thanks so much for sharing your insights with us. Mike.
24:13
Speaker 2: That's Cornell Law School professor Michael Dorf coming up next
24:16
Speaker 2: on the Bloomberg Law Show. A former Olympian pleads not
24:20
Speaker 2: guilty to a felony for allegedly damaging the Lincoln Memorial
24:24
Speaker 2: Reflecting Pool. But will the case even get to trial?
24:28
Speaker 2: I'm June Grosso and this is Bloomberg.
24:34
Speaker 6: Davy Hearn fled not guilty.
24:40
Speaker 7: Because he is not guilty.
24:42
Speaker 2: On Thursday, a DC courtroom was packed with dozens of
24:46
Speaker 2: supporters of three time Olympic canoe racer David Hearn as
24:50
Speaker 2: he pleaded not guilty to deliberately damaging the Lincoln Memorial
24:55
Speaker 2: Reflecting Pool, a felony charge carrying up to ten years
24:59
Speaker 2: in p Hearne has said that he reached into the
25:02
Speaker 2: pool to touch a piece of the liner that had
25:05
Speaker 2: already floated to the surface. His attorney, Normizen, said the
25:09
Speaker 2: administration is using Herne to shift the blame for the
25:13
Speaker 2: failed renovation of the reflecting pool.
25:15
Speaker 6: If mister Hearn can be charged with a felony for
25:20
Speaker 6: touching the reflecting pool, every American is at risk.
25:26
Speaker 2: Last week, the US attorney for DC, Janine Pierro, had
25:30
Speaker 2: called a press conference to announce Hearn's indictment accusing him
25:34
Speaker 2: of intentionally damaging about two square feet of the pool's lining.
25:39
Speaker 8: The National Park Service employees observed Hern actually forcefully and
25:45
Speaker 8: violently pulling up and removing the bottom liner with both hands.
25:52
Speaker 2: But Piero Bristol, when reporters questioned her about just how
25:57
Speaker 2: Hern had done more than one thousand dollars worth of
25:59
Speaker 2: doubt image.
26:00
Speaker 6: Did he have any tools.
26:01
Speaker 1: Or is it just a spare hands?
26:03
Speaker 8: Right now, we believe it's his bare hands, both hands.
26:06
Speaker 1: So does that indicate in.
26:07
Speaker 6: Your belief that it was probably damaged before or do
26:10
Speaker 6: you believe.
26:10
Speaker 8: That he Oh, he damaged it.
26:12
Speaker 1: Further, But do you believe it had already been damaged.
26:14
Speaker 8: Before he damaged the pool?
26:17
Speaker 2: After chunks of the pool's new blue liners started drifting
26:20
Speaker 2: to the surface last month, President Trump claimed without substantiation
26:26
Speaker 2: that the damage was caused by vandals who cut the
26:29
Speaker 2: pools lining with a box cutter.
26:31
Speaker 3: They put up big gash three hundred and fifty feet long.
26:35
Speaker 1: Think of the three hundred and fifty foot gash.
26:38
Speaker 2: Since Hearn's indictment, three others have been charged with misdemeanors
26:42
Speaker 2: for peeling or removing pieces of the pool's liner, my
26:46
Speaker 2: guess is former federal prosecutor Marissa Darden, chair of the
26:49
Speaker 2: White Collar Government Investigations and Regulatory Practice Group at Benish Law. Marissa,
26:55
Speaker 2: even if what Piro says is true, does that merit
26:59
Speaker 2: a felony and indictment?
27:00
Speaker 7: So a couple of things that we should talk about,
27:03
Speaker 7: just to kind of levels.
27:04
Speaker 9: At the US Attorney's Office for the District of Columbia
27:07
Speaker 9: has concurrent jurisdiction between crimes that happen in the District
27:12
Speaker 9: of Columbia that violate District of Columbia law and federal
27:17
Speaker 9: laws that are violated within the.
27:19
Speaker 7: District of Columbia.
27:20
Speaker 9: So there's like the Department of Justice writ large right,
27:23
Speaker 9: and the US Attorney's Office for the District of Columbia.
27:26
Speaker 9: They prosecute federal felonies and misdemeanors and state or local crime.
27:33
Speaker 9: So he's charged with violating DC Code Section twenty two
27:37
Speaker 9: three oh three, which is not a federal crime and
27:40
Speaker 9: not a federal felony. And so on one hand, you
27:43
Speaker 9: know Jeanie Parrot love her rhetoric or whatever, and her
27:47
Speaker 9: interesting career before she was the US Attorney for the
27:50
Speaker 9: District of Columbia. She's dialing it up in that press conference,
27:54
Speaker 9: no doubt about it.
27:55
Speaker 7: And one of the ways.
27:56
Speaker 9: That you know that they're trying to be intellectually honest
27:59
Speaker 9: about the crimes that they're actually prosecuting day to day
28:04
Speaker 9: is that they charged him with violating DC law and
28:07
Speaker 9: not federal law, which they might have been able to
28:10
Speaker 9: do given the fact that it's a federal monument and
28:13
Speaker 9: the United States Park Service has jurisdiction. So yes, on
28:17
Speaker 9: one hand, there's no need to get up there and
28:20
Speaker 9: like rant about that, but that might be performative for
28:23
Speaker 9: President Trump or other constituencies. The way you know that
28:27
Speaker 9: they're trying to be intellectually honest about this crime is
28:29
Speaker 9: that they've charged him with a felony violating DC code.
28:32
Speaker 2: Explain why that matters, because he's still being charged with
28:35
Speaker 2: a felony.
28:36
Speaker 9: There are judges in the District of Columbia that are
28:39
Speaker 9: District of Columbia judges, so just like the city of
28:42
Speaker 9: New York or Chicago has judges, and so their docket
28:47
Speaker 9: is very full. Felonies are often handled by settling the
28:52
Speaker 9: cases for lower charges than what was actually charged. The
28:56
Speaker 9: dockets are very busy and Ultimately, you know, the.
29:01
Speaker 7: US Attorney's Office will be responsible.
29:03
Speaker 9: For prosecuting those crimes, but there are a host of
29:05
Speaker 9: other ways that they can be resolved that are outside
29:08
Speaker 9: of the federal system in the US Attorney's Office, even
29:11
Speaker 9: in DC that handles federal crimes. If you're indicted by
29:15
Speaker 9: a federal grand jury, there's a lot less options available.
29:18
Speaker 7: To you in how you resolve the matter.
29:20
Speaker 9: So I'm not suggesting that they're gonna plea bargain this
29:23
Speaker 9: down to something less than a felony.
29:25
Speaker 7: And there may be.
29:26
Speaker 9: Political or other reasons why they decided to make the
29:29
Speaker 9: charges that they did. I don't speak to that, but
29:31
Speaker 9: just from like a volume size, the folks who work
29:34
Speaker 9: at the US Attorney's Office on the DC District court side,
29:38
Speaker 9: they have full dockets.
29:39
Speaker 7: They're very busy. The judges are busy.
29:41
Speaker 9: They're just like any other big city courtroom that you know,
29:44
Speaker 9: things get pled down to and so forth.
29:46
Speaker 2: So he was initially arrested on a misdemeanor charge. Is
29:51
Speaker 2: it often that it would be bumped up to a felony?
29:56
Speaker 7: Sometimes that's not uncommon.
29:58
Speaker 9: So I was a state court prosecute at the Manhattan
30:00
Speaker 9: Day's Office. I was a federal prosecutor at a US
30:03
Speaker 9: Attorney's office locally, and there are definitely cases that I've
30:07
Speaker 9: handled where it came in as one crime and it
30:10
Speaker 9: got charged as another as the investigation went on. And
30:13
Speaker 9: so you know, again, there are parts and pieces of
30:16
Speaker 9: this that may in fact be political.
30:18
Speaker 7: I don't question that, But just from like a day
30:21
Speaker 7: to day prosecuting side.
30:22
Speaker 9: The assisting United States attorney who's responsible for handling this
30:26
Speaker 9: case would have a process.
30:27
Speaker 7: By which they would evaluate any other arrest.
30:30
Speaker 9: They would speak to the police officers, try to ascertain
30:33
Speaker 9: exactly what happened here, review the facts, and determine.
30:37
Speaker 7: How the facts apply to the law and what might
30:39
Speaker 7: be the appropriate charges.
30:41
Speaker 9: My understanding is that the Justice Department now is operating
30:45
Speaker 9: under a general understanding or a credo that they're supposed
30:49
Speaker 9: to put the maximum charges allowable or possible on criminal
30:52
Speaker 9: defendants in most, if not all cases, and so it
30:55
Speaker 9: would be consistent with that edict that they might arrest
30:59
Speaker 9: him with a misdemeanor citation and then investigate the case
31:02
Speaker 9: and determine that it violated a felony under DC Code.
31:06
Speaker 2: This reminds me a lot of another case where Pierro
31:11
Speaker 2: called a press conference, and that was for the guy
31:14
Speaker 2: who's now known as the sandwich guy, who threw a
31:16
Speaker 2: sandwich in the face of a ice agent last year
31:20
Speaker 2: and the grand jury refused to indict him for a felony.
31:24
Speaker 2: He was ultimately charged with a misdemeanor assault and acquitted
31:29
Speaker 2: at trial. And you know, the DC grand jury also
31:33
Speaker 2: refused to indict lawmakers who issued a video statement telling
31:38
Speaker 2: soldiers they could refuse to obey illegal orders. So I
31:42
Speaker 2: questioned how that grand jury returned a felony here.
31:46
Speaker 7: It's hard to know.
31:47
Speaker 9: I mean, grand juries are made up of people just
31:49
Speaker 9: like you and I usually somewhere between seventeen and twenty
31:52
Speaker 9: three people there are provided evidence that the prosecutor dictates
31:57
Speaker 9: they want the grand jury to hear. You know, there's
31:59
Speaker 9: a reason why the stereotype is you.
32:01
Speaker 7: Can indict a ham sandwich.
32:02
Speaker 2: Right.
32:03
Speaker 9: The prosecutor's office has relatively full control over the witnesses
32:08
Speaker 9: that are brought in before the grand jury and the
32:10
Speaker 9: information that they're provided in order to return an indictment.
32:14
Speaker 9: And now that's not me saying that there was any
32:16
Speaker 9: funny business here. I don't speak to that, but I'm
32:18
Speaker 9: just saying that the prosecutors would have clearly been able
32:22
Speaker 9: to control that narrative.
32:23
Speaker 2: Can a judge before trial either throw the case out
32:28
Speaker 2: or lower the charges to a misdemeanor.
32:31
Speaker 7: Upon motion from one or both sides.
32:33
Speaker 2: Absolutely, Yes, He's got some well known and very experienced
32:37
Speaker 2: defense attorneys, and they've issued a statement. This indictment represents
32:42
Speaker 2: the administration's efforts to shift blame for their own failures.
32:46
Speaker 2: And there's been a lot of coverage of the problems
32:49
Speaker 2: plaguing the renovation of the reflecting pool, including algae and
32:54
Speaker 2: chunks of the pools lining peeling off and coming to
32:58
Speaker 2: the surface. So you can bet they'll make emotion and.
33:00
Speaker 9: So oh absolutely and make several motions that this might
33:04
Speaker 9: be a persecution, that it's unwarranted, that the facts, you know,
33:09
Speaker 9: how they've been laid out, either in the.
33:10
Speaker 7: Press conference or in the indictment.
33:13
Speaker 9: There's a host of factual and legal arguments that the
33:15
Speaker 9: defense is going to amount to say, you know that
33:17
Speaker 9: there may be a political reason for this, that if
33:20
Speaker 9: he was simply just you know, in the reflecting pool,
33:23
Speaker 9: that he didn't mean anything by it, that there was
33:25
Speaker 9: no malintent. You know, the felony does come with what
33:29
Speaker 9: we call a mensrea or some level of intentional action,
33:32
Speaker 9: And so if they can't prove that, that would be
33:34
Speaker 9: a very difficult case to mount. And the judge certainly
33:37
Speaker 9: has the authority to review those charges and make changes
33:41
Speaker 9: or dismiscounts, or do a host of other things to
33:44
Speaker 9: try to address those issues as they're brought up.
33:47
Speaker 2: Do you have a feel for whether a judge would
33:49
Speaker 2: at least knock this down to a misdebeanor.
33:53
Speaker 7: I don't if for no other reason.
33:55
Speaker 9: Then on one hand, yes, the rhetoric is high and
33:58
Speaker 9: the political nature of it feels icky. But on the
34:01
Speaker 9: other hand, in any other administration, defaming, defiling, or otherwise
34:06
Speaker 9: like vandalizing federal monuments would be treated as a pretty
34:10
Speaker 9: serious crime.
34:11
Speaker 7: So, you know, it depends on what the facts are.
34:14
Speaker 2: During the press conference, Piro was asked whether similar charges
34:19
Speaker 2: could face those who cause damage to the capital during
34:23
Speaker 2: the January sixth attack, and she refused to address that question.
34:28
Speaker 2: But is that something the defense can bring up or
34:31
Speaker 2: is it irrelevant?
34:32
Speaker 9: A good defense attorney might be able to fashion an
34:36
Speaker 9: argument that there is a potentially political play here that
34:41
Speaker 9: isn't consistent with how the administration has been handling similarly
34:45
Speaker 9: situated defendants. That isn't often persuasive to a judge, if
34:49
Speaker 9: for no other reason, then the judges are supposed to
34:52
Speaker 9: evaluate the facts as they are laid out to them
34:54
Speaker 9: on individual basis.
34:55
Speaker 2: Also, since Hern's indictment, three others have been accused of
34:58
Speaker 2: pealing or at actually removing pieces of the pool's liner,
35:03
Speaker 2: but they've only been charged with misdemeanors.
35:06
Speaker 9: I mean, the DC Code section twenty three to three
35:08
Speaker 9: oh three, it has a misdemeanor provision in it. So
35:10
Speaker 9: it's possible that there are some facts that are more aggressive,
35:14
Speaker 9: or the vandalism is worth more more than one thousand dollars,
35:18
Speaker 9: or you know, there's a host of other factual considerations
35:20
Speaker 9: that the prosecutor's office would look at to determine whether
35:23
Speaker 9: it would be appropriate to charge somebody under a misdemeanor
35:25
Speaker 9: versus a felony.
35:26
Speaker 2: Piero claimed that hearn did one thousand dollars worth of damage.
35:30
Speaker 2: When a reporter asked her how she would prove that,
35:33
Speaker 2: Piero snapped back and said, with an expert come to
35:37
Speaker 2: the trial. And that's what's troubling in these cases, being
35:40
Speaker 2: charged or overcharged It's easy enough for the prosecutor to say,
35:45
Speaker 2: we'll do it at trial. But for the defendant who
35:47
Speaker 2: has to go through these proceedings, pay for an attorney,
35:50
Speaker 2: and wait the months and months until trial to find
35:54
Speaker 2: out what's going to happen to them, it's not so easy.
35:58
Speaker 9: You're absolutely right, and it is sort of down cycle
36:02
Speaker 9: peril of our criminal justice system that you can mount
36:05
Speaker 9: the charges that you're not required to disclose at the
36:10
Speaker 9: time of the charging document exactly how or what evidence
36:14
Speaker 9: you will use to prove each and every element of
36:16
Speaker 9: a crime beyond a reasonable doubt.
36:19
Speaker 7: Hopefully that information will come.
36:20
Speaker 9: Out in discovery and as part of the litigation of
36:23
Speaker 9: the case.
36:24
Speaker 7: But she's technically right.
36:26
Speaker 9: I mean, if they need to prove that it's a felony,
36:28
Speaker 9: that the damages are worth more than one thousand dollars,
36:31
Speaker 9: I would expect there to be some expert testimony or
36:33
Speaker 9: expert report about that that would come up as part
36:36
Speaker 9: of the discovery process.
36:37
Speaker 2: And Hearn's attorney said they expect to really push the
36:41
Speaker 2: administration for vast amounts of discovery. Thanks for joining me, Marissa.
36:46
Speaker 2: That's Marissa Darden of Benish Law. And that's it for
36:49
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
36:52
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
36:55
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37:04
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Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
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