# SCOTUS Cases: Transgender Athletes, Death Penalty & Guns

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 3 Dec 2025, 35 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/b3be15a2-cff0-43e0-8ada-b3a80001c47a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert David Super, a professor at Georgetown Law, discusses upcoming Supreme Court cases. Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the Third Circuit ruling that the appointment of Alina Habba as New Jersey US Attorney was illegal. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

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

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