Behind Chief Justice Skipping Impeachment Trial

giving the event the gravitas it required. I think it is appropriate at this point for me to admonish uh, both the House Managers and the President's Council in equal terms, UH, to remember that they are addressing the world's greatest deliberative body. But Roberts has decided not to preside over Trump's second impeachment trial, giving an opening for Republicans to question the

legitimacy of the trial. Joining me is Bloomberg Supreme Court reporter Greg Store Greg What does the Constitution say about the Chief Justice presiding over impeachment trials? Well, it's the Chief Justice have to preside over the impeachment trial of President. What it doesn't say is whether he has to preside over the impeachment trial of a former president, And most constitutional scholars think that probably the answer is no. That the document at least leaves the Chief Justice with the

option of not presiding. The reason the Chief Justice presides over the trial of a sitting president is because if the vice president presides, the vice president might have a conflict of interest because they'd be presiding over a trial that could lead to them becoming president. Did Democratic Majority leader Chuck Schumer asked the Chief Justice to preside and he refused, do we know what actually happened? That appears

to be what happened. John Roberts hasn't said anything. What Chuck Schumer said the other night is that the Chief Justice declined the opportunity to do that. So the presumption is that he was asked to and chose not to. From a democratic standpoint, there's certainly a lot of advantages to having John Roberts presiding over the trial, So you can see why they would have wanted him to and would have tried to get him to, but apparent late

he had no interest. Do you have any idea why Roberts hasn't made a public statement about why he is not presiding. It's pretty typical John Roberts. He doesn't make very many public statements. Back during the first impeachment trial a year ago, he completely left it up to Senate

leaders to make announcements about what was happening. You know, it's certainly an opportunity where he could have said something, could have explained his reasons for not coming over, could have said I don't think the constitution requires me to. But he chose not to, and we're all just left to some degree to speculate about what his reasons were. So at the last Trump impeachment trial, Roberts played a

sort of minimalist role, very much show. There was very little he said that wasn't suggested to him by the

Senate parliamentarian. He kept the trains running one time. At one point he admonished both sides to be a bit more civil, and probably the most noteworthy thing that he did was to say that he wouldn't break any high votes and and that he referenced previous practice, which he said supported the idea that it was up to the Senate and that his entire role was to just preside and keep the procedure moving, but not to make any

substantive decisions. Why has Democratic Senator Patrick Leahy had been chosen to preside over Trump's second impeachment trial, but he is the President pro tem of the Senate, taking over for Chuck Rasley, who held that position while the Republicans were in the majority. He was one of two options for the Senate, the other being Vice President Kamalas Harris.

Not clear why they went with Lahy. It mind seem slightly less political to have a member of the Senate rather than the new Vice president who was on the campaign that defeated Donald Trump. And the truth of the matter is, if this trial is anything like the last one, Senator Lake, he won't have a whole lot to do other than ProForma keeping the proceeding moving along. He won't

to have any substantive decisions to make. It seems like the perception of fairness would be better if it weren't a Democratic senator who's spoken against Trump's actions presiding over his impeachment trial. Yeah. I think that's a huge point. You know, in the last two in Peaceman trials we've had you have had a Chief Justice up there lending a sense of gravity and making it seem as though

it were at least partially a judicial proceeding. You had William Renklift for the impeachment of Bill Clinton and Roberts last year for Trump's first impeachment. Instead, you're going to have a senator and member of party opposing Donald Trump, and it will convey a very different atmosphere. And it certainly gives Republicans who don't want to talk about the substance of the charge against Donald Trump, it gives them another opening to talk about the process and the claim

is just a political exercise. Some Republicans seem to be trying to been the Chief's absence into a decision by the Chief that the impeachment of a president who's out of office is unconstitutional. Yeah, I think that's a bit of a leap. It is probably fair to surmise that the Chief thinks that the Constitution doesn't require him to be there for the trial. But that whole separate issue of whether a former president can be put on trial, it's hard to make that leap with just a step

by John Roberts. Again, it is a talking point for a Republican It makes sense that they are trying to cast it that way, and but that really is a separate issue. Most constitutional scholars I've talked to say, what history we have suggests that a former official can be put on trial, and that that makes some sense because Otherwise, a president nearing the ends of his or her term would be able to act with impunity without facing any sorts of consequence if that person could not be put

on trial. Let's turn to one of the Supreme courts act sans this week. On Monday, the Supreme Court ordered dismissal of suits over Trump. Find it just remind us what those lawsuits are. Yeah, these these were lawsuits saying he violated the Constitution's emoluments clause, which say that the president tanken and he benefits from one of them says from foreign governments, and the other says, uh, domestic benefits

beyond the salary that that he gets. And the focus was on Trump on properties like the Trump International Hotel. And these lawsuits claimed that, uh, Donald Trump was was benefiting from being president because, say, foreign dignitaries would would come stay as hotel to curry favor for the new administration. And uh the allegation was that, uh that gave him a competitive advantage over other hotels in the district of

Columbia and elsewhere. And uh, lower courts let those lawsuits go forward against Donald Trump, saying, among other things, these hotels in the state of Maryland at the District of Columbia had standing to pursue them, and UM that might have forest Donald Trump to turn over some of his financial information. Well, now that Donald Trump is no longer the president, both sides agree that these lawsuits were now

moot and should be dismissed. And the Supreme Court did that, and along the way it told the lower it's set aside federal appeals court rulings that let the lawsuits go forward. Uh, so we've lost at least some of the president that had built up around what those two emoluments caused me. We have an acting solicitor general. Why not a point a US solicitor general at this point? Why appointed acting

solicitor general? If you know, there will probably be an appointment of a solicitor general and in relatively short order. But there is an awful lot of work that needs to be done right away in terms of uh potentially shifting the government's position in a number of cases. There are some pending Donald Trump appeals, a Trump administration appeals

that are at the Supreme Court. There are a couple of cases that the court has already agreed to hear arguments and UH, and there are a number of other issues where the General's office will have to make some big decisions going forward about how the what the government's

litigating strategy is going to be. So by putting in an acting solist, their General Elizabeth Preloger, Uh, they now have somebody who can start to make those decisions and help appoint the government's legal team in the direction that the president wants. And what happens supposed Let's just say, on some of the immigration cases, the Biden administration is a totally different view from the Trump administration and they don't want to pursue a case anymore. Do they tell

that to the court? How does it work procedurally? It depends a little bit um. If the government is pressing an appeal, they always have the power to drop the appeal. Uh. They also have the administration also has the ability to

change the underlying policy. So, for example, there are a couple of arguments that the Supreme Court, who scheduled to hear later on this term, having to do with money being spent to build the border wall and Donald Trump's policy that requires asylum applicants to stay in Mexico while

they're while they are applying. So bid the administration could change the underlying policies there, and then those cases would become either moot or close to moot, and the Supreme Court probably would be inclined just to drop those arguments. So it depends a little bit on exactly what's going on and what the procedural status of the case is. Thanks so much for being in the Bloomberg Laws Show, Greg,

That's Bloomberg News Supreme Court reporter Greg Store. The conservative legal movement has been unity behind shared goal of filling the federal bench with like minded judges and advocating shared principles grounded in originalism. But the movement appears to be facing a reckoning post Trump. Joining me is Bloomberg Legal reporter Madison Alder what has been the goal of the

conservative legal movement until now? So, the conservative legal movement has really united over this idea of confirming federal judges who are originalist textualists, who believes that the Constitution should be interpreted as as the founders understood it, um, that statute should be interpreted based on what it says, um. And you know, it's something that has really united conservatives across the spectrum. Uh, now that you know Trump is

out of office. Uh, conservatives don't have that to necessarily unite them anymore, and it kind of becomes a question of what comes next for their movements. Certainly, they were very successful with President Trump and Senator Mitch McConnell getting a lot of very conservative judges on the bench at all levels. Now there's been a problem because some prominent legal conservatives helped Trump try to overturn the election. Tell

us about some of some of what was done. So on January six, Senators Josh Holly and Ted Cruz, who are you know, they both had Supreme Court querkships. UM. They went to Harvard and Yale respectively. Ted Cruise is argued several times in front of the Supreme Court. They're definitely conservative lawyers through and through. UM. They were part of this movement to not certify the Electoral College results, and that was something that really Josh Holly kind of

starked he was really leading this too. You know. That definitely gave a lot of credence to the arguments that there there was fraud um, which has been pretty these claims have been pretty baseless. UM. And then outside on January six, at the rally where President Trump spoke, and you know, his lawyer, Rudy Giuliani spoke, another conservative lawyer, John Eastman, who was a former professor of Chapman University. Uh, he said that there was fraud and the dead people

voted and really highlighted some of these criticisms too. And we know what happened on January six. So the you know mob strums the Capital and UM, A lot of what they were up in arms about was was these fraud claims, these these baseless fraud claims. So it has some conservative lawyers pretty angry that a few of their own were involved in wolstering these kinds of ideas that incited people, and it has some of them even wanting

to to take some kind of action. Before January six, a lot of conservative lawyers tried to help President Trump overturned the election results by presenting evidence, or a lack of credible evidence, that there was fraud. Were some people in the federal society upset about that too? Or did it take until January six for them to be concerned? Well, a lot of the lawyers who are involved in the election lawsuits were we're not really leading lights of the

conservative legal movement. UM you know, Rudy Giuliani, for example, is not really seen as being a leading light of the conservative uh leal movement, and so there was there was already a bit of a distance there, um between an organization like the Federal Society and prominent concerned lawyers and those who were involved in in these lawsuits. Um. But you know, there were a lot of Federal Study members who were speaking out internally and on Twitter against

these kinds of of claims. A few of the people I spoke to said that they would have welcomed uh, you know, lawsuit of challenge had there been frauds uh and had the courts not start these claims down. But at the end of the day, they did strike them down and there wasn't frauds um. So it really didn't mine up with what conservative lawyers stand for, which is

the rule of law. Also, there were eighteen Republican state attorneys general who supported one of the lawsuits to overturn the election results, right, And I took to one of the attorneys general who was not part of that group, Um,

David Goes, who is the Attorney General of Ohio. And you know, the way that he saw the events of January six and the involvement by by some of these conservative attorney these was you know that they've kind of forfeited credibility when they're throwing their support behind these claims, and um, it's definitely showing a split between you know, different types of conservative attorneys, those who you know, don't believe in in the way that some some people conducted

themselves and uh, you know, don't believe in in these basis claims, and those that are willing to support them. Liberals often see the conservative movement as one big movement, but have there been factions within the conservative movement? So I spoke to professor Steven Tullis, who has written about conservatives. He wrote a book about those who were Never Trump. He also wrote a book about the conservative legal movement.

And he said that that is a tendency to kind of see the conservative movement from the left is being unified, but they've always had a variety of different views and that perhaps the and you know, the Electron fraud claims, the events of January six have kind of highlighted that in a way that that hasn't really been seen before. That there is kind of a fracturing that he also sees happening on the left as well. Explain for those

who don't know, explain what the Federalist Society is. So the Federalist Society, uh, you know, it's it describes itself as kind of a networking group but kind of a debate club of sorts for conservative and libertarian lawyers. They hold events, they hold an annual events, they do panels. Really the backbone of the organization is, uh, their groups on college campuses and you know, on law schools helps get conservative thinking young lawyers together to to hear from

different speakers. And one of their policies is they don't comment on political issues. Um, you know, it's on their website. They've graiterated that they don't comment on political issues. So at is what happened in this case as well. They're they're still not commenting on this, which you know, some of the lawyers that I spoke to who are part of the Federalist Society respect and say that, you know, they they maybe shouldn't comment on this, and they like

that they do that. The others say, maybe this is the scenario where they need to weigh in and say something, especially about John Eastman, who is a member of one of their groups that plans some of these events and and gets the speakers together. You talk to the co founder of the Federalist Society, what was his reaction? So his reaction, Uh, Stephen cal Brucie is a professor now is a co founder of the Federal Society, and he has both supported Trump in in op eds and and

he's you know, recently not supported Trump in offense. So he's kind of gone back and forth on this over the years. And uh, you know, he basically he did not agree with any of these election fraud claims. He said that conservatives have aired and not accepting the results of of the election, and that support for from some conservative lawyers of this is kind of detrimental. So the Federalist Society helped Trump in forming the list of Supreme

Court justices and judges that he nominated. They were very active in that role, or at least Leonard Leo was. Do any of them feel like, even though Trump helped them accomplish this incredible goal of transforming a large part of the judiciary to conservative judges, do any of them

feel that their movement was corrupted by Trump? Something that was underscored for me by a few different people I spoke to, was that they believe that the way that Trump's own appointees treated these election fraud nimes, which was by and large throwing them out, you know, calling them for what they were, rejecting them on the merits. They

threw them out because they were baseless. And you know, at least one conservative lawyer of libertarian lawyer Jonathan Adler's for Factor case Western told me that he thinks that is evidence that the movement wasn't corrupted by Trump. That uh, you know, these conservative judges, many of whom were part of the Federalist Society, when it came down to it didn't side with the president, and they said what the law was and and it wasn't that there was election frauds.

What are the paths for the Federal Society going forward? So I spoke to a few Federalist Society members for the story, and they described a path forward that involves holding some of their own accountables, maybe holding Eastman accountables. And there's you know, a movement. We had a few background sources confirmed that there's a movement to unseat him from this position. On one of the practice groups that

organizes some of these meetings. You know, another conservative lawyer told us that they had sent a letter to leadership asking that he be removed from the approved speakers list. There was another letter asking that he be removed from

his practist group role as well. So there is a movement internally to take action, which is pretty significant for conservatives who who kind of reject the left cancel culture um and a few of them have have been careful to note that they don't agree with cancel culture, but they would like to see them take some kind of

action on Eastman. And then you know, other lawyers described maybe a path where speakers who are political, like Hollie or Crews, if they're ever to speak at events in the future, wouldn't be highlighted, or maybe the organization wouldn't you know, wouldn't have them comes as speakers, and you know, basically severing those ties between since of bit of lawyers

and politicians with a legal background. Um. So those are just a few of the things that that people talked about, But of course these are the opinions of just you know, a few conservative lawyers, and it really is going to be up to the Federal Society on on where this ends up going That was going to be my next question, because I wondered how much of the Federal Society feels the way you've been describing some of these conservatives feel, and how much of the Federal Society thinks, you know,

everything's fine, let's just go ahead the way we've been going any feel for that, Well, that's one thing that's one of the reasons why we wanted to look at this is because the Federal Society doesn't take political opinions on things. So in a way, it's an organization made up a lot of its numbers, and so if it's going to delegate that to its members, its members opinions

and things like this really matter. And you know, at least with the people that we spoke to um, there are a lot of people that feel like something does need to happen here, or that you know, maybe there needs to be a different way to handle these types of speakers and and how the organization moves forward after this.

But I think ultimately it's it's a little hard to tell exactly what's going to happen in an organization like this, because when you're a debate club and you are so focused on having a diverse array of perspective having decisions ultimately get made. It's not really one of the elements

of debate. So it will be interesting to see if the federal society ultimately decides to pick in your direction or if they hold to what they've done in the past, which is not saying anything to to foster the debate culture. Thanks for being the Bloomberg Law Show. Madison. That's Medisine Alder, Bloomberg Legal Reporter. And that's it for the edition of the Bloomberg Lawn Podcast. I'm June Grasso. Thanks so much for listening, and remember you can always get the latest

legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. You're listening to Bloomberg m