Idaho Water Battle, Abortion Changes Across Country

bench at the Supreme Court. Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to the Bloomberg Law Shop. I'm Kimberly Robinson and I'm Gregg's Store. We're in for June Grasso coming up on the show. The Supreme Court prepares to consider scaling back the reach of the Clean Water Act, but first, in a new court filing, the Justice Department says a few of the documents that see from Donald

Trump's home may be covered by attorney client privilege. With us to discuss the filing and what's next in the Marl Lagas search Saga is Bloomberg News reporter so Wee Tillman, Zoe, thanks for being here. Tell us about this court filing Zoe,

what do we learn today? You know, we learned a couple of key things, the first being that investigators are quite far along in going through the documents that were seized, to the point that they could tell a judge in Florida that their privileged team had gone through the documents that were seized, had identified that some were potentially attorney client privileged material, and that they were already going through the process that they had previously laid out for what

to do with that information. It was a strong suggestion to the judge perhaps that this is all moot and far too late in the game to bring in someone now to to unring the bell of giving investigators access to these documents. So, putting aside the special master issue, what's the normal procedure that the d o J goes

through when dealing with privileged documents like this? Yeah, so it's pretty common for a federal and instigation, especially one like this, to have what's known as a taint team or a filter team or privileged team, which is a collection of usually FBI agents and prosecutors who are not the lead prosecutors in case agents in an investigation, And the purpose of that is so that the folks who are ultimately prosecuting the case, they don't see something that

could get them disqualified or knocked out of the investigation at some later critical phase, or I think worst case scenario for the Justice Department jeopardized the entire integrity of the investigation with less clear here is this the concept of executive privilege and whether that type of privilege is something that the Justice Department could or should filter for as they're going through these documents. That's not typically what a taint team would be looking for. So that's a

big question mark. And the Justice Department did not address that issue, which Trump has raised in the filing today. So what about the documents that are clearly not privileged? Um, which may be significant. We don't really know how much we're talking about here. Um. Is there any arguments that's even on the table that uh that that former President Trump might be able to get those documents back. There's

a little precedent for this. Early on, Trump had complained that they had taken his some of his passports and those were returned. I think that's an example of what is you know, generally, what it's supposed to happen, where if something gets caught up in a seizure that they don't have legal authority to take, they will give it back. Uh. And that appears to have happened here. You know, Trump has not suggested there any other specific categories of documents

that he should have back for some other reason besides privilege. Um. And the legal argument for that I think would be a bit murky. You know, at the point that there's no contest to the legality of the search warrant and the seizure itself, you know, at that point those documents have been seized are sue into that authority. So privilege is really one of the few carve outs to their ability to use what they took under the umbrella of categories that they a judge gave them the green light

to take. And so, what, if anything, do we know about how much classified information was seized by the Justice Department on August eight more logo, Yeah, so we don't know a whole lot about the substance. We know that there were I think it was roughly twenty boxes and within those eleven sets of classified materials with different markings

indicating levels of classified information. UM. And so you know, we don't have much more than that, they don't have more specific markings that we've been made aware of sort of similar, not quite similar to what we've learned about documents that were seized in January and returned to the National Archives from our lago where there's Justice Department revealed that some of those had markings related to the foreign

intelligence surveillance at door, markings related to intelligence from human sources. You know, we've got a bit more detail about the level of sensitivity of some of those documents. We don't have that yet for the August eight collection. Remind us what potential criminal charges could grow out of these documents. Yeah, I think what's important to remember is that the charges that the Justice Department cited are not specific to classified information.

They have to do with generally mishandling government records, information related to national defense, which can be uh an even broader category of information. It's not just about what happened to information that's classified. It's about the handling of sensitive government records. And then finally, obstruction, you know, whether there was evidence of obstructing an investigation, which is separate and apart from the question of the documents and how they

were handled. At the beginning So this is all happening at the same time that the Justice Department is also pursuing a grand jury investigation centering on Trump's attempts to over earned the election result. Is there any reason to think that one of those two investigations is going to

come before the other? You know, I think that in green lighting the seeking of a search warrant for the home of a former president, the Attorney General has, you know, put this investigation at the front of the queue in terms of public awareness and the public consciousness and the sense of urgency that they seem to feel around this investigation. Whether one results in charges before the other, or whether

anything results in charges ever remains to be seen. But I think they've conveyed more of a sense of urgency now around these records as opposed to the January six investigation. That's Bloomberg News reporters Zoe Tillman, Zoe, thanks for joining us. You're listening to Bloomberg Law. Up next, property rights advocates are hoping the Supreme Court will put new limits on the Clean Water Act. I'm Greg Store and I'm Kimberly Robinson. This is Bloomberg. Yeah, this is Bloombird. Law with June

Grasso from Bloomberg Radio. I'm Gregg Store and I'm Kimberly Robinson. We're in for June Grasso. We turned away from Florida now and onto Idaho, which is the center of a water dispute that the U. S. Supreme Court is set to here in October. Joining us is Georgetown law professor William Busby, who wrote a front of the court brief in support of the e p A here. Thanks so much for joining us. I'm pleased to join you so, William.

This case stretches all the way back to two thousand and eight and is actually on its second trip to the High Court. What is it that the plaintiff, the second Family, is fighting about? Um This case focuses on this question of where federal power begins and ends to protect what are called waters of the United States, and in particular um our lands that are wet lands or alleged to be wetlands. Can they be protected by the federal government under the Clean Water Act? The sackets the

homeowners here property owners. They argue the federal government has no power to protect their property from filling UH and e p A and the Army Corps of engineers. Uh, they view this property as a wetland subject to federal jurisdiction and then thus subject to restructions on polluting into it or filling it. And tell us just a little bit about their property. They are neither in northern Idaho, and they're near lake, but not right on it. Is

that right? Yes, Um, they are near the lake. What one thing that complicates it is they are essentially on a map which is part of the record of the case shows their property be essentially in a whole area that is clearly mapped as wetlands and that are kind of continuously transitioning to connections with the lake. But their property, the Sackets property, actually has a in one area and

some houses in the other. And so their story is that their land lacks the connection to this large lake, which most people agree is subject to federal jurisdiction, and they argue that because it's essentially cut off, it should not be protected. The federal government says, no, that this is clearly a wetland when you look at the nature of it, the wetness of it, what it would be but for uh, this road in these houses, that this is a protectable wetland. And so let's step back a

little bit. Why does the definition of waters of the United States matter? What is it that it allows the e p A to do um? Well, first, it's important. This is the e p A and the Army Corps of Engineers. They divide jurisdiction under the Clean Water Act, And going back to basically the early nineteen seventies version of the Clean Water Act, what is a water of the United States is what is protectable by the federal

government from all types of pollution. Uh. And so the question of whether something is a protected water um is absolutely the heart and core of the Clean Water Act. So, for example, if an industrial polluter right now is discharging pollution into something, that's debatable. If it is a water it has to have a permit, or if it's filling,

it has certain restrictions on filling at all. If it's not federally protected, then the only protections would be if a state has on its own decided to protect out that land or that water. So there's a very important precedent governing the Clean Water Act from two thousand six. Turns out, Kimberly and I disagree how to pronounce it. So we'll let you tell us what the correct pronunciation is. Can you do that? And also tell us why that case is so important? What what did or did not

the Supreme Court decide in that case? Sure well to to add confusion on confusion the way I've always heard, I've not met that people at issue in that earlier case, but everyone refers to it as Ropanos, So so I will refer to it as Rapanos. Like that said, I've not met the Ropontos family, so I can't guarantee that I won't. I won't tell anybody who was right. Uh. And so the Rapanos case is the last major Supreme

Court case that addressed this question, uh and uh. And in that case what happened ended up being very confusing because in the end also a case about whether some waters or lands that were kind of at the border, whether they were protected. The court splintered in several ways, so there was no single majority opinion um. And so there was what's called a plurality opinion that only four

justices joined, that was written by Justice Scalia. Then there was an important opinion by Justice Kennedy, but which for dissenters mostly agreed with um uh. And then there was dissenting opinions, and so there was no single opinion that a clear majority agreed with. But if you analyze that, there were certain agreements on certain issues, so um, it kind of in the cases and before agencies, it actually had sorted out pretty well. How to make sense of

it when you look at certain issues. Okay, this is where a majority stood, but it definitely is a confusing case that professors and students and certainly those out in the real world have puzzled over since that time. Now, if I'm correct, the lower court here applied a test that was close to the one that Justice Kennedy had written just for himself. And if that's right, can you tell us what that allowed the E p A and

the Army Corps of Engineers to do? Sure? But actually, so this is important is that us as Kennedy wrote an opinion that that it was his own name, but most of that opinion the dissenters uh explicitly agreed with, and Justice Kennedy in his opinion agreed with most of what the dissenters said. So in looking at Supreme Court law, you often look at where do people agree and disagree? And so the part of the reason the Kennedy opinion,

which does this thing called the significant nexus test. The reason it was so important is it seemed to be the kind of common ground that most of the justices agreed with UM, and then you just asked, you know, what does it do? What this What that opinion said was when you decide whether a disputed water is protected by the federal government, you look to see if it has a significant nexus to what is clearly a navigable

such as like ships and barges. Is it clearly have a significant nexus to kind of large, indisputable jurisdictional water is UM. And that's important because it was a kind of a functional test to just look to see how does it connect, what does it do? And so was quite consistent with the Clean Water Act, which is overwhelmingly focused on protecting waters for their functions and to make sure they're safe for drinking and recreation and biological integrity.

So that was the test he formulated, but it was consistent with long standing regulations in the Statute. And so since two thousand and six, Justice Kennedy's test has been the main test people have applied in deciding if something is protected. You're listening to Bloomberg Law. Coming up, we'll continue our conversation with Georgetown law professor William Buzzby wrote a Friend of the Court brief in support of the e p A and a major Clean Water Act case.

I'm Greg Store and I'm Kimberly Robinson. This is Bloomer. This is Bloombird Law with June Grasso from Bloomberg Radio. I'm Gregg Store and I'm Kimberly Robinson. We're in for June Grasso. We're chatting with Georgetown law professor William Buzby about the latest environmental case that the U. Supreme Court will consider in October. And what did the sackets say should be the test Instead of that significant nexus test,

they basically want to completely discard the Kennedy test. Um they would they prefer, and they've come up really on their own, is a test that is kind of like Justice Scalia's opinion that was called the plurality that four justices agreed with. But they even go further. They kind of want to say, as as best as I can understand it, you only protect waters that are sort of being used as channels of interstate commerce um and that

have a permanent surface connection. Uh and continuously low. Um. And so that's kind of what school Leah said and what they have sort of embellished, and that sackets have embellished and maybe further strengthened or maybe i'd say weekend Um. The problem with that test is much of the country would no longer be subject to federal protection if that

test were adopted. If you look at the west and the southwest, or you look also in the southeast an areas where there are levies on rivers and the lake, the test that they prefer would render but are most people would clearly say our water is no longer protected

by federal law. And so the United States and my clients a hundred and sixty seven members of Congress argue against that test, saying it's just not consistent with the Clean Water Act, which is you protect waters for their criteria, for their you know, high quality water criteria, and for their functions. Um and uh. So this test that the Sacatswan we argue is just not consistent with the statute. So you filed an amicus brief on behalf of a hundred and sixty seven members of Congress tell us why

they decided to weigh in on this case. UM. Members of Congress have viewed and scientists and environmentalists, and frankly much of the world views our nation's Clean Water Act as one of its signature successes. UM. The Clean Water Act has been very strong and really a bipartisan project

going back to nineteen seventies and UH. And so the goal of our clients, the hundred sixty seven members of Congress, was to basically make sure the Clean Water Act is not weakened, and the Clean Water Act has a The statute is very clear with its language. It about don't degrade waters, protect fish, shellfish, biological integrity, ecosystem diversity, recreation, and economic values. This is all in the statute. And so the members of Congress really wanted to put before

the Supreme Court. This is what the statute says, UM and UH, and discourt is in an interesting position. It claims the conservatives on the Supreme Court, I think, claim that they are textualists. UM. That is, they would be governed by what statute say and if they really are serious, the statute answers the questions in this case, and it

would protect these waters. But there's a strong push to get these justices to weaken the Clean Water Act to kind of look away from the language and actually just sort of reach an outcome that weakens the statute. And so our effort and our brief and the reason hundred and sixty seven members of Congress joined it was trying to protect the Clean Water Act and it's long time successes.

In your brief, you say the administration of Donald J. Trump is only administration to have sought a major weakening of the Clean Water Act. What are you talking about there and how did it work out for the Trump administration? M so. So, First, that's just the script, accurate the scripts, and that even going back to two thousands six earlier case we talked about called Rapanos, the Bush administration, that George W. Bush administration was aligned with the environmental interest

in trying to protect the Clean Water Act. Um. The Trump administration very quickly tried to roll back protections through several regulations and then also in briefs in the courts um, and they did not meet with success. Um. People looked at their regulations or their proposed change in regulations and

said they violated what the statute said. Um. And so so now it's gone to the Supreme Court and the question is will the current reconfigured court cut back on the Clean Water Act or go with what has been the view for about fifty years of the reach of the statute. Well, thank you very much. That was William Buzby, Georgetown law professor, talking about Second versus E p A, which is going to be heard by the spoom Court in October. You're listening to Bloomberg Law. I'm Kimberly Robinson

and I'm Greg's store. We're in for June Grasso. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Kimberly Robinson and I'm Greg's store. We're in for June Grasso. The Supreme Court's Dabbs decision is changing the nation's abortion landscape, but just how quickly is it happening? With us to discuss that is Elizabeth Nash, who follows state abortion policy at the Goomaker Institute, a

research organization that supports reproductive rights. Elizabeth, thanks for being on with us. UM. Let's are with the overarching question as we sit here right now in how many states are all are virtually all abortions band So right now we're looking at eleven states where there are near total abortion bands. So those are abortion bands that may have some exceptions like life for life, endanger mint, perhaps serious physical health conditions, rape or incest, or fatal fetal anomaly. Right.

So that's the first eleven states, and then there are another two states that have bands in effect at six weeks, and then you have Florida at fifteen weeks, in North Carolina at twenty weeks, and then the rest of the states. So we're really looking at a large number of women who are living in states without abortion access. If you look at those eleven states alone, that's almost sixteen million

women of reproduct of age. And then can you tell us looking forward, how many states are there where abortion is on the brink of being banned, right, So we also are looking at states where there may be a special session upcoming, like in South Carolina, the legislature this summer, the House committees and Senate committees have been discussing an abortion band and they're about to go into special session

to pass it. And then there are states that had adopted abortion bands, you know, maybe last year, the year before, even years before that, where they're blocked in the courts, and so there are states like Utah and Wyoming where abortion bands are not in effect because of court action. So we're really looking at a number of states where we may be seeing more action around abortion bands in

the coming months. And if we were looking at a man up, Um, we're we're an audio medium here, but if we were looking at a map, where would we see most of the states that you're talking about, right? So yeah, So pretend you have this map in front of you and we're really looking at the south, the plains, the Midwest. So we're really looking at basically from North Dakota over to Idaho, down to Texas, over to Georgia and up back through Ohio. That is really the landscape

what we're looking at. And what that means is that for these regions as states are you know, have abortion bands in effect, that means that people have to travel much longer distances in order to access care in another state. Right, It's not like they're just and this is already a huge burden to try to travel across state lines, but the added burden is traveling multiple states. If you think about Louisiana, Louisiana, you're probably going to go to Illinois.

And that's well over a thousand miles round trip for somebody going from Louisiana to Illinois for an abortion right, and that is a very hard trip to make. Right. You're leaving your um, your support network, your you may have a child. Sixty of abortion patients have had a child. Of abortion patients are low income. So you're talking about really difficult and burdensome journey financially and emotionally for somebody to travel. And then I think you describe them as

near total bands. I'm wondering what kinds of exceptions are there? Do we see many of these states have in place exceptions for rape and incest or or is it really just for the health and safety of the mother. So really, what we've seen in all eleven states, there's an exception for life endangerment um that that's in every single one of them, and then a smaller subset have exceptions for rape and incest or fatal fetal anomaly or serious physical

health conditions. And you really do not see the rape and incest exceptions or the fatal fetal anomaly exceptions very often. Those exceptions people think are more or more often you know, happen more often than actually do. So if we're you know, looking at it's it's really just a couple of these states that have those exceptions. Even though they get debated in public in state legislatures, they don't often get added into these bills. So where are the biggest court fights,

legal fights that you're watching, right? And there have been a couple at least over whether federal federal law requires certain health exceptions and abortion laws. Right, So your pinpointing the Idaho in the Texas cases where the Department of Justice has sued arguing that m talah applies two abortion bands because the exceptions for life and health in these

states was just simply insufficient. And in Texas, what we've seen so far is that the courts have sided with the state and and in Idaho the courts have sided with the Department of Justice. And so in Idaho, uh, if abortion is going to be provided under an exception, you know, the health exception has to follow m TWA, meaning that you know, there's a condition that requires treatment UM and because you know, transferring that pace it may

be deleterious to that person's um medical status UM. In other states we are seeing, you know, court cases in state court um against their trigger bands, and you know, cases are using their state constitutions, which we really haven't seen much of over the past fifty years because we had these spectral abortion rights. So places like in Utah and Wyoming, their state constitutions are being tested now to

see if they support abortion rights. And so I'm wondering if you see any of these cases that are currently pending making their way up to the Supreme Court maybe around mid terms to keep kind of abortion in the spotlight, um, do you think any of them will be moving that quickly or is the Supreme Court out of abortion for a little bit. Well, I think the U. S. Supreme Court is probably not going to be weighing in on

abortion over the next couple of months, at least. I'm not anticipating right now that there will be a case put before them, but we will be seeing, you know, what is happening in the state courts, and that has galvanized people in a way that I don't know if we told you know, people totally expected it. But as we are seeing what is happening in South Carolina with their legislature, or we're seeing how patients are denied care or we're seeing how these court cases are moving through

the system. It's almost a daily reminder of what happened in Dobbs. Before the Supreme Court ruled UM. The number that that you and your organization used was twenty six, that there were twenty six states that you that were either certain or likely to be an abortion without row. Is that number still still what you're thinking? It is still what we're saying. Thing you know, I think that we're looking at about half of the states probably at least going to try to ban abortion, And in many

of these states it feels like a certainty UM. In part, we're going to have to see how some of these court cases shake out. UM. But also there are these states like South Carolina that are moving ahead for abortion bands. Were also anticipating Nebraska will move ahead with some sort

of abortion band when they return. One place where I think one state that we included in our account with Michigan and Michigan maybe the one state where we really think that it's going to go in an opposite direction, UM, where people have been motivated by Dobbs to um asked on abortion rights, and we're seeing that with the governor and the Attorney general pushing back against the pre row band, but also because there's a ballot initiative in November that

would protect abortion rights in the state constitution. So Michigan's the one state where it's more of a question mark than the others. So in those states the question will then become UH an issue of interstate travel. Can people seeking abortions travel to other states? And wondering have any states put into place laws designed to UH, designed to prevent their residents from traveling elsewhere to get abortions. We

haven't seen that yet. We what we saw this year was language introduced in Missouri around banning out of state travel for an abortion, and that language was so striking and stunning that it really got a lot of attention and was and as a result, never adopted into any

of the bills that were moving. But it simply introducing it and starting a conversation has changed the debate where states are now potentially looking at some way to limit travel, and they may not pass explicit ban on travel, but what they might do is look to limit the scope of abortion funds and practical support organizations that help people get from their home to the abortion clinic in another state and back our thanks to Elizabeth Nash of the

Gootmacker Institute talking about the state of abortion policy in the United States. That does it for this episode of Bloomberg Law. I'm Greg Store and I'm Kimberly Robinson. This is Bloomberg