The Strategy at the Second Trump Impeachment Trial

legal briefs are really revealing. First of all, from the interview of the so called prosecution here the House impeachment managers, they are taking a very aggressive, I think appropriately aggressive tack. They are not going around the margins of the First Amendment or the constitutionality issues. They are just coming straight out and saying this is utterly unacceptable. This is the core of what impeachment is about. This was an attempted insurrection.

This was a violation by the president on an other branch of our government. And they are coming out swinging the defense brief. When we finally saw it was a different type of creature. It was tenderly shoddy work product. It was poorly written, poorly reasoned. It was a mess.

It was hard to follow it. They seem to use this strange format that lawyers sometimes used when they're responding to interrogatories, and the civil caates very formalistic, and we hereby admit that the Constitution exists, but we deny everything else that you say. But the gist of the arguments are this sort of mishmash of the constitutional defense that it's unconstitutional to try a former official, which I think

is not a strong argument. It's an argument we don't know the answer, but I think the better weight of the evidence and laws. On the other side, they argue First Amendment protections, which I think is misguided in several respects. And notably they don't take the big lie off the table. They minced words a bit about this false idea of election fraud, but they say something to the effect of, well,

there's not enough evidence either way, who can tell? And we deny that Donald Trump live when he put forth the election fraud theory. I think that's potentially very fraud for the lawyers and for Donald Trump's defense. How much does the case depend on the House managers being able to prove that His speech on February six insided the violence that followed, So that is a key component of

the case that they'll be making. I do think it's important to note that the House Impeachment managers have intentionally framed their argument is not just January six, but everything that led up to it. They past this, I think smartly, as a longer term, ongoing, sort of prolonged, coordinated effort by Donald Trump and those around him. They don't name names, but Rudy Giuliani and Bo Brooks and Donald Trump Jr. And Sidney Powell and others to spread and sort of

amplify and activate this election fraud lie. And I think what they point to is January six as sort of the tipping point. And look, Donald Trump's words that day are very important, and you do want to be able to show as much of a connection as you can between his words that crowd and their actions. And I think that will lie in his actual words to the crowd,

the crowd's actual reactions. There are more and more videos now of that coming out of the crowd saying yeah, what he said, Store in the Capitol, Store in the Capitol. Just Security just published some of these videos the other day, and Donald Trump's reaction afterwards, when he was generally positive and praised the crowd who just ransacked the Capitol. I

think that's the heart of the case. Is the strongest argument the defense makes the process argument, because that would allow the Republicans who don't want to impeach Donald Trump to say it wasn't based on what happened, It wasn't based on what he did. We just can't impeach a president who's no longer in office. Exactly. Yes, I think it's not necessarily the strongest on the merits, but it's

politically the most expedient for exactly those reasons. Look, it's gonna be hard for any Republican who votes not guilty, even if they're from a safe red state seat. They're going to have to go back and some significant percentage of their constituency is going to say, how could you be okay with what happened on January six? That all ramp of the constitutional procedural question will enable those senators

to say, no, no, no, I was not okay with that. However, I believe that it's unconstitutional to try a former official. I really doubt many of them actually believe that. By the way, I mean, how could it be that a president could do anything he wants in those last few days or weeks and have zero consequence. I suspect if the party affiliations were flipped here, as often happens in impeachment, and the positions of not just the Republicans, but potentially

Democrats as well would be flipped as well. A lot of legal experts look at one thing the defense did and say this is a bad move, and that is that Trump denies the allegation that his claims that he won the election were false, so they don't make an outright argument that the action was stolen. But that inference is there if this were a real criminal trial that might distract a jury. What is it going to have

any effect on these senators? You're exactly right that in a real trial, like criminal trial, that defense would be irrelevant. It doesn't matter if the election was stolen or not. It was not, but even if it was, it does not permit you to go inside a riot or engage another criminality. So it would probably, I believe, be excluded. I think a judge would keep it out of a criminal trial. I also don't think it's going to help in terms of persuading or allowing senators the political cover

to vote not guilty. I suspect the reason those lawyers kept it in there is sort of as a concession to their very difficult client, Donald Trump. I mean the reporting is the reason Trump's first legal team all resigned, several of them, by the way, where dj Department of Justice alums, one of whom was an ethics expert, is because they refused to make that argument or even to

hedge it the way his new lawyers did. And so I think his new lawyers came in and they've tried to be lawyerly about it and have a lot of double in trical negatives and said, you can't not disprove this, therefore we deny it. But I think it's an irresponsible argument to make, and I think it will hurt Donald Trump's cause if they make it really on the floor of the Senate. What's your take on the First Amendment

argument is a persuasive at all? I think it's misplaced. Again, it may sound good, it may give some political cover to some of the senators who intend to vote not guilty. But the first thing that's so important to understand, the First Amendment can be a defense in a criminal case. But we're not in the criminal world here. This is impeachment. And John Berman, who's the CNN anchor, I think, made the exact right point this morning. I have to give

him credit because I'm gonna steal it perbade him. He said, if a president stood up and said, I hereby a spouse the Nazi Party, I am a member of the Nazi Party and I believe in all of their beliefs and thought systems, Well, guess what not a crime to do that? Protected by the First Amendment as well. However, impeachable you It would have to be impeachable. So the

First Amendment is not really applicable to impeachment. If you think about it that way, there could be statements that are First Amendment protected that you could not be prosecuted for, but that are absolutely impeachable. Now look, it gives them a framework, though, to wrap themselves in the Constitution. If this was a criminal case, they could absolutely defend him by saying this his First Amendment protected speech. And I think the better argument is that it's not. The First

Amendment does not blanket protect all speech. You'll hear people out there saying, but Brandenburg, but Brandenburg. Is this old Supreme Court decision from over fifty years ago. But that decision does not say you can say anything you want, and it's never a prime. That decision says you can say a lot, but you cannot directly intend or say something that has a natural effect of imminently causing violent or criminal action. And I think there's an argument that

his speech here across that line. You mentioned that this defense brief is not as well formed and there are typos. People have made a lot of the fact that on the first page United States Senate there's a typo there, which it's hard to understand in these days of autocorrect. But does that indicate anything about the trial team itself or does that just indicate that they had to put this together pretty fast. I do think it says something

about the child team. I will make a little bit of an excuse from the funny thing is that the scariest typos are the ones that auto correct would not catch. What they did was instead of United States, there are United States U, N I T E. S. But selcheck would not catch that because unites is a word, So we don't worry about that, right. But no, Look, I think it was a sloppy enough product, and I think it was a product that showed so little fought and

consistency that it looks I've seen it worse. I'm not gonna say it's it's the worst filing I've ever seen, but it's shoddy and it's not at the level that a true top shelf attorney, even with just forty eight hours you would put something together. Even if you wanted your brief to be very brief, very concise, very summary in nature, I think you would still do it in a way that was more convincing, more coherent, and better structure.

Their structure is bizarre. They break out these different number of accusations that are tied to nothing in the articles of impeachment, and then they sort of very formalistically, we hereby and whereun to deny and admit this. It's a confusing, messy document and it doesn't bode well for how straightforward and digestible their presentations will be next week. We understand that the house managers have compiled footage of what happened

his speech, the reactions in the crowd. As you mentioned that compilation that was put together by just Security, do you think that that is really effective in this kind of a setting. Not only do I think it's effective, I think it's the most effective thing they can do. I mean, look, their task to have some impeachment managers is going to be to remind people and to to really hit him in the gut, as we would say, to appeal viscerally to just how bad, scary and dangerous

this was. And the reality is that I think we're all experiencing human memory is remarkably short. Here we are three and change weeks out from the event, and it's already receding a little bit in terms of just how

immediate and dangerous itself. And to me, it's much more resonant to show a video what was happening inside the capital than to have some member of Congress, state an elect turn make an impassioned twenty minute speech, show me a two minute video any day over that, And I think they need to really make their case, hit quickly and hit hard, and I think those videos are the best way to do that. The last trial, we had

the Republicans in charge of the Senate. This trial, the Democrats are in charge, so they're going to be able to decide what the trial is going to be like, do you think that they should call witnesses. Yeah, that's a that's an important difference doing last year and this year. The trick with calling witnesses is is keeping it from spiraling into a never ending proceeding. I mean, there's dozen hundreds of people who witnessed what happened in the capital.

If you are going to call witnesses, I think you probably should, but you need to be very careful and selective. There's also a risk of appearing emotionally exploitative, right. I mean, look, you want to drive home the horrors of what happened. You want to focus attention on Officer Brian Sicknik, who was murderer inside that building. But there also is a way to overdo it and look like you're being not

fully respectful to the people who suffered. Um. So, for example, if they call his grieving family members, I don't know that maybe a little bit much, but I think you want to call some basic witnesses to to explain what happened on that day, perhaps some congressional staffers who can really bring it to light. Um, I think you should.

They should consider calling people who can testify about Donald Trump's state of mind that day, people who were with or speaking with a privy to how he was reacting to what was going on. So I think the trick is is sort of calibrating your case and calling a handful of witnesses, but not turning it into a saga.

I mean, in the Bill Clinton case, the negotiated agreement, what they called three I think three or four witnesses total, So you know, maybe a few more than that, But you don't want to get into dozens of witnesses here. What about one of the rioters. There's been a lot of press that Jacob Chesney, you know, the so called q and On Shaman, is willing to testify. I would not do that at all if I was in charge

of putting this case on. First of all, if you call a witness, you sort of own that person and that becomes your witness, like it or not. Second of all,

it would become a circus to call some of these folks. Third, you have what you need from them, You can do that without cauling them into the well of the Senate by playing the many videos that are out there, if people saying fight for Trump, or if by even using the statements that their lawyers have made, or the legal filings that they're that their lawyers have put in saying my client did this because he or she believed Donald Trump asked him to or called on him to do it.

That's good enough. That makes the point, and that keeps it from becoming assert Now, one of the defense attorneys has said that at least some of the supporters planned their attack in advance. If they can prove that, does that help their case. I don't see how it does, because the argument is not that Donald Trump just just you know, dropped in out of nowhere on January six, um. The argument that the inficial managers are making is this

was several weeks in the making. And so if there's evidence that some of these people who rioted were planning in late December or mid December or January three, you go, of course they were, because this is what Donald Trump and his people were working on inciting for weeks. And by the way, even if there was pre planning that had nothing to do with Donald Trump, you're still not allowed to go in and sort of set off that

power powder keag. So I don't see that being as quite as persuasive a point as I think some of these defenders of Donald Trump and UM and others seem to think so. Now it seems almost a foregone conclusion that they will not be able to get the number of Republican Senators they need to convict. But what would you say is the best move they could make to

convince some of those reluctant senators to convict. Yeah, I still think it's it's more possible than many think that that they do get seventeen Republicans to join with all fifty Democrats and convicted. I think enough of them, even those who voted the forty five who voted last week on Senator Rampaul's motion, several of them have come forward publicly and made clear they said, my vote there was

to hear the constitutional issue and debate it. But that does not mean I'm committed to vote one way or another on the ultimate guilt or non guilt of Donald Trump. John Thune said that, Rob Portman said that, and I think others are in the same same point of view. I think the best thing that the impeachment managers can do is appeal not even directly to the senators, but to the American public, Because do I think there are senators on the fence who can be persuaded by just

the force of the evidence in the chamber. I don't know, maybe maybe a few, maybe only at the margins. But if those senators start hearing receiving blots of emails or tweets from their constituents, or start seeing public opinion polling showing that X percentage of their constituents are in favor of an of a conviction, that I think can move the needle on the most number of Republican or Democratic senators.

So if I'm the impeatiment managers, I'm trying to really aim my case at the American public, and, like I said before, to to hit him in the gut and to be really visceral in the way I do this. Thanks Ellie. That's former federal prosecutor Ellie Honig. A case involving Donald Trump's use of his personal Twitter account for

official business is now pending before the Supreme Court. It revolves around a ruling from the Second Circuit Court of Appeals that found Trump's use of the at real Donald Trump platform for official business created a public forum entitled to first amend the Protection and that Trump violated the Constitution when he blocked followers who were critical of him.

The Justice Department and the Twitter uses who sued the president agree the case is now moot since Trump is out of office and has been banned from social media platforms. But how to get rid of it? The case presents the Justice is with a doctrinal puzzle. Joining me is Robin Efron, a professor at Brooklyn Law School. So start by just telling us briefly about the ruling by the

Second Circuit. So the Second Circuit had to rule on this issue of whether or not Trump, when he was tweeting in his capacity as president, was allowed to block people on Twitter, right the way that you can block people if you're just an ordinary Twitter user and you want to block people from your account. Either was a question of whether or not Trumps, who was using his Twitter account, you know, at real Donald Trump as president,

whether he could block people. And the Second Circuit said no, he couldn't that the you know, Twitter was essentially a public forum in that capacity, and so there were First Amendment implications in Trump blocking people from Twitter when he was tweeting under that account. So that was the Second Circuit ruling um and of course things changed very quickly, both with regard to Donald Trump and Twitter, and then of course Donald Trump and his position as president of

the United States. So an average person would say, Okay, this isn't a controversy anymore, you know, just dismiss it. What's the problem. Well, the problem is that, you know, the courts are there serving two purposes. So one and this is the primary purpose of the courts, and one that the courts take quite seriously under the Constitution, that is your role in resolving live controversy. So if there is an actual dispute between parties, courts are there to

resolve that. They're there to give an answer right, who is right, who is wrong, who is liable, who is responsible? And then you know it's part of that courts are there to make sure that the party who is not at fault yet a remedy. So the remedies that parties asked for are usually money, which is damages. For an equitable remedy, you know, an equitable remedy would be something like an injunction in which a court tells the party, no,

you can't do that anymore. Right, So here it would be saying no, Donald Trump as president, who can't block people on Twitter anymore. That's one rule of the court, so that they're there to dissolve, to resolve live controversies. You know. The the role of the court, which is sort of secondary to that, is that they are there

to make pronouncements on the law. Right, So when it comes to things like common law or interpretation of the Constitution or statute, courts are there not just to sort of issue a decision and say what the remedy is. But there's a reason that they write opinions because those opinions are then going to form the basis of the

law going forward. And so one of the things that we rely on courts to do is to provide reasoning for their decisions that the decision itself and the reasoning will form the basis for what other courts do going forward.

So the Second Circuit is an appellate court. It's the federal court that here's appeals that come out of the federal courts in New York, Connecticut, Vermont, and so anything that the Second Circuit says is going to be binding on federal courts hearing decision and in federal district courts coming out of those states. And it's also going to be considered persuasive authority to other courts, right, so the state courts that might be hearing these questions, or to

other federal courts. And as it turns out, you know, all the federal courts of the skills are equal, they're all very important, but there are some circuits that are considered particularly influential. So the Second Circuit is one of them. You know, an opinion coming out of the Second Circuit is going to carry a lot of weights. So one of the things that's going on here is that when a court is issuing an opinion, it is resolving a lot of controversy, but it's also laying the groundwork for

what is going to go forward. But it's not binding on the whole country. Other courts that are outside of that jurisdiction are free to come to their own conclusions. But every time you have a federal Court of Appeals issuing a decision and giving its reasoning, that really sets the path for how other courts are going to look

at things and act upon things. And certainly it's going to be binding precedent for everything within that court's jurisdiction until another court comes along and comes to a different decision. So then why not just leave the Second Circuit's decision as is, because you don't know how the Supreme Court would have ruled on the issue and pretend that there

was no appeal, you know. I think the thing that is important to keep in mind is that even if we wipe away sort of all of the controversy around this particular case and how politically heated it is, the US Supreme Court is a court of very limited jurisdiction, right, and they hear very few cases per year. So for most cases in the United States, they end well before the Supreme Court, right. So we can think even of state courts where the states the Preme Court is the

highest authority in that state. A lot of those decisions of state law couldn't even go to the U. S. Supreme Court if people wanted them to. Now in federal court. Even though someone who has an adverse ruling in a court of appeals, meaning you know, they a law that they can petition the Supreme Court to hear their case, that the vast majority of these cases are not heard by the Supreme Court. So for most litigants, their path

ends in the Court of Appeals. And so that's the ordinary state of affairs, right, is that people, you know, either just sort of access the decision of the Circuit court and then that's the end that becomes the binding judgment for those parties and it becomes binding precedent within that circuit, or they try to go up to the Supreme Court and you know, they aren't picked, and the judgment below just stands. The problem comes up when the

Supreme Court has agreed to hear a case. But then maybe that case becomes it's not a live controversy anymore. So that's when we're in this sort of what if territory. Right, maybe we wouldn't have just let that second Circuit opinion be um, but the Supreme Court might have decided something else.

And so in that case, that's where we get this month aware doctrine that comes in, which is to say, Okay, the Supreme Court is not in a position to actually rule on this particular issue because of muteness, right, there's no longer a live controversy, and so the Supreme Court, as a matter of mutinous and you know, sort of part of this larger standing doctrine, they're not going a

way in on this issue. But then the question is, if they're not going to weigh in on this issue, do you just sort of pretend like this never happened and it was never appealed to the Supreme Court and the first place, and that lower court doctrine would just stand. Or does the Supreme Court say, you know what, we're going to wipe the slate clean. We're going to pretend like the second circuit never happened. Either, it's no longer alive controversy, and if it comes up again, we'll just

start all over again. Right, new litigants will get a clean slate, they'll start off in the trial court and they will keep litigating from there. So how does the Supreme Court decide what to do? So the ordinary course of affairs would be that the Supreme Court just leave things to be right, that what happened below stays now. In some cases, the Supreme Court, without making its own decision, will vacate the judgment below. Right, that's the idea of

wiping the slate clean. And so in other contexts, one reason that they might do that is that a lot of times, for example, the Supreme Court will come out with a big ruling that has a change in law or a change in the direction and law, and so there are lots of follow on cases, as the Supreme Court itself doesn't need to sort of hear a new

every single time. And so what the Supreme Court will do is they'll just vacate the lower court judgment that keeps goes back to the lower courts, and then the lower courts sort of proceed with the new Supreme Court doctrine in mind now here, that's not what's going on.

This is a little bit different, and so the parties are asking the Supreme Court to wipe this late clean for a different reason, right, not because there's been a change in the law, but because there is this question of the Supreme Court might have made a change in the law, but they didn't quite ever get to making

the decision because of movements. So since vacator itself is a remedy, right, it's the Supreme Court is making an active decision to do something which could grant somebody the remedy of vacating that lower court judgment, the Supreme Court is going to need a reason to do that, right. They need to have a good reason, not to just believe they see because like I was saying before, the ordinary course of affairs is that cases are just done

after the circuit courts. So what does Supreme Court has said? And that if somebody is going to ask for vacater right, if they are asking to um sort of white the slate clean, then they need to show that they weren't responsible for the case being moved. In other words, it's the whole reason that the Supreme Court no longer has the ability to issue a ruling in this case and

decide on law. Then you want to make sure that the person who's getting the benefit of that vacat didn't sort of cause that neuteness to begin with, right, And you can see how that would be a little bit inequitable. Right, you asked the Supreme Court to intervene, then you yourself create the reason for the Supreme Court not to be able to make a decision. And then nonetheless, you're asking for the benefits of vacating that lower court judgment which

was adverse against you. So that's this doctrine that the Supreme Court isn't going to datate that lower court judgment because of muteness. It's the party who's asking for it caused the muteness. But then that's how we get these other problems, which is the question of what does it mean to have caused the movements? Right? How do we know that the party who's asking for this remedy is

in fact responsible for the case being moved? So in this case, the election really is causing the muteness And also the fact that Twitter has closed Donald Trump's account, So who's causing the muteness here? Yeah, this is super interesting to me, um, and I think it really is important to separate those arguments because there really are there's two separate things going on that did not necessarily have to be connected at all, that are causing the movements. Right.

So the whole problem was could Donald Trump in his you know, at real Donald Trump account blocked Twitter users? So two things had to be true in order for this to be alive controversy. One is that Donald Trump still needs to be on Twitter. The second is that he still needs to be president, right, because that's the allegation of what was causing the problem, and that's what

the Second Circuit ruled on. They ruled on Twitter specifically, and Donald Trump became president specifically, and then a very short period of time, both of those things changed So let's take the Twitter part first. So on the Twitter front, he engaged in lots and Twitter activity that was wrapped up in rhetoric that people have alleged was really raising the temperature in the country, uh, leading to the insurrection on January six, and just sort of generally making the

peaceful transition of how are quite difficult after the election. Right, So, you know, from Twitter's point of view, he is just a user, and Twitter is a private company, and they have terms of service, and you know, their terms of service contain all sorts of reasons why they might block or suspend uh, your usage of the service through their account, and things like uh sort of being mean to people

spreading this information. Right, all of these things, right, depending on how you're going to interpret Twitter's terms of service, violate that right. And at the end of the day, we're not really arguing here about Twitter's terms of services. Um, you know, somebody might argue about that somewhere else, but the bottom line is Twitter to sided that he was uh sort of causing such significant problems that they were

going to suspend his account indefinitely. And so what that means is, you know, rightly or wrongly, from that sort of tech and contract point of view. Donald Trump is no longer on Twitter, right, he can't tweet as himself, he can't tweet as himself as the president. It's just gone. That account is no longer functional. And so that means that the question of whether he can block users is right. If he himself is not on Twitter tweeting, then he can't block people because he's not there. So that is

one argument about muteness. And so you know, the question about whether he caused that is an interesting one. I mean then that's where maybe we do have to get a little bit more into those questions about you know, was Twitter correct in blocking him or suspending him? Right? If he was violating their terms of service very quick and very clearly, then one might say he is responsible. Right, he should know how to use Twitter within its rules

in terms of service. Um, he didn't do that, and so they blocked him, and therefore the fact that he's no longer on Twitter is his fault. You know, other people might argue differently that Twitter is um sort of very capricious in how they apply that. You know, they've blocked some people, they don't suspend other people. You know, that is what it is, but I think that that is possibly the stronger argument for him sort of causing

his own moveeness. Right, he is responsible for the fact that he's no longer on Twitter now, the fact that he's no longer president, I think is a really tough argument from a public policy point of view. So, you know, if you read the filings that the parties has made in this case, the Twitter users are basically saying, you know, it's ridiculous to say that he's not responsible for no longer being president because he ran for reelection. He you know,

conducted himself during that campaign. He made his argument to the American people about whether he should be reelected and he lost. Right, he was not successful in that attempt,

and so he is responsible for losing the election. You know, that one, I think is a much harder argument to make, and you know, I will just opine this is purely my own opinion, and I think a little bit aside from the core legal argument, I worry a little bit about what this means for our understanding of peaceful transitions

of power. It's found that by no longer being president, he caused the muteness in this case, Right, I think that you know, I personally would want legal doctrines that don't incentivize people to hang on to power simply so that they could be said to have not caused the situation in which he was no longer president. I mean, given what we've been through, one frame of mind that somebody might be in is, oh, I'm responsible for making sure that I still occupied the office of President of

the United States. And I think, you know, in our country in which we say that we're a nation of laws and not of people, etcetera, I think it's good to sort of be personalize these sorts of things and say Donald Trump is no longer president because we held a free and fair election. That election was going to happen on November three, regardless of what Donald Trump did.

That it was going to be certified by a Congress on January six, you know, because of how the state acted, regardless of what Donald Trump did, and that we were going to have a peaceful transition of power on January twentieth, regardless of what Donald Trump did. Right, if he had won the election, it would be the same thing, right, he would continue to be president because it's the operation of free and fair elections, not because he has some

sort of powerful positive force in hanging on. So I personally see, um, you know, a little bit of a politically difficult argument in saying that he caused the muteness by himself no longer being president. I do think, though there is a longer argument on the Twitter side, right, that the fact that he was no longer able to tweet in that period, and it is a little bit different.

So then you think that the Supreme Court will allow the second service decision to remain won't vacated, you know, it's it's hard to say, um, you know, sort of back a little bit and looking at this in the context of some of the other cases where this issue has come up. The typical scenario in which the court is talking about a party causing muteness is when it

case settles. So, in other words, the reason that there's no longer a live controversy is that the parties have decided that the controversy itself as between them should come to an end. So that's not quite what's happening here.

I don't think it's out of the question there's a Supreme Court to look at this situation and come up with some sort of justification in which it it says, you know, this is a controversy that is important enough that you know, regardless of some technical issues about who caused muteness or not that you know, and then for there, I think they can actually go in either direction, right.

I mean, they could say this is important enough that we want this decided fresh and anew from the beginning, right if it's now going to be a different public figure who is blocking people on Twitter, right, that that government official should have their own case adjudicated without the

president of these other cases in the way. Or they could go the other direction and say this is an important enough issue that even though it's not a live controversy for us to decide that the Second Circuit did have a live controversy before them, right, that there's no reason to vacate that decision. Right, it's not going to a really sort of affect Donald Trump in that way.

He's no longer president, he's no longer on Twitter, and so you know, it's perfectly acceptable to just duct this case as the Supreme Court because it's not live, but let the lower court stand. So I think that this is you know, a different enough to be generous situation from settlement or some of the other things that the Supreme Court could could go either way on that one.

So finally, there are upcoming cases. Joe Biden has asked the Supreme Court to cancel the upcoming arguments in the case challenging Trump's sport of wall funding and remain in Mexico policy, and the Supreme Court agreed to cancel those arguments. Will this kind of a question come up in those cases as well? Um? Not quite. I mean it could, it could if the case itself becomes neot But these arguments are a slightly different issue, which is what happens

when the government's position it self changes, um. And this isn't new. This does happen, um, when there is a change in administration. It happens at the lower court levels to it doesn't just, um, you know, require a change at the national level. So for example, there were questions when Donald Trump became president about whether or not the federal government and the Department of Justice would continue to

defend the Affordable Care Act in court. So that's going to be a little bit of a different position because the you know, the question is whether or not the government's policy is still the same, and there the issue is going to be whether there's been an actually different change in policy, right, so whether there is you know, a new order or a new policy about a border wall funding, or if it's just a question of the government not continuing to defend something um and you know,

not to get too far down that road because a little bit further from what we're talking about. But the interesting thing about that ladder view, which is if something is in the work but the federal government position changes and they're just no longer defending something, is that there are often other actors who are still interested in defending

that policy. And as long as a policy or a regulation is live and causes a controversy, the fact that the federal government is no longer defending it isn't necessarily despositive because you can have other parties who have an interest, right, a constitutionally cognizable interests who are either already parties in this in the case, or might try to step in as interveners and continue defending that policy even if the

federal government isn't still defending that policy. So that's a little bit different because it's you know, it depends on whether the policy it's self or the regulation itself has changed, and that's going to tell you whether or not the issue is moot or whether you just have this sub issue of what it means for the federal government no longer to paint supporting a policy, but that policy is still there. Thanks Robin. That's Rob an effort At professor

at Brooklyn Law School. And that's it for the sedition of the Bloomberg Law Show. I'm June Grosso. Thanks so much for listening and plays it into The Bloomberg Law Show every week and at ten pm Eastern right here on Bloomberg Radio.