It's the other side of midnight with Frank Murano. [Music] This is the other side of midnight. I'm Frank Murano. Boy, oh boy, is there a lot going on with the Supreme Court and it's not even in session. Last week's decision by the court on presidential immunity was either no big deal or the most significant court case that we've seen since Bush vs. Gore, depending on what experts, what media outlets you turn to, and then yesterday comes around. We have two senators asking the Attorney General to appoint a special counsel to investigate ethical violations by Justice Thomas, and wait, there's more, there's a member of Congress that's actually submitting articles of impeachment for three of the justices. So how do we wrap our heads around what the court is actually doing, where the court's going, how the public perceives the court, the relationship of the court with the rest of the government and with the rest of the country, quite frankly? Well, one of the people that I enjoy turning to in discussing the Supreme Court is Barry McDonald. He's a noted law professor at Pepperdine University, an incredible expertise in constitutional law, and whenever I've read his work in the New York Times or any other publication on the subject of the Supreme Court, I end up agreeing with whatever point he's trying to make, even if I didn't think I was going to agree when I first started reading the article. That's why I'm very grateful that he's agreed to return to the program. Barry McDonald, thanks so much for joining me on the other side of midnight. Oh, it's my pleasure, Frank. Let me begin with asking you about this decision on presidential immunity. This is something that has been very divisive in terms of where people view this case and how significant they view the implications of this case. Give me your view on the presidential immunity case. If people aren't familiar with it, basically the reader's digest version is they say the president does have immunity for official acts, but doesn't have it for non-official acts. They don't necessarily define what those official acts are. What was your take on the decision, Barry? Yeah, I thought it was a bit unnecessary to go as far as the majority did to lay out all these complicated rules about when the president is immune or when the president isn't immune. They actually created three categories that now lower courts are going to have to look at when this comes up. They said, "Well, if the president is exercising his core constitutional responsibility, then he's absolutely immune from any prosecution once he leaves office for violating criminal law." On the other hand, if he's not exercising core constitutional responsibilities, but just sort of performing the everyday job of president, then he's entitled to presumptive immunity unless the government can show that holding the president accountable wouldn't sort of impede the functioning of the executive branch. It's a very sort of loosey-goosey standard. Then, of course, in door three, you have private acts or unofficial acts where the president enjoys no immunity. That just makes sense. You can't just violate the law, even if you're the president, if you're just engaged in private conduct. The big question here is how are lower courts going to sort of sort through all of this and figure it out. A lot of people say process is substance. My fear is even though presidents can theoretically still be held accountable for violating criminal law when they're performing official acts, if it lies outside of this core area. Just sorting through, for lower courts, to sort all that, to sift through the arguments of the prosecution, the defense as to what's what, and a lot of these acts, first of all, you've got to decide, is it official or unofficial or private? That's the hard line to draw, then if it's official, is it core, is it non-core? Again, process is substance. I think it's going to be very difficult to hold former presidents accountable for violating criminal law for things they do while they were in office. I share the same concerns and I said so at the time of the decision. One of the things that several listeners pointed out with this decision is, well, look, there have not exactly been a lot of presidents that have been held criminally accountable. I think there's many violations of the law that you could point to on the part of presidents, Republican and Democrat, so I guess my question on a practical level is keeping in mind everything that you said, does this actually change anything or does this actually just codify what had been sort of this traditional gentleman's agreement among presidents of both parties, which is we're not going to prosecute our predecessors? Well, I wouldn't characterize that as a gentleman's agreement. I mean, the only real sort of analog to what's happening today would be Richard Nixon in my mind and he I think assumed that he could have been criminally prosecuted for the Watergate events because he accepted Gerald Ford's pardon for those events. So I think if there's a tradition in our country, it is that if you haven't done something that pain it, for example, like you haven't killed somebody, but all you've done is broken into the headquarters of the DNC, the Democratic National Committee. At that point, I think to bring the country back together, future presidents tend to pardon their predecessors to unify the country. But if it's something that's really serious, I don't think we do have a history or a tradition of how to deal with that. And I think that the sort of huge wall of immunity that the majority has seemingly erected here can be unwise. Yeah. Well, like I said, I certainly agree. I just had to bring it up because a lot of folks have been asking about it. Now, the other thing that has been pretty significant is the Supreme Court case on bribery where the court ruled six to three that essentially public officials can accept gratuity after they've done whatever official act even if it looks very much like a bribe. Now, there's a lot of people in New York and New Jersey that are pretty excited about this. New York's former Lieutenant Governor Brian Benjamin is celebrating the fact that this may mean he's not going to get retried for his corruption case, Bob Menendez in New Jersey. He's on trial now for a corruption case and some folks are saying that this Supreme Court ruling could mean if he's convicted, that case could get thrown out. What's your view on that case and what the ramifications might be for other public officials? Yeah, well, the court basically said that this federal statute, if you read the text of the statute, it's somewhat ambiguous. But I think a very fair reading of it is that if you with corrupt intent, accept the reward after the fact for having performed an official act, that is a form of corruption that can be prosecuted. And I think the dissent in that case spelled out that case very well. Now, it's not to say that conservatives in the majority were sort of out to lunch in the way they read the statute. But what I see is sort of a troubling trend over the last few terms of the court on the part of the conservative majority to read public corruption statutes very strictly, which have ended up making prosecutions of public officials in situations where it's pretty clear that they were acting corruptly, making it very difficult. And I think that this recent Snyder opinion is the one you're talking about is sort of right in that trend. And I just don't know why the conservatives are so concerned with reading these public corruption statutes extremely strictly. I mean, you know, I get it that you don't want somebody criminally accused and convicted unless they have pretty fair notice of what they do is right or wrong. But in my view, for example, in this case that you're talking about, the mayor, I believe it was Indiana, in Indiana, the facts were pretty clearly showing that he was being rewarded for having steered a lot of contracts to a private contractor. So, I mean, the lesson is if you're a public official now and you want to engage in a corrupt bargain with a developer or some sort of a special interest, just have them give you the gold bars or the campaign contribution or the cash afterward, right? I mean, yeah, that's the reading that they took of this particular statute. That's not to say that there couldn't be other federal corruption laws that might come into play. But this particular law has been denuded in terms of, you know, holding people responsible for accepting gratuities after the fact. And again, I think you could have gone either way on reading the statute here, why you sort of side with against public corruption. I just don't know. All right. You wrote a column which I absolutely loved about six years ago asking the question in the New York Times, should the Supreme Court matter so much? And there's no doubt wherever people fall on the political spectrum, left wing, right wing or somewhere in between, the Supreme Court matters more than ever. Every time there's a vacancy on the court, both sides get ready to fight a war. They raise both loads of money to support or oppose a potential nominee and a lot of rank and file Americans that are concerned about issues like gun laws, abortion, whatever, they make their choice for president based on the Supreme Court. Why did you raise that question, should the Supreme Court matter so much? And can you answer that question for us? Where do you come down on the question of whether the Supreme Court should matter? Where I come down is it shouldn't matter. At least if you took sort of the founders view of the Supreme Court's role in our society. The founders gave the Supreme Court independent lifetime tenure in order to sort of insulate them from political consideration so that they could impartially and fairly interpret and apply the law. And so to act as that umpire calling balls and strikes that Supreme Court justices cynically talk about in their confirmation hearings, but don't adhere to when it gets to once they get on the court. And so the founders thought that judges in a democracy who are appointed and serve for lifetime shouldn't really have any say in policy making in a democracy. That should be the job of the people's representatives. That should be the job of the Congress. That should be the job of the president. But in terms of judges who are unaccountable as people that enjoy lifetime tenure, they need to stay in their lane and narrowly decide legal disputes. Well, that whole scheme has gone topsy-turvy in our modern era where the Supreme Court regularly decides massive questions of public policy, depending upon who has five votes at the time on the court, and they are not accountable to the people for these decisions that should be left with the people's representatives. And so my answer is the Supreme Court, if it were operating the way that the founders envisioned, who sits on the court wouldn't matter so much, as long as they were sort of impartially applying law to resolve a case as it comes before them. But today they acted sort of these big policy makers, they enjoyed sort of wielding that power, and it's just, you know, they claimed, at least today, the conservatives claimed to be originalist, but if they really sort of took a historical view or interpretation of the Supreme Court's role in our constitutional system, it would look a lot different than the way they are acting these days. 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And I think it's the -- I'm glad you mentioned the confirmation hearings, because I think it's the most buffoonish act of nonsense in the world, where you have these incredibly brilliant people at the nominees who have opinions on everything, who've spent the last 40 years of their life forming those opinions, going before Congress, and then pretending they don't have opinions on anything. It's a ridiculous process. So let me ask you then, and if people who just recently were talking with Barry McDonald, law professor at Pepperdine University, and an expert in constitutional law, how would we reform the Supreme Court to get it back to the role that a lot of the founders thought that it would play in American life? Well, there are a million sort of suggestions that have been written about out there, how we can reform the Supreme Court, so that it sort of goes back to its original lane in our constitutional system. So there are a lot of sort of different ways you could approach this. I think the easiest start would be to just increase the size of the court from nine justices to say 15, 18. You pick a number. I think the more justices you get on the court, the better decision-making occurs and the less chance of sort of forming the voting blocks along partisan or ideological line, it reduces. So that's just a minor sort of fix, but it's the easiest one. I think we need to put term limits on justices. There's a big debate about whether that would require a constitutional amendment or not. My own view is that the court has interpreted other provisions of the Constitution very broadly, and in the same way, the provisions that govern the tenure of Supreme Court justices could be interpreted so that you could place term limits on the Supreme Court without a constitutional amendment. Another good housekeeping rule that I think Congress has the constitutional authority to impose, if it has a political will to do it, is to say that the court will not hold a law unconstitutional unless you get a supermajority vote of the court to do that. So, you know, again, there are just plenty of sort of fixes, adjustments to the court that have been proposed. The problem is that all of them require a congressional action. That's not going to happen any time soon because when the court favors the Republicans, they are opposed to any sort of court reform. And court decision-making seems to favor the Democrats, now they're opposed to any sort of reform efforts. And so we just sort of trudge along in this very unsatisfying position. So, my own view is that all these sort of structural fixes may help solve the problem, but the real problem is our judicial culture in America. So, I had the Chief Justice of the Supreme Court of Canada visiting my class years ago, and I said, do you have the same problem on the Canadian Supreme Court that we do in terms of partisan voting bloc? And she said, no, you know, in Canada, I mean, you know, she said somewhat, but it's really not a big issue because judges are just expected to be impartial and nonpartisan, and if you act in a way contrary to that, you are frowned on, you are disapproved of. In our country, you know, you have these audiences that are really sort of voting, applauding for their justice to go up in a extreme right or extreme left position. And it's just, it's the judicial culture, and so I think that the one fix that I think we need a president who's going to come along, flag this problem and say, okay, I'm a Democrat, I'm a Republican, yes, but I'm going to start appointing justices not based on their ideological views, not based on their party affiliation, but based on a consensus of experts that they are sort of a great legal mind, that they have a great judicial temperament, that they are going to approach cases in a fair-minded and impartial way, I think it's going to take the president who nominates these people to sort of start to change the way we think about judges in our society. That would be delightful, and to me it makes no difference whether it's a Democrat or a Republican doing that, because when the conservatives used to rail against left-wing judicial activism, whether it was on abortion or gay rights or anything like that, I thought they were exactly right, but now that it's the conservatives that are in the majority, and they're exercising their own form of judicial activism on issue after issue, I find it equally objectionable because I as a voter want to be electing the people that make those decisions, I'd love to see some sort of judicial culture change, and unfortunately I'm not optimistic about it any time soon, but maybe the frustration that everyone seems to be having with many different aspects of the court will change that. All right, let me ask you about the latest news. Sheldon Whitehouse and Ron Wyden have asked the Attorney General, Merrick Garland, to appoint a special counsel to investigate potential ethical or legal violations by Justice Thomas. What's your read on what Justice Thomas has engaged in? Does this cross the line of being unethical? Does it cross the line? They seem to certainly think there's a chance of being illegal, or is this just one partisan political branch of government going after another partisan political branch of government? Well, I mean, if you read pro-publica's reporting, that part of the problem is we just have sort of media reports, but we don't have a complete and thorough factual investigation, but if the allegations are correct, I think that there's a huge problem. I mean, the allegations are that essentially that Justice Thomas accepted all these perks and gratuities and benefits from billionaire, conservative donors, and didn't report them and only reported them after it became public, if this had happened. And I don't think it takes a rocket scientist to say that there's a problem there, especially when the federal law and judicial oaths require justices to decide cases in an impartial way. And even if their appearance of them being impartial is questioned. Federal law requires them to recuse from a particular case. And so I just think we've really lost something in the federal judiciary, and particularly at the level of the Supreme Court, in terms of how a judge is expected to conduct themselves in office. By the way, just so people know where you're coming from, and it makes no difference to me regardless. When I read your writing, I can't tell if you're someone that would be considered conservative or liberal, but some of the audience may take some of what you say differently depending on whatever perceived political biases that you have. Do you have any sort of political bent that you're open about? I'm a registered independent. I don't have a liberal or conservative leaning. I tell my constitutional law classes all the time that that's not who I am. My job is to teach students how to think about these particular issues. So when the liberals used to control the Supreme Court, and I thought that they were doing something that was legitimate, I would call them out. I'm doing the same thing now with the conservatives, now that they're controlling the court. So really it's just who is steering the court, and are they steering it in the proper way? Makes sense. Sorry, sir, I'll ask you about Congresswoman Alexandria Ocasio-Cortez filing articles of impeachment against justices, Alito, Thomas, and claiming that there is just unchecked corruption with the two of them. What's your take on this? This has got to be just politics, right? You don't see any substantive merit to what she's saying. Well, as far as Justice Alito, the only thing I'm aware of is the flag-flying incident and him making some conservative remarks to reporters that were perhaps inappropriate. So I don't know what any basis for that is in terms of articles of impeachment. Justice Thomas, again, we haven't had a thorough investigation of what was going on behind the scenes with a lot of these billionaire conservative donors and whether any acts could be said to violate federal or state law. We just don't know, but if indeed an investigation turns out that even a justice committed a serious crime, I think that they should be impeachable for that. But I'm not saying that Justice Thomas did that. I'm just saying that because of all the confidentiality that surrounds the court and what justices do and they're reporting that we just don't know. All we get are sort of tidbits here and there of what might have happened. As far as the precedent for impeachment of a Supreme Court Justice, am I correct in thinking that the only Supreme Court Justice that was impeached was Samuel Chase back in 1805 and that he was acquitted in the Senate? Has there been anybody else that was ever impeached? I would have to check, but I know that Justice Abe Bortas, there was some talk about it in connection with some alleged corruption that he had engaged in in the late 1960s, but he resigned before that went anywhere. Justice Chase, back in the early 1800s, that was a situation where on a lower court, he had engaged in a lot of partisan diatribes against one of the other parties and they also, I think I'm thinking about the right Justice, but out of that situation where they failed to impeach him, arose the tradition or custom that you can't impeach a Supreme Court Justice just because of the way they decide cases, whether you think that they're conservative, liberal, et cetera. I think that that's a sound sort of custom in tradition. The impeachment mechanism has its most common application to federal judges on the district court level who have engaged in illegal conduct. I don't think that if it's proven that a Supreme Court Justice has engaged in illegal conduct that they should be treated any differently from a federal district judge. Sure, I think in the case of Congresswoman Ocasio-Cortez, and I agree that Justice Thomas may have crossed an ethical line or two here, but I think to bring articles of impeachment against Alito and Thomas, to me, it just looks blatantly political. Professor Barry McDonald, I always enjoy our conversations. Thank you for taking the time. I hope we can talk again soon. Yeah. And I want to just say that I agree with you in terms of Justice Thomas, it is premature at this point. It seems very political. We just need to do an investigation outside of the politics and get to what really happened. Sure. Barry McDonald, Pepperdine University. If you want to comment on any portion of our conversation, please feel free to do so. You can give me a call at 646-720-0635. That is 646-720-0635. This is The Other Side of Midnight, I'm Frank Moreno, Straight Ahead.
