Trump Scraps Bedrock of Climate Rules

12:11Michael Gerrard:Yes, EPA is shrinking. So is the environmental unit in the Department of Justice, which helps enforce the laws. So the Trump administration has worked very hard to diminish the effectiveness and size and authority of EPA.

12:30June Grasso:Thanks for joining me today. That's Professor Michael Girard of Columbia Law School. He's the director of the Sabin Center for Climate Change long. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the corner coffee shop. Apply for Apple Card in the Wallet app to see your credit limit offer in minutes. Subject to credit approval, Apple Card issued by Goldman Sachs Bank USA, Salt Lake City branch.

13:04June Grasso:Terms and more at AppleCard.com. As markets move and headlines break, what matters most is context. A Bloomberg subscription gives you unmatched reporting, sharp analysis, and powerful tools that help you connect the dots. Visit Bloomberg.com slash podcast offer to learn more. Suing people is not new for President Trump. Long before he became president, he used litigation as a tool, filing at least 1 ,600 civil lawsuits against individuals and businesses. And since taking office for the second time, Trump has filed suits seeking billions of dollars against several news organizations, including the New York Times and the Wall Street Journal, JPMorgan Chase and its CEO Jamie Dimon, the Pulitzer Board, and even the IRS and the Treasury.

13:57June Grasso:Now, when Trump was sued by two co-founders of his social media company, he asked a Delaware court to either dismiss the case or delay it by four years, saying that having to defend the lawsuits would be a distraction from his presidential duties. Even though turnabout is supposedly fair play, that argument hasn't worked for the defendants being sued by Trump. So far, at least, no court has delayed one of Trump's lawsuits because it would distract from his presidential duties. Joining me is constitutional law expert David Super, a professor at Georgetown Law. Have we had a president before that's filed lawsuits?

14:37June Grasso:I mean, in so many different areas. It's against media companies. It's against banks. It's against the IRS. It's a broad range.

14:47David Super:It certainly is. And I am not aware of any president that has found time to litigate while in office. It's a rather big job. And presidents also, I think, have been sensitive that litigating while they are president could send the wrong signals and interfere with their ability to lead the whole country. President Trump has not embraced the idea of leading the whole country. So doing more partisan litigation has seemed to fit better with his approach.

15:26June Grasso:The last case that I remember was the Clinton case. What kind of protection, if any, does the president have against civil suits while in office?

15:35David Super:The president has very little protection against civil suits. The Supreme Court in Clinton v. Jones opined that the president probably could do at least the basics of defending a case while in office and allowed that case to proceed. That case started the series of events that led to President Clinton's impeachment and certainly caused him enormous political damage. whether Ms. Jones was seeking to damage him politically or not is not clear, but that others eagerly piled on were. So in principle, the president is not entitled to sweeping immunity, but President Trump has claimed that defending lawsuits would be unduly burdensome to him now that he's president.

16:27David Super:It's not clear, though, how it's any less burdensome to bring a lawsuit than to defend one. And he seems to be making special rules just for himself.

16:39June Grasso:I don't know that we've reached the point in any of these lawsuits where Trump has said, no, I can't do that deposition because I'm president and I'm too busy. But if that happens, what can a judge do?

16:52David Super:The judge can dismiss the lawsuit, although at this point, the defendants will already have had to spend an enormous amount of money. The lawsuit may already have served its purpose of intimidation. Some of these lawsuits have no chance of winning anyway. He's suing news organizations for news stories they don't like. He's suing the Des Moines Register for a poll and a projection that he doesn't like. I don't even know what cause of action that is. So these cases are not intended to win. They're intended to intimidate. So filing them, forcing the defendants to spend resources on them, rallying his base against the defendants, and then eventually dismissing them when he doesn't want to be deposed seems likely here.

17:43David Super:The courts have authority to impose costs on him, but that's probably not that much of a deterrent.

17:50June Grasso:I mean, there's also the fact that when you're sued by the president, there are different kinds of pressures. So you had ViacomCBS settling a lawsuit, and of course they had a pending merger to be approved.

18:05David Super:Yes, and this is in the context of the president's unified executive theory. So in prior administrations, this didn't happen, but if it had, you could imagine the president saying, well, the people making the decision on your merger are independent from me, so they won't be influenced. But this administration has made the point that everybody in the executive branch must be completely tuned in with the president's preference. So when he sues or threatens to sue a media organization that wants permission for a merger or for licenses of some kind, he is effectively telling them that they need to give him something in exchange for those licenses.

18:50David Super:It is a way of supposedly legitimating or legalizing bribery.

18:56June Grasso:Why shouldn't some of these cases be put on hold until Trump's term is over? None of the judges have allowed any of these cases to be suspended during his presidency.

19:09David Super:Well, it is true for both the president and people with claims against the president that statutes and limitations run. So there's an argument that the president and private parties should be allowed to file suits, but there should be then a freeze on the case until after the president leaves office. Having the cases go forward selectively, having the president able to extract material and resources from defendants but not provide the same himself is manifestly unfair. And civil litigation, with rare exception, is designed to treat both parties equally until we have a resolution of the case.

19:54June Grasso:So you mentioned he's suing the IRS. He and his two eldest sons filed a lawsuit against the IRS and the Treasury seeking at least$10 billion in damages for the unauthorized disclosure of their confidential tax returns. And in an amicus brief challenging the suit, a group of former high-ranking government officials said it contains legal flaws and risks becoming conclusive litigation as the president is suing the government he presides over. This suit hit me as the most inappropriate. Is the IRS going to fight the president? No.

20:32David Super:Again, the unified executive theory says that the president absolutely controls the defense against the president's own case. There's no way this case can be legitimately litigated now, even if someone wanted to. And if it is litigated to judgment, a future administration could quite properly demand that the case be reopened and then any damage award be reversed and returned because there will not be any true adversity here. Just as when a prosecution is filed by someone who is controlled by the defendant and they throw the case and lose, or when the jury was tampered with by the defendant, double jeopardy does not attach because there is never any serious risk of losing.

21:22David Super:In the same way here, the president's judgment would not be entitled to any weight because he controls the defense and never has any possibility of losing these cases.

21:36June Grasso:The other thing in all these cases, particularly the IRS case, is that how does he prove damages when his net worth has increased since he became president?

21:46David Super:These cases are absurd on the merits. You don't need to know much about them to know that they are ridiculous. There's also serious questions about how he could show fault. The president, again, claims he runs the entire executive branch. Who was president when these leaks occurred? Why, he was. So perhaps he ought to sue literally himself for mismanaging the federal government during his first term. He probably can afford to pay himself whatever damages are appropriate here. The case is completely ridiculous, and one might be tempted to look for an exception if the case was completely compelling.

22:36David Super:The claim that Paula Jones filed against Bill Clinton on its face was a serious claim, a plausible claim, and you could understand why she would need to file it before the statute of limitations expired. If someone were to do something conventionally harmful to the president to steal his car or something like that, then you could imagine why he might need to go to court. But these cases are obviously absurd.

23:07June Grasso:I don't think I've ever used the word unseemly, but I was trying to think of of how unseemly it is for the president of the United States to be suing so often for billions of dollars. It's sort of hard to comprehend why, except that he's trying to make a political point with these. I mean, suing, as you said, the Des Moines Register for a poll that didn't turn out to be right. If every politician sued over a poll that didn't turn out to be right, the courts would be clogged.

23:35David Super:And both Hillary Clinton and Kamala Harris would be very, very rich. to say nothing of Thomas Dewey. But the problem people have in trying to understand this is they're looking for American parallels, and that's wrong. They should look for international parallels because authoritarian leaders routinely use litigation to silence the press. You see this in numerous countries around the world where media outlets simply cease to function because they know they'll be sued by the administration and they will lose and they will be bankrupted. So they either never write about the administration or they move out of the country or they fold.

24:16David Super:And this country is following some very unfortunate precedents overseas. Just one more thing. The Constitution says the president shall draw a salary at regular intervals and shall not receive any further emoluments from the states or the United States. and the term emoluments has been hotly debated, but broadly speaking, they're saying the president should work for a salary and a salary only. This is effectively a way of getting more money into the president's hand, which the framers very much did not want to happen. They wanted the president focused on the national good, and certainly when he sues a Justice Department that he controls, he's increasing his pay.

25:02David Super:But when he sues entities that need his executive branch to give them favors, he's also increasing his pay. And that's something the framers were acutely aware of and prohibited.

25:17June Grasso:I've been talking to constitutional law professor David Super of Georgetown Law. So the Solicitor General's office during this second Trump term is filing unsolicited briefs. In other words, in the process of the Supreme Court deciding whether or not to take a case or not, they're filing these briefs. They're not really on areas that the United States or federal government is implicated in. They're on like policy matters, like they're doing it more than any other administration. What are they up to?

25:52David Super:The Solicitor General's office regards the Supreme Court as profoundly sympathetic to their mission, and they're trying to get the most possible out of it. This is not something that happened in the 1960s when the Warren Court was relatively liberal, and we had a liberal administration. It was understood that the court handled what it wanted to handle, And there are many cases that were presented to the Warren court that it didn't take, that history could be very different if it had taken. This administration doesn't want to do the reverse. It has a majority that has proven very cohesive and quite reliable for them on all but a very small handful of issues and is trying to move the ideological framework of law in its direction.

26:46June Grasso:I read some people saying, well, the administration might be using up its capital with the court, but I don't know if that's possible with this administration and this court with the six conservatives.

26:58David Super:Yeah, I think what they're doing here is trying to get cases pulled out of the pile. The Supreme Court gets an enormous number of cases, and there certainly are four votes out of the six conservatives to grant review on any number of things that will advance the conservative agenda. The Solicitor General, I think, is trying to weigh in and identify cases that it wants special attention to, and it's been fairly successful. If it was using up its capital with the Supreme Court, you would expect the court to turn down some of these cases as a caution to the administration to stay in its lane. But so far, we've seen no indication that the court is uncomfortable at all.

27:47June Grasso:The Supreme Court has scheduled Friday, February 20th, as its next opinion day amid this global wait for a ruling that could invalidate most of President Trump's signature tariffs. The tariff clash is one of 12 cases that were argued in October or November and haven't yet been decided. Why do you think it's taking the justices so long to come to a decision in this case?

28:17David Super:The oral argument went terribly for the administration. I mean, that's very clear. So I don't think there are five votes to give them a win. And the next best thing for them would be a delay. And the administration has argued, both in public and to some extent to the court, that they need this power to extract concessions from other countries. And there may well be justices who believe in the end they can't sustain this, but the longer they give the administration this authority, the more it can dissolve the tariffs as part of deals rather than as a judgment.

28:58June Grasso:But it heard arguments November 5th on an expedited basis, setting a schedule that suggested an ultra-fast ruling might be in the offing. Obviously, it wasn't. But all we can do is wait and see. Thanks so much, David. That's Professor David Super of Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.