Whats coming up in the nations highest court. Two attorneys who argued before the court and alice who covered the justices. They talk about how chief Justice John Roberts might handle the impeachment trial in the senate. Welcome today. We are going to look ahead and maybe back but probably i had. On the correspondent for National Public radio. If you dont know who these people are in detail, looket it up. [laughter] weve had 25 years and we are all big talkers. This is the former technically, where the acting general but he acted for a long time. Will do. Crawford, chief Legal Correspondent for cbs news. She knows politics as well and paul, who was the general of the u. S. And before that, deputy so he was there a long time. They went a lot and lose occasionally but they are both very good advocates. So i will start by talking about news. The two cases for the Supreme Court pending, waiting for the justices to say what are we going to do with them, one is from a d. C. Circuit and they will one Congress Asked for information from President Trumps Accounting Firm related to whether or not they want to pass legislation that would require disclosure of the president s taxes and the circuit said yes, you have the right to do that because of elegislation. Then theres a second from new york, a state case where actually, a city case. District attorney fromth manhatn has issued a grand jury for the same kinds of material but f ths time its related to hush money payments to Stormy Daniels and perhaps one other person, im not sure. Th they upheld that subpoena for criminal investigation. They are both up at the Supreme Court and the Trump Lawyers asked the court to stop those subpoenas from being forced. So the question now is, will they stay, preventing those things from going into effect . And, with a grant, or they hear the case or cases . Let me go straight down the line here. I will ask each of you what you think we should do. Im glad i got in through the back door today. Ar i think we are taking the request from the president saying here my case, they generally hear the case. I think this is that they wouldnt take the case. They are probably pretty happy with the careful reasoning by the two lower courts opinions. The trump briefs are pretty extreme in their views so i think it might be better for the court to stay out altogether. I would say i kind of agree with neil. The Justice Kavanaugh was on the court, its extremely quiet. The justices had high profile controversial issues whether the hours by design to take the court out of the conversation, the justices say its not. This time is very different. This term, they are taking up almost every issue. We end tv and what we cover, the ones that make the headlines will be about gun rights, they are going to be about abortion and social issues. Immigration issues. They are all on the basis here. They are a concern for some of the justices this term already including the chief justice. The court is not part of the conversation going into 2020. Theres a current by some of the justices that Court Packing is very much on then minds of a lot of different president ial contenders. There is an effort to try to kind of lesson this court being a part of the conversation. Resolve cases where they can, no big defenses opinions on some of these cases. So be that as it may, this would be one where they could take it. I agree withh neil on that. You cant tell if its too soon, too of the court and we want to predict them based on arguments but we cant do that anymore. Id like to be with you i forgot to say that, too. [laughter] im really happy to be here. Ac in 1988 graduate, ive been a fan of the organization. I took the long way around but its a delight to be here. It will make it more interesting, i think theres a decent chance the court will in fact take the circuit case. It arises in a purely federal policy. Thats the most once they are interested in and carrying the Second Circuit case along with it. They resolved the federal case. I say that mostly because i think theres something its something to the extent that there is protection in the divisional capacity. Those accused historically its a circuit split. If you go back to the famous quinton b jones case, the court took that case involving clintons immunity from a private title vii that arose out of an incident out of the hotel. They took that case up. I think a lot of people, because the court took it, excited about the prospect that they might be creatinged immunity and in the end, they decided 920 against the president. I think this is context where the court almost added different to the institution of the presidency might take this case but i think if they did, it would be mistake to view the fact that they took the case as a precursor to them ruling in favor President Trump and i think in that respect, the clinton case may be a bit of a verdict or as well. One thing i say i might push back, over all justices concern to me, the institution of the Supreme Court and unlike in the 1990s where you had a regular president who didnt go and attack every time a decision had come out, here you have a president whos very comfortable doing exactly that, including justice. So i would think maybe the better case would be to stick together and not invite that backlash against the president. I could make the. Counterargument since in the normal course, the court might grant in a case like this the best way to try to reassert normalcy is to take the case like you would otherwise do and rule the way you might otherwise rule. I think if you look at the. Reporter president s, the present argument would be the right way to describe it. If you did all that in the end, what ultimately the message you want to send which is, we will behave the way we would handle this kind of issue at anyny othr time in history. Well see. In order to do that, this is all the context of the Election Year which makes it even more dicey. By tradition, if i can, we would like to avoid doing that. Im not sure that still exists but certainly they postponed in part because there wasnt an election coming up. The question is, what about this term . There doing that, im not sure, im not one of these people who follows every day thats left, that it can dead end this term. A proposed schedule that would have it. A term when theyve already got a number of these extremely controversial social issues. If there. If they are going to do it, they say lets hear it. The nixon case went on very fast scheduled with the First District court, Supreme Court heard the case two months later in 15 days after that. Start to finish under three months. So other than that, was it lincoln . Let me start with you, paul. You have at least two or maybe more of the cases, one is the gun rights case. They will argue the monday after thanksgiving but theres also i the very unsexy but incredibly important place involving the Consumer Financial protectionpo board. I dont know if i got that right. The board that was created under president obama, its unlike other agencies that has only one head. O and Justice Kavanaugh as a lower court judge, he thought that was unconstitutional. So hes in a very unusual position because the Trump Administration has abandoned the structure of the board. Theres nobody to defendant so the Supreme Court appoints somebody to defendant. Enter, paul. So could you talk about why this is an important case and how different it is because i dont believe youve ever been before the Supreme Court without applying. I feel very empowered because this happens from time to time usually in lower cases and where the government decides they cant defend the judge to the t courtroom to appoint a lawyer to defend the judge. Thats essentially what happened here but its a much more high profile case so often there are more typical case. My moment had passed to give for Something Like this. It is empowering because i literally have no clients. Our thinking about your have to open up a new client matter your have to run a conflict check on the client and the answer is no. I dont have a client. Its like i was thinking about the process of putting my brief together and in every other case ive had, i have to build in like a week to let the client review the brief. Its this brief 30 seconds before so its very empowering. Let me say why i think this is an important case. Its an important case because the specific question in the case is whether or not the removal provision for the head of the cfpb which is a cause removal provision is constitutional. Thats one of these things its like, the issue in this case is like the thread ons the sweater, if you start tugging on it and tugged on it hard enough, potentially the whole sweater comes undone and the sweater here really is the entirety of the independent agencies and so on, the whole alphabet soup of tencies that all have productions and they typically alluded to also have multi member bodies so its all six members that have protection in the like but there are a lot of institutions in this town that are very familiar to the operation of government that have these protections, the ones that talked about its a great place to have discussions that recan, if i knew exactly where e are in the board building, i could point. It has this kind of protection in the Federal Reserve is a great example of why congress imposes these kind of restrictions because there are tertain issues in the world that we deal with at the National Level where it nice to have a degree of insulation for a particular duty or responsibility where its not going to just change with weber is present. For a fairly longo time now, Monetary Policy is being something i shouldnt just change in a way with each administration that would be more consistent with having every member at the reserve board to serve as president. The court obviously decides this case in a way that says this particular provision is unconstitutional but nothing else is really called into question that wouldnt be that easy, i dont think to decide. If anything, if the ultimate question is how much control does the president need to have over an agency, it seems to me a little weirdge because the distinctions say its okay to have six people that serve with protection rather than one because i think if the president were to remove somebody, it would easier to do it to one person than to recompose the whole body so if the constitutional value is somehow you cant insulate these agencies too much from the executive branch, it seems like if anything it would cut the other way. Its a case worth watching because its not just about thea agency, its really about our government and whether you can even have these agencies that are more insulated from the president because i think some of the justices think that insulation is itself problematic. S you argued last year that they adopted your provision plaster, looking forward, theres a huge what we are seeing undeniably, is a shift on the court. They accelerated in the 50s and 60s when the value of separation between church and state but that was the lone star that everybody was aiming for. Today its much more an accommodation between church and state and if you talk lawyer talk, you talk separation of church and state is not establishing a religion and try to prevent anything that would help religion and on the other side, now much more accentuated is the free exercise of dligion. I do think our society is moving in the direction of much more accommodating to religion. It set up a wall between a very strong robust wall between church and state, that led to a bunch of the lower courts over the last year that i thought was pretty indispensable. They ordered the tearing down of the piece across which is a 32 cross elected in commemorating the soldiers fallen in world war one. I thought that was ridiculous. We asked them to hear the case and the Supreme Court agreed the cross should stay. You can have religious symbols and it can acquire other meanings to commemorate these fallen soldiers. I think the court is now moving instead of those five to four decisions into something that is closer to seven in general. I think they have more accommodating, specifically. Outfit very quickly, its the latest in this long line of cases involving essentially school factors and a broad rubric for these cases. This one involves a structured, its more about tax credit. I dont think that matters at the end of the day. The question is essentially, when a state sets up a program to allow this, are they actually by the federal constitution to include religious schools in the program or can i limit it by the terms of their own state constitution to just private schools and essentially exclude the religious schools or does it constitute discrimination on the basis of religion . This illustrates the fact that this is a. How the court has moved overtime because with the cases, there were slowercaseletter that said you cant have a Voucher Program at all because even the indirect provision of state aid through the decisions of parents, its still too much of a link between religion and state. The Supreme Court in the case about 15 years ago overruled that and said if they want to can include religious schools within their voucherit program d not violate the federal clause. Now weve moved all the way to asking the question if they will have a Voucher Program in all, do they have to include religious schools to avoid recrimination on the basis of religion based in the free exercise clausesc works as has moved in ae much more accommodationist direction and at the same time, the activity has moved from the establishment clause prohibits favoring religion two, does the free exercise clause essentially mandate that you not discriminate . We discussed not only immigration cases, weve got a portion and gun rights, youve heard about the religionn case. Im lgbtq rights. Weve got a lot of stuff here. The court has tried for so long to keep the cap on the bottle and now its just overflowing. I think thats true in some cases because as i said last term, its a very quiet Supreme Court and justice, was on. If you look back, weve had blockbuster terms before where there were five or six incredibly controversial issues. That is i unusual, i think whats interesting about this year in the Supreme Court and this court in particular is that its still a court in transition. The Supreme Court obviously we have a relatively new justice. There is great hope and conservatives that Justice Kavanaugh will bill a more reliable conservative vote then Justice Kennedy was. Theres great hope that course which will be a conservative voice. There is great fear also. Trump might get anothern nomination which by the way, Justice Ginsburg is back at wo work. She is as active as ever during oral arguments. To me, she looks like but other than that, her voice is strong. She seems completely i mean, her. She had three or four weeks of every day radiation this summer and then 11 Public Events in septembe. When i heard 11, most of them were multiple event so she goes summer. I did one with her where i interviewed her in little rock, arkansas, it was sold out with 15000 people. You see this little person in the middle and i warned them that they had to migrate really close. You could hear a pin drop. It was an amazing phenomenon. I cant quite explain. Ive known her for a very long time but i cant explain this except to say that i think people, baby young women in particular want to have a living hero. That has been so relatively ra rare, its been a long time since Justice Oconnor was on the court. Thats as close as i can come to the explanation. I dont think anyone will be leaving the court, certainly Justice Ginsburg seems to be in good health but its the court that still waiting to emerge. Its almost like if you look at the court, i try your member the polaroid texture, kids these days dont know about that but its a little blurry and takes a while for the picture to emerge, what kind of justice is Justice Kavanaugh going to be . Initially, the first, his first year he was chief justice, that changed quite a bit. He became one of the most liberal justices. I dont think that will happen with these two justices but i think its a mistake now when people try to predict what the Supreme Court will do. Its too soon. We make it more g but argument s changed with Justice Kennedy. It seems to be a time when justices would ask questions of these people like these twowo gs to try to get Justice Kennedys vote. You could really tell where the justices were going. The questions were important because they are trying to sway justice can be. That has changed now. Without Justice Kennedy, the composition argument, its different. And you get to talk in the beginning now. I think the other members of the court understood they were interrupting people so much, the council couldnt have a moment to make aiv comprehensive argumt so now they have two minutes at the beginning in which counsel is allowed to speak on interrupted. There have been a couple of interruptions because they forgotte but two minutes is actually a lot longer than you think. Especially when youre used to bringing in the court when literally i dont know how many of you have been to an argument but when you