Defamation Cases and Future Court Rulings

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Good Bad billionaire Listen wherever you get your BBC podcasts Hello, it's Justin and you're about to he here. Americast. We are delighted to have you with us and if you enjoy what you he, please do consider subscribing to the podcast. That way you'll never miss an episode. Now on with today We've just had some very big news out of the United States Supreme Court, some very important decisions that they've made today, including saying that the president does have the power to fire the heads of so called independent agencies. That's going to have enormous implications Some of the decisions have gone Donald Trump's way, someome of them haven't. and there's a furious response from him on social media about that Taken in the round, has the Supreme Court now expanded the powers of the presidency, given more executive authority to the White House? And what does this tell us about whether the Supreme Court always does what Donald Trump wants or when they're prepared to defy him Welcome to Americast . ast Americaast from BBC News. You hear that? I think when I hear that sound, it reminds me of money. We didn't start this war, but under President Trump, we are finishing it. This is a big cover up and this administration is engaged in it. This guy has Trump Rrangement syndrome. I have For you, turn the volume up. Hello, it's Sarah in the BBC's Washington Bureau. And it's Anthony here at my home just across the river from you, Sarah in Arlington, Virginia. It's been another one of those interesting mornings, hasn't it, Anthony, where we've been waiting for rulings from the Supreme Court that could be really very newsworthy, but because we've got no idea what cases they're going to rule on on which days we all have to sit glued to their website to see what's happening. And just to explain to any of our Americasters who are wondering how we can all be experts in Supreme Court rulings, the answer is we're not. We have one expert, and he's called Anthony Zurucker. and he sits on a zoom call that the whole of our staff are then glued to. and every time the Supreme Court releases one of its decisions on its website He explains to us what it means and why that case is so significant And you had quite a busy morning today, andy, didn't you? several big cases. What's the takeaway? Good day for Donald Trump? bad day for Donald Trump I think it's a mixed day for Donald Trump. It was interesting. There were four cases decided today. and in three of those cases, the three liberal justices were actually in the majority. So kind of a rare day for contentious Supreme Court cases where instead of the traditional kind of six to three conservative liberal divide that we've seen in the court recently on high profile cases, stud of that presenting itself We saw some interesting coalitions forming on some of these other cases. I mean, the one that did break down six to three, the one that was not surprising, all the conservatives stuck together and was the one that Donald Trump will be happiest about. And that is the case of an FTC, a Democratic FTC commissioner who had been fired for Trump purely because he disagreed with her politics. And the majority, the conservative majority in that opinion said, yeah, the president has ro sweeping powers to be able to appoint whoever he wants to these regulatory commissions like the Federal Trade Commission, the Federal Election Commission, a Labor Bard, a nuclear Eergy regulating commommission. And he doesn't have to provide any kind of grounds for why he's pulling these people out. So it reversed a precedent that goes back to Franklin Roosevelt in the nineteen thirties and essentially it's going to make U S. presidents going forward much more powerful when it comes to who does the regulating these in these commissions across the board How significant is it if the president can fire members of these independent commissions? Because up until today, we thought they were rather protected from presidential influence, didn't we? that The whole point was that they were, as the name says, independent. Right, It's something that Congress had set up more than a hundred years ago where you have these independent commissions that are supposed to be a little bit immune from political curnts. And in fact, like the FTC, there's a certain number of appointees on the board that are Democratic, a certain number that are conservative. And then whoever is the president, Republican or Democrat, they have the deciding appointes. so they'll tilt towards the party in power, but also are a little more Little more built in to be divided, built in to be independent. and the Supreme Court just tore all that down today So we could expect presidents to use this power quite sweepingly, I imagine, and as whoever comes in in twenty twenty nine, as you say, could just fire every member of every independent commission who doesn't agree with them ideologically and put their own people in and basically have these commissions be an extra arm of policy like they were some extra kind of cabinet department rather than regulatory, independent way in which they've been operating until now. And I'm thinking of the Federal Communications Commission, one of these, where the head of it Brendon Carr is very favorable to Donald Trump and has been putting quite a lot of pressure on TV networks over anti Trump content, essentially in the last few months, threatening them with their licenses if they broadcast things the president doesn't like. And I guess that's the sort of thing we're talking about. You might see in other areas of life put basically presidential friendly commissioners onto all of these bodies Yeah, already we see between different presidencies of different parties, big swings back and forth. We certainly saw it. From the first Trump term to Biden and then back from Biden to the second Trump term, you see policies being implemented and then tore down very quickly. This is only going to accelerate that and any kind of insulation in some of these regulatory areas that had been there before, that insulation has been stripped away. And so we are going to see even more even more power vested in the presidency and even more ability to set policy very quickly when a new president takes office from a different political party Slightly different ruling, though, Anthony wasn't it about Lisa Cook, who was a governor of the Federal Reserve And Donald Trump tried to fire her because basically he was trying to pressure the Federal Reserve to lower interest rates And he knew he couldn't get rid of the governor But he did try to fire Lisa Cook, who was a member of the board of governors, hoping that that would sway the decision making and try and get them to lower interest rates. So it was a kind of nakedly political thing that he didn't make many bones about. But the reason he gave for firing her was allegations of mortgage fraud which had been dug up in the housing department and he said that this showed she had done something wrong that meant could be fired for The Supreme Court did not agree with him, but does that, Anthony mean that that's because they are protecting governors of the Federal Reserve in a different way than they are the members of these other independent commissions? In a sense, yes. you may be asking, all right, well, didn't we just talk about how presidents now have the ability to point anyone to anything? All of these independent commissions are really not that independent. So what makes the Fed different? And the Supreme Court essentially said, the Fed is different because the Fed is different and it's more important, the statute that creates it is And while you can fire a member of the FTC, the Federal Trade Commission for no reason at all, aside from the fact that you have a policy disagreement, the court said, a different majority in this court said, when it comes to the Fed, you have to have grounds. You have to have cause to remove a governor from their position, the way Donald Trump tried remove Lisa Cook And looking at the details of this case, they said that what Trump tried to do in removing Lisa Cook, these allegations unfounded so far, allegations of mortgage fraud were not grounds to do it. that there needs to be more process. Lisa Cook needs to have the ability to challenge that dismissal. She needs to be presented with evidence. there needs to be some sort of a legal recourse for her before Donald Trump can remove her. So essentially saying, yes, a president could in theory remove a governor of the Fed, but in this case, he didn't jump through nearly the amount of hoops required in order to do it. So this now goes back down to a lower court if Trump wants to continue to try to move ahead with removing her He is going to have to have a much more expansive legal process, a procedural process for Lisa Cook to challenge that And of course, Donald Trump now does have a different governor of the Federal Reserve, Kevin Worsarsh after Jerome Powell's term ran out. and so he'll be hoping that Kevin Warsh is going to be more favorable to his ideas. He may not feel the need still to be trying to get rid of Lisa Cook as a governor. But then again, you never know and a point of principple he might want to carry through with this case talking about these two cases and how that Lisa Cook case probably isn't a win for Donald Trump. He is now just now posting on trruth Social, celebrating that other case, the slaughter case, the FTC case. He posted big win in capAS just moments ago at the Supreme Court in the slaughter case, confirming presidential power in our country to remove executive branch officers and agency appointees or representatives under Article two The decision was long sought by the United States presidents, dating all the way back to the nineteen thirties. It is such an honor to be the sitting president who won this historic and unprecedented ruling, one of the most important ever given with respect to presidential powers. Thank you for your attention. as matter President Donald J. Trump. A little overblown, overstated as Trump is won to do. but I think it does underline that this is giving presidents much more power. I'll be curious to see if he says anything about Lisa Cook or if he's just going to let that one slide Yeah, well, Donald Trump is want to celebrate his victories, isn't he and sometimes ignore the things that have gone against him. But who knows maybe we'll get a diatribe later about the decisions that didn't go his way in the Supreme Court, including one about mail in voting And this is a case in Mississippi that allows mailed ballots to be counted if they arrive within five business days of election day, so long as they were postmarked by election day. And Donald Trump really particularly hates it When postal ballots come in days after the election, so it means the count can't be certified until they're all in and they've all been counted. And especially when if it means that you know a Republican looked like they were ahead and the early counting, and then more and more ballots come in favoring a Democrat, the Democrat echks ahead and gets a victory, that's when Donald Trump tends to complain that cheating of some kind, and he would like to ban pretty much all postal voting if he could. So tell us what it was that was decided today, Anthony and why Trump won't like it Well the court said that there's nothing in election law in the Constitution that says you cannot count ballots that are postmarked before election day after election day. So as you mentioned, Mississippi had a law that said five days after election day. If ballots are received in the mail and they're postmarked by that day, they should still be counted. So this is really Good news for states like California, which we talked about in the past and Oregon and Washington and Colorado and Utah that lean heavily into mail in balloting because the court could have. And I think actually a lot of people thought the court was going to just slam the door on that and say anything that is not in the hands of election officials on election day counted. was this was a bit of a surprise I'd say. And if you look at the dynamics of the court opinion, Amy Coney Barret, a conservative justice wrote the opinion in this case. She was joined by John Roberts, the chief justice and the three liberal justices on the court those are all names that are very familiar to Supreme Court watchers, but it's interesting to dive in just a little bit into who some of these justices are, like John Roberts, Bret Kavagh, and so on. Amy Comey Barrett, whom you mentioned there, Anthony, was appointed by Donald Trump and has come in for heavy criticism from him when she hasn't taken decisions that he likes and he quite often blasts her on social media. Tell us about the other two that you mentioned who've sided against well basically what we can assume is against what Donald Tump would have wanted them to Rick Kavanaugh, another Donald Trump appointee, Donald Trump's second Supreme Court appointee in his first term, Amy Coney Barry being the third who replaced that liberal Stalwart, Ruth Bader Ginsburg. And then John Roberts, he is the chief justustice of the court, the first among equals, essentially. It's more of an administrative position. He gets the same His vote counts the same as everyone else's, but he kind of organizes the court. He was actually appointed by George W. Bush. He has been on the court for multiple decades now. and he has also been criticized by conservatives for sometimes breaking ranks and siding with the liberals most famously on the Affordable Care Act, the challenge to the Democratic backed health carere legislation in the mid twentyeen. So of those three justices, Barrett, Roberts and Kavanaugh. Those are the three conservative justices that are the most cllose to the middle, I guess, if you could say, the ones were maybe most likely to side with the liberal justices. And we saw in different cases them doing exactly that. This is a great point to bring in our guest and friend of the podcast, Kate Shaw, law professor at the University of Pennsylvania, co host of the Stict scrutiny podcast and a Supreme Court watcher who can help us with some of these details. And thank you so much for coming to join us, Kate. Thanks you so much for having me Big day in these rulings, what's your sort of initial takeout of how it's gone and how it will be being received in the White House Well, in terms of the two big rulings over the president's power over personnel, you, that was a split outcome. So I think it's, a mixed bag for the Trump White House. In terms of presidential power though, it's a very, very big win. The Fed exception seems to be a pretty narrow, bespoke exception to the otherwise broad rule of presidential power and control over every person who works in the executive branch potentially. And I think that the court's decision to rule differently on the Fed had may be more to do with concerns about spooking the markets than some principled distinction between the Fed and the other agencies that the president now has complete control over Looking at it, is there any real distinction between what the court said about these independent commissions, the Federal Election Commission, the Federal Trade Commission and the Federal Reserve? I mean, is it just that these justices don't want to touch the Federal Reserve because it has all this power over setting interest rates and monetary policy I think it's mostly about the latter, the kind of concern on the part of the court that the work of the Fed is so important that the Supreme Court doesn't want to mess with it. I mean, the statutes creating and empowering all these agencies, ones that regulate, you know the environment and consumer protection and you know labor relations. you know, there's independent agencies that have significant authority over wide swaths of the kind of American life and law And they're all a little bit different. But the court basically paints with a broad brush and saying the president becausecause Article I of the Constitution makes him sort of the sole repository of executive power, it gives him complete control over everyone who serves atop these agencies, again, even ones that by congressional design are meant to be insulated to a degree from politics and from the presidency. Regardless of those statutes and those congressional preferences, the president has to have complete control. And so it's not that there's a salient distinction, I don't think in the Fed statute that distinguishes it from these other agencies. but I think these practical concerns that we've already alluded to. And then the court does gesture toward history. It says, know, the Federal Reserve has this unique history and it sort of resembles in many ways these the first second national banks of the United States from the first decades of this country's history, and that makes the Fed different from these other agencies. But to my mind, that's not really what's driving the court. That's just an effort to dress up really consequences and practical decision in the sort of legal garb Yeah, Kate, Anthony mentioned to us earlier that this is a ruling that goes way back to Franklin Roosevelt and his attempt to change the head of these independent agencies. What's the history to all of that You know, Trump is not the only president to have wanted complete control over independent agencies, right? FDR, a very different president in virtually every way, except with a similarly Idically, but similarly expansive conception of presidential power, he too, was unhappy with being kind of saddled with agency officials who were not necessarily of his choosing and didn't perfectly align with his policy views. And so he tried to fire a commissioner on the Federal Trade Commission, the same agency at issue in the slaughter case. And when he was challenged, he lost nine zero in the Supreme Court. The Supreme Court said It's okay for Congress to create these protections in independent agencies and their leadership, again, that you, maybe Steym' the president a bit in his ability to sort of fully see his policy views immediately put into law, but have sort of good reason for them, which is we don't want every decision in government to be necessarily traceable to the president and to politics. And so that was the big obstacle to Trump's removal of Rebecca Slauer, the head of the commissioner on the Federal Trade Commission who brought this case, and the Supreme Court overruled that venerable ninety year old decision and sort of retroactively vindicated, I guess, President Franklin Delano Roosevelt's position that he alone had the authority to decide who served on the Federal Trade Commission The Lisa Cook case, the mail balloting case, there was another one that dealt with geoense warrns. so when you need to get a warrant in order to find out all the people who had cell phones near a scene of a crime. All of those, the liberal justices were in the majority. Doid that surprise you at all? Does that tell us anything about the court that maybe there' some conservative justices who are occasionally willing to break and side with the Big three liberal justices I think you're right in the Mailon Balloting case, it was somewhat surprising to see Trump appointee and very conservative jurist Justice Amy Coney Barrett write that opinion, joined by the three Democratic appointees and the chief Justice. And to my mind, it was a very sane and sensible opinion that basically said it would be wildly destabilizing for the Supreme Court to hold that this federal statute You know by its terms doesn't clearly do this, that this statute overrides state laws that basically give a grace period for the counting of absentee ballots so long as they're cast by election day, they can be received and counted. in Mississippi, it's up to five days after election day, and a couple of dozen other states have comparable schemes. And I think it was a careful reading of a federal statute that said federal law doesn't override these state laws So I think it's right that there will definitely be instances in which the justices sort of, you know defy expectations and sometimes vote against type, That is one important takeaway. Obviously, we have four big decisions remaining. that We're going to get those tomorrow, and the birthright citizenship case is clearly the most important of them. And so I think it very much remains to be seen whether they vote consistent with type and sort of prefnces of the president or as many people expect, They again break and Trump loses that case, including, losing the votes of some of the individuals he appointed to the Supreme Court Gate, obviously the Spree Court justices are ruling on the law, but we know it gets very, very political. And I wonder if you get a sense from these rulings whether they are agreeing with a a notion that's been going around, much talked about recently, the unitary executive theory, where people assert that pretty much as much power as can be invested in the White House should be that the president should have broad executive authority, that he should largely be able to do what he wants in all sorts of areas of the government. There's Republicans ideologically wedded to that. Do we get a sense from these rulings if the Supreme Court justices or the conservative ones also seem to be leaning in that direction of more power for the president Oh no, I think the Trump versus slaughter case, the case involving the Federal Trade Commission is in some ways the sort of the fullest embrace of the unitary executive theory that we've ever seen from this Supreme Court. The court marches through founding era history, the federalist papers, the Constitutional Convention and debates around the drafting of the Constitution, and in particular, the creation of the presidency, this individual, right, this unitary figure in whom, according to the majority, all executive power is vested. And that is essentially the justification for finding that laws limiting the presresident's ability to fire an independent agency are unconstitutional because president right know is the repository again, both of executive power and is the sole representative of all of the people. And so somehow unity in the executive for a single person to exercise the powers of the office is essentially the best protection against both inefficiency, but also against Tyrany which feels a little bit scramble to me, right? We have seen, obviously a president exercise very outsized authorities. And yet the Supreme Court seems to think that a president with enormous power is going to be a better safeguard of the Constitution and the separation of powers than a president who is limited in his ability to control subordinates. And it feels quite backwards to me as the dissers very much feel, but that is the kind of unitary executive theory that the majority has now fully embraced Okay, thanks so much for coming on and giving us your contribution to all of that. and we will look forward to the big decisions tomorrow, but for now, thanks a lot G to be. Okay, so earlier, when we were talking about Lisa Cook, the Fed governor who Donald Trump tried to dismiss on grounds of mismanagement and malfeasance and what Donald Trump would do next, we have our answer. Donald Trump has taken to Truth Social, as he's been doing throughroughout the time we've been recording this podcast had first response to that decision that cut against him. He said the cook lawsuit Having to do with his suitability in sitting on the board of the Federal Reserve was sent back by the Supreme Court on a strictly procedural basis. We will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions concerning the welfare of the United States of America. Thank you for your attention to this matter, President Donald J. Trump. So it sounds like he is pushing ahead, or at least he says he's going to be pushing ahead attempts to dismiss Lisa Cook based on these allegations unfoundedly so far of mortgage fraud that this is not going to be something he just drops, although maybe his lawyers will talk to him more and we'll see what happens actually in the court of law, but at least for now, Donald Trump sticking by his guns. He wants Lisa Cook out Yeah, And he has just responded yet again to the other case where it was decided that he was able to fire a member of the Federal Trade Commission And he has said that in that ruling, ninety years of president been completely and unequivocally overruled, and this is the key bit, greatly increasing presidential power at a time when it is most needed. So he is reading that ruling as saying that there is more authority in the White House now than there was before the Supreme Court ruled that. So he's celebrating that N not at all happy about another ruling that we haven't actually mentioned yet, Anthony. Explain to us what the Supreme Court decided about Egene Carrool. She is the woman who says that Donald Trump sexually assaulted her in New York. She sued him for defamation and won in a civil case in New York appealing against that ruling, wasn't he, And the Supreme Court had finally come out with the somethingming today The Supreme Court decided not to decide that case. You know, we talk about all these cases that the Supreme Court takes up and they hear oral arguments and they issue decisions like we heard today in written form. Well, the court announced this morning, before all of these other decisions that they were not going to touch this Egene Carroll case, essentially letting the lower court ruling upholding that defamation victory for Egene Carroll against Trump leaving that in effect, keeping the money that the court ruled he had to pay in damages on the books. So Trump was not happy. He said, sururprisingly, the Supreme Court declined to, quote review a fake case brought against me by a woman I never met Decades old celebrity photo lines standing with her husband does not count. I will continue to fight against this weaponization and lawfare case against me, including the ridiculous claim of defamation with all of my power and strength. He's run out of legal recourses. He took it all the way up to the Supreme Ct They said no. so I'll be curious what exactly he can do now to keep this this decision, this binding against him from being enforced. Yeah, so Donald Trump clearly not happy today, which is unusual Anthony, isn't it? Because normally he can rely on the six conservative justices out voting the three liberal ones in the Supreme Court. And he often gets his way. And you know, as KO was telling us, you know a lot of them seem to agree with the idea that he should be allowed to exert the maximum amount of power and authority, but he doesn't get his way every time with this court. have three big cases tomorrow and that birthright citizenship. I think the decision on that case is going to tell us the most about this presidential term because the consensus is that Trump is going to lose that case. If he doesn't, it's going to be a shocker. But if he loses it, then we can say that there are some areas, even the six to three Conservative majority is not willing to follow Donald Trump on. And so we had the trade case, the mail and balloting case today and conceivably birthright citizenship This court is willing to give Donald Trump a long leash, give Donald Trump a lot of power. But the question is are they a simple rubber stamp? And I think the answer at this point is no, that there are some guardrails they seem to abide by And we will see what kind of furious response we get from Donald Trump if they deliver a ruling that he doesn't like on some of these very, very biggest issues. But that is yet to come. for now we better just say bye bye B all.