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Brian Lehrer: Brian Lehrer on WNYC. NYU professor Melissa Murray joins us now on the first week of the new Supreme Court term as they're already making waves again on abortion rights. They'll hear another gun rights case today, when is a homemade gun like a piece of IKEA furniture but one that can kill. The IKEA comparison is actually in the argument and more. We'll get her take on the latest filing by special counsel Jack Smith and the Donald Trump January 6 election interference case.

Really interesting how Smith is arguing that the Supreme Court's presidential immunity ruling does not apply to many of the charges. We'll see if it stands up. Melissa Murray is an NYU law professor and co-host of the Legal Affairs podcast, Strict Scrutiny. She co-hosted the recent MSNBC special, Black Women in America: The Road to 2024, and is co-author of the bestselling book, The Trump Indictments: The Historic Charging Documents with Commentary. Professor Murray, we always appreciate when you come on with us. Welcome back to WNYC.

Melissa Murray: Thanks for having me, Brian.

Brian Lehrer: We'll get to the Trump indictments with your commentary and the big Jack Smith move of this last week, but let's start with the Supreme Court opening their new term. One thing they do at the beginning of the term is announce some cases that they've decided not to take, and one of those last week was on the issue of emergency abortions in Texas. The Biden administration wanted the court to review the Texas restrictions. The headline in The New Republic on this story, Supreme Court Decides to Let Texas Women Die. Is this a case of Biden administration federal abortion policies conflicting with a state-level law in Texas?

Melissa Murray: That's exactly right, Brian. It's very similar to the Idaho case that the court last term actually dismissed on the ground that certiorari had been improvidently granted. In that case, Moyle, as in this new case that the court has declined to review, there's a conflict between a state-level abortion law that's actually quite restrictive in the Emergency Medical Treatment and Labor Act, which is a federal law that requires all hospitals in receipt of federal funds, which is basically every hospital that serves Medicare or Medicaid patients, from refusing to provide stabilizing care to patients in emergency situations. That care could include an abortion.

There's a conflict between the federal law and the state-level law. The Biden administration has now twice asked the court to clarify what should happen in the event of such conflicts because there are women who are in emergency situations who require emergency medical care, including abortions, and who are unable to get them in states with restrictive abortion laws like Texas and Idaho.

Brian Lehrer: What is the Texas law that the Supreme Court lets stand? Is it clear to you where the line is in Texas for when a woman facing-

Melissa Murray: There has been a lot of-

Brian Lehrer: -a medical emergency defined by a doctor or defined by whom is entitled to an abortion despite their ban otherwise?

Melissa Murray: The Texas law has a number of exceptions, as do laws in some of the states but again, the exceptions are very hard to parse because doctors don't have any clarity about what the line is and when a situation is sufficiently exigent that they can provide an abortion without fear that there will be repercussions, whether those are professional repercussions, civil repercussions, or in some cases, criminal repercussions.

Given that there isn't clarity and there have been lawsuits to try and achieve some clarity that have all failed to do so, the doctors basically don't provide abortions. These women who need stabilizing care are basically left to get to the point where they are at the brink of death before something can be done. We've had a number of women sue Texas on the ground that this lack of clarity has endangered their lives, and in some cases, they've lost their fertility and their ability to have future children going forward.

Brian Lehrer: These are real cases of women who feel-

Melissa Murray: These are real cases.-

Brian Lehrer: -they were harmed, not just theoretical where is the line? It's interesting that you hang it to some degree on doctors' voluntary reluctance. We've all been in cases where we think a doctor is doing something that may be unnecessary because of defensive medicine. They don't want to get sued. The Texas law gives them an incentive to be conservative about when they're willing to give an abortion in a medical emergency because they're afraid of getting criminally charged, right?

Melissa Murray: I would go even further, Brian. I think the laws purposely sow a lot of chaos and confusion. In those circumstances, doctors rightly are more conservative because they don't know where the line is. It's not simply about a fear of criminal prosecution, although that is certainly there, but even the fact of a civilization suit could endanger a physician's licensing, could make it more difficult for them to secure malpractice insurance going forward. There are real consequences for doctors.

This is not unlike the situation that existed before Roe v. Wade in 1973 when it was the doctors who were pushing for more liberal abortion regimes so that they could exercise their medical judgment.

Brian Lehrer: Last thing on this case, if you support the Biden administration position, how is it that given the Dobbs decision, the overturning of Roe, that the president could grant an emergency abortion right without going through Congress after the Supreme Court ruled in Dobbs that abortion policy belongs to the states unless there's a federal law?

Melissa Murray: This isn't necessarily an emergency action, it's an emergency action to enforce an existing federal law, The Emergency Medical Treatment and Active Labor Act, EMTALA, which was passed in the 1990s for the purpose of requiring hospitals who are in receipt of federal monies. Again, the federal government can condition grants of federal funding to the states, but any hospital that receives federal funding is required under EMTALA to provide stabilizing emergency care to any patient, regardless of that patient's ability to pay. That also includes emergency abortion care.

The Biden administration has done no more than ensure that in these states, the Emergency Medical Treatment and Active Labor Act is enforced the way that it is required to be. It's not asking for a right to emergency abortions, it's simply asking for that kind of care to be provided when it is necessary to do so.

Brian Lehrer: They've declined to take that Texas abortion case today. They will hear the so-called ghost guns case. If you buy a kit to assemble your own gun, does it have to have a serial number like guns you buy whole? Can you explain what the federal rule is on guns having serial numbers and why it exists?

Melissa Murray: There is a federal law, the Gun Control Act, that basically allows the federal government to regulate by requiring requirements and certain procedures in order to purchase a standard assembled firearm. However, there has been a rise in what are called ghost guns. These are component parts or kits that are sold and manufactured as parts that can very quickly be assembled into an operative firearm. They're typically unserialized, so they're very difficult to trace, makes them very attractive to use in crimes.

The ATF, which is the federal agency that regulates firearms, passed a regulation under the Gun Control Act of 1968 that basically says that you have to treat a ghost gun or any kind of component part or kits as a firearm for purposes of that 1968 act. What it does is basically require ghost guns to be serialized and subject to the same procedures as ordinary assembled firearms. This has now been challenged by ghost gun manufacturers on the ground that they aren't firearms within the meaning of the law, and therefore, the agency has no authority to regulate them in this way. That's the nature of the challenge.

Brian Lehrer: The government argues it's like buying a cabinet at IKEA. I love this argument. You have to assemble-

Melissa Murray: It's a great argument.

Brian Lehrer: You have to assemble it but let's be real, it's still a cabinet. If there are safety regulations on cabinets, they would apply. It should be no different with a gun you assemble yourself. Is there any other background you would want to give our listeners on the two sides in this case as it gets heard today?

Melissa Murray: I think this case is very similar to a case that your listeners may already be familiar with from last term, Garland v. Cargill, which also involved an ATF regulation. That was a regulation of bump stops, which were basically contraptions that could be attached to the back of a gun, and basically it could transform the weapon into basically an automatic weapon with severe and rapid-fire capacities. The court in the case last year said that the ATF lacked the authority under the statute to proscribe bump stocks in that way because the definition of an automatic weapon wasn't encompassed by a firearm with a bump stock attached.

I think we're going to get a similar kind of logic, or certainly a similar kind of application of the statute. Unclear whether the court is going to go so far as to say that component parts are not firearms for purposes of the firearm regulation that's at issue here. I think the government's argument that when you buy a flat pack at IKEA, it's still a cabinet, even if it's not assembled.

I think it's a very apt argument, but I think this is going to be a real opportunity for those on the court who are very supportive of Second Amendment rights to really lean into the text of the statute and maybe even some of the mechanics of how guns are assembled and put together to get to a particular outcome here. I think that's what I am looking for. It's not a Second Amendment case per se, but it certainly has some Second Amendment flavor and energy.

Brian Lehrer: NYU law professor Melissa Murray with us for another few minutes. Tomorrow, the court will hear a death row appeal by an Oklahoma man named Richard Glossip. This case, from my brief reading about it, is incomprehensible to me, I have to say. The state itself, the republican attorney general, now wants to postpone the execution based on new evidence that the man didn't get a fair trial but Oklahoma's highest court says he has to be executed anyway. What? Do I even have those facts right?

Melissa Murray: That's basically the gist of it, Brian. This is a case that will not be unfamiliar to the justices because it's come up and down and back to the court on many occasions on various issues, including whether or not the protocol for lethal injection execution is actually appropriate and constitutional under the Eighth Amendment.

It's been here before, but this time the question is whether or not the death penalty can still be imposed in circumstances where the defendant and his lawyers have prevented clear evidence that there was exculpatory, evidence that was not presented, that he wasn't allowed to present, that had been kept away from the defense. Lots of prosecutorial misconduct here, a lot of different questions about whether or not Mr. Glossip, who is the defendant here, had an opportunity to present the most robust defense before he was sentenced to death.

This is going to come closely on the heels of the court's execution of Marcellus Williams. This was another very closely watched death penalty case where there was substantial evidence that, in fact, the defendant was likely innocent. Again-

Brian Lehrer: Who's arguing for the execution if the state attorney general no longer is?

Melissa Murray: This is the big question. Even Oklahoma here concedes that this is a real problem. The question going forward is whether or not just because the death sentence has been imposed, whether we are going to proceed and whether or not he's had a fair trial, or if he's exhausted all of his remedies to bring up any of these-

Brian Lehrer: I see.

Melissa Murray: -improprieties in his case.

Brian Lehrer: All right. We have a few minutes left. I want to get to Jack Smith and I want to get to things you may expect. In fact, let's do this first. Are you expecting any Supreme Court involvement in the presidential election? We know they had to get involved after the 2020 election, and they actually helped put an end to Donald Trump's false legal claims of a rigged election, and presumably, team Trump will be trying even more legal strategies if they lose again. Anything specific that you're anticipating that we should watch for

Melissa Murray: What I would like to see and what I think is likely are two very different things. I think we've already seen on the court's shadow docket, that's their emergency docket, that the court's already been involved in some election-related disputes. There was a request to keep Jill Stein on the ballot in Nevada that the court turned away last week on the shadow docket. There's also a pending request around RFK's status on the ballot in New York that will have to be decided.

The court also upheld on the shadow docket and Arizona proof of citizenship requirement to vote the other day. They've already been very active. Not necessarily on the merits docket, but on that emergency shadow docket. I think it is very likely if there isn't a "litigation-proof victory." That's what we're calling it on our podcast, Strict Scrutiny. If there isn't a litigation-proof victory, a very clear majority for one candidate or another, then we are likely to see some court activity and litigation around this. That may very well wind up at the Supreme Court. Some of this has already been laid already. We've already seen some disputes.

Brian Lehrer: The really interesting brief filed last week by special counsel Jack Smith in the Donald Trump 2020 election interference case. Now that the Supreme Court has given Trump immunity for any official act as president, Smith is arguing point by point that much of what Trump did to block the certification of the election was done as a candidate, a private citizen, not in his role as president. What was newsworthy to you in that brief and how he was trying to make that argument?

Melissa Murray: The brief is actually quite shocking, and it's 165 plus pages. If you haven't had an opportunity to read it, I would commend it to you. It is fascinating reading. We have apparently first-person conversations about the conversation between Mike Pence and Donald Trump about whether or not the election had been stolen and whether there was any evidence of widespread voter fraud. Apparently, the vice president made clear to the president that there wasn't, and they should just concede and they could try again in 2024.

Donald Trump essentially saying, "No, not going to accept it." When presented with concerns about how talking about widespread election fraud might cause a riot, like the Brooks brothers riot at the Detroit center where votes were being counted, apparently, a co-conspirator very close to the former president was like, "Let them riot." Just the sheer callousness about how the election was being conducted and what the aftermath would be of these allegations I think is just staggering.

Again, these are all questions that probably should have been aired in an actual trial, but because of the Supreme Court's decision last year, both in the timing of how it heard this case and then in the ultimate resolution of it, the American people are basically being deprived of an opportunity to have a trial where these questions could be resolved.

Brian Lehrer: Just one quick follow-up, is the broad sweep there of the argument simply if you're president but you're also running as a candidate in an election, anything you do as a candidate is not covered by presidential immunity? In a way that sounds simple and obvious.

Melissa Murray: [inaudible 00:16:00] more nuanced than that. From what I understand of the brief, there's a distinction between official acts, acts that are constitutionally delineated to the president, and these other activities that are undertaken in the course of a campaign that are unrelated to the actual discharge of presidential duties. Now, obviously, the Trump team will make arguments about whether or not that is in fact the case or whether some of these activities fall into a gray area between constitutional duties and private conduct, but the argument isn't just blanketly you're running for president, everything is private. I think it is genuinely about a distinction between those activities for which the president has explicit responsibility, and those things that are about running a campaign and seeking an office.

Brian Lehrer: Melissa Murray, NYU law professor and co-host of the legal affairs podcast, Strict Scrutiny. She is co-author of the bestselling book, The Trump Indictments: The Historic Charging Documents with Commentary. We really appreciate your time, Professor Murray. Thanks a lot.

Melissa Murray: Thanks so much.

Brian Lehrer: Brian Lehrer on WNYC. Much more to come.

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