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Judge Blocks Trump Birthright Citizenship Order · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: Anxious waiting for federal workers at seventeen agencies now that
0:13
Speaker 1: the Supreme Court has given the green light to President
0:16
Speaker 1: Trump to move ahead with plans to dramatically reduce the
0:20
Speaker 1: size of the federal government with mass layoffs, State Department
0:24
Speaker 1: spokesperson Tammy Bruce says the Department is now moving to
0:28
Speaker 1: implement the layoffs. It will happen quickly. This is not
0:33
Speaker 1: going to be an extended wait for people who are
0:36
Speaker 1: listening and watching in this building or fellow Americans at
0:39
Speaker 1: home and around the world. This will happen quickly. This
0:42
Speaker 1: also means new turmoil for lower courts and federal workers
0:47
Speaker 1: in challenges to Trump's February eleventh executive order. My guest
0:51
Speaker 1: is Jonathan Adler, a professor at William and Mary Law School. Jonathan,
0:56
Speaker 1: what's your take on the Supreme Court's order on Tuesday
1:00
Speaker 1: allowing Trump to move ahead with mass layoffs.
1:03
Speaker 2: I think the Supreme Court's decision to stay the District
1:07
Speaker 2: Court's order was largely based on the fact that the
1:10
Speaker 2: court saw this as a very narrow and limited question. Basically,
1:15
Speaker 2: what was that issue was the lawfulness of an executive
1:19
Speaker 2: order directing agencies to develop plans to reduce staffing and
1:25
Speaker 2: implement reductions in force. And as we've seen in a
1:28
Speaker 2: lot of context, it can be very hard to challenge
1:32
Speaker 2: a presidential executive order, and it can be particularly hard
1:35
Speaker 2: to enjoin an executive order that is largely telling other
1:39
Speaker 2: parts of the federal government what sorts of things they
1:42
Speaker 2: should be doing or what sorts of plans to make.
1:45
Speaker 2: So I think the reason eight justices thought that there
1:47
Speaker 2: was a stay justified in this case is because, at heart,
1:52
Speaker 2: that was the question before them. It was whether this
1:55
Speaker 2: executive order and the accompanying memorandum to the federal bureaucracy
2:00
Speaker 2: saying developed plans for reducing force could be enjoined, and
2:04
Speaker 2: didn't really implicate whether or not any specific agencies plan
2:09
Speaker 2: or reductions in force and for other changes would itself
2:13
Speaker 2: be lawful, and viewed in that narrow way, I think
2:17
Speaker 2: the question before the court struck most of the justices
2:21
Speaker 2: as fairly straightforward and relatively easy, because it was just
2:27
Speaker 2: about the justiciability of challenging and enjoining the executive order.
2:31
Speaker 1: At this point in time, would these kinds of challenges
2:35
Speaker 1: to firings at an agency, would that conventionally be done
2:40
Speaker 1: agency by agency?
2:42
Speaker 2: Well, in general, I mean there's two things here. One
2:45
Speaker 2: is that and we've seen this with lots of executive
2:47
Speaker 2: orders over the last twenty years that direct agencies across
2:51
Speaker 2: the board to engage in some sort of behavior, which is,
2:54
Speaker 2: as an initial matter, the president is not an agency.
2:57
Speaker 2: For purposes of the Administrative Procedure Act speaking, an injunction
3:00
Speaker 2: against the President is at the very least disfavored, and
3:03
Speaker 2: so as an initial matter, the views from court and
3:07
Speaker 2: the view of most deppellate courts has been you have
3:11
Speaker 2: to challenge an individual agency action that is following the
3:16
Speaker 2: president's direction. You don't challenge the president's direction. So, just
3:20
Speaker 2: to give an example, during the Bide deministration, there was
3:23
Speaker 2: an executive order directing agencies with responsibilities that relate the
3:28
Speaker 2: climate change to incorporate a particular social cost of carbon,
3:32
Speaker 2: a particular estimate of the impacts of climate change in
3:35
Speaker 2: the various decisions they make, whether that's regulations they issue
3:39
Speaker 2: or whether they issue permits for oil and gas exploration
3:42
Speaker 2: or for other things. And a bunch of folks tried
3:44
Speaker 2: to challenge that, including the State of Louisiana, and what
3:47
Speaker 2: the appellate courts ultimately concluded, I think correctly, is you
3:51
Speaker 2: can't challenge the executive order that says, insofar as is
3:55
Speaker 2: consistent with law, incorporate the following cost of carbon. We
4:00
Speaker 2: need a specific agency action, so a specific rulemaking, a
4:04
Speaker 2: specific permit denial, a specific action of some sort that
4:09
Speaker 2: implements and follows that instruction to challenge. So similarly, here
4:14
Speaker 2: it may well be that the reorganization plan or the
4:17
Speaker 2: reduction enforced plan of a particular agency is unlawful, but
4:22
Speaker 2: that is what will have to be challenged, and that
4:24
Speaker 2: necessarily means that litigants that are affected by specific agency
4:29
Speaker 2: reorganizations or specific layoffs in particular agencies will have to
4:34
Speaker 2: challenge those discreetly. But there's a second complication that I
4:38
Speaker 2: think the court is also cognizant of, which is generally
4:42
Speaker 2: and another planets will be trying to figure out ways
4:44
Speaker 2: around this. But generally courts have been told to consider
4:49
Speaker 2: challenges to things like layoffs after the fact and through
4:53
Speaker 2: other mechanisms, and not through suits seeking to enjoin or
4:56
Speaker 2: prevent the layoffs in the first place. That is, to say,
4:59
Speaker 2: an employeoyee who is terminated unlawfully has claims that an
5:04
Speaker 2: employee can bring for back pay and for compensation and
5:07
Speaker 2: the like, And, as the DC Circuit has concluded in
5:10
Speaker 2: a somewhat similar case, that is generally what development statute
5:16
Speaker 2: expects to happen, rather than suing ahead of time to
5:20
Speaker 2: try in either a stop agencies across the board from
5:24
Speaker 2: doing this sort of thing, or even be trying to
5:27
Speaker 2: stop an agency from beginning to implement the plan before
5:31
Speaker 2: it actually takes effect.
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Speaker 1: In separate lawsuits, judges have blocked nearly ten thousand layoffs
5:37
Speaker 1: at the Department of Health and Human Services and at
5:40
Speaker 1: about thirteen hundred layoffs at the Education Department. Are those
5:44
Speaker 1: proceeding the way you're supposed to proceed? Do those injunctions
5:49
Speaker 1: remain well?
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Speaker 2: For the time being, at least those injunctions remain. One
5:54
Speaker 2: unfortunate aspect of the Supreme Court dealing with these sorts
5:57
Speaker 2: of questions through orders on the Emerge Agency docket or
6:00
Speaker 2: shadow docket, or whatever we're supposed to call it these days,
6:03
Speaker 2: is that the lack of an opinion giving us an
6:05
Speaker 2: explanation makes it unclear which of the various arguments the
6:10
Speaker 2: Court found most persuasive orders relying upon the most As
6:14
Speaker 2: I mentioned, the Trump administration raised both brought arguments against
6:18
Speaker 2: the justiciability of a challenge to an executive order in
6:22
Speaker 2: the abstract, as well as claims about whether or not
6:26
Speaker 2: you can challenge layoffs other than after the fact in
6:30
Speaker 2: suits for things like compensation or back pay. Because the
6:34
Speaker 2: Court didn't tell us which of those or whether both
6:37
Speaker 2: of those arguments were persuasive to a majority of the justices,
6:41
Speaker 2: we don't entirely know how this applies to the other
6:46
Speaker 2: suits that are out there. But insofar as other suits
6:49
Speaker 2: are focused more narrowly or specifically on what particular agencies
6:54
Speaker 2: are doing under the statutes that are applicable to those agencies,
6:59
Speaker 2: and in so far as the plaintiffs are able to
7:02
Speaker 2: identify particular layoffs that are going to be happening at
7:06
Speaker 2: a particular agency on a particular schedule, where it's not speculative,
7:10
Speaker 2: but you can actually identify this is what's going to happen,
7:13
Speaker 2: and it's going to happen at a date certain or
7:15
Speaker 2: relatively soon, then those cases might be distinguishable and might
7:20
Speaker 2: be more consistent with the sources of constraints that motivated
7:24
Speaker 2: the court to stay this particular decision.
7:27
Speaker 1: Last month, the Trump administration filed an emergency appeal of
7:32
Speaker 1: the judges order that blocked thirteen hundred layoffs in the
7:36
Speaker 1: Education Department. But the Supreme Court hasn't acted on that yet.
7:41
Speaker 1: So when they act on that, will we perhaps learn more?
7:44
Speaker 2: Perhaps, I mean, I certainly hope. So. I mean, on
7:47
Speaker 2: the one hand, the court is dealing with lots of issues,
7:50
Speaker 2: and we know that in the term it just completed,
7:53
Speaker 2: there were multiple opinions that banned one hundred pages. So
7:56
Speaker 2: it's not as if they're not doing other things. But
7:58
Speaker 2: it would be beneficial if they took at least a
8:01
Speaker 2: little bit of time to provide more explanation of their decisions.
8:05
Speaker 2: So in a case like this, we got to paragraph
8:07
Speaker 2: from Justice Soda Mayor explaining why she joined the court
8:11
Speaker 2: and noting, as I said that daying an injunction against
8:15
Speaker 2: the executive order doesn't mean that specific actions by specific
8:19
Speaker 2: agencies cannot still be challenged. She wrote that trust for herself,
8:22
Speaker 2: but that at the very least means that these other
8:26
Speaker 2: cases that are focused on individual agencies and the specific
8:29
Speaker 2: plans that individual agencies are likely to be evaluated separately
8:33
Speaker 2: and the fact that the Supreme Court did not summarily
8:35
Speaker 2: act on these other applications at the same time as
8:39
Speaker 2: it did this case suggests that at least some justices
8:42
Speaker 2: recognize the difference between an order in joining the executive
8:46
Speaker 2: order and enjoining what the executive branch does across the board,
8:50
Speaker 2: with an order that enjoins what a specific agency is
8:53
Speaker 2: doing or is planning to do, and at the very
8:55
Speaker 2: least that implicates the more specific questions and is more
9:00
Speaker 2: likely to be the sort of claim that a district
9:02
Speaker 2: court can appropriately hear.
9:04
Speaker 1: Now with regard to another Supreme Court decision involving Trump's
9:08
Speaker 1: executive order ending birthright citizenship, where the Court limited the
9:13
Speaker 1: power of judges to issue nationwide injunctions, today a federal
9:18
Speaker 1: judge in New Hampshire issued a preliminary injunction blocking Trump's
9:22
Speaker 1: executive order from taking effect anywhere in the United States
9:27
Speaker 1: and certifying a class action that includes all US born
9:32
Speaker 1: children or future children whose automatic citizenship could be jeopardized
9:37
Speaker 1: by that executive order. Is bringing a class action like
9:41
Speaker 1: this what the Supreme Court said to do, or at
9:44
Speaker 1: least suggested doing, well.
9:46
Speaker 2: It's certainly something the Supreme Court acknowledged could happen, and
9:51
Speaker 2: insofar as it has nationwide effect, if the class was
9:55
Speaker 2: properly certified under the federal rules of civil procedure, then
9:58
Speaker 2: this would be in line with what a majority of
10:01
Speaker 2: the Supreme Court said should happen. I haven't had a
10:03
Speaker 2: chance to read the specifics of this judge's order, but
10:06
Speaker 2: insofar as the judge or identified a particular class of
10:09
Speaker 2: similarly situated parties that are to be affected by this
10:13
Speaker 2: executive order in the same way, and you know it's
10:17
Speaker 2: in the same timeframe, it is at least a more
10:21
Speaker 2: direct and legally grounded way of joining what the federal
10:25
Speaker 2: government has said it's going to do than the use
10:28
Speaker 2: of a so called universal injunction, in part because by
10:33
Speaker 2: identifying and certifying a class, the Court is still limiting
10:37
Speaker 2: the relief it is providing two litigants that are properly
10:40
Speaker 2: before the court. Now. I am sure the Trump administration
10:44
Speaker 2: will challenge the class certification here and claim that perhaps
10:47
Speaker 2: that the class was too broad, or that there are
10:50
Speaker 2: other problems with the basis for certification, and this could
10:53
Speaker 2: well end up back at the Supreme Court. I also suspect, though,
10:57
Speaker 2: that at this point there are likely to be five
10:59
Speaker 2: justices that are ready to proceed to the merits of
11:02
Speaker 2: this question. And I think, unlike in a lot of
11:06
Speaker 2: these cases where the Trump administration has had strong procedural
11:10
Speaker 2: arguments or kind of formalistic arguments about the exercise of
11:13
Speaker 2: jurisdiction as a way of pushing back against some of
11:16
Speaker 2: these district court orders on the merits, the Trump Administration's
11:20
Speaker 2: Birthright Citizenship executive Order will be very hard to defend.
11:24
Speaker 1: There are parallel cases seeking class action status and nationwide injunctions.
11:29
Speaker 1: A judge in Maryland is weighing a similar case. Since
11:33
Speaker 1: the New Hampshire judge has certified this class, doesn't that
11:37
Speaker 1: stop another judge from certifying the same class.
11:42
Speaker 2: I'd want to look and see what the requested class
11:44
Speaker 2: is in these other cases, and the extent to which
11:46
Speaker 2: there is overlap, or the extent to which there are
11:49
Speaker 2: potential classes that would be in addition to what's here. Certainly,
11:53
Speaker 2: intents are a very large class of people essentially affected
11:58
Speaker 2: by zip Administration's Birthright Citizenship Order, but there are other
12:03
Speaker 2: groups of people that could be affected as well, other
12:07
Speaker 2: people whose citizenship or lawful presence in the country is
12:10
Speaker 2: implicated people whose ability to make life plans are affected
12:13
Speaker 2: by the executive order, perhaps even institutions that rely upon
12:17
Speaker 2: the ability to hire or by benefits to non citizens.
12:22
Speaker 2: There may be other groups that could also be affected
12:25
Speaker 2: by the executive order, and so it's quite possible you
12:27
Speaker 2: could see requests for classes that are somewhat different. But
12:31
Speaker 2: I would not be at all surprised to see efforts
12:34
Speaker 2: to perhaps consolidate some of these cases. But again, I
12:37
Speaker 2: also think now that there is a class certified, it's
12:40
Speaker 2: quite possible that the Supreme Court might be interested in
12:43
Speaker 2: finally reaching the merits of this question. And as I noted,
12:47
Speaker 2: I think while we've seen in many of these cases
12:50
Speaker 2: the Trump administration have strong procedural or jurisdictional arguments that
12:53
Speaker 2: it could make, this is a case where on the merits,
12:55
Speaker 2: I think the Trump administration really has a bad hand
12:58
Speaker 2: to play.
12:58
Speaker 1: But why does it take the court so long to
13:01
Speaker 1: reach the merits?
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Speaker 2: They had the.
13:03
Speaker 1: Birthright citizenship question before them and didn't decide it.
13:08
Speaker 2: I happen to be sympathetic to the argument that these
13:10
Speaker 2: jurisdictional issues matter. I think that the courts, the Streme
13:14
Speaker 2: Court in particular, believes that these jurisdictional issues matter in
13:19
Speaker 2: some respects. I think the attitude of several of the
13:22
Speaker 2: justices is just because the executive is reaching beyond the
13:26
Speaker 2: scope of its power, we the courts should not do
13:30
Speaker 2: that as well. Rather, the president's willingness to push the
13:33
Speaker 2: boundaries of executive authority should not justify the judges or
13:37
Speaker 2: justices willingness to push the boundaries of judicial authority. And
13:40
Speaker 2: I think what that has meant is that there are
13:43
Speaker 2: some justices that are very sympathetic to claims that individual
13:47
Speaker 2: district courts have gotten a bit over their skis or
13:50
Speaker 2: have been too aggressive, but also recognizing that that is
13:53
Speaker 2: wholly distinct from the underlying merits questions, and that means
13:58
Speaker 2: that the merits aren't reached as quickly perhaps, but it
14:01
Speaker 2: does allow the court to say, look, we're playing by
14:03
Speaker 2: the rules. We are making sure that we're dotting our
14:06
Speaker 2: eyes and crossing our teas on questions of jurisdiction and
14:08
Speaker 2: on questions of what issues are properly before us, properly
14:11
Speaker 2: before the courts, so that if and when the Trump
14:13
Speaker 2: administration loses on the merits, they have no one to
14:16
Speaker 2: blame but themselves. In terms of making legal claims that
14:19
Speaker 2: at the end of the day, we're not meritorious.
14:21
Speaker 1: Maybe you will see them taking the case next term.
14:24
Speaker 1: Thanks so much, Jonathan. That's Professor Jonathan Adler of William
14:28
Speaker 1: and Mary Law School coming up next on The Bloomberg
14:31
Speaker 1: Law Show. Once again, top Justice Department officials are overruling
14:36
Speaker 1: line prosecutors giving a deal to the former governor of
14:40
Speaker 1: Puerto Rico and a banker with ties to the Trump administration.
14:44
Speaker 1: You're listening to Bloomberg. A federal judge was troubled by
14:49
Speaker 1: the Justice Departments about face giving leniency to Puerto Rico's
14:55
Speaker 1: former governor and a billionaire banker shortly before a bribery
14:59
Speaker 1: trial with schedule to begin. Former Governor Juanda Vasquez and
15:04
Speaker 1: bank owner Julio Herrera Velatini both have connections to the
15:08
Speaker 1: Trump administration. Each based up to twenty years in prison
15:12
Speaker 1: if convicted of felony, bribery and wire fraud, but they
15:16
Speaker 1: can now avoid any prison time after a directive from
15:20
Speaker 1: Justice Department leadership allowed them each to plead to a
15:24
Speaker 1: single misdemeanor charge. That's according to Bloomberg's sources. As reported
15:29
Speaker 1: in an exclusive story by Ben Penn, Senior Justice Department
15:33
Speaker 1: reporter at Bloomberg Law. He joins me now ben tell
15:37
Speaker 1: Us about the bribery case against Vasquez and Velatini.
15:41
Speaker 3: So in August of twenty twenty two, got former governor
15:45
Speaker 3: Juana Vascaz and the banker you reference, Julio Herrera Bellatini,
15:50
Speaker 3: along with a former FBI agent who was serving as
15:53
Speaker 3: an alleged intermediary between the two. They were all charged
15:58
Speaker 3: with seven felony count including honest services fraud, bribery, wire
16:04
Speaker 3: fraud related to a conspiracy that they allegedly reached. This
16:10
Speaker 3: deal in which the governor would terminate Puerto Rico's financial
16:15
Speaker 3: regulator in exchange for receiving about three hundred thousand dollars
16:19
Speaker 3: in campaign contributions, and this regulator was in the midst
16:23
Speaker 3: of scrutinizing about ten billion dollars in transactions for Herrera's bank,
16:28
Speaker 3: Bank Credito, which is an international bank that had rations
16:32
Speaker 3: in Puerto Rico. So, as part of the deal, as
16:36
Speaker 3: originally alleged, not only would they fire the regulator in
16:40
Speaker 3: the midst of this investigation, but Herrera, the bank owner,
16:42
Speaker 3: would then have the ability to replace him with his
16:45
Speaker 3: hand if the successor, and that is what went down.
16:49
Speaker 3: Of course, those allegations have been denied from the get go,
16:52
Speaker 3: and we've had three years of pretty intensive litigation and
16:56
Speaker 3: the parties were all gearing up for trial later.
16:59
Speaker 1: This just say three hundred thousand dollars and I'll put
17:02
Speaker 1: that in. We'll put that in there. Sure tell us
17:05
Speaker 1: about the connections to Trump.
17:08
Speaker 3: So the connections come in two forms. First, you have
17:11
Speaker 3: Vascas had endorsed Trump in twenty twenty when he was
17:14
Speaker 3: running for reelection. She was the governor at that time,
17:17
Speaker 3: and her endorsement was seen as helpful for Trump's fability
17:22
Speaker 3: to court Latino voters heading up to November. And then
17:26
Speaker 3: the other connection is Bellucini has hired as part of
17:30
Speaker 3: a powerhouse legal defense team. Christopher Kyle Kaui's was Trump's
17:35
Speaker 3: personal attorney during both the mar A Lago malassified Documents
17:39
Speaker 3: indictment brought by Special Counsel Jack Smith and the New
17:43
Speaker 3: York Civil fraud litigation. So Kai's is somebody who now
17:47
Speaker 3: remains a defense attorney and is seen as having from
17:51
Speaker 3: my reporting, still has quite a bit of connections in
17:53
Speaker 3: the White House well.
17:55
Speaker 1: His former co council in the Trump Classified Documents case.
18:00
Speaker 1: Todd blanche is now the Deputy Attorney General, and your
18:04
Speaker 1: sources told you that Kuyes took the case up the
18:08
Speaker 1: chain to the Deputy Attorney General.
18:11
Speaker 3: Kyles was part of a team of lawyers who began
18:13
Speaker 3: arguing early in this administration when Trump came back to
18:17
Speaker 3: the White House and that this investigation was a case
18:21
Speaker 3: of weaponized government from the left. And that's an argument
18:25
Speaker 3: that at a minimum, we can say gained a receptive
18:28
Speaker 3: audience at the upper echelons of the Justice Department. They
18:32
Speaker 3: didn't necessarily endorse that this was an example of weaponization,
18:35
Speaker 3: but somebody from the Deputy Attorney General's office, at a
18:38
Speaker 3: meeting that was held at DOJ headquarters in Washington, that
18:42
Speaker 3: was attended by the US Attorney in Puerto Rico and
18:46
Speaker 3: a prosecutor based in Washington, there was an order basically,
18:49
Speaker 3: after both sides had a chance to make their case,
18:52
Speaker 3: the deput Attorney General's office demanded that they reach a
18:55
Speaker 3: deal that this case doesn't go to trial. And as
18:59
Speaker 3: a result, I really gave the defense councils an upper
19:04
Speaker 3: hand and led to a misdemeanor plea deal in which
19:08
Speaker 3: now the defendants are really facing a strong likelihood of
19:13
Speaker 3: no prison time, whereas before they were facing felonies that
19:16
Speaker 3: could have given them a maximum of twenty years in
19:19
Speaker 3: prison each.
19:20
Speaker 1: So did Todd Blanche overrule line prosecutors who had pursued
19:25
Speaker 1: the felony bribery and wire fraud charges. Was it basically
19:30
Speaker 1: a directive?
19:31
Speaker 3: I don't have reporting to prove what Blanch's direct involvement was.
19:37
Speaker 3: What I can say for my reporting is that I
19:40
Speaker 3: my sources have told me that it was a representative
19:42
Speaker 3: for Blanche, an associate Deputy Attorney General, who convened the meeting,
19:47
Speaker 3: and that was the individual who ordered parties to come
19:50
Speaker 3: to terms on a much more lenient settlement.
19:53
Speaker 1: The federal judge in the case was obviously dismayed by
19:58
Speaker 1: the government's decision to shift gears, as she put it,
20:01
Speaker 1: at the eleventh hour, and she wrote that the case
20:05
Speaker 1: was zealously prosecuted and the defendants will strikingly face a
20:09
Speaker 1: mere slap on the wrist with a misdemeanor plea, despite
20:13
Speaker 1: the government previously seeking harsher punishment. But she said there
20:17
Speaker 1: was nothing she could do about it.
20:19
Speaker 3: That's right. She said she wasn't willing to violate the
20:22
Speaker 3: constitution and separation of powers by getting in the government's way,
20:26
Speaker 3: and she was left with no choice but to respect
20:28
Speaker 3: the government's decision that this plea deal is appropriate. She
20:32
Speaker 3: did also point out that the order for the plea deal,
20:35
Speaker 3: she said, presumably came on an order from Main Justice,
20:39
Speaker 3: which in my view implies that whether or not she
20:42
Speaker 3: read my reporting, she feels very strongly that there's no
20:46
Speaker 3: way that, after years of zealous advocacy for felling convictions,
20:50
Speaker 3: that the government wouldn't have changed course at the last
20:54
Speaker 3: minute had it not been for intervention from the top
20:56
Speaker 3: of the DOJ.
20:57
Speaker 1: She did play one card that she had. The defendants
21:01
Speaker 1: had asked to have their arraignment and plea hearings be
21:05
Speaker 1: held by video teleconference, and she wrote, well, the defendants
21:09
Speaker 1: are now charged with a misdemeanor offense, it's still an
21:12
Speaker 1: offense that lacerates the integrity of our democratic electoral process. Therefore,
21:17
Speaker 1: she said she was denying their request and ordered them
21:20
Speaker 1: to appear before her in person.
21:23
Speaker 3: Yes, she's playing the hand that she has, so that
21:26
Speaker 3: appears to be the bit of leverage that she feels
21:29
Speaker 3: she can exert right now. But there's no reason to
21:32
Speaker 3: think that this plea agreement won't be fully resolved before
21:36
Speaker 3: her in the coming weeks.
21:37
Speaker 1: Remarks. This is reminiscent of the case against New York
21:42
Speaker 1: City Mayor Eric Adams, where the political appointees at DOJ
21:46
Speaker 1: ordered the interim US Attorney for the Southern District of
21:50
Speaker 1: New York to drop the case, and she resigned in
21:54
Speaker 1: protest with a slew of other prosecutors. And here the
21:58
Speaker 1: line prosecutor, the assistant US Attorney, withdrew from the case
22:02
Speaker 1: and left the Justice Department. So are there some troubling similarities?
22:07
Speaker 3: I would say yes and no at the same time.
22:09
Speaker 3: And yes in the sense that you do have an
22:11
Speaker 3: example of somebody who is relying on intervention from the
22:16
Speaker 3: very top of the Justice Department to go against the
22:19
Speaker 3: wishes of prosecutors. But you know, I talked to people
22:22
Speaker 3: who used to be public corruption prosecutors. In their minds,
22:25
Speaker 3: this Puerto Rico case doesn't come close to the same
22:29
Speaker 3: level of alarm they felt in response to the Eric
22:31
Speaker 3: Adam situation, in which you had multiple prosecutors resigning in
22:35
Speaker 3: protests rather than assign their name to any dismissal. In
22:39
Speaker 3: this case, it wasn't just an outright dismissal. There at
22:41
Speaker 3: least is some accountability for the defendants, albeit not nearly
22:45
Speaker 3: as much as what prosecutors. Mind you, A US attorney
22:48
Speaker 3: in Puerto Rico who was appointed by Trump in Trump's
22:51
Speaker 3: first term, had been arguing for years was merited. You know.
22:55
Speaker 3: I talked to some people who felt that, you know,
22:57
Speaker 3: and perhaps in normal times, as they put it, that
23:00
Speaker 3: this outcome that is facing her Era and Vasquez would
23:04
Speaker 3: be more upsetting and considered more outrageous. But now they
23:08
Speaker 3: felt like it's impossible to view it on its own
23:10
Speaker 3: and not relative to other developments in this administration. Beculy,
23:14
Speaker 3: not just Atoms, but other cases in which people with
23:17
Speaker 3: connections to Trump personally or others in his orbit have
23:21
Speaker 3: been able to get significant relief, pardons or dismissals against
23:25
Speaker 3: the wishes of the federal prosecutors who would try them.
23:28
Speaker 1: What is left of the public corruption team.
23:32
Speaker 3: Right now, they are down to a skeleton crew. They're
23:36
Speaker 3: in the process of being reassigned to other offices, or
23:40
Speaker 3: many of them have already left on their own. One
23:43
Speaker 3: of the handful of remaining attorneys in that public Integrity
23:47
Speaker 3: section happened to be the line attorney prosecuting Vosquez and
23:52
Speaker 3: her era, and so it was interesting to me that,
23:55
Speaker 3: according to my reporting, that prosecutor was left on his own,
24:00
Speaker 3: along with the US Attorney in Puerto Rico, but without
24:03
Speaker 3: the backing of any of his direct bosses, to argue
24:06
Speaker 3: before the Deputy Attorney General's office why this case should
24:10
Speaker 3: proceed and did have merit. I think, you know, perhaps
24:13
Speaker 3: if there had been a stronger public integrity section, you
24:17
Speaker 3: know that that wouldn't have happened in a line attorney
24:19
Speaker 3: wouldn't have been left to stand on his own.
24:21
Speaker 1: You wrote that a few days before the plea agreement,
24:23
Speaker 1: the head of the Department's Criminal Division, in a speech
24:26
Speaker 1: about overseas bribe reinforcement, Warren white collar lawyers, that mischaracterizing
24:32
Speaker 1: prosecutorial conduct would be counterproductive to your appeals.
24:37
Speaker 3: I thought it was important to place this level of
24:41
Speaker 3: outreach to superiors above the line prosecutors to get relief
24:46
Speaker 3: for a client in the broader context of what we've
24:48
Speaker 3: seen happening in this administration, where you've seen ever since
24:51
Speaker 3: cam Bondi when she was sworn in as Attorney General
24:54
Speaker 3: and put out a series of memos that narrowly curtailed
24:58
Speaker 3: the vigor of white collar enforcement. You've seen defense attorneys
25:02
Speaker 3: trying to take advantage of that and bring up cases
25:05
Speaker 3: to senior officials at the Justice Department and argue that
25:09
Speaker 3: this case no longer meets your priorities or that you know,
25:12
Speaker 3: also in alignment with another one of Bond these memos
25:15
Speaker 3: seeking to root out weaponization inside the Justice Department, parroting
25:20
Speaker 3: Trump's frequent talking point, defense attorneys trying to make the
25:23
Speaker 3: point that these were weaponized prosecutors in this case wouldn't
25:26
Speaker 3: have been brought had they not had partisan motivation. Now,
25:31
Speaker 3: what we saw in this conference that I was referenced
25:33
Speaker 3: to in the article, Matt Galliotti, who is the acting
25:36
Speaker 3: head of the Criminal Division at DJ, was essentially telling
25:40
Speaker 3: white collar defense attorneys, Hey, there are people out here
25:43
Speaker 3: who may not be arguing in good faith about why
25:46
Speaker 3: their clients deserve relief, and we're not going to just
25:48
Speaker 3: represtamp your appeals to us. You need to come to
25:51
Speaker 3: us with facts and evidence as to why your case
25:55
Speaker 3: should no longer be prosecuted. You know, looking at that
25:58
Speaker 3: in the context of what happened with Boscas and Valatini,
26:01
Speaker 3: that was an example where you had somebody who had
26:04
Speaker 3: direct ties to the Deputy Attorney General's office, which is
26:08
Speaker 3: higher up the national ands of TJ, higher up than
26:11
Speaker 3: the criminal divisions. It'll be interesting to see going forward
26:14
Speaker 3: which types of cases are attorneys trying to make their
26:18
Speaker 3: appeals to in criminal division versus the Deputy Attorney General's office.
26:22
Speaker 3: If you go to the Dag's office, will they shoot
26:25
Speaker 3: down and say no, you need to talk to the
26:27
Speaker 3: criminal division first. You know, these are dynamics that are
26:29
Speaker 3: still in the early months of playing out and I
26:31
Speaker 3: think will be perhaps deal with on a case by
26:34
Speaker 3: case basis.
26:35
Speaker 1: Well, so much for public corruption cases. Thanks so much, Ben.
26:40
Speaker 1: That's Ben Penn's senior Justice Department reporter at Bloomberg Law.
26:44
Speaker 1: Coming up next on the Bloomberg Lawn Show, the Labor
26:47
Speaker 1: Department's quiet regulation rollback done without a press conference or fanfare.
26:54
Speaker 1: I'm June Grosso. When you're listening to Bloomberg. The Trump
26:58
Speaker 1: administration's regulatory push has landed at the Labor Department, with
27:03
Speaker 1: the agency advancing a slew of proposals to tweak or
27:08
Speaker 1: scrap policies across several of its subagencies without much fanfare.
27:13
Speaker 1: Rules on the chopping block include minimum wage and overtime
27:17
Speaker 1: protections for certain health aids, anti discrimination requirements for apprenticeship programs,
27:23
Speaker 1: and union organizing protections for foreign farm workers. Joining me
27:27
Speaker 1: is Rebecca Rainey, Senior Labor Department reporter at Bloomberg Law,
27:32
Speaker 1: tell us about the major deregulatory push at the Labor Department.
27:37
Speaker 1: What's happening.
27:39
Speaker 4: The US Department of Labor recently announced that it was
27:42
Speaker 4: undergoing this massive deregulation effort, naming that there was going
27:47
Speaker 4: to be about sixty three rules or actions that they
27:50
Speaker 4: were taking to reduce what they call red tape. And
27:55
Speaker 4: so what happened was there was a rollout of dozens
27:59
Speaker 4: of rules rescinding certain requirements for employers. We saw more
28:04
Speaker 4: than three dozen rules last week that included rules reducing
28:09
Speaker 4: certain safety requirements for employers at the Department of Labor's
28:13
Speaker 4: worker safety agencies. We saw a cancelation of minimum wage
28:18
Speaker 4: and over time protections that have been extended to certain
28:22
Speaker 4: home health aids, and even you know, anti discrimination requirements
28:26
Speaker 4: or recipients of funding for apprenticeship or job training programs.
28:31
Speaker 4: So we got all of these rules very very quickly,
28:34
Speaker 4: without a lot of heads up from an Apartment of Labor.
28:37
Speaker 4: Now a lot of these proposals will be going through
28:39
Speaker 4: a public comment period, but one of the top Democrats
28:42
Speaker 4: on the Education and Workforce Committee, Ret. Bobby Scott from Virginia,
28:48
Speaker 4: he is now pressing the administration for more details on
28:51
Speaker 4: this because we haven't received a regulatory agenda yet. And
28:56
Speaker 4: for those unfamiliar, typically every fall and spring, administrations will
29:01
Speaker 4: release this big schedule listing all of the rules that
29:05
Speaker 4: they plan to advance in the coming months and outlined
29:10
Speaker 4: kind of just a short summary of what the rules
29:12
Speaker 4: will do. It's usually maybe two sentences, but it gives
29:15
Speaker 4: you a little bit more of a heads up of
29:17
Speaker 4: what the agency may be doing in that policy space,
29:20
Speaker 4: and we don't have that right now. So figuring out
29:24
Speaker 4: what these rules do has taken quite a bit of
29:27
Speaker 4: time because instead of kind of getting that summary in
29:29
Speaker 4: the beginning, we had to, you know, quickly rifle through
29:33
Speaker 4: these one hundred page rule makings as soon as they
29:36
Speaker 4: came out to try and figure out the impact that
29:38
Speaker 4: they may have. So, you know, the ranking member and
29:41
Speaker 4: you know, I'm sure a lot of journalists are similarly
29:44
Speaker 4: scratching their heads as to what could be coming next.
29:47
Speaker 4: Just given the speed and piece of the Trump Administration's
29:51
Speaker 4: moves in the Department of Labor's regulatory.
29:53
Speaker 1: Space, Representative Scott what were his major concerns. Were there
29:57
Speaker 1: some changes that he was particular concerned about.
30:01
Speaker 4: Yeah, so there is a proposal currently pending at the
30:06
Speaker 4: White House Budget Office, and that is the last step
30:09
Speaker 4: before proposal can be released publicly by an agency, it
30:12
Speaker 4: has to be approved by the Budget Office. So there's
30:15
Speaker 4: two rules pending over there, and one of them mentioned
30:19
Speaker 4: that it looks to update the Department of Labor's child
30:23
Speaker 4: labor regulations, including its hazardous occupation orders, which list types
30:28
Speaker 4: of jobs that anyone under eighteen shouldn't work. In that
30:32
Speaker 4: we're talking about mining, working with mechanical tools, power driven
30:39
Speaker 4: machinery that could potentially be risky for those who are
30:43
Speaker 4: under eighteen to operate. The proposal would also potentially address
30:49
Speaker 4: limits on when kids can work. There's currently restrictions for
30:53
Speaker 4: fourteen and fifteen year olds as to how late they
30:55
Speaker 4: can work during the school year. Those restrictions are a
30:58
Speaker 4: little bit more laxed during the summer time. But you know,
31:02
Speaker 4: there is a lot of concern about why the Trump
31:04
Speaker 4: administration is looking at revising these rules given that there
31:08
Speaker 4: has been an extreme uptick in the number of legal
31:12
Speaker 4: child labor cases we've seen across the United States in
31:16
Speaker 4: recent years, including horrible, egregious cases where we saw children
31:21
Speaker 4: working overnight and in neat slaughtering plants, cleaning sharp, dangerous machinery,
31:27
Speaker 4: and obviously they weren't allowed to be working there. So,
31:31
Speaker 4: you know, the Democrats are raising questions and also worker
31:35
Speaker 4: advocates in unions or raising questions as to why the
31:38
Speaker 4: Trump administration maybe making those rules a little bit more
31:41
Speaker 4: relaxed when there's been so much illegal activity in that
31:45
Speaker 4: space in recent years.
31:47
Speaker 1: Was Scott implying that the reason why there wasn't, you know,
31:52
Speaker 1: a big rollout or press conference was because they were
31:56
Speaker 1: trying to hide these rules, the child labor rules.
32:00
Speaker 4: Now, not exactly, but you know, there is a bit
32:02
Speaker 4: of you know, tea leaf reading here. There was supposed
32:06
Speaker 4: to be a press announcement about this deregulatory push. Initially
32:11
Speaker 4: it was scheduled for one of the Michigan stops that
32:14
Speaker 4: the Labor Secretary, Loris Shaves DeRemer has been traveling the
32:18
Speaker 4: country visiting different training and businesses who you know, meet
32:23
Speaker 4: with Americans and workers on the job. And she was
32:26
Speaker 4: supposed to make this announcement at one stop in Michigan.
32:29
Speaker 4: That was postponed. It was pushed a couple of days,
32:31
Speaker 4: and you know, the Apartment of Labor said, we're going
32:33
Speaker 4: to do this at our headquarters in Washington, d C. Instead,
32:36
Speaker 4: And then that was again just postponed indefinitely, and they
32:41
Speaker 4: you know, announced that they were doing this deregulatory push instead,
32:44
Speaker 4: just through a press release. So I was not able
32:47
Speaker 4: to get clarity from the Department of Labor as to
32:49
Speaker 4: whether there was a personal reason as to why the
32:52
Speaker 4: Labor Secretary and the Deputy Labor Secretary didn't want to
32:55
Speaker 4: make this announcement. But you know, again it is questionable,
32:59
Speaker 4: especially because they did push out this press release saying, hey,
33:02
Speaker 4: look at all these things we're doing, but very quietly,
33:06
Speaker 4: you know, and after the fact. So there is a
33:09
Speaker 4: lot of questions as to why this rollout didn't receive
33:13
Speaker 4: the same fanfare that regulations typically do, especially given that
33:18
Speaker 4: this is, you know, such a high priority for President
33:21
Speaker 4: Donald Trump when it comes to reducing regulations. He signed
33:24
Speaker 4: an executive order shortly after he took office directing Executive
33:29
Speaker 4: Branch agencies to send ten regulations for every new regulation
33:34
Speaker 4: they issue, and so thed Well was really proud to
33:38
Speaker 4: say that they were championing that effort, but did so
33:41
Speaker 4: more quietly in a written press release, as opposed to
33:44
Speaker 4: a full prece event that had been previously planned.
33:47
Speaker 1: Yeah, the Labor Secretary, and the press release said the
33:50
Speaker 1: agency's plan is quote the most ambitious proposal to slash
33:54
Speaker 1: red tape of any department across the federal government. And
33:58
Speaker 1: Trump's new regulatory push is more intense than his regulatory
34:03
Speaker 1: push in his first administration.
34:05
Speaker 4: I would say so given just the speed and the
34:08
Speaker 4: number of regulations that they are targeting so quickly. You know,
34:12
Speaker 4: normally this kind of happens one at a time. We
34:16
Speaker 4: kind of like take each bite as it goes. But
34:19
Speaker 4: this time they just have decided to kind of pol
34:23
Speaker 4: the tablecloth off the table, so to say. When it
34:26
Speaker 4: comes to a lot of these rules, and some of them,
34:29
Speaker 4: I will say, we're more technical. There was a rule
34:32
Speaker 4: making that rescinded, you know, multiple pieces of guidance in
34:36
Speaker 4: one fell swoop. But a lot of that guidance was
34:39
Speaker 4: instructions to employers that how to comply with laws that
34:42
Speaker 4: were either no longer in effect or rules that had
34:45
Speaker 4: been superseded by new regulations. Some of it was just outdated,
34:50
Speaker 4: and some of it seems to be just you know,
34:53
Speaker 4: thinning out the code of federal regulations. Not all of
34:56
Speaker 4: it is as alarming as the proposals Repcot is learned about. However,
35:01
Speaker 4: it still is happening in a way that feels like
35:04
Speaker 4: it is kind of a fire hose of new policy moves.
35:08
Speaker 4: And this is very hard for those who are watching
35:11
Speaker 4: the labor and employment community to kind of keep track
35:13
Speaker 4: when things are not happening. You know, one or two
35:16
Speaker 4: rules at a time, but sixty three rules at.
35:19
Speaker 1: A time are the bulk of them employer friendly.
35:23
Speaker 4: So a bulk of the rules that are being reduced
35:27
Speaker 4: are rules that puts requirements on employers. So I would
35:31
Speaker 4: say overall the effort is an employer friendly effort because
35:36
Speaker 4: it is reducing the regular story requirements and rules that
35:40
Speaker 4: employers have to follow. So it gives employers less things
35:44
Speaker 4: that potentially trip them up and get them a violation
35:46
Speaker 4: from the Department of Labor. And we have already seen
35:50
Speaker 4: this kind of compliance assistance trend growing from the Trump
35:55
Speaker 4: administration and the Department of Labor In recent weeks, they
35:59
Speaker 4: recently announced that they were doing an opinion letter program.
36:02
Speaker 4: And while opinion letters aren't necessarily a new thing, that
36:07
Speaker 4: the DL is doing this initiative to get employers and
36:11
Speaker 4: organizations that are regulated by the Department of Labor to
36:15
Speaker 4: submit these questions so that the Department can produce opinion
36:19
Speaker 4: letters is a new one. And for those I'm familiar,
36:22
Speaker 4: an opinion letter is where an employer or an organization
36:26
Speaker 4: can write in and say, Hey, I have this situation
36:29
Speaker 4: with an employee and I am not sure how they
36:33
Speaker 4: should be treated under federal law. Or I have this
36:36
Speaker 4: scenario when it comes to certain benefits that I'm not
36:40
Speaker 4: sure if I am compensating my employee appropriately under the laws.
36:44
Speaker 4: So I'm going to write about this situation to you,
36:47
Speaker 4: Department of Labor, and you tell me what your opinion
36:50
Speaker 4: is of this situation, and they publish, you know, how
36:54
Speaker 4: they would approach each individual case in this letter. They
36:58
Speaker 4: scrub the information and about the employer, and you know,
37:02
Speaker 4: businesses and attorneys can use these opinion letters to kind
37:06
Speaker 4: of guide how they respond to and comfly with different regulations. Now,
37:13
Speaker 4: while opinion letters are specific to the companies or organization
37:17
Speaker 4: that wrote in the letter it can be a good
37:19
Speaker 4: example that provides more guidance about how to follow the law.
37:25
Speaker 4: You know, employers sometimes complain that the Department of Labor
37:28
Speaker 4: takes a position where it's just trying to find bad
37:32
Speaker 4: actors or catch them, you know, being caught up in
37:35
Speaker 4: these very complicated regulations that can sometimes go one way
37:39
Speaker 4: or sometimes go the other way. And this is an
37:41
Speaker 4: effort that the Trump administration says they hope will make
37:45
Speaker 4: it easier for businesses who are trying to comfy with
37:48
Speaker 4: the law in good base better be able to navigate
37:52
Speaker 4: those nuances within the Department of Labor's regulation.
37:56
Speaker 1: Besides the child safety concerns, are there other concerns about
38:00
Speaker 1: worker safety coming from these proposals.
38:04
Speaker 4: Yeah, So, as I mentioned, there's a lot of recisions
38:08
Speaker 4: of different protections. Another one is for home health care
38:12
Speaker 4: aids and those are you know, nurses or assistants who
38:16
Speaker 4: are providing what they call compassionate care for those of
38:20
Speaker 4: disabilities or for those who are elderly inside their homes.
38:24
Speaker 4: And the Obama administration had issued this rule there was
38:29
Speaker 4: an exemption under the law that said certain workers providing
38:33
Speaker 4: these types of services don't have to be paid the
38:36
Speaker 4: minimum wation overtime protections. Given that you know they're in
38:40
Speaker 4: the home for so long in the day, you can
38:42
Speaker 4: create record keeping issues, all sorts of things. But the
38:45
Speaker 4: Obama administration said, we don't think that's there. We are
38:49
Speaker 4: reducing that exemption, and it made a lot of home
38:52
Speaker 4: care workers eligible for the first time for minimum wation
38:56
Speaker 4: overtime protections. The Trump administration is now coming back and
38:59
Speaker 4: trying to cancel that. Basically, it would broaden back that
39:02
Speaker 4: exemption and make more of these home care workers ineligible
39:07
Speaker 4: for the minimum wage or overtimely And the reason for that,
39:10
Speaker 4: the Trump administration says, is just the exemption is very
39:13
Speaker 4: hard to comply with and it has led to a
39:18
Speaker 4: decrease in availability of these types of workers. And they're
39:23
Speaker 4: hoping that by rescinding this rule, it will make it
39:26
Speaker 4: easier for companies that have more of these workers available.
39:30
Speaker 4: So that is another rool there that is probably going
39:33
Speaker 4: to draw a lot of concern from worker advocates and
39:36
Speaker 4: Democrats who support the expansion of workplace protections, especially for
39:41
Speaker 4: workers in the healthcare industry, which is one of the
39:45
Speaker 4: highest industries when it comes to certain types of minimum
39:48
Speaker 4: wage and overtime violations, as well as physical violence.
39:52
Speaker 1: You'll have to come back and let us know what
39:53
Speaker 1: happens with some of these rules. Thanks so much, Rebecca.
39:57
Speaker 1: That's Bloomberg Lawn Labor Department Reporterbeca and that's it for
40:01
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
40:04
Speaker 1: always get the latest legal news on our Bloomberg Law podcasts.
40:07
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40:10
Speaker 1: www dot Bloomberg dot com slash podcast Slash Law, And
40:15
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40:19
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and
40:22
Speaker 1: you're listening to Bloomberg