Latest / Bloomberg Law / Trump May Pardon You, But The Bank May Not

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Trump May Pardon You, But The Bank May Not · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: On the first day of his second term, President Donald
0:12
Speaker 2: Trump granted full pardons or commutations to the more than
0:16
Speaker 2: fifteen hundred people convicted or charged in the January sixth
0:21
Speaker 2: riots at the US Capitol four years ago.
0:24
Speaker 1: So this is.
0:25
Speaker 2: January sixth, and these are the hostages, approximately fifteen hundred
0:31
Speaker 2: for a pardon, Yes, full pardon. That was just the
0:35
Speaker 2: beginning of what has been something of a pardoning spree
0:38
Speaker 2: for Trump. Today was the convicted founder of the crypto
0:42
Speaker 2: exchange Binance Chaopeng Jao. Last week it was convicted former
0:47
Speaker 2: Republican Congressman George Santos. But it's one thing to be
0:52
Speaker 2: cleared by the president. It's another to be cleared by
0:55
Speaker 2: the banks. And some of the people pardoned during Trump's
0:59
Speaker 2: first term found that out when they were debanked. Joining
1:04
Speaker 2: me is Bloomberg Senior reporter Tom Schoenberg. Tom. Republican fundraiser
1:09
Speaker 2: Elliot Brody, who was convicted for violating a lobbying law,
1:14
Speaker 2: and former CFO of social media company x Ma mood Raised,
1:19
Speaker 2: a BANKI who was convicted of making false statements, were
1:23
Speaker 2: both pardoned at the end of Trump's first term, but
1:28
Speaker 2: explain how those White House reprieves only go so far.
1:33
Speaker 3: So both, you know, mister Broydy and mister Banky kind
1:36
Speaker 3: of recently within the you know, last year or so
1:39
Speaker 3: sought banking services. Both had applied, you know, for credit
1:44
Speaker 3: Brody from American Express, Bonki from JP Morgan and were
1:49
Speaker 3: denied and as they pushed for explanation as to why,
1:55
Speaker 3: in both instances, were told that it was due to
1:58
Speaker 3: a criminal record that they had had, you know, that
2:01
Speaker 3: was tied to the pardon that they received from President
2:05
Speaker 3: Trump in his first term. With bank it had also
2:08
Speaker 3: meant he had applied for a credit card with Bank
2:11
Speaker 3: of America and a five twenty nine account that involved
2:16
Speaker 3: a fidelity and the same situation he was denied accounts
2:19
Speaker 3: or denied access to credit.
2:21
Speaker 2: Is there really a term debanked?
2:24
Speaker 4: There is now there?
2:26
Speaker 3: I mean, it's a good question because when I was
2:29
Speaker 3: interviewing people for the article, including Liz Oyer, who is
2:33
Speaker 3: former parton attorney at the Justice Department.
2:36
Speaker 4: She asked, well, what is to banking?
2:38
Speaker 3: Because you know, until recently it was it wasn't really
2:41
Speaker 3: a term, but it is now and is also used
2:43
Speaker 3: in both these lawsuits that were brought by mister Brody
2:47
Speaker 3: and mister Banking.
2:49
Speaker 2: Is a pardon meant to erase the legal conviction on
2:51
Speaker 2: your record? Or is it meant to wipe the slate clean?
2:57
Speaker 3: Really, in terms of how it's been interpreted, it really
2:59
Speaker 3: is race. Is that legal stain of the conviction?
3:01
Speaker 4: Right?
3:02
Speaker 3: And I think in terms of financial services, what these
3:05
Speaker 3: cases are sort of raising to an extent is does
3:09
Speaker 3: that necessarily override these risk assessments of private lender that
3:13
Speaker 3: are required under law to prevent against money laundering and
3:17
Speaker 3: to know their customer, which usually is a look back
3:20
Speaker 3: on their history, both financial but also criminal history.
3:23
Speaker 2: When you get a pardon, is your criminal record expunged
3:27
Speaker 2: or is there sort of a big red stamp on it,
3:30
Speaker 2: you know, pardon.
3:31
Speaker 3: So if you go to the criminal dockets, you would
3:34
Speaker 3: see their note at the case was dismissed or you
3:38
Speaker 3: would see that pardon in there in some fashion. So
3:41
Speaker 3: for mister Broydy, he had pleaded guilty to account of
3:45
Speaker 3: conspiring to violate the Foreign Agent's Registration Act in October
3:50
Speaker 3: twenty twenty, but he would yet to be sentenced to
3:54
Speaker 3: when President Trump pardoned him. So what you see in
3:57
Speaker 3: his record, is you see that his attorneys moved to
4:01
Speaker 3: dismiss the case because of that, which then happens, So
4:03
Speaker 3: it's logged there. In terms of mister a Banky, you know,
4:07
Speaker 3: he was convicted way back in twenty ten of multiple
4:11
Speaker 3: crimes tied to Iranian sanctions, and on appeal two of
4:17
Speaker 3: those counts were thrown out, so he had one sort
4:19
Speaker 3: of remaining conviction when he was pardoned for false statements
4:23
Speaker 3: to investigators. So in terms of banking, when you pull
4:27
Speaker 3: up sort of say the press release from the Manhattan
4:30
Speaker 3: US Attorney's office, at the top you will see an update.
4:35
Speaker 4: On there in red.
4:36
Speaker 3: So the press release stays laying out, you know, extensively
4:40
Speaker 3: what he was convicted of by a jury, but at
4:44
Speaker 3: the top in red it says, you know, update and
4:46
Speaker 3: it notes both the appellate and then it says, you know,
4:50
Speaker 3: he received a presidential.
4:51
Speaker 4: Pardon for the fourth conviction.
4:53
Speaker 3: So the record remains, and you can also pull up
4:55
Speaker 3: those cases and you can look at transcripts and see,
4:58
Speaker 3: you know, in the case of mister Broydy, what he
5:00
Speaker 3: said to the judge at the time when he was
5:02
Speaker 3: pleading guilty.
5:03
Speaker 2: Who is representing Boydie and Banky.
5:07
Speaker 4: Yeah.
5:07
Speaker 3: So they're represented by a firm called Share Jaffy. It's
5:11
Speaker 3: a boutique firm here in Washington, d C. They've really
5:14
Speaker 3: done a lot of work on sort of political conservative causes.
5:17
Speaker 3: They've brought cases on behalf of America First Legal, which
5:22
Speaker 3: is an advocacy group that was co founded by current
5:25
Speaker 3: White House Deputy Chief of Staff Stephen Miller. They've also
5:29
Speaker 3: did a lot on behalf of Elon Musk some years
5:32
Speaker 3: ago when he said he would have legal representation for
5:35
Speaker 3: people that it may have been penalized for what they've
5:39
Speaker 3: said on his social media network Twitter and then x
5:43
Speaker 3: and so they famously kind of represented a Disney actress
5:46
Speaker 3: who had lost her job because some postings online. Those
5:49
Speaker 3: are just a flavor of some of the cases that
5:52
Speaker 3: they've they've brought.
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Speaker 2: Some maga people think that conservatives are being debanked for
5:58
Speaker 2: their political belief and you're right that it's become an
6:02
Speaker 2: obsession with some including President Trump.
6:05
Speaker 3: Yes, I mean President Trump or and the Trump Organization
6:08
Speaker 3: has sued Capital One Financial Core making accusations that they
6:13
Speaker 3: had improperly kind of closed hundreds of accounts that the
6:18
Speaker 3: Trump organization had and Capital ones denied any sort of
6:21
Speaker 3: wrongdoing here. They moved to have the case dismissed. You know,
6:26
Speaker 3: that's in front of a judge right now, and you know,
6:29
Speaker 3: the argument on their end is that they had the
6:31
Speaker 3: right to cancel accounts based on sort of the contracts
6:34
Speaker 3: that they had for those accounts. You know, it's been
6:36
Speaker 3: a personal issue for the president. Additionally, in August, he
6:41
Speaker 3: issued an executive order directly at this issue, called Guaranteeing
6:45
Speaker 3: Fair Banking for All Americans, in which he sort of
6:49
Speaker 3: calls out the quote unquote de banking of you know,
6:53
Speaker 3: specifically conservatives and others for you know, whether political or
6:57
Speaker 3: religious reasons, and orders financial regulators to remove some of
7:04
Speaker 3: the standards they had in reviewing accounts at institutions, as
7:10
Speaker 3: well as kind of looking back and see whether any
7:12
Speaker 3: people's accounts had been closed due to whether political, religious reasons,
7:19
Speaker 3: or some other sort of unfair determination.
7:22
Speaker 4: So that's ongoing right now.
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Speaker 2: I mean, is there any evidence that banks are targeting
7:30
Speaker 2: specifically targeting conservatives because of their political views.
7:35
Speaker 3: After January sixth, there were a lot of sort of
7:38
Speaker 3: stories coming out. You know, there was a lot of
7:41
Speaker 3: concern that people were losing their accounts in some way.
7:44
Speaker 3: I mean, banks have a lot of leeway in terms
7:48
Speaker 3: of deciding whether to close an account. They kind of
7:52
Speaker 3: used this term reputational risk. That's kind of a catch
7:56
Speaker 3: all when sort of making those determinations, and then also
7:59
Speaker 3: includes sort of looking at you know, news media accounts
8:03
Speaker 3: involving people. It's one thing they look at. And so
8:06
Speaker 3: I've seen it on sort of both ends. I mean,
8:08
Speaker 3: I think on the Democratic side, Elizabeth Warren and others
8:12
Speaker 3: have also been very vocal about claiming that certain Americans
8:17
Speaker 3: were losing their banking, specifically Muslim Americans, you know, So
8:21
Speaker 3: it has been on both sides of the political aisle.
8:25
Speaker 2: Since the executive order, have banks been making changes.
8:30
Speaker 3: Some got out ahead of that, you know, JP Morgan,
8:32
Speaker 3: you know, beginning even after the election last year, had
8:36
Speaker 3: started making changes, you know, both in public materials and
8:39
Speaker 3: then in their own policies, specifically noting that that it
8:43
Speaker 3: would not you know, base decision making on accounts on
8:46
Speaker 3: religious or political views. So you're seeing it there. You're
8:50
Speaker 3: even seeing it in terms of these cases. Mister Bonkey.
8:53
Speaker 3: You know, one of the things that happened after he
8:56
Speaker 3: brought his case over not receiving credit from JP Moore.
9:00
Speaker 3: Is it happened that he had two accounts at another
9:04
Speaker 3: institution called First Republic Bank, which in twenty twenty three
9:09
Speaker 3: had collapsed and was taken over by JP Morgan, and
9:12
Speaker 3: that included two of his accounts. So initially they had
9:16
Speaker 3: moved to close those two accounts, with one of their
9:19
Speaker 3: anti money laundering executives selling the court due to his
9:23
Speaker 3: earlier conviction. Once this lawsuit was sort of underway and
9:28
Speaker 3: he moved for a temporary restraining order to stop them
9:32
Speaker 3: from closing those accounts. JP Morgan kind of reversed itself
9:36
Speaker 3: and they made the decision. They told us that they
9:40
Speaker 3: looked at, you know, that appeal that he was successful
9:43
Speaker 3: on with some of the criminal accounts.
9:45
Speaker 4: They also looked at it had.
9:46
Speaker 3: Been fifteen years to them that this time had gone
9:50
Speaker 3: by without any other sort of criminal allegation against him,
9:53
Speaker 3: and so they're going to keep those accounts open. So
9:56
Speaker 3: you're so also seeing it here at this level in
9:58
Speaker 3: the litigation.
10:00
Speaker 2: Did Broidy ever get an American Express card?
10:04
Speaker 3: Unclear at the moment, but in terms of his matter,
10:07
Speaker 3: you know, his company, Broady Capital, an investment firm, and
10:11
Speaker 3: the company had an American Express card. You know, it
10:14
Speaker 3: was under his operations manager's name. He wanted one for
10:17
Speaker 3: himself and that's what sort of sparked all this when
10:20
Speaker 3: they denied him. And you know, at the moment, this
10:23
Speaker 3: is still in litigation. In fact, there's a you know,
10:25
Speaker 3: a hearing this week in the matter. And on American
10:28
Speaker 3: Express's end, they are telling me the judge that they
10:31
Speaker 3: need to dismiss his case because these card member agreements
10:34
Speaker 3: account agreements usually require that dispute to be handled and arbitration, and.
10:39
Speaker 2: From the bank's point of view, explain why they might
10:42
Speaker 2: not want to extend credit to someone who was convicted
10:45
Speaker 2: of a crime, especially financial crimes.
10:49
Speaker 4: Right.
10:49
Speaker 3: Well, so it's really a liability issue for the banks
10:52
Speaker 3: that they're making these assessments. They have to comply under
10:55
Speaker 3: the law. You know that the people who they're giving
10:58
Speaker 3: access to the US financial system too are not going
11:01
Speaker 3: to be using it for illicit purposes.
11:03
Speaker 4: So you have a twofold one.
11:05
Speaker 3: If someone's a fraudster, the bank itself could later be
11:08
Speaker 3: sued by victims claiming that they didn't do enough. They
11:10
Speaker 3: can also be penalized for the government for not abiding
11:13
Speaker 3: by all the rules and regulations to ensure that we have,
11:17
Speaker 3: you know, a safe banking system. So if somebody has
11:20
Speaker 3: some type of financial crime on the record, that's going
11:23
Speaker 3: to be looked at very closely by the bank. You know,
11:25
Speaker 3: in terms of how aggressive they are in this space.
11:30
Speaker 3: Talking to a number of defense lawyers, a lot of
11:33
Speaker 3: times people lose their banking even at the first sign
11:37
Speaker 3: of an investigation, let alone a conviction. So you know,
11:40
Speaker 3: it's quite common for a bank to receive a subpoena
11:44
Speaker 3: even for records of somebody you know, related to a case,
11:48
Speaker 3: and immediately cut off an account. So someone might learn
11:52
Speaker 3: their under investigation just by losing access to their banking.
11:55
Speaker 3: It's kind of a large wave in terms of you know,
11:58
Speaker 3: investigation and losing banking.
12:00
Speaker 2: It's really been a fascinating conversation. Thanks so much, Tom.
12:03
Speaker 2: That's Tom Schoenberg, Bloomberg Senior Reporter. The Trump administration got
12:08
Speaker 2: some serious pushback from a panel of Ninth Circuit Appellate
12:12
Speaker 2: judges during oral arguments over the administration's deployment of thousands
12:17
Speaker 2: of California National Guard troops to Los Angeles. In June.
12:22
Speaker 2: San Francisco Federal Judge Charles Bryer had ruled in September
12:27
Speaker 2: that Trump's deployment violated the Posse Comma Tatis Act, a
12:31
Speaker 2: nineteenth century law that bars using the military for civilian
12:36
Speaker 2: law enforcement. The Trump administration appealed, and Judge Eric Miller
12:41
Speaker 2: was one of the appellate judges who sounded skeptical that
12:45
Speaker 2: the protests were violent riots that created an exception to
12:50
Speaker 2: Possecomma tatis. He questioned the Justice Department's attorney, Eric MacArthur
12:56
Speaker 2: about the extent of the protests.
13:00
Speaker 4: Why is.
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Speaker 5: A couple of hundred people engaging in disorderly conduct and
13:07
Speaker 5: throwing things that of building over the course of two
13:10
Speaker 5: days of comparable severity to an invasion or a rebellion. Well,
13:17
Speaker 5: because violence is being used to thwart enforcement of federal law.
13:21
Speaker 5: And I don't know, but violence is used to thwart
13:23
Speaker 5: enforcement to federal law all the time. Well, right, I mean,
13:26
Speaker 5: like the FBI goes to arrest somebody and he shoots
13:31
Speaker 5: at them or tries to run away, and that happens
13:34
Speaker 5: every day.
13:35
Speaker 2: On the same day the oral arguments took place Wednesday,
13:39
Speaker 2: the full Ninth Circuit declined to reyear on bank, meaning
13:44
Speaker 2: the full court another decision allowing Trump's federalization of the
13:49
Speaker 2: California National Guard. If it sounds confusing, that's because it is.
13:54
Speaker 2: And here to help us sort it out is Joshua Castenberg,
13:58
Speaker 2: a professor at the University of New Mexico Law School
14:01
Speaker 2: and a former judge in the US Air Force. Josh
14:05
Speaker 2: let's start with the oral arguments over the posse Cooma
14:09
Speaker 2: toaddis Act. One of the things that Trump administration argued
14:14
Speaker 2: was that the president has unreviewable power when it comes
14:18
Speaker 2: to deploying the National Guard.
14:21
Speaker 1: One of the things that the administration is arguing is
14:25
Speaker 1: that if you go back to the beginning of the
14:27
Speaker 1: country and you look at this case called Martin versus Mott,
14:31
Speaker 1: which the Supreme Court rolled on in eighteen twenty seven,
14:36
Speaker 1: coming out of the War of eighteen twelve, it just
14:39
Speaker 1: took a while for that issue to percolate up to
14:41
Speaker 1: the court that the president's authority to declare something an
14:47
Speaker 1: emergency is non reviewable by the courts. That's what the
14:51
Speaker 1: administration's position is, California's position, New York's position, the Illinois
14:56
Speaker 1: position is that's not true that the president commander in
15:00
Speaker 1: chief and the commander in chief's orders to his or
15:05
Speaker 1: her troops may be non reviewable by the courts, but
15:09
Speaker 1: the actual declaration of an emergency or the use of
15:14
Speaker 1: those troops is clearly reviewable by the courts. So those
15:18
Speaker 1: are two different things, and that's central to what the
15:22
Speaker 1: Ninth Circuit is trying to rule on right now.
15:25
Speaker 2: And so did it seem like the judges were skeptical
15:30
Speaker 2: about the government's argument that they couldn't review it.
15:33
Speaker 1: Well, I believe they are. I mean, when you say government,
15:37
Speaker 1: there are several governments fighting each other in the court.
15:40
Speaker 2: Let's say the Trump administration.
15:42
Speaker 1: Yeah, I think the judges are skeptical about that. To me,
15:46
Speaker 1: it goes back to the Youngstown sheet and Tube versus
15:49
Speaker 1: Sawyer decision in the last days of the Harry Truman administration,
15:54
Speaker 1: when Truman tried to make a similar argument. And the
15:57
Speaker 1: thing is, you know, I go back to one of
15:59
Speaker 1: the things that William O. Douglas mentioned his concurrence in
16:03
Speaker 1: that plurality, which is, if a president is free to
16:07
Speaker 1: declare anything as an emergency so to bridge the basic
16:12
Speaker 1: rights of the people, then all will have in the
16:16
Speaker 1: future is government by emergency. That it'll just be the
16:20
Speaker 1: idea of a president. The laws in the way the
16:23
Speaker 1: peacetime laws are in the way. So to avoid dealing
16:28
Speaker 1: with the courts, I'm just going to declare things are
16:30
Speaker 1: an emergency. And I think the Ninth Circuit is skeptical
16:34
Speaker 1: of that argument, as they should be, because you know,
16:38
Speaker 1: the courts and the country as a whole have already
16:41
Speaker 1: been warned that that argument is a non starter when
16:45
Speaker 1: it comes to domestic issues.
16:48
Speaker 2: Another issue was whether the Trump had violated the Posse
16:52
Speaker 2: Commatatis Act. So the White House had framed the protest
16:55
Speaker 2: as violent riots, but Judge Eric Miller Trump pointde asked
17:01
Speaker 2: why a few hundred people engaging in disorderly conduct over
17:05
Speaker 2: two days was comparable to an invasion or a rebellion,
17:10
Speaker 2: and he pushed the Trump administration lawyer on that.
17:14
Speaker 1: Yeah, you know, as he should be skeptical. I mean
17:18
Speaker 1: a riot, an insurrection, a rebellion, none of them have
17:23
Speaker 1: you know, really true tight legal definitions. I look at
17:28
Speaker 1: a rebellion, and I look at South Carolina militia firing
17:31
Speaker 1: on Fort Sumter in eighteen sixty one, and that's clear
17:34
Speaker 1: that that's a rebellion. Politicians have called things rebellions before
17:40
Speaker 1: that are far short of a rebellion or an insurrection
17:43
Speaker 1: and World War One, there was a group of farmers
17:46
Speaker 1: in Oklahoma who thought they could march on Washington, d C.
17:49
Speaker 1: To prevent the draft from occurring. They called it the
17:52
Speaker 1: green Corn Rebellion. It's really just about a thousand farmers.
17:55
Speaker 1: It wasn't a rebellion at all, and most of them
17:57
Speaker 1: didn't make it out of state. So a rebellion or
18:01
Speaker 1: an insurrection is something that either threatens to topple the
18:05
Speaker 1: government or completely prevents the government from fulfilling its functions,
18:10
Speaker 1: whether that's a federal or a state government. And that's
18:13
Speaker 1: not at play here. You do have people breaking the law,
18:16
Speaker 1: you also have the majority of people simply exercising their
18:19
Speaker 1: constitutional rights of freedom of speech and freedom of assembly.
18:23
Speaker 1: And if a president can call that a rebellion, an insurrection,
18:27
Speaker 1: or an uncontrollable riot, we'll never hear the end of that.
18:31
Speaker 1: That will be used to crush dissent. So I think
18:35
Speaker 1: where the Trump appointee the judges coming down on, and
18:38
Speaker 1: it's something I think we should all take to heart,
18:41
Speaker 1: is this is not a case about whether or not
18:45
Speaker 1: the president can use law enforcement. This is a case
18:49
Speaker 1: about whether the president can use the military as law enforcement,
18:54
Speaker 1: and that's what the Possecomma Tatis Law was drafted to
18:57
Speaker 1: prevent in eighteen seventy seven. The Posse Cooma Tatis Act
19:03
Speaker 1: comes into being partly as Southern demands to end reconstruction,
19:10
Speaker 1: Southern demands to prohibit the use of the army to
19:13
Speaker 1: enforce civil rights. Kind of as a sordid beginning, but
19:17
Speaker 1: also it was a reflection on what the framers of
19:19
Speaker 1: the Constitution feared, which was a standing army being used
19:23
Speaker 1: to police the people, to course how they vote and
19:27
Speaker 1: who would remain in office, and who remains in power
19:31
Speaker 1: and the like. Until Donald Trump, the only president that
19:37
Speaker 1: acted in a manner that I would say was heavy
19:41
Speaker 1: handed was Grover Cleveland. And Grover Cleveland though at least
19:45
Speaker 1: he had a US District Court injunction on his side.
19:49
Speaker 1: During the Pullman strikes, you know, in the Midwest in
19:53
Speaker 1: eighteen ninety five, there was a wide scale labor strike.
19:58
Speaker 1: There were anarchists were a part of that strike, though
20:02
Speaker 1: most of them are simply following Eugene Debs, who later
20:05
Speaker 1: ran for president. But the strikers were preventing the mail
20:09
Speaker 1: from going on trains, and so that's what Grover Cleveland
20:13
Speaker 1: and his Attorney General, Richard Olney, latched onto when using
20:16
Speaker 1: the army to suppress the strike, but again they had
20:20
Speaker 1: gone to the courts first and gotten permission. Here you
20:24
Speaker 1: have the president acting as though the courts don't matter,
20:27
Speaker 1: as though the courts are not a coequal branch of government,
20:31
Speaker 1: and he can use the military for anything he wants
20:34
Speaker 1: and it's non reviewable. And I think that's where the
20:38
Speaker 1: skepticism comes in from the Trump appointing. But there's one
20:41
Speaker 1: other thing I'd point out. No one is opposing the
20:44
Speaker 1: president enlarging the FBI. No one's opposing the president enlarging
20:49
Speaker 1: ICE or any other federal police force. But the fundamental
20:53
Speaker 1: difference between the FBI or ICE or any other federal
20:57
Speaker 1: police force on the one side and the military on
21:00
Speaker 1: the other is that the President of the United States
21:03
Speaker 1: is not the commander in chief of the FBI. He's
21:06
Speaker 1: still the chief executive. And the FBI is much more
21:10
Speaker 1: free to question a president's orders and to say the
21:14
Speaker 1: heck with this and walk off their job then the military.
21:18
Speaker 1: And when a soldier, sailor airman, or marine gets an
21:21
Speaker 1: order from the President, that soldier, sailor, airman, and marine
21:27
Speaker 1: operates under a separate legal system, the Uniform Code of
21:30
Speaker 1: Military Justice, and it is the only legal system in
21:34
Speaker 1: the United States which places a burden of proof on
21:38
Speaker 1: the defendant to prove that a presidential order is unlawful,
21:43
Speaker 1: rather than the government having to prove that the order
21:46
Speaker 1: is lawful. So the presumption of everyone in Uniform is
21:50
Speaker 1: the President orders me to do this, I have no
21:53
Speaker 1: choice but to do. If I don't, I may end
21:55
Speaker 1: up with a dishonorable discharge and a long sentence in
21:59
Speaker 1: a military prison. And I think that smart judges understand
22:04
Speaker 1: that distinction, and that's why the Posse Comma Tatis Act
22:07
Speaker 1: is so important, as well as the framers of the
22:11
Speaker 1: Constitution and their division of power and checks and balances
22:15
Speaker 1: and the fear of standing armies.
22:18
Speaker 2: I mean, there are so many seemingly conflicting opinions out
22:22
Speaker 2: there on Trump's sending troops in so On Wednesday, the
22:27
Speaker 2: full Ninth Circuit declined to hear Newsome versus Trump on
22:33
Speaker 2: bank meaning by a full court bench, and so that
22:37
Speaker 2: basically uphosed the ruling that permits Trump to maintain federal
22:41
Speaker 2: authority over California National Guard troops that were deployed in
22:46
Speaker 2: Los Angeles during the protest. At the same time, you
22:50
Speaker 2: had these oral arguments also at the Ninth Circuit over
22:54
Speaker 2: whether Trump's deployment of the troops to LA violated the
22:58
Speaker 2: Posse Commatatis Act. Though that seems to be on its
23:02
Speaker 2: face a conflict. Explain why it isn't.
23:06
Speaker 1: That's a great question. So this is what's going on.
23:10
Speaker 1: No member of the bench, on the one hand, want
23:13
Speaker 1: to prevent the president from having the authority to federalize
23:18
Speaker 1: the Guard. There would be no desire, for example, if
23:22
Speaker 1: China were to invade an ally or Russia were to
23:27
Speaker 1: invade an ally, that the Court should be called to
23:30
Speaker 1: intervene on a presidential call up. No one wants to
23:34
Speaker 1: spend time in the courts if there's a real, no kidding,
23:39
Speaker 1: real national emergency where the President would have to call
23:42
Speaker 1: up the Guard, say a massive earthquake or typhoon disrupts
23:46
Speaker 1: and disables the Eastern Seaboard or California. So there's a
23:50
Speaker 1: reluctance to intervene in the president calling up the Guard.
23:55
Speaker 1: But it's what the president does when the Guard is
23:58
Speaker 1: called into federal service or using active duty forces, particularly
24:03
Speaker 1: the army, which that's what the posse Cooma Tatis Act
24:06
Speaker 1: covers this doesn't cover the Marine Corps. There's a fundamental
24:10
Speaker 1: difference between that what the president does with the military
24:14
Speaker 1: versus calling up And I think that's what part of
24:16
Speaker 1: the confusion is with these myriad of cases. The other
24:20
Speaker 1: has to do with whether or not a temporary restraining
24:24
Speaker 1: order should stay in effect or not. And just keep
24:28
Speaker 1: in mind that a president or any party may lose
24:32
Speaker 1: on a temporary restraining order but then win later on
24:35
Speaker 1: on the substantive issue or vice versa, And so you
24:39
Speaker 1: get all these sort of convoluted, you know, decisions. What
24:42
Speaker 1: is the standard, what is the question being raised under
24:45
Speaker 1: the standard? And to the general public, who isn't trained
24:49
Speaker 1: in the law, it looks like the court is sea
24:52
Speaker 1: sawing between various things and making no sense. But that
24:56
Speaker 1: that's really not what's going on. It's that there are
24:59
Speaker 1: these nuances questions.
25:01
Speaker 2: Coming up next. But what about the conflicting opinions from
25:04
Speaker 2: the Ninth and Seventh Circuits, one allowing Trump to send
25:08
Speaker 2: troops into Portland, Oregon, the other barring Trump from sending
25:13
Speaker 2: troops to Chicago, Illinois. You're listening to Bloomberg. President Trump's
25:19
Speaker 2: push to send the military into democratic run cities despite
25:24
Speaker 2: fearce opposition from state and local leaders has unleashed a
25:28
Speaker 2: whirlwin of lawsuits and overlapping court rulings. Some just seem
25:34
Speaker 2: to be contradictory, others are contradictory. I've been talking to
25:38
Speaker 2: Professor Joshua Castenberg at the University of New Mexico Law School.
25:43
Speaker 2: Even for those of us who know, does it seem
25:46
Speaker 2: like courts are coming down with different decisions Because you
25:49
Speaker 2: had the Seventh Circuit saying that no, you can't send
25:53
Speaker 2: troops into Chicago, Illinois, and then you had the Ninth
25:57
Speaker 2: Circuit panel with two Trump appointees saying you can send
26:01
Speaker 2: them into Portland. You know, the facts were slightly different,
26:04
Speaker 2: but not that different.
26:05
Speaker 1: You know. It's actually what you say is a great point.
26:09
Speaker 1: Two different federal circuits ruling differently on similar issues is
26:16
Speaker 1: not unheard of, and generally that's what gets a case
26:19
Speaker 1: into the Supreme Court circuit splits. I'm not a big
26:23
Speaker 1: fan on you know, this is an Obama judge, This
26:27
Speaker 1: is a Trump judge versus a Biden or a Bush judge.
26:31
Speaker 1: Although I will say there's a couple of judges that
26:33
Speaker 1: Donald Trump appointed that to me are clearly partisan towards him.
26:38
Speaker 1: But those judges are not in the Seventh or ninth
26:41
Speaker 1: Circuit that I'm thinking about, so they're not really playing
26:44
Speaker 1: a role in this at all. What strikes me is
26:49
Speaker 1: the question of how much difference should a president have
26:53
Speaker 1: on military affairs is key to this. There has been
26:58
Speaker 1: an unfor in my opinion, an unfortunate doctrine called the
27:01
Speaker 1: military deference doctrine. You don't find it stated clearly by
27:05
Speaker 1: the Supreme Court anywhere, but it exists that goes back
27:10
Speaker 1: to the turn of the last century, at least to
27:13
Speaker 1: the Spanish American War, if not World War One, where
27:17
Speaker 1: the courts give the president greater deference in military matters
27:22
Speaker 1: than they do on anything else. And there are judges
27:26
Speaker 1: who don't like the defference doctrine, and there are judges
27:29
Speaker 1: who seem to just acquiesce to the defference doctrine. And
27:32
Speaker 1: I think that's where some of this difference is.
27:35
Speaker 2: The Illinois case is before the Supreme Court. Yeah, and
27:40
Speaker 2: does it seem likely on a temporary basis that they'll
27:43
Speaker 2: allow Trump to send troops in.
27:47
Speaker 1: I can't predict what the court will do. I could
27:50
Speaker 1: only tell you what I would hope the Court would do.
27:52
Speaker 1: But I can't predict what the Court will do. They
27:55
Speaker 1: couldn't guess everything President Trump will do that. They can't
28:00
Speaker 1: guess that. But they sure as heck could have seen
28:03
Speaker 1: this coming when they issued Trump versus United States, because
28:07
Speaker 1: now you have a president who can test the boundaries
28:10
Speaker 1: in a way that no other president did in peacetime
28:14
Speaker 1: before him, and thinking, what's the worst that can happen?
28:17
Speaker 1: It's an official presidential act.
28:20
Speaker 2: I think most of us are still questioning that case
28:23
Speaker 2: and how it came out that way and the Chief
28:26
Speaker 2: Justice's opinion.
28:27
Speaker 1: Yeah, well, as a legal historian, you know, and there
28:30
Speaker 1: can be differences of opinion what I would say about this,
28:33
Speaker 1: just like Fitzgerald versus Nixon in nineteen eighty and just
28:39
Speaker 1: like you know, Deshaney versus you know, which is the
28:43
Speaker 1: judicial immunity case. None of that is required by the Constitution.
28:47
Speaker 1: What they basically did was shield the judicial branch and
28:51
Speaker 1: the executive branch from having to deal with the normal
28:55
Speaker 1: day to day operations of the law that you and
28:58
Speaker 1: I and everyone else have to deal with. And I
29:01
Speaker 1: go back to Byron White's dissent on the Fitzgerald case.
29:07
Speaker 1: To me, Nixon versus Fitzgerald and Trump versus United States,
29:12
Speaker 1: are the majority showed a disregard and a distrust of
29:16
Speaker 1: the very rule of law that in their speeches every
29:19
Speaker 1: day they encourage us to embrace. I try to be
29:23
Speaker 1: soft tongued and objective when we talk about these things.
29:27
Speaker 1: It was very difficult to be, because if there's one
29:30
Speaker 1: thing that the far right and the far left and
29:33
Speaker 1: everybody in between should agree on and embrace in the law,
29:38
Speaker 1: it's that John Adams and Thomas Jefferson, Alexander Hamilton, all
29:43
Speaker 1: these so called bright men who created the Constitution, and
29:47
Speaker 1: those we don't know of who voted to ratify it
29:49
Speaker 1: did so with the understanding that military authority would only
29:56
Speaker 1: exist on the borders of this country, that it would
30:00
Speaker 1: never be used in the manner that it's being used now,
30:04
Speaker 1: and that we would never have another Oliver Cromwell come
30:07
Speaker 1: onto our shores, and we would stop it before it began.
30:11
Speaker 2: Josh, I understand that one of the law review articles
30:15
Speaker 2: you've written was quoted from extensively by the dissenting judge
30:21
Speaker 2: in the Ninth Circuit's opinion turning down an on Bank
30:25
Speaker 2: review of the decision allowing President Trump's federalization of the
30:31
Speaker 2: California National Guard. So tell us a little about it.
30:34
Speaker 1: So there's been a lot of discussion about this decision
30:38
Speaker 1: from the Supreme Court called Martin versus Mott, and it's
30:42
Speaker 1: from eighteen twenty seven. And what the government has increasingly
30:45
Speaker 1: used it to argue from is this idea that the
30:49
Speaker 1: president's decisions on national security are immune from judicial review.
30:56
Speaker 1: And the problem with Martin versus Mott is that it's
30:59
Speaker 1: legal history doesn't say that at all. It just focused
31:03
Speaker 1: on what the relationship is between a National guardsman. But
31:08
Speaker 1: those days they called it a militia troupe and the president.
31:14
Speaker 1: It has nothing to do with presidential authority at all
31:18
Speaker 1: over the people of this country or over the laws.
31:20
Speaker 1: And I point that out that when Martin versus Mott
31:24
Speaker 1: was decided, the judicial oversight of the military was quite robust.
31:30
Speaker 1: I mean, it went through the New York state court system.
31:32
Speaker 1: You can't challenge military orders in state courts anymore. That
31:37
Speaker 1: ended after the Civil War. And so Martin versus Mott
31:41
Speaker 1: does not carry with it any of the strength that
31:44
Speaker 1: the Trump administration believes that it does. And my article
31:49
Speaker 1: was published in the Louisiana State University Law Review back
31:52
Speaker 1: in twenty twenty one. I wasn't thinking of this issue
31:56
Speaker 1: at all when I published it. I was thinking of
31:59
Speaker 1: something else when I publish the legal history article on it.
32:03
Speaker 1: But I'm happy that it's sings some use now.
32:06
Speaker 2: Well, congratulations on getting cited in a ninth Circuit decision,
32:11
Speaker 2: and thanks for the discussion today. That's Professor Joshua Castenberg
32:15
Speaker 2: of the University of New Mexico Law School. And that's
32:19
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
32:21
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