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The White House Ballroom & Special DC Grand Jury · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 1: The U.S.
0:09
Speaker 2: Supreme Court is allowing President Trump to keep building his
0:13
Speaker 2: new White House ballroom, brushing aside conclusions by two lower
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Speaker 2: courts that he's probably violating the law. The court's majority
0:22
Speaker 2: agreed with the administration that the historic preservation group that
0:27
Speaker 2: sued likely lacked legal standing. The vote was five to four,
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Speaker 2: with Chief Justice John Roberts joining the three liberals in dissent.
0:37
Speaker 2: Although the high court order is temporary, it all but
0:40
Speaker 2: guarantees that Trump can complete the vast majority of the
0:44
Speaker 2: structure before the legal fight concludes. Joining me is Bloomberg
0:49
Speaker 2: legal reporter Zoe Tillman. The majority here, the five conservative justices,
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Speaker 2: decided this on jurisdictional grounds.
0:57
Speaker 1: Explain that.
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Speaker 3: That's right. So at this stage, what it came down
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Speaker 3: to was whether the historic preservation group that sued had
1:05
Speaker 3: standing to bring this case in the first place. And
1:08
Speaker 3: lower courts had determined that they did. And the justices
1:12
Speaker 3: here determined that they were likely to lose on that question.
1:15
Speaker 3: This involves what is often referred to as an aesthetic injury,
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Speaker 3: which in some cases has been a real injury. There
1:22
Speaker 3: had been some discussion of environmental cases where The view
1:26
Speaker 3: of a national park or the presence of an endangered animal,
1:30
Speaker 3: the loss of that was a concrete injury that would
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Speaker 3: give someone standing to sue. So in this case, the
1:36
Speaker 3: question was, could a member of this historic preservation group
1:39
Speaker 3: claim an aesthetic injury from viewing the construction of the
1:43
Speaker 3: new ballroom enough to give them standing to sue? The
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Speaker 3: majority said no, that this was basically a mere offense, disagreement, distaste.
1:52
Speaker 3: That wasn't enough.
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Speaker 2: The Trump administration has claimed there are national security and
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Speaker 2: military reasons for the ballroom. Did the majority consider that
2:02
Speaker 2: in the decision?
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Speaker 4: They did.
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Speaker 3: On the other balance of the harm, they cited representations
2:08
Speaker 3: from different agencies, from national intelligence, the CIA, the FBI,
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Speaker 3: Secret Service, Homeland Security, others, saying that there were a
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Speaker 3: litany of national security reasons. Why? the above-ground portion of
2:21
Speaker 3: the project, which is the ballroom, that's what we all
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Speaker 3: sort of understand visually and structurally this is really about,
2:28
Speaker 3: whether that could be divorced from the below-ground components of
2:31
Speaker 3: the project, which everyone understood to be perhaps more tethered
2:35
Speaker 3: to some of these other security concerns. And the lower
2:37
Speaker 3: courts had said that below-ground portion can continue, just not above-ground. Today,
2:43
Speaker 3: what the majority said was they gave more weight to
2:45
Speaker 3: the argument that you really couldn't separate those two components
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Speaker 3: of the project.
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Speaker 2: So now the surprise here is that the chief justice,
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Speaker 2: John Roberts, joined the three liberal justices in dissent.
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Speaker 4: Right.
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Speaker 3: Not just in dissent, but writing the dissent, really taking
3:02
Speaker 3: ownership of that decision in a way that we should
3:04
Speaker 3: say the majority opinion was not signed by any one justice.
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Speaker 3: So we don't put a name on that. It's just
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Speaker 3: the remaining conservative justices. But no, the chief wrote a
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Speaker 3: strong dissent saying that that this is not a victory
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Speaker 3: for the separation of powers, giving credence to this idea
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Speaker 3: of aesthetic injury as providing legitimate standing to sue over
3:27
Speaker 3: situations like this. And then he concludes by quoting Winston
3:31
Speaker 3: Churchill about the importance of how buildings shape us and
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Speaker 3: the significance of following the rules in deciding, he says, quote,
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Speaker 3: what to tear down and what to build up at
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Speaker 3: the people's house. So the chief justice, not just in
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Speaker 3: the dissent, but really owning the dissent here.
3:45
Speaker 2: Thanks so much, Zoe. That's Bloomberg Legal Reporter Zoe Tillman.
3:50
Speaker 5: We will arrest you and where we can. We will
3:54
Speaker 5: prosecute you aggressively and we will prosecute your parents.
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Speaker 1: Back in May, D.C.
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Speaker 4: U.S.
4:01
Speaker 2: Attorney Jeanine Pirro threatened to begin aggressively prosecuting parents for
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Speaker 2: contributing to the delinquency of a minor if their children
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Speaker 2: were involved in so-called teen takeovers. Those are social media
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Speaker 2: organized gatherings of teens that have sometimes erupted into violence.
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Speaker 2: Firo said that parents could be charged even if their
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Speaker 2: child wasn't prosecuted. And she mentioned a host of other
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Speaker 2: possible offenses, including repeated truancy.
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Speaker 5: When teens are repeatedly violating the curfew, When they're repeatedly
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Speaker 5: truant from school, when they possess alcohol or drugs no
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Speaker 5: matter how much, it doesn't mean that they have to
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Speaker 5: be prosecuted. When they are violating a court order or
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Speaker 5: when they're already a PINS, a person in need of supervision,
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Speaker 5: or committing criminal offenses like we saw in Chipotle, we're
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Speaker 5: coming for you and we're coming for your parents.
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Speaker 2: Well, now Pirro has convened a rare special grand jury
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Speaker 2: in D.C. to investigate public schools, zeroing in on truancy,
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Speaker 2: graduation rates and attendance records. That's according to The Washington Post.
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Speaker 2: Joining me is constitutional law expert David Super, a professor
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Speaker 2: at Georgetown Law. David, so preliminary data for the 2025-2026
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Speaker 2: school year shows that 50.4% of D.C. high school students
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Speaker 2: are chronically truant. And the district education officials have said
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Speaker 2: that chronic absenteeism and truancy remain significant concerns. Why is
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Speaker 2: the federal government getting involved here? This seems like a very,
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Speaker 2: very local matter.
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Speaker 6: This is a very unusual thing to do. DC schools
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Speaker 6: have a history of problems. They also have a history
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Speaker 6: of local efforts to improve them. They're far from fixed,
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Speaker 6: but it seems unlikely to be a situation that a
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Speaker 6: prosecutor could accomplish much dealing with. My suspicion is that
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Speaker 6: the reason we have this special grand jury is is
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Speaker 6: because of the other special grand jury looking into the
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Speaker 6: reflecting pool fiasco. I'm sure Prosecutor Pirro irritated the president
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Speaker 6: with that, and this is an effort to mollify.
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Speaker 2: She threatened in a press conference back in May, I think,
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Speaker 2: to prosecute parents whose teenagers break curfew, city curfew, and
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Speaker 2: participate in whatever this teen takeovers.
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Speaker 6: I mean.
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Speaker 2: prosecuting parents criminally for their child's failure to attend school.
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Speaker 2: Is there any precedent for that? It seems like the
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Speaker 2: parents would have a lot of defenses.
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Speaker 6: No, this is a very theatrical move. This isn't ordinary
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Speaker 6: law enforcement. This isn't a sensible approach. Indeed, in many
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Speaker 6: circles around the country, it's controversial to prosecute parents when
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Speaker 6: their kids shoot up a school. If we don't want
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Speaker 6: to hold parents responsible for their kids taking lives, we're
7:30
Speaker 6: actually going to hold them responsible for kids taking too
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Speaker 6: many absences.
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Speaker 2: And even if there were a prosecution, would it be
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Speaker 2: the U.S. Attorney's Office prosecuting or would it be the
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Speaker 2: Attorney General for D.C.? Well, it's an odd situation because D.C.
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Speaker 2: is different from states.
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Speaker 6: Well, this is another example of which we have many
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Speaker 6: of DC's lack of power being used for grandstanding. Democrats
7:58
Speaker 6: have done it occasionally in the past, but lately it's
8:01
Speaker 6: mostly been Republicans. President Trump takes over the DC police
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Speaker 6: department for no apparent reason, accomplishes nothing. President Trump deploys
8:11
Speaker 6: National Guard troops to the streets of DC. I walk
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Speaker 6: past them every day. They're standing around looking really bored.
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Speaker 6: really unhappy, and as far as I can tell, accomplishing
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Speaker 6: nothing other than running up a big tab. He has
8:27
Speaker 6: threatened D.C. with all sorts of things. They've said that
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Speaker 6: they'll take away D.C. 's ability to govern itself if D.C.
8:35
Speaker 6: doesn't follow their agenda. So the mayor of D.C. is
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Speaker 6: really almost a full-time federal relations officer. She has to be.
8:45
Speaker 6: She probably would do a better job in the city
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Speaker 6: if she didn't have to deal with all of this grandstanding.
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Speaker 2: So this is still going on from, you know, the
8:53
Speaker 2: highly publicized calling in of troops to help D.C., help
8:59
Speaker 2: in quotes, to help D.C.
9:01
Speaker 1: With crime.
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Speaker 2: I mean, National Guard troops have been withdrawn from other cities,
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Speaker 2: from Minneapolis and L.A.
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Speaker 6: Those cities have governors who could say, get them out
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Speaker 6: of here. And indeed, in California, they litigate it. I'm
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Speaker 6: not sure if they did in Minnesota or not. But here,
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Speaker 6: they don't really have any legal standing to do it
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Speaker 6: because we are a colony.
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Speaker 2: Also, I mean, with her calling a special grand jury,
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Speaker 2: that means that that grand jury can issue a report,
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Speaker 2: even if they decide not to bring any criminal charges.
9:37
Speaker 1: So they could bring.
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Speaker 2: Out a report that's critical of certain people, that names
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Speaker 2: people without... having to bring charges, isn't that dangerous?
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Speaker 6: It is, because a grand jury is completely controlled by
9:51
Speaker 6: the prosecutor. If a grand jury, as they say in GOES,
9:55
Speaker 6: would indict a ham sandwich at the prosecutor's behest, the
9:59
Speaker 6: grand jury would certainly denounce the ham sandwich. And the
10:04
Speaker 6: expectation is that the grand jury will do what she wants.
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Speaker 6: For political reasons, she wants D.C. condemned. Neither the mayor
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Speaker 6: nor the superintendent of the schools nor anyone else has
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Speaker 6: any right to present arguments or testimony before the grand jury.
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Speaker 6: So they will see only one side of the argument.
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Speaker 6: And if Prosecutor Pirro is any good at all, if
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Speaker 6: you get to completely dominate the information people receive, they
10:33
Speaker 6: will come to the conclusions you want them to come to.
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Speaker 2: And I'm also wondering, since there was a city investigation
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Speaker 2: in 2018... And also, since there's data about how many
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Speaker 2: kids are skipping, what exactly are they investigating?
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Speaker 1: It seems like the information's out there already.
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Speaker 6: When I investigate, it's usually things I don't know. Here,
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Speaker 6: I don't know what they don't know.
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Speaker 2: There are so many reasons why high school kids may
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Speaker 2: skip school. It seems like you need a social scientist
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Speaker 2: or a psychologist more than a grand jury to to
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Speaker 2: discover the causes and cures for truancy?
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Speaker 6: And you say that quite correctly, that there are many
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Speaker 6: different reasons why kids don't come to school. Kids may
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Speaker 6: have behavioral problems. Kids may have nutritional problems. And yet
11:27
Speaker 6: we're cutting kids off of food assistance and Medicaid under
11:32
Speaker 6: Trump's One Big Beautiful Bill Act. So before we start
11:36
Speaker 6: pointing fingers, we should stop making things worse ourselves.
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Speaker 2: Also interesting is that the Legal Accountability Center, a legal
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Speaker 2: watchdog group, filed bar complaints last week accusing Pirro and
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Speaker 2: two of her lieutenants of violating their ethical duties by
11:55
Speaker 2: seeking to charge six Democratic lawmakers with federal crimes for
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Speaker 2: appearing in a video that called on troops to resist
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Speaker 2: unlawful orders. Of course, a D.C. grand jury refused to
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Speaker 2: indict those lawmakers. How long does it take for a
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Speaker 2: bar committee to act? And, you know, what would it
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Speaker 2: take for a bar committee to say, oh, the U.S.
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Speaker 2: attorney has violated legal ethics?
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Speaker 6: Bar committees vary enormously in how fast they are, how
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Speaker 6: efficient they are, how fair they are. And I don't
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Speaker 6: know either of these bar committees at all. Well, if
12:32
Speaker 6: I was on a bar committee or staffing a bar committee...
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Speaker 6: and I got a complaint about a sitting U.S. attorney,
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Speaker 6: I would want to make sure that we had all
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Speaker 6: of our docs in order before we did anything with it.
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Speaker 6: So I would not expect it to move rapidly.
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Speaker 2: And one of Pirro's subordinates accused of violating his ethical
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Speaker 2: duties is Stephen Vandervelden. He's the one who's in charge
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Speaker 2: of this special grand jury. He was also in charge
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Speaker 2: of the investigation into Cheney. former Fed chair Jerome Powell,
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Speaker 2: into the six Democratic lawmakers, into allegations.
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Speaker 1: That the D.C.
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Speaker 2: Police force purposely skewed its crime statistics.
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Speaker 1: So you have to expect something.
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Speaker 6: The list you mention are not the biggest crime threats
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Speaker 6: in D.C. They're the biggest political threats in D.C. And
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Speaker 6: so apparently he's the person who she trusts to carry
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Speaker 6: out political uses of her office.
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Speaker 2: Let's turn now to the Supreme Court. Today, the full
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Speaker 2: court decided on the ballroom, which we had been waiting for.
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Speaker 2: Things are very much in flux due to another decision
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Speaker 2: of the Supreme Court recently, where the court lifted a
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Speaker 2: block on Trump's executive order to restrict mail-in voting over
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Speaker 2: the dissents of the liberal justices. And as surprised as
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Speaker 2: I've been over the past few years with the decisions
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Speaker 2: of the Supreme Court allowing Trump to expand executive power,
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Speaker 2: that decision really shocked me because the president and federal
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Speaker 2: agencies like the post office have no role to play
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Speaker 2: in elections.
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Speaker 1: And that seems crystal clear.
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Speaker 6: The Supreme Court is taking the position that anyone challenging
14:29
Speaker 6: the administration will be held very, very strictly to the
14:33
Speaker 6: letter of all procedural rules. And at the time the
14:38
Speaker 6: plaintiffs in this case filed suit, no one outside the
14:42
Speaker 6: federal government had been harmed. Now, under the Supreme Court's precedent,
14:47
Speaker 6: you can sue over an imminent harm. And when the
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Speaker 6: President of the United States, who this very Supreme Court
14:55
Speaker 6: is empowered to completely control the federal executive branch, says
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Speaker 6: we will interfere with mail voting, that strikes me as
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Speaker 6: an imminent threat. But the Supreme Court said there were
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Speaker 6: enough details that had yet to be filled in, and
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Speaker 6: there was time for a challenge if the administration ever
15:16
Speaker 6: did move forward. But it was striking to me that
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Speaker 6: the opinion of the court said absolutely nothing about the merits.
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Speaker 6: Some of these cases, they say, we're not deciding the merits,
15:28
Speaker 6: and then they tell you what they think about the merits.
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Speaker 6: This one didn't do that. This one, the only thing
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Speaker 6: they said about the merits is time will tell. Of
15:35
Speaker 6: course it will. So I was actually fairly encouraged by
15:41
Speaker 6: the action that they had no consensus to reach out
15:46
Speaker 6: and give the president a boost on that. And they
15:49
Speaker 6: had to know that this case was coming right back
15:52
Speaker 6: to them within a matter of weeks. because the president
15:55
Speaker 6: has now put out a rule to interfere with mail voting.
16:00
Speaker 6: And by the standards they set out in their opinion,
16:03
Speaker 6: plaintiffs are certainly free to challenge that.
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Speaker 2: So, I mean, we have seen this court, you know,
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Speaker 2: given to Trump, especially on the emergency docket. Twice last term,
16:13
Speaker 2: two notable examples where they didn't, which is the tariffs
16:18
Speaker 2: and birthright citizenship. Do you have any confidence that When
16:23
Speaker 2: this comes back to them, as it will, I guess,
16:25
Speaker 2: within the next couple of weeks, maybe, do you have
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Speaker 2: any confidence that they'll reject Trump's attempt here?
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Speaker 6: Yes, I have a lot of confidence, actually. And the
16:35
Speaker 6: two cases you mentioned are good examples of that. Trump
16:38
Speaker 6: won preliminary procedural rulings in both of those cases. The
16:43
Speaker 6: first case involving birthright citizenship got all the way to
16:48
Speaker 6: the court, and they said no nationwide injunctions and sent
16:51
Speaker 6: it back. After the procedural T's were crossed and I's
16:55
Speaker 6: were dotted, the case came back up to them. And
16:58
Speaker 6: five justices said, this is screamingly unconstitutional. You can't do this.
17:02
Speaker 6: Similarly with the tariffs. Trump was allowed to keep his
17:05
Speaker 6: tariffs in place, even though they certainly looked very illegal
17:09
Speaker 6: for the better part of a year. But when they
17:12
Speaker 6: got around to the merits, the court said, this is ridiculous.
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Speaker 6: You can't do this. So I would expect that this
17:19
Speaker 6: is going to be a similar pattern. Trump clearly has
17:23
Speaker 6: no argument that he's entitled to do this. His order
17:27
Speaker 6: and rule are dramatic overreaches. And I would expect that
17:32
Speaker 6: when forced to deal with the merits, the Supreme Court
17:35
Speaker 6: will get rid of it. I can think of several
17:37
Speaker 6: different ways they might get rid of it. And I'm
17:40
Speaker 6: obviously hoping for the more sweeping one, but we'll see.
17:43
Speaker 2: Tell us about the different ways they could get rid
17:45
Speaker 2: of it.
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Speaker 6: One thing they could simply do is allow an injunction
17:49
Speaker 6: against it to stand on the principle that it's too
17:51
Speaker 6: close to the election. The Supreme Court has repeatedly said
17:54
Speaker 6: it's improper to change rules right before an election. And
17:59
Speaker 6: there's even some mention of that in the court's opinion
18:02
Speaker 6: last week. A better result that I'm hoping for is
18:06
Speaker 6: to say, wait a minute, what makes you think you
18:08
Speaker 6: get to run an election? And to get to the
18:11
Speaker 6: merits of this and to kill this idea once and
18:13
Speaker 6: for all.
18:14
Speaker 2: Let me ask you this, not for the midterms that
18:17
Speaker 2: are coming up, but is there any way that it's
18:20
Speaker 2: possible for the post office to say, we will only
18:23
Speaker 2: accept this kind of ballot to go through the mail system?
18:27
Speaker 2: We'll only accept an envelope with these characteristics?
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Speaker 6: I don't think so. The post service comes from a very,
18:36
Speaker 6: very long, centuries-old tradition of having to take anything that
18:42
Speaker 6: is offered to it unless there's a very specific compelling
18:46
Speaker 6: reason not to. They don't have to let you ship
18:49
Speaker 6: biologically hazardous materials or explosives. They don't have to allow
18:53
Speaker 6: you to ship illegal drugs. But ballots are not going
18:57
Speaker 6: to wreck a post office or a mailbox. And at
19:02
Speaker 6: least at the moment, they're not illegal. So I don't
19:05
Speaker 6: think there's anything in the tradition of post offices or
19:09
Speaker 6: common carriers that allows them to reject things simply on
19:14
Speaker 6: the basis of disliking them or having policy disagreements with states.
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Speaker 2: There's enough chaos around the elections. This just adds unnecessary
19:24
Speaker 2: litigation up and down the chain.
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Speaker 6: Well, it only does that because we've never had an
19:30
Speaker 6: administration before that was so uninterested in the law before
19:35
Speaker 6: it acted. If anyone proposed this in the Biden, Bush, Obama, Bush,
19:42
Speaker 6: whatever administrations, lawyers would shoot it down before it got
19:46
Speaker 6: to first base and would say, we have no authority
19:48
Speaker 6: to do this. We live in a federal system. This
19:51
Speaker 6: is up to the states. And the lawyer for the
19:54
Speaker 6: post office would say no. If they were pressed, they'd
19:57
Speaker 6: threaten to resign. And the whole idea would die without
20:00
Speaker 6: anyone ever hearing of it. It's this administration where if
20:04
Speaker 6: they want to do something, they just do it, legalities notwithstanding.
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Speaker 2: Thanks so much for joining me today, David. That's Professor
20:12
Speaker 2: David Super of Georgetown Law. President Trump dismissed concerns that
20:19
Speaker 2: the conflict in Iran was draining American firepower, saying this
20:24
Speaker 2: is a relatively little war for us. The comments came
20:28
Speaker 2: as the U.S. and Iran exchange strikes for the first
20:31
Speaker 2: time in about a month. Joining me is Notre Dame
20:34
Speaker 2: Law School professor Mary Ellen O'Connell, an expert on international
20:39
Speaker 2: law and the use of force. Mary Ellen, you've said
20:42
Speaker 2: that this is on a long list of wars the U.S.
20:46
Speaker 1: Has lost. Has the U.S. definitely lost the war?
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Speaker 4: The standard wisdom is that the U.S. has lost this
20:54
Speaker 4: war already. Certainly the initial war aims that the president
20:58
Speaker 4: announced within a few weeks were There would be nothing
21:02
Speaker 4: left of any nuclear facilities, that the regime would change,
21:09
Speaker 4: that there would be no more support for forces in
21:13
Speaker 4: the region that are sponsored by Iran. And none of
21:17
Speaker 4: those three things have happened. So certainly not within the weeks,
21:23
Speaker 4: the initial war aims are lost. whether you want to
21:27
Speaker 4: now say that they're longer term, that the same war
21:30
Speaker 4: aims hold, they just need more time. I don't know
21:34
Speaker 4: many observers who believe within months, years, that they will
21:41
Speaker 4: be accomplished. The standard wisdom is that this conflict will
21:45
Speaker 4: turn into another of these long, dragged-out conflicts because the U.S.
21:51
Speaker 4: can't win this kind of war the way we're trying
21:54
Speaker 4: to fight it. And our presidents have been reluctant to
21:58
Speaker 4: show the lack of U.S. power by withdrawing before there's
22:03
Speaker 4: something they can claim as a victory. Of course, that
22:07
Speaker 4: didn't happen in Afghanistan. That didn't happen in Libya. That
22:11
Speaker 4: didn't happen in Iran, Vietnam, war after war.
22:18
Speaker 6: So I.
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Speaker 4: Consider this to be unlawful. and that the illegality is
22:25
Speaker 4: a major factor why the U.S. has not been able
22:28
Speaker 4: to win this war or so many others.
22:32
Speaker 2: Tell us about the circumstances surrounding the liberation of Kuwait
22:38
Speaker 2: in 1991.
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Speaker 4: The one clear win was when we defended Kuwait after
22:45
Speaker 4: the invasion of Iraq in 1990. We only needed 100
22:47
Speaker 4: hours of combat. to liberate Kuwait. We lost very few
22:55
Speaker 4: of our personnel and we made money. Why? Because that
23:00
Speaker 4: was such a clear violation of the UN Charter and
23:02
Speaker 4: to that point the US had been defending the actual
23:06
Speaker 4: words of the UN Charter that we wrote after 1945
23:10
Speaker 4: that said you cannot use military force except in too
23:14
Speaker 4: narrow situations if you've been the victim of an armed attack,
23:17
Speaker 4: which Kuwait had been, or there's Security Council authorization. which
23:22
Speaker 4: Kuwait also had for the Coalition of Forces. That's the
23:26
Speaker 4: kind of conflict and clear rule that the world got behind, supported,
23:32
Speaker 4: and that the United States was able to lead. And
23:35
Speaker 4: since then, for over 30 years, Kuwait has been free.
23:40
Speaker 4: Compare that to the 2003 invasion of Iraq. We did
23:46
Speaker 4: have two of our close allies join us in the combat,
23:50
Speaker 4: Australia and the United Kingdom. We know that both of
23:54
Speaker 4: those countries seriously regret that invasion. My colleagues in political
23:59
Speaker 4: science said it would be the worst foreign policy decision
24:02
Speaker 4: in U.S. history to invade Iraq in 2003. We paid trillions.
24:08
Speaker 4: We're still paying. We still had troops vulnerable as a
24:12
Speaker 4: result of that long, misguided conflict. Well, after that example,
24:17
Speaker 4: which countries in the world want to follow the United
24:19
Speaker 4: States into another war? The British were with us from
24:22
Speaker 4: 9-11 for over 20 years in Afghanistan, and the way
24:27
Speaker 4: that that failure, that loss unfolded, again, gave countries concerns
24:33
Speaker 4: about joining the U.S. in another unlawful war. So that
24:38
Speaker 4: is what has happened before. Finally, we're seeing countries that
24:42
Speaker 4: say they're committed to the rule of law putting their
24:45
Speaker 4: actions where their spoken commitments are, They're now seeing the
24:50
Speaker 4: value of only using military force, risking their soldiers' lives
24:57
Speaker 4: and their national treasure when defense is really called for.
25:01
Speaker 4: The Europeans are seeing how Ukraine is suffering from the
25:07
Speaker 4: failure to support the rule of law and really make
25:11
Speaker 4: bold actions in 2014 against Russia when it seized territory
25:16
Speaker 4: in much the same way Iraq had done against Kuwait.
25:20
Speaker 4: All these years later, failure to step up then and
25:24
Speaker 4: going to war, wasting money and lives and other unlawful conflicts.
25:29
Speaker 4: We are where we are today in 2026, but maybe
25:33
Speaker 4: we're about to see a rebuilding, a recommitment to the
25:38
Speaker 4: fundamental law that should be governing international relations. And President
25:43
Speaker 4: Trump has made it very clear what happens to a
25:45
Speaker 4: country when it doesn't support the international rule of law.
25:50
Speaker 2: The general consensus is that this war is against international law.
25:56
Speaker 1: Explain why.
25:57
Speaker 4: It's quite simple. The Iranians had done nothing to trigger
26:03
Speaker 4: the right of self-defense by either the U.S. or Israel. And,
26:08
Speaker 4: of course, the Security Council was never going to authorize
26:11
Speaker 4: this kind of attack. So the UN Charter, the actual
26:15
Speaker 4: words of the Charter that were written by a great
26:17
Speaker 4: professor of international law at Harvard in 1945 at the
26:21
Speaker 4: negotiating sessions for the UN Charter, they say that the
26:26
Speaker 4: prohibition on the use of force is a general prohibition
26:29
Speaker 4: against all major uses of force unless an armed attack occurs.
26:36
Speaker 4: And then it is acceptable for a defending state and
26:40
Speaker 4: others to join with that defending state in using military
26:43
Speaker 4: force to reestablish its defense until the Security Council acts.
26:50
Speaker 4: But we also know, in addition, from the International Court
26:53
Speaker 4: of Justice, that not only does a state have to
26:56
Speaker 4: suffer an actual armed attack, that has to be a
26:59
Speaker 4: significant attack, for which military force and response is necessary
27:05
Speaker 4: and proportionate to reestablish the security of the attacked country. Iran,
27:11
Speaker 4: prior to February 28th, 2026, did not commit the requisite
27:17
Speaker 4: armed attack on the U.S. or Israel.
27:19
Speaker 2: The administration claimed a preemptive strike was necessary due to
27:24
Speaker 2: an imminent threat. Even if it's true, does that help
27:29
Speaker 2: the cause?
27:30
Speaker 4: No, it doesn't help. The one thing I'll say for
27:32
Speaker 4: the administration is that they're not the first to believe
27:36
Speaker 4: or to want to have a right of preemptive attack,
27:40
Speaker 4: a right to preempt because some future threat. Every president
27:45
Speaker 4: since 9-11, even before 9-11, President George W. Bush wanted
27:50
Speaker 4: to expand U.S. rights to use military force. In the
27:55
Speaker 4: confusion of 9-11, there was some sympathy for the U.S.,
27:59
Speaker 4: and that's part of the reason why we launched a
28:02
Speaker 4: 25-year-long global war on terror, which has also been, in
28:08
Speaker 4: my view, in violation of international law and not having
28:12
Speaker 4: the results that a lawful approach would have taken. But
28:16
Speaker 4: in trying to justify this long-running war on terror, President Bush,
28:22
Speaker 4: President Obama, and President Biden have all tried to build
28:27
Speaker 4: up some kind of a right of preemptive force. And
28:30
Speaker 4: there is some confusing discussion of that in the I'm
28:37
Speaker 4: one of the people who writes regularly and leads committees
28:40
Speaker 4: on the use of force of international law organizations, and consistently,
28:46
Speaker 4: and at our most recent meetings, we are seeing rejection
28:51
Speaker 4: of those expansive attempts because we are living in a
28:55
Speaker 4: world in which there are more armed conflicts than at
28:58
Speaker 4: any time since 1945. So we in the international law
29:03
Speaker 4: community are growing impatient and pushing back against these attempts
29:08
Speaker 4: to manipulate the law, to create exceptions for a few
29:13
Speaker 4: states only. Certainly the United States, in making these arguments
29:17
Speaker 4: for preemptive war, never thought that the Russians should have
29:20
Speaker 4: a right to use force. One of their arguments, Putin's
29:25
Speaker 4: arguments in Ukraine, has been, we've got to preempt NATO expansion. Well,
29:31
Speaker 4: NATO expansion is probably a more tangible threat to Russia
29:35
Speaker 4: than some future nuclear program in Iran. which has been
29:40
Speaker 4: constantly shown not to have a weapons capacity.
29:44
Speaker 6: So if the U.S.
29:45
Speaker 4: Can attack Iran on some preemptive theory, so can Russia.
29:50
Speaker 4: Now I hope everyone realizes the danger of these kinds
29:54
Speaker 4: of subjective, preemptive arguments. They are not part of the law.
29:59
Speaker 2: And also, let's just talk about how this violates U.S.
30:03
Speaker 6: Law.
30:04
Speaker 2: So Congress obviously didn't authorize this. But there was the
30:09
Speaker 2: War Powers Resolution. Congress didn't even pass that. Has Congress
30:12
Speaker 2: just sort of given up its authority in this area?
30:18
Speaker 4: I'm afraid that's how it looks. There are some courageous
30:22
Speaker 4: and persistent members of Congress, including Rand Paul and Tim Kaine.
30:28
Speaker 4: They have tried to get a war powers resolution before
30:33
Speaker 4: President Trump was elected. During the Biden administration, the senator
30:39
Speaker 4: from Indiana, Todd Young, co-wrote draft articles on the War
30:44
Speaker 4: Powers Resolution and explained how important it was that Congress
30:48
Speaker 4: do its job under the Constitution and authorize the use
30:51
Speaker 4: of force if it's going forward. And then he was
30:55
Speaker 4: AWOL when those votes came. So yes, we have a
30:59
Speaker 4: serious problem inside the U.S. It parallels this problem of U.S.
31:05
Speaker 4: interpretation of international law. Presidents have been allowed to use
31:10
Speaker 4: force really in conflict with the Constitution, and Congress has
31:14
Speaker 4: let presidents do this. Not just President Trump. This is
31:17
Speaker 4: a long-running problem. I think Americans in general are understanding
31:22
Speaker 4: that this is the ultimate way of doing harm outside
31:27
Speaker 4: in the world, and we are looking at so many
31:30
Speaker 4: broken relationships on trade, on use of military force, on
31:35
Speaker 4: the harms we're causing and the problems we're not dealing
31:39
Speaker 4: with while we're busy violating international law and the use
31:42
Speaker 4: of force, I think there's a sense we were doing
31:46
Speaker 4: things better in the years after the Second World War.
31:49
Speaker 4: We can do them well again. And that means being
31:53
Speaker 4: strict on our Constitution and strict on our treaty and
31:59
Speaker 4: higher law commitments in the world.
32:02
Speaker 2: Thanks for joining me today, Mary Ellen. That's Notre Dame
32:06
Speaker 2: Law School professor Mary Ellen O'Connell. And that's it for
32:10
Speaker 2: this edition of the Bloomberg Law Show. Remember, you can
32:12
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
32:16
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32:19
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32:30
Speaker 2: I'm June Grosso, and you're listening to Bloomberg.