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Weekend Law: Trump, Pardons, Warrants & Guns · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:08
Speaker 2: More than two hundred thousand people have been denied gun
0:11
Speaker 2: permits since nineteen ninety eight because of drug use. But
0:15
Speaker 2: now the Supreme Court will consider the constitutionality of the
0:20
Speaker 2: federal law that bans firearm possession by drug users and addicts.
0:25
Speaker 2: It's the law Hunter Biden was convicted of violating, but
0:29
Speaker 2: the Fifth Circuit Court of Appeals has concluded that the
0:32
Speaker 2: gun ban can't be applied to people unless they're using
0:36
Speaker 2: illegal substances at the same time they're found in possession
0:41
Speaker 2: of a firearm. My guest is Andrew Willinger, Executive director
0:45
Speaker 2: of the Duke Center for Firearms Law. Andrew tell us
0:49
Speaker 2: about the federal law at issue here in the Harmani case.
0:54
Speaker 1: This section of federal law might sound familiar to people
0:58
Speaker 1: who have been following the court It's second Amendment ures
1:01
Speaker 1: prudence over the past couple of years. This lists groups
1:05
Speaker 1: of people who, because of their status, are prohibited under
1:09
Speaker 1: federal law from possessing firearms or ammunition, and one of
1:13
Speaker 1: those groups was an issue in the Rahimi case. That's
1:16
Speaker 1: individuals who are subject to a domestic violence restraining order
1:19
Speaker 1: that meets certain criteria, but there are other groups as well,
1:22
Speaker 1: felons for example, and then, as relevant to the Harmani case,
1:26
Speaker 1: individuals who are considered unlawful users of or addicted to
1:30
Speaker 1: a controlled substance. So that's the specific revision of federal
1:35
Speaker 1: criminal law that's an issue in this case is a
1:38
Speaker 1: ban on unlawful drug users possessing firearms.
1:42
Speaker 2: The Fifth Circuit found that a blanket ban is unconstitutional,
1:46
Speaker 2: but said the ban could be used against people accused
1:50
Speaker 2: of being high and armed at the same time. Explain
1:55
Speaker 2: the logic of that.
1:56
Speaker 1: It is a little bit confusing because there really isn't
2:00
Speaker 1: lengthy decision because the Circuit had decided in an earlier
2:03
Speaker 1: case called Connolly, and all the judges said in this
2:06
Speaker 1: specific case is that you know, we're applying our ruling
2:09
Speaker 1: in Connolly and therefore find that as applied to this
2:12
Speaker 1: individual Harmioni, the provision is also unconstitutional. But basically, the
2:17
Speaker 1: approach that the Fifth Circuit has taken in these drug
2:20
Speaker 1: cases is to say that, as a historical matter, that
2:24
Speaker 1: judges believe that their support for applying this provision when
2:29
Speaker 1: somebody is under the influence of drugs and at the
2:33
Speaker 1: same time in possession of guns or ammunition. But when
2:37
Speaker 1: there's no proof that those two things were contemporaneous, that
2:40
Speaker 1: they occurred at the same time, then the judges have
2:43
Speaker 1: said that the provision cannot be applied, and that's what
2:45
Speaker 1: they decided in the Harmonic case.
2:48
Speaker 2: So the Justice Department is arguing that the law is valid.
2:52
Speaker 2: So they're arguing, then, for a law that restricts Second
2:56
Speaker 2: Amendment rights.
2:57
Speaker 1: That's right. Yeah, it's a little bit of an interesting posture.
3:01
Speaker 1: But again, I think what this comes back to is
3:03
Speaker 1: the distinction between a facial challenge and it has applied challenge.
3:08
Speaker 1: So the Hamani case deals with an as applied challenge
3:12
Speaker 1: and the government is saying, you know, we think the
3:14
Speaker 1: Fifth Circuit got it wrong, but on these specific facts.
3:18
Speaker 1: So I think it's going to be a little bit
3:20
Speaker 1: of a delicate dance throughout this case as it works
3:22
Speaker 1: its way through the briefing and the oral argument before
3:25
Speaker 1: the Supreme Court, where I actually don't think that the
3:29
Speaker 1: current administration believes that nine twenty two G three has
3:34
Speaker 1: the language has been interpreted, is constitutional in all of
3:37
Speaker 1: its applications, right. I don't know that they would say
3:40
Speaker 1: that this is constitutional as applied to somebody who's just
3:43
Speaker 1: you know, using marijuana on a regular basis. But they
3:46
Speaker 1: want to say in this case because there are maybe
3:50
Speaker 1: exacerbating factors not just marijuana. There's potentially other legal drugs
3:54
Speaker 1: at issue, and there's a connection allegedly to foreign terrorism
3:58
Speaker 1: that's not really relevant to the to the Second Amendment.
4:01
Speaker 1: But they're going to, i think, focus a lot on
4:03
Speaker 1: the as applied nature and on the specific facts of
4:07
Speaker 1: this case.
4:08
Speaker 2: The Supreme Court in twenty twenty two, in the Bruin case,
4:12
Speaker 2: ruled that any restrictions on firearms have to be consistent
4:16
Speaker 2: with the nation's historical tradition of firearms regulation. What is
4:22
Speaker 2: the history and tradition that the government is saying supports
4:26
Speaker 2: their position here?
4:27
Speaker 1: The government, at least below in these cases in the
4:30
Speaker 1: Fifth Circuit has basically rested on three categories of historical
4:37
Speaker 1: statutes or restrictions. So the first is the historical treatment
4:40
Speaker 1: of the mentally ill, and that's sort of an argument
4:43
Speaker 1: that maybe drug users are analogous in some way to
4:47
Speaker 1: those who are mentally ill, that it's some form of
4:49
Speaker 1: a temporary incapacitation. The second is more generally just laws
4:54
Speaker 1: that we're based on a legislative determination that some group
4:57
Speaker 1: of people is dangerous and we're not going to allow
5:00
Speaker 1: them to have guns. And then the third is and
5:04
Speaker 1: this kind of you know, goes in sequential order. You know,
5:07
Speaker 1: the mental illness and the dangerousness laws are earlier, and
5:10
Speaker 1: then eventually you start to see laws that talk about
5:13
Speaker 1: alcohol and being intoxicated with alcohol, and those are also
5:17
Speaker 1: a category that the government has come forward with in
5:19
Speaker 1: these cases. And again, I think for each one, you know,
5:22
Speaker 1: it's going to depend on this level of generality issue
5:26
Speaker 1: that courts have really been wrestling with under Bruin, which
5:29
Speaker 1: is how close do the historical statutes really need to
5:33
Speaker 1: be in order to uphold the modern law.
5:35
Speaker 2: So the historical statutes go back to the eighteenth century
5:39
Speaker 2: when the Second Amendment was ratified, do they also go
5:43
Speaker 2: back to the nineteenth century? I mean, what does the
5:45
Speaker 2: court consider an acceptable period of time for these historical comparisons.
5:52
Speaker 1: Yeah, Well, that's one of the really interesting aspects of
5:54
Speaker 1: these cases that the Court has granted now, which is
5:57
Speaker 1: that in some sense there are narrow questions, but I
6:01
Speaker 1: think in the background, you have this doctrinal uncertainty, and
6:05
Speaker 1: we're going to start to get some clues about questions
6:08
Speaker 1: like the one you raise, which is what's even the
6:10
Speaker 1: time period right? How far back do you go? You know,
6:13
Speaker 1: if something's enacted in the nineteenth century, is that too new?
6:16
Speaker 1: Like does that not really inform the original meaning of
6:19
Speaker 1: the Second Amendment? In the Bruin case, the court seems
6:22
Speaker 1: to at least leave the door open to considering historical
6:27
Speaker 1: laws anywhere from around the time of the founding all
6:29
Speaker 1: the way up through about nineteen hundred. But there's really
6:33
Speaker 1: been a divergence in the courts of appeal in terms
6:36
Speaker 1: of what courts have done with this later in time
6:39
Speaker 1: history and how much emphasis they're putting on reconstruction era history,
6:43
Speaker 1: and that's going to come up I think in these cases.
6:45
Speaker 2: Actually, to me, this illustrates the problems with originalism making
6:50
Speaker 2: comparisons to a time when the laws we're dealing with muskets.
6:54
Speaker 2: But I digress. So Andrew tell us about the defendants'
6:58
Speaker 2: arguments here.
7:00
Speaker 1: It's really an argument for this contemporaneousness requirement. So the
7:05
Speaker 1: argument is that the historically correct way to think about
7:10
Speaker 1: this type of prohibition is that legislatures had the power
7:14
Speaker 1: to say if you are actively under the influence of
7:17
Speaker 1: some intoxicating substance and you're not acting in your right
7:21
Speaker 1: mind at that point in time. You can be prohibited
7:24
Speaker 1: from having guns. But otherwise just sort of evidence that
7:27
Speaker 1: you may have used drugs in the past isn't enough,
7:30
Speaker 1: And I think that's what they're going to say here.
7:32
Speaker 1: There probably also will be a lot of back and
7:35
Speaker 1: forth about how much work these other facts are doing.
7:39
Speaker 1: You know, the connection to the terrorist organization, you know,
7:42
Speaker 1: that shouldn't really be relevant. But I think what's happened.
7:45
Speaker 1: You mentioned the Hunter Biden case. You know, the federal
7:48
Speaker 1: government doesn't charge this provision a lot, so they tend
7:51
Speaker 1: to charge it in sort of egregious cases. Do you
7:54
Speaker 1: know Hunter Biden, He's not just somebody who's using marijuana
7:57
Speaker 1: and happens to have a gun. He's going out and
7:59
Speaker 1: writing about more where he admits to this type of conduct.
8:02
Speaker 1: So I think there will be some discussion of the
8:04
Speaker 1: sort of how the provisions actually used, with the government
8:07
Speaker 1: maybe saying, look, we're not intending to really bring this
8:10
Speaker 1: type of charge. You know, if somebody's just without any
8:13
Speaker 1: aggravating circumstance occasionally using marijuana.
8:17
Speaker 2: Last year, the court did upoll the federal law that
8:19
Speaker 2: bars firearm possession by people under domestic violence restraining orders,
8:25
Speaker 2: even though there was no historical comparison. That was a
8:29
Speaker 2: reversal of the Fifth Circuit. Do you think that's where
8:31
Speaker 2: the justices are going with this case, that they took
8:34
Speaker 2: it to reverse the Fifth Circuit?
8:37
Speaker 1: Yeah, so my best guess is that they did that.
8:40
Speaker 1: They took it tending to reverse the Fifth Circuit. I
8:43
Speaker 1: think actually it could be close to unanimous decision again
8:46
Speaker 1: resting on this facial versus as applied issue, which was
8:49
Speaker 1: a similar issue in the Rahemi case, right where they're
8:52
Speaker 1: sort of getting these cases with bad facts and saying, look,
8:55
Speaker 1: has applied here, this provision's okay. But we're not necessarily
8:58
Speaker 1: going to say that the unlawful user ban is okay
9:02
Speaker 1: if somebody is just a medical marijuana user and has
9:05
Speaker 1: a gun. So that would be my guest that they'll
9:07
Speaker 1: reverse here.
9:08
Speaker 2: This is one of two Second Amendment cases the Court
9:11
Speaker 2: is going to hear this term. Earlier this month, they
9:14
Speaker 2: said they'll hear a challenge to a Hawaii law that
9:18
Speaker 2: bars people from bringing firearms to mall stores and other
9:23
Speaker 2: private property without the owner's express permission, so tell us
9:28
Speaker 2: about this law, which is similar to laws in other states.
9:32
Speaker 1: In the year or two after that Brewin decision which
9:35
Speaker 1: set out this new test and also ruled that discretionary
9:39
Speaker 1: concealed carry permitting was unconstitutional. So in other words, basically
9:43
Speaker 1: said that states that had these stricter laws for determining
9:47
Speaker 1: whether somebody can have a concealed carry permit had to
9:50
Speaker 1: relax them. And so the you know, six or eight
9:53
Speaker 1: states that had those laws reacted ultimately by enacting new statutes,
9:58
Speaker 1: but they also instituted new application requirements, and they restricted
10:05
Speaker 1: where permit holders can carry their guns. And so typically
10:09
Speaker 1: what these laws look like and what they look like
10:11
Speaker 1: in New York, California and then Hawaii was that they
10:14
Speaker 1: would have a long list of what's called sensitive places,
10:17
Speaker 1: so locations where guns are absolutely prohibited. You can't carry
10:20
Speaker 1: your firearm in a school, a government building, and a
10:24
Speaker 1: courthouse and so on. And then a few states also did,
10:28
Speaker 1: as Hawaii did what you can think of as switching
10:31
Speaker 1: the default rule for private property. So the default has
10:35
Speaker 1: always been that you are allowed to carry a firearm
10:40
Speaker 1: onto private property unless you are told otherwise. I think
10:43
Speaker 1: about businesses posting a sign that says no guns allowed.
10:46
Speaker 3: Right.
10:46
Speaker 1: That's why they do that, because they have to specify
10:49
Speaker 1: if they don't want people to carry. But what these
10:51
Speaker 1: states have done is to say, we're going to flip
10:55
Speaker 1: that and we're going to make the default that no
10:58
Speaker 1: carry is allowed. And if a business, for example, would
11:01
Speaker 1: like to allow a permit holder to carry their gun,
11:04
Speaker 1: they need to post a sign or otherwise say yes,
11:06
Speaker 1: you're allowed to do that. But as a default that
11:08
Speaker 1: they do nothing, a permit holder is not allowed to
11:11
Speaker 1: carry there.
11:11
Speaker 2: And the Court hasn't scheduled either of these cases for
11:14
Speaker 2: argument yet. Thanks Andrew. That's Andrew Willinger of the Duke
11:19
Speaker 2: Center for Firearms Law. A note. Michael Bloomberg, the founder
11:23
Speaker 2: majority owner of Bloomberg LP, the parent of Bloomberg Radio,
11:28
Speaker 2: is a donor to groups that support gun control, including
11:32
Speaker 2: Every Town for Gun Safety. Coming up next, the Supreme
11:36
Speaker 2: Court questions when police can enter a home without a
11:40
Speaker 2: warrant during an emergency. I'm June Grosso and you're listening
11:44
Speaker 2: to Bloomberg.
11:46
Speaker 4: If the police could not enter this house based on
11:54
Speaker 4: the facts that they knew, then I don't know when
11:57
Speaker 4: the police are ever going to be able to enter
11:59
Speaker 4: a house to prevent somebody from committing suicide.
12:04
Speaker 2: Police didn't have a warrant when they entered the home
12:06
Speaker 2: of an army veteran in Montana, but they weren't there
12:10
Speaker 2: to arrest William Trevor Case. They were there to help him.
12:14
Speaker 2: His ex girlfriend said that Case had threatened suicide and
12:17
Speaker 2: had a loaded handgun. The police knocked, they yelled, They
12:22
Speaker 2: waited forty minutes, and then they went in. The question
12:26
Speaker 2: before the Supreme Court is what's the standard for police
12:30
Speaker 2: entering a home in an emergency. Justices from across the
12:33
Speaker 2: ideological spectrum suggested that the officers were right to go
12:38
Speaker 2: in in this case. Here are Justices Samuel Alito and
12:42
Speaker 2: Katanji Brown Jackson.
12:44
Speaker 4: What more would they need here? They need to be
12:46
Speaker 4: able to look through the window and see him with
12:48
Speaker 4: a gun and pointed to his head, or they need
12:50
Speaker 4: to see a dead body or before what more did
12:53
Speaker 4: they need?
12:54
Speaker 5: This person had a long history of threatening suicide, whether
13:00
Speaker 5: it be by cop or whether it be on his
13:02
Speaker 5: own or whatever. We have a long conversation detailed specific
13:07
Speaker 5: with the girlfriend about circumstances that look like they're creating
13:12
Speaker 5: a pretty significant emergency.
13:14
Speaker 2: And justice Brett Kavanaugh questioned Case's attorney about the alternative scenario.
13:20
Speaker 1: Well, if they, after deliberations, walk away and he commits suicide,
13:24
Speaker 1: I mean, what do you think? And then if the officers,
13:27
Speaker 1: that would be unfortunate and tragic. But we are trying
13:30
Speaker 1: to strike a balance between them and the officers need
13:33
Speaker 1: some clarity, I would think in circumstances like this about
13:37
Speaker 1: what they can do and what they can't do.
13:41
Speaker 2: But there was no such clarity by the end of
13:43
Speaker 2: the arguments. Joining me is former federal prosecutor Robert Mintz,
13:48
Speaker 2: a partner maccarter in English, Bob, So, police normally need
13:52
Speaker 2: a warrant to enter home, but there are some emergency
13:56
Speaker 2: situations that are exceptions. Tell us about though.
14:01
Speaker 6: There is a so called Emergency Aid exception to the
14:04
Speaker 6: Fourth Amendment, which allows police officers to conduct a warrantless
14:08
Speaker 6: search if they have reasonable suspicion that there is an
14:12
Speaker 6: emergency and an immediate need to protect others or themselves
14:16
Speaker 6: from harm.
14:17
Speaker 2: And tell us about the facts here. Because Case ended
14:20
Speaker 2: up being convicted of assaulting a police officer.
14:24
Speaker 6: The defendant in this case, William Trevor Case, was an
14:27
Speaker 6: army veteran who had a girlfriend who contacted police suggesting
14:32
Speaker 6: that mister Case might be suicidal. Officers arrived at mister
14:36
Speaker 6: Case's house around nine pm, and they were familiar with
14:40
Speaker 6: his history of alcohol abuse and certain mental health issues.
14:43
Speaker 6: The ex girlfriend had told police that mister Case had
14:47
Speaker 6: a loaded gun. He had threatened to harm police if
14:49
Speaker 6: she tried to send officers to his home, and she
14:52
Speaker 6: claimed before she hung up with the police that she
14:55
Speaker 6: had heard a pop and then silence and was concerned
14:58
Speaker 6: that mister Case had actually the trigger. The officers arrived
15:02
Speaker 6: at mister Case's door, they yelled they shine flashlights through
15:05
Speaker 6: the windows. They could see empty beer cans, an empty handgun, holster,
15:09
Speaker 6: and a notepad with handwriting, which the officers believed at
15:13
Speaker 6: the time was a.
15:14
Speaker 7: Possible suicide note.
15:15
Speaker 6: After about forty minutes, they entered through the unlocked front door,
15:19
Speaker 6: and when they went upstairs they saw a closet curtain open.
15:23
Speaker 6: Mister Case lunged forward, his armed outstretched with what officers.
15:27
Speaker 7: Believed was a handgun.
15:29
Speaker 6: The officer fired one shot, striking mister Case and the abdomen.
15:32
Speaker 6: It turned out the handgun was found in a nearby
15:35
Speaker 6: laundry basket. The issue with trial, then, was when the
15:38
Speaker 6: defense tried to exclude the gun and other evidence of
15:41
Speaker 6: the confrontation from the trial.
15:43
Speaker 7: The trial judge overruled.
15:45
Speaker 6: That defense and allowed the prosecution to present it to
15:48
Speaker 6: the jury, and he was convicted after a trial.
15:51
Speaker 2: It seemed like the police had a lot of reasons
15:54
Speaker 2: to go in. How much more did the defense think
15:57
Speaker 2: they should have before they entered the house.
15:59
Speaker 6: To put this in context, the Fourth Amendment of the
16:01
Speaker 6: Constitution prohibits unreasonable searches and provides protections for a person's
16:06
Speaker 6: home by generally prohibiting law enforcement from entering without a
16:10
Speaker 6: warrant that is really set up in order to allow
16:13
Speaker 6: people to have privacy in their home in the context
16:16
Speaker 6: of a possible criminal case. The question that was facing
16:20
Speaker 6: justices in this case is what level of certainty must
16:24
Speaker 6: police have that an emergency is underway before entering a
16:27
Speaker 6: home without a warrant. Mister Case's lawyers argued that it
16:31
Speaker 6: should be a high bar. They argue that it should
16:34
Speaker 6: be something called probable cause, which is what police officers
16:37
Speaker 6: need in order to get a warrant to search your
16:41
Speaker 6: home in the case of a criminal investigation. But here
16:45
Speaker 6: this was not a criminal investigation. This was a circumstance
16:48
Speaker 6: in which they believe that there was an emergency and
16:51
Speaker 6: there was someone's life at risk inside the house. So
16:54
Speaker 6: the question is what is the level of certainty that
16:56
Speaker 6: police officers need to have in order to enter the
16:59
Speaker 6: home without warrant? And the defense argued that that level
17:02
Speaker 6: of certainty in order to avoid needless and dangerous confrontations
17:06
Speaker 6: and to prevent police officers from circumventing the concept of
17:09
Speaker 6: probable cause, that there has to be probable cause that
17:12
Speaker 6: they believe that there is an emergency and that somebody
17:15
Speaker 6: is in imminent danger.
17:17
Speaker 2: The state of Montana and the Trump administration argued that
17:20
Speaker 2: probable cause was too high a standard in these emergency cases.
17:25
Speaker 2: Montana's solicitor general said that a stricter rule of probable
17:30
Speaker 2: cause would quote require police to stand outside a dying
17:35
Speaker 2: man's door. So what standard did they argue for the.
17:39
Speaker 6: Government argued that the justices should rely on A Supreme
17:43
Speaker 6: Court case from two thousand and six was a unanimous
17:46
Speaker 6: opinion in a case called Brigham City versus Stuart, in
17:50
Speaker 6: which the Supreme Court held that police may enter a
17:52
Speaker 6: building without a warrant when they have an objectively reasonable
17:57
Speaker 6: basis to believe that an occupant is seriously injured or
18:00
Speaker 6: threatened with such injury. So in that case, they took
18:04
Speaker 6: it completely out of the context of probable cause, which
18:07
Speaker 6: really has an entire body of case law that talks
18:10
Speaker 6: about when police may enter a home with or without
18:13
Speaker 6: a warrant in the context of a criminal investigation, and
18:16
Speaker 6: said that here we're talking about imminent risk to somebody.
18:20
Speaker 7: It's not a criminal investigation.
18:21
Speaker 6: It's really a circumstance where police officers may come into a.
18:25
Speaker 7: Home in order to arguably save the life of.
18:28
Speaker 6: Somebody or save the life of somebody who may be
18:30
Speaker 6: with somebody who's in danger of hurting them. And in
18:33
Speaker 6: that case the standard is objectively reasonable basis to believe
18:37
Speaker 6: that the occupant is seriously injured or threatened with such injury.
18:41
Speaker 2: It seemed like justice is across the ideological spectrum, thought
18:46
Speaker 2: that the police had good reason to enter here.
18:49
Speaker 6: Yeah, Well, what's interesting here is that the Montana Supreme Court,
18:53
Speaker 6: which is the court that had just heard the case
18:55
Speaker 6: before going to the US Supreme Court, sided with the state.
18:59
Speaker 6: But it was a four to three decision, and there
19:01
Speaker 6: were actually three judges on the Montana Supreme Courts who
19:04
Speaker 6: dissented and said that for a warrantless search to be reasonable,
19:08
Speaker 6: the higher bar of probable cause must apply.
19:10
Speaker 7: And then they went further and added that there was no.
19:13
Speaker 6: Probable cause to believe mister Case was an imminent danger
19:17
Speaker 6: or in need of immediate assistants that would have justified
19:20
Speaker 6: the warrantless.
19:21
Speaker 7: Entry into the home. When the case went to the Supreme.
19:24
Speaker 6: Court and was argued before the Justice is there, there
19:27
Speaker 6: was virtual unanimity that the standard that had been applied
19:32
Speaker 6: by the state was the correct one. First, for example,
19:35
Speaker 6: Justice Thomas noted that the issue of probable cause is
19:39
Speaker 6: a standard that is normally limited to the criminal context.
19:42
Speaker 6: This was not a criminal investigation, and Justice Robert joined
19:46
Speaker 6: in on that to say, when we talk about probable cause,
19:49
Speaker 6: we talk about probable cause that a crime is occurring.
19:53
Speaker 6: What standard would be used here when we're not talking
19:56
Speaker 6: about a crime, but about a risk of injury to somebody.
20:00
Speaker 6: Us Kagan also jumped in, saying that there is a
20:03
Speaker 6: full body of case law out there describing what probable
20:07
Speaker 6: cause is. It's not a self defining term. It has
20:10
Speaker 6: been raised in many cases and there is a full
20:14
Speaker 6: explanation in the criminal context of what constitutes probable cause,
20:19
Speaker 6: but this is something entirely different, and the justices all
20:22
Speaker 6: seemed to go back to the Brigham City versus Stewart
20:25
Speaker 6: case from two thousand and six to say that the
20:28
Speaker 6: standard of objectively reasonable basis for believing if somebody needs
20:33
Speaker 6: emergency help. Is this standard that should apply here, and
20:37
Speaker 6: Justice Alito and Justice Brown agreed, which doesn't happen very often.
20:42
Speaker 6: They both push back on the contention here of the
20:45
Speaker 6: defense lawyer that this was an unreasonable act by police.
20:49
Speaker 6: Justice Alito went so far as to say, if the
20:52
Speaker 6: police couldnot enter the house based on the facts that
20:55
Speaker 6: they knew in this case, then I don't know when
20:57
Speaker 6: police are ever able to go into a house to
21:00
Speaker 6: prevent something from committing suicide. The concern here is that
21:04
Speaker 6: if there is a legal standard of probable cause in
21:08
Speaker 6: order to go in under these emergency situations, that police
21:11
Speaker 6: officers may hesitate to go into a house when somebody's
21:15
Speaker 6: life is at risk, And they seem to weigh more
21:18
Speaker 6: in favor of protecting the life of an individual and
21:22
Speaker 6: allowing police officers more latitude to go in under these
21:26
Speaker 6: circumstances than they were about the privacy concerns of entering
21:30
Speaker 6: a house without a warrant.
21:32
Speaker 2: So do you think that the justices will just announce
21:35
Speaker 2: a standard and that will be the end of the case.
21:38
Speaker 6: If the Supreme Court decides to uphold the lower court,
21:42
Speaker 6: then there was some discussion about what comes next. In
21:45
Speaker 6: other words, there were some justices who said that they
21:49
Speaker 6: should simply rule that the lower court was correct and
21:52
Speaker 6: that the standard of objectively reasonable was properly applied, and
21:57
Speaker 6: that in this case, clearly the fact warranted the police
22:01
Speaker 6: entering the home. Justice Soda Manor and Justice Thomas, on
22:04
Speaker 6: the other hand, argued that it's the normal practice of
22:07
Speaker 6: the court if they're not certain about a standard and
22:09
Speaker 6: state a new standard, that it should.
22:11
Speaker 7: Be sent back to the Montana.
22:13
Speaker 6: Supreme Court to determine whether, based on these facts, that
22:16
Speaker 6: objectively reasonable standard had in fact been satisfied. Justice Alito
22:21
Speaker 6: expressed some concern that in doing that it might suggest
22:25
Speaker 6: to the lower court that.
22:26
Speaker 7: This was in some way a close call.
22:28
Speaker 6: And could, he argued, have some kind of a killing
22:31
Speaker 6: effect on police when they're trying to determine whether to
22:34
Speaker 6: enter a house prevent somebody from committing suicide.
22:37
Speaker 2: And the Supreme Court is usually protective of the expectation
22:41
Speaker 2: of privacy in one's own home. And we should point
22:45
Speaker 2: out here that some civil rights and privacy groups did
22:49
Speaker 2: line up behind the defendant in this case.
22:53
Speaker 6: Mister Case's attorney reminded the justices that police had entered
22:57
Speaker 6: mister Case's home without permission, without a warrant, or without
23:00
Speaker 6: even probable cause, and ended up shooting him in his
23:03
Speaker 6: own home. He argued that the reasonableness standard that the
23:07
Speaker 6: state was suggesting was so vague as to invite.
23:10
Speaker 7: Abuse and confusion by law enforcement.
23:13
Speaker 6: That was essentially the civil rights argument that mister Case's
23:17
Speaker 6: lawyer was arguing, and a number of prominent civil rights
23:20
Speaker 6: organizations came out in favor of the defense, arguing that
23:24
Speaker 6: the warrantless surch here was a violation of the Fourth Amendment,
23:29
Speaker 6: and they were more comfortable with the probable cost standard
23:32
Speaker 6: to allow police to enter a home even in a
23:34
Speaker 6: case where there was an emergency and there was some
23:38
Speaker 6: concern for the safety of an individual inside the home.
23:41
Speaker 2: This is one case this term where it appears you
23:45
Speaker 2: never know, but it appears that we know how it's
23:48
Speaker 2: going to turn out. But we shall see thanks for
23:51
Speaker 2: joining me, Bob. That's former federal prosecutor Robert Mintz of
23:54
Speaker 2: Macarter and English. Coming up next on the Bloomberg Law Show.
23:58
Speaker 2: Why President Trump wants two hundred and thirty million dollars
24:02
Speaker 2: from the Justice Department And Trump may give you a pardon,
24:06
Speaker 2: but that doesn't mean the banks will remember. You can
24:09
Speaker 2: always get the latest legal news by listening to our
24:12
Speaker 2: Bloomberg on podcasts wherever you get your favorite podcasts. I'm
24:16
Speaker 2: June Grosso and you're listening to Bloomberg.
24:20
Speaker 8: Because of everything that we found out, I guess they
24:23
Speaker 8: owe me a.
24:24
Speaker 5: Lot of money.
24:25
Speaker 2: Two hundred and thirty million dollars. That's the amount of
24:28
Speaker 2: money President Donald Trump says he's entitled to as compensation
24:33
Speaker 2: for the investigations into whether his campaign colluded with Russia
24:37
Speaker 2: in the twenty sixteen election and the search of his
24:40
Speaker 2: mar Lago property for classified documents in twenty twenty two.
24:45
Speaker 2: Trump has filed claims with the Justice Department in that amount,
24:50
Speaker 2: and even he seemed to acknowledge how odd it is
24:53
Speaker 2: that he'll have the final say on his compensation.
24:57
Speaker 5: And uh, you're on that decision.
24:59
Speaker 2: You would have to go bruss my desk and it's
25:01
Speaker 2: soffully strange to make a decision where I'm paying myself.
25:05
Speaker 2: My guest is constitutional law professor Harold Krant Other, Chicago,
25:08
Speaker 2: Kent College of Law. How this is another instance where
25:13
Speaker 2: I'm going to use the word unprecedented.
25:15
Speaker 8: So this is the most on the one hand, amazing
25:19
Speaker 8: hutzba or hubris than any of us have seen. Because
25:22
Speaker 8: what the President is saying is because the former administration
25:26
Speaker 8: investigated my actions with the class off documents, investigated my
25:29
Speaker 8: role in the Russia supposed to influence of the twenty
25:34
Speaker 8: sixteen election, that they've committed torts. I've committed torts against me,
25:39
Speaker 8: violated by privacy rights, malicious prosecution, and therefore, because of
25:43
Speaker 8: those torts I can recover under the Federal Tort Claims Act.
25:46
Speaker 8: Federal Tort Claims Act is a government's waiver of immunity
25:50
Speaker 8: from tort suit in particularly defined circumstances. And under the
25:55
Speaker 8: Federal Tort Claims Act, before you can sue in court
25:59
Speaker 8: for a tourt, you can file an administrative claim before
26:02
Speaker 8: the agency that want assert cause the individual harm. So
26:07
Speaker 8: what this is is an administrative claim preparatory to a
26:10
Speaker 8: potential denotoria claims Act lawsuit saying that I was injured
26:14
Speaker 8: by torts through this investigation. In both these two contexts.
26:20
Speaker 2: Accord to the Justice Department Manual, settlements of claims against
26:23
Speaker 2: the Department for more than four million dollars must be
26:26
Speaker 2: approved by the Deputy Attorney General or the Associate Attorney General.
26:31
Speaker 2: The Deputy Attorney General is Todd Bland, who represented Trump
26:34
Speaker 2: in his criminal cases, and the Associate Attorney General is
26:39
Speaker 2: Stanley Woodward, who represented Trump's co defendant. So the ethical
26:44
Speaker 2: issues are apparent. You don't have to be a lawyer
26:47
Speaker 2: to see them. But who's going to stop them?
26:52
Speaker 3: Not you or me.
26:53
Speaker 8: Why this is so unbelievable is then it's the Justice
26:56
Speaker 8: Department that gets to decide whether to pay the claims
26:59
Speaker 8: or not, so that people he can fire his own
27:02
Speaker 8: former personal attorneys then will sit on this issue about
27:06
Speaker 8: whether he deserves compensation. So there's no court review, there's
27:10
Speaker 8: no public review. This is insider. It's like opening up
27:14
Speaker 8: the treasury. Let me scoop out as much as I would.
27:16
Speaker 8: That's what this is in essence, and it's just outrageous.
27:19
Speaker 8: But let me also say that what's amazing about this
27:24
Speaker 8: that I'm sure the President hasn't considered is this is
27:27
Speaker 8: opening up the same process with those who've been injured
27:30
Speaker 8: by ice, because what people are saying is the only
27:34
Speaker 8: type of compensation allowed will be for people to go
27:38
Speaker 8: before the Federal Toward Claims Act and basically allege claims
27:43
Speaker 8: of brutality, false arrests. Well, there's just prosecution privacy rights
27:48
Speaker 8: invasions by ice officers, And if I were defending those
27:52
Speaker 8: ICE officers, I would say, well, look, the President's done
27:55
Speaker 8: the same thing, almost the same theories. If the Presidence
27:59
Speaker 8: says we can do the Federal Tart Claims Act for
28:01
Speaker 8: his own purposes, that obviously people have been injured by
28:04
Speaker 8: ice officers should be able to use the mechanism despite
28:08
Speaker 8: the defenses and the Federal Tart Claims Act itself.
28:10
Speaker 2: A Justice Department spokesperson said, in any circumstance, all officials
28:16
Speaker 2: at the Department of Justice follow the guidance of career
28:19
Speaker 2: ethics officials. However, Attorney General Pam Bondi fired the department's
28:25
Speaker 2: top official responsible for advising the Attorney General and the
28:31
Speaker 2: Deputy Attorney General on ethics issues in July.
28:35
Speaker 8: So, yeah, we don't have a top ethics official anymore.
28:37
Speaker 8: There is just no break. There's no internal guardrail on this.
28:39
Speaker 8: It just shows the problem of having no type of
28:42
Speaker 8: separation or independence.
28:44
Speaker 2: Will we know when this happens or is it all
28:48
Speaker 2: internally done within the Justice Department.
28:51
Speaker 8: The actual payment has to be in a record, so
28:53
Speaker 8: there will be legally cognizable means to say whether or
28:57
Speaker 8: not this happened. But the deliberations don't have to be
29:00
Speaker 8: in public, so we're not going to get a sense
29:02
Speaker 8: of who said what. There's not going to be like
29:04
Speaker 8: reefs before court. This is an internal decision by his
29:09
Speaker 8: deputy and associate as to whether and how much to
29:12
Speaker 8: pay him. But we will know that taxpayer moneys will
29:15
Speaker 8: be allocated to his bank accounts. And who knew that
29:18
Speaker 8: being president would be so profitable? This is just another
29:21
Speaker 8: ingenious way that President Trump has found to line his
29:25
Speaker 8: own pockets at the expense of the American taxpayer.
29:28
Speaker 2: I'll say it again, unprecedented. Thanks so much, Hal for
29:31
Speaker 2: joining me. That's Professor Harold Krant of the Chicago Kent
29:35
Speaker 2: College of Law. Let's turn out of President Trump's sort
29:38
Speaker 2: of pardoning spree. Trump has issued more than sixteen hundred
29:43
Speaker 2: pardons and commutations in the last nine months. Last week
29:47
Speaker 2: it was former convicted Republican Congressman George Santos. This week
29:52
Speaker 2: it was the convicted founder of the crypto exchange finance,
29:56
Speaker 2: Chang Pen Joo. I don't know.
29:58
Speaker 7: He was recommended by a lot of people.
30:01
Speaker 8: A lot of people say that, are you talking about
30:03
Speaker 8: the crypto person?
30:05
Speaker 7: A lot of people say that he wasn't guilty of anything.
30:08
Speaker 2: But it's one thing to be cleared by the president.
30:11
Speaker 2: It's another thing to be cleared by the banks. And
30:14
Speaker 2: some of the people pardoned during Trump's first term found
30:17
Speaker 2: that out when they were debanked. Joining me is Bloomberg
30:21
Speaker 2: senior reporter Tom Schoenberg, Tom Republican fundraiser Elliott Broidy, who
30:27
Speaker 2: was convicted for violating a lobbying law, and former CFO
30:32
Speaker 2: of social media company x mahmood Raisa Banki, who was
30:37
Speaker 2: convicted of making false statements, were both pardoned at the
30:41
Speaker 2: end of Trump's first term. But explain how those White
30:45
Speaker 2: House reprieves only go so far.
30:49
Speaker 3: So both, you know, mister Broydy and mister Banky kind
30:52
Speaker 3: of recently within the you know, last year or so,
30:56
Speaker 3: sought banking services. Both had applied you know, for edit
31:00
Speaker 3: Broidy from American Express, Bonki from JP Morgan and were denied,
31:07
Speaker 3: and as they pushed for explanation as to why in
31:11
Speaker 3: both instances, were told that it was due to a
31:15
Speaker 3: criminal record that they had had, you know, that was
31:18
Speaker 3: tied to the pardon that they received from President Trump
31:22
Speaker 3: in his first term with bank had also meant he
31:25
Speaker 3: had applied for a credit card with Bank of America
31:29
Speaker 3: and a five twenty nine account that involved a fidelity
31:33
Speaker 3: and the same situation he was denied accounts or denied
31:36
Speaker 3: access to credit.
31:37
Speaker 2: Is there really a term de banked?
31:40
Speaker 3: There is now? I mean, it's a good question because
31:44
Speaker 3: when I was interviewing people for the article, including Liz Oyer,
31:48
Speaker 3: who was former parton attorney at the Justice Department, she asked, well,
31:52
Speaker 3: what is to banking? Because until recently it wasn't really
31:55
Speaker 3: a term, but it is now and is also used
31:58
Speaker 3: in both these lawsuits that were brought by mister Brody
32:01
Speaker 3: and mister banking.
32:02
Speaker 2: Is a pardon meant to erase the legal conviction on
32:05
Speaker 2: your record or is it meant to wipe the slate clean?
32:10
Speaker 3: Really, in terms of how it's been interpreted erases that
32:13
Speaker 3: legal stain in the conviction right, And I think in
32:15
Speaker 3: terms of financial services, what these cases are sort of
32:20
Speaker 3: raising to an extent is does that necessarily override these
32:24
Speaker 3: risk assessments of private lender that are required under law
32:27
Speaker 3: to prevent money laundering and to know their customer, which
32:30
Speaker 3: usually is a look back on their history, both financial
32:34
Speaker 3: but also criminal history.
32:36
Speaker 2: Some MAGA people think that conservatives are being debanked for
32:41
Speaker 2: their political beliefs, and you write that it's become an
32:45
Speaker 2: obsession with some including President Trump.
32:48
Speaker 3: Yes, I mean President Trump and the Trump Organization has
32:51
Speaker 3: to shoot Capital One Financial Core, making accusations that they
32:56
Speaker 3: had improperly kind of closed hundreds of acts that the
33:00
Speaker 3: Trump organization had, and Capital Ones denied any sort of wrongdoing.
33:05
Speaker 3: They moved to have the case dismissed. You know, that's
33:08
Speaker 3: in front of a judge right now. And the argument
33:11
Speaker 3: on their end is that they had the right to
33:13
Speaker 3: cancel accounts based on the contracts that they had for
33:15
Speaker 3: those accounts. You know, it's been a personal issue for
33:18
Speaker 3: the President. Additionally, in August, he issued an executive order
33:23
Speaker 3: directly at this issue, called Guaranteeing Fair Banking for All Americans,
33:27
Speaker 3: in which he calls out to the quote unquote de
33:30
Speaker 3: banking of you know, specifically conservatives and others for whether
33:35
Speaker 3: political or religious reasons, and orders financial regulators to remove
33:41
Speaker 3: some of the you know, standards they had in reviewing
33:44
Speaker 3: accounts at institutions, as well as looking back and see
33:48
Speaker 3: whether any people's accounts had been closed due to whether political,
33:53
Speaker 3: religious reasons, or some other sort of unfair determination.
33:58
Speaker 2: Since the executive order, have banks been making changes.
34:03
Speaker 3: Some got out ahead of that. JP Morgan, beginning even
34:06
Speaker 3: after the election last year, had started making changes both
34:10
Speaker 3: in public materials and then in their own policies, specifically
34:14
Speaker 3: noting that it would not base decision making on accounts
34:17
Speaker 3: on religious or political views. So you're seeing it there,
34:21
Speaker 3: you're even seeing it in terms of these cases. Mister Bonkey.
34:24
Speaker 3: One of the things that happened after he brought his
34:27
Speaker 3: case over not receiving credit from JP Morgan, it happened
34:31
Speaker 3: that he had two accounts at another institution called First
34:34
Speaker 3: Republic Bank, which in twenty twenty three had collapsed and
34:39
Speaker 3: was taken over by JP Morgan. So initially they had
34:42
Speaker 3: moved to close those two accounts, with one of their
34:45
Speaker 3: anti money laundering executives selling the court due to his
34:49
Speaker 3: earlier conviction. Once this lawsuit was sort of underway and
34:53
Speaker 3: he moved for a temporary restraining order to stop them
34:57
Speaker 3: from closing those accounts. JP Morgan kind of reversed itself.
35:01
Speaker 3: They told us that they looked at that appeal that
35:04
Speaker 3: he was successful on with some of the criminal accounts.
35:07
Speaker 3: They also looked at it had been fifteen years to
35:10
Speaker 3: them that this time had gone by without any other
35:13
Speaker 3: sort of criminal allegation against him, and so they're going
35:16
Speaker 3: to keep those accounts open.
35:18
Speaker 2: Did Broidy ever get an American Express card?
35:20
Speaker 3: Unclear? You know at the moment this is still in
35:24
Speaker 3: litigation in fact American Expresses, but telling the judge that
35:26
Speaker 3: they need to dismiss his case because these card member
35:29
Speaker 3: agreements account agreements usually require that dispute be handled and
35:33
Speaker 3: arbitration and explain.
35:35
Speaker 2: The perspective of the banks on this.
35:37
Speaker 3: It's really a liability issue for the banks that they're
35:40
Speaker 3: making these assessments. They have to comply under the law.
35:43
Speaker 3: You know that the people who they're giving access to
35:46
Speaker 3: the US financial system too are not going to be
35:48
Speaker 3: using it for illicit purposes. So you have a twofold one.
35:52
Speaker 3: If someone's a fraudster. The bank itself could later be
35:55
Speaker 3: sued by victims claiming that they didn't do enough. They
35:57
Speaker 3: can also be penalized for the government for no abiding
36:00
Speaker 3: by all the rules and regulations to ensure that we
36:04
Speaker 3: have a safe banking system. So if somebody has some
36:06
Speaker 3: type of financial crime on the record, that's going to
36:09
Speaker 3: be looked at very closely by the bank, you know,
36:11
Speaker 3: in terms of how aggressive they are in this space.
36:15
Speaker 3: Talking to a number of defense lawyers, a lot of
36:18
Speaker 3: times people lose their banking even at the first sign
36:22
Speaker 3: of an investigation, let alone a conviction. So you know,
36:25
Speaker 3: it's quite common for a bank to receive a subpoena
36:29
Speaker 3: even for records of somebody related to a case, and
36:33
Speaker 3: immediately cut off an account. So someone might learn their
36:36
Speaker 3: under investigation just by losing access to their banking. It's
36:39
Speaker 3: kind of a large wave in terms of you know,
36:42
Speaker 3: investigation and losing banking.
36:43
Speaker 2: It's really been a fascinating conversation. Thanks so much, Tom.
36:47
Speaker 2: That's Tom Schoenberg, Bloomberg Senior Reporter, and that's it for
36:51
Speaker 2: this edition of the Bloomberg Law Show. Remember you can
36:53
Speaker 2: always get the latest legal news on our Bloomberg Law podcast.
36:57
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37:01
Speaker 2: Bloomberg dot com, slash podcast, Slash Law, and remember to
37:06
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten
37:09
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening
37:13
Speaker 2: to Bloomberg