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SCOTUS Could Narrow Bribery Law & Military in DC and LA · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: This is what happens when people have the best centrist
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Speaker 2: of our state in mind and work in good faith
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Speaker 2: to come to a resolution. Michael Madigan was an almost
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Speaker 2: mythical figure in Illinois politics. His three decade reign earned
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Speaker 2: him the nickname the Velvet Hammer because of the way
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Speaker 2: he maintained power over decades of leading the state House
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Speaker 2: and enforcing fealty from its members. But today Madigan stands
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Speaker 2: convicted of bribery, conspiracy, and fraud after a four month
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Speaker 2: trial where he was accused of running a year's long
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Speaker 2: criminal enterprise to enrich himself and his political allies. Prosecutors
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Speaker 2: built their four month case on witnesses who turned state's
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Speaker 2: evidence and wore wires, emails, and documents and wired to
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Speaker 2: a conversations like these.
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Speaker 3: If you can get near your mind that your client
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Speaker 3: is only Mike Madigan. I generally never refer to the speaker.
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Speaker 3: I just say our friend. So if you could say
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Speaker 3: our friend, no one really knows what we're talking about.
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Speaker 3: Speakers of that, hey, michaeh, hey, will you tell the speaker.
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Speaker 3: I took care of burials and Pennonovic. You could just
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Speaker 3: throw away that note.
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Speaker 2: The trial may be over and Madigan's seven and a
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Speaker 2: half year sentence handed down, but it's just the beginning
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Speaker 2: of an impellent process that could have real consequences for
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Speaker 2: corruption cases. Joining me is former federal prosecutor Mark Chutko,
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Speaker 2: a partner at Daikemagasset. Mark. For those who aren't familiar
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Speaker 2: with Illinois politics, tell us a little about Madigan.
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Speaker 4: Michael Madigan was the longtime Speaker of the House, a
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Speaker 4: Democrat in the state of Illinois, actually the longest serving
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Speaker 4: state speaker in the history of the United States, having
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Speaker 4: served that they're six years. He resigned office in approximately
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Speaker 4: twenty twenty one because of scrutiny by the federal government
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Speaker 4: in connection with corruption allegations.
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Speaker 2: And a four month trial ended in a split verdict.
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Speaker 2: Tell us about the trial and.
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Speaker 3: The verdict well.
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Speaker 4: In the trial itself, the jury throughout the racketeering conspiracy
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Speaker 4: charges also had some difficulty on some of the other
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Speaker 4: bribery counts, but ultimately ended up convicting of ten counts,
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Speaker 4: including some of the bribery counts.
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Speaker 2: He has to report to prison on October thirteenth. I'm
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Speaker 2: curious as to why the judge didn't allow him to
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Speaker 2: remain out of prison pending appeal, he.
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Speaker 4: Filed a motion for release pending appeal, which are generally
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Speaker 4: disfavored in cases like this. He would have had to
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Speaker 4: have shown that there were substantial questions of law or
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Speaker 4: fact that would have resulted in a reversal or a
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Speaker 4: new trial for the chargers for which he was sentenced
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Speaker 4: to prison. The judge on Friday issued a forty four
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Speaker 4: page order denying that motion, indicating that at least in
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Speaker 4: the judge's mind, there was no question but that he
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Speaker 4: had committed these crimes. The evidence was there, and at
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Speaker 4: least the judge was somewhat dismissive over some of his
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Speaker 4: legal challenges.
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Speaker 2: So one of his likely arguments on appeal, which was
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Speaker 2: previewed in the motion, centers on the definition of corruptly
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Speaker 2: in the Federal bribery statute. Will you explain this debate
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Speaker 2: over that word corruptly.
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Speaker 1: Yeah.
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Speaker 4: The statute itself Tedal eighteen, Section six sixty six, which
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Speaker 4: is a federal theft and bribery statute, specifically uses the
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Speaker 4: term corruptly in connection with obtaining something of value in
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Speaker 4: exchange for an official act or being influenced in connection
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Speaker 4: with an official duty, and the term has never been
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Speaker 4: ruled upon by the Supreme Court, although in a recent
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Speaker 4: case last year involving a Portage, Indiana mayor named James Snyder,
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Speaker 4: there was healthy debate within the oral argument about what
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Speaker 4: the term corruptly means. And generally the Supreme Court is
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Speaker 4: wary of vague terms, especially in the criminal law, and
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Speaker 4: there has been a trend recently towards them ratcheting back
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Speaker 4: on the scope of the prosecutors and the government use
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Speaker 4: of Corushian statutes. And so that seems to be the
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Speaker 4: highlight ear of what Madigan and perhaps the other comments
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Speaker 4: or defendants are going to argue that corruptly is a vague,
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Speaker 4: unconstitutionally vague term that doesn't give fair notice to a
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Speaker 4: defendant to a public official of where the right line is.
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Speaker 2: The Supreme Court, as you mentioned, has been cutting back
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Speaker 2: on the reach of federal corruption laws and prosecutorial discretion
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Speaker 2: to bring charges against government officials in a string of
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Speaker 2: cases in the last decade. Can you sort of trace
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Speaker 2: that out for us?
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Speaker 4: Yeah, really started especially over the last decade in the US.
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Speaker 4: The McDonald case involving a Virginia governor McDonald, who was
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Speaker 4: convicted of various bribery charges which were overturned at the
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Speaker 4: Supreme Court based on what the definition of an official
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Speaker 4: act is.
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Speaker 1: In that case, the.
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Speaker 4: Virginia governor was lending his public space, the governor's mansion,
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Speaker 4: to a backer of his who had been providing him
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Speaker 4: items of value both to him and his wife. This
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Speaker 4: was a nutritional supplement company, and the governor was making
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Speaker 4: access so that this nutritional supplement company could have meetings
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Speaker 4: with officials at the University of Virginia hoping to get contracts.
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Speaker 4: And while the court said that that might be in
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Speaker 4: some ways an abuse of power, it was not an
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Speaker 4: official act. It wasn't a core duty of the governor
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Speaker 4: to provide this sort of service, and so that case
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Speaker 4: was struck down. Following that, in twenty twenty, in what
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Speaker 4: has been known as the Bridgegate case Kelly versus the
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Speaker 4: United States, the Supreme Court again overturned convictions of two
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Speaker 4: former New Jersey public officials that had admittedly abused their
6:12
Speaker 4: power by realigning toll lanes as political retribution. But the
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Speaker 4: court there said that did not fit under the male
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Speaker 4: Wire fraud statutes because there had been no money or
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Speaker 4: property that had been obtained in connection with that case. Then,
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Speaker 4: just a couple of years ago, in a couple cases,
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Speaker 4: Supreme Court in a case called Percoco and another one
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Speaker 4: called Simonelli, also narrowed the scope of the term intangible
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Speaker 4: right of honor services as unconstitutionally vague, and in a
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Speaker 4: bid rigging case, scaled back understanding that the government had
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Speaker 4: been using a bid rigging cases to say that withholding
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Speaker 4: information from a competitor is not a traditional property interest
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Speaker 4: under wirefraud. Finally, this culminated last year in twenty twenty
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Speaker 4: four in the case I alluded to before involving this
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Speaker 4: forty Giana Mayor James Snyder, where the court said that
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Speaker 4: under the six sixty sixth Bribery Statute, you cannot criminalize
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Speaker 4: after the fact gratuities or rewards to a public official
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Speaker 4: for positive actions on behalf of a developer.
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Speaker 2: Of the decade of Supreme Court decisions in these public
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Speaker 2: corruption cases, I found that Snyder decision stunning because it
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Speaker 2: seemed like a textbook example of kickbacks. He got the
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Speaker 2: thirteen thousand dollars after a trucking company was awarded city contracts.
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Speaker 3: Yeah, I mean.
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Speaker 4: It certainly is what we call in the criminal parliament slime,
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Speaker 4: but was it crime. The Court looked at the statute
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Speaker 4: itself and compared the sixt sixty six bribery Statute with
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Speaker 4: comparable federal statutes when federal officials engage in bribery and
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Speaker 4: corruption and said that it simply did not match the
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Speaker 4: gratuity statute, which criminalizes after the fact rewards. And what
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Speaker 4: the Court was looking for was a traditional in advanced
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Speaker 4: understanding by both parties that there was going to be
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Speaker 4: a quid pro quo of this for that transaction of
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Speaker 4: single value for official act.
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Speaker 2: Court said a contrary ruling had the potential to criminalize
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Speaker 2: commonplace gratuities like a Duncan Donuts gift card at Chipotle
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Speaker 2: dinner or tickets to a Hoosiers game, and that was
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Speaker 2: six to three decision down ideological lines. Justice Katanji Brown
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Speaker 2: Jackson wrote for the liberals and said Snyder's absurd and
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Speaker 2: a textual reading of the statute is one only today's
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Speaker 2: court could love. Do you have any inkling as to
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Speaker 2: why you know the Supreme Court has been cutting back
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Speaker 2: on these public corruption prosecutions.
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Speaker 4: Some of it may have to do with federalism, concerns
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Speaker 4: that the Court does not want to see the federal
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Speaker 4: government micromanaging how state and local officials conduct their campaigns
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Speaker 4: or interact with the public. Some of it has to
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Speaker 4: do with fair notice. The government has been very aggressive,
9:06
Speaker 4: or had been very aggressive ten fifteen years ago, in
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Speaker 4: asserting an intangible right to honest services and other sorts
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Speaker 4: of theories to basically tried to look at criminal or
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Speaker 4: corruption activity within the state and local level, and at
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Speaker 4: some point the Court thought that was an overstretched that
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Speaker 4: it was giving too much discretion to prosecutors to import
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Speaker 4: their own principles as to what good governance means.
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Speaker 2: And Madigan has hired as his appellate lawyers a team
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Speaker 2: that includes the lawyers who successfully argued that Snyder case,
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Speaker 2: indicating that he may be aiming for the Supreme Court.
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Speaker 4: Yeah, that's right, Lisa Blatt and another woman by the
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Speaker 4: name of Amy's Saharia, who successfully argued in the Supreme
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Speaker 4: Court last year that Snyder his conviction should be overturned.
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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
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Speaker 2: this conversation with former federal prosecutor Mark Chutko. We'll talk
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Speaker 2: about possible issues for Madigan's appeal and how difficult it
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Speaker 2: is for prosecutors to bring public corruption cases these days.
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Speaker 2: I'm June Grosso, and you're listening to Bloomberg. I've been
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Speaker 2: talking to former federal prosecutor Mark Chutko about the Michael
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Speaker 2: Madigan corruption case, which may offer the Supreme Court a
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Speaker 2: chance to redefine bribery law. Again. Madigan's appellate brief hasn't
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Speaker 2: been filed yet, but that motion which was unsuccessful to
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Speaker 2: stay out of custody pending appeal offers a preview of
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Speaker 2: some of the likely arguments. And as far as that
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Speaker 2: word corruptly, are they just saying that there should have
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Speaker 2: been a different jury instruction, You're saying.
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Speaker 4: That it just simply was vague. I mean, as the
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Speaker 4: instruction looks right now. In the Madigan case, corruptly simply
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Speaker 4: means that a defendant X with the understanding that something
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Speaker 4: of value is to be offered or given to war
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Speaker 4: or influenced someone in connection with their official duties. And
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Speaker 4: so there was no specific definition of corruptly, although I
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Speaker 4: must say that in the Snyder oral argument it was
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Speaker 4: debated quite a bit. In fact, the government in Snyder
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Speaker 4: in oral argument suggested that corruptly might mean wrongful or
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Speaker 4: consciousness of wrongdoing. They also alluded to an Arthur Anderson
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Speaker 4: Supreme Court case where corruptly had been defined as immoral
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Speaker 4: or inherently wrongful. Some of the justices pushed back on
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Speaker 4: that is not really guidance at all, that there are
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Speaker 4: no real clear rules to guide public sector officials, if
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Speaker 4: that's what you're going to be looking at. And so
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Speaker 4: in this case, what Madigan has seized upon is that
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Speaker 4: corruptly must mean something, and he is concluding that it
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Speaker 4: means consciousness of wrongdoing, sort of alluding to what the
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Speaker 4: government itself argued in Snyder. And that almost imports what
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Speaker 4: we call a specific intent requirement that the public official
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Speaker 4: not only knows the fact that they did, but also
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Speaker 4: knows that those facts, the actions that they took were
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Speaker 4: wrongful were illegal under the law.
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Speaker 2: I mean, the trial included eleven weeks of testimony. The
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Speaker 2: jury heard from more than sixty witnesses, including Madigan. Was
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Speaker 2: there enough evidence there for Madigan to be convicted even
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Speaker 2: using a jury instruction that requires specific intent.
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Speaker 4: Well, you know, it's interesting because Judge Blaky actually said that,
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Speaker 4: he said that in this case bribery itself, especially bribery
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Speaker 4: has now been defined by Snyder as in advance agreement
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Speaker 4: between a public official and a private party is inherently
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Speaker 4: wrongful and so almost suggesting that everybody knows that this
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Speaker 4: is illegal to do, and so you don't have to
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Speaker 4: have that specific intent requirement. The court also alluded to
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Speaker 4: the fact that Madigan and himself was trained as a lawyer,
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Speaker 4: which kind of gave him also notice that this was
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Speaker 4: wrong what he was doing.
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Speaker 2: So does it seem like the Supreme Court is poised
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Speaker 2: to take another step in a case like Madigan's.
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Speaker 4: According to Judge Blakey, No, he suggests that the law
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Speaker 4: is clear in the Seventh Circuit on this issue. But
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Speaker 4: clearly Madigan is looking beyond the Seventh Circuit by hiring
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Speaker 4: people that had advocated before the Supreme Court and successfully.
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Speaker 4: So I would expect that their eyes are set on
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Speaker 4: the Supreme Court and that they think this is a
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Speaker 4: further avenue to try to narrow the scope of what
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Speaker 4: they would consider prosecutorial overreach.
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Speaker 2: Let's just say that the Supreme Court reversed the bribery convictions.
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Speaker 2: He was also convicted of conspiracy and wire fraud, would
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Speaker 2: those convictions hold, and he'd still have to serve time.
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Speaker 4: That is possible, and the court did allude to the
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Speaker 4: fact that he was also convicted of Travel Act violation,
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Speaker 4: which has as a predicate act state level bribery laws.
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Speaker 4: And so even if Madigan was to succeed ultimately in
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Speaker 4: overturning is bribery convictions, that isn't the end of the story.
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Speaker 4: He may end up still with other convictions at the
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Speaker 4: end of the day.
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Speaker 2: And in the convictions of what are called the Commed Four,
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Speaker 2: the defendants who were convicted of bribery, conspiracy, and falsifying
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Speaker 2: records in a scheme to illegally influence Madigan and Illinois
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Speaker 2: judge earlier this year. Throughout the bribery convictions there because
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Speaker 2: of flawed jury instructions.
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Speaker 1: That's right.
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Speaker 4: That trial had occurred before the Snyder case, and so
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Speaker 4: when the court looked back with the benefit of now
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Speaker 4: understanding what the Supreme Court had said about bribery, was
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Speaker 4: concerned that the instructions were flawed and so removed all
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Speaker 4: of those substantive bribery convictions. But let's stand the conspiracy conviction,
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Speaker 4: and that is a multi object conspiracy which involved both
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Speaker 4: six sixty six bribery and these FCPA violations, And one
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Speaker 4: possible simple avenue for appeal by the comment for is
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Speaker 4: to suggest that because this was a general verdict which
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Speaker 4: did not specify which criminal logic was proven under the conspiracy,
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Speaker 4: that once the court threw out the bribery allegations, that
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Speaker 4: it's not clear what the jury decided. Did they decide
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Speaker 4: that there had been a conspiracy based on the bribery
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Speaker 4: or on the SDPA violations. So I would expect the
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Speaker 4: comment for to attack the conspiracy conviction as well.
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Speaker 2: And one of the defendants has hired Paul Clement, superstar
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Speaker 2: conservative lawyer and Supreme Court litigator. Does a statement seem
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Speaker 2: to indicate they're going to focus on the Trump administration's
15:42
Speaker 2: news stance on the FCPA.
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Speaker 4: Yeah, it's interesting. I heard stories to suggest that the
15:49
Speaker 4: defendants in the Comment four case actually had gone to
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Speaker 4: the Justice Department to get them to reconsider these FCPA
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Speaker 4: books and records violations based on recent guidance in which
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Speaker 4: EJ has been scaling it back its use of the
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Speaker 4: Foreign Corrupt Practices Act. Basically, they don't want to prosecute
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Speaker 4: what are otherwise considered routine violations and they're focused more
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Speaker 4: on transnational organized crime and other sorts of national security interests.
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Speaker 4: And so at least what some reporters have suggested is
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Speaker 4: that there had been some outreach with the Justice Department,
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Speaker 4: but they weren't successful. But I would assume by the
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Speaker 4: hiring of Paul Clement that the comment for or at
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Speaker 4: least the former CEO, intend to try to pursue this
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Speaker 4: all the way to the Supreme Court, to suggest that
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Speaker 4: the prosecutors here are also stretching the boundaries of the
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Speaker 4: Foreign Corrupt Practices Act, which really was designed to attack
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Speaker 4: and combat against bribery of foreign officials, not domestic concerns.
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Speaker 4: And what the Justice Department has done in the Comment
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Speaker 4: four case was to bring these books and records violations
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Speaker 4: to basically address purely domestic companies that were involved in
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Speaker 4: purely domestic alleged bribery. I would expect that mister Clement
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Speaker 4: would say that really stretches beyond the intended purposes of
17:09
Speaker 4: the Foreign Corrupt Practices Act.
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Speaker 2: Mark, you were the chief of the Public Corruption Unit
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Speaker 2: at the Detroit US Attorney's Office. Can you describe how
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Speaker 2: difficult it is now to bring these kinds of cases?
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Speaker 2: What prosecutors have to consider before bringing a case.
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Speaker 4: Yeah, public corruption cases are intensely difficult to bring. That
17:31
Speaker 4: traditionally has been the elite office in any US attorney's
17:34
Speaker 4: office and consists of some of the stars of the
17:37
Speaker 4: office who have been there for a long time and
17:39
Speaker 4: know how to build a case. And the challenge of
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Speaker 4: a corruption case is unlike let's say a drug transaction,
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Speaker 4: where you know, for instance, that cocaine exchanging hands is illegal,
17:50
Speaker 4: in the case of public corruption, the thing that is
17:52
Speaker 4: being bargained for is an official act, which in it
17:55
Speaker 4: of itself is not illegal, and so you need to
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Speaker 4: know more understand why that transaction is illegal, and so
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Speaker 4: you have to look at the intent of the parties.
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Speaker 4: You've got to draw a lot of circumstantial evidence, either
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Speaker 4: of consciousness of guilt because they're hiding the money, or
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Speaker 4: having a wire tap so you can actually hear the
18:14
Speaker 4: words of the two parties transacting in these things, maybe
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Speaker 4: having an informant wearing a recording device. But because of
18:22
Speaker 4: the Supreme Court's ratcheting back of the corruption statutes, it
18:26
Speaker 4: is becoming increasingly difficult to try to prove these cases,
18:30
Speaker 4: especially with the use of consultants and other people that
18:33
Speaker 4: sort of insulate the public official from maybe the person
18:37
Speaker 4: that is paying the money. And so I think in
18:40
Speaker 4: the future it's going to be harder and harder to
18:42
Speaker 4: bring these kind of cases. Added to that is the
18:45
Speaker 4: polarization of our country. I mean, right now, both political
18:49
Speaker 4: parties are making counter accusations against each other of the
18:53
Speaker 4: weaponization of the Department of Justice, that somehow that the
18:57
Speaker 4: Department of Justice is misusing its investigator of been prosecutorial
19:01
Speaker 4: functions that seeps into a jury pool and it could
19:04
Speaker 4: have a stillover effect. In a criminal case, you've got
19:07
Speaker 4: to get twelve people that unanimously agree beyond a reasonable
19:10
Speaker 4: doubt that a crime has been committed. And can you
19:13
Speaker 4: get that today when there are a lot of skepticism
19:17
Speaker 4: about the motivations of the prosecutors. It remains to be seen.
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Speaker 2: And also the Trump administration has been cutting back on
19:25
Speaker 2: the people in the public corruption units.
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Speaker 4: Right at least in the Department of Justice in their
19:32
Speaker 4: Public Integrity section. There are fewer prosecutors I'm told there.
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Speaker 4: I don't know that that's impacted the US attorney's offices
19:39
Speaker 4: around the country, which really bring the bulk of the
19:43
Speaker 4: corruption cases.
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Speaker 2: This is a really fascinating area. Thanks so much for
19:47
Speaker 2: joining me.
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Speaker 3: Mark.
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Speaker 2: That's former federal prosecutor Mark Chutko, a partner at Daikema Gossip.
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Speaker 5: Well, already they're saying he's a dictator. The place is
19:57
Speaker 5: going to hell, and we've got to stop it. Instead
20:00
Speaker 5: of saying he's a dictator, they should say, we're going
20:02
Speaker 5: to join him and make Washington say.
20:04
Speaker 2: President Trump says he'll indefinitely extend the federal government's takeover
20:10
Speaker 2: of the Washington, d c. Police Department past the thirty
20:13
Speaker 2: days allotted by law by proposing a law to Congress, or,
20:18
Speaker 2: if necessary, by declaring an emergency. Trump also suggested that
20:23
Speaker 2: a DC crime bill would be a template for other cities.
20:27
Speaker 6: And we're going to do something, and that's going to
20:29
Speaker 6: serve as a beacon for New York, Chicago, Los Angeles,
20:33
Speaker 6: and other places all over the country. This whole, our
20:37
Speaker 6: whole country is going to be so different and so great.
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Speaker 6: It's going to be clean and safe and beautiful.
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Speaker 2: My guest is Joshua Castenberg, a professor at the University
20:47
Speaker 2: of New Mexico Law School and a former judge in
20:50
Speaker 2: the US Air Force. We keep saying unprecedented but in
20:54
Speaker 2: an unprecedented move, Trump deployed nearly five thousand National Guard
20:59
Speaker 2: troops and Marines to Los Angeles. In June, he's deployed
21:03
Speaker 2: about eighty five hundred active duty troops to the southern border,
21:07
Speaker 2: and now he's deploying eight hundred National Guard troops to DC.
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Speaker 2: And in all these situations, he said there was an
21:14
Speaker 2: emergency of some kind. Is he trying to expand the
21:18
Speaker 2: use of the military for domestic issues?
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Speaker 1: You can take each of those three instances, and there
21:24
Speaker 1: are three different legal analysis that you would have to
21:27
Speaker 1: do with each of them. But you could take each
21:30
Speaker 1: of those three instances and you can come up with
21:34
Speaker 1: the conclusion, as I do, that he is trying to
21:37
Speaker 1: normalize the use of military force to coerce Americans, including
21:43
Speaker 1: their elected representatives, to get his way. This is the
21:46
Speaker 1: very thing that the framers of the Constitution warned of
21:51
Speaker 1: in terms of fears of standing armies. You can read
21:53
Speaker 1: that in the Federalist papers. It's very clear that bright
21:57
Speaker 1: men like Thomas Jefferson and James Madison and John Adams
22:01
Speaker 1: were all opposed to the use of military force to
22:05
Speaker 1: police and corral the American people. They were fine with
22:09
Speaker 1: governors as commanders in chief of their militia, using the
22:12
Speaker 1: militia forces as a police power. And so they created
22:16
Speaker 1: a constitution that has a federal government that is a
22:20
Speaker 1: government of limited powers. And you look at the Tenth Amendment,
22:24
Speaker 1: you look at the militia clauses, and you can conclude
22:26
Speaker 1: from that that governors have what's known as police powers,
22:31
Speaker 1: but the federal government does not. And what that means
22:35
Speaker 1: is that within those limited powers, the use of a
22:38
Speaker 1: military force to police, particularly in light of the eighteen
22:42
Speaker 1: seventy eight Posi Commitatis Act, should only occur if there's
22:46
Speaker 1: an emergency from a foreign country, or if there's an
22:50
Speaker 1: insurrection or a complete collapse of the civil government, meaning
22:54
Speaker 1: the courts aren't working, the police aren't working, and the
22:57
Speaker 1: people have nowhere to go. That's not what's happened, and
23:00
Speaker 1: in Los Angeles, it's not what's happened in Washington, d c.
23:03
Speaker 1: And as for the border, the President of the United
23:06
Speaker 1: States has the authority to protect the national security of
23:10
Speaker 1: the country, and in theory, as long as Congress appropriates money,
23:14
Speaker 1: there's nothing inherently unconstitutional about using the military on the border,
23:19
Speaker 1: creating military zones that are enlarged beyond the norm. That's
23:25
Speaker 1: kind of a gray area of the law. But I
23:28
Speaker 1: think the courts will probably rule in the favor of
23:31
Speaker 1: the administration on that one, and I could understand why.
23:34
Speaker 1: But if you couple that with what happens in Los
23:37
Speaker 1: Angeles and what's happening in Washington, d C. Then it
23:41
Speaker 1: becomes worrisome.
23:43
Speaker 2: Explain why Washington, DC is different from LA or any
23:47
Speaker 2: other city.
23:48
Speaker 1: So if you take Washington, d C, it's not a state.
23:52
Speaker 1: Home rule was established by the Congress of the United
23:55
Speaker 1: States in nineteen seventy three. So some fifty two years ago,
24:00
Speaker 1: go Washington, d C. Obtained a degree of home rule
24:03
Speaker 1: where they elect a mayor, and we have a very popular,
24:06
Speaker 1: democratically elected mayor in Muriel Bowser. You have a democratically
24:12
Speaker 1: appointed chief of police. The people in Washington, d C.
24:16
Speaker 1: Are largely confident based on their voting patterns in both
24:21
Speaker 1: the mayor and the chief of police, and crime is
24:24
Speaker 1: going down. Now. The president is the commander in chief
24:28
Speaker 1: of the DC National Guard. He doesn't have to go
24:30
Speaker 1: through the governors to activate the DC National Guard. He
24:34
Speaker 1: can do that. The president, in theory, could run the
24:37
Speaker 1: police force from the Attorney General of the United States
24:40
Speaker 1: or the Homeland Security Department, or from the White House
24:43
Speaker 1: itself for abbreviated periods of time. In theory, if there's
24:48
Speaker 1: an emergency or a need to do so, there is
24:51
Speaker 1: no spike in crime or vast amounts of lawlessness of
24:56
Speaker 1: a violent nature in Washington, d c. That would justify this,
25:01
Speaker 1: And it'll fall to the courts to make a determination
25:04
Speaker 1: as to whether there even has to be an emergency
25:07
Speaker 1: to justify what the president is doing in this or not.
25:11
Speaker 1: But the rhetoric behind it is troubling because it reminds
25:15
Speaker 1: me of something that the Supreme Court decided in a
25:19
Speaker 1: very famous and important case on presidential authority known as
25:22
Speaker 1: the Youngs down Sheet and Tube case, and it has
25:24
Speaker 1: to do with Harry Truman ordering the seizure of steel
25:28
Speaker 1: mills in the United States during the Korean War when
25:31
Speaker 1: Congress didn't act to authorize it, and Justice William O.
25:35
Speaker 1: Douglas said, if a president can routinely declare when an
25:39
Speaker 1: emergency exists without the oversight of Congress, or without a
25:45
Speaker 1: real emergency that's apparent to the people of the United
25:49
Speaker 1: States and the Congress of the United States, then we'll
25:52
Speaker 1: never hear the end of presidents declaring one emergency after
25:55
Speaker 1: another to get their way and do an ind run
25:57
Speaker 1: on the law. And I think that's what's happening Washington
26:00
Speaker 1: DC right now. In point of fact, the biggest crime
26:04
Speaker 1: wave in Washington DC that we've seen in the last
26:07
Speaker 1: couple of decades occurred on January the sixth, twenty twenty one.
26:11
Speaker 1: And yet the President did not exercise his authority as
26:14
Speaker 1: commander in chief to call out the guard or federalize
26:17
Speaker 1: the police at that moment. So why is he doing that? Well,
26:21
Speaker 1: probably to suit political and to appear as a strong man,
26:25
Speaker 1: and it's to push the boundaries of the law. Keeping
26:28
Speaker 1: in mind that he does have certain authorities to do
26:32
Speaker 1: it that he does not have in places like Los Angeles,
26:35
Speaker 1: where the Tenth Amendment reserves quite a bit of power
26:38
Speaker 1: to the state governments.
26:40
Speaker 2: Is LA a test case because about a month ago, Trump,
26:44
Speaker 2: while in the Oval Office, talked about taking action if
26:49
Speaker 2: Zoran Mandami was elected as mayor of New York.
26:54
Speaker 1: I used to.
26:55
Speaker 7: Say, we will not ever be a socialist count. Well,
27:01
Speaker 7: I'll say it again, We're not going to have if
27:04
Speaker 7: a communist gets elected to run New York it can
27:09
Speaker 7: never be the same. But we have tremendous power at
27:11
Speaker 7: the White House to run places when we have to,
27:15
Speaker 7: we can run DC.
27:16
Speaker 1: Here's the problem with that rhetoric, and it's the same
27:19
Speaker 1: problem that Homeland Security Secretary Nomes said, and I'm paraphrasing
27:25
Speaker 1: her about why the Guard is going into Los Angeles.
27:28
Speaker 1: She said, it's there basically to affect political change. And
27:33
Speaker 1: that's you know, Trump's threat in regard to New York.
27:37
Speaker 1: I can't help but think it's more than a coincidence.
27:40
Speaker 1: But at the very time, in the United States District
27:43
Speaker 1: Court judge in California is ruling on the constitutionality of
27:48
Speaker 1: Trump federalizing the National Guard without going through the governor first,
27:53
Speaker 1: and perhaps in violation of the Possi Commatatis Act, that
27:58
Speaker 1: the National Guard is being federalized in Washington, d C.
28:01
Speaker 1: It's as if to tell the judge in California, you
28:05
Speaker 1: don't matter. I'm the boss here, and I want to
28:08
Speaker 1: harken back on these threats to a time that we
28:10
Speaker 1: don't really study much anymore in our constitutional law classes
28:16
Speaker 1: in law school or even in high school history and
28:18
Speaker 1: why the framers of the Constitution constructed a document as
28:22
Speaker 1: they did, and what their fear of standing armies was.
28:26
Speaker 1: They were very well aware that in Britain one hundred
28:30
Speaker 1: or so years earlier, at the time of Oliver Cromwell,
28:33
Speaker 1: that when Cromwell's forces overthrew King Charles and there were
28:38
Speaker 1: important votes being taken in Parliament about what kind of
28:42
Speaker 1: government to have, what to do with to depose King Charles,
28:46
Speaker 1: the army of Oliver Cromwell, parts of it marched into
28:50
Speaker 1: Parliament and kept those middle of the road members of
28:54
Speaker 1: Parliament from voting on those key issues. And it was
28:58
Speaker 1: called Pride's Purge, named after major prior to who led
29:02
Speaker 1: cromwell soldiers to stop Parliament from voting. Shortly after that,
29:07
Speaker 1: the government of Oliver Cromwell was dubbed the Reign of
29:10
Speaker 1: the Major Generals. It was by all instances of military state,
29:15
Speaker 1: and it ignored the Magna Carta other documents of important,
29:20
Speaker 1: you know, basis of liberty which we cherished today, particularly
29:24
Speaker 1: the Magna Carta. So when Madison and Jefferson and Adams
29:29
Speaker 1: and the other bright minds that led the United States
29:32
Speaker 1: to the War of Independence constructed the document after you know,
29:36
Speaker 1: it was clear the Articles of Confederation had failed the
29:40
Speaker 1: people of the United States. They constructed a document that
29:43
Speaker 1: tried to reign in as much military authority as possible
29:47
Speaker 1: from the president by keeping the army very, very small
29:51
Speaker 1: and out on the borders and warning about the fear
29:54
Speaker 1: of standing armies, to never allow that to happen again,
29:57
Speaker 1: not in this country. And you can read letters from
30:00
Speaker 1: Adams and Jefferson and Madison and the men in the
30:03
Speaker 1: States that voted to ratify the Constitution on that point.
30:07
Speaker 1: That was one of the most important features in creating
30:12
Speaker 1: the Constitution of the United States. And it seems to
30:15
Speaker 1: me that if you take a look at what you know,
30:18
Speaker 1: Secretary Nomes said about calling up forces in Los Angeles,
30:23
Speaker 1: or Trump's threats about, you know, taking over the city
30:27
Speaker 1: of New York, it's the very type of you know,
30:31
Speaker 1: Cromwellian dictatorial move that was assured by the framers of
30:35
Speaker 1: the Constitution would not happen in this country. You know,
30:39
Speaker 1: when I've made this comment on the local news, I'll
30:42
Speaker 1: occasionally get hate mail like what are you a Marxist?
30:45
Speaker 1: Are you anti American? And my answer to that is no,
30:49
Speaker 1: I am simply reiterating what those freedom fighters, Jefferson, Adams,
30:55
Speaker 1: Madison warned about in creating the document. It's not a
31:00
Speaker 1: radical idea to speak of the fear of standing armies.
31:04
Speaker 1: To the contrary, it's an idea that goes into the
31:06
Speaker 1: heart of what makes American liberty exceptional. It is that
31:12
Speaker 1: we do not govern by the military. We do not
31:15
Speaker 1: use the military to corral the political behavior of the votes,
31:20
Speaker 1: the abilities of democratically elected people we disagree with from
31:24
Speaker 1: doing what the voter sent them to office to do.
31:28
Speaker 3: So.
31:28
Speaker 2: Now, he said today that he's going to be asking
31:32
Speaker 2: for extensions on the thirty days, and he said, I
31:37
Speaker 2: think the Republicans in Congress will approve this pretty much unanimously.
31:41
Speaker 2: And he also said he wants a crime bill that
31:44
Speaker 2: will initially apply to DC, but then to other cities.
31:50
Speaker 1: What I would say about that is, if Republicans were
31:54
Speaker 1: to listen, if I were to be advising them, I
31:56
Speaker 1: would remind them that any law they passed today can
32:00
Speaker 1: be used by any future president with the flexibility that
32:04
Speaker 1: President Trump seeks. You would only vote for this kind
32:07
Speaker 1: of a law if you believe that in the decades ahead,
32:12
Speaker 1: you will only have Republicans like President Trump with his
32:16
Speaker 1: ideology sitting in the White House. Because otherwise, these kinds
32:20
Speaker 1: of laws are disastrous for a democratic society that permits
32:26
Speaker 1: people to freely vote for the changes or the continuance
32:30
Speaker 1: of government as they see fit. And so, you know,
32:35
Speaker 1: I go back to the House on American Activities. Example,
32:38
Speaker 1: it comes up under Roosevelt's administration during the New Deal,
32:42
Speaker 1: and it's designed to focus on Nazi influences in the
32:45
Speaker 1: United States, and the Democrats beliefully pass it, but within
32:49
Speaker 1: a half of a decade of its passage, it's being
32:51
Speaker 1: turned on liberal Americans who are accused of Communist sympathies
32:55
Speaker 1: and communist fies. And you don't vote for the very
32:58
Speaker 1: thing that Trump is askedoking for unless you are somehow
33:03
Speaker 1: absolutely assured through your magic eight ball that you will
33:07
Speaker 1: always have your guy sitting in the White House. And
33:11
Speaker 1: you're not. You can't have that kind of assurance.
33:14
Speaker 2: Also, the Washington Post is reporting, according to internal Pentagon
33:20
Speaker 2: documents reviewed by them, that the Trump administration is evaluating
33:25
Speaker 2: plans that would establish a quote domestic civil disturbance quick
33:28
Speaker 2: Reaction Force composed of six hundred National Guard troops to
33:32
Speaker 2: be on standby at all times so they can be
33:36
Speaker 2: deployed in as little as an hour to American cities
33:40
Speaker 2: facing protests or other unrest.
33:43
Speaker 1: I have a suspicion that those documents may have been
33:46
Speaker 1: deliberately leaked for two reasons. One is, this is not
33:51
Speaker 1: the first time a presidential administration that's had internal documents
33:55
Speaker 1: that speak to this issue. That happened in the Nixon administration,
34:00
Speaker 1: but in the Johnson administration. Neither presidency actually had those
34:05
Speaker 1: plans in effect when they came in. But I think
34:09
Speaker 1: that they're probably hoping that the media makes an error
34:12
Speaker 1: and says this is unprecedent, it's never happened before. Having
34:15
Speaker 1: said that, we need to take cognizance and embrace this
34:20
Speaker 1: concept of the lessons of history. It's perfectly fine to
34:24
Speaker 1: have a military force that's trained to respond to national emergencies,
34:29
Speaker 1: you know, natural disasters and foreign invasion, cyber attacks and
34:35
Speaker 1: things like that. If we don't, then we're not having
34:38
Speaker 1: the military that we need. But having said that, if
34:42
Speaker 1: the Republicans in Congress Robert stamp this type of thing
34:46
Speaker 1: by funding it, by voting for extensions of presidential authority
34:51
Speaker 1: and undermining DC home rule, then essentially what they're doing
34:56
Speaker 1: is they're taking a step stone back to that you
34:59
Speaker 1: know place that the framers of the Constitution warned we
35:02
Speaker 1: should never go. And I would hope that that enough
35:07
Speaker 1: people on both sides of the aisle on ideologies ranging
35:12
Speaker 1: from libertarianism to the far left, they take a step
35:15
Speaker 1: back and they say, no, you can't do this. This
35:19
Speaker 1: is not why we elected you into the White House,
35:22
Speaker 1: this is not why we elected you to Congress. You
35:25
Speaker 1: cannot just willie nilly say there's an emergency here, and
35:29
Speaker 1: there's an emergency there, and I'm going to enforce my
35:32
Speaker 1: will for the presence of the military.
35:35
Speaker 2: Well, I think it's going to be important to see
35:37
Speaker 2: how Judge Brier rules in the trial over the Trump
35:41
Speaker 2: administration deploying the National Guard and Marines to Los Angeles.
35:46
Speaker 2: Thanks so much, josh Best, Professor Joshua Castenberg of the
35:50
Speaker 2: University of New Mexico Law School. And that's it for
35:54
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
35:57
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
36:00
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36:03
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