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Trump Can Withhold Billions in Foreign Aid & Trial Lawyers' Warning · Bloomberg Law

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Speaker 1: This is Bloomberg Law, with June grosseol from Bloomberg Radio.
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Speaker 2: The Trump administration has made deep reductions in foreign aid
0:12
Speaker 2: one of its hallmark policies. In fact, early in his
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Speaker 2: second administration, Trump announced to hold on tens of billions
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Speaker 2: of dollars in foreign aid, and a few months later,
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Speaker 2: administration officials dismantled the US Agency for International Development, which
0:30
Speaker 2: administered the funds. Nonprofits and international aid groups sued in
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Speaker 2: February over an estimated thirty billion dollars that Congress had
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Speaker 2: approved for programs spanning several years, arguing that the executive
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Speaker 2: branch can't unilaterally refuse to spend money appropriated by Congress
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Speaker 2: and that the cuts could have devastating effects in certain
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Speaker 2: areas of the world. Secretary of State Marco Rubio disputed
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Speaker 2: the effects last week, as we shut down AID because
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Speaker 2: it was a dysfunctional organization.
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Speaker 1: We moved in under the State Department Number two.
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Speaker 2: We are going to do more foreign aid than any
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Speaker 2: country in the world, than any country in the world,
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Speaker 2: And on Friday, the Supreme Court's conservatives, in an unsigned order,
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Speaker 2: ruled that the Trump administration could withhold four billion dollars
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Speaker 2: in congressionally approve foreign assistance funding poised to expire at
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Speaker 2: the end of the month. It lifted a lower court
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Speaker 2: order that would have required the administration to commit to
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Speaker 2: spending the money. My guest is constitutional law expert Suzanne Goldberg,
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Speaker 2: a professor at Columbia Law School. Russell Vopt, the White
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Speaker 2: House Budget director, said this decision was a major victory.
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Speaker 2: How important do you think this decision is.
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Speaker 3: I agree that the decision is significant and important, but
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Speaker 3: with completely disagree that this is a victory for the
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Speaker 3: American people. This decision puts even more at risk the
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Speaker 3: separation of powers by allowing the executive branche and the
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Speaker 3: President to refuse to spend money that Congress has authorized.
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Speaker 3: Congress has legislated against these kinds of efforts, and the
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Speaker 3: Court has simply allowed the executive branch to override the
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Speaker 3: will of Congress. Here temporarily, it's a provisional ruling, but
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Speaker 3: it's still a serious incursion on the separation of powers.
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Speaker 2: This was on the emergency docket and unsigned order. The
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Speaker 2: Court's conservatives in the majority, so it was a six
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Speaker 2: to three decision. There was a very little explanation from
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Speaker 2: the majority, but explain what they did say.
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Speaker 3: The Majority was faced with the question whether the Impowerment
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Speaker 3: Control Actus by Congress would prohibit organizations from doing the
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Speaker 3: government when the government executive branch the Trump administration refused
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Speaker 3: to provide foreign aid funding Congress had authorized to be provided.
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Speaker 3: And this is a new issue. No lower court has
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Speaker 3: rolled on the question, and the Majority, in barely a
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Speaker 3: sentence said the administration had made a sufficient showing that
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Speaker 3: this Impoundment Act barred the private organization's lawsuit. As Justice
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Speaker 3: Kagan points out in her dissent, that isn't what the
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Speaker 3: Act appears to say, it is not what the act
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Speaker 3: history would suggest, and everything is really to the contrary.
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Speaker 3: So the one sentence sort of shrug off of the
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Speaker 3: plaintiff's argument here is perplexing and really troubling. Chief Justice
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Speaker 3: Roberts emphasizes that this is a provisional ruling, meaning it's
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Speaker 3: not the final word on whether the executive branch can
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Speaker 3: refuse to spend money authorized by Congress. But for the
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Speaker 3: purpose of this four billion dollars in funds, it is
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Speaker 3: the final ruling because the funds will expire at the
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Speaker 3: end of the federal budgy jitary cycle. The Court in
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Speaker 3: its handful of sentences did not take on any of
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Speaker 3: the very serious issues that the case present.
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Speaker 2: The administration argued that being forced to spend the money
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Speaker 2: now would hurt its ability to carry out foreign affairs.
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Speaker 2: And in a lot of these cases where there's a
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Speaker 2: challenge to Trump administration actions, they seem to be raising
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Speaker 2: either foreign affairs or national security. Does the Supreme Court
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Speaker 2: just simply bow whenever the administration says national security or
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Speaker 2: foreign affairs.
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Speaker 3: No, the Supreme Court, up until recently, does not simply
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Speaker 3: bow when the administration refers to national security or its
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Speaker 3: authority and foreign affairs. Of course, the executive branch has
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Speaker 3: significant discretion in both areas and how it bends foreign
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Speaker 3: assistance in determining national security priorities. But we still have
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Speaker 3: a constitution, and the constitution requires the Court, when it
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Speaker 3: receives a challenge to administration actions, to review what the
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Speaker 3: executive branch is doing. In this case, which had to
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Speaker 3: do with a long standing, really foundational practice of the
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Speaker 3: way US government functions, which is that Congress authorizes funds.
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Speaker 3: The administration actions in saying we're not going to spend
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Speaker 3: your funds are startling, right. We haven't seen anything at
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Speaker 3: this level since Richard Nixon was the president, and Richard Nixon,
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Speaker 3: though he tried not to spend many funds that Congress
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Speaker 3: had authorized, ultimately pulled back and recognized that he was
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Speaker 3: standing in the way or really tried to disrupt the
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Speaker 3: balance of powers as between Congress and the executive branch.
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Speaker 3: But Congress, after Nixon tried to refuse to spend authorized funds,
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Speaker 3: passed a law specifically to say the president can't do that,
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Speaker 3: and if the President objects to how Congress is authorized
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Speaker 3: fund the President can voice those objections directly to Congress,
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Speaker 3: and Congress will consider those objections. There's not a special
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Speaker 3: national security or foreign affairs rule that gets the executive
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Speaker 3: branch out of having the legality of its actions reviewed.
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Speaker 2: Trump used what's called a pocket recision.
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Speaker 3: Here.
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Speaker 2: Can you tell us about that?
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Speaker 3: Yeah, so the president has, you know, at the outset
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Speaker 3: of his administration, President Trump issued in order saying all
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Speaker 3: foreign assistants would be paused while his administration reviewed whether
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Speaker 3: the spending was consistent with his priorities. Ultimately, after a
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Speaker 3: long pause, the administration did spend some of the money,
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Speaker 3: but it was held this four billion dollars in funding
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Speaker 3: authorized by Congress instead, essentially, we're not spending that, and
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Speaker 3: that is the nature of the so called pocket recisions.
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Speaker 3: But the Impowerment Act actually requires the President to submit
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Speaker 3: his position to Congress, which can review and make adjustments
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Speaker 3: if it so chooses. And that's not what happens here.
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Speaker 2: I mean, would anyone expect that this particular Congress would
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Speaker 2: go against what the president wants?
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Speaker 3: So, you know, in ordinary times, Congress zealously safeguards its authority,
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Speaker 3: and when it believes the President is encroaching on that authority,
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Speaker 3: contravening the separation of powers that our Constitution sets out,
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Speaker 3: Congress acts. Indeed, that kind of action is what led
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Speaker 3: to the Impoundment Act, passed by Congress many years ago,
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Speaker 3: to say, President, you cannot simply decide not to spend
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Speaker 3: money that we, the representatives of the people, have offerorized
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Speaker 3: for you to spend. Congress, since President Trump has taken office,
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Speaker 3: has not protected its authority and instead has seeded its authority,
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Speaker 3: leaving the Supreme Court to be the safeguard of this
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Speaker 3: separation of powers that under which Congress authorizes spending of
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Speaker 3: the American people's funds. Of course, consistent with the president's priorities,
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Speaker 3: but also consistent with the views of Congress. President Trump
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Speaker 3: has advanced a view that his branch, the executive branch,
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Speaker 3: should be able to override both the Congress and the
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Speaker 3: wishes of Congress and the Supreme Court, and in some
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Speaker 3: sense make the president more powerful than any other branch
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Speaker 3: of government. And unfortunately Congress seems to be agreeing to that.
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Speaker 3: The Court, in this provisional ruling, has let him pursue
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Speaker 3: that path as well, which is why the ruling is
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Speaker 3: so troubling.
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Speaker 2: There was this very very short majority explanation will call it,
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Speaker 2: and then a longer descent explain what Justice Kagan said
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Speaker 2: in descent.
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Speaker 3: Justice Kagan makes several points in her descent. First, she
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Speaker 3: says this case was not appropriate for an emergency ruling.
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Speaker 3: We have a high standard, she says, the court is
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Speaker 3: a high standard for deciding to grant emergency relief and
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Speaker 3: this case doesn't meet that standard. And then moving on,
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Speaker 3: she says, the court one sentence notation really that the
9:40
Speaker 3: government is likely to win its argument on the marriage.
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Speaker 3: There's no basis for that. The law makes clear that
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Speaker 3: that's not correct. The history of the law makes clear
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Speaker 3: that that's not correct. And you know to sort of
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Speaker 3: boil it down. Her opinion says, to the majority, what
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Speaker 3: are you doing is into appropriate? This is not an emergency.
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Speaker 3: If you give the president the authority to withhold this
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Speaker 3: money that Congress has authorized, it's the end of the case.
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Speaker 3: The effect is to prevent the funds from ever reaching
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Speaker 3: their intended recipients, not just now, but for all time,
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Speaker 3: because the funds will expire. And she says the government
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Speaker 3: is completely utterly incorrect in its argument that the president
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Speaker 3: should be able to withhold these funds. The law passed
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Speaker 3: by Congress that says the president cannot impound, meaning hold
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Speaker 3: back funds authorized by Congress, doesn't have anything to say
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Speaker 3: about whether these organizations can file a lawsuit challenging the
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Speaker 3: governments withholding of those funds. Of course they can, and
10:46
Speaker 3: the law, even when we look at its history, was
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Speaker 3: passed at a time that makes clear that organizations that
10:53
Speaker 3: are anticipating these funds can file a lawsuit against the
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Speaker 3: government seeking the distribution of those funds. So she expresses
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Speaker 3: quite a lot of concern about the destabilizing effect that
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Speaker 3: the majority's ruling, even provisionally, will have.
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Speaker 2: Coming up next, I'll continue this conversation with Professor Suzanne Goldberg,
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Speaker 2: will take a look at the emergency docket and where
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Speaker 2: the Supreme Court has come down on most Trump administration requests.
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Speaker 2: You're listening to Bloomberg. The Supreme Court is allowing the
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Speaker 2: Trump administration to withhold four billion dollars in congressionally approved
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Speaker 2: foreign assistance that's poised to expire at the end of
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Speaker 2: the month. The conservative justices lifted a lower court order
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Speaker 2: that would have required the administration to commit to spending
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Speaker 2: the money that was over the descents from the court's
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Speaker 2: three liberals. The unsigned order on Friday boasters President Trump's
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Speaker 2: effort to claw back funds that Congress approved. The money
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Speaker 2: is set to expire after the fiscal year ends on
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Speaker 2: September thirtieth, if the State Department and what's left of
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Speaker 2: the US Agency for International Development don't commit to spending it.
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Speaker 2: I've been talking to Columbia Law School professor Suzanne Goldberg.
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Speaker 2: This latest ruling by the Supreme Court follows a pattern
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Speaker 2: of lower courts holding back the Trump administration's actions, appellate
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Speaker 2: courts affirming that, and then the Supreme Court on the
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Speaker 2: emergency docket, coming in and reversing and allowing the administration
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Speaker 2: to go forward with its actions. We saw this with
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Speaker 2: allowing Trump to cancel nearly eight hundred million dollars in
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Speaker 2: National Institute of Health grants and up to sixty five
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Speaker 2: million dollars in teacher training grants, Allowing Trump to ban
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Speaker 2: transgender soldiers from the military, to carry out mass layoffs
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Speaker 2: of federal employees, to remove the heads of independent aid agencies,
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Speaker 2: and on and on. Why are the Conservative justices giving
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Speaker 2: this stamp of temporary approval but still approval to Trump's
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Speaker 2: actions on the emergency docket where there isn't full briefing
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Speaker 2: and we don't know what the explanation is most of
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Speaker 2: the time for their decisions.
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Speaker 3: This is utterly unprecedented to have the Supreme Court clear
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Speaker 3: a path for a presidential administration to, in essence, do
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Speaker 3: whatever would like, whether it's refused to spend money authorized
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Speaker 3: by Congress, or to pull a set of accomplished service
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Speaker 3: members out of military service, or to pull grant funding
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Speaker 3: from a range of institutions without going through well established,
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Speaker 3: long standing procedures, and not only to allow the executive
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Speaker 3: branch to pursue all of these aims. Been writing broughshawd
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Speaker 3: on well established law but to do that on the
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Speaker 3: so called emergency docket, which means that the Court has
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Speaker 3: not had a full hearing of the case and is
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Speaker 3: not issuing a full opinion after the benefit of argument. Indeed,
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Speaker 3: this case is a good example where in a handful
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Speaker 3: of senses, the Court allows the President to say, I'm
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Speaker 3: not spending money that's been authorized by Congress, even though
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Speaker 3: there is a law that says I have to spend
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Speaker 3: this money, and even though there is another set of
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Speaker 3: laws that says, if I'm not going to spend this money,
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Speaker 3: I have to go through a certain procedure which has
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Speaker 3: not been followed. So it's quite startling and should be
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Speaker 3: deeply disturbing to anyone, whatever ones use, who holds value
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Speaker 3: in the rule of law and in the Supreme Court
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Speaker 3: serving as a protector of the Constitution and doing that
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Speaker 3: not only by responding appropriately and promptly to serious national issues,
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Speaker 3: but also by explaining its reasoning. We just don't see
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Speaker 3: that here, and that is very very concerning. In fact,
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Speaker 3: Justice Kagan makes this point clear right saying that this case,
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Speaker 3: this application for a stay, was heard on a short use,
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Speaker 3: less than three weeks, scant briefing, no oral argument, no
15:25
Speaker 3: opportunity to deliberate in conference, and she points out that
15:29
Speaker 3: on the regular docket of the Supreme Court cases a
15:34
Speaker 3: far less import with far more process and reflection. So
15:38
Speaker 3: there are real reasons to be concerned about the use
15:43
Speaker 3: of the emergency docket to allow this administration, or really
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Speaker 3: any administration, to step away from to ride roughshod over
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Speaker 3: longstanding laws that restrict the administration's authority. That should be
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Speaker 3: deeply troubling to all of us.
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Speaker 2: This is a test of presidential power. Why does the
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Speaker 2: Supreme Court want to give another branch of government so
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Speaker 2: much power? You would think that they would, you know,
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Speaker 2: at least guard their own power. Why give it to
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Speaker 2: another branch of government? It sort of seems counterintuitive to me.
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Speaker 3: I think it's the right question. I think it is
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Speaker 3: appropriate to ask why Congress and the Court seem to
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Speaker 3: be seeding power or authority to the executive branch. The
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Speaker 3: American system is designed, the premise, or the foundational premise,
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Speaker 3: is that each branch checks the other. They're mutually checking.
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Speaker 3: We talk about separation of powers, but part of what
16:51
Speaker 3: we mean by that is that each serves as a
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Speaker 3: check on the other. And when that mutual checking stops
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Speaker 3: the foundation that holds up our system is at risk
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Speaker 3: of collapse. Why is the Supreme Court feeding so much
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Speaker 3: authority and also giving what seems in many cases to
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Speaker 3: be unfettered discretion to the executive branch. You know, there
17:19
Speaker 3: are many theories out there. There are political theories, there
17:22
Speaker 3: are sort of jurisprudential theories. But one true line I
17:27
Speaker 3: think we can see is that at least some of
17:31
Speaker 3: the justices in the majority of these opinions believe the
17:36
Speaker 3: executive branch does have more authority, right, that there's this
17:39
Speaker 3: idea of the unitary executive that really should drive the
17:44
Speaker 3: country and its works, but the president as a unique
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Speaker 3: level of authority and basically shouldn't be impeded in exercising
17:52
Speaker 3: that authority. The concern is, of course, you know, that
17:56
Speaker 3: was a monarchy, right, and that's what the America system
18:00
Speaker 3: moved away from, where there was one figure who had,
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Speaker 3: you know, essentially unfettered authority to the extent the other
18:08
Speaker 3: branches are ceding authority to the one figure in the
18:11
Speaker 3: name of the unitary executive theory. The risk is that
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Speaker 3: we get closer and closer to a return to a
18:22
Speaker 3: kind of monarchy that at least at the time of
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Speaker 3: the revolution Americans had rejected.
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Speaker 2: And most of these Supreme Court decisions are being carried
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Speaker 2: out by the six conservative Republican appointed justices.
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Speaker 3: I think when we have judges who you know, district
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Speaker 3: court and appellate judges who have been appointed by all
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Speaker 3: sorts of presidents, you know, generally in many cases coming
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Speaker 3: to the same position that the administration's actions are unlawful,
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Speaker 3: one has to wonder at the five or more often
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Speaker 3: six members of the court who disagree repeatedly in every case.
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Speaker 3: You know, we would be linking reality if we were
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Speaker 3: to say something is wrong with all of the district
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Speaker 3: courts and all of the circuit courts that are saying
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Speaker 3: no to certain presidential actions, and yet five or six
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Speaker 3: justice majority on the Supreme Court continues to say yes
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Speaker 3: to the president, go ahead and disregard the law. I
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Speaker 3: think that that is another that is something that should give.
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Speaker 2: All of us pause. Well, the regular term starts next Monday.
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Speaker 2: We will see if there's any difference in the way
19:42
Speaker 2: the Supreme Court handles the Trump cases on the regular
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Speaker 2: docket as opposed to the emergency docket. Thanks so much
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Speaker 2: for joining me today, Suzanne that's professor Suzanne Goldberg of
19:54
Speaker 2: Columbia Law School. With the indictment of former FBI Director
19:58
Speaker 2: James Comy, Resident Donald Trump advanced his push for legal
20:03
Speaker 2: action against his perceived political enemies. The indictment appeared to
20:07
Speaker 2: be a break from legal norms at the Justice Department,
20:11
Speaker 2: secured by a new acting US attorney, an insurance lawyer
20:16
Speaker 2: with no previous experience as a prosecutor, replacing the career
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Speaker 2: prosecutor who didn't think there was enough evidence to take
20:24
Speaker 2: the case to a grand jury. It's heightening concerns about
20:28
Speaker 2: the Justice Department's independence. But on Friday, Attorney General Pam
20:33
Speaker 2: Bondi doubled down on the threats of prosecutions of Trump's
20:38
Speaker 2: enemies on Fox News.
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Speaker 1: Whether you're a former FBI director, whether you're a former
20:43
Speaker 1: head of an intel community, whether you are a current
20:47
Speaker 1: state or local elected official, whether you're a billionaire funding
20:51
Speaker 1: organizations to try to keep Donald Trump out of office,
20:54
Speaker 1: everything is on the table. We will investigate you, and
20:58
Speaker 1: we will end the web organization.
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Speaker 2: The American College of Trial Lawyers is warning that Trump's
21:04
Speaker 2: demands to prosecute his political opponents are a blatant attack
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Speaker 2: on the rule of law and a road due process.
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Speaker 2: Joining me is the actl's president, Richard Dean Junior. He's
21:17
Speaker 2: a former US attorney who served under both Presidents Bill
21:21
Speaker 2: Clinton and George W. Bush. Were you surprised that the
21:26
Speaker 2: Justice Department brought charges against James Comey after being urged
21:31
Speaker 2: by the President.
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Speaker 4: It's difficult to say, because once I'd seen the announcement
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Speaker 4: from the President, like most other citizens, I suppose I
21:40
Speaker 4: just paid attention to see what came next. To say
21:43
Speaker 4: that I was surprised, I can't say. What I can
21:46
Speaker 4: say is it was a very unusual process because the
21:51
Speaker 4: news media was reporting that it appeared that the career
21:57
Speaker 4: prosecutors in the office were of the view that the
22:00
Speaker 4: case was not sufficient to be prosecuted. So when the
22:03
Speaker 4: President's announcement was made, it really caught the attention of
22:08
Speaker 4: many lawyers, especially because it seems so out of the ordinary.
22:12
Speaker 2: Prosecutors are supposed to make decisions based on the evidence
22:16
Speaker 2: and present cases to the grand jury only when they
22:21
Speaker 2: believe they can prove the case at trial. If prosecutors
22:25
Speaker 2: don't follow that, are they risking their bar licenses?
22:30
Speaker 4: Well, I guess they could if there were to be
22:34
Speaker 4: complaint raised, or if their bar itself were to initiate
22:38
Speaker 4: an inquiry, that would be a legitimate concern because if
22:41
Speaker 4: you're ethically, as a prosecutor, required to believe that you
22:45
Speaker 4: have a credible factual basis to go forward with a case,
22:50
Speaker 4: and as a matter of ethics, no lawyer should file
22:53
Speaker 4: a pleading in court that they don't believe has a
22:57
Speaker 4: factual basis then has factual support.
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Speaker 2: Is it rare for prosecutors, though, to face charges in
23:04
Speaker 2: that circumstance.
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Speaker 4: I think it's somewhat rare that charges like that get
23:08
Speaker 4: are allegations like that get filed because the Justice Department
23:12
Speaker 4: has had historically a very strong reputation for ethical conduct,
23:19
Speaker 4: and I think as a result of that, they have
23:22
Speaker 4: what's known in the law as a presumption of regularity
23:26
Speaker 4: that when the courts look at the Justice Department's operations,
23:30
Speaker 4: they based on their history, the courts presume that they've
23:35
Speaker 4: conducted themselves ethically and appropriately according to their history. That's
23:40
Speaker 4: why there have been probably so very few of those
23:43
Speaker 4: kinds of allegations or charges raised against the department.
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Speaker 2: Rick, tell us about the concerns of your.
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Speaker 4: Members, What has concerned us that whenever you're focusing proscatorial
23:56
Speaker 4: attention and proscytorial authority on individuals rather than on conduct
24:02
Speaker 4: and the possibility that persons have committed whatever the conduct
24:06
Speaker 4: might be. That's problematic because prosecutors have such wide ranging
24:11
Speaker 4: authority and wide ranging power, frankly to investigate cases. The
24:18
Speaker 4: history has always been that prosecutorial authorities should be focused
24:23
Speaker 4: on cases that should be brought and not focused on
24:27
Speaker 4: people who should be prosecuted. Well, let me go back
24:30
Speaker 4: to talking about one of our frankly more important Attorneys
24:36
Speaker 4: general that has ever served in that office, and that
24:38
Speaker 4: was Attorney General Jackson, who many many years ago, while
24:42
Speaker 4: he was speaking to lawyers in the Justice Department, pointed
24:47
Speaker 4: out the great authority that they had, the great discretion
24:50
Speaker 4: that they had, and the ability they had to really
24:53
Speaker 4: rehabit among an individual's life, and he pointed out that
24:58
Speaker 4: they should use that as the to focus on cases
25:02
Speaker 4: that should be brought rather than focusing on people that
25:06
Speaker 4: should be and his words gotten. So I think that's
25:10
Speaker 4: the distincsion that I'm talking about.
25:12
Speaker 2: Speaking about the Attorney general. And you know, usually in
25:16
Speaker 2: the past you usually didn't hear from US attorneys general
25:20
Speaker 2: unless they were announcing, for example, charges being brought in
25:24
Speaker 2: a huge case. But Attorney General Pam Bondi has been
25:28
Speaker 2: making a lot of statements about prosecutions to come, and
25:33
Speaker 2: she doubled down after the Coomy indictment. She said, whether
25:37
Speaker 2: you're a former FBI director, whether you're a former head
25:40
Speaker 2: of an intel community, whether you are a current state
25:43
Speaker 2: or local elected official, whether you're a billionaire funding organizations
25:48
Speaker 2: to try to keep Donald Trump out of office, everything
25:52
Speaker 2: is on the table. Is that statement concerning well the.
25:57
Speaker 4: Attorney General is going into the media making statements. You're
26:01
Speaker 4: right to say that. Historically you don't see that very often.
26:06
Speaker 4: The point of it that really matters, though, is again
26:11
Speaker 4: the focus being on due process and the fact that
26:15
Speaker 4: everybody is presumed to be innocent, and that these charges
26:20
Speaker 4: and the prospect of charges should be brought only after
26:23
Speaker 4: a full and fair investigation, and there shouldn't be announcements
26:28
Speaker 4: and pronouncements in advance of all of that, that these
26:32
Speaker 4: people are somehow guilty of a charge. That's violating principles
26:36
Speaker 4: of due process. It violates the notion that people are
26:40
Speaker 4: presumed to be innocent until proven otherwise, and proven beyond
26:45
Speaker 4: a reasonable doubt and that their cases have to be
26:49
Speaker 4: heard and evaluated by twelve ordinary citizens. And so until
26:54
Speaker 4: all of that process takes place, these people are protected
26:58
Speaker 4: by the Constitution. They have rights under the Constitution, and
27:03
Speaker 4: courts of law are required to protect those rights. And frankly,
27:07
Speaker 4: the Attorney General has taken an oath to protect those
27:10
Speaker 4: rights as well, even as she's initiating a prosecution.
27:15
Speaker 2: The reactions of several Republican lawmakers were, well, if he's innocent,
27:21
Speaker 2: a jury will decide that. You know, he'll have a
27:23
Speaker 2: chance to go to trial, and a jury will make
27:25
Speaker 2: the ultimate decision. But that ignores what a defendant has
27:30
Speaker 2: to go through and you know, the reputational damage and
27:35
Speaker 2: the money spent on attorney's fees and all the rest,
27:39
Speaker 2: the anxiety of going to trial.
27:42
Speaker 4: Well, it could, and I think that's part of the
27:44
Speaker 4: concerns that you would have in evaluating whether or not
27:47
Speaker 4: these pronouncements, and frankly, the cases themselves have the appropriate
27:52
Speaker 4: level of factual support. That's why ethically the Department of
27:58
Speaker 4: Justice has always required that they're prosecutors have in fact
28:02
Speaker 4: a sufficient factual basis so that they individually believe that
28:07
Speaker 4: they are able to sustain a conviction, so that when
28:10
Speaker 4: they bring a case, you could lose. And everybody understands
28:14
Speaker 4: that you might try a case and a jury might
28:16
Speaker 4: see it differently, but the individual prosecutors, as an ethical matter,
28:21
Speaker 4: should have facts and evidence that convinces them that the
28:25
Speaker 4: case should be brought.
28:28
Speaker 2: The Washington Post is reporting that prosecutors pursuing the case
28:32
Speaker 2: against John Bolton are being pushed by senior Justice Department
28:36
Speaker 2: officials to get an indictment quickly. Could rushing a case
28:41
Speaker 2: like that compromise the prosecution and perhaps what happens at trial.
28:47
Speaker 4: Well, again not knowing the specifics of the Bolton investigation,
28:51
Speaker 4: which frankly we should not know, because the investigation itself
28:54
Speaker 4: should largely be a secret process if it's done through
28:58
Speaker 4: the grand jury. The thing about potential cases such as
29:02
Speaker 4: that is that they can be complicated, and the factual
29:06
Speaker 4: basis to support them can be complicated. So prosecutors need
29:11
Speaker 4: to take their time and be sufficient in their investigation
29:14
Speaker 4: or thorough in their investigation, sufficient for them to have
29:18
Speaker 4: the evidence in place that they're satisfied they can prove
29:22
Speaker 4: the case beyond a reasonable doubt. That's what our constitution
29:26
Speaker 4: requires that's what due process of law requires. And again,
29:31
Speaker 4: every prosecutor, frankly every lawyer has taken an oath to
29:35
Speaker 4: support and defend the Constitution of the United States, and
29:40
Speaker 4: that includes the notion of due process of law and
29:44
Speaker 4: that people are innocent until proven guilty. The importance of
29:48
Speaker 4: an independent judiciary becomes all the more important in cases
29:53
Speaker 4: like this because the public will certainly be paying attention
29:57
Speaker 4: and will want to see how the judicial process addresses
30:00
Speaker 4: these cases, and so they will be looking to see
30:03
Speaker 4: whether or not there are facts to support the case,
30:06
Speaker 4: whether or not the case was properly initiated, and all
30:10
Speaker 4: of the things that you're pointing out, where the court
30:13
Speaker 4: will have to decide those issues.
30:16
Speaker 2: Supreme Court held last year that presidents are largely free
30:21
Speaker 2: from criminal liability for official actions they take. Does that
30:26
Speaker 2: play any role in what's happening right now with Trump
30:31
Speaker 2: calling for these prosecutions.
30:35
Speaker 4: I don't think so. I think what the Supreme Court
30:37
Speaker 4: was speaking to is a notion that a president can't
30:41
Speaker 4: be criminally held accountable for various actions that they may
30:46
Speaker 4: have taken as president. So the notion of saying that
30:50
Speaker 4: a defendant is quote guilty as hell is likely not
30:54
Speaker 4: criminal conduct. As we've pointed out, we believe it's inappropriate conduct,
30:59
Speaker 4: but the Supreme Court's decision probably doesn't extend to that
31:04
Speaker 4: kind of conduct by the president.
31:07
Speaker 2: Is it a justification that administration officials are saying, we're
31:13
Speaker 2: not weaponizing the Justice Department, we're responding to the weaponization
31:18
Speaker 2: of the Justice Department against Trump.
31:21
Speaker 4: I guess the point that I'll make is perhaps the
31:23
Speaker 4: one that I tried to make earlier, and I go
31:25
Speaker 4: back to Justice Jackson. You know, I've got the quote
31:29
Speaker 4: that he shared with all of the lawyers in the
31:31
Speaker 4: Justice Department in the Great Hall there at the Justice
31:34
Speaker 4: Department that he was leading as Attorney General. In quoting him,
31:38
Speaker 4: he said, the greatest danger of abuse of prosecuting power
31:43
Speaker 4: comes from the pressure to go after somebody rather than
31:46
Speaker 4: to go after a crime. And I think that's the
31:50
Speaker 4: point here that everybody understands. I think that no one
31:55
Speaker 4: is above the law, and if you've committed a crime,
31:58
Speaker 4: people understand that you can be held accountable for that,
32:02
Speaker 4: but they expect the process to be fair and that
32:06
Speaker 4: the charge is to be brought on the basis of
32:09
Speaker 4: sufficient facts and not just because there's political opposition. To
32:14
Speaker 4: whoever that person might be.
32:17
Speaker 2: And the American College of Trial Lawyers is a non
32:20
Speaker 2: partisan organization.
32:21
Speaker 4: The American College of Trial Lawyers, we represent trial lawyers
32:27
Speaker 4: across the US and Canada, and our membership is composed
32:31
Speaker 4: of some five thousand plus lawyers from all political perspectives,
32:35
Speaker 4: So we don't speak out about the politics of any
32:38
Speaker 4: of these matters. What we try to speak to is
32:41
Speaker 4: the legal process, calling for an independent judiciary, calling for
32:47
Speaker 4: honoring and respecting the rule of law, and calling for
32:52
Speaker 4: people to simply respect the fact of the access to justice,
32:57
Speaker 4: and for jury determinations that everybody has the right to
33:01
Speaker 4: have their case if there is a case brought to
33:04
Speaker 4: be decided in a quarter law.
33:07
Speaker 2: Thanks so much for joining me, Rick, That's Richard Dean,
33:09
Speaker 2: Junior President of the American College of Trial Lawyers. And
33:14
Speaker 2: that's it for this edition of The Bloomberg Law Show.
33:16
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33:19
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33:23
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33:35
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