Latest / Bloomberg Law / SCOTUS Ends Human Rights Lawsuits Over Atrocities Abroad

Transcript

SCOTUS Ends Human Rights Lawsuits Over Atrocities Abroad · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: This term, the Supreme Court has already decided more cases
0:12
Speaker 2: split down ideological lines than in the entire previous term,
0:17
Speaker 2: and on Tuesday, the Court handed down five decisions. Four
0:21
Speaker 2: were by six to three votes, with the conservative Republican
0:24
Speaker 2: appointees in the majority and the Liberal Democratic appointees in dissent.
0:30
Speaker 2: These included rulings that basically went against the religious rights
0:34
Speaker 2: of inmates, against the rights of Green card holders re
0:38
Speaker 2: entering the country, against suits for violations of human rights,
0:43
Speaker 2: but in favor of corporations bringing property claims in Cuba.
0:48
Speaker 2: Focusing now on one of those decisions, the Court's conservatives
0:52
Speaker 2: put new limits on lawsuits alleging human rights violations against
0:57
Speaker 2: corporations over atrocities abroad, effectively putting an end to these
1:02
Speaker 2: suits over human rights abuses. In a six to three vote,
1:07
Speaker 2: the court granted tech giant Cisco's bid to shut down
1:10
Speaker 2: a lawsuit alleging that the company work closely with China
1:14
Speaker 2: to create the country's Golden Shield surveillance system, which allowed
1:19
Speaker 2: officials to identify, apprehend, and torture members of the Fello
1:24
Speaker 2: Goong spiritual movement in China. Cisco has denied allegations of wrongdoing.
1:30
Speaker 2: My guest is an expert in international law. Curtis Bradley,
1:34
Speaker 2: a professor at the University of Chicago Law School, tell
1:38
Speaker 2: us about this lawsuit by twelve Chinese nationals and one
1:43
Speaker 2: US citizen suing Cisco.
1:45
Speaker 1: So, the Cisco case was a suit brought by the
1:49
Speaker 1: Fallangong religious group from China at least a number of
1:53
Speaker 1: members of that organization. They were suing not China in
1:56
Speaker 1: this case, but Cisco Systems, the computer company in the
1:59
Speaker 1: United States, and their argument was that Cisco had aided
2:03
Speaker 1: and abedded persecution of the Felongong in China by supplying
2:08
Speaker 1: Chinese government with surveillance technology basically, And the lower court
2:13
Speaker 1: had allowed this case to go forward, and the Supreme
2:16
Speaker 1: Court said that it could not go forward, and they
2:18
Speaker 1: issued a pretty important ruling about this type of human
2:22
Speaker 1: rights litigation which has been pretty active for the last
2:25
Speaker 1: thirty years. And the court's decision in Cisco, I think
2:28
Speaker 1: largely is going to put an end to these human
2:31
Speaker 1: rights cases brought against corporations.
2:33
Speaker 2: Was the issue whether the Alien Towards Statute creates liability
2:38
Speaker 2: for corporations that aid and abet human rights abuse.
2:42
Speaker 1: Yeah, the cases based on this old statute called the
2:44
Speaker 1: Alien Tort Statute. It's actually been on the books for
2:48
Speaker 1: you know, since the beginning of the country seventeen eighty nine,
2:51
Speaker 1: but it has just been used for human rights litigation
2:55
Speaker 1: really during the last thirty or forty years. And what
2:59
Speaker 1: the Court held in the Cisco case was, effectively it
3:03
Speaker 1: cannot be used for human rights. Cli know. One way
3:05
Speaker 1: to translate the decision. They basically said the statute doesn't
3:10
Speaker 1: have enough indication in it that Congress has wanted these
3:13
Speaker 1: human rights cases to go forward. So unless Congress amends
3:17
Speaker 1: the statue, the Court is really putting an end to
3:20
Speaker 1: those cases. It did say that the statue could be
3:23
Speaker 1: used for a few personal injury type claims that would
3:27
Speaker 1: have been around in the seventeen eighties, but they're not
3:29
Speaker 1: ones that we ever see today anymore. So this Cisco
3:33
Speaker 1: case basically says Congress will have to provide a new
3:36
Speaker 1: statue if plaintiffs are going to be able to sue
3:39
Speaker 1: for human rights abuses occurring in various countries. And that's
3:43
Speaker 1: that's an important ruling because there have been many cases
3:47
Speaker 1: for human rights abuses brought for atrocities from around the world,
3:50
Speaker 1: and they've been brought into US courts under this old
3:53
Speaker 1: Alien Torch statue, and the Supreme Court had composed a
3:57
Speaker 1: variety of restrictions on that litigation really in the last
4:01
Speaker 1: of fifteen years or so. But this is a more
4:04
Speaker 1: dramatic limit because it effectively just ends any more Alien
4:08
Speaker 1: Towart Statute litigation. I think.
4:10
Speaker 2: So the Alien Towart Statute is only thirty three words.
4:13
Speaker 2: I'm going to read it. The district court shall have
4:15
Speaker 2: original jurisdiction of any civil action by an alien for
4:19
Speaker 2: a tourt only committed in violation of the law of
4:22
Speaker 2: nations or a treaty of the United States. So, if
4:25
Speaker 2: this is a court, you know, that's reading the statute
4:28
Speaker 2: and ruling according to the words, why doesn't that cover
4:33
Speaker 2: what's happening here?
4:34
Speaker 1: Well, a couple of thoughts. One thing the court notes
4:37
Speaker 1: is that until the nineteen eighties, no one thought the
4:41
Speaker 1: statute provided a cause of action a claim for human
4:44
Speaker 1: rights abuses. And the words that you just read are
4:47
Speaker 1: not really written in terms of a claim statute. All
4:50
Speaker 1: they say is that the courts have jurisdiction, that is
4:53
Speaker 1: that they're available to hear certain kinds of tort cases,
4:57
Speaker 1: but they don't really provide what we today would call
5:00
Speaker 1: the cause of action, that is, a right to seek
5:02
Speaker 1: damages or other relief. And at least in the modern era,
5:06
Speaker 1: courts wait until Congress provides an actual claim statute before
5:11
Speaker 1: it starts giving people the right to sue for damages.
5:14
Speaker 1: But in the alien tort statue cases, courts had been
5:17
Speaker 1: allowing suits for damages even though I don't think the
5:20
Speaker 1: statute really addresses that. The other thing the Court mentions
5:26
Speaker 1: is that suits for these torts around the world inherently
5:30
Speaker 1: raise foreign policy issues. Sometimes they might promote some good
5:34
Speaker 1: in terms of human rights improvement, but they also sometimes
5:38
Speaker 1: create lots of conflicts with other countries. And the Court
5:42
Speaker 1: thought that if Congress really wants that type of litigation,
5:47
Speaker 1: it needs to address those foreign policy issues more specifically,
5:51
Speaker 1: and just citing a statue from seventeen eighty nine doesn't
5:54
Speaker 1: really show Congress as addressed all the foreign policy trade
5:58
Speaker 1: offs the human rights cases today, and so effectively, the
6:02
Speaker 1: Court's just pushing this over to Carnas.
6:05
Speaker 2: The three liberals were in descent. Just as Sodo Mayor said,
6:09
Speaker 2: the Court's decision today is yet another notch in its belt,
6:11
Speaker 2: unabashedly remaking the law on its preferred image, and the
6:15
Speaker 2: majority jettison's two decades of settled precedent and breathes new
6:20
Speaker 2: life into two decades of rejected legal theories. I mean,
6:24
Speaker 2: only twenty years ago, the Supreme Court held the opposite
6:28
Speaker 2: of what the court's holding here.
6:29
Speaker 1: That is sort of true. There's a two thousand and
6:32
Speaker 1: four decision. It's called Sosa versus Alvar's Machine, and Sodamora's
6:37
Speaker 1: Descent certainly understandably emphasizes that decision because the Court there
6:43
Speaker 1: did allow at least some cases to continue proceeding under
6:47
Speaker 1: the alien torch statue. Now, it was a pretty limited
6:50
Speaker 1: holding in Sosa, and the court said there should never
6:55
Speaker 1: be a particularly robust a set of cases, and it
6:58
Speaker 1: suggested a variety of limits the court should consider. And
7:03
Speaker 1: since that two thousand and four decision, the Supreme Court
7:05
Speaker 1: has never found a case to satisfy those limits from
7:09
Speaker 1: that two thousand and four case. And so the majority
7:12
Speaker 1: in the Cisco case says, we should just be clear
7:16
Speaker 1: that we're just not going to find a case that
7:19
Speaker 1: satisfies those strict limitations and just let everyone know so
7:23
Speaker 1: they don't waste time litigating, because repeatedly the Court has
7:27
Speaker 1: found reasons to reject those claims, and now it's just
7:30
Speaker 1: doing so more categorically. But I think the Descent makes
7:33
Speaker 1: a reasonable point that the court's not really giving precedential
7:37
Speaker 1: effect to that two thousand and four case. My own view,
7:41
Speaker 1: by the way, you know, what people disagree about this
7:43
Speaker 1: is that the two thousand and four case is probably
7:45
Speaker 1: wrongly decided, and I think the majority believes that to
7:48
Speaker 1: be the case as well. But nevertheless, there's an argument
7:51
Speaker 1: that it was entitled to some presidential weight that the
7:54
Speaker 1: Court is not giving it.
7:56
Speaker 2: And I mean the court has been narrowing the alien
8:00
Speaker 2: The Roberts Court has been narrowing the alien towards statute
8:03
Speaker 2: over the years. And I remember the twenty twenty one
8:06
Speaker 2: decision where a lawsuit accused Cargol and a Nesli subsidiary
8:10
Speaker 2: of knowingly perpetuating slavery of children on the Ivory Coast,
8:16
Speaker 2: and the court said there's no cause of action there either.
8:19
Speaker 2: If there's no cause of action, then I mean these
8:21
Speaker 2: people have no place else to sue, right or do that?
8:25
Speaker 1: That is, you know, one of the concerns about some
8:27
Speaker 1: of these restrictive decisions. But the Neslie case you mentioned
8:30
Speaker 1: and some others like it, what the Court had been
8:33
Speaker 1: saying was that it would not allow the Alien Torch
8:36
Speaker 1: Statute to be used for events that are entirely at
8:40
Speaker 1: taking place in other countries that aren't really connected to
8:43
Speaker 1: the US. What that produced was a lot of litigation
8:47
Speaker 1: fighting over whether there was some kind of minimal connection
8:50
Speaker 1: to say, planning or other activities in the US. And
8:53
Speaker 1: that is just generating a lot of litigation, most of
8:56
Speaker 1: which did not result in wins for the plaintiffs. But nevertheless,
8:59
Speaker 1: you know, the Court thought was kind of costly for
9:01
Speaker 1: the system, and I think the Court and Cisco thought
9:04
Speaker 1: it'd be better just to make a more categorical rule
9:08
Speaker 1: that we shouldn't keep litigating that now. As you mentioned,
9:12
Speaker 1: you know, the counter argument to all of this is
9:14
Speaker 1: there are serious atrocities being committed in various countries. Most
9:20
Speaker 1: of the time there aren't really any available remedies for
9:23
Speaker 1: the victims. They can't typically sue in the place of
9:27
Speaker 1: the of the human rights abuse. Most other nations don't
9:30
Speaker 1: allow cases like we had been allowing under the Alien
9:33
Speaker 1: Torch Statute, they aren't really international tribunals suited for the task.
9:38
Speaker 1: So some of the courts who like the Alien Tord
9:41
Speaker 1: Statute litigation had said, at least that's some possibility of
9:46
Speaker 1: redress vindication of their human rights, and that's actually a
9:50
Speaker 1: main reason some of the lower courts had been allowing
9:54
Speaker 1: these cases. But as the majority said in Cisco, that
9:58
Speaker 1: might be a noble goal, it's just not clear that
10:00
Speaker 1: Congress has endorsed that particular goal. And normally, at least today,
10:05
Speaker 1: if we're going to allow those kinds of important claims,
10:09
Speaker 1: somebody in the political branches, Congress particularly should actually decide
10:12
Speaker 1: whether that makes sense, maybe put some limits in the statue.
10:15
Speaker 1: One problem with the Eliant tor Statute, since it was
10:18
Speaker 1: never really written as a claim statute, it doesn't actually
10:21
Speaker 1: have any of the things we would normally find in
10:23
Speaker 1: terms of limits, like I don't know a statute of limitations, period,
10:26
Speaker 1: definitions of the claims you can bring. None of that's
10:30
Speaker 1: in the statue because I don't think it was really
10:33
Speaker 1: passed as a claim statute when it was first enacted.
10:36
Speaker 1: And so you know, the argument of the majority is,
10:39
Speaker 1: if it's really important to vindicate these rights, then people
10:43
Speaker 1: should lobby Congress to try to get another human rights statute.
10:46
Speaker 1: They got one, by the way, in the nineteen nineties.
10:49
Speaker 1: It's called the Torture Victim Protection Act. They lobbied Congress,
10:52
Speaker 1: Congress passed a law that you can bring claims under
10:55
Speaker 1: that statute for torture and extra judicial killing. And the
11:01
Speaker 1: Court has not stopped those cases, although it did limit
11:04
Speaker 1: that statute a little bit in the Cisco case. So
11:07
Speaker 1: that's the argument, the majority at least is that if
11:09
Speaker 1: there's a good argument for vindicating these human rights, that's
11:12
Speaker 1: a decision that I'd be made by Congress and the
11:15
Speaker 1: executive brand.
11:16
Speaker 2: In an eight to one decision, the majority said that
11:20
Speaker 2: the Torture Victims Protection Act of nineteen ninety one, which
11:23
Speaker 2: you just talked about, doesn't allow aiding and abetting liability claims. Well,
11:28
Speaker 2: why not if that's the go to statute.
11:30
Speaker 1: Now, yeah, Now, almost all the justices agreed on that holding,
11:35
Speaker 1: except for Justice so tomorrow. And the reason is that
11:37
Speaker 1: the Court had already said in a number of other cases,
11:40
Speaker 1: not ones that involve human rights, but just other corporate
11:43
Speaker 1: activity cases that aiding and a betting liability is raises
11:47
Speaker 1: a sufficient number of policy questions that we normally require
11:52
Speaker 1: Congress to be express when it wants to extend the
11:55
Speaker 1: reach of a statute not just to those who did
11:59
Speaker 1: something wrong, but those who might have helped it do
12:01
Speaker 1: something wrong. And so there's already just case law that's
12:05
Speaker 1: pretty strong case called Central Bank of Denver some other cases.
12:08
Speaker 1: The Supreme Court has just said, we don't imply normally
12:11
Speaker 1: aiding in a betting liability. We don't assume Congress does
12:14
Speaker 1: that lightly. And there's nothing in the Torture Victim Protection
12:18
Speaker 1: Act from nineteen ninety one that says anything about being
12:21
Speaker 1: able to sue not just the perpetrators but also those
12:25
Speaker 1: who might aid and a bet them. And it is
12:27
Speaker 1: a big extension of a statute to start applying it
12:30
Speaker 1: to others who might in some ways be connected to
12:33
Speaker 1: the perpetrators. It's not that it's a bad idea. Sometimes
12:36
Speaker 1: we want to go after aiders and a betters. And
12:39
Speaker 1: so eight of the nine justices thought this was pretty
12:43
Speaker 1: clear under their case law that you do have to
12:46
Speaker 1: wait for Congress to make that decision expressly.
12:49
Speaker 2: Just broadly speaking, the Roberts Court has been very pro business.
12:54
Speaker 2: I mean, in most of these human rights lawsuits that
12:57
Speaker 2: came up to the Court, the plaintive are suing businesses.
13:01
Speaker 2: Is that part of.
13:02
Speaker 1: This, well, it's complicated for the human rights cases. I
13:05
Speaker 1: would say it is true that once they started getting
13:08
Speaker 1: the human rights cases against corporations, they consistently held in
13:13
Speaker 1: the corporate side of this. I agree with that. However,
13:17
Speaker 1: you know that litigation started as suits against individual foreign
13:21
Speaker 1: officials and others back in the eighties and nineties. It
13:24
Speaker 1: eventually expanded into suits against corporations. But I don't think
13:29
Speaker 1: the Supreme Court was ever fully on board even before
13:32
Speaker 1: it became a vehicle for corporate litigation. So I think
13:36
Speaker 1: the Court's concerns transcend the fact that it's being used
13:40
Speaker 1: against corporations. It's really the plaintiffs have decided in the
13:43
Speaker 1: Alien Tort Statute. They decided that corporations were just a
13:47
Speaker 1: better defendant because they have assets, often assets in the
13:51
Speaker 1: United States. They're sometimes willing to settle these cases for
13:55
Speaker 1: large amounts of money. So it wasn't that the Supreme
13:58
Speaker 1: Court had particular focused on the corporations. That just that
14:02
Speaker 1: the increasingly those human rights cases became corporate type lawsuits.
14:07
Speaker 1: And I think the Court's concerns about it extended beyond
14:11
Speaker 1: the fact that it was about corporations. But it's absolutely true.
14:14
Speaker 1: One thing that happened in that Alien torstatute litigation, which
14:17
Speaker 1: I think did hurt the plaintiffs cause is when they
14:21
Speaker 1: started increasingly suing corporations. They were suing a lot of
14:24
Speaker 1: European corporations in the nineties and two thousands. That prompted
14:28
Speaker 1: European governments to start complaining to the Supreme Court about
14:32
Speaker 1: what this litigation had been doing. They thought the US
14:35
Speaker 1: was being too aggressive in its courts going after their companies,
14:39
Speaker 1: and that set of protests from the European Union and
14:43
Speaker 1: others I think did have some influence on the Court's
14:47
Speaker 1: view of this litigation. Not so much that they wanted
14:49
Speaker 1: to protect corporations, but it was clear that that litigation
14:53
Speaker 1: was producing conflict with other countries because US courts were
14:58
Speaker 1: allowing cases against say, Dutch oil companies and others. So
15:02
Speaker 1: I wouldn't just view this as just purely kind of
15:05
Speaker 1: a sympathy for corporations. It was also just a worry
15:07
Speaker 1: about was this harming US foreign relations and the executive branch,
15:12
Speaker 1: at least in some of the administrations had that same
15:15
Speaker 1: concern that the litigation was creating undue conflicts with allies
15:20
Speaker 1: and others abroad, So I think it transcends the corporate
15:24
Speaker 1: part of it.
15:24
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
15:27
Speaker 2: this conversation with Professor Curtis Bradley of the University of
15:31
Speaker 2: Chicago Law School. The Supreme Court revived a one billion
15:35
Speaker 2: dollars suit by Exon against a Cuban conglomerate for operating
15:40
Speaker 2: oil and gas assets seized in nineteen sixty. You're listening
15:45
Speaker 2: to Bloomberg. I've been talking to Professor Curtis Bradley of
15:48
Speaker 2: the University of Chicago Law School KURK. While the Conservatives
15:52
Speaker 2: are not allowing human rights lawsuits against corporations over atrocities abroad,
15:59
Speaker 2: they are allow showing a one billion dollars suit by
16:02
Speaker 2: Exon against a Cuban conglomerate for operating oil and gas
16:07
Speaker 2: assets seized in nineteen sixty in Cuba following the country's
16:11
Speaker 2: communist revolution, and that was also by a six to
16:15
Speaker 2: three vote down idiological lines. Quite a contrast there.
16:20
Speaker 1: Yes, absolutely, in some ways they look like decisions that
16:23
Speaker 1: have been in conflict in that the Cisco case shuts
16:28
Speaker 1: down international type claims because they're worried about the foreign
16:32
Speaker 1: policy implications. The Exon Mobile case allows pretty aggressive international
16:38
Speaker 1: claims against at least Cuban entities and others. And so
16:44
Speaker 1: how do you reconcile those? Well, one way possibly of reconcile.
16:49
Speaker 1: And I think the court and the Exon case had
16:52
Speaker 1: the view that Congress and the Executive really did support
16:55
Speaker 1: aggressive legal claims against Cuba and companies, you know, trans
17:00
Speaker 1: acting with Cuba. And that's probably to some extent true.
17:03
Speaker 1: You know, the statute in the Exon case is you know,
17:06
Speaker 1: relatively recent one compared to the Alien Torch statute. It
17:10
Speaker 1: was enacted in the nineties. It's called the Helms Burton Act,
17:13
Speaker 1: and it has aggressive provisions allowing suits against anyone who
17:17
Speaker 1: traffics in property, you know, confiscated by the Castro Cuban government.
17:22
Speaker 1: And it does have language allowing suit against even against
17:26
Speaker 1: government entities that transact in that confiscated property. So at
17:31
Speaker 1: least the court in the Exon case has stronger and
17:33
Speaker 1: clear statutory language I think, to work with in allowing
17:38
Speaker 1: the claims. I think that it would certainly say that
17:40
Speaker 1: if it were going to distinguish it from the Cisco case.
17:43
Speaker 1: I actually think it's kind of a pretty close call
17:45
Speaker 1: in my view about the statutory language in the Exon case.
17:48
Speaker 1: So I thought the dissenting justices there, Justice Kagan wrote,
17:52
Speaker 1: wrote the dissent, I thought they had some reasonable counter
17:54
Speaker 1: arguments about the statute. But I think if you were
17:58
Speaker 1: going to reconcile the two cases, I think the courts
18:00
Speaker 1: view is, yes, suits against Cuba and other companies doing
18:04
Speaker 1: business with Cuba raise foreign policy concerns, but it looks
18:08
Speaker 1: like Congress and the executive are willing to implicate those concerns,
18:13
Speaker 1: whereas they were not sure that was the case for
18:15
Speaker 1: the human rights cases.
18:17
Speaker 2: Explain why the liberal justices dissented.
18:20
Speaker 1: Yeah, So Justice Kagan's dissent focuses primarily on statutory language.
18:25
Speaker 1: And the United States has had a very comprehensive law
18:31
Speaker 1: that gives immunity to foreign governments and government owned companies
18:36
Speaker 1: and entities. They've had this law since nineteen seventy six,
18:40
Speaker 1: and it broadly gives immunity to foreign governments and their
18:44
Speaker 1: entities unless one of a set of specified exceptions than
18:49
Speaker 1: the statute are meant. And it wasn't clear any of
18:52
Speaker 1: those exceptions would work here in this exton case. And
18:56
Speaker 1: so Kagan's argument dissent is, you know there's a statute here.
19:01
Speaker 1: It says there's immunity, and no one has shown that
19:03
Speaker 1: you've met any of the exceptions. And she pointed out
19:06
Speaker 1: that the Helm's Burden Act, which gives this claim for
19:09
Speaker 1: suing entities that traffic and confiscated property, doesn't have anything
19:13
Speaker 1: in it about immunity. It doesn't say there's an exception
19:16
Speaker 1: to immunity. It doesn't reference the Foreign Sovereign Immunity Statute.
19:20
Speaker 1: So Kagan's argument of dissent is, we can reconcile these
19:23
Speaker 1: statutes by saying, yes, you have a cause of action
19:26
Speaker 1: under the Hells Burton Law, but if you're suing a
19:30
Speaker 1: government owned entity, as they were in this exton case,
19:33
Speaker 1: you have to work through the immunity statute, and it
19:36
Speaker 1: maybe you're not going to be able to do that
19:38
Speaker 1: in this case. That strikes me, by the way, as
19:41
Speaker 1: a pretty reasonable and plausible way of reconciling two statutes. Obviously,
19:46
Speaker 1: the majority was not persuaded. Justice Kavanaugh said that he
19:50
Speaker 1: thought there was enough evidence that Congress implicitly in giving
19:56
Speaker 1: the cause of action and the Helms Burton law, it
19:58
Speaker 1: implicitly was taking away immunity of Cuban government entities that
20:04
Speaker 1: traffic in this property. But it's all by implication, and
20:09
Speaker 1: I certainly thought it was a debatable issue of statutory interpretation.
20:13
Speaker 2: Cuba's going through its worst economic and energy crisis in decades,
20:18
Speaker 2: practically speaking, does Exxon expect to recover money here?
20:24
Speaker 1: Well, that's a general issue in these hell of burden
20:27
Speaker 1: at cases. You know, it's a pretty recent issue because
20:30
Speaker 1: Congress passed that law in the nineties, But then it
20:33
Speaker 1: also has a provision that says presidents can stop the
20:36
Speaker 1: operation of this statute for six months at a time,
20:39
Speaker 1: and every president had done that. So it had avoided
20:42
Speaker 1: this question in part maybe out of the hope that
20:45
Speaker 1: the US would develop better relations with Cuba at some point,
20:48
Speaker 1: and if you had a bunch of judgments out there,
20:51
Speaker 1: it might make it harder to kind of work out
20:53
Speaker 1: a new relationship with Cuba. But Trump, in his first
20:56
Speaker 1: term was the first president to stop the suspension of
21:00
Speaker 1: the claims and has allowed them to go forward. So
21:03
Speaker 1: it is the case that now there are these suits
21:07
Speaker 1: not just against Cuban governmentent these but other private companies
21:11
Speaker 1: as well, and the private companies presumably if they're found liable,
21:15
Speaker 1: they can pay those judgments. But you know, it's a
21:18
Speaker 1: big question about whether and how this poor Cuban government
21:22
Speaker 1: is going to satisfy judgments that relate to the government,
21:26
Speaker 1: and it might complicate, you know, any effort to kind
21:30
Speaker 1: of have more normal relationships with Cuba, if that becomes
21:34
Speaker 1: an option going forward. That concern is a reason that
21:37
Speaker 1: before Trump, at least presidents were concerned about some of
21:41
Speaker 1: this private litigation that it might complicate a normalization effort
21:46
Speaker 1: if that became possible with Cuba. And I think that's
21:50
Speaker 1: probably true. And generally the executive has just disfavored private
21:55
Speaker 1: foreign affairs kinds of lawsuits like this because it makes
21:58
Speaker 1: a diplomacy sometimes more challenging. But Trump, you know, has
22:02
Speaker 1: a different perspective on that. And I presume if there
22:06
Speaker 1: are judgments out there against Cuban government entities, they would
22:10
Speaker 1: have to be addressed at some level in some kind
22:13
Speaker 1: of a settlement if the US, you know, tried to
22:16
Speaker 1: have a new relationship with Cuban.
22:18
Speaker 2: So finally, I mean, do you think that this will open,
22:21
Speaker 2: you know, the floodgates to more suits against Cuba.
22:25
Speaker 1: I'm not sure this case by itself will do that.
22:28
Speaker 1: You know, Trump, by authorizing the use of the statute
22:32
Speaker 1: has sort of opened up not necessarily floodgates, but a
22:35
Speaker 1: number of cases against and by the way, not just
22:38
Speaker 1: Cuban government entities. That's the kind of unusual part of
22:41
Speaker 1: this case, and the court therefore had to do with
22:44
Speaker 1: the immunity question. The broader element of the Hell's Burden
22:48
Speaker 1: Act is just being able to sue any private actor
22:51
Speaker 1: that happens to so called traffic in property originally confiscated
22:56
Speaker 1: by Cuba. That basically means you could potentially to a
23:00
Speaker 1: lot of companies that do business with Cuba. So, you know,
23:04
Speaker 1: European and other countries have expressed concerns about this Hells
23:08
Speaker 1: Burtnek because it really looks like an effort by the
23:11
Speaker 1: United States to force a boycott on the other countries
23:16
Speaker 1: and their companies, and that is happening. There are a
23:19
Speaker 1: number of cases pending against these other private actors relating
23:24
Speaker 1: to Cuba, and so I think it won't be this
23:27
Speaker 1: decision per se, although this might open up somewhat more
23:30
Speaker 1: litigation than we had had before.
23:31
Speaker 2: Thanks so much, Kurt for a very interesting conversation. That's
23:35
Speaker 2: Professor Kurtis Bradley of the University of Chicago Law School.
23:39
Speaker 2: I'm June Grosso, and you're listening to Bloomberg. Acting Attorney
23:44
Speaker 2: General Todd Blanche is facing a complaint filed by a
23:48
Speaker 2: group of former federal and state judges with the New
23:51
Speaker 2: York State Bar asking for an investigation into his conduct
23:56
Speaker 2: in three areas, the orchestration of the creation of the
24:00
Speaker 2: one point eight billion dollar so called Anti Weaponization Fund,
24:04
Speaker 2: bringing controversial indictments against President Trump's political enemies like former
24:10
Speaker 2: FBI Director James Comy, and the flawed disclosure of documents
24:15
Speaker 2: in response to the Epstein Files Transparency Act. Whether action
24:19
Speaker 2: is taken on this complaint or not, there's no doubt
24:23
Speaker 2: that these are just some of the issues that will
24:25
Speaker 2: be raised by Democratic senators at Blanche's July confirmation hearings
24:31
Speaker 2: to be the Attorney General. Joining me is Carl Tobias,
24:34
Speaker 2: a professor at the University of Richmond Law School. Todd Blanche,
24:39
Speaker 2: Trump's personal attorney, has been nominated by Trump to be
24:43
Speaker 2: the Attorney General of the United States, and there are
24:46
Speaker 2: going to be a lot of questions about how he's
24:49
Speaker 2: performed as acting Attorney General. The one point eight billion
24:54
Speaker 2: dollar anti weaponization fund has been criticized by both Democrats
24:59
Speaker 2: and Republicans, and though he testified to Congress that the
25:04
Speaker 2: fund was not going forward, he refused to give a
25:08
Speaker 2: federal judge a sworn statement to that effect. I mean,
25:13
Speaker 2: do you think that this is enough to cause a
25:16
Speaker 2: problem with his nomination?
25:18
Speaker 3: Potentially? It is because I think Judge Brinkhama specifically asked
25:24
Speaker 3: for that verification in writing, partly because the administration hasn't
25:32
Speaker 3: been very forthcoming and President Trump, for example, is sent
25:37
Speaker 3: on a number of occasions he thinks the anti recognization
25:41
Speaker 3: fund is a great idea. So it's not, as Blanche said,
25:46
Speaker 3: as dead as he said it is, I think in
25:50
Speaker 3: Judge Brinkhma's mind and many Americans, and so she has
25:55
Speaker 3: asked for that. Though there was pushback in the response
25:59
Speaker 3: from the Department of Justice that was due on Friday,
26:03
Speaker 3: and the Department of Justice basically said, we've done all
26:07
Speaker 3: we can do, We're not going to do anymore. So
26:11
Speaker 3: I think what she's going to do is go forward
26:14
Speaker 3: and enter some kind of more permanent injunction. And so
26:20
Speaker 3: then I assume they'll appeal.
26:22
Speaker 2: That is it unheard of for a judge to wants
26:24
Speaker 2: someone in the cabinet in this case, the acting Attorney
26:28
Speaker 2: General and the Treasury Secretary to submit a sworn statement.
26:33
Speaker 3: Well, it depends on who you talk to. But I
26:36
Speaker 3: think there's a problem with many people in the president
26:41
Speaker 3: administration not doing what they say they're going to do,
26:46
Speaker 3: and so that makes it very difficult for federal judges
26:49
Speaker 3: who are trying to decide cases and make sure that
26:54
Speaker 3: everything proceeds as it should. And that's why I think
26:58
Speaker 3: she asked for it in writing. There's been a lot
27:01
Speaker 3: of discussion about how there are issues with lawyers at
27:06
Speaker 3: the Department of Justice when they're in court and what
27:09
Speaker 3: they're saying in court, especially in the Eastern District of
27:12
Speaker 3: Virginia and other jurisdictions.
27:15
Speaker 2: And another matter that I'm sure the Democratic Senators will
27:20
Speaker 2: bring up is the Epstein files. And this has be
27:24
Speaker 2: deviled many a person in the Trump administration. So when
27:28
Speaker 2: Attorney General Pam Bondy testified to the committee, apparently she
27:33
Speaker 2: put the whole onus of the Epstein release on Todd
27:38
Speaker 2: blnch And you also have the fact that no one
27:41
Speaker 2: has revealed why after he interviewed Gallaine Maxwell in a
27:48
Speaker 2: Florida higher security prison, she was somehow transferred within days
27:54
Speaker 2: to a low security prison where apparently she's getting benefits
27:57
Speaker 2: that other prisoners don't. So he's going to be subject
28:00
Speaker 2: to a lot of questions on that too.
28:03
Speaker 3: Well, that's right, and the hearing. Democrats objected to having
28:11
Speaker 3: a hearing combined with an oversight hearing. A Senator Whitehouse
28:15
Speaker 3: from Rhode Island, who took over because Durbin was out
28:19
Speaker 3: of town, said that very thing in the markup last week.
28:23
Speaker 3: He wanted to know what was going to happen, and
28:27
Speaker 3: he thought that it was a mistake to combine an
28:30
Speaker 3: oversight hearing for the Department of Justice into the hearing
28:34
Speaker 3: on Blanche because there wasn't sufficient time and there were
28:39
Speaker 3: many questions Democrats wanted to ask, and Grassley was not
28:43
Speaker 3: entirely clear about that. So we'll see, but I think
28:47
Speaker 3: Democrats believe and white House said that we need to
28:51
Speaker 3: have a full hearing on the nomination because it's so
28:55
Speaker 3: important and there are other issues that are involved. Remember
29:00
Speaker 3: the day after the weaponization fund was signed as part
29:05
Speaker 3: of the deal, then there was a pended the tax
29:10
Speaker 3: immunity for Trump and his family, which has been attributed
29:16
Speaker 3: to Blanche and it was less than a page, and
29:20
Speaker 3: so that has not gotten nearly as much attention as
29:23
Speaker 3: the Anti Weaponization Fund, but it should be equally troubling
29:27
Speaker 3: because most Americans think that they're not going to have
29:31
Speaker 3: immunity from tax liability.
29:34
Speaker 2: Yeah, and Blanche said that it was going forward and
29:36
Speaker 2: he characterized it as something you know that happens all
29:40
Speaker 2: the time, which is absurd. Even a single Republican on
29:46
Speaker 2: the Judiciary Committee not voting for Blanche could sink his nomination.
29:53
Speaker 3: Well, it's possible, and people have talked about Senator Tillis
29:58
Speaker 3: and his strong concern about January six and the rioters
30:04
Speaker 3: at the Capitol and how Blanche is treated that and
30:10
Speaker 3: what one Republican can do is stop it from going
30:15
Speaker 3: forward because if that person votes, know, then it would
30:19
Speaker 3: be a tie and would go to the whole Senate.
30:22
Speaker 3: It's still possible he could move forward, but it's much
30:25
Speaker 3: more difficult to do in that situation. The other senator
30:30
Speaker 3: people are talking about is Senator Cornyn, who now will
30:33
Speaker 3: be retiring after losing to Paxton in the primary, and
30:39
Speaker 3: he has raised questions for Blanche as well. Does he
30:43
Speaker 3: understand the difference in being the personal lawyer for the
30:48
Speaker 3: president and being Attorney general for the country. And that's
30:52
Speaker 3: a telling commentary.
30:55
Speaker 2: Okay, So let's turn to judges. Is time running out
30:58
Speaker 2: for the Senate to confirm judges before the midterms?
31:03
Speaker 3: Well, very soon it will run out, you're correct, and
31:08
Speaker 3: don't forget. They'll go for July fourth and come back
31:11
Speaker 3: on the thirteenth of July. They'll go for August summer
31:15
Speaker 3: break and take most of that month in summer September,
31:20
Speaker 3: and then pretty soon when they come back in September,
31:23
Speaker 3: they'll have a couple of weeks and then they'll go campaign.
31:27
Speaker 3: So there isn't a whole lot of time. The White
31:30
Speaker 3: House is relatively caught up, except that there are a
31:33
Speaker 3: number of vacancies where they have no nominees. For example,
31:36
Speaker 3: the fith Circuit vacancy, which we just learned about. Judge
31:40
Speaker 3: Engelhart of Louisiana said he would take senior status and
31:44
Speaker 3: so that one could be very difficult to fill in
31:48
Speaker 3: that short period of time. So I don't know that
31:51
Speaker 3: that's going to happen.
31:53
Speaker 2: So some of the front runners for that seat Louisiana
31:56
Speaker 2: Solicitor General Jay Benjamin Aguina, who clerk for Justice Alito
32:02
Speaker 2: and has argued four cases before the Supreme Court.
32:06
Speaker 3: Yes, and he's a solicitor general there again clerk for
32:09
Speaker 3: Judge Alito. The other people being considered Anna Saint John,
32:16
Speaker 3: who was just confirmed for the Eastern District Louisiana this year,
32:21
Speaker 3: And of course the person who's advising the White House
32:25
Speaker 3: on this is the Senior Senator Kennedy from Louisiana. He
32:29
Speaker 3: has outsized influence, and of course Center Cassidy is prominent
32:34
Speaker 3: as well, But Kennedy is the lynchpin on this one,
32:39
Speaker 3: and I think the White House is deferring somewhat to
32:41
Speaker 3: his judgment there. It would be very difficult though, for
32:47
Speaker 3: Judge Saint John, who's just started taking cases as a
32:51
Speaker 3: district judge, to then be elevated to the Circuit. It
32:57
Speaker 3: seems to me then you'd have to fill behind that
33:00
Speaker 3: in that vacancy, and that would take some time. So Kennedy,
33:03
Speaker 3: I think, has to figure that out and make the recommendation.
33:07
Speaker 3: I think the White House will defer to him, and
33:09
Speaker 3: he's worked well with the White House with other appointees.
33:13
Speaker 3: He also was instrumental I think even in during Biden's
33:16
Speaker 3: time in bringing people forward for the district bench, and
33:20
Speaker 3: that might be a viable compromise because some of them
33:23
Speaker 3: have already served two or three years on the district
33:25
Speaker 3: bench and have records that could be consulted, and they
33:30
Speaker 3: went relatively easily through the Senate at the time they
33:34
Speaker 3: were confirmed.
33:35
Speaker 2: He backed Saint John for that judge ship, so I
33:38
Speaker 2: don't know if that will play into it, but he
33:41
Speaker 2: was a big supporter of hers.
33:42
Speaker 3: So yes, he said very glowing things about her abilities.
33:47
Speaker 3: And in a way, she's more suited to the appellate
33:50
Speaker 3: bench because that's the kind of work she did. She
33:53
Speaker 3: was not, I think, a litigator in the district courts,
33:56
Speaker 3: but rather filing appeals and arguing those appeals in the
34:01
Speaker 3: app's court. On the other hand, Naga has had significant
34:06
Speaker 3: experience in the appeals courts and his clerking make him
34:10
Speaker 3: an important candidate, and he's done some difficult cases in
34:14
Speaker 3: Louisiana and one some pretty big ones.
34:16
Speaker 2: This will not tip the balance of Republican appointees to
34:20
Speaker 2: Democratic appointees on the Fifth Circuit. Does it make a difference,
34:24
Speaker 2: You know, a Republican appointee is replacing a Republican appointee.
34:28
Speaker 2: Is there any difference?
34:29
Speaker 3: Well, of course, because I think Judge Engliheart just took
34:34
Speaker 3: senior status under the rule of eighty because he's sixty five,
34:37
Speaker 3: and I think Anguinada is much younger than that, and
34:42
Speaker 3: so you do get, you know, twenty or thirty years
34:45
Speaker 3: of service, which is important. Judge Englehart had been a
34:48
Speaker 3: district judge see for a long period and so I think,
34:52
Speaker 3: all things being equal, they would want to do that.
34:54
Speaker 3: But Saint John is quite young, and I think as well.
34:58
Speaker 2: Are there any other open appellate spots.
35:02
Speaker 3: Yes, This last week in the markup for the Second Circuit,
35:05
Speaker 3: Matthew Schwartz, who represented the President in the hush money
35:09
Speaker 3: case as well as the federal cases, which takes the
35:13
Speaker 3: Chief Judge Livingston's vacancy for the second Circuit, she took
35:17
Speaker 3: sing your status. And then in the sixth Circuit you
35:19
Speaker 3: have Benjamin Flowers who will take the vacancy created by
35:24
Speaker 3: the Chief Judge. And I assume they'll move those people
35:27
Speaker 3: as soon as possible to confirmation because they're on the floor.
35:31
Speaker 3: And also there are still two people, one of whom
35:34
Speaker 3: has had a hearing. Judge Trainer for the eighth Circuit
35:38
Speaker 3: will have a mark up soon, and another judge, Dan
35:43
Speaker 3: Domenico for the tenth Circuit, hasn't had a hearing yet.
35:46
Speaker 3: So there's still people in the pipeline who can be
35:49
Speaker 3: confirmed this year for the Rep. Pellet bench.
35:52
Speaker 2: We'll see how fast they can move those nominations. Thanks
35:55
Speaker 2: so much, Carl. That's Professor Carl Tobias of the University
35:59
Speaker 2: of Richmond Law School, and that's it for this edition
36:01
Speaker 2: of The Bloomberg Law Show. Remember you can always get
36:04
Speaker 2: the latest legal news on our Bloomberg Law podcasts. You
36:07
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
36:11
Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember
36:16
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
36:19
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
36:22
Speaker 2: listening to Bloomberg