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Weekend Law: Bolton Indicted, Voting Rights & Reagan Judges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: Three weeks and three perceived political enemies of President Donald
0:13
Speaker 2: Trump indicted. Former Trump administration National security advisor John Bolton
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Speaker 2: was charged on Thursday with eighteen counts of retention and
0:23
Speaker 2: transmission of national defense information. The outspoken critic of President
0:29
Speaker 2: Trump is accused of sharing with his wife and daughter
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Speaker 2: more than a thousand pages of notes about his day
0:36
Speaker 2: to day activities as national security advisor, including classified information. Trump,
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Speaker 2: who's repeatedly called for Bolton to face criminal charges, had
0:47
Speaker 2: a rather muted reaction to the indictment.
0:50
Speaker 3: I didn't know that. You told me for the first time.
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Speaker 3: But I think he's a bad person.
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Speaker 4: I think he's a bad guy.
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Speaker 3: Yeah, he's a bad guy, too bad. But that's the
1:01
Speaker 3: way it goes the way it goes, right.
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Speaker 2: Bolton pleaded not guilty to the charges on Friday and
1:08
Speaker 2: said he's the latest target in the weaponization of the
1:11
Speaker 2: Justice Department to charge people Trump deems to be his enemies.
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Speaker 2: My guest is National security attorney Mark Zaid. So Mark
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Speaker 2: is the heart of this indictment. The diary entries he
1:24
Speaker 2: made when he was national security advisor.
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Speaker 5: I think there's two things that this indictment really throws
1:29
Speaker 5: out there that is significant. One, there is no indication
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Speaker 5: that any one of these charges pertains to any marked
1:38
Speaker 5: classified documents. You know, folks may remember that it was
1:42
Speaker 5: indicated that there were documents that were retrieved from his
1:44
Speaker 5: home that were still marked as classified. Yet none of
1:47
Speaker 5: that shows up in the indictment. And then the second
1:50
Speaker 5: thing is that no count in this indictment actually deals
1:55
Speaker 5: with information that was published in Bolton's book, The Room
1:59
Speaker 5: Where It Happened. And that's really key because it was
2:03
Speaker 5: the contents of the book that Judge Lambert, the Federal
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Speaker 5: District judge, had identified as actually having contained classified information.
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Speaker 5: So this indictment eighteen counts in all, looks to solely
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Speaker 5: be limited to this diary that John Bolton maintained that
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Speaker 5: he would send daily to his wife and daughter.
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Speaker 2: Is it problematic for Bolton that, according to the indictment,
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Speaker 2: some of the notes indicated that he was getting the
2:35
Speaker 2: information in a secured environment. For example, one began with
2:39
Speaker 2: while in the situation room, I learned that and another
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Speaker 2: the intel.
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Speaker 5: Briefer said, I have represented other national security advisors and
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Speaker 5: secretaries of Defense, and dozens of other federal employees who
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Speaker 5: have written books, who have come out of the intelligence community,
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Speaker 5: the military, law enforcement. I will say every single one
3:02
Speaker 5: of them always comes to me and says, I wrote
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Speaker 5: this book to make sure it had no classified information
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Speaker 5: in it. They always think that, and they always want that,
3:12
Speaker 5: But the reality is, when you're not the one making
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Speaker 5: the decisions any longer, it's the government that makes that decision,
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Speaker 5: and the government can really very broadly interpret information to
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Speaker 5: constitute something that is classified. Literally anything that deals with
3:29
Speaker 5: foreign relations if it mentions a foreign country, could be
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Speaker 5: classified by a classifier in the US government. I have
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Speaker 5: been warning for a long time, long before Trump, but
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Speaker 5: now especially concerning because of Trump, that the Espionage Act
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Speaker 5: could be exploited and used as a weapon against individuals
3:51
Speaker 5: because of how easy it is to charge someone who
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Speaker 5: had previously access to classified information with its mishandling. So
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Speaker 5: I'm not surprised that this is where the administration is going,
4:03
Speaker 5: and it will be some time before we find out
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Speaker 5: whether or not this information was really classified or more
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Speaker 5: appropriately properly classified.
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Speaker 2: So then one of his challenges, you think, will be
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Speaker 2: a challenge to the classifications.
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Speaker 5: Very few espionage ZACK cases go to trial, and there's
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Speaker 5: a reason for that because the defenses are usually very
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Speaker 5: limited in nature. Every attempt, for the most part, that
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Speaker 5: has gone to try and challenge the classification determination generally fails.
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Speaker 5: So it is usually through pre trial motions, particularly through
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Speaker 5: what we call SIPA, the Classified Information Procedures Act, where
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Speaker 5: you gray mail the government in the sense of well,
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Speaker 5: I need this information to be publicized for my defense,
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Speaker 5: and if the government's not willing to do that, then
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Speaker 5: they have to dismiss the indictment. John Bolton, of course,
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Speaker 5: will have similar motions, as we'll see in the James
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Speaker 5: Homie case and the Letitia James case of selective and
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Speaker 5: vindictive prosecution. Both of those motions are always incredibly difficult
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Speaker 5: as well. But if any case was poised for potential success,
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Speaker 5: it would be this type of weaponized case. But John
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Speaker 5: Bolton will have trouble with this indictment. It has nothing
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Speaker 5: to do with the specifics of his case, of which
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Speaker 5: I know nothing about. It has to do with just
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Speaker 5: how espionageac cases generally go, which is to oftentimes end
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Speaker 5: up in a plea.
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Speaker 2: Is there another case that seems similar to you, perhaps
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Speaker 2: the General Portrayus case.
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Speaker 5: I do think the Portrayus case is very similar for
5:45
Speaker 5: folks who don't go that far back. General Portraeus, the
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Speaker 5: former director of the Central Intelligence Agency, was writing a
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Speaker 5: book and he had a ghostwriter who happened to be
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Speaker 5: his mistress as well, and he was sharing classified information
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Speaker 5: with her. Now, she at least had a security clearance,
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Speaker 5: unlike John Bolton's wife and daughter, but it doesn't really
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Speaker 5: matter because she wasn't authorized to receive the information. And
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Speaker 5: as in both cases, there's no indication of any dissemination
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Speaker 5: of that information beyond the people who it was disseminated
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Speaker 5: to originally. Obviously there might have been a hack by
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Speaker 5: Iranian government officials, but I don't know of any evidence
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Speaker 5: that actually they did anything with the information, presumably because
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Speaker 5: perhaps there wasn't anything that really made any valuable contribution
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Speaker 5: to disseminate it. But General Petraeus, although this was a
6:40
Speaker 5: decade ago and it was very different times, he only
6:43
Speaker 5: got two years probation and one hundred thousand dollars. Fine,
6:47
Speaker 5: you know, I would take that as a win in
6:49
Speaker 5: this type of case. Easy, But we're not going to
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Speaker 5: get there until a whole number of pre trial motions
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Speaker 5: will be brought by Bolton's legal team.
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Speaker 2: I'm curious as to what you think about the government
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Speaker 2: putting in the indictment some of Bolton's commentary on for example,
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Speaker 2: Hillary Clinton and the email server or secretary hegset then
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Speaker 2: signal the.
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Speaker 5: Government included all these quotes from Bolton to demonstrate that
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Speaker 5: he as is well known because he's been around forever.
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Speaker 5: I first met him in nineteen ninety two when I
7:25
Speaker 5: was in law school. He's had so many senior level
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Speaker 5: positions at the highest levels of classified access as well.
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Speaker 5: He knows what is classified and how to protect it,
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Speaker 5: et cetera. But this is what I see all the time,
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Speaker 5: no matter what level, they always think that they are
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Speaker 5: not revealing classified information. And he maybe one hundred percent correct.
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Speaker 5: Maybe at some point we'll find out, but it was
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Speaker 5: a sort of in your face attempt or pr effort
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Speaker 5: by the government to throw his own quotes him. It
8:01
Speaker 5: might not make any difference, and likely doesn't as a
8:05
Speaker 5: matter of law, but perhaps if he got to a jury,
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Speaker 5: this might have some impact on them of hey, you
8:12
Speaker 5: should have known better. But the reality is, you know,
8:16
Speaker 5: most of these cases are very factually different. I mean
8:19
Speaker 5: you can come up with some analogies, but there's still
8:22
Speaker 5: going to be some facts that distinguish one case from
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Speaker 5: the other.
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Speaker 2: Finally, do you think that there'll be a plea deal
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Speaker 2: in the case or it will actually go to trial.
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Speaker 2: He's the third perceived Trump enemy who's been indicted, But
8:37
Speaker 2: do you see his case as very different from the
8:41
Speaker 2: cases against former FBI director James Comy and New York
8:46
Speaker 2: Attorney General Letitia James.
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Speaker 5: The Bolton indictment has more meat on its bones than
8:51
Speaker 5: the Komy and James indictments, and that has to do
8:55
Speaker 5: with who brought it. For one thing, Lindsay Halligan the
8:59
Speaker 5: point to US attorney in the Eastern District of Virginia,
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Speaker 5: who has zero criminal experience. She's an insurance lawyer and
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Speaker 5: not even a very experienced insurance lawyer, and she did
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Speaker 5: the case herself with no experience and apparently no help.
9:14
Speaker 5: And career professionals refuse to sign on. We're not seeing
9:18
Speaker 5: that in the Bolton case. There are career national security
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Speaker 5: attorneys who have signed on to this case. It is
9:25
Speaker 5: a much more detailed indictment, twenty six pages in length,
9:28
Speaker 5: and there's a lot in there because they've brought these
9:31
Speaker 5: cases many, many times. There aren't a ton of the
9:35
Speaker 5: Espionagack cases when it really comes down to it, because
9:38
Speaker 5: those are reserved for cases where the government knows they
9:42
Speaker 5: can generally win. But this is a very similar on
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Speaker 5: paper case that we see very often, although I will
9:50
Speaker 5: say the nature of it is very, very concerning, and
9:54
Speaker 5: I'm not even talking about the vindictiveness. I'm talking about
9:57
Speaker 5: what really is on trial in this indictment, and that
10:01
Speaker 5: is the pre publication review process. In some ways, how
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Speaker 5: do senior officials or anyone in the government who had
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Speaker 5: access to classified information, how do they write a book?
10:12
Speaker 5: Because I will say, what John Bolton is alleged to
10:16
Speaker 5: have done is done every single day by government officials,
10:21
Speaker 5: both Democrat and Republican. And if you're going to go
10:24
Speaker 5: down that path one time, then you're going to have
10:27
Speaker 5: to go down that path a lot more times if
10:30
Speaker 5: you want to keep any type of consistency, and that
10:33
Speaker 5: will involve and include Frump administration officials who are in
10:37
Speaker 5: office right now who I guarantee you will do the
10:40
Speaker 5: same thing.
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Speaker 2: Bolton's attorney, Abby Lowell, who also represents Letitia James, said
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Speaker 2: that the underlying facts in the case were investigated and
10:49
Speaker 2: resolved years ago. And also that keeping diaries is not
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Speaker 2: a crime.
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Speaker 5: I will say first out front. Abby Lowell is also
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Speaker 5: my attorney representing me and a colleague and a friend,
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Speaker 5: and he's right, and he's a little bit not necessarily right.
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Speaker 5: For one thing. Sure, everyone can keep a diary. It
11:09
Speaker 5: has to do with whether or not there is classified
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Speaker 5: or more precisely, national defense information in it that you
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Speaker 5: can't do. And I don't judge whether that's what happened,
11:19
Speaker 5: because I don't know. But Abby is absolutely right that
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Speaker 5: the timing of this is incredibly suspect. This was all
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Speaker 5: known years ago. Now I suppose the government will say, well,
11:31
Speaker 5: we didn't know about the diary, but they knew about
11:34
Speaker 5: the book, and the diary is what comprised the book,
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Speaker 5: even though surprisingly none of the information published in the
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Speaker 5: book is at issue here, and I find that incredibly intriguing.
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Speaker 5: So the notion of what Balton did to write his book,
11:52
Speaker 5: the Trump administration knew that four or five years ago,
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Speaker 5: and could have found out that fame information. They went
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Speaker 5: to court in an almost unprecedented civil action to try
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Speaker 5: and enjoin the book, meaning to make sure it wasn't published,
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Speaker 5: which they failed in doing because the standard to enjoin
12:13
Speaker 5: a book dates back to the Watergate time in the
12:17
Speaker 5: Pentagon Papers case, where the Supreme Court did not allow
12:21
Speaker 5: the government to block the publication of the Pentagon Papers,
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Speaker 5: which was the secret war history of the Vietnam War
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Speaker 5: and the US involvement. No one has tried to enjoin
12:31
Speaker 5: a book since because the standard is so high, And
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Speaker 5: I was very surprised that Trump administration tried to do
12:36
Speaker 5: that because of how easy it was that they were
12:39
Speaker 5: going to lose. But where they could have succeeded had
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Speaker 5: they wanted to, was to go after John Bolton criminally
12:46
Speaker 5: back then, and they had far more evidence just what
12:51
Speaker 5: existed at the time, because you had a federal district
12:54
Speaker 5: judge say outright that there was classified information in the
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Speaker 5: man script in the book, and they chose not to
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Speaker 5: do it. So to do it now five years later,
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Speaker 5: and on the heels of a rant multiple times by
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Speaker 5: the President of the United States that he wants to
13:15
Speaker 5: go after his enemies, calls into question the integrity of
13:19
Speaker 5: this indictment, and that will be a factor in pre
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Speaker 5: trial motion.
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Speaker 2: Do you think that there'll be a plea deal in
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Speaker 2: the case or it will actually go to trial, or
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Speaker 2: third choice, will it be dismissed before trial.
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Speaker 5: There are some very good motions that will happen pre
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Speaker 5: trial that could definitely impact the structure of this prosecution.
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Speaker 5: Once the party start to get into discovery, particularly Bolton,
13:46
Speaker 5: starts to get information from the government, you know, we'll
13:49
Speaker 5: start to have a better picture of whether a selective
13:52
Speaker 5: or vindictive prosecution effort or motion could work. Beyond that,
13:57
Speaker 5: we've got two very stubborn parties here, both John Bolton
14:02
Speaker 5: and President Trump and Pam Bonde as the Attorney General.
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Speaker 5: I doubt we will see a plea discussion anytime soon,
14:12
Speaker 5: but down the line it could totally happen, especially if
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Speaker 5: one or both parties believe they're going to have egg
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Speaker 5: on their face and that in order to avoid that
14:23
Speaker 5: is going to require some sort of plea deal. I
14:26
Speaker 5: think at the end of the day, the Trump administration
14:28
Speaker 5: could care less if John Bolton is convicted or acquitted.
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Speaker 5: It's far more about putting him Leticia James, James Comy
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Speaker 5: and others who are forthcoming through the ringer the way
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Speaker 5: he feels he was pulled through as well. So at
14:46
Speaker 5: the end of the day, it probably won't matter. He
14:49
Speaker 5: just wants them to suffer along the way.
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Speaker 2: So apparently a tough road ahead for Bolton. Thanks so much, Mark.
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Speaker 2: That's National Security Attorney Mark Zaid. Coming up next, will
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Speaker 2: the Supper Court gut the Voting Rights Act. I'm June
15:03
Speaker 2: Grosso and you're listening to Bloomberg.
15:09
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
15:14
Speaker 2: The Voting Rights Act is a landmark civil rights law
15:18
Speaker 2: that for more than half a century has been a
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Speaker 2: guardrail against gerrymanderd congressional maps that discriminate on the basis
15:25
Speaker 2: of race. In a complicated case involving a challenge to
15:29
Speaker 2: a black majority district in Louisiana, one thing seemed clear
15:33
Speaker 2: after two and a half hours of oral arguments, the
15:36
Speaker 2: six conservative justices are ready to limit or potentially eliminate
15:41
Speaker 2: the most important remaining provision of the Voting Rights Act.
15:45
Speaker 2: Justice Brett Kavanaugh questioned whether the law was warranted sixty
15:50
Speaker 2: years later.
15:51
Speaker 6: Race based remedies are permissible for a period of time,
15:56
Speaker 6: sometimes for a long period of time decades in some cases,
16:02
Speaker 6: but that they should not be indefinite and should have
16:06
Speaker 6: an endpoint, and what exactly do you think the endpoint
16:11
Speaker 6: should be or how do we know? For the intentional
16:14
Speaker 6: use of race to create districts.
16:17
Speaker 2: But liberal Justice Elaina Kagan pointed out that the remedy
16:21
Speaker 2: of redrawing districts only happens if a court has actually
16:25
Speaker 2: found a specific current proved discrimination by the state.
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Speaker 4: What these Section two suits do is they ask about
16:34
Speaker 4: current conditions, and they ask whether those current conditions show
16:40
Speaker 4: vote dilution, which is violative of Section two. So they say,
16:45
Speaker 4: is there racial segregation, racial residential segregation now? Is there
16:51
Speaker 4: racially polarized voting now? And when the state fails with
16:58
Speaker 4: respect to those issues, and those conditions obtain now.
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Speaker 2: However, some conservative justices like Neil Gorsuch, suggested that any
17:08
Speaker 2: use of race and redistricting, even to correct a state's
17:12
Speaker 2: discriminatory dilution of minority votes, is unconstitutional.
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Speaker 7: I'm asking is it acceptable under Section two? Is you
17:21
Speaker 7: understand it? Given our precedents, for a court to intentionally
17:25
Speaker 7: discriminate in a remedial map on the basis of race.
17:29
Speaker 2: How quickly the Court hands down its decision could determine
17:32
Speaker 2: whether or not states have enough time to redraw maps
17:35
Speaker 2: before the midterms. Joining me is elections law expert Richard Breflt,
17:40
Speaker 2: a professor at Columbia Law School. Rich tell us about
17:43
Speaker 2: the impact of this decision. If the Justices decide as
17:48
Speaker 2: expected to limit or even eliminate Section two of the
17:53
Speaker 2: Voting Rights Act.
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Speaker 1: Clock clear are they going to do away with Section
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Speaker 1: two tholthough they will clearly change how they interpret it.
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Speaker 1: I think it's tricky because it's not clear how many
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Speaker 1: districts it's going to effect. It clearly will affect some districts.
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Speaker 1: It clearly will mean that certain lawsuits to improve minority
18:10
Speaker 1: representation won't be brought. Probably the harder thing to figure
18:14
Speaker 1: out is to what extent certain districts that have already
18:17
Speaker 1: been created as minority opportunity districts, even if they weren't
18:21
Speaker 1: a result of litigation. But we're done either defensively as
18:25
Speaker 1: a way of a forestalling litigation or because the local
18:28
Speaker 1: legislatures follow is the right thing to do. Whether those
18:31
Speaker 1: can now be attacked as reflecting an excessive attention to race.
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Speaker 1: We don't know what the Court's going to say, and
18:36
Speaker 1: we don't know how far this will go in terms
18:39
Speaker 1: of unraveling pre existing districting practices. But certainly, whatever they do,
18:44
Speaker 1: it will definitely have an impact on minority representation and
18:47
Speaker 1: potentially on partisan representation as well.
18:50
Speaker 2: Explain the central issue in the case.
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Speaker 1: It's very hard to explain what the issues is a
18:55
Speaker 1: very complicated case. I mean, the underlying issue is to
18:59
Speaker 1: what extent can or must states take race into account
19:03
Speaker 1: in drawing their districts. This case grew out of an
19:06
Speaker 1: earlier case in Louisiana, where the plaintiffs argued under Section
19:10
Speaker 1: tip with a Voting Rights Act that a minority, in
19:13
Speaker 1: this case, black voter representation was illegally reduced. That the
19:17
Speaker 1: state is approximately a third block but only one out
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Speaker 1: of the six congressional districts had a majority minority population,
19:25
Speaker 1: and the plaintiffs were able to persuade a lower court
19:28
Speaker 1: that it was relatively easy to draw a second majority
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Speaker 1: minority district and that the state's failure to do so
19:34
Speaker 1: under the totality of the circumstances, including the nature of
19:37
Speaker 1: racial block voting in the state and historical factors in
19:40
Speaker 1: the state, constituted a denial of equal representation. The state
19:43
Speaker 1: went ahead and did that, but they did it in
19:45
Speaker 1: such a way that by taking certain partisan factors into account,
19:49
Speaker 1: they created a very strange looking district that kind of
19:51
Speaker 1: goes across much of the state. Well, now another set
19:54
Speaker 1: of voters in this new district have brought alow suit
19:56
Speaker 1: saying that this district is drawn predominantly for racial res
20:00
Speaker 1: and drawing on older Supreme Court president. They are because
20:03
Speaker 1: that that's unconstitutional. The plaintiffs in the original case are
20:07
Speaker 1: trying to defend the district by saying that it's okay
20:10
Speaker 1: to use race, even in this significant way when it's
20:13
Speaker 1: being used as a remedy for prior racial discrimination. Really
20:17
Speaker 1: the issue here is when is it okay to use
20:21
Speaker 1: race in drawing districts. In some sense, this case raises
20:24
Speaker 1: the question of whether a compliance with the Voting Rights
20:26
Speaker 1: Act is a compelling state interest or it could be
20:29
Speaker 1: turned out to what chem of Voting Rights Act permissively require.
20:33
Speaker 1: How is the court interple the Voting Rights Act. There
20:35
Speaker 1: are a lot of questions all could have tied up
20:38
Speaker 1: in a not in this case, and it could come
20:40
Speaker 1: out in many different ways. One thing that seems pretty
20:43
Speaker 1: clear is that the original plaintiffs, the black voters who
20:46
Speaker 1: suit for change, are likely to lose. But on what
20:49
Speaker 1: theory it could be any from a relatively narrow theory
20:52
Speaker 1: to an extremely broad theory.
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Speaker 2: And now the conservative justice is would you say they're
20:57
Speaker 2: sort of on a spectrum from a position of there
21:01
Speaker 2: should be no consideration of race at all in redistricting
21:06
Speaker 2: to something less.
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Speaker 1: I think I would phrase in terms of how big
21:10
Speaker 1: a change do they want to make in the law
21:13
Speaker 1: and when could race be used? And I do think
21:15
Speaker 1: that some didn't think race could be used at all.
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Speaker 1: Others I think were open to the use of race,
21:19
Speaker 1: but only in a relatively narrow set of circumstances. And
21:22
Speaker 1: I think a lot of it had to do with
21:24
Speaker 1: how do they fit this decision with an earlier Supreme
21:28
Speaker 1: Court decision, one that is now almost forty years old,
21:31
Speaker 1: in which they interpreted the Voting Rights Act. Section two
21:34
Speaker 1: of the Voting Rights Act laid down a case called Jingles,
21:37
Speaker 1: which set the pattern for Voting Rights Act enforcement for
21:39
Speaker 1: the last forty years, including just two years ago with
21:43
Speaker 1: the Supreme Court in a case coming out of Alabama,
21:45
Speaker 1: which on fairly similar facts to this one, sustained the
21:50
Speaker 1: use of race and drawing a remedial district. And so
21:52
Speaker 1: I think what you saw what's called them the more
21:55
Speaker 1: moderate conservatives, Justice Barrett, maybe Justice Kavanaugh, maybe the Chief
22:00
Speaker 1: Justice looking for ways of squaring this case with that
22:04
Speaker 1: Alabama case known as Milligan, or explaining why this case
22:08
Speaker 1: could come out differently, and maybe explaining how this case
22:11
Speaker 1: fits with the older precedent Jingles, And are they going
22:14
Speaker 1: to overturn Jingles? Are they going to say this as
22:17
Speaker 1: a clarification of Jingles, which would be a way of
22:20
Speaker 1: changing it without flat out changing it. So my guess
22:24
Speaker 1: is less likely that you're going to see a majority
22:27
Speaker 1: striking down the voting right staff, but you're going to
22:30
Speaker 1: definitely see a new interpretation of how it applies and
22:33
Speaker 1: what it requires, at least based on the ural argument.
22:36
Speaker 1: And it's always tricky to rely on the ural argument.
22:39
Speaker 1: But you did see at least some of the justices
22:42
Speaker 1: trying to figure out how to square this with the
22:45
Speaker 1: decision that's just two years old and with the precedent
22:49
Speaker 1: that is forty years.
22:50
Speaker 2: Old, and what were the best arguments that the liberal
22:53
Speaker 2: justices made. Not that they'll have any persuasive effect on
22:58
Speaker 2: their conservative colleagues.
23:01
Speaker 1: The liberal justices, i think primarily basically relying heavily on
23:04
Speaker 1: story decisives. That is, we've decided this before, including two
23:08
Speaker 1: years ago, that this case is on all fours with
23:11
Speaker 1: the Alabama case, So that's one two. Another version of
23:15
Speaker 1: story decisis is there is a doctrine that says that
23:18
Speaker 1: court opinions interpreting statutes get super strong story decisives have
23:23
Speaker 1: super strong presidential effect because whereas court decisions interpreting the
23:27
Speaker 1: Constitution really can't be overturned except through an extraordinary process
23:31
Speaker 1: of constitutional amendment, court decisions interpreting a statute, Congress can
23:36
Speaker 1: always overturn them. And Congress has not tampered with the
23:39
Speaker 1: Bonia Rights Accents nineteen eighty two third argument and didn't
23:42
Speaker 1: come up as much in this argument as people might
23:44
Speaker 1: have thought. If you go back to the Alabama case.
23:47
Speaker 1: Kavanaugh wrote a concurrence. He echoed some of the language
23:51
Speaker 1: Justice of Connor had used many years earlier in dealing
23:53
Speaker 1: with affirmative action and saying there's got to be some
23:56
Speaker 1: time limit for this, that it's not clear how much
23:59
Speaker 1: longer you can keep taking effects into account in remedies,
24:02
Speaker 1: and much of the argument of the lawyer for the
24:05
Speaker 1: NAACP and the liberal justices is, well, actually there is
24:08
Speaker 1: a built in time limit in Section two, plaintiffs have
24:11
Speaker 1: to show that there is current racial block voting, that
24:15
Speaker 1: there is a current disparate impact, and so therefore it's
24:18
Speaker 1: not something that goes on forever. Plaintiffs can't make that
24:21
Speaker 1: showing they lose. And they made the point that much
24:24
Speaker 1: recent litigation, plaintiffs have lost a lot of voting rights cases.
24:28
Speaker 2: So bottom line, Rich, a lot of legal experts are
24:32
Speaker 2: predicting that the Court is going to just gut the
24:35
Speaker 2: Voting Rights Act, But you don't think that the justices
24:39
Speaker 2: will go that far.
24:41
Speaker 1: No, I think they're going to make it much less effective.
24:45
Speaker 1: I don't think there's a majority. Based on the questions,
24:49
Speaker 1: it seemed to me that it's more likely that they
24:52
Speaker 1: will reinterpret the Jingle's case and or the section of
24:57
Speaker 1: the Voting Rights Act in a way that places a
25:00
Speaker 1: much higher burden on plaintiffs to prove something that would
25:06
Speaker 1: entitle them to redrawing lines in order to enhance minority representation.
25:11
Speaker 1: I think that may have the effect of making sure
25:14
Speaker 1: that it'd be even fewer Voting Rights Act victories than
25:17
Speaker 1: there are now. But based on the kinds of questioning,
25:20
Speaker 1: it seemed to me that they're more likely to make
25:23
Speaker 1: the Voting Rights Act much less effective than to throw
25:27
Speaker 1: it out altogether.
25:28
Speaker 2: Where do you think the Chief Justice stands, because he
25:32
Speaker 2: did write the majority opinion in the Shelby County case
25:36
Speaker 2: that got rid of Section four of the Voting Rights Act.
25:41
Speaker 1: A classic Roberts move would be to effectively change everything
25:47
Speaker 1: without literally overturning it. You might see Thomas, Alito and
25:50
Speaker 1: Gorsuch wanting to do more, possibly Cavanaugh, But my sense
25:55
Speaker 1: of Roberts and Barrett anyway is they want to change
25:59
Speaker 1: as little, formally as little as possible, while making a
26:04
Speaker 1: big enough change to get rid of these kind of cases.
26:07
Speaker 2: What do you think that timing looks like here? Do
26:10
Speaker 2: you think the Court might try to rush this through
26:13
Speaker 2: to get around the procel principle, which is that courts
26:16
Speaker 2: shouldn't change election rules right before an election.
26:20
Speaker 1: I mean, that's a good question, and I don't know.
26:23
Speaker 1: I mean, one concern is that they come down soon.
26:25
Speaker 1: There may be a lot of lawsuits challenging current plans
26:28
Speaker 1: that were done either as a result of litigation or
26:31
Speaker 1: as a way of forestalling litigation, that create either majority
26:35
Speaker 1: minority districts or what are cold opportunity districts. Districts without
26:38
Speaker 1: a lack or Latino majority, but are designed in a
26:40
Speaker 1: way to make it easier for minority voters to elective
26:43
Speaker 1: for the candidates of choice. So right, if there's a
26:46
Speaker 1: decision between now and the spring, it's quite possible to
26:50
Speaker 1: see yet more re redistricting. If it's much later than that,
26:55
Speaker 1: I think it would be very hard for it to
26:58
Speaker 1: show up in the twenty six election, but it would
27:00
Speaker 1: sure lease the show up in the twenty eight election.
27:02
Speaker 1: I mean, it's now been argued twice. They set it
27:04
Speaker 1: up on the calendar early in the term. It's conceivable
27:07
Speaker 1: that they'll be an early decision, but it's really very
27:10
Speaker 1: hard to tell them, and maybe that they need some
27:12
Speaker 1: time to figure out a theory that commands supporter could
27:16
Speaker 1: very well be that there's multiple opinions. This is a
27:19
Speaker 1: very hard case.
27:20
Speaker 2: So hard that they argued it once before in the
27:23
Speaker 2: last term and didn't come to a decision. So we'll
27:26
Speaker 2: see what they decide after this re argument and how
27:29
Speaker 2: fast they decided. Thanks so much, rich that's Professor Richard
27:33
Speaker 2: Rufflt of Columbia Law School. Coming up next on The
27:36
Speaker 2: Bloomberg Law Show. Federal trial judges appointed by President Ronald
27:40
Speaker 2: Reagan are all in their eighties with decades of experience
27:45
Speaker 2: on the bench, and they're emerging as vocal critics of
27:48
Speaker 2: President Trump and his administration. I'm June Grosso and you're
27:52
Speaker 2: listening to Bloomberg.
27:56
Speaker 3: It has become ever more apparent that to our president,
28:00
Speaker 3: the rule of law is but an impediment to his
28:04
Speaker 3: policy goals.
28:06
Speaker 2: In February, Judge John Kuhauer was the first to rule
28:10
Speaker 2: against President Trump's executive order denying automatic citizenship to children
28:16
Speaker 2: born in the United States. The judge called it blatantly unconstitutional,
28:21
Speaker 2: and he was blunt in both his criticism of the
28:24
Speaker 2: president and his own determination to protect the rule of law.
28:28
Speaker 3: There are moments in the world's history when people look
28:32
Speaker 3: back and ask where were the lawyers? Where were the judges?
28:36
Speaker 3: In these moments, the rule of law becomes especially vulnerable.
28:41
Speaker 3: I refuse to let that becon go dark today.
28:44
Speaker 2: Kuhnauer is just one of the judges appointed by President
28:47
Speaker 2: Ronald Reagan who've become vocal critics of the President and
28:52
Speaker 2: his administration's efforts to circumvent court orders or challenge the
28:57
Speaker 2: rule of law. Most federal judges are more in pushing
29:01
Speaker 2: for compliance with their orders. But the Reagan appointees, all
29:05
Speaker 2: in their eighties with decades of experience on the bench,
29:09
Speaker 2: are institutionalists who won't stand for parties trying to subvert
29:13
Speaker 2: court orders and have no problem dealing out some harsh
29:17
Speaker 2: criticism even to the President. Joining me is Bloomberg Law
29:21
Speaker 2: reporter Jacqueline Thompson Jacqueline in general, how have Reagan appointees
29:27
Speaker 2: viewed Trump in this administration?
29:30
Speaker 8: And speaking generally, because I'm sure not every Reagan appointee
29:33
Speaker 8: feels this way, but some of them really have sort
29:37
Speaker 8: of blanched at the way that the Trump administration has
29:39
Speaker 8: been approaching the law and then also been approaching the
29:42
Speaker 8: courts in general, you know, the arguments that they make
29:46
Speaker 8: in court. We've had judges sort of bristle at how
29:49
Speaker 8: they've approached birthright citizenship. We've had judges detail times where
29:54
Speaker 8: they feel like the administration isn't complying with their court orders,
29:57
Speaker 8: or at least not doing so in a really fulsome
30:00
Speaker 8: way that they feel, you know, recognizes the power of
30:02
Speaker 8: the courts. And so it's just been interesting to watch
30:05
Speaker 8: these judges who are in Seattle, they're in Boston. We've
30:08
Speaker 8: won in d C. There's also one on the Fourth Circuit,
30:12
Speaker 8: which covers Virginia. And you know, they've been pretty vocal
30:15
Speaker 8: in talking about how they feel about the administration.
30:19
Speaker 2: Like Judge William Young, the eighty five year old wrote
30:23
Speaker 2: a scathing one hundred and sixty one page opinion which
30:27
Speaker 2: was stunning in so many ways, finding that the Trump
30:30
Speaker 2: administration's policy of deporting pro Palestinian students blatantly violated the
30:37
Speaker 2: First Amendment. And he wrote, the Constitution, our civil laws, regulations, maires, customs, practices, courtesies,
30:45
Speaker 2: all of it. The President simply ignores it all when
30:49
Speaker 2: he takes it into his head to act.
30:51
Speaker 8: Definitely, he really went through all the different ways that
30:55
Speaker 8: he feels about the President within that opinion, and you know,
30:58
Speaker 8: it was really just such a straight opinion, not just
31:01
Speaker 8: because of what he said about Trump, but the way
31:03
Speaker 8: that he wrote it. And it really felt like he
31:05
Speaker 8: was trying to speak to the public there and almost
31:07
Speaker 8: give them a sort of civics lesson, saying, you know,
31:10
Speaker 8: this is the way that the courts function, and this
31:12
Speaker 8: is the way they have historically functioned, and what I'm
31:14
Speaker 8: facing today in my courtroom is not proper actions by
31:18
Speaker 8: the administration and I haven't decided what I'm going to
31:22
Speaker 8: do yet, but whatever I do do here will be
31:25
Speaker 8: fully done. With all of that in mind.
31:28
Speaker 2: Republicans seem to have a special reverence for President Reagan.
31:32
Speaker 2: In fact, Trump has a portrait of Reagan hanging in
31:35
Speaker 2: the Oval office. What kind of people did Reagan appoint
31:39
Speaker 2: to the bench.
31:40
Speaker 8: You know, Reagan also went with young conservatives the way
31:44
Speaker 8: that Trump did, and that's why we have so many
31:46
Speaker 8: Reagan appointees who are still active judges. These were folks
31:50
Speaker 8: who were getting appointed in their thirties and their early forties.
31:53
Speaker 8: They've been sitting on the bench anywhere from thirty six,
31:56
Speaker 8: thirty seven years to nearly forty years some of them,
31:59
Speaker 8: and you know they've spent a lot of time on
32:02
Speaker 8: the court and seeing administration to administration, seeing all of
32:05
Speaker 8: these changes. You know, Judge Lambert and DC, for one,
32:09
Speaker 8: he's talked about how he was arguing on behalf of
32:12
Speaker 8: the Reagan administration in court before he got a federal
32:15
Speaker 8: judge ship. So these are folks that you know, Reagan
32:19
Speaker 8: administration officials were familiar with, knew of them, and you know,
32:23
Speaker 8: sort of had the conservative credentials that they wanted to
32:26
Speaker 8: put onto the court. Now, of course, some of them
32:28
Speaker 8: are in blue states. That means that they had blueslips
32:31
Speaker 8: that were signed by Democratic senators in order for them
32:33
Speaker 8: to get the seats. But overall, Reagan really had an
32:37
Speaker 8: opportunity to shape the courts in a really conservative way,
32:41
Speaker 8: just as Trump did during his first term and will
32:44
Speaker 8: to the extent that's possible during a second.
32:46
Speaker 2: But conservative ideology has evolved in the nearly forty years
32:51
Speaker 2: since Reagan left office, and also the current administration doesn't
32:56
Speaker 2: always seem to be interested in conservative ideality, but rather
33:01
Speaker 2: gathering more power for the president and the executive branch.
33:05
Speaker 8: Yeah, I think that's right, and it's just very interesting
33:08
Speaker 8: to watch the divide that we see on some of
33:11
Speaker 8: these courts where we'll even have instances where Reagan appointees
33:15
Speaker 8: and Trump appointees are split over an issue and they
33:19
Speaker 8: won't be lined up in ruling the same way. And
33:21
Speaker 8: you would think, oh, you know, a conservative is a conservative,
33:24
Speaker 8: but really we're dealing with shades of conservatism here. And
33:28
Speaker 8: the way I've started to be thinking about it is
33:30
Speaker 8: a little more okay, is a Trump appointee maybe even
33:34
Speaker 8: further to the right than a Reagan appointee necessarily is,
33:38
Speaker 8: and that's not the case for all courts. I cover
33:41
Speaker 8: the Fifth Circuit a lot, and I think the Reagan
33:42
Speaker 8: appointees on that court are quite in line with the
33:45
Speaker 8: Trump appointees there. But in others that's not so much
33:48
Speaker 8: the case. They're much more traditionalist conservatives. They really think about,
33:53
Speaker 8: you know, the Buckley era of conservatism and what that
33:57
Speaker 8: all means for them.
33:58
Speaker 2: Well, it's more about well the rule of law. I
34:01
Speaker 2: think for some of the Reagan appointees, the older judges,
34:05
Speaker 2: and you talk to a former Reagan appointed judge in Miami,
34:08
Speaker 2: Thomas Scott, who said, they're institutionalists. They're going to come
34:12
Speaker 2: down very hard. You're playing games with the court and
34:15
Speaker 2: it's not going to be successful. And I think we've
34:18
Speaker 2: seen that.
34:19
Speaker 8: Yeah, And it's also important to recognize again, these folks
34:22
Speaker 8: have been on the courts for decades. They realize that
34:26
Speaker 8: their power comes from people complying with their rulings. So
34:29
Speaker 8: there's a little bit of self preservation. They're right in
34:32
Speaker 8: terms of them wanting to say, hey, I still have
34:35
Speaker 8: influence here, but I only have this influence if you
34:38
Speaker 8: actually go along with what I'm doing here. And there's that,
34:42
Speaker 8: but there's also this respect for the rule of law.
34:44
Speaker 8: They've seen it play out again for years and years
34:47
Speaker 8: on their time in the bench, and they've seen what
34:49
Speaker 8: happens when it's not respected. They've seen what happens in
34:52
Speaker 8: other countries when it's not respected. You know, Judge Kaffner,
34:56
Speaker 8: one of the judges in Seattle, he brought up Eastern
34:59
Speaker 8: European governments and saying, you know, he had spent time
35:02
Speaker 8: there and watch what happened when the rule of law
35:05
Speaker 8: disappeared and what it meant for people to be returning
35:08
Speaker 8: to those democratic institutions. So they're bringing a lot of
35:12
Speaker 8: perspective here, not just domestically, but globally.
35:16
Speaker 2: The courts in the Northeast seem to be the center
35:19
Speaker 2: of a lot of the cases involving challenges to executive power.
35:24
Speaker 2: Is there a reason for that?
35:27
Speaker 8: Yeah, So, just like during the Biden administration we saw
35:30
Speaker 8: so many lawsuits filed in Texas, it seems like Boston
35:33
Speaker 8: and other court set are within the First Circuit are
35:36
Speaker 8: becoming the same draw for liberal litigators. And that's really
35:40
Speaker 8: because there's a number of democratic appointees there that make
35:44
Speaker 8: up the majority of those courts. So when you're going
35:47
Speaker 8: to a circuit and you're saying, hey, I want to
35:49
Speaker 8: get the best case law possible for my client. Where
35:52
Speaker 8: do I want to file this lawsuit? You're probably going
35:54
Speaker 8: to want to try and file it somewhere like Boston.
35:58
Speaker 8: You could go. You know, Tord Island has had a
36:01
Speaker 8: lot of cases as well, and they've even had a
36:03
Speaker 8: Trump appointing in Rhode Island ruling against the Trump administration.
36:08
Speaker 2: Maryland is another place where a lot of plaintiffs are
36:12
Speaker 2: suing the Trump administration, so much so that the administration
36:17
Speaker 2: filed an unheard of lawsuit against all fifteen federal judges
36:23
Speaker 2: in Maryland. That case was thrown out by the federal
36:27
Speaker 2: judge in West Virginia who was assigned the case, a
36:31
Speaker 2: Trump appointee. By the way, I thought it was interesting
36:34
Speaker 2: that retired judge John Tinder, who was on the Seventh Circuit,
36:38
Speaker 2: said that the Reagan appointees' long tenures on the bench
36:41
Speaker 2: might make them less patient and more likely to call
36:45
Speaker 2: something for what it is rather than beat around the bush.
36:49
Speaker 5: Right.
36:50
Speaker 8: I think we all know from personal experience, when we
36:54
Speaker 8: sit down with folks who've been doing jobs for a
36:57
Speaker 8: long time, they know how the job is done. They
37:00
Speaker 8: have no problem telling people how they think the job
37:03
Speaker 8: should be done. And you know, that very well could
37:05
Speaker 8: be what's happening here as well.
37:07
Speaker 2: But some legal scholars have said there could be a
37:10
Speaker 2: backlash to these kinds of blunt statements from judges, and we've.
37:15
Speaker 8: Already seen that play out. You know, when I reached
37:17
Speaker 8: out for comment for reaction from the White House to
37:21
Speaker 8: Judge Young's one hundred and sixty one page ruling that
37:23
Speaker 8: you referenced earlier, you know, a White House official shared
37:27
Speaker 8: with me a list of cases in which Judge Young
37:29
Speaker 8: had been refersed or had been chided by the Supreme Court,
37:34
Speaker 8: and that stood out to me and them saying, hey,
37:37
Speaker 8: you know this guy, he's not a perfect judge, to
37:40
Speaker 8: which I say, you know which judge is perfect? I
37:43
Speaker 8: cover them for a living, and I think it's hard
37:46
Speaker 8: to say that any judge is perfect. They're all human
37:49
Speaker 8: like the rest of us. So it was interesting to
37:51
Speaker 8: see that level of pushback from the White House on that,
37:55
Speaker 8: and you know, I think it'll only continue as we
37:59
Speaker 8: see ruling come out. We may start seeing things pop
38:03
Speaker 8: up from folks nomination hearings, some rehashing of that nomination
38:08
Speaker 8: process that so many people say has become too politicized
38:12
Speaker 8: and too toxic, and that should be forgotten the second
38:14
Speaker 8: that they become judges on the bench. But is that
38:17
Speaker 8: really possible. Can we really separate out the two? I
38:20
Speaker 8: don't know.
38:22
Speaker 2: Since Trump came into office this second time, there's been
38:25
Speaker 2: this sort of phenomenon of fewer federal judges retiring, particularly
38:32
Speaker 2: those on appellate courts, And there's a lot of speculation
38:36
Speaker 2: as to why. So the Reagan appointees are all in
38:40
Speaker 2: their eighties, they've been on the bench for decades. Have
38:43
Speaker 2: any of them said it's time for me to retire
38:46
Speaker 2: or I'm not going to retire, because.
38:49
Speaker 8: None of these judges have come out publicly and said anything.
38:53
Speaker 8: Some of them are already on senior status. For example,
38:55
Speaker 8: Chudge Young is a senior judge. Judge Kauffener is a
38:58
Speaker 8: senior judge. That means that they hear fewer cases. Judge
39:02
Speaker 8: Lambeth is also a senior judge, but he's quite active.
39:04
Speaker 8: He hears cases in DC and in Texas, which is
39:07
Speaker 8: where he grew up, so he keeps himself very busy.
39:10
Speaker 8: But just because your senior judge doesn't mean that you
39:13
Speaker 8: work any less. I spoke to Judge Young maybe two
39:16
Speaker 8: years ago for a totally unrelated story, and he sort
39:20
Speaker 8: of made a comment to me about how he's gonna
39:22
Speaker 8: keep going for as long as he can. And that's
39:25
Speaker 8: something I've had in the back of my mind here
39:27
Speaker 8: as we do this reporting.
39:28
Speaker 2: And it's amazing that they're in their eighties and they're
39:31
Speaker 2: handling these really complicated cases, high profile cases where the
39:36
Speaker 2: parties don't always comply with court orders. I mean, it's
39:40
Speaker 2: not easy being a federal judge, but it's great to
39:43
Speaker 2: have that experience on the bench. Thanks so much, Jacqueline.
39:47
Speaker 2: That's Bloomberg Law reporter Jacqueline Thompson and that's it for
39:51
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
39:54
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
39:57
Speaker 2: You can find them on Apple Podcasts and at www
40:02
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40:06
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
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Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
40:13
Speaker 2: listening to Bloomberg