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Greatest SCOTUS Fear & NYC Mayor Turmoil · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: The saga of the Justice Department's attempt to dismiss the
0:12
Speaker 1: corruption case against New York City Mayor Eric Adams continued
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Speaker 1: in Manhattan courtroom today. Federal Judge Dale Hoe heard arguments
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Speaker 1: from adams lawyer and Acting Deputy Attorney General Emil Bove,
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Speaker 1: whose order to the Manhattan US Attorney to drop the
0:30
Speaker 1: charges against Adams led to the stunning resignation of that
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Speaker 1: US attorney and seven other career prosecutors joining me as
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Speaker 1: former federal prosecutor Robert Mintz a partner maccarter in English, Bob,
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Speaker 1: it was an atypical scene in the courtroom. On one side,
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Speaker 1: you had the Justice Department, represented by the acting Deputy
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Speaker 1: Attorney General, and on the other you had Adams and
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Speaker 1: his lawyers. Nowhere was there a representative from the Manhattan
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Speaker 1: US Attorney's office that brought the case.
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Speaker 2: In terms of a courtroom proceeding, it was quite unusual
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Speaker 2: because you didn't have any of the prosecutors who actually
1:09
Speaker 2: worked on the case, who worked on the investigation over
1:12
Speaker 2: the past two or three years before the judge. Instead,
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Speaker 2: you had this situation where Embo Beauveay, the acting Deputy
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Speaker 2: Attorney General, was really the loan Justice Department official defending
1:27
Speaker 2: the actions of the Justice Department, and it created really
1:30
Speaker 2: quite a remarkable situation.
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Speaker 1: The judge questioned Adams to find out whether he understood
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Speaker 1: that the charges could be brought against him again, and
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Speaker 1: Adams said, I have not committed a crime. I do
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Speaker 1: not see them bringing it back. I'm not afraid of that.
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Speaker 2: Well, the Justice Department was requesting what's called the dismissal
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Speaker 2: without prejudice, which means that the government has the ability
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Speaker 2: to refile these charges at any point in the future,
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Speaker 2: subject to the statute of limitation, if they desire to
2:01
Speaker 2: do so. So what the judge here was making sure
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Speaker 2: was that the defendant, Mayor Adams, understood that this dismissal
2:09
Speaker 2: could be reinstated at some point in the future, and
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Speaker 2: the mayor's response was that he did not fear that
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Speaker 2: at all, because he had done nothing wrong.
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Speaker 1: One of the concerns of the Manhattan US attorney who
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Speaker 1: resigned is that this was a quid pro quo Adam's
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Speaker 1: help on immigration enforcement in exchange for the Justice Department
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Speaker 1: dropping the case, and the judge asked Bouve if there
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Speaker 1: were other examples where a similar rationale was used to
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Speaker 1: drop charges against a public official. Bouvet couldn't come up
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Speaker 1: with a case like that, but he cited the Biden
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Speaker 1: administration's decision to release Russian arms dealer Victor Bout in
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Speaker 1: exchange for US basketball player Britney Griner. But that's clearly
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Speaker 1: a quid pro quo.
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Speaker 2: Well, I think what he was trying to show was
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Speaker 2: that there are some times where the government will take
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Speaker 2: a position in which they will exchange one thing for another.
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Speaker 2: In prisoner exchanges, you do have a circumstance where somebody
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Speaker 2: who's being held by the United States government, who obviously
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Speaker 2: was duly tried and convicted before a jury, and another
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Speaker 2: US citizen, usually who's held by another foreign country, usually
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Speaker 2: in the situation in which they were deprived of all
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Speaker 2: due process, they are exchanged. But there's really no parallel there,
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Speaker 2: because nobody is saying that is anything but a quid
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Speaker 2: pro quo in exchange for one prisoner for another. For
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Speaker 2: various policy reasons, it does not go to the dismissal
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Speaker 2: of a pending criminal charge, which is something that is
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Speaker 2: entirely different. Those are circumstances where each of those individuals
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Speaker 2: have already been tried and convicted, whether it's in this
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Speaker 2: country or somewhere else, and are now simply getting exchanged
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Speaker 2: for purely political reasons.
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Speaker 1: It seemed as if Beauvay was sort of outlining what
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Speaker 1: the judge could and could not consider. For example, he
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Speaker 1: said that the judge couldn't do a wide ranging inquiry
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Speaker 1: into DOJ decision making in the case. He said, the
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Speaker 1: inquiry is limited to whether the department made the request
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Speaker 1: in good faith. That's the end of the inquiry. Beauve said,
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Speaker 1: I'm telling you as an officer of the court that
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Speaker 1: that was made in good faith. I mean, did the
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Speaker 1: judge have to accept that?
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Speaker 2: Well, what the Deputy Attorney General was trying to do
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Speaker 2: was to take away all of this controversy, the unprecedented
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Speaker 2: scene of one prosecutor after another resigning rather than follow
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Speaker 2: in order that they believed was improper, and to take
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Speaker 2: that issue completely off the table and present to the
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Speaker 2: judge what he said was simply a straightforward exercise in
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Speaker 2: prosecutorial discretion. And to really try to make this sound
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Speaker 2: as if this is a routine dismissal of a criminal
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Speaker 2: that is, in the words of mister Bob, virtually unreviewable
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Speaker 2: by this courtroom. What he was trying to do with
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Speaker 2: the signal to the judge that the judge here really
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Speaker 2: does not have much discretion at all, and that if
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Speaker 2: the government is moving to dismiss this case, the court
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Speaker 2: really should simply acquiesce and sign the order.
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Speaker 1: What continues to surprise me is that Beauvet's argument for
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Speaker 1: dismissing the charges is the same argument he made in
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Speaker 1: his first order to the Manhattan US Attorney and that
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Speaker 1: caused a string of prosecutors to resign. He said, the
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Speaker 1: continuation of this prosecution is interfering with both national security
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Speaker 1: and immigration initiatives. I think the fact that Mayor Adams
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Speaker 1: is sitting to my left is part of the problem.
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Speaker 1: He's not able to be outrunning the city. So again,
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Speaker 1: there's no consideration of the evidence against Adams. So the
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Speaker 1: Justice Department is dismissing a case based on political consideration
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Speaker 1: and it's admitting that.
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Speaker 2: Yeah. Well, what this really does is it raises the
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Speaker 2: question as to what limits, if any, there are in
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Speaker 2: terms of prosecutorial discretion. Hear, what the Deputy Attorney General
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Speaker 2: is really arguing that if the Department of Justice wants
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Speaker 2: to dismiss the case, they can pretty much do it
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Speaker 2: for any reason whatsoever. And in this case, the argument
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Speaker 2: is that the continued prosecution of Mayor Adams will interfere
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Speaker 2: with President Trump's ability to pursue his immigration agenda. And
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Speaker 2: the real question then is is that an appropriate basis
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Speaker 2: to dismiss the case? And what the government's position now
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Speaker 2: is that the judge does not get to question whether
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Speaker 2: or not the basis for the dismissal is appropriate or not,
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Speaker 2: simply if it is made in good faith, that that's enough. Now,
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Speaker 2: what we've seen here too is mister Beauveat kind of
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Speaker 2: trying to have it both ways, in the sense that
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Speaker 2: initially he said that the decision to dismiss this case
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Speaker 2: would not based at all on the case's legal merits
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Speaker 2: or the theory of prosecution, and he stuck to that
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Speaker 2: again during this hearing, But then he also told the
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Speaker 2: judge that the prosecution had the appearances of impropriety and
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Speaker 2: the suggestion that this entire case was brought simply to
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Speaker 2: punish the mayor for his stance on immigration, which was
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Speaker 2: contrary to the position of the Biden administration at the time.
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Speaker 2: So he really is challenging in some way the merits
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Speaker 2: of the case and suggesting that this case was improvidently
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Speaker 2: brought by the US Attorney's office. The problem with that
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Speaker 2: argument is that the investigation began well before Mayor Adams
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Speaker 2: became mayor, and well before he criticized the Biden administration's
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Speaker 2: position on immigration. So the acting US Attorney for the
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Speaker 2: Southern District of New York, who refused to carry out
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Speaker 2: this order and who has since resigned in protests, pointed
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Speaker 2: out that that argument really didn't hold any water, and
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Speaker 2: that this investigation was never about Mayor Adam's position with
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Speaker 2: regard to immigration and the fact that he challenged the
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Speaker 2: Biden administration on some of the immigration policies.
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Speaker 1: And both Ay also said at one point that even
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Speaker 1: if there were a quid pro quo, there wouldn't be
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Speaker 1: any issue with this motion.
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Speaker 2: Once again, the position of the Deputy US Attorney General
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Speaker 2: here is that the government can come in to dismiss
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Speaker 2: the case pretty much for any reason whatsoever, as long
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Speaker 2: as they are quote unquote acting in good faith. And
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Speaker 2: here the position that was put forward to the judge
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Speaker 2: was that if the decision is made by the Department
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Speaker 2: of Justice, that this decision furthers a policy agenda by
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Speaker 2: the administration, that that is a valid basis to dismiss
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Speaker 2: the case. And what troubled the prosecutors from the Southern
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Speaker 2: District of New York and other federal prosecutors he resigned
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Speaker 2: in protests is that really is saying to somebody that
8:55
Speaker 2: if you're in a position as an elected official to
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Speaker 2: further the political agenda of the administration, that then your
9:03
Speaker 2: value as a public official and your ability to carry
9:07
Speaker 2: out the administrations again to outweighs the fact that you
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Speaker 2: may have committed a crime and that the case should
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Speaker 2: be dropped for that reason.
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Speaker 1: So Judge Host said he was aware that he had
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Speaker 1: little discretion and that courts have found prosecutors are the
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Speaker 1: best judges of whether or not a case should continue,
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Speaker 1: but he said judges do have a limited role to play.
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Speaker 1: There was a request from emotion from common cause for
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Speaker 1: the judge to appoint a special prosecutor, and something like
9:35
Speaker 1: that was done in the Michael Flynn case. Couldn't the
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Speaker 1: judge do that?
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Speaker 2: Well, judge could do that here. The judge is very measured,
9:44
Speaker 2: very methodical in the way he approached this hearing. He
9:47
Speaker 2: started out by calling it an unusual situation, which is
9:50
Speaker 2: a rather understated way to describe the situation that was
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Speaker 2: before him that led to this hearing. He also said
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Speaker 2: that he acknowledged, as you point out, that he he
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Speaker 2: has limited discretion here, but that he is entitled to
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Speaker 2: have a hearing and to understand the government's position for
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Speaker 2: dismissing the case and to determine whether or not dismissal
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Speaker 2: is in the public interest. The judge can, as you mentioned,
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Speaker 2: appoint a special prosecutor if it finds that the Justice
10:17
Speaker 2: Department acted improperly, and he can order that evidence that
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Speaker 2: was gathered by the Department of Justice, for example, be
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Speaker 2: made available to state and local prosecutors so they could
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Speaker 2: pursue the case if the Department of Justice refused.
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Speaker 1: To do so.
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Speaker 2: But that would be a really unusual move by the judge,
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Speaker 2: and based upon the way this hearing went, I don't
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Speaker 2: think he's likely to do that.
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Speaker 1: Judge Hoe ended the hearing by saying he wouldn't shoot
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Speaker 1: from the hip and rule immediately, but he was aware
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Speaker 1: that it's not in anyone's interest here for this to
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Speaker 1: drag on. Of course, even After this motion to dismiss
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Speaker 1: is settled, there are still continuing questions about Eric Adams's
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Speaker 1: future as the mayor of New York City. Governor Kathy
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Speaker 1: Hochel held a series of meetings with key political figures
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Speaker 1: Tuesday as she contemplates removing Mayor Adams from his office.
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Speaker 1: It would be an unprecedented step in New York history.
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Speaker 1: Thanks so much, Bob. That's Robert Mintz of Macarter and English.
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Speaker 1: Coming up next on the Bloomberg Law Show. Trump is
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Speaker 1: forcing the Supreme Court to face its greatest fear. I'll
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Speaker 1: talk to Bloomberg Supreme Court reporter Greg Store. I'm June Grosso,
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Speaker 1: and you're listening to Bloomberg. Unlike the executive and legislative
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Speaker 1: branches of government, the Supreme Court has no real power
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Speaker 1: to enforce its decisions, no army or constitutional spending power
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Speaker 1: to use. So what happens if the President of the
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Speaker 1: United States refuses to comply with a Supreme Court order?
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Speaker 1: It hasn't happened since the Civil War, but Donald Trump
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Speaker 1: seems to be ignoring longstandingly legal constraints. Is the next step.
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Speaker 1: Defying a court order. Though Trump has said he always
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Speaker 1: follows court orders. His truth. Social posts and statements from
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Speaker 1: his key aids seem to suggest defiance. My guest, his
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Speaker 1: Bloomberg Supreme Court reporter Greg Storr. His recent essay is
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Speaker 1: entitled Trump forces the Supreme Court to face its greatest fear.
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Speaker 1: You know, you wrote this article and it's very scholarly, Greg,
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Speaker 1: and it reminds me of being in law school in
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Speaker 1: a good way. And you start with the history of
12:33
Speaker 1: the landmark case known to every lawyer, Marbury versus Madison.
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Speaker 3: Yeah, this is probably the most important case in the
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Speaker 3: history of the country, written by Chief Justice John Marshall.
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Speaker 3: As you said, it established that the Court has the
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Speaker 3: power to strike down acts of Congress. But what's notable
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Speaker 3: for our purposes here is is how Marshall got to
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Speaker 3: that conclusion. The case is about when John Adams the
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Speaker 3: presidency after losing reelection. He on his way out the
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Speaker 3: door in eighteen oh one, appointed a bunch of judges
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Speaker 3: known as Midnight Judges, and kind of in the frenzy
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Speaker 3: of doing that with one of them, a guy by
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Speaker 3: the name of William Marbury, the vital step of paperwork
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Speaker 3: didn't happen. The commission didn't get delivered to Marbury, before
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Speaker 3: Adam's left office. Then Jefferson comes into office and his
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Speaker 3: Secretary of State James Madison, refuses to deliver the paperwork,
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Speaker 3: even though that's a pretty routine step. So Marbury goes
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Speaker 3: to the Supreme Court and says, hey, order Madison to
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Speaker 3: turn over that commission. He's violating the law by not
13:44
Speaker 3: doing that. And so John Marshall has this dilemma here.
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Speaker 3: Supreme Court's new hasn't really established itself. The question is
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Speaker 3: is he going to or is the Supreme Court going
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Speaker 3: to order Madison in the Jefferson administration to turn over
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Speaker 3: that commission to Marbury. And the continuous solution that he came.
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Speaker 2: Up with was, Hey, we don't want to.
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Speaker 3: Risk the possibility that Jefferson and Madison won't comply, so
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Speaker 3: instead we're going to say, yes, Marbury is entitled to
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Speaker 3: the commission. But as it turns out, we don't actually
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Speaker 3: have jurisdiction to decide this case because this law that
14:18
Speaker 3: Congress passed giving us jurisdiction is actually unconstitutional. So Marbury
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Speaker 3: ducked the confrontation with Jefferson while establishing that the Court
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Speaker 3: is this very powerful institution.
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Speaker 1: Marshall's fear that a President wouldn't comply with the Court's order.
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Speaker 1: Came to fruition during Andrew Jackson's administration. Jackson, who, by
14:42
Speaker 1: the way, is one of Trump's heroes.
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Speaker 3: So this is in the context of efforts to move
14:50
Speaker 3: the Jerkey Indians off their land in Georgia. And there
14:55
Speaker 3: was a case that didn't actually involve the Jackson administration.
14:57
Speaker 3: It was between the State of Georgia and a private
15:01
Speaker 3: white man named Worcester, and the Supreme Court said that
15:06
Speaker 3: the State of Georgia was illegally forcing Worcester to take
15:11
Speaker 3: an oath of allegiance to the state. Worcester's a white
15:14
Speaker 3: missionary who lived on Cherokee land, and Georgia law that
15:18
Speaker 3: required every taken oath. Georgia arrested him and refused to
15:22
Speaker 3: release him after the Supreme Court ruling, and then Andrew Jackson,
15:26
Speaker 3: you know, it was not actually a party to the case,
15:28
Speaker 3: but had definite interest in it, essentially refused to help
15:31
Speaker 3: the Supreme Court enforce the ruling and refused to use
15:34
Speaker 3: federal troops to help ensure that that Worcester was released.
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Speaker 3: Jackson's quote, which is probably apocryphal, was John Marshall has
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Speaker 3: made his decision now let him enforce it.
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Speaker 1: And President Lincoln also clashed with a Supreme Court justice
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Speaker 1: during the Civil War. He actually went further than Jackson.
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Speaker 1: He suspended the writ of habeas corpus.
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Speaker 3: Yeah, this is probably the closest as president has ever
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Speaker 3: come to directly defining the Supreme Court. This is a
16:04
Speaker 3: situation where the war had started. The war was precipitated
16:09
Speaker 3: in part by the Supreme Court in Chief Justice Roger
16:11
Speaker 3: brook Tawny issuing the dread Scott decision that declared that
16:15
Speaker 3: freed slaves could never be be citizens in the United States.
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Speaker 3: And as the war starts, Abraham Lincoln's very concerned about sabotage,
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Speaker 3: and he issues an order that authorized one of his
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Speaker 3: generals to suspend the rid of habeas corpus near railroad
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Speaker 3: lines in Maryland and hapeas corpus is this notion that
16:37
Speaker 3: if the government holds you, rescue you can go to
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Speaker 3: a judge and make the governments defend why it's holding you.
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Speaker 3: And Lincoln said, we're going to suspend that notion because
16:47
Speaker 3: of the crisis we face here. Well, the guy named
16:50
Speaker 3: John Merriman was arrested, turned to Roger brook Tawny got
16:55
Speaker 3: a rid of habeas corpus anyway, which demanded that the
16:58
Speaker 3: military justified why Merriman had been been picked up, and
17:03
Speaker 3: Lincoln in his generals essentially ignored the order. Merriman did
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Speaker 3: not go before a judge, and Roger brook Tawney eventually said, look,
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Speaker 3: I've done all I can do here, But he said,
17:14
Speaker 3: my power has been resisted by a force too strong
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Speaker 3: for me to overcome. And Lincoln later justified what he did, saying,
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Speaker 3: are all the laws but one to go on executed,
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Speaker 3: and the government itself to go to pieces lest that
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Speaker 3: one be violated. In other words, he said he was
17:29
Speaker 3: justified by the exigencies of the circumstance, namely of the
17:32
Speaker 3: Civil War.
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Speaker 1: Since Lincoln, presidents have complied with Supreme Court orders, and
17:39
Speaker 1: Richard Nixon turning over the secret White House recordings in
17:44
Speaker 1: nineteen seventy two is the most recent incident and probably
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Speaker 1: one that people remember most but tell us about some
17:51
Speaker 1: of the other presidents who chose not to defy a
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Speaker 1: court order.
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Speaker 3: So there's a litany of examples. A few of the
17:57
Speaker 3: biggest ones just because of how high profile they came,
18:00
Speaker 3: as were nineteen fifty two President Harry Truman seizes the
18:03
Speaker 3: nation's steel mills to make sure there's not a work
18:06
Speaker 3: stoppage during the Korean War. Supreme Court rules against them,
18:12
Speaker 3: says he did that illegally. Truman immediately complies. In nineteen
18:17
Speaker 3: fifty four the Brown Versus Board of Education decision and
18:20
Speaker 3: some subsequent rulings, President Dwight Eisenhower initially reluctant to get involved,
18:25
Speaker 3: but actually helped the Supreme Court enforce those rulings and
18:28
Speaker 3: the lower courts enforce those rulings when he sent federal
18:31
Speaker 3: troops to escort black students into a high school in Arkansas.
18:36
Speaker 3: And then nineteen seventy four, Supreme Court orders Richard Nixon
18:40
Speaker 3: to turnover secret White House recordings. Nixon complies days later
18:44
Speaker 3: he has to resign the presidency.
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Speaker 1: So you asked this question in your piece, and so
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Speaker 1: now I'm going to ask you for the answer. Why
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Speaker 1: are presidents so quick to accept Supreme Court rulings as binding?
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Speaker 3: Well, there are both specific answers to each instance and
19:00
Speaker 3: kind of a general answer. And the specific answer is
19:03
Speaker 3: often a lot of the time the president is taking
19:05
Speaker 3: a very unpopular position. Harry Truman's position, for example, very
19:10
Speaker 3: unpopular at the time, and his standing was especially low.
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Speaker 3: But there's also the more general issue, which is that
19:17
Speaker 3: the Court over the years, over the decades and centuries,
19:21
Speaker 3: has earned some trust with the public. It has institutional
19:25
Speaker 3: standing that, at least until recently, was pretty strong and
19:29
Speaker 3: very often stronger than the other branches of government. And
19:32
Speaker 3: that goodwill has essentially created what some call it, the
19:36
Speaker 3: habit of accepting the Supreme Court decisions even when folks
19:40
Speaker 3: disagree with them.
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Speaker 1: And so now we're at a time where the Supreme
19:45
Speaker 1: Court and courts in general are not held in as
19:49
Speaker 1: high regard by the public. I mean, the standing of
19:52
Speaker 1: the Supreme Court is it at its lowest since it's
19:55
Speaker 1: been recorded.
19:56
Speaker 3: It's not quite at it flowest. Now it has recovered somewhat,
19:59
Speaker 3: but it did. It did hit bottom just a couple
20:01
Speaker 3: of years ago after the Dobbs really have overturned the
20:04
Speaker 3: test too, so right to abortion.
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Speaker 1: And so President Trump has said that he'll obey court orders.
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Speaker 1: I always obey court orders, he said in the Oval
20:14
Speaker 1: Office when asked. But he also has said some things
20:19
Speaker 1: that leave a question mark in the air. For example,
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Speaker 1: on social media on Saturday, he posted a quote that's
20:25
Speaker 1: been attributed to Napoleon Bonaparte. He who saves his country
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Speaker 1: does not violate any law. So is there a question
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Speaker 1: still of whether he's going to be different than he
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Speaker 1: was in his first administration?
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Speaker 3: Absolutely, there's a question. The administration is clearly sending out
20:46
Speaker 3: mixed signals about its intentions.
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Speaker 4: Here.
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Speaker 3: You talked about some of the things President Trump has said.
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Speaker 3: There are also things that some of his top aides
20:53
Speaker 3: have said, like Vice President Jade Vance, who actually quoted
20:58
Speaker 3: that apocryphal Andrew Jackson comment about the Chief Justices made
21:03
Speaker 3: is really now let him enforce it. Elon Musk has
21:06
Speaker 3: said things that have strongly suggested he would be willing
21:09
Speaker 3: to defy the Supreme Court. So that concern is in
21:15
Speaker 3: the air in a way it has not been in
21:18
Speaker 3: my lifetime. Even in those moments of huge national crisis,
21:23
Speaker 3: major Supreme Court decisions like the next one Takes case,
21:26
Speaker 3: there wasn't this level of concern that a president might
21:29
Speaker 3: just bumb his nose at the Supreme Court.
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Speaker 1: And he has issued a lot of executive orders that
21:37
Speaker 1: either ignore the law or defy the law. And you
21:41
Speaker 1: know one that stands out not only the funding freeze,
21:44
Speaker 1: but the birthright Citizenship order, which every judge that's ruled
21:49
Speaker 1: on has blocked it. So is it almost a deliberate
21:54
Speaker 1: defying of the legal norms.
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Speaker 3: So let me separate two things. With right citizenship, what
22:01
Speaker 3: we have seen this administration do is start off by
22:06
Speaker 3: just ignoring what has been the longstanding understanding of the
22:09
Speaker 3: fourteenth Amendment and acting as though birthright citizenship is not guaranteed.
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Speaker 3: But once quote orders have come through, they are complying
22:19
Speaker 3: with them. But in other contexts the administration has, for example,
22:24
Speaker 3: with an order to unfreeze federal funding, the administration has
22:30
Speaker 3: been a little less quick to comply, and in one
22:34
Speaker 3: case is promptly a judge to issue a follow up
22:37
Speaker 3: order saying, hey, I really expect you to unfreeze that funding.
22:41
Speaker 3: So this is planning out in a lot of different cases.
22:44
Speaker 3: And we haven't yet got to that point where I
22:48
Speaker 3: would say we're at, say, a constitutional crisis, but there
22:51
Speaker 3: are at least hints that we could have a big
22:53
Speaker 3: issue down the road.
22:54
Speaker 1: And you bring this out, which I thought was really interesting.
22:57
Speaker 1: Trump's control of the Republican Party, and we've seen that
23:01
Speaker 1: Congress is not intervening even when Trump does things that
23:05
Speaker 1: take away some of their power. He has such tight
23:08
Speaker 1: control over the Republican Party, so the Court can't count
23:13
Speaker 1: on Congress to support it.
23:15
Speaker 3: Right now, some members of Congress have suggested that the
23:18
Speaker 3: Supreme Court should be obeyed. Josh Hawley is Senator jesshal
23:22
Speaker 3: Ad Missouri is when it comes to mind. But we
23:26
Speaker 3: have seen time and again how Republicans in Congress ultimately
23:31
Speaker 3: have given in to what this president wants, and we
23:35
Speaker 3: end up in a world where it is the Supreme
23:38
Speaker 3: Court against both the President and Congress. You know, that's
23:42
Speaker 3: a tough fight for the Supreme Court. You look back
23:44
Speaker 3: in history at the big moments. Richard Nixon resigned in
23:49
Speaker 3: big part because members of his own party went to
23:52
Speaker 3: him and said, mister President, you can't continue. You don't
23:55
Speaker 3: have the support. There have been people who are more
23:58
Speaker 3: concerned about the institutional interests of the government and the
24:03
Speaker 3: continuing functioning of our democratic system rather than loyalty to
24:09
Speaker 3: a person or a party. And given this political climate,
24:13
Speaker 3: it's fair to wonder, is this going to be the
24:16
Speaker 3: Supreme Court standing by itself against both the President and
24:22
Speaker 3: the majority of Congress.
24:24
Speaker 1: Craig I have to say I find some irony here
24:27
Speaker 1: in the fact that it seems like the Supreme Court
24:29
Speaker 1: has made its own bed with that ruling in Trump
24:34
Speaker 1: the United States last term, granting immunity to the president
24:39
Speaker 1: for official acts. I mean that ruling was stunning, and
24:44
Speaker 1: now they're facing a president who may or may not
24:48
Speaker 1: listen to their orders. But administration lawyers are now quoting
24:53
Speaker 1: that opinion to demonstrate their points about presidential authority.
24:59
Speaker 3: Yes, there's a case that the in fact, the Trump
25:02
Speaker 3: administration's first case at the Supreme Court in this new term,
25:05
Speaker 3: asking the court to let him immediately fire the head
25:09
Speaker 3: of a whistleblower agency. That brief was chock full of
25:14
Speaker 3: citations to Trump versus the United States. The case you
25:17
Speaker 3: talk about, the immunity case basically saying that the president
25:21
Speaker 3: has broad authority, complete authority over the executive branch of government.
25:26
Speaker 3: And what they're arguing in this case involving the whistleblower
25:30
Speaker 3: agency and what they're arguing in other contexts is the
25:34
Speaker 3: Supreme Court has said that the president is the head
25:38
Speaker 3: of the executive branch and can fire people when he
25:42
Speaker 3: deems it to be in the country's best interest. And
25:46
Speaker 3: that ruling has put a fair amount of wind behind
25:50
Speaker 3: Trump's sales and.
25:51
Speaker 1: Making that argument maybe the Chief Justice, did you have
25:54
Speaker 1: a few regrets tell us about his annual remarks.
25:58
Speaker 3: So every year John Roberts put out a report on
26:00
Speaker 3: the state of the federal judiciary at the end of
26:02
Speaker 3: the year, comes out December thirty first, and this year
26:05
Speaker 3: he decided to talk about judicial independence, which is a
26:09
Speaker 3: subject that is near and dear to his heart. He
26:12
Speaker 3: talked about the safety of judges and threats against judges,
26:16
Speaker 3: and he talked about this issue that you and I
26:19
Speaker 3: have been talking about, the prospect that court rulings would
26:23
Speaker 3: be defined. He didn't explicitly mention Donald Trump. He didn't
26:29
Speaker 3: just talk about the president, but he talked about the
26:32
Speaker 3: situations in the fifties and sixties when a lot of
26:35
Speaker 3: state officials were refusing to abide by Brown versus Board
26:39
Speaker 3: of Education. And he talked about the Kennedy and the
26:43
Speaker 3: Eisenhower administrations backing up the court and helping to enforce
26:48
Speaker 3: those rulings. And also talked about the federal judges who,
26:52
Speaker 3: in some cases, at risk of their safety, stood by
26:55
Speaker 3: those rulings and enforce the law. And he said these suggestions,
27:00
Speaker 3: called them dangerous, suggestions that federal court rules could be defied,
27:04
Speaker 3: must be quotes soundly rejected.
27:06
Speaker 1: So it's barely a month into the administration and they're
27:10
Speaker 1: bringing a case before the Supreme Court. Tell us about it.
27:14
Speaker 3: Yes, this is a guy named Hampton Dellinger who's the
27:16
Speaker 3: head of a federal whistleblower agency that's called the US
27:20
Speaker 3: Office of Special Counsel. Footnote it's different from Special Counsel
27:24
Speaker 3: Jack Smith, who was the one who was prosecuting Trump
27:27
Speaker 3: during the Biden presidency. And Donald Trump is trying to
27:31
Speaker 3: fire him and put his own person in place there.
27:34
Speaker 3: And the legal issue, the underlying legal issue is sort
27:37
Speaker 3: of similar to the case the Court had a couple
27:39
Speaker 3: of years ago when the question was whether the president
27:42
Speaker 3: could fire the head of the Consumer Financial Protection Bureau,
27:45
Speaker 3: and the Supreme Court say yes, notwithstanding the job protections
27:48
Speaker 3: Congress gave that person, and the Special Council also has
27:52
Speaker 3: job protection in the law. And the White House says,
27:55
Speaker 3: we want to fire him anyway. So the question for
27:58
Speaker 3: the Court with at the court right now is a
28:01
Speaker 3: federal judge has issued a temporary restraining order for fourteen
28:05
Speaker 3: days saying he can't be fired. While I give this
28:09
Speaker 3: case a little deeper consideration, and the normally a temporary
28:14
Speaker 3: restraining order like that can't be appealed. But the Trump
28:18
Speaker 3: administration first asked the Federal appeals Court and now is
28:20
Speaker 3: asking the Supreme Court to consider that appeal anyway and
28:25
Speaker 3: to set aside the temporary restraining order so that Hampton
28:30
Speaker 3: Dellinger can be fired right away. Basically, they're saying, you know, yeah,
28:34
Speaker 3: we know this normal rule that you can't appeal a RO,
28:38
Speaker 3: but when we're talking about an infringement on core presidential powers,
28:42
Speaker 3: that should be an exception to that general rule about
28:45
Speaker 3: not appealing to ros.
28:47
Speaker 4: So.
28:47
Speaker 3: I think Trump is really testing how accommodating the Court's
28:49
Speaker 3: going to be to his efforts to remake the federal
28:52
Speaker 3: government house people who don't share his views. It will
28:56
Speaker 3: be the minimum. A very interesting and potentially a telling
29:00
Speaker 3: signal about just how accommodating this Supreme Court is going
29:04
Speaker 3: to be in the new Trump administration.
29:06
Speaker 1: And we'll talk to you about it as soon as
29:08
Speaker 1: that's decided. Thanks so much, Greg. That's Bloomberg News Supreme
29:12
Speaker 1: Court reporter Greg Store turning out of other legal news
29:16
Speaker 1: after the Supreme Court weekend, a key piece of the
29:19
Speaker 1: Voting Rights Act. Voting discrimination cases are not just harder
29:23
Speaker 1: to bring to court, but dramatically so. That's according to
29:27
Speaker 1: a Bloomberg Law analysis, and experts who examine the findings.
29:32
Speaker 1: Joining me to talk about their analysis is Alex Ebert,
29:35
Speaker 1: Bloomberg Law Senior Correspondent and Diana Dombrowski, Bloomberg Law Investigative reporter. So, Alex,
29:42
Speaker 1: why don't you start by explaining the ruling in the
29:45
Speaker 1: Bernovich case?
29:47
Speaker 4: Sure, Jean, So, both progressive and conservative litigators say this
29:52
Speaker 4: was a real sea change because what it did was
29:54
Speaker 4: it created a new test for how courts will interpret challenges,
30:00
Speaker 4: especially to state voting laws, and these are the laws
30:03
Speaker 4: that handle the time, place, and manner for when people
30:07
Speaker 4: can cast their votes. What it does is it creates
30:10
Speaker 4: new standards that really raise the bar for these kind
30:13
Speaker 4: of suits. These kind of suits have to have bigger
30:16
Speaker 4: sort of disparities between minority voting groups and white voting groups.
30:22
Speaker 4: They have to be different but still similar to what
30:26
Speaker 4: you see in the nineteen eighties when the law was updated,
30:31
Speaker 4: and they really make it a lot harder for groups
30:35
Speaker 4: to bring challenges against things that are now common practice
30:39
Speaker 4: throughout the United States. That includes things like dropboxes, early voting,
30:44
Speaker 4: having someone help you carry in your ballot if you
30:47
Speaker 4: have a disability. Things that we are now used to
30:50
Speaker 4: seeing across the United States to help people vote, those
30:53
Speaker 4: things are now much harder to challenge underneath this Burndage standard.
30:58
Speaker 1: So, Diana, this was a long term project from the
31:01
Speaker 1: investigations team. Tell us what your research found.
31:05
Speaker 5: Sure, So we were trying to measure the impact of
31:09
Speaker 5: this particular decision on Section two of the Voting Rights Act.
31:13
Speaker 5: So our biggest finding we looked at five hundred and
31:16
Speaker 5: seventy nine federal voting rights complaints, and our biggest finding
31:22
Speaker 5: was that there was a sixty percent drop off in
31:25
Speaker 5: cases relying on Section two of the Voting Rights Act
31:29
Speaker 5: after the Bernovich decision. In terms of what the cases
31:32
Speaker 5: were actually about, we saw cases related to immigrations, the
31:37
Speaker 5: cases that mentioned the phrases like illegal immigrants or non
31:40
Speaker 5: English voting materials or proof of citizenship. Those increased by
31:44
Speaker 5: almost one hundred and ten percent. We also saw a
31:47
Speaker 5: big increase in suburging of voter rolls cases about that
31:52
Speaker 5: over one hundred percent. Voter registration laws cases challenging those
31:56
Speaker 5: those increased by almost seventy percent. We also saw complaints
32:01
Speaker 5: related to voting not on election base, so these would
32:04
Speaker 5: be about like mail in ballots, early in person voting,
32:08
Speaker 5: and ballot dropox voting. Those all decreased by almost twenty
32:13
Speaker 5: two percent, and cases related to disability related voting concerns
32:18
Speaker 5: decreased by twenty six percent. I think the drop off itself, like,
32:22
Speaker 5: that's our biggest finding. And the attorneys we talked to
32:26
Speaker 5: were surprised by how big the drop off was. This
32:29
Speaker 5: is sixty percent drop off, and you know, it was
32:33
Speaker 5: the whole point of the decision. You know, it was
32:35
Speaker 5: supposed to be harder to bring Section two cases, but
32:39
Speaker 5: I mean the number itself was surprising to many of
32:41
Speaker 5: the sources that we spoke with.
32:44
Speaker 1: Alex, is it that these cases aren't being brought or
32:48
Speaker 1: is it that they're being brought in different ways not
32:51
Speaker 1: under Section two?
32:53
Speaker 4: Both of those things are true. Jan So we have
32:56
Speaker 4: two major trends that experts have told us are really
33:00
Speaker 4: exhibited in this data. One is that litigators are searching
33:05
Speaker 4: for some way to bring these kinds of lawsuits they
33:07
Speaker 4: brought in the past. Oftentimes these cases just aren't getting brought.
33:11
Speaker 4: But they're also having to rely much more on the
33:15
Speaker 4: politically turbulent state courts, where as you know we've talked
33:19
Speaker 4: about in the past, elections can really determine how these
33:23
Speaker 4: courts approach voting rights, and so now all of a
33:26
Speaker 4: sudden you see groups having to rely on novel theories
33:29
Speaker 4: under state constitutions or newly passed voting laws in liberal
33:33
Speaker 4: states in efforts to bolster the rights of minority voters, and.
33:39
Speaker 1: Where what areas are voters' rights being impinged upon?
33:43
Speaker 4: Most so, the instances we're seeing are where litigation groups
33:49
Speaker 4: aren't really able to grab some purchase in the state courts.
33:52
Speaker 4: You know, we're being told that, especially in the South,
33:55
Speaker 4: where we no longer have this federal court access to
33:59
Speaker 4: bring in these Section two claims, litigants aren't really having
34:03
Speaker 4: success in Republican controlled states where the state constitutions might
34:08
Speaker 4: have strong rights to vote. While most states have these
34:13
Speaker 4: really strong rights to vote inside of their state constitutions,
34:17
Speaker 4: those things are up to interpretation, and so courts, especially
34:20
Speaker 4: in the South, Republican holed states that really can help
34:23
Speaker 4: determine the control of Congress, they're seeing not as much
34:26
Speaker 4: success there as they might see in state courts like
34:30
Speaker 4: New York or California, where states have literally passed a
34:35
Speaker 4: Voting Rights Act law after Bernovich in order to bolster
34:40
Speaker 4: the rights of litigants Diana.
34:42
Speaker 1: There are some people who think that this ruling refocused
34:47
Speaker 1: and sort of reined in Section two as it needed
34:50
Speaker 1: to be reined in.
34:52
Speaker 3: Correct.
34:54
Speaker 5: There's sort of two sides to this. One is that
34:56
Speaker 5: this is like a huge this took away from one
35:01
Speaker 5: of the most important civil rights laws. And then the
35:04
Speaker 5: other side of this is saying, this is going back
35:07
Speaker 5: to what Section two was initially intended for. It was
35:11
Speaker 5: too sweeping, it was too broad, and this is actually
35:15
Speaker 5: what it was originally intended for.
35:17
Speaker 1: I thought it was interesting, Alex that lawyers are hesitant
35:21
Speaker 1: to file cases because they were afraid data bad ruling
35:24
Speaker 1: on the books, and they were even afraid to appeal
35:27
Speaker 1: for that reason they are.
35:28
Speaker 4: Indeed, we've covered litigation in recent years where there will
35:32
Speaker 4: be a massive loss for voting rights groups. A good
35:35
Speaker 4: example is there's an entire circuit in this country where
35:38
Speaker 4: you can't bring a Section two case in many instances,
35:43
Speaker 4: but they didn't want to appeal that to the US
35:44
Speaker 4: Supreme Court because they were afraid of getting a ruling
35:47
Speaker 4: against them and making that apply across the United States.
35:50
Speaker 4: That's just a microchasm, a microcosm of this broader issue
35:54
Speaker 4: we have, which is really a fight at its core
35:58
Speaker 4: between the concepts of equality to the ballot right and
36:02
Speaker 4: equality outcome at the ballot. And liberal groups are saying
36:07
Speaker 4: we need to be able to use modern statistics and
36:10
Speaker 4: the courts to fight for you know, equal access for
36:14
Speaker 4: mail in voting or early voting, and others are saying
36:17
Speaker 4: we need to allow states to manage elections and not
36:22
Speaker 4: have to bog down things when they innovate and make
36:24
Speaker 4: things better.
36:25
Speaker 1: Professor Justin Levitt of Loyal Law School said it's like
36:28
Speaker 1: a hammer and a screwdrivers. Yeah.
36:31
Speaker 5: Basically, he was saying that Section two was the best
36:34
Speaker 5: tool for the job, like this was the most direct
36:36
Speaker 5: path to argue these cases, and without it, you can
36:41
Speaker 5: try to rely on other laws, but they're just not
36:45
Speaker 5: as good. You know. We found like the National Voter
36:48
Speaker 5: Registration Act and the Help America Vote Act both increase
36:52
Speaker 5: and maybe some of that captured that attorneys are relying
36:55
Speaker 5: on those laws, but they also weren't designed specifically for this,
36:59
Speaker 5: so they'll also be used for other things you could
37:02
Speaker 5: use like the fourteenth and fifteenth Amendment. Bernovich didn't impact those,
37:07
Speaker 5: but again, they're like not the most direct way to
37:10
Speaker 5: address it. And we even saw a decrease in the
37:14
Speaker 5: fourteenth Amendment after Burnabitt. The fifteenth Amendment increased about thirty
37:18
Speaker 5: six percent.
37:20
Speaker 4: Many sources are worried about creating a patchwork across the
37:24
Speaker 4: United States, which really causes a strange battlefield for these rules.
37:31
Speaker 4: You'll have states like Wisconsin or North Carolina where a
37:34
Speaker 4: flip of the state Supreme Court, which happens fairly frequently,
37:38
Speaker 4: could change really important voting laws. You have other states
37:43
Speaker 4: where there's just not as much access to the poles
37:46
Speaker 4: usum states where you have immense amounts of early voting,
37:49
Speaker 4: but you might not have other things, and without sort
37:52
Speaker 4: of the federal clearinghouse for what does and doesn't violate
37:56
Speaker 4: the rights of minority groups. They're concerned among people that
38:00
Speaker 4: we're missing out on the ability of federal courts to
38:03
Speaker 4: stabilize elections in certain ways. And this also increases the
38:08
Speaker 4: attacks that we might see on those state judges that
38:12
Speaker 4: now have that responsibility placed on their shoulder, and they
38:16
Speaker 4: might be seeing additional threats, which is something that sources
38:19
Speaker 4: have said they're noticing in time post Burnovich, what.
38:23
Speaker 1: Is left of the Voting Rights Act Diana after this
38:26
Speaker 1: decision and after Shelby County.
38:29
Speaker 5: So I mean it still applies to redistricting cases. Burnevich
38:33
Speaker 5: did not affect how it's used to argue redistricting cases,
38:38
Speaker 5: So we actually took those out of our analysis. Everything
38:41
Speaker 5: we're talking about is non redistricting cases, so it's still
38:44
Speaker 5: going to be used in that context.
38:46
Speaker 4: Yeah, I think that the conservatives that we reached out
38:48
Speaker 4: to for their insights correctly point out that if the
38:52
Speaker 4: disparity between the racial minority voting group and the white
38:56
Speaker 4: voting group for a certain rule, let's say, state eliminate
39:00
Speaker 4: souls to the polls, an early voting dance Sunday, or
39:04
Speaker 4: black congregations might encourage folks to go vote. That might
39:07
Speaker 4: be an instance where because there's such a disparity, you
39:10
Speaker 4: could still bring a Section two case, But it's going
39:15
Speaker 4: to have to be really really strong to bring one
39:18
Speaker 4: of these time, place and manner cases, and getting that
39:22
Speaker 4: sort of information is expensive and time consuming for these
39:26
Speaker 4: litigation groups. So you're seeing a plummet in these federal cases.
39:29
Speaker 1: Thank you both for being on this show. That's Alex
39:32
Speaker 1: Ebert Bloomberg Law Senior Correspondent, and Diana Dombrowski, Bloomberg Law
39:37
Speaker 1: Investigative Reporter. And that's it for this edition of The
39:39
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
39:42
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39:45
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39:50
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39:54
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39:57
Speaker 1: Wall Street Time. I'm June Grosso and you're listening to
40:01
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