Latest / Bloomberg Law / What's Next After Firing of Pam Bondi & Mail-In Ballots

Transcript

What's Next After Firing of Pam Bondi & Mail-In Ballots · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: After just fourteen months, Pam Bondi, a loyal Trump ally,
• 0:13
  Speaker 2: is out as Attorney General after failing to deliver criminal
• 0:17
  Speaker 2: cases against President Trump's political enemies. Bondy oversaw the unprecedented
• 0:23
  Speaker 2: transformation of the Justice Department into an arm of the
• 0:27
  Speaker 2: White House and tried to pursue cases against Democrats and
• 0:31
  Speaker 2: the President's perceived political enemies. But Wilher's successor fare any better,
• 0:37
  Speaker 2: facing the same factual and legal hurdles and a skeptical
• 0:41
  Speaker 2: court system. My guest is constitutional law professor Harold Krentt
• 0:45
  Speaker 2: of the Chicago Kent College of Law. He'll tell us
• 0:48
  Speaker 2: how the Justice Department became an arm of the White
• 0:52
  Speaker 2: House under Bondie, something we've never seen before.
• 0:55
  Speaker 3: Obviously, the ties between the actions on the ground for
• 0:59
  Speaker 3: the Department Justice and the President become closer and closer.
• 1:02
  Speaker 3: Obviously that's been a priority of the president to try
• 1:04
  Speaker 3: to take everything in his own image and make sure
• 1:06
  Speaker 3: that he can direct even very minor issues, but in
• 1:09
  Speaker 3: this case very important prosecutorial issues. And the Bondi's reign
• 1:13
  Speaker 3: is probably most notable because of the revenge that Trump
• 1:19
  Speaker 3: overtly tried to take against his enemies via the Department
• 1:23
  Speaker 3: of Justice.
• 1:24
  Speaker 2: So apparently one of the reasons that she was fired
• 1:28
  Speaker 2: is that Trump wasn't satisfied with her prosecution of his
• 1:33
  Speaker 2: political enemies. But she did try. It seemed like the
• 1:35
  Speaker 2: legal system stood in her way.
• 1:38
  Speaker 3: Yeah, I mean the irony is she did his bidding
• 1:41
  Speaker 3: and she tried to you know, politicize, weaponize the Department Justice,
• 1:44
  Speaker 3: whichever word you know works with the James Comy prosecution,
• 1:49
  Speaker 3: with the prosecution of John Bolton, Letitia James. She's just
• 1:53
  Speaker 3: trying to follow President Trump's orders of trying to get
• 1:58
  Speaker 3: back at his enemies, and it didn't work. It wasn't
• 2:01
  Speaker 3: her fault, probably not. It just wasn't there. And so
• 2:05
  Speaker 3: the fact that she's being canned because she couldn't do
• 2:09
  Speaker 3: the impossible is really a partial triumph of the justice
• 2:13
  Speaker 3: system in the United States, but also an irony as well.
• 2:16
  Speaker 2: She did appoint Lindsay Halligan as a US attorney and
• 2:20
  Speaker 2: a judge throughout the prosecutions against Komi and James, because
• 2:25
  Speaker 2: Halligan was illegally appointed. But I don't know if Halligan
• 2:29
  Speaker 2: was Bondi's choice or Trump's choice.
• 2:31
  Speaker 3: So if you think about what's gone wrong, there's the
• 2:34
  Speaker 3: weaponization of the Department of Justice to go against Trump's enemies.
• 2:38
  Speaker 3: Also the chaos that was sown because of these inter appointments,
• 2:43
  Speaker 3: and probably the fault doesn't lie with her. It probably
• 2:45
  Speaker 3: lies with the president or the President's closer circle. But
• 2:47
  Speaker 3: we have the Lindsay Halligan, the Elina Haba, about five
• 2:51
  Speaker 3: other prossecutorial offices major proscutory office United States. They are
• 2:54
  Speaker 3: just in chaos because the President wasn't able to appoint
• 2:58
  Speaker 3: somebody who could be confirmed by the Senate. And then
• 3:01
  Speaker 3: the Shenanigan's with trying to get these interim US attorneys
• 3:05
  Speaker 3: in place, had just bounced back in his face. And
• 3:08
  Speaker 3: maybe he blames that on her, though again it wouldn't
• 3:10
  Speaker 3: be fair.
• 3:11
  Speaker 2: Hundreds of career employees left the Department during Bondie's tenure.
• 3:17
  Speaker 2: She also shut down units investigating public corruption and curtailed
• 3:23
  Speaker 2: investigations into corporate and environmental crime. How different is the
• 3:28
  Speaker 2: Department now compared to before she took over.
• 3:32
  Speaker 3: Well, those such as me who's served in the Department
• 3:34
  Speaker 3: of Justice just wonder if after Trump will there be
• 3:38
  Speaker 3: respect built up for the Department of Justice, because what
• 3:41
  Speaker 3: we've seen is the fact that so many people have
• 3:43
  Speaker 3: left so much knowledge, so much experience, that the president's
• 3:46
  Speaker 3: having a hard time getting his agenda accepted by judges.
• 3:49
  Speaker 3: And that's because people who are there, the attorneys who
• 3:52
  Speaker 3: are there, are no longer as respected, and so there
• 3:54
  Speaker 3: has been a blowback from judges just both with an
• 3:57
  Speaker 3: aptitude and lack of credibility, which is under his ability
• 4:00
  Speaker 3: to get convictions. I mean the Jerome Powell is a
• 4:03
  Speaker 3: great example of how he tried to get subpoenas and
• 4:06
  Speaker 3: tried to move because of crossover runs against the Fed,
• 4:09
  Speaker 3: and the judge said, what are you doing? Where's the evidence?
• 4:13
  Speaker 3: And the attorneys couldn't even point to anything to show
• 4:16
  Speaker 3: why there is a need for the subpoenas against Powell.
• 4:19
  Speaker 3: So it's a good example again of the blowback because
• 4:22
  Speaker 3: of the lack of competence and care taken by the
• 4:25
  Speaker 3: Department of Justice and building these cases.
• 4:27
  Speaker 2: Temporarily, he's installed his former personal defense lawyer, Todd Blanche.
• 4:32
  Speaker 2: Todd Blanch has been Deputy Attorney General. So do you
• 4:36
  Speaker 2: expect to see any changes under.
• 4:38
  Speaker 3: His don't And I'm not sure what the president can
• 4:40
  Speaker 3: accomplish with this switch because the problem I don't think
• 4:43
  Speaker 3: lies with Pam Bondi except for maybe one exception we'll
• 4:45
  Speaker 3: get to. But the problem is just the fact that
• 4:48
  Speaker 3: there's not a lot of evidence, not a lot of
• 4:50
  Speaker 3: experienced attorneys, and so his mission to get the courts
• 4:55
  Speaker 3: to agree with what he wants to do is not succeeding.
• 4:57
  Speaker 3: And I don't think it's going to succeed under Todd Blanche either.
• 5:00
  Speaker 2: And Todd Blanche, I know some former federal judges have
• 5:03
  Speaker 2: expressed displeasure. Shall we say that Blanche came out at
• 5:08
  Speaker 2: a Federalist Society function and said the Justice Department is
• 5:12
  Speaker 2: at war with the judiciary and rogue judges. That's not
• 5:17
  Speaker 2: the kind of statement you expect to hear from a
• 5:19
  Speaker 2: deputy Attorney general.
• 5:21
  Speaker 3: He's been very confrontational, more confrontational in fact than Pam
• 5:24
  Speaker 3: Bondi with respect to judges. And I don't think that
• 5:27
  Speaker 3: is going to end up with judges rolling over. I
• 5:30
  Speaker 3: think we're going to see judges continually to reject much
• 5:33
  Speaker 3: of the mission of this administration. I want to just
• 5:36
  Speaker 3: mention I'm sure you will too. The one exception is
• 5:39
  Speaker 3: Pambondi did not handle the Epstein files well. And obviously
• 5:44
  Speaker 3: she was in a terrible situation, and there's all sorts
• 5:46
  Speaker 3: of conflicting evidence and difficulties in dealing with the Epstein files.
• 5:50
  Speaker 3: But she did make it worse. And she's going to
• 5:52
  Speaker 3: testify before Congress, and I'm very curious about whether she's
• 5:55
  Speaker 3: going to take the Fifth Amendment and testify or not.
• 5:59
  Speaker 3: But she did worse in the present situation. She did
• 6:01
  Speaker 3: not protect the president with respect to the Epstein files.
• 6:04
  Speaker 2: Is there any difference with her no longer being the
• 6:07
  Speaker 2: attorney general, like should Trump have waited until after that deposition?
• 6:11
  Speaker 3: I don't think there'll be a material difference. I could
• 6:14
  Speaker 3: be wrong, but I think most of the issues could
• 6:17
  Speaker 3: be a privilege issue in terms of protecting what the
• 6:19
  Speaker 3: President told her. It could be still a privilege issue
• 6:22
  Speaker 3: of not trying to undermine ongoing criminal investigations. And there's
• 6:25
  Speaker 3: obviously a privilege against self incrimination in case that comes up.
• 6:29
  Speaker 3: So I don't think she'll be in material different position.
• 6:33
  Speaker 3: But I know Congress wants at her and they want
• 6:35
  Speaker 3: her testimony.
• 6:36
  Speaker 1: Then.
• 6:37
  Speaker 3: The most basic thing was she said she saw a
• 6:38
  Speaker 3: client list right of Jeffrey Epstein, and then it disappeared. Well,
• 6:42
  Speaker 3: what is she going to say about that? And that
• 6:44
  Speaker 3: may not be subject to privilege. And that's why Congress
• 6:48
  Speaker 3: has been so adamant that she testify and why she's
• 6:50
  Speaker 3: in a very dicey situation should she turn up.
• 6:53
  Speaker 2: Might some of the problem be the way she expressed
• 6:57
  Speaker 2: herself and frame the issue. Will Todd Blanche have a
• 7:02
  Speaker 2: different approach, maybe a softer approach.
• 7:05
  Speaker 3: I'm not sure that Blanch is going to do a
• 7:07
  Speaker 3: softer approach, you now, I think Blanche has been pretty
• 7:09
  Speaker 3: hard edged so far and his dealings with the judiciary,
• 7:12
  Speaker 3: I'd be surprised if that changed. I mean, yes, I
• 7:14
  Speaker 3: think her judgment with the Epstein files is the one
• 7:16
  Speaker 3: area that one can really point to where she did
• 7:19
  Speaker 3: not protect the president. But I think Blanche will have
• 7:22
  Speaker 3: even more difficulty if trying to get at Jerome Powell,
• 7:24
  Speaker 3: trying to get at John Bolton, trying to get hit
• 7:27
  Speaker 3: Comy at James and so many others, and you know,
• 7:31
  Speaker 3: the chaos in the US Attorney's offices because of the
• 7:33
  Speaker 3: apployments isn't her fault. I don't think she was a
• 7:36
  Speaker 3: mastermind of that, you know, I think that came from
• 7:38
  Speaker 3: somewhere else. So I'm not sure that Blanch can improve
• 7:40
  Speaker 3: on that either.
• 7:41
  Speaker 2: Yeah, he said on Fox News Thursday. To the extent
• 7:44
  Speaker 2: the Epstein files was a part of the past year
• 7:47
  Speaker 2: of this Justice Department, it should not be a part
• 7:49
  Speaker 2: of anything going forward. That's not going to work.
• 7:52
  Speaker 3: No, And again, Blanche may have a different strategy and
• 7:55
  Speaker 3: he won't be sort of subpoinied by Congress the way
• 7:59
  Speaker 3: Pambondi is, because he hasn't sort of perjured himself or
• 8:03
  Speaker 3: made some very difficult to understand claims about the EPSTCEN files.
• 8:07
  Speaker 3: But I'm not sure what the right strategy is. Again,
• 8:09
  Speaker 3: I think if you stepped back, the president has put
• 8:11
  Speaker 3: the Atturngycal in such a difficult position, both with respect
• 8:15
  Speaker 3: to the Epstein files, but also with respect to many
• 8:18
  Speaker 3: of these prosecutions that I think almost anyone is doomed
• 8:21
  Speaker 3: to failure unless they can sort of talk the president down,
• 8:24
  Speaker 3: and we haven't seen evidence that many people can talk
• 8:26
  Speaker 3: the president down.
• 8:27
  Speaker 2: Also, Todd Blanche was responsible for interviewing Glainne Maxwell, and
• 8:34
  Speaker 2: then suddenly the next day she gets sent to a
• 8:38
  Speaker 2: prison camp. Convicted child offenders are not supposed to be
• 8:42
  Speaker 2: allowed in those kind of camps. So the fix was
• 8:44
  Speaker 2: in somewhere there.
• 8:45
  Speaker 3: Yeah, many people were expecting even to pardon, and we
• 8:47
  Speaker 3: haven't seen that. But obviously she's in better quarters than
• 8:51
  Speaker 3: she was before. And what kind of cooperation he was
• 8:55
  Speaker 3: able to obtain, what kind of information was able to obtain,
• 8:59
  Speaker 3: has not been revealed. But he's obviously has some built
• 9:03
  Speaker 3: up relationship and maybe the President just wants to rely
• 9:06
  Speaker 3: upon that relationship to protect him at least with respect
• 9:10
  Speaker 3: to the Epstein files.
• 9:11
  Speaker 2: And Blanch can only serve for one hundred and twenty.
• 9:13
  Speaker 3: Days, we're expecting that either perhaps Blantch can be appointed
• 9:17
  Speaker 3: during that time period, perhaps somebody else will be appointed.
• 9:20
  Speaker 3: I'm not certainly not privy to those kinds of discussions,
• 9:23
  Speaker 3: but he is knowledgeable about the Department Justice, he's certainly
• 9:26
  Speaker 3: knowledgeable about the president. So I think it's a wise
• 9:28
  Speaker 3: choice for the President in terms of at least as
• 9:30
  Speaker 3: an interim attorney general. But what follows is really critical.
• 9:33
  Speaker 2: And so the prediction market is betting on who'll be
• 9:36
  Speaker 2: the next attorney general, and Lee Zelden, who's currently the
• 9:40
  Speaker 2: EPA chief, is the front runner. Betters are placing a
• 9:44
  Speaker 2: forty seven percent probability on him being the next attorney general.
• 9:48
  Speaker 2: There Again, he's carried out Trump's mission at the EPA,
• 9:53
  Speaker 2: so why would he be any different as attorney general.
• 9:56
  Speaker 2: Anyone who gets appointed is going to be subject to
• 9:58
  Speaker 2: the same present residential demands.
• 10:01
  Speaker 3: It is not a job that I would cherish at
• 10:03
  Speaker 3: this moment because it's an impossible job. And again, I
• 10:06
  Speaker 3: think Pam Bondi did her best to help the president,
• 10:09
  Speaker 3: with the exception of the Epstein fowles. I think she did.
• 10:12
  Speaker 3: She was a loyal soldier. But it's an impossible job.
• 10:15
  Speaker 3: And unless somebody can sort of talk down the president
• 10:18
  Speaker 3: and limit his desire to go after enemies and weaponize
• 10:22
  Speaker 3: the Department of Justice, I think the succeeding attorney generals
• 10:25
  Speaker 3: that have just as difficult of a time as Pam Bondi.
• 10:27
  Speaker 2: Did New York Attorney General Letitia James, where the attempts
• 10:31
  Speaker 2: by Bondi to prosecute her failed, So apparently they're still
• 10:34
  Speaker 2: trying with a different angle. But at what point does
• 10:38
  Speaker 2: it become a slam dunk case of malicious prosecution?
• 10:42
  Speaker 1: Right?
• 10:42
  Speaker 3: And the same thing is true with James Comey and
• 10:45
  Speaker 3: with others. And I think again, the courts are just
• 10:48
  Speaker 3: tired of it, and I think that they've seen these
• 10:51
  Speaker 3: thinly papered up prosecutions and they're insulted and insulted by
• 10:56
  Speaker 3: the competence of the orneys. They're insulted by the preparation
• 10:58
  Speaker 3: for the cases, They're insulted by the theories of the prosecutions.
• 11:01
  Speaker 3: And I hate to say it, but just wasting taxpayer money.
• 11:04
  Speaker 3: And I'm not sure what Trump thinks he will gain
• 11:07
  Speaker 3: by this, because you're just losing respect and the ability
• 11:09
  Speaker 3: of courts in cases that probably he should care more
• 11:12
  Speaker 3: about than they may turn against him in those as well.
• 11:14
  Speaker 2: Hell, I've been wondering if you see any strategy in
• 11:18
  Speaker 2: the way President Trump is dealing with the Supreme Court.
• 11:22
  Speaker 2: After he lost the tariff decision, he was brutally critical
• 11:26
  Speaker 2: of the justices who voted against him, and the night
• 11:29
  Speaker 2: before the birthright citizenship arguments, he criticized judges and justices
• 11:35
  Speaker 2: in a post on social media. He then attended half
• 11:39
  Speaker 2: of the oral arguments and afterwards posted about how stupid
• 11:43
  Speaker 2: birthright citizenship is. This all seems counterproductive to me now.
• 11:48
  Speaker 3: I think at the beginning his factiousness with the Supreme
• 11:52
  Speaker 3: Court did serve a purpose, and there is a theory
• 11:56
  Speaker 3: that might be sort of borne out by the evidence
• 11:59
  Speaker 3: that he to make the court very weary of a confrontation,
• 12:04
  Speaker 3: and because of his assertiveness and dismissiveness of the court,
• 12:08
  Speaker 3: they didn't want to challenge him. And I think that
• 12:11
  Speaker 3: led to particularly use of the shadow dockets, so there
• 12:13
  Speaker 3: was not a written opinion.
• 12:15
  Speaker 1: It led to.
• 12:16
  Speaker 3: All of these cases where they really voted in favor
• 12:19
  Speaker 3: of the chump administration. But then with the tariff's case
• 12:22
  Speaker 3: and all the gloves coming off and belittling the court
• 12:26
  Speaker 3: and making fun of them, you know, even the conservative
• 12:29
  Speaker 3: justices that I think have been deeply insulted to the core,
• 12:32
  Speaker 3: and I think that's basically just increased their resolve to
• 12:37
  Speaker 3: vote against the president in the birthright decisionship case and
• 12:40
  Speaker 3: others coming down the lane. So again, it's not good strategy.
• 12:43
  Speaker 3: It's just trump Ism.
• 12:45
  Speaker 2: And there's a study in Just Security that revealed it
• 12:47
  Speaker 2: more than two hundred and ten cases since the start
• 12:50
  Speaker 2: of twenty twenty five where the courts have issued strong
• 12:53
  Speaker 2: rulings against the administration's conduct.
• 12:56
  Speaker 3: Yeah, the lower court judges have been firmly aligned, many
• 13:00
  Speaker 3: Republican judges joining Democratic judges in saying this is lawless.
• 13:04
  Speaker 3: You have to follow the law. We have a rule
• 13:06
  Speaker 3: of law in this country. It's been cherished, it's part
• 13:09
  Speaker 3: of our tradition, as part of our future. If we
• 13:11
  Speaker 3: hope and that the administration is just going over the line.
• 13:15
  Speaker 3: And I don't think his effort to push judges from
• 13:18
  Speaker 3: that has succeeded. Maybe again, maybe he did a little
• 13:21
  Speaker 3: bit at the beginning, but I think it's only going
• 13:23
  Speaker 3: to get worse. And I think he is basically, you know,
• 13:26
  Speaker 3: undercut his own position to such an extent, you know,
• 13:29
  Speaker 3: bit off his nose. Despite the face, one could say
• 13:31
  Speaker 3: that he's going to face more and more losses in
• 13:34
  Speaker 3: the courts. It's not going to be a happy situation.
• 13:37
  Speaker 2: Is anyone talking yet about a preemptive pardon for Pam Bondy?
• 13:42
  Speaker 3: You know, she stepped down, She's been involved in all
• 13:44
  Speaker 3: these controversial issues, particularly perhaps lying to Congress with respect
• 13:48
  Speaker 3: to the Epstein investigation, And so just as Biden considered
• 13:54
  Speaker 3: preemptive pardons, she might want to solicit a farewell president
• 13:58
  Speaker 3: from the President in the shape of a barden, just
• 14:01
  Speaker 3: as she can go on with her life and not
• 14:02
  Speaker 3: worry about possible criminal charges.
• 14:04
  Speaker 2: What seemed a little off to me is that Christy Nome,
• 14:08
  Speaker 2: who was fired after two US citizens were killed by
• 14:12
  Speaker 2: DHSS agents under her watch, she was given another position,
• 14:17
  Speaker 2: but Pam Bondy, who was so loyal to Trump, was
• 14:21
  Speaker 2: not given another position.
• 14:23
  Speaker 3: Well, it's also an interesting signal that loyalty may not
• 14:28
  Speaker 3: be enough in terms of surviving the Trump administration. The
• 14:31
  Speaker 3: other thing I would mention I've been fascinated about this
• 14:33
  Speaker 3: last couple of days is the leaks that are coming
• 14:36
  Speaker 3: out from the Trump administration. I think there must be
• 14:39
  Speaker 3: a lot of officials, a lot of the rank and
• 14:41
  Speaker 3: file are no longer worried about repercussions, and they seem
• 14:46
  Speaker 3: very willing to go to the press and to spill
• 14:48
  Speaker 3: out all this information, obviously even before the discharge happened, etc.
• 14:53
  Speaker 3: So there's signs then that the cracks at the administration
• 14:56
  Speaker 3: because it's not rewarding loyalty, so it's not attaining loyalty
• 15:00
  Speaker 3: from the troops.
• 15:01
  Speaker 2: There's also been a lot of speculation about who in
• 15:03
  Speaker 2: the cabinet might be next to be fired. Thanks so
• 15:08
  Speaker 2: much for joining me today, Hall. That's Professor Harold Krent
• 15:11
  Speaker 2: of the Chicago Kent College of law. So far, there
• 15:14
  Speaker 2: are four legal challenges to President Trump's executive order on
• 15:18
  Speaker 2: mail in voting. Democratic led States, Democratic congressional leaders, the
• 15:24
  Speaker 2: League of Women Voters, and civil rights groups are all
• 15:27
  Speaker 2: suing to block the administration from prohibiting mail in voting
• 15:32
  Speaker 2: for anyone not on a pre approved list of citizens
• 15:36
  Speaker 2: to be compiled by the Department of Homeland Security. For years,
• 15:40
  Speaker 2: Trump has claimed, without evidence, that there's widespread fraud, including
• 15:45
  Speaker 2: non citizen voting, in US elections. This executive order is
• 15:49
  Speaker 2: his latest effort to alter elections since his defeat by
• 15:53
  Speaker 2: Joe Biden in the twenty twenty presidential election. Joining me
• 15:57
  Speaker 2: is an expert in elections law, Richard broff Fault, a
• 16:00
  Speaker 2: professor at Columbia Law School. Rich start by explaining this
• 16:05
  Speaker 2: executive order.
• 16:06
  Speaker 1: Trump's executive voider requires two lists. One is that the
• 16:11
  Speaker 1: Apartment of Homeland Security, in cooperation with the Social Security
• 16:15
  Speaker 1: Administration and other governmental athletes, will come up with a
• 16:20
  Speaker 1: kind of a state by state voting list, a state
• 16:23
  Speaker 1: specific citizenship list of people eligible to vote, and they're
• 16:28
  Speaker 1: supposed to transmit that to the states by sixty days
• 16:32
  Speaker 1: before the next federal election. The states I skipped a step.
• 16:37
  Speaker 1: The states are then supposed to tell by sixty days
• 16:40
  Speaker 1: before the election the Postal Service which of their voters
• 16:43
  Speaker 1: are expecting to use absent to your mail in ballots. Then,
• 16:47
  Speaker 1: also the Postal Service is supposed to create a list
• 16:52
  Speaker 1: of people whose mail in ballots will be accepted and
• 16:57
  Speaker 1: transmitted by the Postal Service. The service well in the meantime,
• 17:01
  Speaker 1: will have developed by a rule that basically says that
• 17:04
  Speaker 1: only those voters who are on the federal voting eligible
• 17:09
  Speaker 1: list will have their mail in ballots actually transmitted by
• 17:12
  Speaker 1: the Postal Service. There's other stuff about also developing a
• 17:16
  Speaker 1: unique identification QR codes on each ballot, which I think
• 17:19
  Speaker 1: many states have already started to do. But the key
• 17:22
  Speaker 1: idea is that there will be a federal voting eligible
• 17:25
  Speaker 1: list create with the federal governments as of the states,
• 17:28
  Speaker 1: and then the states will send a list to the
• 17:31
  Speaker 1: Postal Service, and the Postal Service will only carry absent
• 17:35
  Speaker 1: to your mail in ballots that the Postal Service concludes
• 17:39
  Speaker 1: are eligible based on the Department of Homeland Securities citizenship list.
• 17:45
  Speaker 2: So we're supposed to trust that the Department of Homeland
• 17:48
  Speaker 2: Security and conjunction with the Post Office, has given US
• 17:51
  Speaker 2: a list that's accurate. It sounds like there would be
• 17:54
  Speaker 2: you know, just forget the legalities. It sounds like there
• 17:56
  Speaker 2: would be a ton of problems with this.
• 17:58
  Speaker 1: Yes, I mean basically allwned Security has only really gotten
• 18:01
  Speaker 1: into this fairly recently. They're relying on the Social Security Administration.
• 18:05
  Speaker 1: Social Security Administration itself says that it kind of requires
• 18:09
  Speaker 1: people to self certify whether they're citizens. Day don't check citizenship,
• 18:12
  Speaker 1: and apparently they don't really have any records on citizens
• 18:15
  Speaker 1: before about nineteen eighty one. They only began to check
• 18:18
  Speaker 1: citizenship in the nineteen eighties, and they really only look
• 18:22
  Speaker 1: into citizenship for people who are actually claiming Social Security
• 18:25
  Speaker 1: dhs it's citizenship records were mostly based on people becoming
• 18:30
  Speaker 1: citizens through naturalization or other processes. There may be other
• 18:35
  Speaker 1: federal databases that have this information, but the idea is
• 18:38
  Speaker 1: that they're going to draw from all the relevant federal
• 18:41
  Speaker 1: databases to come up with a state citizenship list, which
• 18:45
  Speaker 1: they will then transmit to the states by sixty days
• 18:49
  Speaker 1: before the next federal election. The states are not mandated
• 18:52
  Speaker 1: to use this. Actually, it doesn't actually require the states
• 18:56
  Speaker 1: to use this list, but the assumption of the states
• 18:58
  Speaker 1: will either wail or will be done by it. It
• 19:01
  Speaker 1: kicks in more when the states send their absentee voter
• 19:04
  Speaker 1: list to the Postal Service, which will have supposed to
• 19:07
  Speaker 1: have developed a rule that says they will only handle
• 19:11
  Speaker 1: absentee ballots for voters who are on the federal list.
• 19:16
  Speaker 1: That's where the federalist has fight.
• 19:18
  Speaker 2: So there are several lawsuits. There's one by more than
• 19:22
  Speaker 2: twenty Democratic led states, There's another by top Senate and
• 19:26
  Speaker 2: House Democratic leaders, one by a coalition of voting rights groups,
• 19:32
  Speaker 2: and another by civil rights groups. So the basic contention
• 19:37
  Speaker 2: is that Trump doesn't have the authority. The President doesn't
• 19:40
  Speaker 2: have the authority to make these changes by executive order.
• 19:46
  Speaker 1: Absolutely right. I mean, I guess the president probably has
• 19:49
  Speaker 1: the authority to acquire the DHS to develop a list,
• 19:52
  Speaker 1: but he has no authority to acquire the states to
• 19:55
  Speaker 1: use it. Interestingly, it doesn't actually say they have to
• 19:58
  Speaker 1: use it, although there's law of talk about prioritizing the
• 20:02
  Speaker 1: Attorney general to go after voter fraud, which they can
• 20:07
  Speaker 1: do anyway, and there's also talk about maybe cutting off
• 20:11
  Speaker 1: funding for states that don't use the list, although again
• 20:14
  Speaker 1: it doesn't say that, and it doesn't actually say funding
• 20:17
  Speaker 1: relating to elections, so it can be anything which itself
• 20:20
  Speaker 1: would be unconstitutional. The bite is in the directive to
• 20:24
  Speaker 1: the Postal Service. He has no power to give directives
• 20:27
  Speaker 1: to the Postal Service. The Postal Service is an independent
• 20:30
  Speaker 1: corporation with its own board of governors. I mean President
• 20:34
  Speaker 1: has some role in this, you know, in making nominations
• 20:36
  Speaker 1: for the board of governors, but he cannot direct them
• 20:39
  Speaker 1: and he cannot remove them. And they are subject to
• 20:43
  Speaker 1: federal statutes basically requiring universal carriage of mail, with specified
• 20:47
  Speaker 1: exceptions for mail that can be exhipted. The mail involved
• 20:50
  Speaker 1: in crimes, for example, this is not one of them.
• 20:53
  Speaker 1: So you can't mandate the Postal Service to do this.
• 20:57
  Speaker 1: The Postal Service, in any event, would have to go
• 20:59
  Speaker 1: through a rulemaking process which would certainly take some time
• 21:03
  Speaker 1: and as hard to believe, would be finished before this election.
• 21:07
  Speaker 1: And it seems extremely unlikely, almost certainly illegal, that the
• 21:12
  Speaker 1: Postal Service could refuse to carry mail that's not otherwise
• 21:18
  Speaker 1: barred from the males by federal statute. Because they get
• 21:21
  Speaker 1: back to the beginning of all of this, the President
• 21:24
  Speaker 1: has no power to regulate elections period. The Constitution gives
• 21:29
  Speaker 1: power to regulate elections to the states, and then also
• 21:33
  Speaker 1: says that Congress can regulate the phrase's time, place, or
• 21:37
  Speaker 1: manner of federal elections. And so if Congress were to
• 21:42
  Speaker 1: pass a statute like this, it might work. There would
• 21:45
  Speaker 1: be issues, but at least conceptually, Congress has the power
• 21:49
  Speaker 1: to regulate the procedures for federal elections and to regulate
• 21:53
  Speaker 1: mail in voting in federal elections, although even Congress can't
• 21:57
  Speaker 1: decide who's eligible to vote in federal lass and then
• 22:01
  Speaker 1: it's really the states. Congress can regulate time, place, and manner.
• 22:05
  Speaker 2: Do we face a problem perhaps because the head of
• 22:07
  Speaker 2: the Postal Service right is a Trump appointee.
• 22:12
  Speaker 1: I mean, it's possible, but they still would have to
• 22:14
  Speaker 1: go through a rule making. Even the Executive Order says
• 22:17
  Speaker 1: that that they have to go through a rule making.
• 22:20
  Speaker 1: It's hard to imagine a rule making getting done in
• 22:22
  Speaker 1: less than six months. That would be a fast rule making.
• 22:25
  Speaker 1: They have to write a rule, they have to put
• 22:27
  Speaker 1: it out for notice and comment, they have to respond
• 22:30
  Speaker 1: to the comments, and now itself would take some time.
• 22:33
  Speaker 1: And then there is the problem that the Executive Order
• 22:36
  Speaker 1: is asking the Postal Service to refuse to deliver mail
• 22:40
  Speaker 1: in a way that such refusal is not authorized by
• 22:43
  Speaker 1: any federal law. So they can't adopt rules that decline
• 22:48
  Speaker 1: to carry mail other than for the kinds of reasons
• 22:51
  Speaker 1: that are in federal law. And until Congress acts, this
• 22:55
  Speaker 1: isn't one of them.
• 22:56
  Speaker 2: Okay, stay with me, Rich coming up next on the
• 22:58
  Speaker 2: Bloomberg Law showptinue this conversation with Columbia Law School professor
• 23:03
  Speaker 2: Richard Brofault. How likely are the groups suing the Trump
• 23:06
  Speaker 2: administration to get temporary relief. I'm June Grosso, and this
• 23:11
  Speaker 2: is Bloomberg. More than twenty Democratic led states, as well
• 23:17
  Speaker 2: as top Democrats in the House and Senate, a coalition
• 23:21
  Speaker 2: of voting rights groups and civil rights groups, have filed
• 23:25
  Speaker 2: lawsuits to block President Trump's latest executive order restricting mail
• 23:30
  Speaker 2: in voting. The suits argue that the US Constitution empowers
• 23:34
  Speaker 2: states and Congress, not the President, to determine who's eligible
• 23:39
  Speaker 2: to vote by mail. I've been talking to Professor Richard
• 23:42
  Speaker 2: Brofault of Columbia Law School, an expert in elections law. Rich,
• 23:46
  Speaker 2: since the law seems so clear here that the president
• 23:49
  Speaker 2: doesn't have the power to outlaw mail in voting by
• 23:53
  Speaker 2: executive order. Do you think it's likely that that one
• 23:57
  Speaker 2: judge or more than one judge would issue preliminary injunction
• 24:01
  Speaker 2: stopping this executive order from going through.
• 24:05
  Speaker 1: Yeah, I mean, part of the funny thing is it's
• 24:07
  Speaker 1: not quite clear what this order requires. It's not clear
• 24:10
  Speaker 1: to me that court would barred DHS, Barber Homeland Security
• 24:14
  Speaker 1: from trying to develop this list. It certainly would get
• 24:18
  Speaker 1: an injunction barring any federal action requiring the states to
• 24:22
  Speaker 1: use this list, although the executive word it doesn't literally
• 24:26
  Speaker 1: require that. It really comes in kind of through the
• 24:29
  Speaker 1: side doors of well, we might cut off your funds.
• 24:33
  Speaker 1: So that's something I think that could be barred. This
• 24:35
  Speaker 1: might be a basis for prosecutions that could be barred.
• 24:38
  Speaker 1: And this has got to feed into the to the
• 24:41
  Speaker 1: postal services regulation on what nail and ballots they would carry.
• 24:45
  Speaker 1: Now again that I can imagine that kind of directive
• 24:48
  Speaker 1: to the postal service being barred, except you could argue
• 24:51
  Speaker 1: President doesn't have the power to direct the postal service.
• 24:54
  Speaker 1: So I would think that if this actually had any bite,
• 24:57
  Speaker 1: it could be blocked. Oddly enough, one of the argument
• 25:00
  Speaker 1: against an injunction might be this doesn't actually do very much. Nonetheless,
• 25:04
  Speaker 1: did the extent that it has any kind of inter
• 25:07
  Speaker 1: rorum effect, And surely it does, And there are other
• 25:10
  Speaker 1: things in it. There are requirements. For example, I was
• 25:13
  Speaker 1: reading for record keeping all poll books, records of absentee
• 25:18
  Speaker 1: ballots where kids of people signing in to vote, everything
• 25:21
  Speaker 1: relating to federal elections. It says local governments have to
• 25:25
  Speaker 1: keep them for five years. Existing federal loss is only
• 25:28
  Speaker 1: twenty two months, in other words, from one election day
• 25:32
  Speaker 1: until just before the next one. And the assumption that
• 25:35
  Speaker 1: in fact states and especially local governments have limited storage
• 25:38
  Speaker 1: capacity and they kind of need to clear it out
• 25:40
  Speaker 1: to go ready for the next election. Well, this would
• 25:43
  Speaker 1: extend that, and I was reading this would be incredibly
• 25:45
  Speaker 1: brutensome on state and especially local elections offices, which is
• 25:50
  Speaker 1: really where most of elections are regulated. Many of them
• 25:53
  Speaker 1: in say rural counties, don't have the capacity. So you
• 25:56
  Speaker 1: can imagine that some of that all the stuff that
• 26:00
  Speaker 1: hiring the states to send their list of absentee voters
• 26:03
  Speaker 1: and nail in voters sixty days before the election. In
• 26:06
  Speaker 1: many states, you can request an absently ballot up to
• 26:09
  Speaker 1: ten days before an election. So that's the kind of
• 26:11
  Speaker 1: thing that again, having this out there could very well
• 26:15
  Speaker 1: intimidate some state officials, many local officials, and of course
• 26:19
  Speaker 1: many voters who fear that they're out of compliance if
• 26:23
  Speaker 1: they applied late. I think, more than anything in this
• 26:26
  Speaker 1: I think has been the kind of a hallmark of
• 26:28
  Speaker 1: this administration. It just creates chaos and confusion, and that
• 26:34
  Speaker 1: just makes it hard for everybody. It makes it hard
• 26:37
  Speaker 1: for administrators, it makes it hard for voters, and it may,
• 26:40
  Speaker 1: you know, whether intended or not, discourage people from voting
• 26:44
  Speaker 1: or just confusion itself is discouraging. And so I do
• 26:48
  Speaker 1: think that's part of what's going on here.
• 26:50
  Speaker 2: So the Supreme Court heard oral arguments already challenging whether
• 26:54
  Speaker 2: a state can continue to count mail in ballots that
• 26:58
  Speaker 2: were postmarked by election day received afterward. Do you think
• 27:02
  Speaker 2: that Trump administration might try to appeal this on an
• 27:04
  Speaker 2: emergency basis to the Supreme Court.
• 27:07
  Speaker 1: I think they might try. I mean, again, it's hard
• 27:09
  Speaker 1: to say what the emergency is. At least the argument
• 27:11
  Speaker 1: in that case is called the Watson case. There is
• 27:14
  Speaker 1: a federal statute on the books. There is a federal
• 27:16
  Speaker 1: statute that says there shall be a single election day,
• 27:19
  Speaker 1: and it is whatever it is November seventh or way
• 27:21
  Speaker 1: it varies some year to year. That at least was
• 27:24
  Speaker 1: the legal hook for that lawsuit, is that election day
• 27:29
  Speaker 1: means that that's the day that all the ballots have
• 27:31
  Speaker 1: to be in. You could argue about that, but there
• 27:34
  Speaker 1: is a federal congressional statute that's the basis for the claim. Here.
• 27:39
  Speaker 1: There's nothing. There's just a kind of an assertion that
• 27:42
  Speaker 1: the president's responsible for election integrity. And we have all
• 27:45
  Speaker 1: these laws designed to punish election fraud, which is true,
• 27:48
  Speaker 1: but none of them come remotely clear to requiring anything
• 27:51
  Speaker 1: like this. So now I think that would be a
• 27:54
  Speaker 1: hard sell. And indeed, the President's earlier Executive Winter on
• 27:58
  Speaker 1: Elections from last year, I think that's been enjoined all
• 28:02
  Speaker 1: over the country and they've never taken it up separate before.
• 28:04
  Speaker 2: And I just want to note that President Trump again
• 28:07
  Speaker 2: voted by mail in a Florida special election in March,
• 28:12
  Speaker 2: so you know, it's just a continuation of his complaints
• 28:17
  Speaker 2: about mail in voting. So I'll ask you again which
• 28:21
  Speaker 2: I've asked you so many times before, to tell us
• 28:24
  Speaker 2: whether there's any proof that there is fraud in mail
• 28:27
  Speaker 2: in voting.
• 28:28
  Speaker 1: Again, I don't want to say there's no proof, because
• 28:30
  Speaker 1: with millions of votes being cast all the time, there's
• 28:33
  Speaker 1: a bound to be some. There is certainly no proof
• 28:35
  Speaker 1: of any significant or more than minuscule amounts of fraud
• 28:40
  Speaker 1: in connection with elections. There are so many security mechanisms
• 28:45
  Speaker 1: when people register to vote in the first place, when
• 28:47
  Speaker 1: they request ballots, and the ballots are sent to them,
• 28:50
  Speaker 1: and the ballots are sent back when they're open, and
• 28:52
  Speaker 1: they're counted again. Never say there's no fraud, but to
• 28:55
  Speaker 1: the extent that there's been any proven fraud is next enough.
• 29:00
  Speaker 1: And especially in the last ten years, as all the
• 29:04
  Speaker 1: accusations of fraud have mounted, there have been many more
• 29:07
  Speaker 1: hunts and searches for fraud, particularly in so called red
• 29:11
  Speaker 1: states where there are Republican attorneys general Republican secretaries of
• 29:15
  Speaker 1: state who made a big deal out of this and
• 29:17
  Speaker 1: have done massive searches, and they will come up with one, two, three, four,
• 29:21
  Speaker 1: or five people, not always mail, and sometimes they're in
• 29:24
  Speaker 1: person voting. Most commonly it's people who think they're eligible
• 29:27
  Speaker 1: to voting, or not think they're citizens but they're only
• 29:30
  Speaker 1: have green cards, or people who are convicted of felony
• 29:33
  Speaker 1: and think that because they've served their time, that's over with.
• 29:36
  Speaker 1: But in fact the ban may be lifetime. And sometimes
• 29:39
  Speaker 1: it's been mistakes made by local election officials that say, yeah,
• 29:42
  Speaker 1: you're fine, when you know the local election officials mistaken
• 29:47
  Speaker 1: This coming election in November, you know, one hundred million
• 29:52
  Speaker 1: ballots on hundred and fifty million ballots will be cast
• 29:54
  Speaker 1: in multiple elections. I mean typically when people are voting,
• 29:57
  Speaker 1: they're voting, we vote for dozens of offices, federal, state,
• 30:02
  Speaker 1: and local. They will be improper votes any want to
• 30:05
  Speaker 1: call them fraud necessarily because sometimes the person voting doesn't
• 30:09
  Speaker 1: realize that he or she is ineligible, and they're not
• 30:11
  Speaker 1: intending a fraud, but they are ineligible. So there may
• 30:15
  Speaker 1: indeed be ineligible voters, but kind of a very minor level.
• 30:20
  Speaker 2: And rich. What are some Republican states trying to do
• 30:24
  Speaker 2: as far as requiring proof of citizenship?
• 30:28
  Speaker 1: These issues are about what proof do you need to
• 30:32
  Speaker 1: bring either when you register for the first time or
• 30:36
  Speaker 1: when you come to the polls to vote, and then
• 30:39
  Speaker 1: what counts as good proof because in fact, you know,
• 30:41
  Speaker 1: in other countries people are required to carry around government
• 30:44
  Speaker 1: issued IDs. We don't have that. We do have driver's licenses,
• 30:48
  Speaker 1: but in some states they don't have to be a citizen.
• 30:50
  Speaker 1: And indeed, the so called real ID which is now
• 30:52
  Speaker 1: required for flying that doesn't require PROOFDN citizens should be either.
• 30:57
  Speaker 1: I think some states have sort of re confirmed with
• 31:01
  Speaker 1: new laws that you have to be a citizen to
• 31:03
  Speaker 1: vote and may require some proofs. But the question is
• 31:08
  Speaker 1: always there's two or three stages. What do you need
• 31:11
  Speaker 1: to do when you register? What do you need to do?
• 31:13
  Speaker 1: We neither when you request an absentee valot or send it.
• 31:16
  Speaker 1: In some states proposals already have to have a photocopy
• 31:19
  Speaker 1: of your passport. Passport is proof of citizenship. A photocopy
• 31:22
  Speaker 1: of your passport when you make your request and or
• 31:25
  Speaker 1: when you send in the ballot, and then of course
• 31:28
  Speaker 1: what you need to do when you actually come to vote.
• 31:30
  Speaker 1: Until recently, the battle was over just proof of ID,
• 31:35
  Speaker 1: but now increasingly people are trying to have proof of
• 31:37
  Speaker 1: citizenship and that just gets hard. You know, people don't
• 31:40
  Speaker 1: carry this information around with them. People have often said, well,
• 31:44
  Speaker 1: you know what's frong with having proof of ID? You
• 31:45
  Speaker 1: need proof ID to fly. You don't need proof of
• 31:48
  Speaker 1: citizenship to fly, at least flying domestically. So that's really
• 31:52
  Speaker 1: where really all the fighting is. No one denies that
• 31:55
  Speaker 1: you need to be a citizen to vote in federal elections,
• 31:58
  Speaker 1: and I think in every state election, the question is
• 32:01
  Speaker 1: what proof has to be provided on election day? On
• 32:06
  Speaker 1: how serious is this issue that we're basically going to
• 32:09
  Speaker 1: make people bring their passports given that a big chunk
• 32:11
  Speaker 1: of the country doesn't have a passport, or we're going
• 32:14
  Speaker 1: to bring and make people bring their driver's license given
• 32:16
  Speaker 1: that a lot of people don't have driver's license, and
• 32:18
  Speaker 1: even the driver's license isn't necessarily proof. I mean, I
• 32:22
  Speaker 1: think people are getting very excited about this, but in fact,
• 32:25
  Speaker 1: we don't have the bureaucracy and the documentation requirements of
• 32:30
  Speaker 1: proof of citizens at least we have not had that traditionally.
• 32:33
  Speaker 1: Until now, this has been a good thing.
• 32:35
  Speaker 2: And I understand that some of this would just be
• 32:37
  Speaker 2: logistically impossible.
• 32:40
  Speaker 1: It would be impossible for the states to use the
• 32:43
  Speaker 1: citizenship list if they don't get it until the day
• 32:47
  Speaker 1: they have to turn in their absentee voter list to
• 32:49
  Speaker 1: the postal service. And there's a lot in this thing that,
• 32:52
  Speaker 1: regardless of what it attempts to do, that literally doesn't
• 32:55
  Speaker 1: work in addition to you, I mean, it is both
• 32:57
  Speaker 1: unconstitutional in many ways, but in many ways it literally
• 33:02
  Speaker 1: won't work because of the way the deadlines actually don't
• 33:05
  Speaker 1: interface properly, and it ignores the fact. For example, for
• 33:08
  Speaker 1: federal elections, we have primaries all the time. I mean,
• 33:11
  Speaker 1: at least up until September, there seem to be primaries
• 33:14
  Speaker 1: every couple of weeks. And these are for federal offices,
• 33:17
  Speaker 1: so the same rule is supposed to apply for those two.
• 33:20
  Speaker 1: You'd be setting out that citizenship list all the time.
• 33:24
  Speaker 2: You have to wonder how much research was done before
• 33:26
  Speaker 2: this executive order was written. Thanks so much, rich for
• 33:30
  Speaker 2: joining me on the show. That's Professor Richard Brflt of
• 33:33
  Speaker 2: Columbia Law School, and that's it for this edition of
• 33:36
  Speaker 2: The Bloomberg Law Show. Remember you can always get the
• 33:39
  Speaker 2: latest legal news on our Bloomberg Law Podcast. You can
• 33:42
  Speaker 2: find them on Apple Podcasts, Spotify, and at www dot
• 33:46
  Speaker 2: Bloomberg dot com, slash podcast Slash Law, And remember to
• 33:50
  Speaker 2: tune into The Bloomberg Law Show every weeknight at ten
• 33:53
  Speaker 2: pm Wall Street Time. I'm Junie Grosso and you're listening
• 33:57
  Speaker 2: to Bloomberg