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Judge Skeptical of Trump Suit Against All Federal Judges in Maryland · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Attorney General Pam Bondi has repeatedly criticized federal judges who've
0:14
Speaker 2: held back President Trump's agenda, calling them liberal activists and
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Speaker 2: out of control.
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Speaker 3: Judges have used these injunctions to block virtually all of
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Speaker 3: President Trump's policies. To put this in perspective, there are
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Speaker 3: ninety four federal judicial districts. Five of those districts throughout
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Speaker 3: this country held thirty five of the nationwide injunctions. Think
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Speaker 3: about that, ninety four districts and thirty five out of
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Speaker 3: the forty opinions with nationwide injunctions came from five liberal
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Speaker 3: districts in this country.
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Speaker 2: And one of those so called liberal districts where nationwide
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Speaker 2: injunctions have been issued is the District of Maryland, and
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Speaker 2: the Justice Department has picked that district to file an
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Speaker 2: unprecedented lawsuit against all the sitting federal judges in the district.
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Speaker 2: It's over a standing order that blocks for two days
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Speaker 2: the deportation of detained immigrants who file habeas petitions. Of course,
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Speaker 2: Maryland is also the district that drew national attention in
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Speaker 2: the case of Kilmar Abrego Garcia, who was wrongfully deported
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Speaker 2: to El Salvador joining me is constitutional law expert Harold Krant,
1:34
Speaker 2: a professor at the Chicago Kent College of Law. How
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Speaker 2: this lawsuit is unprecedented? How much is this ratcheting up
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Speaker 2: of the Trump administration's power struggle with the judiciary.
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Speaker 4: The Department of Justice had options here. They could have
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Speaker 4: easily chosen one of the twelve cases in which the
1:52
Speaker 4: automatic stay had been opposed to file an appeal, and
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Speaker 4: they would have been able to obtain an orly fashion
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Speaker 4: of pelic review of the propriety of the District of
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Speaker 4: Maryland standing order which imposed the automatic stay in an
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Speaker 4: immigration habeasts context. They chose not to do that. They
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Speaker 4: ratcheted up the tension by filing an parallel lawsuit against
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Speaker 4: all members of the District of Maryland individually as judges,
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Speaker 4: and that sets the framework for a very important separation
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Speaker 4: of powish challenge, namely, whether the executive branch can sue
2:30
Speaker 4: judges get information about them depositions because they don't like
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Speaker 4: a standing order. So the procedural posture itself is what
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Speaker 4: is the most troubling aspect of the case, not the
2:41
Speaker 4: only one that's certainly the most troubling.
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Speaker 2: The government says that two day pause in deportations in
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Speaker 2: cases where detained immigrants are challenging their detainment by habeas corpus.
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Speaker 2: They say that that inhibits the president's ability to enforce
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Speaker 2: federal immigration laws and that the Chief Judge has no
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Speaker 2: authority to issue such a blanket order.
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Speaker 4: Yeah. So many courts of appeals, and in the case
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Speaker 4: I think they cited five courts of appeals have automatic
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Speaker 4: stays in certain contexts in order to preserve the jurisdiction
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Speaker 4: of the court. And so the District of Maryland is
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Speaker 4: the site which famously gave rise to the Kilmer Abrago
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Speaker 4: Garcia case, where the government shipped Garcia out of the
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Speaker 4: country surreptitiously while a challenge was going on. And so
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Speaker 4: because they had been burned and the Department Justice had
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Speaker 4: interfered with the jurisdiction of the court previously, that's what
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Speaker 4: led to this standing order being promulgated. So, I mean,
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Speaker 4: the Department Justice is right in the sense that an
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Speaker 4: automatic stay does interfere with cases in which the individual
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Speaker 4: has no claim whatsoever not to be deported. But you know,
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Speaker 4: the delay is only for two days, and given what's
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Speaker 4: happened before in terms of the due process violation that
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Speaker 4: the government has committed by transporting Garcia and others away
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Speaker 4: without any kind of chance for hearing, the court followed
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Speaker 4: the lead of other court's appeals, which said, look, just
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Speaker 4: give us two days to see if there's any substance here,
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Speaker 4: and if there's no substance, we'll say go ahead, ship
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Speaker 4: the person out. So the Department Justice has taking a
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Speaker 4: very unusual stance in this context to again increase the
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Speaker 4: pressure on judges by suing them, which is unparalleled. And
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Speaker 4: the hearing that we had just a couple of days ago,
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Speaker 4: the Trump appointee seems very dubious as to the validity
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Speaker 4: of the Department of Justices challenge.
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Speaker 2: So Judge Colin, who by the way, normally sits in Roanoke, Virginia,
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Speaker 2: but the Fourth Circuit assigned him to hear this case
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Speaker 2: because all the Maryland judges were conflicted out and he
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Speaker 2: is a Trump appointee. And he said, one of the
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Speaker 2: things about me is I don't have a very good
5:00
Speaker 2: poker face. He said to the government lawyer, and I
5:03
Speaker 2: think you've probably picked up on the fact that I
5:06
Speaker 2: have some skepticism. He had a lot of skepticism if
5:09
Speaker 2: you look at what happened at the hearing. Also, he
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Speaker 2: questioned whether this could lead to other executive branch litigation
5:17
Speaker 2: against federal benches all the way up to the Supreme Court. Yeah.
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Speaker 4: I mean, we don't want the specter of DJ suing
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Speaker 4: judges and having other judges than sitting to judge the
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Speaker 4: lawsuit against judges, and that comes with subpoenas, depositions, discovery.
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Speaker 4: Not only said unseemly, it would certainly chill independent judging.
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Speaker 4: So the very fact of rumging around in a judge's
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Speaker 4: files to determine what lay behind in this case the
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Speaker 4: standing order, kind of correspondence there was, would inhibit judicial
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Speaker 4: freedom and really compromise the independence of the judiciary as
5:56
Speaker 4: we know it. So I think the judge Calme was
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Speaker 4: was right on saying that even if there were some
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Speaker 4: kind of issue on the merits here and there's something
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Speaker 4: of a case that the Department Justice has, this is
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Speaker 4: not the way to challenge it. Take it normally and
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Speaker 4: challenge it up to the four Circuit, and if you
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Speaker 4: need to the Supreme Court, don't sue the judges themselves.
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Speaker 2: Representing the judges was Paul Clement, a top conservative litigator
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Speaker 2: and a former Solicitor General in the George W. Bush
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Speaker 2: administration who's been appearing in many cases challenging the Trump administration.
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Speaker 2: He warned about a nightmare scenario in which judges could
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Speaker 2: be deposed, other internal judiciary documents could be reviewed by
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Speaker 2: the government executive branch lawyers, cross examining judges and lawyers
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Speaker 2: for the judges, grilling White House officials in open court.
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Speaker 4: And again, this is not how these dispeech should be resolved.
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Speaker 4: I think the Department Justice needlessly fanned the flames of
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Speaker 4: conflict here. I think they'll be repudiator by the courts.
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Speaker 4: This was a needless exercise, was a thoughtless exercise, and
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Speaker 4: I think it will be resolved in the court system.
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Speaker 4: And the question all these on these cases is will
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Speaker 4: the government comply? Will they not deport people for at
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Speaker 4: least that two day period to give judges a sneak
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Speaker 4: peek at the merits to say well, we need to
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Speaker 4: have a hearing here, or to say no, go ahead
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Speaker 4: and deport the individual. We'll have to see where they comply.
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Speaker 2: And the Justice Department's lawyer refused to commit to not
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Speaker 2: filing similar lawsuits against federal courts in the future, and they.
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Speaker 4: Will be repeated at predicted. I think that's the only
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Speaker 4: way I think judges can react to this provocation. But
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Speaker 4: if they do file again, we are entering into a
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Speaker 4: very tumultuous period of even more intense conflict between the
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Speaker 4: Trump Justice Department and the judges. You know, at the
7:54
Speaker 4: end of the day, that's even going to frighten the
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Speaker 4: Supreme Court, which is obviously ruled strongly in President Trump's
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Speaker 4: favor in most cases. They're not going to like this either.
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Speaker 4: And I think that the Department Justice is very shortsighted
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Speaker 4: in following these kind of lawsuits, because at the end
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Speaker 4: of the day, I think the Supreme Court is the
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Speaker 4: one that can try to trim the president's sales, and
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Speaker 4: largely that are his side, but this may push a
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Speaker 4: couple to the other side.
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Speaker 2: The Clement mentioned a few different grounds for dismissing the suit,
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Speaker 2: that the government failed to state a claim through which
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Speaker 2: they could seek to block the standing order, or that
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Speaker 2: the court could dismiss the case on judicial immunity grounds.
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Speaker 1: Yeah, I mean, it.
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Speaker 4: Seems to me that this is just an improvident jurisdictional channel,
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Speaker 4: that the dj should be able to sue the standing order,
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Speaker 4: but not by directly challenging judges themselves. And so the
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Speaker 4: court could, you know, I don't know if you want
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Speaker 4: to call a judicial immunity to say that the judges
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Speaker 4: could never be sued, because I think they probably can
8:58
Speaker 4: be in some context. So without going down that route,
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Speaker 4: I think the more delimited route would just be saying
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Speaker 4: that in this particular context there was a jurisdictional they're
9:09
Speaker 4: made by the court, and that to have jurisdiction over
9:13
Speaker 4: the standing order, there should be an appeal in a
9:16
Speaker 4: concrete case. I mean, maybe there's a standing order that
9:19
Speaker 4: would give rise to a case or controversy, but there's
9:22
Speaker 4: no sort of immediate chill to the standing order. And
9:27
Speaker 4: since it can be challenging a case or controversy, I
9:31
Speaker 4: think the Court might just stay its hand and say,
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Speaker 4: as a prudential manner, he's going to wait for that context.
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Speaker 2: And the judge also asked why they didn't take this
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Speaker 2: after the Supreme Court, saying it would have been decided quicker.
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Speaker 2: And that's the path they've taken before, and I wonder
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Speaker 2: why they didn't bring it to the Supreme Court.
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Speaker 4: You know, I think, as you said, it's not a
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Speaker 4: matter of them not wanting to sprinqule to do this.
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Speaker 4: They simply, either negligently or intentionally tried to fan the
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Speaker 4: flames of the conflict between judges and the Department of
10:01
Speaker 4: Justice by choosing this procedural route. And so I think
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Speaker 4: as well within the Court's power to say you chose
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Speaker 4: the wrong route. We're not saying you can't challenge this.
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Speaker 4: You should be able to challenge us, but just not
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Speaker 4: by suing judges directly, but rather by appealing in a
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Speaker 4: context of a particular case or controversy.
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Speaker 2: This illustrates the Trump administration's offensive against the federal judiciary.
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Speaker 2: There's the inflammatory rhetoric, allegations that the administration has ignored
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Speaker 2: court orders, and they've filed ethics complaints against two federal
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Speaker 2: judges for things that they said in the courtroom. What's
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Speaker 2: the administration's strategy. Are they expecting that judges will be intimidated?
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Speaker 4: Certainly part of the rationale of the Trump administration is
10:49
Speaker 4: to receive a softer reception in the courts. So the theory,
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Speaker 4: I guess is that you have a broadside here, and
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Speaker 4: a broadside there that judges is down the road will
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Speaker 4: be more receptive to their arguments and treat their claims
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Speaker 4: with greater receptivity. You know, but it could backfire. And
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Speaker 4: as I mentioned before, my thought is that this kind
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Speaker 4: of action will boomerang because it will scare even judges
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Speaker 4: who would otherwise be sympathetic with the Trump administration peak safe.
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Speaker 4: We want to have any kind of independent judging left
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Speaker 4: in this country, we can't have the executive grant suing
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Speaker 4: and deposing and seeking private correspondence from judges in particular cases.
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Speaker 4: So that's the spectru of what we have through this lawsuit.
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Speaker 4: And again I don't think the Trump administration will achieve
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Speaker 4: their ends at least through this.
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Speaker 2: Means how You're going to come back a little later
11:47
Speaker 2: in the show to talk about our next topic. The
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Speaker 2: DC Circuit Court allowing the Trump administration to block billions
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Speaker 2: of dollars in foreign aid. This is Bloomberg. It's a
12:01
Speaker 2: significant win for President Trump in his efforts to dissolve
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Speaker 2: the US Agency for International Development and with whole funding
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Speaker 2: from programs that have fallen out of favor with his administration.
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Speaker 2: The DC's Circuit Court of Appeals has ruled that the
12:16
Speaker 2: administration can cut billions of dollars in foreign assistance funds
12:21
Speaker 2: approved by Congress for this year. The nonprofits and businesses
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Speaker 2: that sued argued that the President and agency leaders couldn't
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Speaker 2: defy Congress's spending mandates and didn't have discretion to decide
12:35
Speaker 2: that only some, let alone none of the money appropriated
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Speaker 2: by Congress should be paid out. Joining me is Zoe Tillman,
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Speaker 2: Bloomberg News Senior reporter. A lower court had found that
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Speaker 2: the administration was violating the separation of powers by not
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Speaker 2: authorizing the money to be paid in line with what
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Speaker 2: Congress had approved. Why did the appellate court reverse?
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Speaker 1: The two to one majority of this DC Circuit panel
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Speaker 1: basically said that the challengers in this case, which included nonprofits, businesses,
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Speaker 1: private contractors that do foreign aid work, that they don't
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Speaker 1: have their own separate constitutional challenge path for something like this.
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Speaker 1: That if the President wants to refuse to spend money
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Speaker 1: that Congress has appropriated, which is known as impoundment, there's
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Speaker 1: a US law that says that's not allowed, and the
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Speaker 1: only party that can enforce that, basically is Congress. That
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Speaker 1: an official called the Comptrol or General consue to enforce
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Speaker 1: that Impoundment Control law, but that there isn't a separate
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Speaker 1: private cause of action for anyone else to bring a
13:43
Speaker 1: claim like the one brought in this case saying there
13:46
Speaker 1: was a separation of powers violation. So the court basically said,
13:50
Speaker 1: you know, we're not going to reach the question of
13:52
Speaker 1: whether what Trump is doing in refusing to spend this
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Speaker 1: money is constitutional or is not constitutional. The Court's but
14:00
Speaker 1: this type of lawsuit just isn't allowed.
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Speaker 2: I mean, is it the Government Accountability Office that has
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Speaker 2: to sue?
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Speaker 1: Right? So, as the majority said that under the Empoundment
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Speaker 1: Control Act, the Government Accountability Office and the Comptroller General
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Speaker 1: have separate roles to play. That they have to send,
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Speaker 1: you know, there's a notice that goes to Congress, you
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Speaker 1: know there's a violation, and then within statutorily prescribed period
14:25
Speaker 1: of time I think it's maybe twenty five days after that,
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Speaker 1: then the Comptroller General can bring a lawsuit against the
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Speaker 1: administration to enforce the appropriation that Congress approved. And you know,
14:37
Speaker 1: the odds of that happening very unclear if that's a
14:41
Speaker 1: thing that could happen or would happen. Republicans control Congress,
14:46
Speaker 1: and it's not a situation where Congress has at all
14:49
Speaker 1: been adversarials to the administration, even when this administration has
14:53
Speaker 1: really tried to, you know, exercise more control over things
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Speaker 1: that have been traditionally in constitutiontionally the role of Congress,
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Speaker 1: like deciding how federal money is that.
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Speaker 2: The Government Accountability Office has found that the Trump administration
15:09
Speaker 2: illegally impounded funds authorized by Congress a few times, but
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Speaker 2: they've never sued over it.
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Speaker 1: That's true, they've played that oversight role. It just would
15:18
Speaker 1: be really an escalation between the two branches to suit.
15:23
Speaker 1: It's not that kind of dynamic.
15:24
Speaker 2: So far, there's been a lot of lawsuits over Trump
15:28
Speaker 2: failing to use funds as directed by Congress. Has this
15:34
Speaker 2: type of analysis been done before?
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Speaker 1: We certainly have not had a ruling like this, and
15:42
Speaker 1: definitely not from a circuit court, let alone the DC Circuit,
15:46
Speaker 1: which sets precedent for the nation's capital and where the
15:50
Speaker 1: majority of cases against the administration over everything from funding
15:55
Speaker 1: to fire and has played out. Now, it's important to
15:57
Speaker 1: say that this is about impoundment. It doesn't automatically knock
16:03
Speaker 1: out from court parties that are suing over other ways.
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Speaker 1: The administration has so thought to cut spending. You know,
16:09
Speaker 1: it doesn't apply to cases regarding certain types of grant
16:13
Speaker 1: cancelations or suspensions. It doesn't deal with cases we've been
16:18
Speaker 1: over new conditions that the administration has placed on grants
16:23
Speaker 1: and contracts and how it wants to direct several dollars.
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Speaker 1: But to the extent, there are cases that sort of
16:29
Speaker 1: broadly challenge what they say are legal moved by the
16:33
Speaker 1: President to simply unilaterally refuse to spend money or obligate
16:39
Speaker 1: it once Congress has appropriated it. If this DC Circuit
16:43
Speaker 1: decision stands, and that's a very big if, given things
16:46
Speaker 1: we expect to come soon, it would really complicate efforts
16:50
Speaker 1: to bring those types of cases, at least in Washington
16:52
Speaker 1: going forward.
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Speaker 2: It was a two to one decision, as you mentioned,
16:56
Speaker 2: with judges appointed by George H. W. Bush and Donald
17:02
Speaker 2: Trump in the majority and a Biden appointee dissenting. If
17:07
Speaker 2: they asked the full DC Circuit to hear the case
17:11
Speaker 2: on bank there there are more judges appointed by Democrats
17:16
Speaker 2: than judges appointed by Republicans. Is there any indication that
17:20
Speaker 2: they might ask for a non bank panel.
17:23
Speaker 1: Yes, we've gotten, you know, statements from groups involved in
17:28
Speaker 1: this litigation saying that they're going to pursue options to review,
17:33
Speaker 1: which we understand to mean they're going to ask the
17:35
Speaker 1: full DC Circuit to reconsider the panel's decision. And you know,
17:39
Speaker 1: it's interesting this year because of just coincidence the ways
17:44
Speaker 1: that the wheel has spun in DC. Even though there
17:46
Speaker 1: are a majority of or liberal leaning Democrat appointed judges
17:51
Speaker 1: on the circuit, there have been a number of panels
17:54
Speaker 1: in consequential cases with majority of Republican appointees who are
17:58
Speaker 1: more conservative leaning, like Judge Henderson who was an H. W.
18:03
Speaker 1: Bush appoint a Judge cass who was a Trump appointee.
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Speaker 1: So it's not a guarantee. The Court is supposed to
18:10
Speaker 1: set a very high bar for when it takes cases
18:12
Speaker 1: on bank. It's not just supposed to be you know,
18:15
Speaker 1: whoever loses gets that next step of review. It's supposed
18:18
Speaker 1: to be a reserved for extraordinary situations, situations where the
18:23
Speaker 1: Court you know, seas a need to step in and
18:25
Speaker 1: really set new precedent for the circuit. But you know,
18:29
Speaker 1: giving the stakes here, it seems like at least a
18:32
Speaker 1: contender for the judges to vote to take this up
18:37
Speaker 1: and reconsider what the panel did is.
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Speaker 2: This case one of the few where the Supreme Court
18:43
Speaker 2: refused to step in where the administration lost that motion
18:49
Speaker 2: before the Supreme Court.
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Speaker 1: That's right, very early on, and it's this case also
18:55
Speaker 1: has a number of different claims in it, and some
18:59
Speaker 1: of the early orders that were at issue involved sort
19:04
Speaker 1: of related but separate issues on a more sort of
19:07
Speaker 1: emergency temporary restraining order type basis, So you know, there
19:11
Speaker 1: were sort of claims related to the government's refusal to
19:14
Speaker 1: pay money for work that had already been done pursu
19:17
Speaker 1: into contracts, different from the sort of sweeping constitutional claims
19:22
Speaker 1: that were at issue in this latest opinion. But early on, yes,
19:25
Speaker 1: there was a situation where the judge entered orders that
19:28
Speaker 1: said the government could not just simply refuse to pay money,
19:31
Speaker 1: especially for this work that had been done early in
19:34
Speaker 1: the administration, and the Supreme Court had refused to step
19:38
Speaker 1: in and disturb that initial order that you know, required
19:42
Speaker 1: the government to keep paying out the money that it
19:46
Speaker 1: was supposed to. But you know, it's not a merit's decision.
19:49
Speaker 1: It was on the emergency docket, also known as the
19:51
Speaker 1: shadow docket. And if this case went back up again
19:55
Speaker 1: now on a merits basis. That's certainly not a guarantee
19:59
Speaker 1: that the government would fail to sway a majority of
20:03
Speaker 1: the justices this time around.
20:05
Speaker 2: So I mean, does this mean that the Trump administration
20:08
Speaker 2: can use that money for something else right away? Or
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Speaker 2: is there an injunction in place or right now?
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Speaker 1: The Circuit's opinion I believe has not formally taken effect yet.
20:20
Speaker 1: They haven't issued the mandate, which would be sort of
20:23
Speaker 1: making it official. There's this time window where the plaintiffs,
20:27
Speaker 1: the nonprofits and the contractors and the businesses could ask
20:31
Speaker 1: the full court to reconsider. So sort of nothing immediately
20:35
Speaker 1: changes for the next few weeks at least. You know,
20:38
Speaker 1: when money is impounded, my understanding is that you know,
20:42
Speaker 1: it goes back to the treasury. If that's the administration
20:46
Speaker 1: is free to do whatever it wants with it. It's just
20:48
Speaker 1: that it doesn't have to spend it in the way
20:50
Speaker 1: that Congress proved it to be spent for the fiscal year.
20:55
Speaker 2: Thanks so much for joining me, Zoe. That's Bloomberg News
20:58
Speaker 2: Senior reporter, Zoey Tillman. It was a significant win for
21:04
Speaker 2: the Trump administration when the DC Court of Appeals, in
21:07
Speaker 2: a two to one vote, ruled that the administration can
21:11
Speaker 2: cut billions of dollars in foreign assistance funds that were
21:15
Speaker 2: approved by Congress for this year. I've been talking to
21:18
Speaker 2: Professor Harold Krant of the Chicago Kent College of Law.
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Speaker 2: How big a win is this for the Trump administration.
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Speaker 4: So I think this is a huge win on several
21:27
Speaker 4: different grounds for the Trump administration. And I think that
21:30
Speaker 4: the long term impact of decision really rests upon which
21:34
Speaker 4: of two possible rationales the DC Court of Appeals used.
21:39
Speaker 4: And in this case is a question of releasing one
21:41
Speaker 4: hundreds of millions of dollars that the Congress has already
21:44
Speaker 4: appropriated for foreign aid. President decided not to spend it,
21:49
Speaker 4: and so would be recipients of the foreign aid sued,
21:53
Speaker 4: arguing that they have standing because they're injured because they
21:56
Speaker 4: didn't receive the aid, and that the government acted ultra
21:59
Speaker 4: virusly violation of separation of powers by refusing to spend
22:03
Speaker 4: the moneys as directed by Congress. So the District Court
22:07
Speaker 4: agreed with them and ordered the money to be dispersed
22:11
Speaker 4: and said that Congress was clear the President has no
22:14
Speaker 4: independent of poundment authority these acting and violation and the
22:17
Speaker 4: empowerment control Act. Therefore, the district court judge directed the
22:22
Speaker 4: administration to spend the money, and the two to one
22:25
Speaker 4: decision the court overturned that, but again on two different rationales.
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Speaker 4: The first rationale, which I consider to be the broad
22:32
Speaker 4: one and more frightening, is that the court said that
22:36
Speaker 4: if you only are arguing that the president violates the statute,
22:41
Speaker 4: you don't have a cause of action. There is no
22:43
Speaker 4: power for anybody who's injured by direct presidential action based
22:48
Speaker 4: upon violation of statute that can be brought in the
22:51
Speaker 4: federal courts. This is an astounding decision of immense significance
22:56
Speaker 4: because the argument is whether the president just stonewalls violates
23:01
Speaker 4: a statute, ignores the statute, et cetera, et cetera, that
23:04
Speaker 4: no one can sue to challenge that because the president
23:08
Speaker 4: is immune from suit. So to me, that is a
23:12
Speaker 4: very consequential, incredibly broad understanding of precedent and will be
23:17
Speaker 4: very deleterious in terms of establishing constraints on presidential authority.
23:23
Speaker 4: The majority also use the second rational that's much more
23:26
Speaker 4: narrow and I think has some plausibility to it. There
23:30
Speaker 4: the court said that Congress, in creating the Empowerment Control
23:34
Speaker 4: Act established the very sensitive procedure by which the Controller General,
23:40
Speaker 4: an agent of Congress, can decide to sue the President
23:45
Speaker 4: for violation of the directions from Congress. In those procedures
23:50
Speaker 4: involved correspondence between the Controller General and members of Congress
23:55
Speaker 4: some time to study the issue prior to filing suit.
23:59
Speaker 4: And so the Court said that there is an implicit
24:02
Speaker 4: preclusion of review, that Congress wanted these kinds of empowerment
24:06
Speaker 4: controversies to be adjudicated only by the Controller General after
24:11
Speaker 4: consultation with Congress, not by private third parties. The Court
24:16
Speaker 4: has held in comparable context that there is an implicit
24:19
Speaker 4: preclusion of review. I think the issue may be closer,
24:22
Speaker 4: but certainly my point is that this would have a
24:25
Speaker 4: much more narrow impact upon future cases. This idea of
24:29
Speaker 4: implicit preclusion review only arises when there is a kind
24:33
Speaker 4: of alternative review mechanism specified by Congress. In most of
24:37
Speaker 4: these other cases we have, the federal employee cases, the
24:40
Speaker 4: grant cases, there is no implicit alternative procedure, at least arguably,
24:46
Speaker 4: and so there would not be as much of an
24:48
Speaker 4: impact upon future litigation. But this first rationale forwarded by
24:52
Speaker 4: the Court is astonishing. Again and they've said, as shocking
24:56
Speaker 4: as it may be, that no one can sue for
24:59
Speaker 4: statutory of violation by the president, that the president's simply
25:03
Speaker 4: immune from that suit because the APA Administrative Procedure Act
25:06
Speaker 4: doesn't waive his his immunity and there's no other cause
25:09
Speaker 4: of action available to make sure that the president follows statutes.
25:14
Speaker 4: I read presidents differently, and I think we would be
25:18
Speaker 4: not a very happy place if we said that the
25:21
Speaker 4: president is immune from satutory violations, because, after all, that's
25:24
Speaker 4: one of the basic assumptions of our entire separation of powers,
25:28
Speaker 4: is that the president must comply with statutes, and so
25:32
Speaker 4: this decision would intentive immunize the president from suits not
25:37
Speaker 4: only about releasing foreign aid as in this case that
25:40
Speaker 4: you mentioned, but in so many other contexts as well.
25:44
Speaker 4: You discharging employees, counceling grants, et cetera, et cetera. If
25:49
Speaker 4: you could sue a subordinate executive granch official, that would
25:53
Speaker 4: enable the plaintiffs to get into court. But according to
25:56
Speaker 4: the DC Circuit handle in this case, there could be
25:59
Speaker 4: no direct claim against the president in this case himself.
26:03
Speaker 2: So, as you mentioned, there was a two to one
26:05
Speaker 2: decision with judges appointed by Donald Trump and George H. W.
26:10
Speaker 2: Bush in the majority and a Biden appointee dissenting. If
26:16
Speaker 2: the challengers ask the DC Circuit, the entire DC Circuit
26:21
Speaker 2: to reconsider the decision, judges appointed by Democrats hold the
26:25
Speaker 2: majority there. I mean, it's sad to look at this,
26:28
Speaker 2: as you know, democratic appointed judges versus Republican appointed judges.
26:32
Speaker 2: But that's the way it seems to be breaking down.
26:36
Speaker 4: Yeah, And in this case, I just find one aspect
26:39
Speaker 4: of the majority's decision so frightening and so destructive of
26:43
Speaker 4: our constitutional order. I'm sure that the entire court that
26:46
Speaker 4: took up this case would at least narrow the scope
26:50
Speaker 4: of the majority's decision. And again, going back to the
26:54
Speaker 4: case we discussed with respect to the standing order of
26:57
Speaker 4: the District of Maryland, they're at least a Trump appointee,
27:01
Speaker 4: I think, will have the independence of mind seemingly so
27:04
Speaker 4: far to say no, the Justice Department has gone too far.
27:08
Speaker 4: And I think that's healthy. It's healthy to have sometimes
27:12
Speaker 4: Biden judges going against Biden or against democratic sort of
27:17
Speaker 4: positions and publican judges doing the same. So we'll have
27:21
Speaker 4: to see what happens and plays out. If the full
27:24
Speaker 4: Court takes this case as a whole and that remains
27:28
Speaker 4: to be seen.
27:28
Speaker 2: Thanks so much, Hall. That's Professor Harold Krent of the
27:31
Speaker 2: Chicago Kent College of Law. Turning to other legal news,
27:35
Speaker 2: a foreign adversary targeted sealed documents in espionage and other
27:40
Speaker 2: sensitive cases in a breach of the federal judiciary's case
27:45
Speaker 2: management system. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline,
27:50
Speaker 2: what do we know about this hack?
27:52
Speaker 5: So what we know right now is that at some
27:55
Speaker 5: point over the summer, judiciary officials started noticing increased thattvity
28:00
Speaker 5: by folks who had apparently breached the case management system
28:05
Speaker 5: and had been sitting in there for a while. Their
28:07
Speaker 5: understanding is that they had used past vulnerabilities that existed
28:13
Speaker 5: within the system to then go through and start grabbing
28:18
Speaker 5: information about cases. In those cases were ones that were
28:22
Speaker 5: under sealed, they were past cases, they were current cases,
28:26
Speaker 5: and there were cases that hadn't been filed yet as well.
28:30
Speaker 5: So you know, they had been going through and grabbing
28:33
Speaker 5: this information that wasn't meant to be made public.
28:36
Speaker 2: Do you know what kind of information they were looking
28:39
Speaker 2: for or they got access to?
28:41
Speaker 5: So one of my sources says that they had targeted
28:44
Speaker 5: cases that were related to espionage and other national security matters.
28:49
Speaker 5: There were some cases that were fraud cases, some are
28:52
Speaker 5: money laundering, and some others were related to agents of
28:56
Speaker 5: foreign government. So it's the sort of cases that you
28:59
Speaker 5: would act a foreign adversary would have been to fit
29:02
Speaker 5: someone from their country or an agent of their country,
29:06
Speaker 5: or facing scrutiny or investigation within a federal system. That
29:10
Speaker 5: is something another government would want to know about.
29:13
Speaker 2: Have they been identified as Russian hackers?
29:16
Speaker 5: The New York Times has reported that it is Russian
29:18
Speaker 5: hackers that are behind it. I believe Trump referenced it
29:22
Speaker 5: in a press office as well as response to a questions, saying,
29:25
Speaker 5: you know, it's no surprise that's the sort of thing
29:27
Speaker 5: that Russia does, and you know it's something that could
29:29
Speaker 5: potentially come up with the summit with Vladimir Putin. But
29:34
Speaker 5: you know, obviously they have other things they want to
29:36
Speaker 5: talk about. But Russia has always been known as a
29:38
Speaker 5: major foreign adversary within the cyber space.
29:41
Speaker 2: The judicial system noticed this first in July. Why didn't
29:46
Speaker 2: they do anything about it?
29:47
Speaker 5: So to even go further back in twenty twenty, there
29:50
Speaker 5: had been a breach of the Federal judiciary s CAPE
29:53
Speaker 5: management system, which is the same system that was breached
29:56
Speaker 5: within this more recent activity. So there were vulnerable within
30:00
Speaker 5: that system. Courts were encouraged to take precautions that would
30:05
Speaker 5: allow sensitive documents to be safeguarded and not access by
30:09
Speaker 5: anyone else who was accessing that system like these foreign hackers.
30:14
Speaker 5: But years later, it turns out that those same vulnerabilities
30:17
Speaker 5: were never fully addressed, and it was similar weaknesses within
30:22
Speaker 5: the case management system that we're exploited this time again.
30:26
Speaker 5: So we don't know why these issues weren't resolved, and
30:30
Speaker 5: we're expecting there's going to be future briefings about this issue,
30:33
Speaker 5: and the Federal Judiciary typically does the press conference with
30:36
Speaker 5: reporters in September, so we're hoping we'll learn more information
30:41
Speaker 5: about it then as well.
30:42
Speaker 2: Is the real worry about witnesses being identified or about
30:47
Speaker 2: cases being derailed by this?
30:51
Speaker 5: You know, those are all possibilities here. The information that's
30:54
Speaker 5: under seal attends to be pretty sensitive information, right, because
30:58
Speaker 5: it's not anything that you want to be made public.
31:01
Speaker 5: You wouldn't want the name of a confidential informant made public.
31:04
Speaker 5: You wouldn't want details about how an investigation originated, any
31:09
Speaker 5: tips involving you know, sources that federal prosecutors are federal
31:14
Speaker 5: agents who are investigating these issues that then we're resulting
31:17
Speaker 5: in charges. You know, any of that sort of sensitive
31:20
Speaker 5: information being made public. So you know, there's a wide
31:23
Speaker 5: range of concerns out there for why it's important for
31:26
Speaker 5: this information to stop the accessed by outside entities.
31:31
Speaker 2: Does the judiciary have one system that covers all the
31:36
Speaker 2: federal courts or are they separate systems.
31:39
Speaker 5: My understanding is they are separate. The cm ECS is
31:44
Speaker 5: what is often called as the case management system that
31:47
Speaker 5: the judiciary uses internally. That's the one that lawyers when
31:52
Speaker 5: they go in to make a filing, that's what they
31:53
Speaker 5: log it too, and they upload whatever document they have.
31:57
Speaker 5: And then CACER is sort of the public facing side
32:00
Speaker 5: of it, and that's where you or I were trying
32:02
Speaker 5: to figure out, Okay, so and so got charged in court.
32:05
Speaker 5: Let me pull up that court document and read it.
32:07
Speaker 5: So there are those two aspects of it. The federal
32:10
Speaker 5: judiciary generally is a very decentralized place. Each court sort
32:17
Speaker 5: of does its own thing, but there is a push
32:21
Speaker 5: right now to modernize the case management system is just
32:25
Speaker 5: taking them quite a bit to do it. It's not
32:28
Speaker 5: an easy fix for them to be able to go
32:31
Speaker 5: through and revamp this saying that exists in every federal
32:34
Speaker 5: district and appeals court within the country.
32:38
Speaker 2: And also, I mean, is any system not vulnerable to
32:43
Speaker 2: cyber attacks these dates.
32:45
Speaker 5: That's absolutely true. If you ever hear a companies say
32:48
Speaker 5: that they have something that is unhackable, that is sort
32:51
Speaker 5: of just a dare to a hacker to try to
32:53
Speaker 5: get it.
32:54
Speaker 2: So and I understand that instead of technical fixes, some
32:57
Speaker 2: of the courts are just are going to ask let
33:00
Speaker 2: these sensitive documents be submitted by paper like the old days.
33:05
Speaker 5: Right, Yeah, that's something that's been in place almost since
33:08
Speaker 5: twenty twenty one now for some courts. They've been asking
33:12
Speaker 5: attorneys saying, hey, if you have a key style that
33:16
Speaker 5: really has been designated as highly sensitive it really cannot
33:20
Speaker 5: be made public, just come by the court and hand
33:23
Speaker 5: it over to us on a piece of paper, and
33:25
Speaker 5: that way we can mitigate any possibility of someone else
33:29
Speaker 5: being able to access this. And you know, our understanding
33:33
Speaker 5: is this could be temporary if it's found that vulnerabilities
33:39
Speaker 5: can't be fixed within the system. Or that it's going
33:43
Speaker 5: to take a while to get at the root cause here,
33:45
Speaker 5: you know, there's always a possibility that it could happen
33:48
Speaker 5: even longer. And my understanding is that for some courts
33:51
Speaker 5: it has been happening since twenty twenty that they've been asking,
33:54
Speaker 5: you know, federal prosecutors or others dealing with these filed
33:59
Speaker 5: documents to go hand them over in person.
34:02
Speaker 2: Thanks so much for joining me, Jacqueline. That's Bloomberg Law
34:05
Speaker 2: reporter Jacqueline Thompson, and that's it for this edition of
34:09
Speaker 2: the Bloomberg Law Show. Remember you can always get the
34:12
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