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SCOTUS Deadlocked & DOJ Pursues Trump Foes · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: The Supreme Court deadlocked four to four today in a
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Speaker 2: major case over the separation of religion and government, thwarting
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Speaker 2: an effort to create the nation's first faith based charter
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Speaker 2: school in Oklahoma. The tie was the result of Justice
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Speaker 2: Amy Coney Barrett's recusal in the case. The Supreme Court's
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Speaker 2: one sentence order didn't reveal which justices were on which
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Speaker 2: side of the divide, but during the oral arguments it
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Speaker 2: seemed apparent that four conservative justices were likely to side
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Speaker 2: with the charter school and the three liberal justices were
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Speaker 2: likely to side with Oklahoma, leaving Chief Justice John Roberts
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Speaker 2: as the key vote. And the Chief distinguished this case
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Speaker 2: from past Supreme Court decisions backing the use of public
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Speaker 2: money for religious schools.
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Speaker 3: Trinity luther and Espinoza Carson, those involved fairly discreete state involvement.
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Speaker 3: In Trinity Lutheran, they're going to pave the or you know,
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Speaker 3: put woodchips on the playground. In Espinosa, it was a
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Speaker 3: tuition credit. In Carson again, tax credits. I mean, this
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Speaker 3: does strike me as a much more comprehensive involvement.
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Speaker 2: The split means the Oklahoma Supreme Court ruling that rejected
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Speaker 2: the creation of Saint Isidore of Seville Catholic Virtual School
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Speaker 2: remains in place, and it leaves open the question of
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Speaker 2: whether states with taxpayer funded charter school programs are constitutionally
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Speaker 2: required to incorporate religious institutions. Joining me is religious liberty
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Speaker 2: expert Stephanie Barklay, a professor at Georgetown Law and faculty
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Speaker 2: co director at the Georgetown Center for the Constitution. How
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Speaker 2: important is this case? What would the consequences have been
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Speaker 2: in if the court had allowed the nation's first faith
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Speaker 2: based charter school.
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Speaker 4: So there's really two questions there. The one question is
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Speaker 4: if the court had ruled in favor of the faith
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Speaker 4: based charter school, how important of a decision would it
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Speaker 4: have been? And that would have been a landmark case,
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Speaker 4: that would have been the first time that we had
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Speaker 4: a face based charter school and would have had some
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Speaker 4: significant implications, probably not just for faith based schools and
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Speaker 4: charter schools, but potentially in other states as well. Now
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Speaker 4: there's the second question, which is, Okay, well, how significant
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Speaker 4: is the court's decision given that it's just, you know,
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Speaker 4: a very brief order without an opinion for for split
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Speaker 4: affirming the lower court decision. And at that point the
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Speaker 4: answer is, as a matter of precedent, that precedent is
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Speaker 4: not particularly important. It's not going to tell us you
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Speaker 4: know much about anything besides the fact that they're affirming
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Speaker 4: this case. There weren't five votes to reverse the Supreme
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Speaker 4: Court in Oklahoma, and in that way, it's going to
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Speaker 4: be of limited presidential effect.
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Speaker 2: Do the arguments from each side here reflect or involve
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Speaker 2: the tensions between the first amendments to religion clauses?
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Speaker 4: I don't think there is a tension between the two
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Speaker 4: religion clauses, and the Supreme Court emphasize that in its
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Speaker 4: recent case in Kennedy versus Birmerton School District. But largely
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Speaker 4: those clauses work together in a mutually reinforcing way. But
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Speaker 4: this case does highlight the way in which you could
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Speaker 4: get a different outcome under either of those clauses, depending
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Speaker 4: on whether we're dealing with a private school or a
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Speaker 4: government school. Because if it's a government school, then it
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Speaker 4: is pretty clear that government doesn't get to run religious
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Speaker 4: programs where it's preferring one type of denomination over another,
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Speaker 4: or setting out religious liturgy and things like that would
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Speaker 4: be prohibited under the approach to the establishment clause. The
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Speaker 4: Court has been taking post Kennedy where it looks at
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Speaker 4: the six historical hallmarks of an established religion. Now, if
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Speaker 4: it's a private school, then the free exercise clause is
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Speaker 4: the relevant focus. Then the question is can the government
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Speaker 4: exclude the private school? And the trajection of cases that
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Speaker 4: it has had in Trindi, Lutheran, Espinoza, and Carson makes
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Speaker 4: pretty clear that the Court taks the free exercise clause
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Speaker 4: for hibbits governments from excluding religiouschools just on that basis.
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Speaker 4: So it is a case that highlights for an outcomes
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Speaker 4: depending on the government versus private nature of the entity.
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Speaker 2: As you mentioned, we don't know how the justices voted.
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Speaker 2: The arguments suggested perhaps that the Chief Justice was the
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Speaker 2: pivotal vote who might have gone with the three liberals.
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Speaker 4: I think that that's probably the most likely outcome. That
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Speaker 4: you had the Chief Justice, Sonoyer, Kagan, and Jackson that
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Speaker 4: do not feel comfortable overruling the Oklahoma Supreme Court, and
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Speaker 4: then you had the other four justices, Justice Thomas, Alito, Gorsich,
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Speaker 4: and Kavanaugh. It probably would have ruled to overrule the
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Speaker 4: Oklahoma Supreme Court, and then of course Justice spirit is recusing.
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Speaker 4: So if I had to guess, then of course we
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Speaker 4: don't know. But if I had to guess, I think
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Speaker 4: that's what I would speculate that the vote likely would
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Speaker 4: have been. And of course, because they only got to
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Speaker 4: four four, that means it's an automatic affirmance of the
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Speaker 4: previous judgment.
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Speaker 2: The four to four tie was a product of Justice
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Speaker 2: amy Cony Barrett recusing herself. So since it's not a
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Speaker 2: nationwide precedent, is it likely that proponents of religious charter
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Speaker 2: schools will simply try again to create a school and
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Speaker 2: in a case where Justice Barrett can sit on the case.
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Speaker 4: So I think that that is certainly not for close
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Speaker 4: by the Court's opinion in this case, and a possibility
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Speaker 4: at some point in the future. I think the most
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Speaker 4: likely next case that you will see in the school
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Speaker 4: choice movement is Saint Dominic Academy versus Macon, which would
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Speaker 4: be coming out of Maine. This is a Beckett case.
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Speaker 4: It's possible other cases could too, but this is one
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Speaker 4: that is already in the court system, and it is
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Speaker 4: essentially Carson two point zero. So the same government that
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Speaker 4: the Supreme Court ruled against and Carves and revised their
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Speaker 4: laws when the case was sent back down to try
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Speaker 4: and find other creative ways to keep faith based schools
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Speaker 4: out of what is not a charter school system, but
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Speaker 4: it's just a traditional sort of voucher based school choice system.
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Speaker 4: And there are faith based schools that are challenging that
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Speaker 4: right now, and that's making its way through the court system.
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Speaker 4: And in oral argument in Saint Isidor, the justices distinguished
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Speaker 4: the program in Maine, which has always included private schools
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Speaker 4: and operates more like a traditional tuition voucher program from
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Speaker 4: the program in Oklahoma creating public charter schools, where a
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Speaker 4: lot of the dispute was over difficult questions related to
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Speaker 4: whether charter schools are in fact private or government schools,
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Speaker 4: And that sort of sticky issue just is not present
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Speaker 4: in the same way in the same dominant case. So
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Speaker 4: I think we're the court to take another school choice
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Speaker 4: sort of case. I think that's a more likely next step.
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Speaker 4: There are no cases right now percolating that I'm aware
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Speaker 4: of where there's another faith based charter school that has
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Speaker 4: been approved or requested to be created and been denied,
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Speaker 4: and that they're doing over that right now.
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Speaker 2: Has the Supreme Court in recent years expanded religious liberty
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Speaker 2: rights over other rights?
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Speaker 4: I don't think that I would say they've expanded religious
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Speaker 4: liberty rights over other rights, but they have certainly given
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Speaker 4: a lot of attention to and been solicitous towards religious claims.
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Speaker 4: And although there are certainly religious claimants that have been
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Speaker 4: before the courts that didn't win their case, and this
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Speaker 4: is another one, so I think I think this is
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Speaker 4: a court that takes balanced and cautious approaches while still
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Speaker 4: being sympathetic towards religious liberty claims and wanting to ensure
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Speaker 4: that it's providing for best protection under our First Amendments.
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Speaker 2: We're waiting for two more decisions from the Court in
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Speaker 2: religion cases. Tell us about those.
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Speaker 4: One is a case called Mafood and that is another
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Speaker 4: case in the educational context coming out of Maryland. And
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Speaker 4: this is a case where this school district has instituted
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Speaker 4: a policy where books are being read to children down
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Speaker 4: to elementary school and preschool that deal with issues related
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Speaker 4: to sexuality, gender identity. And there are parents who aren't
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Speaker 4: objecting to those books being read broadly, but would like
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Speaker 4: to be able to opt their children out in the
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Speaker 4: school in that case has said that they are not
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Speaker 4: allowed to opt their children out. Their only option is
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Speaker 4: to drop out of school altogether if they don't like
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Speaker 4: that policy. So the Supreme Court has heard oral argument
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Speaker 4: in that case, and it seems likely from oral arguments
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Speaker 4: that they will rule in favor of a religious parents
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Speaker 4: whose Muslim parents, Jewish parents, and Christian parents in a
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Speaker 4: coalition in that case. Another case is the Catholic Charity
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Speaker 4: is case that the Court heard before that that is
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Speaker 4: a case where there is a question of whether a
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Speaker 4: Catholic constitution can qualify for a tax benefit in the state.
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Speaker 4: The decision from the state Supreme Court had said that
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Speaker 4: if the Catholic groups were engaging in more typical religious behavior,
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Speaker 4: and we're organized in a more typical way, and we're
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Speaker 4: doing things like proselytizing to other individuals as part of
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Speaker 4: their ministry, then they would qualify for the tax benefits.
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Speaker 4: But because this Catholic charity does not proselytize and that's
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Speaker 4: not part of their mission. They would serve people of
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Speaker 4: their religious groups or not all alike, and they don't
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Speaker 4: try and convert people to their theology. Because the Catholic
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Speaker 4: Ministry doesn't do that on that basis, they don't qualify
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Speaker 4: for the tax benefit. And that was another case where
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Speaker 4: the Court seems quite skeptical of the government action. Justice
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Speaker 4: Kagan in that case even asked like, isn't it pretty
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Speaker 4: clear is that government doesn't get to tell people what
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Speaker 4: ordinary religious practices and which practices are approved and which
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Speaker 4: are not. So I mean, it's even impossible in that
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Speaker 4: case the government might be facing unanimous defeat. Certainly something
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Speaker 4: is likely that they could get eight one or seven
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Speaker 4: two votes in that case.
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Speaker 2: In today's Oklahoma case, were you surprised that there weren't
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Speaker 2: five votes for the religious charter school.
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Speaker 4: I think it's unfortunate that there weren't five votes. I
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Speaker 4: think it's possible that the Chief was concerned about lack
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Speaker 4: of percolation. This is the first case of its kind.
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Speaker 4: There aren't others cases that have grappled with this yet,
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Speaker 4: so hard to read the tea leaves about exactly what
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Speaker 4: was the worry for him. But I think it's promising
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Speaker 4: that this court doesn't have an opinion from the chief
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Speaker 4: sort of taking it out in a way that suggests
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Speaker 4: that this would be a permanent position. But leaving the
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Speaker 4: door open to future challengers and future cases.
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Speaker 2: So, then do you think that states that fund charter
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Speaker 2: schools should be required to fund religious charter schools.
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Speaker 4: I think that if a state is operating such that
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Speaker 4: they're using the label of like a government school, that
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Speaker 4: they're really treating it like a voucher, then I think
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Speaker 4: probably the functional analysis matters more than the labels do.
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Speaker 4: But if the government is really operating charter schools like
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Speaker 4: other government schools, then I think government should be entitled
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Speaker 4: to make choices about running secular government schools. So it
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Speaker 4: really just the devils in the details of how is
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Speaker 4: that particular government operating at school system, how much oversight
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Speaker 4: is there being even handed in the way it's approaching
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Speaker 4: that overside with the different types of churtis schools and
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Speaker 4: public schools, those are all going to be questions that
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Speaker 4: will be certainly relevant to the court should a case
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Speaker 4: like this arrive.
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Speaker 2: Again, thanks so much for joining me today. That's Professor
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Speaker 2: Stephanie Barklay of Georgetown Law coming up next on the
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Speaker 2: Bloomberg Law Show. The head of the Justice Department's Weaponization
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Speaker 2: Working Group says he'll name people who the Department was
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Speaker 2: unable to charge in order to shame them. You're listening
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Speaker 2: to Bloomberg. The Trump administration seems to be ratcheting up
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Speaker 2: its use of the legal system to target the president's
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Speaker 2: perceived enemies, including launching criminal investigations into New York Attorney
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Speaker 2: General Letitia James and former New York Governor Andrew Cuomo.
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Speaker 2: The Justice Department is also departing from its long held
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Speaker 2: policy by commenting publicly on cases that haven't been charged
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Speaker 2: yet and going one step further, promising to shame a
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Speaker 2: person publicly even if there's not enough evidence to charge them.
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Speaker 2: Here's Ed Martin, the new head of the DOJ's Weaponization
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Speaker 2: Working Group.
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Speaker 1: There are some really bad actors, some people that did
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Speaker 1: some really bad things to the American people, and if
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Speaker 1: they can be charged, will charge them. But if they
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Speaker 1: can't be charged, we will name them, and we will
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Speaker 1: name them. And in a culture that respects shame, they
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Speaker 1: should be people that are shamed. And that's a fact.
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Speaker 1: That's the way things work.
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Speaker 2: My guest is Barbara McQuaid, a professor at the University
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Speaker 2: of Michigan Law School and the former US Attorney for
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Speaker 2: the Eastern District of Michigan. Barbara. Attorney General Pam Bondi
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Speaker 2: has created this Weaponization Working Group that seems openly to
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Speaker 2: be designed to go after those that Trump claims weaponize
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Speaker 2: the legal system against him. Can you explain where they're
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Speaker 2: coming from here?
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Speaker 5: Well, it's difficult to know where they're coming from because
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Speaker 5: so different from the way we have thought about the
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Speaker 5: Department of Justice, at least since the Watergate era, which
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Speaker 5: was fifty years ago.
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Speaker 6: Now.
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Speaker 5: I think one of the things that's most troubling to
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Speaker 5: me is this memo that Attorney General Pam Bondi issued
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Speaker 5: on day one creating a Weaponization Working Group. It takes
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Speaker 5: the position that the last administration abused its power of
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Speaker 5: bringing criminal prosecution and said that she was going to
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Speaker 5: work to hold those people accountable, and then it names
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Speaker 5: by name people like Special Council Jack Smith and New
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Speaker 5: York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg.
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Speaker 5: Of course, these are all people who investigated Donald Trump
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Speaker 5: in the past, and so I think this is at
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Speaker 5: first a very significant piece of disinformation or propaganda to
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Speaker 5: suggests that they did something wrong, and then to suggest
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Speaker 5: that by turning the tables on them and going after them.
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Speaker 5: All she's doing is evening the score and holding them
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Speaker 5: accountable for their misconduct. It is credible distortion of the
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Speaker 5: facts and the history and the traditions of the Justice Department,
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Speaker 5: which by policy neither confirms nor denies even the existence
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Speaker 5: of an investigation. So the idea that we're going to
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Speaker 5: go after these people and look at them as opposed
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Speaker 5: to saying, you know, we look at conduct when it
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Speaker 5: appears to violate the law, in my view, this itself
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Speaker 5: is what it means to weaponize the Justice Department.
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Speaker 2: Ed Martin, the former interim DCUs attorney who has a
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Speaker 2: new role now as head of this weaponization working group,
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Speaker 2: made some remarkable statements that if they can't be charged,
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Speaker 2: we'll name them. Is that ethical and does that comport
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Speaker 2: with Justice Department policy?
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Speaker 6: No?
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Speaker 5: So, you know, the Ed Martin story is in some
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Speaker 5: ways a really bad story. There's parts of history that
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Speaker 5: are a good story. I think because Donald Trump, of
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Speaker 5: course put him in place as the interim UIs Attorney
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Speaker 5: in Washington, d C. But it appeared he was not
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Speaker 5: going to get the votes in the sense even by
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Speaker 5: Senate Republicans, and so his nomination was withdrawn and he
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Speaker 5: was moved over to be the parton attorney and to
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Speaker 5: head this weaponization working group. So the good nugget there,
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Speaker 5: I think is that there is a redline for Congress
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Speaker 5: that the Senate is not going to allow somebody who
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Speaker 5: engages in political activity in the guise of a prosecutor
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Speaker 5: from holding such an important office. So I think that's
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Speaker 5: good news. But to get to your question, no, this
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Speaker 5: is not at all the way prosecutors are supposed to
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Speaker 5: conduct themselves. The idea that I'm going to investigate and
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Speaker 5: even if I do not find sufficient evidence of the crime,
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Speaker 5: I am going to share whatever I found about you.
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Speaker 5: I'm going to put your name out there because my
15:42
Speaker 5: goal is to bring you shame. So first, it is
15:45
Speaker 5: unethical for a prosecutor to make extra judicial statements that
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Speaker 5: are harmful to a person that are not within the
15:51
Speaker 5: four corners of a charging document. That's problematic. It has
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Speaker 5: also been the Department of Justice policy for the past
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Speaker 5: fifty years, as we said, to neither confirm nor deny
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Speaker 5: the existence of an investigation, so that a person's reputation
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Speaker 5: will not be harmed if no charges ever materialize. And
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Speaker 5: we saw this at lay when Jim Comey was run
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Speaker 5: out of his job as FBI director. You may recall
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Speaker 5: that Donald Trump claimed that the reason that Jim Comey
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Speaker 5: was fired as FBI director was because he received a
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Speaker 5: memo from Rod Rosenstein, who was the Deputy Attorney General
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Speaker 5: at the time, saying that James Comy had violated this
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Speaker 5: principle when he held that press conference castigating Hillary Clinton,
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Speaker 5: even though no charges were brought. He called her extremely careless,
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Speaker 5: and he complained about her publicly, which is inappropriate. Rod
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Speaker 5: Rosenstein said, so many others said so at the time,
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Speaker 5: and it's what cost Jim Comy his job. And now
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Speaker 5: the idea that Ed Martin, in this very prominent role,
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Speaker 5: is going to just use it as a place to
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Speaker 5: do the same even if there's no sufficient evidence to
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Speaker 5: bring charges, is in my view, an abuse of that
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Speaker 5: position of power.
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Speaker 2: So the Justice Department has launched a criminal investigation into
17:06
Speaker 2: New York Attorney General Letitia James, who had secured a
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Speaker 2: four hundred and fifty four million dollar judgment against Trump
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Speaker 2: and the Trump organization. So the criminal investigation is for
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Speaker 2: mortgage fraud, and the head of the FBI has already
17:21
Speaker 2: called this a case of great public importance. So they're
17:25
Speaker 2: going after her for something that has no relation to
17:29
Speaker 2: her case against Trump.
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Speaker 5: You know, in ordinary times, I would say that public
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Speaker 5: officials are not above the law, and that if they
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Speaker 5: have violated the law, they should expect to invite scrutiny
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Speaker 5: and be held accountable. But I think in light of
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Speaker 5: the track record this Trump administration has developed in the
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Speaker 5: past four months with this Weaponization Working Group, especially because
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Speaker 5: it names Letitia James in it, as well as President
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Speaker 5: Trump's statements during the campaign that he would seek retribution
17:56
Speaker 5: cash Buttel, the FBI director, talking about coming after political
17:59
Speaker 5: rival and journalists. All of these things together I think
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Speaker 5: cause us to lose confidence that the Justice Department is
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Speaker 5: acting in good faith. Now we'll see how it pans out.
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Speaker 5: When you bring in a criminal case, you have to
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Speaker 5: have evidence, you have to prove it in a court
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Speaker 5: of law, then the jury has to find guilt beyond.
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Speaker 6: A reasonable doubt.
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Speaker 5: If they've got the evidence, then I don't have a
18:18
Speaker 5: problem with their bringing the case. But I'm really quite
18:21
Speaker 5: skeptical that they coincidentally found a criminal charge against Litis
18:25
Speaker 5: James right after saying they were going to go after her.
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Speaker 5: So it puts the Justice Department. I think in a
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Speaker 5: very dangerous place because it is supposed to be a
18:33
Speaker 5: place that is not guided by partisan politics but by
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Speaker 5: fact in law. And I worry that if they are
18:40
Speaker 5: using it, or even creating the appearance that they are
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Speaker 5: using it as a partisan tool, it will diminish the
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Speaker 5: public reputation of the Department for decades to come.
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Speaker 2: Lititia James said this week, this investigation, to me, is
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Speaker 2: nothing more than retribution. It's baseless. Let's just suppose that
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Speaker 2: it does go to trial. Is there a problem with
18:59
Speaker 2: the jury pool having been influenced by these statements by
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Speaker 2: Trump and others? Also just the damage to her reputation.
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Speaker 5: Yeah, you know. And this is one of the things
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Speaker 5: that again traditionally, the Apartment of Justice is very careful
19:12
Speaker 5: about charging high profile public officials. Requires typically high level approvals,
19:18
Speaker 5: not because anybody is more deserving than anyone else under
19:21
Speaker 5: the law, but because of the reputational harm that will
19:24
Speaker 5: ensue because of their inability to do their jobs, and
19:27
Speaker 5: sometimes the effect it might have on their election or
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Speaker 5: re election, and so caution should be used before raising
19:34
Speaker 5: charges about that. The fact that we know about this
19:37
Speaker 5: investigation is one of the things that so deeply troubles me. Ordinarily,
19:41
Speaker 5: as we've said a couple of times now, prosecutors neither
19:44
Speaker 5: confirm nor tonight, even the existence of an investigation. How
19:47
Speaker 5: do we know that there's this investigation? Will somebody has
19:49
Speaker 5: leaked it? And that alone is problematic. Ordinarily, if you're
19:53
Speaker 5: investigating anyone, especially a prominent person, you do so quietly, secretly,
19:58
Speaker 5: and if you can't make the case go away. It
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Speaker 5: is not the job of the Justice Department to harm
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Speaker 5: the reputations of individuals, especially public figures, and in prior
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Speaker 5: administrations they went to great pains to avoid doing that.
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Speaker 2: And now we have the Justice Department reportedly opening an
20:15
Speaker 2: investigation into Andrew Cuomo, who is currently the top candidate
20:21
Speaker 2: for New York City mayor, apparently following a referral from
20:25
Speaker 2: congressional Republicans who accused him of lying during an investigation
20:30
Speaker 2: of his administration's COVID nineteen response. And this comes just
20:35
Speaker 2: after the Trump Justice Department dropped the charges against Mayor
20:41
Speaker 2: Eric Adams, who will be running against Cuomo. You know,
20:44
Speaker 2: if they both get past the primary. I mean, you
20:46
Speaker 2: talked about prior Justice departments being concerned about the possible
20:50
Speaker 2: effects on elections.
20:52
Speaker 5: So again without knowing the underlying evidence. Maybe there's a
20:56
Speaker 5: case there. We don't know he made statements. Now, of course,
20:58
Speaker 5: the mere fact that you made a statement that might
21:00
Speaker 5: be inconsistent with the testimony of other witnesses is not
21:03
Speaker 5: alone a crime. You have to show that you made
21:06
Speaker 5: a false statement, that you then in there knew the
21:08
Speaker 5: statement was false at the time you were making it,
21:10
Speaker 5: and that it is material to the investigation in some
21:13
Speaker 5: way that it matters. And so I don't know whether
21:16
Speaker 5: his efforts to make himself look better than he was
21:19
Speaker 5: really mattered in the grand scheme of things. But leaving
21:22
Speaker 5: that all aside, the merits of the case, maybe it
21:24
Speaker 5: has merits, maybe it doesn't. Number One, the fact that
21:27
Speaker 5: we know about this case is because two people familiar
21:29
Speaker 5: with the investigation revealed it to the New York Times.
21:32
Speaker 6: So it's a leak.
21:33
Speaker 5: Somebody has leaked the fact that he is under investigation,
21:36
Speaker 5: That alone, I think is suspect. And then the point
21:38
Speaker 5: you raise about contrast this with the treatment of Eric Adams,
21:42
Speaker 5: who had been under indictment in the last administration. It
21:45
Speaker 5: was dismissed by this administration, and according to a judge
21:49
Speaker 5: in exchange for cooperation in Donald Trump's policy agenda, which
21:54
Speaker 5: he called, you know, smacks of a bargain, seems to
21:57
Speaker 5: be an effort to create leverage over Eric Adams, and
22:01
Speaker 5: so you've got that situation. It really leaves the Department
22:04
Speaker 5: in a place of lacking the importance of public trust
22:08
Speaker 5: when it brings its cases. It all just seems too
22:11
Speaker 5: convenient that once again they are targeting a prominent public
22:15
Speaker 5: official whose interests they oppose. It's why the Justice Department
22:20
Speaker 5: works so hard to maintain its reputation for integrity so
22:25
Speaker 5: that when it does go on a limb and charge
22:27
Speaker 5: somebody with a serious crime, the public takes it seriously.
22:31
Speaker 5: In the past, the Justice Department has always enjoyed in
22:34
Speaker 5: courts at least the benefit of the doubt and the
22:37
Speaker 5: presumption of regularity. I think that's going to erode to
22:40
Speaker 5: the detriment of prosecutors and FBI agents in the future,
22:44
Speaker 5: and as a result, to the public safety of the
22:47
Speaker 5: American people, because when a prosecutor or an FBI agent
22:50
Speaker 5: testifies in court, I think jurors are going to be
22:53
Speaker 5: far more skeptical about the accuracy of their statements than
22:56
Speaker 5: they have been in the past.
22:58
Speaker 2: Also, President Trump defended the decision to charge New Jersey
23:02
Speaker 2: Democratic Congresswoman la Monica mcgiver for a scuffle outside an
23:08
Speaker 2: ice facility and said she was out of control.
23:12
Speaker 5: You know, if any other president had done this, there
23:15
Speaker 5: would have been howls of protest from the public, from
23:19
Speaker 5: the media, and rightly so. Because the president is the
23:23
Speaker 5: chief executive of the entire executive branch, anything he says
23:28
Speaker 5: can be seen as an unlawful command from the president
23:32
Speaker 5: to direct people to pursue particular angles in cases. And
23:36
Speaker 5: so as a result, most presidents are very careful to
23:39
Speaker 5: scrupulously avoid commenting on not just pending cases, but investigations,
23:45
Speaker 5: to let their Justice department do their job based on
23:48
Speaker 5: the facts and the laws, and to stay out of
23:50
Speaker 5: it because every time he comments on some rival who
23:55
Speaker 5: finds themselves in the crossairs of the Department of Justice,
23:57
Speaker 5: it is creating the impression that the case is being
24:01
Speaker 5: brought for partisan political reasons, which, according to the Justice
24:05
Speaker 5: departments principles of federal prosecution, is absolutely prohibited. And so
24:10
Speaker 5: I think it's a terrible thing. Maybe he does it
24:13
Speaker 5: out of a place of ignorance, but he's been president
24:15
Speaker 5: long enough now that he really ought to know better.
24:18
Speaker 2: Besides, you know, people winning these cases. Is there anything
24:23
Speaker 2: that can be done about this new weaponization of the
24:27
Speaker 2: Justice Department. I mean, career attorneys are leaving in droves
24:31
Speaker 2: and others are being fired. The public Integrity section has
24:35
Speaker 2: been whittled down to nothing. But is there any solution.
24:39
Speaker 5: I don't know that there's any quick fix, and I
24:42
Speaker 5: am really worried about the long term ramifications to the
24:45
Speaker 5: Department of Justice. Historically, it has been a plum job
24:49
Speaker 5: to be able to work for the Department of Justice.
24:52
Speaker 5: It has an honors program that is very selective and
24:55
Speaker 5: recruits out of law schools. This year, all of the
24:57
Speaker 5: students who agreed to take jobs there got their jobs
25:00
Speaker 5: cut at the very last minute, long after it was
25:03
Speaker 5: possible for them to secure other jobs, even though they
25:05
Speaker 5: would have been highly sought after if they had done so.
25:09
Speaker 5: That kind of pulled the rug out from under me.
25:11
Speaker 5: Kind of behavior I think is going to cause problems
25:14
Speaker 5: in attracting and retaining top talent, which is what we
25:17
Speaker 5: would want with our Justice Department. I think running roughshot
25:20
Speaker 5: over all of these norms is going to take time
25:23
Speaker 5: to repair. I am hopeful that we will get through this,
25:26
Speaker 5: and at some point we will have a new administration
25:28
Speaker 5: that understands how important it is to correct all of
25:32
Speaker 5: these egregious attacks on the Justice Department. But I don't
25:35
Speaker 5: think it's going to be something that gets fixed overnight,
25:38
Speaker 5: because I think once you breach the public trust, it
25:40
Speaker 5: takes a long time to repair it.
25:42
Speaker 2: Thanks so much for joining me, Barbara. That's Professor Barbara
25:45
Speaker 2: McQuaid of the University of Michigan Law School. Coming up,
25:48
Speaker 2: nationwide injunctions, This is Bloomberg. During the oral arguments over
25:55
Speaker 2: President Trump's executive orders to restrict birthright citizenship, the Court's
26:00
Speaker 2: conservatives suggested they want to limit the use of so
26:04
Speaker 2: called nationwide injunctions, but Key Justice's voiced concerns about doing
26:09
Speaker 2: so in a way that would let Trump's plan birthright
26:13
Speaker 2: citizenship restrictions take effect before the High Court can rule
26:17
Speaker 2: on their legality. But in the Supreme Court's decision blocking
26:22
Speaker 2: Trump from sending additional Venezuelans to a Salvador in prison,
26:27
Speaker 2: there are significant language that could provide broad relief from
26:30
Speaker 2: other administration policies. Even if the Justices do limit the
26:35
Speaker 2: use of nationwide injunctions. My guest is Elijah Soohman, a
26:39
Speaker 2: law professor at George Mason University, Will you explain how
26:43
Speaker 2: the use of nationwide injunctions is being questioned?
26:47
Speaker 6: So obviously, the Trump's administration wants the Supreme Court to
26:52
Speaker 6: rules that nationwide injunctions are inherently illegitimate, because, in their view,
26:58
Speaker 6: courts only have jury fiction to issue remedies for the
27:04
Speaker 6: parties actually before the court, as opposed to more universally.
27:10
Speaker 6: There are some conservative Supreme Court justices who in the
27:13
Speaker 6: past have expressed the more sentiments listening to the oral argument.
27:19
Speaker 6: It is unclear to me whether there might be five
27:21
Speaker 6: votes for that proposition, or whether instead the Court might
27:26
Speaker 6: issue some sort of clarifying rules which clarify or perhaps
27:30
Speaker 6: limit nationwide injunctions, but don't get rid of them entiroly.
27:34
Speaker 2: So some of the justices seem to suggest that an
27:38
Speaker 2: alternative would be to have proposed class actions that produce
27:44
Speaker 2: the same result as a nationwide injunction. What do you
27:47
Speaker 2: think of that as an alternative?
27:49
Speaker 6: So it's certainly much better than nothing, But as the
27:52
Speaker 6: world argument brought out, there can be difficulties with class certification.
27:57
Speaker 6: And moreover, if we're taught about so called putative classes,
28:03
Speaker 6: like in the air Key case that the Supreme Court
28:06
Speaker 6: decided I think last Friday. Then a putative class, first,
28:10
Speaker 6: it has the same issues that the administration claims exist
28:14
Speaker 6: with nationwide injunctions, which is that amputative class necessarily includes
28:19
Speaker 6: people who are not parties to litigation, and that a
28:22
Speaker 6: putative class is not the same thing as a real class.
28:25
Speaker 6: So at some point, if you want to get permanent
28:28
Speaker 6: as opposed to temporary release, the court would have to
28:30
Speaker 6: decide whether the putative class can become a real class
28:33
Speaker 6: or not, and that brings back these same issues with certification.
28:37
Speaker 2: The court then, after hearing these oral arguments, the Court
28:41
Speaker 2: then continued the injunction, the temporary injunction that blocked sending
28:46
Speaker 2: Venezuelans to L Salvador. I mean, were they doing the
28:50
Speaker 2: same thing that they discussed not doing in the birthright
28:54
Speaker 2: citizenship case.
28:56
Speaker 6: In a certain sense, they were, because that injunction, which
29:00
Speaker 6: is a temporary one, is for a putative class, and
29:04
Speaker 6: so a class that has not been actually certified and
29:07
Speaker 6: possibly may never be certified depending on how things go.
29:11
Speaker 6: So it was definitely providing relief for non parties, which
29:15
Speaker 6: is exactly the kind of thing that the Trump administration
29:18
Speaker 6: says should not be permissible, and that you know, some
29:22
Speaker 6: Supreme Court justices have said should not be permissible. It's
29:26
Speaker 6: notable that Justice Gorsuch, who has expressed complaints about nationwide
29:30
Speaker 6: adjuncts that pass, seems to have been in the majority
29:33
Speaker 6: in the air P case. Only Thomas and Alito dissented
29:38
Speaker 6: in theory in their shadow doctor case like this, they
29:41
Speaker 6: don't have to announce where every single individual justice stood.
29:45
Speaker 6: But I think I don't know for sure, obviously, but
29:47
Speaker 6: I think if there were other dissenters, we would have
29:50
Speaker 6: seen them.
29:51
Speaker 2: Tell me about the descent written by Alito and that
29:54
Speaker 2: Thomas joined in.
29:55
Speaker 6: So the descent raises a number of points which are
29:59
Speaker 6: not really reallyated to nationwide injunctions or class actions. But
30:03
Speaker 6: one argument that he argues at lengthage if he doesn't
30:07
Speaker 6: think that class certification should be permissible in a case
30:10
Speaker 6: like that, and therefore by implication, you shouldn't have a
30:14
Speaker 6: putative class either.
30:16
Speaker 2: In that decision, there's a language sort of encouraging using
30:21
Speaker 2: putative class actions in these cases.
30:24
Speaker 6: So I don't know that you can really point to
30:26
Speaker 6: specific language, but the very fact that the Court did
30:29
Speaker 6: what it did should be encouraging new advocates of putative
30:33
Speaker 6: classes in that, you know, they allowed the putative class
30:37
Speaker 6: to go forward, and they even did sort of an
30:39
Speaker 6: emergency intervention to enable it to do so. And you know,
30:43
Speaker 6: that's not a conclusive determination, but it's a fairly strong signal.
30:48
Speaker 6: I think that there is a majority in the Supreme
30:50
Speaker 6: Court that is willing to accept putative classes, at least
30:54
Speaker 6: in some situations. So again I emphasize, a putative class
30:58
Speaker 6: is not ultimately the same thing as they do.
31:01
Speaker 2: I wonder why the Supreme Court decided to take the
31:06
Speaker 2: birthright citizenship case, and you know, hear arguments on it
31:11
Speaker 2: when it seems to be one of the cases that
31:15
Speaker 2: proves that if you're ever going to have nationwide injunctions,
31:18
Speaker 2: that would be the case where you would have them,
31:21
Speaker 2: because otherwise there'll be different rules in different parts of
31:25
Speaker 2: the country about whether babies are citizens.
31:29
Speaker 6: So in my case, you're preaching to the converted on that.
31:32
Speaker 6: I think there are two possible theories, perhaps more than two,
31:35
Speaker 6: but two did occur to me as to why the
31:38
Speaker 6: Supreme Court specs the case. Which of them is true?
31:41
Speaker 6: I do not know. One possibility is if you posit
31:44
Speaker 6: that there's a faction that just wants to add nationwide injunctions,
31:49
Speaker 6: then you know, fueling it in a case which is
31:52
Speaker 6: sort of the best case scenario for supporters of those
31:55
Speaker 6: kind of injunctions. That would show like we really mean
31:58
Speaker 6: it when they say there should be no nationwide junction.
32:00
Speaker 6: That's one possibility. The other possibility is you can imagine
32:05
Speaker 6: that this the four justices it takes four to take
32:08
Speaker 6: a case who wanted to take this one did so
32:10
Speaker 6: because they're actually in favor of nationwide injunctions and want
32:14
Speaker 6: to precedent saying that, and this would be a good
32:17
Speaker 6: sort of sympathetic case and wish to do that. So
32:20
Speaker 6: those are two possible theories. Which is true. I do
32:24
Speaker 6: not know if you have inside sources and can tell
32:27
Speaker 6: you which is true, Neil, I would be happy to
32:30
Speaker 6: find out myself.
32:31
Speaker 2: So you already have a federal district judge who cited
32:35
Speaker 2: the language in that May sixteenth ruling to temporarily certify
32:40
Speaker 2: a class of alleged Venezuela and gang members. So once
32:45
Speaker 2: one federal judge does so, others will likely follow.
32:51
Speaker 6: Yeah, So I think it's fairly obvious that if the
32:54
Speaker 6: Supreme Court was willing to essentially bless this kind of
32:57
Speaker 6: arrangement in this case that it can also be done
32:59
Speaker 6: in other cases. I suspect this judge will not be
33:03
Speaker 6: the last to do it, obviously. It's the Supreme Court
33:07
Speaker 6: did not give us a lot of clarity on exactly
33:10
Speaker 6: when putative classes are permitted and when they're not, for
33:13
Speaker 6: how line they're permitted, and so on, and yield that
33:16
Speaker 6: to those issues. They will have to be litigated in
33:19
Speaker 6: future cases in the lower courts and perhaps also in
33:22
Speaker 6: the Supreme Court. But the basic idea of putative classes,
33:26
Speaker 6: it seems like there are seven Supreme Court justices who
33:30
Speaker 6: are okay with it at least in some instances, and
33:32
Speaker 6: lower court judges are not stupid. They can see us.
33:36
Speaker 2: So what's your take on nationwide injunctions?
33:39
Speaker 6: So I agree with what you said earlier, which is
33:41
Speaker 6: that very valuable too in cases like the birthright citizenship
33:45
Speaker 6: case where you have nationwide illegality. The reasons why you know,
33:50
Speaker 6: the government actually illegals do not vary from place to
33:54
Speaker 6: place or from case to case. Their uniform and the
33:57
Speaker 6: rights of many thousands of people may be a stake.
34:00
Speaker 6: It might be difficult or impossible for all when to
34:02
Speaker 6: bring their own individual actions there might be, And so
34:05
Speaker 6: it seemed to me that nationwide illegality requires a nationwide response.
34:09
Speaker 6: At least in some cases, nationwide adjunctions are the appropriate response.
34:14
Speaker 6: I do not agree that sort of the con turn
34:16
Speaker 6: of the other side of lowiela Rose District judged block
34:19
Speaker 6: of policy for the entire country. If he's truly a
34:22
Speaker 6: road and here her reading is really bad, it can
34:25
Speaker 6: be quickly overturned by the health court. Kind of power courts,
34:28
Speaker 6: you have proceeadures for dealing with these kinds of cases
34:32
Speaker 6: and extedited basis.
34:33
Speaker 2: So we will see by July whether the Supreme Court
34:38
Speaker 2: actually makes a move to restrict nationwide injunctions. Thanks so
34:43
Speaker 2: much for joining me. That's Professor Elias Sohman of George
34:46
Speaker 2: Mason University. And that's it for this edition of the
34:49
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34:52
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34:55
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