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Weekend Law: SCOTUS Checks Trump & $1 Billion in Free Legal · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Our March twelfth, my husband, Kilmer was abducted and disappeared
0:14
Speaker 2: by the Trump administration.
0:15
Speaker 3: Kilmer Abrego Garcia was living in Maryland with his wife
0:19
Speaker 3: and three children when immigration authorities arrested him and flew
0:23
Speaker 3: him to prison in El Salvador. Under a twenty nineteen
0:27
Speaker 3: court order, Garcia cannot be deported to his native country
0:31
Speaker 3: of El Salvador because he's likely faced gang violence there.
0:35
Speaker 3: This ould call administration error has destroyed my family's happiness.
0:41
Speaker 3: The Trump administration admits that it made a mistake, but
0:45
Speaker 3: argues it can no longer do anything about it. On Thursday,
0:48
Speaker 3: a unanimous Supreme Court ordered the administration to take steps
0:52
Speaker 3: to bring Garcia back. My guest is Leon Fresco, a
0:56
Speaker 3: partner at Holland and Knight and the former head of
0:58
Speaker 3: the Office of Immigration Litigation in the Obama administration. Leon,
1:03
Speaker 3: the order here was just three paragraphs long. Tell us
1:06
Speaker 3: about it.
1:07
Speaker 4: At the end of the day. What the Supreme Court
1:09
Speaker 4: is saying is there was an agreed administrative error here.
1:14
Speaker 4: So since there was an error, and this person clearly
1:18
Speaker 4: has been now stipulated on all sides as an individual
1:21
Speaker 4: that should not have been removed to El Savador because
1:25
Speaker 4: he had this order called withholding of removal that prevented
1:28
Speaker 4: his removal too, specifically El Salvador, that this person has
1:33
Speaker 4: to be brought back, that that injunction that was issued
1:36
Speaker 4: by the District Court is correct. But the question is
1:39
Speaker 4: what does it mean that the government has to quote
1:42
Speaker 4: unquote facilitate the return as opposed to effectuate the return.
1:48
Speaker 4: And that's really going to be I think a dockdown,
1:52
Speaker 4: drag out issue that's just going to come right back
1:54
Speaker 4: to the Supreme Court.
1:55
Speaker 3: So technically the Supreme Court didn't order his return.
2:01
Speaker 4: This is what is very complicated about this decision is
2:05
Speaker 4: that the Supreme Court basically gave a thankless task to
2:09
Speaker 4: the District Court judge because it said that, yes, the
2:15
Speaker 4: government needs to act to do what it can to
2:19
Speaker 4: bring back mister Abrago Garcia to the United States, but
2:23
Speaker 4: it's said within the proper constitutional limits of the court.
2:29
Speaker 4: Here is the exact line. It says, the District Court
2:32
Speaker 4: should clarify its directive with due regard for the difference
2:35
Speaker 4: oh to the executive branch in the conduct of foreign affairs,
2:40
Speaker 4: and then it says, for its part, the government should
2:42
Speaker 4: be prepared to share what it can concerning the steps
2:46
Speaker 4: it has taken and the prospect of further steps. So
2:50
Speaker 4: it's trying to align itself with the concurrence of Judge Wilkinson's,
2:55
Speaker 4: the conservative judge in the Fourth Circuit saying there is
3:00
Speaker 4: an ability for the government to facilitate the return of
3:04
Speaker 4: mister Abrago Garcia, but what it can't do is issue
3:09
Speaker 4: these sort of global injunctions ordering al Salvador to do anything,
3:15
Speaker 4: or ordering the United States government to order al Salvador
3:19
Speaker 4: to do things. So this is going to be very
3:22
Speaker 4: complicated because unlike a normal deportation case where the government
3:28
Speaker 4: has been able to bring people back when there's a
3:31
Speaker 4: dispute about their custody, here the Trump administration is saying,
3:37
Speaker 4: this person is in Alsavador, end of story. We cannot
3:40
Speaker 4: order President bucel to do anything. And so this is
3:44
Speaker 4: going to be protracted litigation. In mind you that's going
3:46
Speaker 4: to go right back up to the Supreme Court, because
3:49
Speaker 4: you're going to have the district judge say bring them back,
3:52
Speaker 4: and you're going to have the Fourth Circuit say what
3:54
Speaker 4: is said again? And you're going to have the Supreme
3:56
Speaker 4: Court has to deal with Look, is this prison really
4:00
Speaker 4: in the control of the US government or is it
4:03
Speaker 4: something where it's really in the control of Alsavador and
4:07
Speaker 4: the US government can't do anything about it.
4:09
Speaker 3: Despite the complexities, this is a unanimous decision by the
4:14
Speaker 3: Supreme Court in an immigration case.
4:17
Speaker 4: It is a Nino decision, and any nine oh decision
4:20
Speaker 4: in immigration is very, very very surprising. You even have
4:25
Speaker 4: Justice Alito, who almost never rules against the Department of
4:29
Speaker 4: Justice on immigration, now sign out with a concurrence where
4:33
Speaker 4: you have the three justices sort of my yor Kagan
4:35
Speaker 4: and Jackson saying you have to bring this person back.
4:38
Speaker 4: End of story. You've brought people back in the past,
4:41
Speaker 4: bring this person back. And they're sort of anticipating what's
4:46
Speaker 4: going to happen, which is that this case is coming
4:48
Speaker 4: right back to the Supreme Court. I've actually seen already
4:52
Speaker 4: tweet from the Trump administration saying, what do you want
4:55
Speaker 4: us to do? This person is in Alsavador, they belong
4:59
Speaker 4: to alpha it or end of story, we can't do anything.
5:02
Speaker 4: We've won this case.
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Speaker 3: You may be right, because it's already very contentious in
5:08
Speaker 3: a hearing on Friday, the Trump administration lawyer refused to
5:12
Speaker 3: tell the judge what the government is doing to bring
5:15
Speaker 3: Garcia back or even where he is. Judge Paulsenese asked, quote,
5:21
Speaker 3: this is a direct question, where is he an under
5:24
Speaker 3: whose authority? And the answer from Justice Department lawyer Drew
5:28
Speaker 3: Enson was, we are still internally reviewing the Supreme Court's
5:32
Speaker 3: decision and vetting what we can say to this court.
5:35
Speaker 3: So no answer is there.
5:37
Speaker 4: I mean, I'm sure the district court is going to
5:39
Speaker 4: say this person is in the effective control of the
5:42
Speaker 4: US government, because there's no way that El Salvador would
5:47
Speaker 4: refuse to return this person back to the US if
5:51
Speaker 4: the US insisted. But the question is, by the time
5:54
Speaker 4: this case gets back up to the Supreme Court, is
5:57
Speaker 4: the Supreme Court actually going to take the step of
5:59
Speaker 4: saying that this person is really effectively, for all intensive purposes,
6:05
Speaker 4: in US custody or are they going to allow this
6:09
Speaker 4: sort of separation to exist in the legal sphere and say, well,
6:16
Speaker 4: they're in Alsavador, they're in a Savadoran citizen, and they're
6:20
Speaker 4: under the detention of the al Savadoran government. What really
6:24
Speaker 4: can you force the US to do in this situation.
6:27
Speaker 4: You want them to go to war or something to
6:30
Speaker 4: bring this person back. That's not something a court can do.
6:33
Speaker 4: And so this case is long but over.
6:37
Speaker 3: I mean, in the past, the government has brought people
6:40
Speaker 3: back who've been wrongly deported to foreign countries.
6:45
Speaker 4: Yes, this happens dozens of times per year. There's many
6:49
Speaker 4: times not even reported judicial decisions, because what will happen
6:52
Speaker 4: is the appellate courts won't issue us stay in a case,
6:56
Speaker 4: and then by the time the government actually starts briefing
6:59
Speaker 4: the case, they realize the person had been removed and
7:02
Speaker 4: they say, oh, boy, probably we shouldn't have done this,
7:05
Speaker 4: and the person comes back. So that happened all the time.
7:08
Speaker 4: The difference here is twofold. One. You have an administration
7:12
Speaker 4: that for the first time is contesting this that they
7:15
Speaker 4: even have the legal ability to bring someone back. So
7:18
Speaker 4: you've never had that before. You've always had administrations that
7:21
Speaker 4: are amenable to bringing people back. This is the first
7:24
Speaker 4: one that isn't. But then secondly, this is the first
7:28
Speaker 4: time that you have a foreign national literally in the
7:33
Speaker 4: custody of the country to which they were removed. And
7:37
Speaker 4: so that's a whole new set of facts. If that
7:40
Speaker 4: government had some interest in actually having that person in custody,
7:45
Speaker 4: that would be quite the issue. Now, what makes this
7:48
Speaker 4: even a higher level of complexity is this was literally
7:53
Speaker 4: the exact time that the person got released for, which
7:56
Speaker 4: is that they said, if I get supported to Al Salvador,
8:00
Speaker 4: I will be persecuted by the government and said to
8:02
Speaker 4: some terrible confinement facility where I will be tortured and
8:06
Speaker 4: possibly killed. And so this person is literally living the
8:10
Speaker 4: manifestation of the thing that they were given relief for
8:14
Speaker 4: not to happen. So I cannot say how complicated this
8:18
Speaker 4: is now.
8:20
Speaker 3: This decision came two days after another immigration decision, where
8:25
Speaker 3: the court ruled that the administration can keep using the
8:28
Speaker 3: Alien Enemies Act, a wartime law, to deport alleged Venezuelan
8:33
Speaker 3: gang members, but that the administration has to give the
8:37
Speaker 3: detainees notice and a chance to be heard.
8:40
Speaker 4: So the Supreme Court said that the government can use
8:45
Speaker 4: the Alien Enemies Act at the moment to try to
8:47
Speaker 4: begin a process of defortation, but that people have a
8:52
Speaker 4: right to challenge in habeas a whether you can actually
8:57
Speaker 4: own the merits use the Alien Enemies Act. So yes,
9:01
Speaker 4: they can begin this process, but can the Alien enemies
9:04
Speaker 4: actually be used. But what I mean by that is
9:07
Speaker 4: usually the Alien Enemies Act is invoked in the time
9:09
Speaker 4: of war World War one, World War two, et cetera.
9:13
Speaker 4: This is the first time it's being invoked for the
9:15
Speaker 4: principle that there is a group of people who've committed
9:19
Speaker 4: some sort of informal incursion in the United States for
9:23
Speaker 4: the purposes of destabilizing the country, which is this Venezuelan
9:27
Speaker 4: gang trend that raduas. So that's one analysis. Can it
9:31
Speaker 4: be used for an informal gang as opposed to during
9:34
Speaker 4: an actual declared war? They want the lower courts to
9:38
Speaker 4: hear those arguments and flesh out from logic here before
9:42
Speaker 4: it gets to the Supreme Court. That's number one. But
9:45
Speaker 4: then number two is, even if it can, does the
9:50
Speaker 4: person have the right to say, yeah, but I'm not
9:52
Speaker 4: a member of this gang. I'm from Cleveland, for instance,
9:55
Speaker 4: Why are you deporting me to El Savador or Venezuela
9:58
Speaker 4: or anywhere else? Even I'm a Venezuelan hairdresser that's never
10:03
Speaker 4: set foot in a gang, you know. And so now
10:06
Speaker 4: there is an established Supreme Court decision that says, yes,
10:09
Speaker 4: in habeas you get to make this argument, and also.
10:12
Speaker 3: The detainees have to file the havieas and the jurisdiction
10:15
Speaker 3: they're being held in, which is happening already.
10:18
Speaker 4: So the ACLU went and filed habeases in New York
10:22
Speaker 4: and in the southern districts of Texas, and immediately there
10:26
Speaker 4: were two stays of deportation issued, both blocking the removal
10:30
Speaker 4: and both under the ground that the plaintifs were likely
10:34
Speaker 4: to succeed in their habeases, saying that the alien enemies
10:38
Speaker 4: that could not be used to accomplish the type of
10:42
Speaker 4: deportation that the government wanted the normal immigration court removal process.
10:47
Speaker 4: This is going to be a very interesting process that
10:51
Speaker 4: I think will also get to the Supreme Court about.
10:55
Speaker 4: There's sort of two layers of briefing. There's one are
10:58
Speaker 4: you subject to the alien enemy's acts as it were?
11:02
Speaker 4: Meaning are you actually one of these trend to a
11:04
Speaker 4: Agua gang members? But there's a second, which is should
11:09
Speaker 4: this thing even apply? And should you actually just go
11:12
Speaker 4: to immigration court and be able to make any defense
11:15
Speaker 4: that you want and not be subject to this special
11:18
Speaker 4: type of hearing. So there's both kinds of analyzes, and
11:22
Speaker 4: the courts may need to do both, and we'll see
11:25
Speaker 4: what ultimately works its way up to the Supreme Court.
11:28
Speaker 4: As a result of.
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Speaker 3: This, this administration is certainly keeping the Supreme Court busy.
11:33
Speaker 3: Thanks so much, Leon. That's Leon Fresco of Holland and
11:36
Speaker 3: Knight coming up next on the Bloomberg Law Show. Are
11:39
Speaker 3: Trumps Supreme Court victories more about procedure than substance? I'm
11:44
Speaker 3: June Gross. When you're listening to Bloomberg. President Trump is
11:49
Speaker 3: turning to the Supreme Court over and over again as
11:52
Speaker 3: lower court judges rein in his efforts to push the
11:55
Speaker 3: limits of executive power, and the court's conservative majority seems
12:00
Speaker 3: to be accommodating him with narrow winds that allow his
12:03
Speaker 3: administration to move forward with his agenda deporting alleged Venezuelan
12:08
Speaker 3: gang members, halting teacher grants, and firing federal workers. Is
12:13
Speaker 3: it any wonder that liberal Justice Sonya Soto Mayor, who
12:16
Speaker 3: dissented and all these administration wins, recently expressed concerns about
12:21
Speaker 3: the rule of law.
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Speaker 2: One of the things that's trumbling so many right now
12:26
Speaker 2: is many of the standards that are being changed right
12:31
Speaker 2: now were norms that government that governed officials into what
12:38
Speaker 2: was right and wrong. Once norms are broken, then you're
12:42
Speaker 2: shaking some of the foundation of the rule of law.
12:45
Speaker 3: Trump has been touting these victories, but a close look
12:48
Speaker 3: shows their wins based on procedure rather than on the
12:51
Speaker 3: merits more form over substance. My guest is constitutional law
12:56
Speaker 3: expert David super, a professor at Georgetown Law. David, if
13:00
Speaker 3: my calculations are correct, the Trump administration has made ten
13:05
Speaker 3: emergency applications to the Supreme Court in less than three months.
13:10
Speaker 3: I'm sure that's a record. But why is the Supreme
13:13
Speaker 3: Court addressing so many of these issues?
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Speaker 5: Well, the Trump administration is making sweeping changes in our
13:24
Speaker 5: system of government, changing things that have been understood at
13:28
Speaker 5: least since the New Deal, in many of them since
13:31
Speaker 5: the founding. So these are important enough issues to merit
13:35
Speaker 5: the Supreme Court's attention when they are enjoyed for being unlawful.
13:40
Speaker 3: So last Friday, the Supreme Court allowed the Education Department
13:44
Speaker 3: to withhold money for teacher training projects in eight states.
13:49
Speaker 3: It was a five to four decision to Justice John
13:52
Speaker 3: Roberts sided with the Court's three liberals who would have
13:55
Speaker 3: turned Trump down. Do you see why is with the
13:57
Speaker 3: Court's liberals in that particular.
13:59
Speaker 5: Case, because he didn't write an opinion and he didn't
14:03
Speaker 5: sign the opinions written by the liberal justices. So my
14:07
Speaker 5: sense is that he simply didn't feel that the administration
14:10
Speaker 5: had made a sufficiently compelling case, and he wasn't entirely
14:14
Speaker 5: persuaded by what the conservative majority wrote in their opinion.
14:19
Speaker 3: So did the conservative majority basically go off on a
14:22
Speaker 3: procedural point.
14:24
Speaker 5: Yeah, many of these cases are procedural. The majority is
14:29
Speaker 5: looking with a very powerful magnifying glass at the procedure
14:37
Speaker 5: and in particular about which court something is filed in,
14:41
Speaker 5: and are in three of the most significant cases finding
14:45
Speaker 5: that they don't believe it was in the right court.
14:48
Speaker 5: That says nothing about the merits if the cases get
14:51
Speaker 5: refiled in the court that the Supreme Court prefers. So
14:55
Speaker 5: I don't think we can read very much into it
14:57
Speaker 5: other than that this court is hoping, against hope that
15:01
Speaker 5: if they give the administration a little more time, that
15:05
Speaker 5: it will come into compliance.
15:06
Speaker 6: With the law.
15:07
Speaker 3: Justice Katanji Brown Jackson, in a disense, said it was
15:10
Speaker 3: beyond puzzling that a majority of justices conceive of the
15:14
Speaker 3: government's application as an emergency. I mean, it doesn't appear
15:18
Speaker 3: that there's a real emergency in most of these applications
15:22
Speaker 3: to the court.
15:23
Speaker 5: Now it doesn't. There's no indication that funding these teacher
15:28
Speaker 5: training programs would do any devastating harm. But everything the
15:34
Speaker 5: administration does these days, it claims is an emergency. And
15:39
Speaker 5: their basic theme is that they get to define what
15:43
Speaker 5: an emergency is, no matter how absurd that claim is.
15:48
Speaker 5: And for the moment, the Supreme Court is humoring them
15:51
Speaker 5: on this. My sense is that that game will only
15:55
Speaker 5: work for so long.
15:56
Speaker 3: In probably the most high profile of these emergency petition
16:01
Speaker 3: on Monday, the Court allowed Trump to continue deporting Venezuelan
16:06
Speaker 3: migrants to prison in El Salvador under the Alien Enemies Act,
16:10
Speaker 3: granting an emergency request on a five to four vote
16:13
Speaker 3: without deciding if he was using that law lawfully.
16:18
Speaker 5: Yes, they said that that case should not have been
16:20
Speaker 5: in the district of the District of Lumbia, should have
16:23
Speaker 5: been in the southern District of Texas, and the reasons
16:27
Speaker 5: for that are not silly, but not very compelling either.
16:34
Speaker 5: There certainly were plausible reasons to have filed the case
16:37
Speaker 5: where they did, but I think they're hoping that if
16:41
Speaker 5: they make the case start all over again in the
16:44
Speaker 5: Southern District of Texas as the administration will chalk that
16:47
Speaker 5: up as a whin and back off from its absurd policy.
16:50
Speaker 3: They also didn't address the fact that hundreds of Venezuelan
16:56
Speaker 3: migrants have been shipped to l Salvador already and are
17:01
Speaker 3: in prison there a harsh prison, and Bloomberg News found
17:05
Speaker 3: that just seven out of the two hundred and thirty
17:08
Speaker 3: eight migrants have been found guilty of serious crimes. I mean,
17:12
Speaker 3: they're sending people there based on tattoos and the kind
17:15
Speaker 3: of clothes they're wearing, and the court just let that
17:19
Speaker 3: go by.
17:20
Speaker 5: Well, the court said that there wasn't jurisdiction in the
17:24
Speaker 5: district of Columbia, so they haven't said this is okay.
17:28
Speaker 5: They have instead insisted that all that he's be crossed
17:32
Speaker 5: and all the eyes be dotted before a court takes
17:35
Speaker 5: action on this. Jurisdiction is one of the fundamental attributes
17:40
Speaker 5: of courts, and they do need to attend to their jurisdiction.
17:44
Speaker 5: On the other hand, past courts have been willing to
17:49
Speaker 5: resolve close questions on jurisdiction in favor of getting justice done.
17:53
Speaker 5: And here five members of the Court were not willing
17:56
Speaker 5: to do that.
17:57
Speaker 3: Again, it was five to four, but this time Justice
17:59
Speaker 3: aims Cony Barrett joined the liberal justices any accounting for
18:04
Speaker 3: sort of the Chief and Justice Barrett switching positions in
18:08
Speaker 3: these two cases.
18:09
Speaker 5: I think that both cases, the majority's argument was tenuous,
18:16
Speaker 5: and it wasn't enough to persuade the Chief in the
18:20
Speaker 5: first instance, and it wasn't enough to persuade Justice Barrett
18:24
Speaker 5: in the second instance. Both are signaling that they are
18:27
Speaker 5: not rubber stamps for the administration. But both of them,
18:30
Speaker 5: I think are also signaling that they would like to
18:34
Speaker 5: give the administration a chance to come into compliance on
18:38
Speaker 5: its own. How long their patients will last remains to
18:42
Speaker 5: be seen.
18:43
Speaker 3: Then, on Tuesday, in the first mass firing case to
18:46
Speaker 3: reach the court, the justices bolstered Trump's campaign to fire
18:51
Speaker 3: federal workers, blocking a judge's order that required the administration
18:55
Speaker 3: to reinstate employees. So this was seven to two, with
18:59
Speaker 3: Justices Sotomayor and Katanji Brown Jackson dissenting again based on procedure.
19:05
Speaker 5: Yes, the argument was that these cases should have been
19:10
Speaker 5: brought initially through the merit system's civil service process and
19:15
Speaker 5: resolved there rather than in federal court if there have
19:18
Speaker 5: been one individual person fired based on a quibble over
19:23
Speaker 5: whether they were taking too much sickly, absolutely, the merit
19:27
Speaker 5: system's process would be the right place. When it's being
19:31
Speaker 5: done as a matter of policy on a mass basis
19:33
Speaker 5: without any consideration of individual circumstances, an injunction seems more appropriate.
19:40
Speaker 5: But here the court decided to again insist on jurisdictional perfection.
19:46
Speaker 3: Is the majority sort of checking the easy way out
19:49
Speaker 3: in these cases by making it more about procedure than
19:53
Speaker 3: about the merits or the administration's policies.
19:56
Speaker 5: Oh, yes, very much. So you're not seeing opinion endorsing
20:01
Speaker 5: what the administration has done. That would be very easy
20:04
Speaker 5: for them to write either as an opinion of the
20:06
Speaker 5: court or as a concurring opinion from Justice Alito or whomever.
20:11
Speaker 5: And you're just not seeing that. You're seeing nitpicking on jurisdiction.
20:16
Speaker 5: So no one is sending the administration signs that what
20:19
Speaker 5: it's doing is okay. And I think if the administration's
20:23
Speaker 5: lawyers are paying the least bit of attention, they will
20:26
Speaker 5: recognize that they're being given time but absolutely no encouragement
20:30
Speaker 5: on the merits. If the administration's lawyer, is there any
20:33
Speaker 5: good they're telling them behind the scenes that you're dodging
20:37
Speaker 5: a bullet here and dodging a bullet there, but that
20:41
Speaker 5: the silence of even the most conservative justices on the
20:44
Speaker 5: merits of your action is quite definite. And once the
20:48
Speaker 5: plainness follow the instructions of the court as to how
20:51
Speaker 5: to obtain jurisdiction, the court is giving the administration no
20:56
Speaker 5: encouragement that it will get support on the merits.
20:59
Speaker 3: On Thursday, Trump went to the Supreme Court after the
21:02
Speaker 3: full DC Circuit Court of Appeals reinstated to independent agency
21:07
Speaker 3: officials who had been fired by Trump without cause, and
21:12
Speaker 3: the Chief Justice put that DC Circuit Court decision on hold,
21:17
Speaker 3: so the fired workers remain fired. Does Roberts action indicate
21:22
Speaker 3: support for Trump's efforts to remove any limits on his
21:27
Speaker 3: power to hire and fire.
21:29
Speaker 5: That's not clear. The Chief Justice has previously daid actions
21:34
Speaker 5: of lower courts and then turned around and voted against
21:38
Speaker 5: the administration on the merits, So at the moment, all
21:42
Speaker 5: we could assume is that this stay is an indication
21:46
Speaker 5: that he thinks that all the justices ought to be
21:48
Speaker 5: able to weigh in, which is sensible enough on an
21:50
Speaker 5: issue of this scale. On the other hand, the question
21:54
Speaker 5: of independent agencies may be a more complicated one in
21:58
Speaker 5: the court because several justices have indicated that they don't
22:01
Speaker 5: like independent agencies or don't believe that their independence is appropriate.
22:06
Speaker 5: So on this one, it's certainly is possible that one
22:09
Speaker 5: all is said in times, the administration will succeed in
22:12
Speaker 5: changing constitutional law. I don't like the administration's chances on
22:16
Speaker 5: most of the others.
22:17
Speaker 3: Now, on Thursday night, the Supreme Court handed the Trump
22:21
Speaker 3: administration a high profile defeat when a unanimous court ordered
22:26
Speaker 3: the administration to return to the United States a man
22:30
Speaker 3: who had been deported to l Salvador because of an
22:33
Speaker 3: administration error. Where does that decision fit in this puzzle.
22:37
Speaker 6: Well, I think it suggests that the Supreme Court has
22:40
Speaker 6: its limits, and it's telling the administration that we've now
22:44
Speaker 6: got two unanimous decisions in the scope of a week
22:48
Speaker 6: regarding sending people overseas. The first one found the procedural
22:54
Speaker 6: fault with the case that had been brought, but said
22:57
Speaker 6: that everybody has to be given notice and a chance
23:01
Speaker 6: to ask for a hearing before they can be sent overseas.
23:05
Speaker 6: And then for this gentleman who was sent overseas without
23:09
Speaker 6: any process at all and contrary to law. They've now
23:13
Speaker 6: unanimously told the administration to get him back. That suggests
23:17
Speaker 6: that the Court is trying to give them space, trying
23:22
Speaker 6: to give them leeway, but when it sees serious abuses,
23:26
Speaker 6: it will step in.
23:27
Speaker 3: And why was it important that this was unanimous.
23:32
Speaker 6: It's important because this administration has already shown that it's
23:37
Speaker 6: not very concerned about violating court orders. It's violated many
23:41
Speaker 6: lower court orders. And I suspect that the justices were
23:45
Speaker 6: concerned that if there was a split decision from the
23:48
Speaker 6: Supreme Court, the administration would seize on that to refuse
23:53
Speaker 6: to comply. As well, during the desegregation era, the Supreme
23:58
Speaker 6: Court worked very hard to achieve unanimity, even if the
24:02
Speaker 6: decisions that they wrote weren't as sweeping as they would
24:05
Speaker 6: have liked, just because there was concern that many people
24:09
Speaker 6: were disregarding the opinion. Similarly, in the Nixon Tape's case,
24:12
Speaker 6: was unanimous with the Chief Justice writing the opinion, even
24:17
Speaker 6: though many of the justices would have preferred a stronger opinion.
24:21
Speaker 6: Unanimity was more important.
24:23
Speaker 3: This has been a fascinating discussion Thanks so much, David.
24:26
Speaker 3: That's Professor David Super of Georgetown Law coming up Trump's
24:30
Speaker 3: war on big laws, bringing in close to a billion
24:32
Speaker 3: dollars in free legal services. I'm June Grosso and you're
24:36
Speaker 3: listening to Bloomberg. President Donald Trump's unprecedented attack on big
24:43
Speaker 3: law is yielding him hundreds of millions of dollars in
24:47
Speaker 3: free legal services as many of the top Wall Street
24:50
Speaker 3: firm's cave and settle with the administration, some even before
24:55
Speaker 3: they've been targeted in an executive order we signed with
24:58
Speaker 3: many law firms, the ones that we thought were inappropriate,
25:03
Speaker 3: inappropriate seeming to mean their lawyers acted against Trump, his policies,
25:09
Speaker 3: or his allies in some way. These executive orders generally
25:13
Speaker 3: require that security clearances of a firm's lawyers be suspended,
25:18
Speaker 3: that federal contracts be terminated, and that employee access to
25:22
Speaker 3: federal buildings be restricted. While some firms have chosen to settle,
25:27
Speaker 3: others have chosen to fight Trump in court, where judges
25:31
Speaker 3: have already found his executive orders likely unconstitutional. So why
25:36
Speaker 3: does one firm settle while another litigates? Here to tell
25:40
Speaker 3: us his Bloomberg Law reporter Justin Henry justin how would
25:44
Speaker 3: you describe the firms that are settling.
25:47
Speaker 1: So, the firms that we're seeing settle are primarily concentrated
25:50
Speaker 1: in New York. I think all of them are headquartered
25:53
Speaker 1: or at least originating from New York and have real
25:56
Speaker 1: Wall Street pedigree. They're also much more wealthy, and a
26:01
Speaker 1: lot of that wealth has come from their rainmaker transactional practices,
26:05
Speaker 1: so corporate deals involving mergers and acquisitions and private equity.
26:10
Speaker 3: And explain why the firms that do transactional work want
26:14
Speaker 3: to settle with Trump.
26:15
Speaker 1: So my understanding is that they have really sensitive client relationships,
26:20
Speaker 1: clients who are very averse being in kind of the
26:24
Speaker 1: political limelight. Some of those firms have client relationships that
26:28
Speaker 1: are worth one hundred million dollars a year in revenue
26:31
Speaker 1: or more. And those are client relationships that could vanish
26:35
Speaker 1: literally overnight if their lawyers can't represent them in front
26:39
Speaker 1: of government agencies or get the same kind of attention
26:41
Speaker 1: from regulatory agencies to put the deals through. And then
26:45
Speaker 1: that in a matter of days could decrease the overall
26:49
Speaker 1: profitability of the firm, which would have a cascading effect
26:53
Speaker 1: on other partners at the firm. Making lesson profits and
26:56
Speaker 1: then also being vulnerable approaching by other firms. So you
27:00
Speaker 1: could have a phenomenon that resembles the kind of run
27:03
Speaker 1: on the bank.
27:03
Speaker 3: So they're even afraid that their partners will abandon them exactly.
27:08
Speaker 1: Yeah, and not for any individual lawyer's sort of decision
27:12
Speaker 1: making on the process. It's really a coordination issue where
27:17
Speaker 1: you know, they might want to stay with the firm,
27:19
Speaker 1: the clients might want to stay with the firm, but
27:21
Speaker 1: just because of business reasons, not because of political reasons.
27:25
Speaker 1: There's no shortage of other firms looking to scoop up
27:27
Speaker 1: that business, and they can come to them and say, hey, listen,
27:30
Speaker 1: we're not in the negative limelight of the president. Come
27:33
Speaker 1: to us. We still have a good relationship with the administration,
27:36
Speaker 1: or at least we're not in the crosshairs of the
27:38
Speaker 1: Trump administration.
27:39
Speaker 3: Right And with these transactional firms that have to deal
27:43
Speaker 3: with the regulatory agencies, it could be a problem if
27:46
Speaker 3: they're in the bad graces of the Trump administration.
27:50
Speaker 1: Yeah, exactly. I mean, a protracted dispute with the Trump
27:53
Speaker 1: administration can make them seem like kind of a para
27:56
Speaker 1: politically speaking. That makes clients look at them and say, well,
28:00
Speaker 1: all we're worried about not getting good treatment from the
28:03
Speaker 1: regulatory agencies that have to approve are massive that the
28:07
Speaker 1: company deals. Those very expensive, very lucrative deals require the
28:12
Speaker 1: goodwill of the executive branch agencies, and that is something
28:15
Speaker 1: that is at risk when you're in a protracted dispute
28:18
Speaker 1: with the Trump administration.
28:19
Speaker 3: You spoke to Bruce McEwan, who was a former in
28:22
Speaker 3: house lawyer at Morgan Stanley, and he said, law firms,
28:25
Speaker 3: for all their seeming solidity, are very fragile economically.
28:29
Speaker 1: So law firms really aren't organized like any other type
28:33
Speaker 1: of business except for other professional services businesses like accounting.
28:37
Speaker 1: What makes law firms different is that their shareholders are
28:40
Speaker 1: internal to the company, and those shareholders who are the partners,
28:44
Speaker 1: have the ability to go to any firm they want
28:48
Speaker 1: at the drop of a hat. There are no non
28:50
Speaker 1: compete agreements in the legal field like there are in
28:53
Speaker 1: other professions, so the law firm can't impose any restrictions
28:57
Speaker 1: on one of their lawyers moving to another firm, a
29:01
Speaker 1: competitor firm that's willing to pay them more. And so
29:04
Speaker 1: that's a huge reason why law firms are much more
29:07
Speaker 1: a precarious type of business than other types of businesses.
29:11
Speaker 3: And the firms that are fighting back, what are they
29:14
Speaker 3: best known for.
29:15
Speaker 1: Yeah, so these are firms that are very famous for
29:19
Speaker 1: their work in the areas of litigation, and litigation is
29:23
Speaker 1: just a practice area that you know, it's still very
29:26
Speaker 1: sensitive to politics, but already kind of has an adversarial
29:30
Speaker 1: stand by definition, just a breed of lawyers who are
29:33
Speaker 1: much more willing to take an adversarial stance, whether it's
29:36
Speaker 1: with the government or whether it's with another private sector party.
29:40
Speaker 1: And according to the lawyers I've talked to you, that
29:42
Speaker 1: kind of has bread a willingness in these firms too,
29:46
Speaker 1: in their case take an adversarial stance against the Trump administration.
29:49
Speaker 1: Now that doesn't mean it doesn't come with any risk.
29:51
Speaker 1: There are risks involved, however, when you're litigating in a
29:55
Speaker 1: courthouse as opposed to seeking merger clearance in an executive
29:59
Speaker 1: branch agent. See, the courthouses are not subject to the
30:03
Speaker 1: Trump administration's executive orders like the executive branch agencies are.
30:07
Speaker 3: I didn't realize this. The litigation firms have less revenue
30:11
Speaker 3: than the transactional firms.
30:14
Speaker 1: Yes, they're on average about half as much in revenue
30:18
Speaker 1: every year on average than the more transactional focused firms.
30:23
Speaker 1: And that really just goes to show you how much
30:24
Speaker 1: private equity and m and A has turbo charged the
30:27
Speaker 1: profits of the wealthiest firms right now. But I think
30:30
Speaker 1: what we're seeing right now is that it also shows
30:32
Speaker 1: you how precarious that wealth is.
30:34
Speaker 3: That's why a lot of firms are caving before they're
30:38
Speaker 3: even targeted in an executive order.
30:41
Speaker 1: There are several law firms that have come to the
30:43
Speaker 1: table with the Trump administration in order to negotiate their
30:46
Speaker 1: way out of an executive order. When you just look
30:49
Speaker 1: at the rationale, the pretext backing these executive orders, it's
30:54
Speaker 1: hard to imagine if a high profile law firm that
30:57
Speaker 1: Trump might not have a beef with. You know, everybody
31:01
Speaker 1: has some connection to a potential enemy of the president,
31:04
Speaker 1: and so that makes the potential targets of these executive
31:08
Speaker 1: orders pretty far and wide, and that I think is
31:10
Speaker 1: making a lot of law firms come to the table
31:13
Speaker 1: and try to negotiate preemptively their way out of an
31:16
Speaker 1: executive order.
31:18
Speaker 3: Tell us about the sequence of firms settling with Trump.
31:22
Speaker 1: It started with Paul Weiss, which was targeted in an
31:25
Speaker 1: executive order, and then they were able to get that
31:27
Speaker 1: executive order rescinded in exchange for the kind of deal
31:30
Speaker 1: that we would see three other firms adopt before issuing
31:34
Speaker 1: the executive order against them. The firms that proactively made
31:38
Speaker 1: deals with the Trump administration include Millbank, Wilkie, and Scattin.
31:44
Speaker 1: And these deals have all taken on very similar details.
31:47
Speaker 1: What difference is that Paul Weiss committed forty million dollars
31:50
Speaker 1: in pro bona services and the other three firms committed
31:53
Speaker 1: one hundred million dollars each.
31:56
Speaker 3: And then on Friday afternoon, five law firms reached agreements
32:01
Speaker 3: with the Trump administration worth hundreds of millions of dollars
32:06
Speaker 3: and free legal services.
32:08
Speaker 1: Five of the biggest law firms in the world, Five
32:11
Speaker 1: of the biggest and wealthiest law fins in the world
32:14
Speaker 1: reached deals with the Trump White House to avoid punitive
32:18
Speaker 1: action against them in exchange for hundreds of millions of
32:22
Speaker 1: dollars in pro bono legal services. The deal that was
32:25
Speaker 1: announced on Friday says that Kirkland and Ellis, Latham and Walkin, Simpson,
32:30
Speaker 1: Thatcher and Bartlett, Cadwalder and A and O. Sherman are
32:34
Speaker 1: committing at least six hundred million dollars in pro bono
32:37
Speaker 1: legal services to causes advocated by Trump. That's a combined
32:41
Speaker 1: total of six hundred million. There's slightly different numbers for
32:44
Speaker 1: each firm. Kirkland and Ellis, Lathman and Walkin Simpson Thatcher
32:49
Speaker 1: and Anno Sherman each are committing one hundred and twenty
32:52
Speaker 1: five million, while Cadwaller is committing one hundred million, So
32:57
Speaker 1: the same as the deals reached by Scadden will Key
33:00
Speaker 1: and Millbank. Other parts of the deal are similar to
33:03
Speaker 1: what we've seen before. The firms are affirming their commitment
33:07
Speaker 1: to quote unquote merit based hiring, and the deal says
33:10
Speaker 1: that they will stay away from DEI based hiring. This
33:14
Speaker 1: is a joint deal by these firms pledging pro bono
33:18
Speaker 1: services for the president.
33:20
Speaker 3: So with this latest deal, that means the Trump administration
33:23
Speaker 3: is close to a billion dollars in free legal services.
33:28
Speaker 1: Nine hundred and forty million dollars in pro bono services
33:31
Speaker 1: is my tally. So that aligns with what we heard
33:34
Speaker 1: from Stephen Miller at a Oval office event earlier this
33:37
Speaker 1: week where he said, you know, at the end of
33:40
Speaker 1: this we're getting close to a billion dollars in pro
33:42
Speaker 1: bono legal services, and.
33:44
Speaker 3: Under these deals, what are the pro bono causes that
33:47
Speaker 3: the firms are going to litigate?
33:49
Speaker 1: So, just to make it totally clear, what the firms
33:53
Speaker 1: have said that have pledged pro bono legal services is
33:56
Speaker 1: that they aren't letting the Trump administration call the sho
34:00
Speaker 1: down to the individual client relationships. They've just set out
34:04
Speaker 1: categories that they need to provide pro bono legal services
34:07
Speaker 1: in order to comply with the agreement. And those categories
34:12
Speaker 1: include advocating on behalf of veterans' rights. You know, that's
34:16
Speaker 1: a very established conservative legal cause. There's combating anti semitism,
34:22
Speaker 1: and then there's quote unquote fairness in the justice system.
34:25
Speaker 1: There's still a lot of unanswered questions about how they
34:27
Speaker 1: will comply with that. You know, I struggle to imagine
34:31
Speaker 1: that the law firms and the Trump administration have the
34:34
Speaker 1: same definition of those things, especially with something as broad
34:38
Speaker 1: as fairness in the justice system. But these are clearly
34:41
Speaker 1: areas that you know, Trump for a while now has
34:44
Speaker 1: felt like big law isn't as fair to conservatives as
34:46
Speaker 1: it is to liberal causes, and so this is his
34:49
Speaker 1: way of in his mind, evening the playing field.
34:52
Speaker 3: And this week in the Oval Office, didn't he talk
34:55
Speaker 3: about new areas for pro bono work.
34:58
Speaker 1: Yes, the President in the caterd that he's going to
35:02
Speaker 1: commit the law firms to work on behalf of coal
35:06
Speaker 1: mining efforts. I think he mentioned leasing, but that is,
35:10
Speaker 1: you know, at this point, a vague category that there
35:12
Speaker 1: is still some details to be worked out. But I
35:15
Speaker 1: think the takeaway is that the President is starting to
35:17
Speaker 1: view these deals as like a pro bone of piggybank
35:20
Speaker 1: to commit the causes he supports.
35:23
Speaker 3: Is this then the end of the executive orders targeting
35:27
Speaker 3: law firms.
35:28
Speaker 1: I am honestly unsure if there's more firms that are
35:31
Speaker 1: going to be targeted. However, this does feel like a
35:33
Speaker 1: culmination event. This does seem to be what Trump had
35:38
Speaker 1: in mind when he said we are working with five
35:41
Speaker 1: more firms to come to a deal.
35:43
Speaker 3: Let's turn for a moment to the firms that are litigating.
35:47
Speaker 3: So three firms have already sued the Trump administration and
35:51
Speaker 3: they've gotten some temporary orders from judges.
35:55
Speaker 1: Yes, so all three firms are looking for the executive
35:57
Speaker 1: orders against them to be totally halted. But what they've
36:01
Speaker 1: been able to get so far are temporary restraining orders
36:04
Speaker 1: against parts of the executive orders. I believe the parts
36:09
Speaker 1: that they were able to get temporary restraining orders for
36:11
Speaker 1: are the parts of the orders that ask agency heads
36:14
Speaker 1: to investigate any federal contractors that have relationships with these
36:18
Speaker 1: firms for possible termination. That is an issue being raised around,
36:23
Speaker 1: you know, keeping client relationships a secret, which is a
36:26
Speaker 1: common practice in the world of lawyers. The other part
36:29
Speaker 1: that was halted was the one that pertains to access
36:32
Speaker 1: to federal buildings. The judges said that you can't bar
36:36
Speaker 1: the personalities firms from entering federal agency buildings.
36:40
Speaker 3: And how has the Trump administration been defending these executive
36:44
Speaker 3: orders which seem like retribution.
36:47
Speaker 1: It does, but what people are calling retribution has been
36:52
Speaker 1: touched by the Trump administration in the language of protecting
36:56
Speaker 1: national security interests, the language that was used in the
36:59
Speaker 1: Perk Cooey executive order. The other legal pretext that's being
37:04
Speaker 1: cited is anti discrimination law. Was going after firms for
37:08
Speaker 1: alleged dei quote unquote discrimination.
37:11
Speaker 3: Familiar themes of this administration. Thanks so much, Justin. That's
37:15
Speaker 3: Bloomberg Law reporter Justin Henry, And that's it for this edition.
37:19
Speaker 3: Of the Bloomberg Law Show. Remember you can always get
37:21
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37:25
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37:29
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Speaker 3: to tune into The Bloomberg Law Show every weeknight at
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Speaker 3: ten pm Wall Street Time. I'm June Grosso and you're
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Speaker 3: listening to Bloomberg