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California and DC Sue Trump · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: This is liberation Day in DC, and we're going to
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Speaker 2: take our capital back. We're taking it back.
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Speaker 3: On Monday, President Trump announced that he would take federal
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Speaker 3: control of Washington, d C's police Department, citing what he
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Speaker 3: called out of control crime to declare a public safety emergency.
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Speaker 4: The city will no longer be a sanctuary for illegal
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Speaker 4: alien criminals. We will have full, seamless, integrated cooperation at
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Speaker 4: all levels of law enforcement, and will deploy offices across
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Speaker 4: the district. With an overwhelming presidence you'll have more police
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Speaker 4: and you'll be so happy.
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Speaker 3: Well, DC Mayor Muriel Browser didn't seem so happy. She
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Speaker 3: said violent crime in the Capitol was at a thirty
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Speaker 3: year low, but that the president's authority is pretty broad.
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Speaker 3: Under DC's Home Rule Act.
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Speaker 5: The Home Rule Charter requires the mayor to provide the
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Speaker 5: services of MPD during special conditions of an emergency, and
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Speaker 5: we will follow the law, though there's a question about
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Speaker 5: the subjectivity of that declaration.
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Speaker 3: But three days later, tensions flared when the mayor and
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Speaker 3: DC's Attorney general rejected an order from US Attorney General
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Speaker 3: Pam BONDI that would have stripped the Metropolitan Police Department's
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Speaker 3: chief of her authority and place the agency under federal control.
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Speaker 3: And on Friday morning, DC Attorney General Brian Schwab sued
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Speaker 3: the Trump administration, saying the attempted takeover of the city's
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Speaker 3: police force was illegal.
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Speaker 6: And the Home Rule Charter and the Home Rule Act
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Speaker 6: is very clear with respect to when the President can
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Speaker 6: request limited services of MPD, limited by time, limited by
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Speaker 6: emergency circumstances, and limited for federal purposes, and in all
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Speaker 6: cases those services must be requested to the mayor to
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Speaker 6: be provided by the chief of Police. Not a hostile
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Speaker 6: takeover of our police.
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Speaker 3: By Friday afternoon, both sides were in court for hearing
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Speaker 3: on DC's request for a temporary restraining order to avoid
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Speaker 3: sidelining DC's police chief. My guest is former federal prosecutor
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Speaker 3: Mary McCord, a professor at Georgetown Law. It seemed like
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Speaker 3: Mayor Browser was grudgingly complying with the federalizing of the
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Speaker 3: DC Police force until this order from the US Attorney
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Speaker 3: General naming the head of the dea Emergency Police Commissioner
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Speaker 3: of d C.
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Speaker 7: Well, I mean, certainly even before the new order from
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Speaker 7: the Attorney General. There were I think a lot of
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Speaker 7: problems with the declaration of an emergency in terms of
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Speaker 7: just not really having a factual basis, but the DC
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Speaker 7: Attorney General had decided obviously not to sue based on that,
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Speaker 7: and I think you're right that the trigger event was
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Speaker 7: this order from Attorney General Bondie that basically really did
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Speaker 7: take over the Metropolitan Police Department. It pointed Terry Cole,
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Speaker 7: the DEA Commissioner, as the commissioner to assume all of
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Speaker 7: the powers and duties of the DC Police Chief required
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Speaker 7: that anything the DC Police Chief or the Mayor or
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Speaker 7: the commanders of Police wanted to do had to get
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Speaker 7: approval from Commissioner Cole before doing it. And then it
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Speaker 7: actually rescinded various police executive orders and general orders, and
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Speaker 7: so that really is a takeover, and that's what prompted
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Speaker 7: DC Attorney General Brian Schwab to come in with the complaint.
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Speaker 3: In the lawsuit, DC alleged that Trump doesn't have the
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Speaker 3: authority to take control over the police force, and he
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Speaker 3: can only require the mayor to offer assistance from the
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Speaker 3: police in certain emergency circumstances. About the suit, well.
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Speaker 7: I mean it's really the DC Attorney General saying you've
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Speaker 7: got to comply with the law, and the law that
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Speaker 7: President Trump invogud. That's part of the Home Rule Act
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Speaker 7: that gave the District of Columbia starting in nineteen seventy three,
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Speaker 7: the authority to elect its own mayor and elect the
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Speaker 7: DC Council, and enact legislation for the city, and to
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Speaker 7: have its own police chief and its own police force.
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Speaker 7: But that Home Rule Acts vegatory provision that the President
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Speaker 7: relied on, doesn't say anything about taking over the Metropolitan
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Speaker 7: to Police Department. It says that whenever the President determines
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Speaker 7: that special conditions of an emergency nature exist which require
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Speaker 7: the use of the Metropolitan Police Force for federal purposes,
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Speaker 7: he may direct the mayor to provide him and the
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Speaker 7: mayor shall provide such services of the Metropolitan Police Force
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Speaker 7: as the President may be necessary and appropriate. And that
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Speaker 7: is also time limited, no more than thirty days. So
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Speaker 7: what the PC Attorney General is said is there's nothing
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Speaker 7: about that language that says that the President can actually
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Speaker 7: appoint someone to completely take over the entire Metropolitan too
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Speaker 7: Police Department, restind general orders, and require all activity to
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Speaker 7: go through him. What this is saying is that the
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Speaker 7: president can require the mayor to provide services of MPD.
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Speaker 7: So if you think about it, let's assume, you know,
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Speaker 7: there's some sort of assault on a federal building that
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Speaker 7: houses a federal agency. You know, protesters rioting and throwing
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Speaker 7: rocks at the building and maybe lighting fires, what have you.
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Speaker 7: You can imagine the president saying, we have a state
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Speaker 7: of emergency. I don't have enough federal agents to protect
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Speaker 7: this federal property. I'm going to invoke this provision and
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Speaker 7: require the mayor to provide Metropolitan Police Department officers to
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Speaker 7: go and help protect this building and quell the you know,
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Speaker 7: the disturbance and the criminal activity there. That's like requesting services,
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Speaker 7: and services must be provided. And I will just say,
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Speaker 7: as a footnote, having been a prosecutor in GC for
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Speaker 7: twenty years and lived in this area for thirty five years,
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Speaker 7: a president would never need to invoke this in order
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Speaker 7: to get that kind of assistance from the Metropolitan Police
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Speaker 7: Department if there was a real emergency. Because the Metropolitan
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Speaker 7: the Police Department and federal law enforcement work together all
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Speaker 7: the time. They have all kinds of passporces, they have
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Speaker 7: mutual assistance agreements and if you had a real emergency,
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Speaker 7: MPD would be going to help. There was a real
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Speaker 7: emergency at the Capitol in January sixth of twenty twenty one,
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Speaker 7: and even though there are US Capitol Police, which are
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Speaker 7: federal police that protect the capital. DC's Metropolitan Police Department
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Speaker 7: went immediately to help with the emergency there. President of
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Speaker 7: course didn't ask for it, but didn't request it and
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Speaker 7: didn't use this provision. But at any rate, this complete
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Speaker 7: is saying you can't just come in and take over
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Speaker 7: the entire DC police.
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Speaker 3: And it seems like in these lawsuits against the Trump
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Speaker 3: administration there is almost always an allegation that the Strative
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Speaker 3: Procedure Act is being violated. What was it here?
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Speaker 7: In this case, what the President did is he delegated
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Speaker 7: his authority to the Attorney General, Pam Bondi, who then
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Speaker 7: is the one who put out this order actually effectuating
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Speaker 7: or trying to effectuate this takeover. And so part of
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Speaker 7: the causes of actions in the complaint or that that
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Speaker 7: is an administrative action taken by the head of an
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Speaker 7: administrative agency that is contrary to law and arbitrary and capricious.
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Speaker 7: So a number of different causes of actions in the complaint,
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Speaker 7: but it really all comes down to there's just no
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Speaker 7: authority to completely take over the police department.
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Speaker 3: Let's talk about the hearing over DC's request for a
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Speaker 3: temporary restraining order before Judge Anna Reyes, what were her
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Speaker 3: main concerns.
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Speaker 7: So she agreed that section one of Attorney General Bondi's order,
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Speaker 7: this is the section by which Attorney General Bondi purported
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Speaker 7: to basically give mister Cole all of the authorities of
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Speaker 7: the Chief of Police and complete direction and control really
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Speaker 7: over the Metropolitan Police Department. She agreed that that is
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Speaker 7: inconsistent with the Home Rule Act in terms of the
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Speaker 7: other parts of the order where Attorney General Bondi purported
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Speaker 7: to rescind executive orders and general orders that operate within
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Speaker 7: the Police Department, which are all immigration related. They have
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Speaker 7: to do with not voluntarily cooperating with ice enforcement unless
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Speaker 7: it's something that's required by law, and there's very little
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Speaker 7: that's actually required by law. So what the judge was
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Speaker 7: focused on is isn't it a problem to have these
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Speaker 7: things be rescinded. Don't you need to put things in
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Speaker 7: a framework of asking for services from the mayor and
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Speaker 7: the mayor providing those services. What you seem to be
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Speaker 7: trying to do US government is you seem to be
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Speaker 7: essentially bypassing the mayor and saying we're just taking over.
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Speaker 7: And that can't be the way the statute works, because
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Speaker 7: when Congress enacted the Home Rule Act, they consider a
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Speaker 7: provision that would have just allowed the president to just
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Speaker 7: take over the police Department, and that was rejected because
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Speaker 7: the members of Congress who were considering the Home Rule Act,
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Speaker 7: they were doing so for the very purpose of there
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Speaker 7: being local control, you know, turning over local government, local
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Speaker 7: policing to local control, and so it would be the
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Speaker 7: antithesis of that to have the president actually take over
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Speaker 7: the police department.
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Speaker 3: And what was the government's argument in support of this
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Speaker 3: order from the US Attorney General.
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Speaker 7: The government was trying to argue that really the request
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Speaker 7: could simply be to the mayor that we require the
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Speaker 7: services of MPD, and that then the President, pursuant to
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Speaker 7: the Home Rule Act, has the discretion to ask for
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Speaker 7: services as the president may be necessary and appropriate. And
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Speaker 7: in the view of the government, that kind of meant
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Speaker 7: you can ask for anything, and you can have a
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Speaker 7: federal official actually controlling the police department. That's not where
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Speaker 7: we ended up. We ended up in the judge taking
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Speaker 7: a very long break to see if the parties could
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Speaker 7: work something out between them, because she said, you know,
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Speaker 7: I'll asure at cro if I have to, but if
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Speaker 7: it's violated, that's going to be contemptive court. And I
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Speaker 7: really think that this is the kind of thing that
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Speaker 7: the parties should try to work out on their own.
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Speaker 3: And they did. Both sides agreed to leave the DC
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Speaker 3: Police Chief in control of the department. The DEA chief
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Speaker 3: is required to go through the mayor, and the mayor
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Speaker 3: is still required to fulfill policing requests from the Trump administration.
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Speaker 3: Thanks so much for joining me, Mary. That's Mary McCord,
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Speaker 3: a professor at Georgetown Law. Coming up next on the
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Speaker 3: Bloomberg Law Show, California and the Trump administration face off
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Speaker 3: at a landmark federal trial over Trump's deployment of troops
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Speaker 3: to Los Angeles in June. I'm June Grosso. When you're
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Speaker 3: listening to Bloomberg, President Trump has repeatedly said that sending
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Speaker 3: about four thousand troops to Los Angeles in June saved
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Speaker 3: the city.
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Speaker 2: And you watched crimes out, but you wouldn't have Los Angeles.
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Speaker 2: It wouldn't be existing today. We would have had to
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Speaker 2: cancel the Olympics if I let that go on.
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Speaker 3: But LA's mayor and California's governor have said that the
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Speaker 3: troops weren't needed to handle the limited protests, and the
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Speaker 3: presence of the military actually inflamed tensions.
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Speaker 1: The Marines that were never needed here, that never played
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Speaker 1: a role in crowd control, they're not trained to do that.
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Speaker 1: They're trained to kill the enemy on foreign lands. The
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Speaker 1: enemy is not Angelina's. But there's a bottom line.
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Speaker 4: The police do policing military.
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Speaker 1: It's for the battlefield.
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Speaker 3: After hearing testimony in a landmark trial in San Francisco
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Speaker 3: this week, a federal judge will decide whether Trump's deployment
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Speaker 3: of the National Guarden Marines to Los Angeles was legal.
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Speaker 3: My guest is an expert in wars and national security,
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Speaker 3: Claire Finkelstein, a professor of law at the University of Pennsylvania.
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Speaker 3: Claire tell us about California's sued against the Trump administration.
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Speaker 8: There were two bases that the Trump administration has claimed
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Speaker 8: for federalizing the California National Guard, and one is the
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Speaker 8: protective power. This is claimed to be an inherent article
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Speaker 8: to power that the president can wield in order to
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Speaker 8: protect federal assets. That means federal persons, federal buildings, and
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Speaker 8: to say we're out there in order to protect anything federal,
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Speaker 8: so that means ICE agents, and the claim is ice
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Speaker 8: agents couldn't do their jobs. There are also federal buildings
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Speaker 8: under threat, and so we had to federalize the National
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Speaker 8: Guard in order to protect federal assets. So that's number one,
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Speaker 8: and then the other one is ten USD twelve four
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Speaker 8: h six, which is a little use statue. The last
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Speaker 8: time it was used was actually in the Nixon era
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Speaker 8: to federalize the Guard on the grounds that there was
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Speaker 8: a rebellion or that they could not otherwise get compliance
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Speaker 8: with the law, and that was something that the Trump
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Speaker 8: administration was claiming in this instance. The State of California
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Speaker 8: challenged that and said, what's the basis for the federal
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Speaker 8: government thinking that there was a rebellion? No signs of
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Speaker 8: rebellion here, just some law enforcement issues which we, the
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Speaker 8: state of California, can handle on top of it. California
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Speaker 8: was saying, this is a violation of the Tenth Amendment.
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Speaker 8: We the State of California, California Governor, California officials are
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Speaker 8: in charge of law enforcement and police powers, and we
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Speaker 8: are not asking you to come in. So that, in general,
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Speaker 8: when there is federalization to assist with police thing, that
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Speaker 8: is normally at the request of a governor. Twelve four
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Speaker 8: h sixs that troops be deployed through the governor, and
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Speaker 8: that wasn't done. Governor Newsom wasn't even informed about the
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Speaker 8: federalization of the National Guard before it occurred. That's the
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Speaker 8: gist of their claim.
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Speaker 3: The trial judge Charles Bryer, who by the way, is
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Speaker 3: retired Justice Stephen Bryer's younger brother, So that the factual
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Speaker 3: issue is did the Marines and National Guard violate the
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Speaker 3: Passcomma Tatis Act? Tell us about that Act from eighteen
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Speaker 3: seventy eight.
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Speaker 8: So the pass Commatatas says that federal troops normally cannot
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Speaker 8: engage in law enforcement. So that is very different from
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Speaker 8: when the governor is in control of the California National
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Speaker 8: Guard under states active duty status or Title thirty two,
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Speaker 8: because in that case there is an exception to possecommatadis
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Speaker 8: when it is under control of state and local authorities.
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Speaker 8: But when troops are federalized, the pussy Commatatis Act applies,
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Speaker 8: and that is a criminal statute that says federal troops
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Speaker 8: cannot engage in law enforcement activities. Now, the federal government says,
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Speaker 8: in this case, under the protective Power and under twelve
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Speaker 8: four h six number one, we were not engaged in
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Speaker 8: law enforcement activities. The rules for the use of force
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Speaker 8: that we gave to the troops, that's like their rules
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Speaker 8: of engagement, except in domestic context. We call that rules
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Speaker 8: for the use of force did not involve, for example,
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Speaker 8: making arrest. Troops were told that they could not make
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Speaker 8: arrests specifically, and therefore they were not violating pussy coommatadis
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Speaker 8: because they weren't involved in law enforcement activities. But California
15:42
Speaker 8: has said, in fact, you were involved in law enforcement
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Speaker 8: activities and cited a number of instances such as the
15:51
Speaker 8: ability to detain individuals waiting for law enforcements such as
15:56
Speaker 8: LAPD to show up. They maintained that that's a violation
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Speaker 8: of posscommatatas.
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Speaker 3: And why does the administration say that posskomma tatis doesn't
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Speaker 3: even apply here?
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Speaker 8: The administration, in addition to everything else, rejects the claim
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Speaker 8: that possecommatatus applies when the troops are deployed in their
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Speaker 8: protective capacity, namely engaged in protection for federal assets. They
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Speaker 8: also deny that it applies under twelve four oh six,
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Speaker 8: and they say twelve four oh six is like the
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Speaker 8: Insurrection Act. Under the Insurrection Act is generally recognized that
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Speaker 8: there is an exception to prosecommatatus and that the president
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Speaker 8: is allowed to deploy federal troops in a law enforcement capacity,
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Speaker 8: but only because there is deemed to be a situation
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Speaker 8: that is so serious that fact there's a full blown
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Speaker 8: insurrection and there was no way to gain control over
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Speaker 8: the region or that part of the country without having
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Speaker 8: federal troops engaged in law enforcement activities.
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Speaker 3: The testimony of one of the witnesses exposed the internal
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Speaker 3: tensions over the deployment. Longtime military leader, Major General Scott Sherman,
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Speaker 3: who commanded the Guard troops in La testified he'd never
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Speaker 3: heard the word rebellion used to describe the situation in
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Speaker 3: the city, and also that he had expressed resistance when
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Speaker 3: immigration officials initially asked for military support.
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Speaker 8: So his testimony was important for a couple of reasons.
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Speaker 8: The first reason is that he testified that he expressed
17:47
Speaker 8: reservations and stronger than that, that he voiced opposition to
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Speaker 8: this operation, and that he was rebuked by a senior
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Speaker 8: Customs and Border Patrol official who questioned his loyalty to
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Speaker 8: the nation, which is very surprising. It's very important that
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Speaker 8: the military are able to express their concerns about the
18:09
Speaker 8: boundaries of the operations that they're being asked to undertake,
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Speaker 8: and normally that would be given an awful lot of
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Speaker 8: difference when you have a senior military leader who was saying,
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Speaker 8: this is not an operation that we should be undertaking.
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Speaker 8: It's not appropriate for the military. You would expect an
18:27
Speaker 8: administration to be sensitive and respectful of that. But it
18:31
Speaker 8: also suggests that there was a sort of pecking order
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Speaker 8: and that was a concern about this operation to begin with,
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Speaker 8: that Customs and Border Patrol were sort of calling the
18:44
Speaker 8: shot and that the military was going to be placed
18:49
Speaker 8: in a subordinate position to Customs and Border patrol. That's
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Speaker 8: problematic from the standpoint of passecomatatas, since the military is
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Speaker 8: not supposed to be subordinate to civilian law enforcement agents
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Speaker 8: because it sort of turns them into law enforcement agents.
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Speaker 8: So that's one reason this is problematic. Another reason his
19:13
Speaker 8: testimony was important is that he talked about what troops
19:18
Speaker 8: were told they were allowed to do and what they
19:20
Speaker 8: were not allowed to do. So though the administration has
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Speaker 8: been very insistent that the orders to troops did not
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Speaker 8: violate Pulsicoma tatis, his testimony suggested that they were allowed
19:37
Speaker 8: to turn military force to civilians if civilians were impeding
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Speaker 8: federal operations such as ICE operations. Now, that might be
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Speaker 8: what you would expect if they're there in their protective capacity,
19:53
Speaker 8: but it shows how tricky it is to have troops
19:56
Speaker 8: out there and to expect that they're not going to
19:58
Speaker 8: be involved in law enforcement activity, because it's very hard
20:03
Speaker 8: to draw the boundary there. If they're in a protective capacity,
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Speaker 8: they could very well end up having to engage in
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Speaker 8: law enforcement activities. And typically our troops are not trained
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Speaker 8: for that. They don't know how to conduct arrests. They
20:17
Speaker 8: don't necessarily know how to intersect with civilians who were
20:22
Speaker 8: engaged in criminal activities. They don't know how to preserve
20:25
Speaker 8: a crime scene. They're not necessarily trained in that. And
20:29
Speaker 8: so though our National Guard troops are excellent at what
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Speaker 8: they do, crime control is not their beat. And this
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Speaker 8: is presumably one of the reasons why General Sherman was
20:40
Speaker 8: concerned about this operation.
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Speaker 3: If all the troops were doing was guarding the ice agents,
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Speaker 3: would that still be a problem under possecoma tatis.
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Speaker 8: Well, in theory no, but as soon as you're guarding personnel,
20:55
Speaker 8: you could very easily stray into activity that case passcomatatas.
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Speaker 8: So what if there's an attack on a federal officer
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Speaker 8: and there's no one around but National Guard troops to
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Speaker 8: engage in the detention or make that arrest. This is
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Speaker 8: what happened in one incident involving a veteran who was
21:19
Speaker 8: trying to enter the Dureau of Veterans' Affairs, and the
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Speaker 8: Marines detained him and he was detained for two hours. Roughly.
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Speaker 8: It was really a mistake, but because there were no
21:33
Speaker 8: LAPD present at the time, they viewed it necessary to
21:37
Speaker 8: hold him and detain him until law enforcement officers could
21:41
Speaker 8: show up. The question is whether or not there was
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Speaker 8: a violation of posse commatadas just in the detention itself.
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Speaker 3: Trump has made threats against other cities.
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Speaker 2: That's going to serve as a beacon for New York, Chicago,
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Speaker 2: Los Angeles and other places. All over the country. This
22:01
Speaker 2: whole our whole country is going to be so different
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Speaker 2: and so great.
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Speaker 8: If President Trump tries to, for example, take over the
22:10
Speaker 8: New York Police or the Chicago Police there, he will
22:14
Speaker 8: not have the home rule advantage that he has in DC,
22:18
Speaker 8: and he will not find himself in a very good
22:20
Speaker 8: legal posture there. He really doesn't have any basis and
22:24
Speaker 8: the control over the police is strictly reserved to the
22:27
Speaker 8: state under the Tenth Amendment. That's core Tenth Amendment doctrine.
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Speaker 8: I think that's something that any federal judge would reject
22:35
Speaker 8: very quickly. Now. As far as federalization of the National
22:40
Speaker 8: Guard in any other states, he will be in a
22:43
Speaker 8: similar posture to California, which is why this California trial
22:48
Speaker 8: is so important. It will teach judges what Judge Briar
22:53
Speaker 8: is going through right now, and the evidence that Judge
22:56
Speaker 8: Briar is fifting through will be extremely instructive for federal
23:00
Speaker 8: judges in other jurisdictions as they inevitably wait posscommatadis issues
23:07
Speaker 8: in potentially the state of New York or the state
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Speaker 8: of Illinois. I think we're going to find a situation
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Speaker 8: replicated in clarity about the boundaries set by possycommatatis and
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Speaker 8: what federal troops are permitted to do and not do
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Speaker 8: will be extremely important in the coming weeks.
23:23
Speaker 3: I'm sure we'll be talking again. Thanks so much, Claire.
23:26
Speaker 3: That's professor Claire Finkelstein at the University of Pennsylvania. Coming
23:30
Speaker 3: up next. A win for the administration as a federal
23:34
Speaker 3: circuit court allows it to block billions of dollars in
23:37
Speaker 3: foreign aid. I'm June Grosso and you're listening to Bloomberg.
23:44
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
23:49
Speaker 3: Attorney General Pam Bondi has frequently chastised federal judges who've
23:55
Speaker 3: held back President Trump's agenda, calling them liberal activists and
24:00
Speaker 3: of control.
24:01
Speaker 9: Judges have used these injunctions to block virtually all of
24:05
Speaker 9: President Trump's policies. To put this in perspective, there are
24:10
Speaker 9: ninety four federal judicial districts. Five of those districts throughout
24:17
Speaker 9: this country held thirty five of the nationwide injunctions. Think
24:22
Speaker 9: about that, ninety four districts and thirty five out of
24:26
Speaker 9: the forty opinions with nationwide injunctions came from five liberal
24:31
Speaker 9: districts in this country.
24:33
Speaker 3: One of those so called liberal districts where nationwide injunctions
24:37
Speaker 3: have been issued is the District of Maryland, and the
24:41
Speaker 3: Justice Department has picked that district to file an unprecedented
24:45
Speaker 3: lawsuit against all the federal judges in the district. It's
24:50
Speaker 3: over a standing order that blocks for two days the
24:53
Speaker 3: deportations of detained immigrants who file habeas petitions. Of course,
24:59
Speaker 3: Maryland is also the district that drew national attention in
25:03
Speaker 3: the case of Kilmar Abrego Garcia, who was wrongfully deported
25:07
Speaker 3: to l Salvador. Joining me is constitutional law expert Harold Krant,
25:12
Speaker 3: a professor at the Chicago Kent College of Law. How
25:16
Speaker 3: this lawsuit is unprecedented? How much is this a ratcheting
25:20
Speaker 3: up of the Trump administration's power struggle with the judiciary.
25:24
Speaker 10: The Department of Justice had options here. They could have
25:27
Speaker 10: easily chosen one of the twelve cases in which the
25:30
Speaker 10: automatic stay had been imposed to file an appeal, and
25:33
Speaker 10: they would have been able to obtain an orderly fashion
25:36
Speaker 10: of pellet review of the propriety of the District of
25:40
Speaker 10: Maryland standing order which imposed the automatic stay in an
25:43
Speaker 10: immigration Abeast context. They chose not to do that. They
25:47
Speaker 10: ratcheted up the tension by filing an unteralbleled lawsuit against
25:51
Speaker 10: all members of the District of Maryland individually as judges,
25:56
Speaker 10: and that sets the framework for a very important separation
26:00
Speaker 10: of powish challenge, namely whether the executive branch can sue
26:05
Speaker 10: judges get information about them depositions because they don't like
26:10
Speaker 10: a standing order. So the procedural posture itself is what
26:13
Speaker 10: is the most troubling aspect of this case, not the
26:16
Speaker 10: only one that's certainly the most troubling.
26:18
Speaker 3: The government says that two day pause in deportations inhibits
26:22
Speaker 3: the president's ability to enforce federal immigration laws, and that
26:26
Speaker 3: the Chief Judge has no authority to issue such a
26:29
Speaker 3: blanket order.
26:30
Speaker 10: And so many courts of appeals, and in the case
26:34
Speaker 10: I think they cited five courts of appeals have automatic
26:37
Speaker 10: stays in certain contexts in order to preserve the jurisdiction
26:40
Speaker 10: of the court. And so the District of Maryland is
26:43
Speaker 10: the site which famously gave rise to the Kilmer Abrago
26:47
Speaker 10: Garcia case, where the government shipped Garcia out of the
26:52
Speaker 10: country surreptitiously while a challenge was going on. And so
26:57
Speaker 10: because they had been burned, and the Department just had
27:00
Speaker 10: interfered with the jurisdiction of the court previously. That's what
27:04
Speaker 10: led to this standing order being promulgated. So, I mean,
27:08
Speaker 10: the Department Justice is right in the sense that an
27:10
Speaker 10: automatic stay does interfere with cases in which the individual
27:16
Speaker 10: has no claim whatsoever not to be deported. But you know,
27:18
Speaker 10: the delay is only for two days, and given what's
27:21
Speaker 10: happened before in terms of the due process violation that
27:24
Speaker 10: the government has committed by transporting Garcia and others away
27:28
Speaker 10: without any kind of chance for hearing, the court followed
27:31
Speaker 10: the lead of other court's appeals, which said, look, just
27:34
Speaker 10: give us two days to see if there's any substance here,
27:37
Speaker 10: and if there's no substance, we'll say, go ahead, shift
27:40
Speaker 10: the person out. So the Department Justice has taken a
27:43
Speaker 10: very unusual stance in this context to again increase the
27:47
Speaker 10: pressure on judges by suing them, which is unparalleled. And
27:52
Speaker 10: the hearing the Trump appointee seems very dubious as to
27:56
Speaker 10: the validity of the Department of Justices challenge and.
28:01
Speaker 3: Judge Thomas Cullen normally sits in Roanoke, Virginia, but the
28:05
Speaker 3: Fourth Circuit assigned him to hear this case because all
28:09
Speaker 3: the federal judges in Maryland were being sued and so
28:13
Speaker 3: were conflicted out. So Judge Cullin, a Trump appointee, tell
28:18
Speaker 3: the government lawyer, one of the things about me is
28:21
Speaker 3: I don't have a very good poker face, and I
28:23
Speaker 3: think you've probably picked up on the fact that I
28:26
Speaker 3: have some skepticism. He had a lot of skepticism if
28:29
Speaker 3: you look at what happened at the hearing. He also
28:32
Speaker 3: questioned whether this could lead to other executive branch litigation
28:37
Speaker 3: against federal benches all the way up to the Supreme Court.
28:41
Speaker 4: Yeah.
28:41
Speaker 10: I mean, we don't want the specter of DOJ suing
28:45
Speaker 10: judges and having other judges than sitting to judge the
28:49
Speaker 10: lawsuit against judges, and that comes with subpoenas, depositions, discovery.
28:56
Speaker 10: Not only said unseemly, it was certainly chill independent judging.
29:00
Speaker 10: So the very fact of rumging around and the judge's
29:05
Speaker 10: files to determine what lay behind in this case, the
29:08
Speaker 10: standing order kind of correspondence there was, would inhibit judicial
29:12
Speaker 10: freedom and really compromise the independence of the judiciary as
29:16
Speaker 10: we know it. So I think the Judge came was
29:18
Speaker 10: right on in saying that even if there were some
29:21
Speaker 10: kind of issue on the merits here and there's something
29:25
Speaker 10: of a case that the Department Justice has, this is
29:27
Speaker 10: not the way to challenge it. Take it normally and
29:31
Speaker 10: challenge it up to the Four Circuit, and if you
29:33
Speaker 10: need to the Supreme Court, don't sue the judges themselves.
29:38
Speaker 3: This illustrates the Trump administration's offensive against the federal judiciary.
29:44
Speaker 3: There's the inflammatory rhetoric, allegations that the administration has ignored
29:49
Speaker 3: court orders, and they filed ethics complaints against two federal
29:54
Speaker 3: judges for things that they said in the courtroom. What's
29:57
Speaker 3: the administration's strategy.
30:00
Speaker 10: Certainly part of the rationale of the Trump administration is
30:04
Speaker 10: to receive a softer reception in the courts. So the theory,
30:10
Speaker 10: I guess, is that you have a broadside here and
30:13
Speaker 10: a broadside there that judges down the road will be
30:16
Speaker 10: more receptive to their arguments. But it could backfire. This
30:20
Speaker 10: kind of action could scare even judges who would otherwise
30:23
Speaker 10: be sympathetic with the Trump administration peak say, if we
30:26
Speaker 10: want to have any kind of independent judging left in
30:29
Speaker 10: this country, we can't have the executive grant, suing and
30:33
Speaker 10: deposing and seeking private correspondence from judges in particular cases.
30:39
Speaker 10: So that's the spectru of what we have through this lawsuit.
30:42
Speaker 10: And again I don't think the Trumper administration will achieve
30:45
Speaker 10: their ends through this means.
30:47
Speaker 3: I want to turn out of a significant win for
30:49
Speaker 3: President Trump in his efforts to dissolve the US Agency
30:53
Speaker 3: for International Development and to withhold funding from other programs.
30:58
Speaker 3: The DC Circuit Court sort of Appeals, in a split
31:01
Speaker 3: decision this week, rule that the Trump administration can cut
31:05
Speaker 3: billions of dollars in foreign assistance funds already approved by
31:10
Speaker 3: Congress for this year. How significant is this decision?
31:14
Speaker 10: So, I think this is a huge way in on
31:16
Speaker 10: several different grounds for the Trump administration. And in this case,
31:19
Speaker 10: the District Court had ordered the money to be dispersed
31:22
Speaker 10: and said that Congress was clear President has no independent
31:26
Speaker 10: poundment authority these acting and violation of the Empowerment Control Act. Therefore,
31:30
Speaker 10: the disrect Court judge directed the administration to spend the money,
31:34
Speaker 10: and the two to one decision the DC Court of
31:36
Speaker 10: Appeals overturned that on two different rationales. The first rationale,
31:41
Speaker 10: which I considered to be the broad one, and more
31:43
Speaker 10: frightening is that the court said that if you only
31:47
Speaker 10: are arguing that the president violates the statute, you don't
31:51
Speaker 10: have a cause of action. There is no power for
31:54
Speaker 10: anybody who's injured by direct presidential action based upon violation
31:59
Speaker 10: of statute that can be brought in the federal courts.
32:02
Speaker 10: This is an astounding decision of immense significance because the
32:06
Speaker 10: argument is whether the president just stonewalls violates a statute,
32:11
Speaker 10: ignores a statute, et cetera, et cetera, that no one
32:14
Speaker 10: can sue to challenge that because the president is immune
32:18
Speaker 10: from suit. So to me, that is a very consequential,
32:22
Speaker 10: incredibly broad understanding of precedent and would be very deleterious
32:28
Speaker 10: in terms of establishing constraints on presidential authority. The majority
32:33
Speaker 10: also use the second rational that's much more narrow and
32:36
Speaker 10: I think has some plausibility to it. There, the Court
32:39
Speaker 10: said that Congress, in creating the Empowerment Control Act, established
32:43
Speaker 10: the very sensitive procedure by which the Controller General, an
32:48
Speaker 10: agent of Congress, can decide to sue the president the
32:52
Speaker 10: violation of the directions from Congress. And so the Court
32:57
Speaker 10: said that there is an implicit preclusion of review, that
33:01
Speaker 10: Congress wanted these kinds of empowerment controversies to be adjudicated
33:05
Speaker 10: only by the Controller General after consultation with Congress, not
33:10
Speaker 10: by private third parties. I think the issue may be closer,
33:13
Speaker 10: but certainly my point is that this would have a
33:16
Speaker 10: much more narrow impact upon future cases. In most of
33:20
Speaker 10: these other cases we have, the federal employee cases, the
33:22
Speaker 10: grant cases, there is no implicit alternative procedure, at least arguably,
33:28
Speaker 10: and so there would not be as much of an
33:30
Speaker 10: impact upon future litigation. But this first rationale forwarded by
33:34
Speaker 10: the Court is astonishing again, and they've said, as shocking
33:38
Speaker 10: as there may be, that no one can sue for
33:41
Speaker 10: statutory violation by the president, that the president's simply immune
33:46
Speaker 10: from that suit because the Administrative Procedure Act doesn't waive
33:48
Speaker 10: his his immunity and there's no other cause of action
33:51
Speaker 10: available to make sure that the president follows statutes.
33:56
Speaker 3: And could this same theory of immunity be applied if
34:00
Speaker 3: the president violates other statutes.
34:03
Speaker 10: That's one of the basic assumptions of our entire separation
34:06
Speaker 10: of powers is that the president must comply with statutes,
34:10
Speaker 10: and so this decision would intensive munize the president from
34:15
Speaker 10: suits not only about releasing foreign aid as in this case,
34:18
Speaker 10: but in so many other contexts as well, discharging employees,
34:23
Speaker 10: canceling grants, et cetera, et cetera. If you could sue
34:26
Speaker 10: a subordinate executive grant official, that would enable the plaintiffs
34:31
Speaker 10: to get into court. But according to the DC Circuit
34:33
Speaker 10: in this case, there could be no direct claim against
34:36
Speaker 10: the President in this case himself.
34:39
Speaker 3: So, as you mentioned, there was a two to one decision,
34:42
Speaker 3: with judges appointed by Donald Trump and George H. W.
34:46
Speaker 3: Bush in the majority, and of Biden appointee dissenting. If
34:52
Speaker 3: the challengers ask the DC Circuit, the entire DC Circuit
34:57
Speaker 3: to reconsider the decision, judges appointed by Democrats hold the majority.
35:01
Speaker 6: There.
35:02
Speaker 3: I mean, it's sad to look at this as democratic
35:05
Speaker 3: appointed judges versus Republican appointed judges, but that's the way
35:09
Speaker 3: it seems to be breaking down in many of these
35:12
Speaker 3: cases at the DC Circuit, including on Friday in a
35:16
Speaker 3: case okaying the dismantling of the CFPB.
35:20
Speaker 10: Yeah, and in this case, I just find that one
35:22
Speaker 10: aspect of the majority's decision so frightening and so destructive
35:27
Speaker 10: of our constitutional order. I'm sure that the entire court
35:30
Speaker 10: that took up this case would at least narrow the
35:32
Speaker 10: scope of the majority's decision. And again going back to
35:37
Speaker 10: the case we discussed with respect to the standing order
35:40
Speaker 10: of the District of Maryland. They're at least a Trump appointee,
35:44
Speaker 10: I think will have the independence of minds seemingly so
35:47
Speaker 10: far to say no, the Justice Department has gone too far,
35:50
Speaker 10: and I think that's healthy. It's healthy to have sometimes
35:54
Speaker 10: Biden judges going against Biden or against democratic sort of positions,
35:58
Speaker 10: and publican judges the same. So we'll have to see
36:02
Speaker 10: what happens and plays out if the full court takes
36:05
Speaker 10: this case as a whole, and that remains to be seen.
36:08
Speaker 3: I'll be keeping my eye on the DC's circuit. Thanks Hal.
36:11
Speaker 3: That's Professor Harold Krent of the Chicago Kent College of Law.
36:15
Speaker 3: And that's it for this edition of the Bloomberg Law Show.
36:18
Speaker 3: Remember you can always get the latest legal news on
36:20
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36:25
Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,
36:30
Speaker 3: and remember to tune into the Bloomberg Law Show every
36:33
Speaker 3: weeknight at ten pm Wall Street Time, I'm June Grosso
36:37
Speaker 3: and you're listening to Bloomberg