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DOJ Crisis As Prosecutors Quit & Trump Court Losses · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: My fellow New Yorkists. As you may have heard, the
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Speaker 2: Department of Justice has directed that the case against me
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Speaker 2: be dismissed, finally ending in months long saga.
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Speaker 3: Not so fast, The saga over the criminal corruption case
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Speaker 3: against New York City Mayor Eric Adams is not over.
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Speaker 3: In fact, it's turning into a remarkable showdown between Trump's
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Speaker 3: top Justice Department officials in DC and the US Attorney's
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Speaker 3: office for the Southern District of New York. In a
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Speaker 3: stunning memo on Monday, Acting Deputy Attorney General Emil Beauvey
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Speaker 3: told federal prosecutors in Manhattan to dismiss the case against Adams.
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Speaker 3: Even more stunning, the reasons given were political and had
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Speaker 3: nothing to do with the evidence against Adams, the law,
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Speaker 3: or the merits of the case. But the interim Manhattan
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Speaker 3: US Attorney, Danielle Sassoon, resigned rather than carry out the
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Speaker 3: order to dismiss the Adams case, and that set off
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Speaker 3: a string of resignations, with five high ranking Justice Department
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Speaker 3: officials in DC and the lead prosecutor in the Adams
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Speaker 3: case in Manhattan all refusing to dismiss the case and resigning.
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Speaker 3: Joining me is former federal Prosecutor Robert Mintz, a partner
1:30
Speaker 3: Macarter in English, Bob. Some are comparing the events of
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Speaker 3: this week to the Saturday Night massacre during the Nixon administration.
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Speaker 3: Let's put this into context. How unusual is the order
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Speaker 3: from the acting Deputy ag to dismiss the Adams case
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Speaker 3: so that the mayor could help with Trump's immigration crackdown
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Speaker 3: with no consideration of the facts or the law.
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Speaker 4: It's extremely unusual for the Department of Justice to be
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Speaker 4: ordering the dismissal of appending criminal case when that decision
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Speaker 4: was not based on the merits of the case itself.
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Speaker 4: Mister Beauvet's directive to the Southern District made clear that
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Speaker 4: the decision to dismiss the case without prejudice at this
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Speaker 4: time was not based on the strength of the evidence
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Speaker 4: or the legal theory behind the case. So it raises
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Speaker 4: the question what then drove this decision to dismiss the case,
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Speaker 4: and mister Beauvet was straightforward in saying that it was
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Speaker 4: driven by the fact that the investigation and the pending
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Speaker 4: criminal trial would interfere with Mayor Adam's ability to carry
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Speaker 4: out his duties as the mayor of the City of
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Speaker 4: New York and to enforce the immigration policies at the
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Speaker 4: Trump administration was seeking to carry out. So it really
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Speaker 4: is something that does seem to be more tied to
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Speaker 4: politics than it does to the legal strength of the case.
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Speaker 3: Then we have this extraordinary series of events where the
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Speaker 3: interim Manhattan US Attorney, Danielle Sassoon, resigns rather than dismissing
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Speaker 3: the case, and she wrote an eight page letter to
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Speaker 3: the acting Attorney General Beauvet laying out why she thought
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Speaker 3: the case had been properly charged, saying she had no
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Speaker 3: good faith reason to drop the charges, and raising concerns
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Speaker 3: that Adams and the Trump administration had engaged in an
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Speaker 3: improper quid pro quo. How troubling is.
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Speaker 4: That Let's take a step back here to focus on
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Speaker 4: the fact that in any political corruption case, when a
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Speaker 4: public official is indicted, the fact that they have to
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Speaker 4: then defend themselves, prepare a defense, perhaps go through a
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Speaker 4: trial will always interfere with their ability to carry out
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Speaker 4: their duties as an elected official. If you were to
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Speaker 4: not pursue cases on the basis that the indictment and
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Speaker 4: subsequent criminal trials would then impair the public officials' ability
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Speaker 4: to carry out their public duties. Then you would never
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Speaker 4: indict any sitting elected officials. So the fact that it
4:03
Speaker 4: is even being discussed in connection with the dismissal of
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Speaker 4: the case is highly unusual, and based upon the letter
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Speaker 4: that Miss Deston wrote to the Department of Justice, where
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Speaker 4: she explicitly alleged that there was a quid pro quo
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Speaker 4: discussion that Mayor Adams would not be in a position
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Speaker 4: to assist the Department of Justices immigration enforcement priorities if
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Speaker 4: the case goes forward is troubling because that's really not
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Speaker 4: a topic that should enter into this decision. The decision
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Speaker 4: whether or not to pursue this case should be focused
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Speaker 4: exclusively on the merits of the case and should not
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Speaker 4: really have anything to do with whether or not the
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Speaker 4: case going forward with imperive public officials ability to carry
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Speaker 4: out their duties as a public official.
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Speaker 3: She also makes this remarkable statement, the law does not
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Speaker 3: support a dismissal, and I am confident that Adams has
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Speaker 3: committed the crime with which he is charged. It's not
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Speaker 3: often you hear federal prosecutors make those kinds of claims
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Speaker 3: about the evidence. Usually they'll say it's up to the
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Speaker 3: jury to decide something like that. Here she's saying, I'm
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Speaker 3: confident that he's guilty.
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Speaker 4: There is so much that is unprecedented about this standoff
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Speaker 4: between the Southern District of New York and the Department
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Speaker 4: of Justice that it's really almost impossible to list it.
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Speaker 4: In every respect, We've never really seen a case where
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Speaker 4: a US attorney's office has simply rejected the directive by
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Speaker 4: the Attorney General's office to dismiss a case and have
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Speaker 4: it play out so openly and so publicly and ultimately
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Speaker 4: lead to the resignation of so many Department of Justice
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Speaker 4: and US attorneys simply on the basis that they are
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Speaker 4: refusing to carry out this directive.
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Speaker 3: And Sassoon has conservative credentials. She's a Republican who clerk
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Speaker 3: for Justice antonin Scalia, and she's a member of the
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Speaker 3: Federalist Society.
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Speaker 5: Now.
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Speaker 3: Beauvet, who by the way, was Trump's personal attorney, wrote
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Speaker 3: his own eight page letter back accusing Sassoon of insubordination,
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Speaker 3: and he sort of doubled down on the reason for
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Speaker 3: dropping the prosecution being that it's interfering with Adam's ability
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Speaker 3: to govern and he.
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Speaker 4: Fires back with language that is as accusatory as hers
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Speaker 4: was to him. He basically says that she is not
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Speaker 4: following her oath to uphold the Constitution, and she's disobeying
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Speaker 4: direct orders to implement the policy of a duly elected president.
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Speaker 4: The question is not really whether she is failing to
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Speaker 4: follow those orders.
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Speaker 1: But why.
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Speaker 4: And she challenges the directive by saying that the considerations
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Speaker 4: that Mlbauve cites as the reasons for dismissing the case
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Speaker 4: are inappropriate and not something that a prosecutor has a
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Speaker 4: duty to follow. That's really what this standoff is all about.
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Speaker 3: The next event, the Department's Public Integrity Section in DC
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Speaker 3: is asked to take over the case, and the five
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Speaker 3: senior level officials overseeing the unit resign rather than dismissing
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Speaker 3: the case. Now back to Manhattan, where the lead prosecutor
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Speaker 3: on the Adams case, Hagen Scotten, also resigned, writing a
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Speaker 3: fiery letter saying that most assistant US attorneys would know
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Speaker 3: it was wrong to use prosecutorial powers to influence an
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Speaker 3: elected official. Quote, I expect you will eventually find someone
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Speaker 3: who is enough of a fool or enough of a
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Speaker 3: coward to file your motion, but it was never going
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Speaker 3: to be me. Scotton is a former clerk to Chief
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Speaker 3: Justice John Roberts and a decorated war veteran. This is
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Speaker 3: all so unusual coming from federal prosecutors.
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Speaker 4: Sure, now, that's exactly right. Federal prosecutors generally do not
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Speaker 4: comment about tending criminal cases, nor do they comment publicly
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Speaker 4: about disputes going on between a US Attorney's office and
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Speaker 4: main Justice, which does happen from time to time. But
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Speaker 4: this has exploded into the public and we really have
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Speaker 4: a situation here where this dispute and this standoff between
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Speaker 4: prosecutors are resigning one after another, refusing to carry out
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Speaker 4: this directive. This has really overtaken almost the decision to
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Speaker 4: dismiss the case and to become a story unto itself.
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Speaker 3: So Bovey and Justice Department officials finally got their way
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Speaker 3: on Friday evening. They filed a motion to dismiss the
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Speaker 3: Adams case with the judge. It was hand signed by
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Speaker 3: Beauvay and electronically signed by the acting chief of the
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Speaker 3: Justice Department's Criminal Division and also a veteran public corruption prosecutor.
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Speaker 3: So the next move will be from Judge dale Ho,
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Speaker 3: who's overseeing the case.
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Speaker 4: What do you think he'll do well? That's really the
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Speaker 4: the next interesting question here, because you have the judge
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Speaker 4: sitting back and watching all of this play out in
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Speaker 4: the news media, and the trial judge may well want
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Speaker 4: to hold a hearing to get into the reasons for
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Speaker 4: the Department of Justice wanting to dismiss this pending criminal case,
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Speaker 4: and that could play out in a very embarrassing way
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Speaker 4: for the Department of Justice, as Department of Justice officials
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Speaker 4: will have to provide reasons for this that don't appear
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Speaker 4: to be political, particularly in a case where the decision
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Speaker 4: is expressly not made based on the merits of the case. Ultimately,
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Speaker 4: the judge will likely have to grant the motion because
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Speaker 4: he can't really force the Department of Justice to prosecute
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Speaker 4: the case against their will. But the hearing itself could
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Speaker 4: prove to be something that is embarrassing for the Department
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Speaker 4: of Justice and could have longer term ramifications in terms
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Speaker 4: of any other decisions made by the Department of Justice
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Speaker 4: with regard to other pending cases.
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Speaker 3: This dismissal would be without prejudice, meaning the Justice Department
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Speaker 3: can bring it again, and Adams is going to be
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Speaker 3: required to sign basically a waiver saying that he understands that,
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Speaker 3: and that's led some New York Democrats to express concerns
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Speaker 3: and calls for Adam's resignation, saying that he'll now be
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Speaker 3: beholden to the Trump administration.
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Speaker 4: Sometimes prosecutors will dismiss the case without prejudice, and it
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Speaker 4: gives them the right to resume the case again. But
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Speaker 4: often that is based on questions about the strength of
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Speaker 4: the evidence. Maybe it has to do with whether or
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Speaker 4: not certain witnesses are available now for trial, that sort
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Speaker 4: of thing. It's not based upon whether or not the
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Speaker 4: public official can carry out his duties as a public official.
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Speaker 4: And it does give the inference that because this case
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Speaker 4: is still hanging over the Mayor's head, he has some
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Speaker 4: incentive to curry favor with the trumpet medministration in order
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Speaker 4: to try to convince them not to reinstitute the case.
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Speaker 1: And after the election, of.
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Speaker 3: Course, Mayor Adams has denied that there was any quid
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Speaker 3: pro quo. Thanks so much for joining me, Bob. That's
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Speaker 3: Robert Mintz of McCarter and English, coming up next on
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Speaker 3: The Bloomberg Law Show. Federal judges have provided the only
11:19
Speaker 3: resistance to Trump's aggressive agenda, blocking executive orders, freezing funding,
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Speaker 3: doing away with birthright citizenship, and putting thousands of USAID
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Speaker 3: workers on leave, just to name a few. We'll take
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Speaker 3: a look at what's ahead as the Justice Department is
11:36
Speaker 3: revamped by the new Attorney General. I'm June Grosso and
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Speaker 3: you're listening to Bloomberg. The judiciary has been the only
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Speaker 3: restraint on President Donald Trump's aggressive agenda. Federal judges have
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Speaker 3: blocked Trump's executive orders, freezing federal funding, doing away with
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Speaker 3: birthright citizenship, putting thousands of us AID employees on lee,
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Speaker 3: and threatening the funding of hospitals that provide gender affirming
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Speaker 3: care for minors. As Trump's agenda faces widespread pushback from
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Speaker 3: the federal courts, top administration officials are openly questioning the
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Speaker 3: judiciary's authority to serve as a check on the president.
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Speaker 3: From Speaker of the House Mike Johnson, who said that
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Speaker 3: judges should just back off.
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Speaker 6: I think that the courts should take a step back
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Speaker 6: and allow these processes to play out.
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Speaker 7: What we're doing is good and right for the American people.
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Speaker 3: To Vice President jd Vance, who's advocated ignoring court orders.
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Speaker 3: Here he is on the podcast Jack Murphy Live in
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Speaker 3: twenty twenty one.
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Speaker 4: And when the courts stop, you stand before the country
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Speaker 4: like Andrew Jackson did, and say the Chief Justice has
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Speaker 4: made his ruling, now let him enforce it.
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Speaker 3: Trump himself has a history of attacking judges who rule
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Speaker 3: against him, and he's blaming them for slowing down his agenda.
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Speaker 5: And today you're not allowed to look for theft and fraud, etc.
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Speaker 5: Then we don't have much of a country. So no
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Speaker 5: judge should be no judge should frankly be allowed to
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Speaker 5: make that kind of a decision.
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Speaker 6: Is a disgrace.
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Speaker 3: Joining me is constitutional law. Professor David Souper of Georgetown
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Speaker 3: Law JD Vance said judges aren't allowed to control the
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Speaker 3: executive's legitimate power fair enough, but he's argued that presidents
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Speaker 3: can and should ignore court orders that infringe on their
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Speaker 3: rightful executive powers. Quoting Andrew Jackson, is it concerning when
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Speaker 3: the vice president a lawyer? By the way, advocates like that.
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Speaker 7: It certainly is worrying, and presidents and other high officials
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Speaker 7: who have been engaged in illegal conduct have been saying
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Speaker 7: that for over two hundred years. But it's no less
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Speaker 7: disturbing when it happened. Of course, courts can't issue illegitimate orders,
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Speaker 7: but the solution when they do that is to appeal them.
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Speaker 3: One theory is that Trump is doing this to test
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Speaker 3: the limits of law so that these cases will go
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Speaker 3: to the Supreme Court, which will expand his presidential authority.
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Speaker 3: I mean, do you think it goes that far?
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Speaker 4: Oh?
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Speaker 7: I think it does go that far. There's a few
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Speaker 7: of these issues that are arguably separate, such as the
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Speaker 7: birthright citizenship, where he's violating not a statute but the
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Speaker 7: Constitution itself. But for the most part, he's going out
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Speaker 7: of his way to violate statutes that say how the
14:29
Speaker 7: federal government should operate, and in doing that, he's setting
14:34
Speaker 7: up a test case about whether any of these statutes
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Speaker 7: find him at all. Some things he's trying to do,
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Speaker 7: they are legal ways to do it, and he hasn't
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Speaker 7: tried to do it legally. He's deliberately violated the statute
14:44
Speaker 7: to set up a fight.
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Speaker 3: What are some of the things he's done that he
14:47
Speaker 3: could have done legally?
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Speaker 7: He could have done a buyout under existing BIOT authority
14:53
Speaker 7: that requires an agency specific examination of how many people
14:58
Speaker 7: they want to leave and in what positions but he
15:02
Speaker 7: didn't bother to use that authority. He did this mass email.
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Speaker 7: It's likely to cause us to lose precisely the federal workers.
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Speaker 7: We can't afford to lose.
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Speaker 3: You mentioned that a lot of these orders seem to
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Speaker 3: fly in the face of the law. Who do you
15:16
Speaker 3: think is writing these and are they getting legal advice?
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Speaker 7: I think piece are written by the people behind Project
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Speaker 7: twenty twenty five, and those people have an extremely ambitious,
15:28
Speaker 7: radical agenda of overturning the separation of powers and the
15:32
Speaker 7: systems checks and balances has guided this country since its founding.
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Speaker 7: That's the legal advice is behind all of this. The
15:41
Speaker 7: rest of what they're doing is hard to take seriously.
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Speaker 7: You read references to cases in their memos. You go
15:49
Speaker 7: look up to the case and it says the opposite.
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Speaker 7: So I don't think this is a serious effort to
15:55
Speaker 7: think about what the law is. This is a radical
15:58
Speaker 7: effort to change.
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Speaker 3: With the law is well. The Supreme Court has been
16:02
Speaker 3: known to ignore president and lest July came out with
16:05
Speaker 3: a controversial decision on presidential authority, granting immunity from prosecution
16:12
Speaker 3: when presidents are acting within their official duties. So do
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Speaker 3: you think the Supreme Court justices will be receptive to
16:20
Speaker 3: Trump's challenges to the law.
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Speaker 7: I don't the implication of this is that he's not
16:27
Speaker 7: governed by the law and that the courts have no
16:30
Speaker 7: power over him. That earns Supreme Court justice into a
16:37
Speaker 7: very modest, relatively insignificant figure. And I don't think that
16:43
Speaker 7: these justices are willing to give up their constitutional role
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Speaker 7: and become figureheads. I think they want to decide cases
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Speaker 7: based on the law, and President Trump's theories here are
16:56
Speaker 7: so radical that they would greatly limit the rule of
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Speaker 7: law in this country.
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Speaker 3: I want to discuss the Justice Department under new Attorney
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Speaker 3: General Pam Bondi. There's been this remarkable string of resignations
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Speaker 3: at Justice by lawyers who refuse to follow the order
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Speaker 3: to dismiss the corruption case against New York City Mayor
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Speaker 3: Eric Adams. One of Bondi's first memos warn Justice Department
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Speaker 3: attorneys about refusing to advance legal arguments they disagree with.
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Speaker 3: Is that the way the Justice Department normally works. You know,
17:32
Speaker 3: you get an assignment as a lawyer, and you argue
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Speaker 3: the side that the Justice Department is taken.
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Speaker 8: Well.
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Speaker 7: Lawyers are always required to act in the best interests
17:43
Speaker 7: that they're client to the extent permitted by law and
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Speaker 7: legal ethics. So it's not surprising that a lawyer might
17:51
Speaker 7: make an argument that if they were a judge, they
17:53
Speaker 7: would fou against. That's ordinary. But the implication here is
17:59
Speaker 7: that lawyers might be required to make arguments that they
18:03
Speaker 7: regard as frivolous, and that is generally not allowed in
18:07
Speaker 7: legal ethics. We expect lawyers to make good faith arguments
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Speaker 7: to courts, not silly ones, and this could be read
18:15
Speaker 7: as requiring the latter.
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Speaker 3: In some of these cases challenging Trump's executive orders, the
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Speaker 3: arguments by Justice Department lawyers have been novel, to say
18:26
Speaker 3: the least. I'm thinking of the many cases filed challenging
18:32
Speaker 3: the ending of birthright citizenship, four out of four judges
18:36
Speaker 3: found that unconstitutional, and a few of them were highly critical,
18:40
Speaker 3: saying that it was an attempt to rewrite the Constitution.
18:44
Speaker 3: Here's Seattle judge John Kunauer.
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Speaker 6: It has become ever more apparent that to our president,
18:51
Speaker 6: the rule of law is but an impediment to his
18:55
Speaker 6: policy goals. There are moments in the world's history when
19:00
Speaker 6: people look back and ask where were the lawyers, Where
19:04
Speaker 6: were the judges. In these moments, the rule of law
19:07
Speaker 6: becomes especially vulnerable. I refuse to let that be can
19:11
Speaker 6: go dark today.
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Speaker 3: So does the Justice Department risk losing credibility with the
19:17
Speaker 3: federal judiciary.
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Speaker 7: Yes, and I think that's already starting to happen. Some
19:21
Speaker 7: of the arguments that have been put forward, not just
19:24
Speaker 7: in the birthright citizenship case, but in the funding freeze
19:28
Speaker 7: cases have been very strange, and the judges have commented
19:33
Speaker 7: on them. A judge in one of the funding freeze
19:35
Speaker 7: cases said that the government lawyers were claiming that the
19:41
Speaker 7: executive agencies must follow the president's priorities. Now, executive agencies
19:46
Speaker 7: must follow the law because even the president is consciously
19:50
Speaker 7: required to take care that the laws be faithfully executed.
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Speaker 3: Speaking of losing credibility, during her confirmation hearings, Pam Bondi
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Speaker 3: promis that there would be no enemies list at the
20:03
Speaker 3: Justice Department. But then on her first day, she created
20:07
Speaker 3: a weaponization working group and she's targeting for investigation Special
20:12
Speaker 3: Counsel Jack Smith, New York ag Letitia James, Manhattan District
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Speaker 3: Attorney Alvin Bragg Justice Department personnel who worked on January sixth, etc.
20:23
Speaker 3: Accusing them of improper investigative tactics and unethical behavior. I mean,
20:29
Speaker 3: what's your take on the ag going after, for example,
20:33
Speaker 3: the elected district attorney in Manhattan.
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Speaker 7: In principle, there can be violations taken by district attorneys.
20:44
Speaker 7: Some of the actions in the Civil Rights era were
20:48
Speaker 7: against people using government powers to perpetuate illegal racist subjugation.
20:54
Speaker 7: So the fact that someone is a state attorney general
20:58
Speaker 7: or a district attorney doesn't make them waterproof. But in
21:04
Speaker 7: this case, the strong implication is is that this is
21:07
Speaker 7: payback for prosecuting or investigating her boss, President Trump. And
21:13
Speaker 7: if the Justice Department is seen as making decisions based
21:17
Speaker 7: on the personal interests of officials. Mister Bragg normally prosecuted
21:22
Speaker 7: mister Trump, but persuade that a jury of his peers
21:25
Speaker 7: to convict them all accounts, then the Justice Department becomes
21:29
Speaker 7: the political tool and will have very little respect.
21:33
Speaker 3: Something that I think came as a surprise to many
21:36
Speaker 3: is that Bondy intends to use criminal investigations to root
21:41
Speaker 3: out DEI practices in the private sector. That's according to
21:45
Speaker 3: one of the executive orders that Trump issued, and then
21:48
Speaker 3: the DOJ memo calls for specific steps to take within weeks.
21:54
Speaker 3: I don't even know what to say about that. I mean,
21:56
Speaker 3: criminal investigations for DEI policies.
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Speaker 7: Well, it's quite remarkable. I can see why they keep
22:03
Speaker 7: using the initials, because that's saying, we're criminally investing you
22:07
Speaker 7: for inclusion. We're criminally investing in you for equity. Inclusion
22:13
Speaker 7: and equity tend to be the things that the law supports,
22:16
Speaker 7: So they're using DEI as a cartoon villain rather than
22:23
Speaker 7: looking at what's actually involved. EI programs are enormously varied,
22:28
Speaker 7: and it's hard to imagine many of them engaging in
22:32
Speaker 7: any criminal activity any more than any other program.
22:36
Speaker 8: To do that.
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Speaker 7: The notion that they're going to bring these cases suggests
22:40
Speaker 7: that they're contemplating using the law for harassment.
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Speaker 3: So if these kinds of cases are brought, do you
22:47
Speaker 3: think that a judge would dismiss them right away, perhaps
22:51
Speaker 3: even before discovery starts.
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Speaker 7: Judges generally like to give the prosecution a chance to
22:58
Speaker 7: be heard. In a situation like this, when there's so
23:03
Speaker 7: much evidence that the criminal law will be misused. The
23:07
Speaker 7: President and other senior officials essentially admitting that I think
23:12
Speaker 7: judges may feel that the fairest thing to do is
23:16
Speaker 7: dismiss these cases immediately and not force people who are
23:20
Speaker 7: following legitimate orders to go through this sort of burden.
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Speaker 3: People talk about the independence of the Justice Department being threatened,
23:28
Speaker 3: but in our history didn't a lot of justice departments
23:31
Speaker 3: work closely with the White House. I mean, just how
23:34
Speaker 3: independent is it?
23:36
Speaker 7: Well, the Justice Department is part of the executive branch,
23:39
Speaker 7: and it is supposed to serve the nation's interests under
23:44
Speaker 7: the general guidance of the President. But it's always been
23:47
Speaker 7: understood that because they're dealing with law, and because the
23:52
Speaker 7: role of lawyers, particularly government lawyers, is very sensitive, that
23:56
Speaker 7: the Justice Department has to be flee to honor them
24:00
Speaker 7: law and to honor its obligations to only make legitlemen
24:04
Speaker 7: arguments in court.
24:06
Speaker 3: Thanks so much for joining me, David. That's Professor David
24:08
Speaker 3: super of Georgetown Law. Coming up next? Will non citizens
24:12
Speaker 3: be able to vote in New York City elections? I'm
24:15
Speaker 3: June Grosse. When you're listening to Bloomberg, there.
24:20
Speaker 9: Is something exceptional about this particular law, right, I mean,
24:24
Speaker 9: this is the argument in the briefs that this is
24:26
Speaker 9: going to expand on both sides. This is going to
24:29
Speaker 9: expand the franchise to a very large number of individuals
24:33
Speaker 9: may indeed change the political representation in particular districts. Yes,
24:39
Speaker 9: this is not like some other little process.
24:41
Speaker 3: And that exceptional law made New York City the first
24:44
Speaker 3: major US city to grant non citizens the right to
24:48
Speaker 3: vote in municipal elections in January of twenty twenty two.
24:52
Speaker 3: But the law, which was approved by the Democratic led
24:55
Speaker 3: City Council, has never been implemented due to court challenges
25:00
Speaker 3: my Republicans, and both a trial judge and a state
25:03
Speaker 3: depelled court found that the law violated the state constitution.
25:08
Speaker 3: This week, the seven judges on New York's highest court
25:11
Speaker 3: heard arguments about whether to uphold the law. The focus
25:15
Speaker 3: was on how to interpret specific constitutional language. For example,
25:20
Speaker 3: what does the word citizen mean?
25:22
Speaker 8: How do you define citizen under the Constitutionistics Now, could
25:28
Speaker 8: the state allow my thirteen year old daughter and other
25:30
Speaker 8: thirteen year olds to vote for governor in the next election.
25:32
Speaker 6: Yes.
25:33
Speaker 3: Joining me is immigration law expert Leon Fresco, a partner
25:36
Speaker 3: at hollanden Knight. He was the head of the Office
25:39
Speaker 3: of Immigration Litigation in the Obama administration. Lee and I
25:43
Speaker 3: just want to start with some basics because we heard
25:46
Speaker 3: Trump claim over and over and over again that non
25:49
Speaker 3: citizens were voting in elections. So it is clearly illegal
25:55
Speaker 3: for non citizens to vote in federal elections.
25:58
Speaker 1: The RUL federal elections, it is illegal for a non
26:02
Speaker 1: citizen to vote, and not only is that a crime
26:05
Speaker 1: and a crime that gets prosecuted every now and then,
26:07
Speaker 1: but it's also a ground for deportation. It's a question
26:10
Speaker 1: that's asked in every immigration form and in every immigration
26:14
Speaker 1: interview that somebody has for an immigration benefit, have you
26:18
Speaker 1: ever unlawfully voted in a federal election. So it's actually
26:21
Speaker 1: quite a serious thing that a person who's not a
26:24
Speaker 1: citizen cannot vote in a federal election.
26:27
Speaker 3: But cities and municipalities can allow non citizens to vote
26:31
Speaker 3: in local elections, and eleven towns in Maryland and Vermont
26:36
Speaker 3: do allow that.
26:37
Speaker 1: They have theoretically the authority because elections are a state
26:42
Speaker 1: run thing other than for federal election purposes, and so
26:47
Speaker 1: a state or a locality, if a locality is permitted
26:50
Speaker 1: to do so by a state, can theoretically allow a
26:55
Speaker 1: person who is here who is not a US citizen
26:58
Speaker 1: to vote in their own election, And it would just
27:01
Speaker 1: be up to that state or that locality to do so.
27:05
Speaker 3: So Leon tell us about this New York City law
27:07
Speaker 3: that was passed back in twenty twenty two but never
27:09
Speaker 3: went into effect.
27:11
Speaker 1: So the New York City law says that if you
27:14
Speaker 1: are a lawful permanent resident or even someone with a
27:18
Speaker 1: lawful ability to work in the United States, meaning that
27:22
Speaker 1: you actually have a work permit from US Citizenship and
27:25
Speaker 1: Immigration Services, which is interesting because there are some statuses
27:30
Speaker 1: which are very sort of tenuous statuses, like deferred action
27:35
Speaker 1: and temporary Protected status, and so the idea of the
27:39
Speaker 1: New York law is any of those people with work permits,
27:42
Speaker 1: even with such TENUS statuses, would be allowed to vote. Now,
27:46
Speaker 1: a purely undocumented person that is here illegally and has
27:51
Speaker 1: no right to work of any kind would not be
27:53
Speaker 1: allowed to vote under that law.
27:55
Speaker 3: And you just have to be a lawful permanent resident
27:59
Speaker 3: of the city for thirty days. So Republicans filed the
28:02
Speaker 3: lawsuit to stop the law from going into effect.
28:05
Speaker 1: So essentially what they're trying to say is that there
28:09
Speaker 1: are a few problems with the law. First, that the
28:11
Speaker 1: law violates the New York State Constitution, which actually says
28:16
Speaker 1: that citizens are the individuals who are permitted to vote
28:20
Speaker 1: in elections. Now there's fight about whether that meant New
28:23
Speaker 1: York citizens or US citizens, and whether that's a floor
28:27
Speaker 1: or a ceiling. But their argument is that if you
28:30
Speaker 1: look at the New York State Constitution, that meant that
28:33
Speaker 1: only US citizens are allowed to vote and nobody else.
28:36
Speaker 1: That's their first argument, and then their second argument is
28:40
Speaker 1: that allowing eight hundred thousand potential more people to vote
28:44
Speaker 1: in the New York City election would actually dilute the
28:47
Speaker 1: right to vote that the US citizens have in New York,
28:51
Speaker 1: which would then violate the municipal home rule laws in
28:55
Speaker 1: New York City.
28:56
Speaker 3: I just want to note the specific language in the
28:59
Speaker 3: state constitution that a lot of the Republican arguments are
29:02
Speaker 3: focused on. It says, quote, every citizen shall be entitled
29:07
Speaker 3: to vote at every election for all officers elected by
29:11
Speaker 3: the people, and upon all questions submitted to the vote
29:15
Speaker 3: of the people. That seems pretty clear every citizen right.
29:19
Speaker 1: So the first argument is that is a floor of rights,
29:24
Speaker 1: meaning that what the constitution is saying is, hey state legislator,
29:30
Speaker 1: hey local legislators, you are not allowed to do anything
29:34
Speaker 1: to diminish the right of a citizen to vote. In
29:38
Speaker 1: an election, but it's not a ceiling, meaning that you
29:42
Speaker 1: can add other people to this from that perspective, so
29:45
Speaker 1: you could add non citizens to that. That's one argument,
29:49
Speaker 1: and so the court in this oral argument was really
29:52
Speaker 1: trying to ask the lawyers, hey, does that mean a
29:55
Speaker 1: twelve year old or a thirteen year old can vote? Here?
29:58
Speaker 1: Where does this thing go? I mean, does this really
30:00
Speaker 1: mean what you're saying it means? And the Council for
30:04
Speaker 1: New York City had to say yes, because if you're
30:06
Speaker 1: arguing that this is a floor, then that means that
30:09
Speaker 1: for a local election, the localities can add people and
30:12
Speaker 1: there's no limit basically to what they could add in
30:15
Speaker 1: that situation. So that's one side. Now the argument for
30:19
Speaker 1: the people opposing that is to say no, no, no, no no.
30:22
Speaker 1: If they wanted other kinds of people to vote, they
30:24
Speaker 1: would have added them within this protection. So this is
30:28
Speaker 1: not a floor. This is actually both the floor and
30:30
Speaker 1: the ceiling, because it's just enumerting the people who could vote.
30:34
Speaker 1: The other argument is because it says citizens and not
30:38
Speaker 1: United States citizens, that this refers to a amorphous set of
30:43
Speaker 1: New York citizens, who would basically be people who are
30:46
Speaker 1: just in New York for thirty days. But I don't
30:49
Speaker 1: think the court was willing to accept that argument, and
30:52
Speaker 1: a very strong argument by the opponents of this New
30:56
Speaker 1: York law said, look, if this really had meant New
30:59
Speaker 1: York citizen and not US citizens, and for the last
31:02
Speaker 1: one hundred or so years, there's been people who have
31:05
Speaker 1: been disenfranchised, who we've not allowed to vote, who were
31:08
Speaker 1: constitutionally permitted to vote.
31:11
Speaker 3: And for anyone who thought this was going to be
31:13
Speaker 3: kind of a raw, raw argument about why non citizens
31:17
Speaker 3: should be allowed to vote, it was nothing like that.
31:21
Speaker 3: It was so technical. I mean, they were parsing words
31:25
Speaker 3: talking about the meaning of, for example, method correct.
31:28
Speaker 1: I think one they really wanted to avoid the sense
31:32
Speaker 1: that there was any political agenda behind their decision making process.
31:36
Speaker 1: So they really tried to approach this everybody, to their credit,
31:40
Speaker 1: from all the arguments and from all of the justices,
31:44
Speaker 1: to the real of the dictionary and of the interpretation,
31:50
Speaker 1: rather than in the realm of the political and as
31:52
Speaker 1: you know, making equitable arguments about why this is right.
31:56
Speaker 1: You know, why immigrants paid taxes, they should be allowed
31:59
Speaker 1: to vote. None of that really was part of this.
32:02
Speaker 1: And so from that perspective, it's really going to come
32:05
Speaker 1: down to, well, what did the drafters of the New
32:08
Speaker 1: York Constitution actually intend? Which is really what it should
32:12
Speaker 1: come down to at the end of the day, because
32:14
Speaker 1: that's the job of the court is, here's a New
32:16
Speaker 1: York Constitution, here are the words. What did the people
32:20
Speaker 1: who wrote those words intended to mean when they wrote
32:23
Speaker 1: those words?
32:24
Speaker 3: And leon, we agree that's for the court to decide,
32:27
Speaker 3: right whereas one of the lawyers arguing in favor of
32:30
Speaker 3: the law seem to want to take that decision away
32:33
Speaker 3: from the judges.
32:34
Speaker 1: This is a problem that the people defending the New
32:37
Speaker 1: York City law were having in this argument was they
32:40
Speaker 1: kept saying, who gets to decide what the word citizen means?
32:44
Speaker 1: And they were saying that either the state legislature could
32:48
Speaker 1: decide it or the city could decide it. And the
32:50
Speaker 1: court was saying, well, can't we decided? And aren't we
32:54
Speaker 1: the court? Aren't we the one who are supposed to
32:56
Speaker 1: make the actual decision about what the words of the
32:58
Speaker 1: constitution mean? And so then there was this debate about, well,
33:02
Speaker 1: maybe it should be put up for the voters.
33:04
Speaker 3: Yeah, I just want to play that interchange because it
33:07
Speaker 3: was kind of amusing where the judges were saying, but
33:11
Speaker 3: that's our role, isn't it.
33:12
Speaker 8: What definition would you ask this court to give? I
33:15
Speaker 8: would say that the legislature is in the best position
33:17
Speaker 8: to define a citizen because it is ambiguous. And the
33:20
Speaker 8: reasons why are because.
33:22
Speaker 2: The state how can the legislation legislature do that?
33:25
Speaker 7: This is a constitutional provision.
33:27
Speaker 8: So there's a constitutional provision with an ambiguous term, and
33:30
Speaker 8: there's not enough evidence before this court to support a
33:33
Speaker 8: more restrictive or a broader reading.
33:35
Speaker 4: Isn't that our role to determine what this language is.
33:38
Speaker 8: Where there is sufficient evidence to support one reading.
33:40
Speaker 6: On Otherwise it just goes to the legislature to determine
33:43
Speaker 6: what the state constitution means.
33:45
Speaker 1: I think where the court is going to decide here
33:47
Speaker 1: is look, unless the constitution is amended, which it can
33:51
Speaker 1: always be amended, we are going to decide what the
33:54
Speaker 1: constitution means. And while it is unclear whether they will
33:59
Speaker 1: decide that the constitution sets the floor or whether they
34:03
Speaker 1: will decide that the constitution actually sets a floor and
34:06
Speaker 1: a ceiling, they're not going to say that this needs
34:09
Speaker 1: to be decided by a referendum, except to the extent
34:12
Speaker 1: that they are saying, look, if you want to change
34:14
Speaker 1: our ruling, have a referendum and decide to change the constitution.
34:19
Speaker 3: So after listening to the oral arguments, do you have
34:22
Speaker 3: a feel for which way the court might go?
34:24
Speaker 1: It seems very difficult to try to pin the court
34:27
Speaker 1: down as to where they were headed here. I mean,
34:30
Speaker 1: at the end of the day, there seemed to be
34:33
Speaker 1: at least one judge on each side where it was
34:37
Speaker 1: clear that they had at least one judge that was
34:39
Speaker 1: going to vote in favor of the New York law,
34:41
Speaker 1: and there was one judge who seemed particularly hostile to
34:45
Speaker 1: the New York law, But that leaves five other judges.
34:48
Speaker 1: I don't think given the potential implications of this, which
34:53
Speaker 1: is that if you vote for this, then you're basically
34:55
Speaker 1: leaving the localities to again let twelve year olds vote
34:59
Speaker 1: and let you know, all kinds of other people vote
35:02
Speaker 1: that wouldn't necessarily be allowed to vote normally in an election,
35:06
Speaker 1: that I don't think they're going to want to open
35:09
Speaker 1: up the floodgates in this manner, But we'll have to
35:11
Speaker 1: wait and see.
35:12
Speaker 3: Would you say that it would be more of a
35:15
Speaker 3: novel ruling and they would have to go sort of
35:17
Speaker 3: outside the box to uphol this law. In other words,
35:21
Speaker 3: it would be easier to strike it down.
35:23
Speaker 1: Correct, you'd have to do much more verbal gymnastics in
35:27
Speaker 1: order to say that the non US citizens could vote
35:31
Speaker 1: in the New York City elections, that you would just
35:35
Speaker 1: to affirm the principle that the New York Constitution meant
35:38
Speaker 1: that only US citizens could vote. You would have to
35:41
Speaker 1: make the machination that all of these qualifications that were
35:45
Speaker 1: put in were meant to be a floor, but that
35:48
Speaker 1: localities could add more people. And then the question would be, well,
35:52
Speaker 1: why why would the constitution of the State of New
35:55
Speaker 1: York wanted to have had an ability for state election
36:00
Speaker 1: to only be US citizens but somehow incorporate this principle
36:05
Speaker 1: that localities could add more kinds of voters that can't
36:09
Speaker 1: voted the state elections. But there is where I think
36:12
Speaker 1: there really wasn't a good job of trying to explain
36:14
Speaker 1: why would that be? Was that even contemplated, And if
36:18
Speaker 1: it was, why would it have been that they would
36:20
Speaker 1: have wanted different pools of people voting in the local
36:23
Speaker 1: elections than in the state election.
36:25
Speaker 3: Yeah, it seems like the law faces and uphill battle
36:29
Speaker 3: Thanks so much Leon for being on the show. That's
36:31
Speaker 3: Leon Fresco of Holland and Knight. And that's it for
36:35
Speaker 3: this edition of The Bloomberg Law Show. Remember you can
36:37
Speaker 3: always get the latest legal news on our Bloomberg Law Podcast.
36:41
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36:44
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36:49
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36:52
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