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Trump Loses Election Cases in Alaska & California · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
• 0:08
  Speaker 2: The Justice Department has taken a more aggressive stance on
• 0:12
  Speaker 2: election issues in the run-up to the midterms than in
• 0:15
  Speaker 2: prior elections, and that's putting it mildly. The Trump administration
• 0:19
  Speaker 2: has sued to stop Alaska election officials from certifying the
• 0:24
  Speaker 2: results of the state's U.S. Senate contest if the Republican candidate,
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  Speaker 2: Dan Sullivan, loses by a small margin because another candidate
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  Speaker 2: named Dan Sullivan is also on the ballot. The Democratic candidate,
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  Speaker 2: Mary Peltola, has denied any part in recruiting the other
• 0:42
  Speaker 2: Dan Sullivan to supposedly confuse voters.
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  Speaker 3: I knew nothing about any other candidates on the ballot
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  Speaker 3: except for me and the incumbent.
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  Speaker 4: That is all I have ever known about.
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  Speaker 2: But the U.S. Attorney for Alaska, Daniel Heyman, held a
• 1:02
  Speaker 2: surprising press conference on Friday confirming that the Justice Department
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  Speaker 2: and the FBI are conducting a criminal investigation into the matter.
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  Speaker 5: But I can say that it is serious now, and
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  Speaker 5: you've certainly got our attention. Like I said, there is
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  Speaker 5: a surge in FBI resources as well as resources in
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  Speaker 5: this office to make sure that the election integrity remains
• 1:25
  Speaker 5: in place.
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  Speaker 2: In the meantime, many Alaskan voters say they can handle
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  Speaker 2: two Dan Sullivans on the ballot as they did in
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  Speaker 2: the primary.
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  Speaker 6: Alaskans are very intelligent and they know exactly who they're
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  Speaker 6: voting for. It's just a gimmick to get us all
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  Speaker 6: hyped up and worried about an unfair election. But the
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  Speaker 6: reality is, is we're all intelligent people here and we
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  Speaker 6: can figure out who we want to vote for.
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  Speaker 5: It kind of feels like an insult to me, and
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  Speaker 5: I hope it feels like an insult to other Alaskans,
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  Speaker 5: because Alaskans are not dumb, regardless of who you vote for.
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  Speaker 5: Election shenanigans have been going on for centuries, or probably
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  Speaker 5: thousands of years, and I think that this is just
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  Speaker 5: part of the politics.
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  Speaker 2: Joining me is Jonathan Diaz, Director of Voting Advocacy and Partnerships.
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  Speaker 2: at the Campaign Legal Center. Jonathan, on Sunday, a federal
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  Speaker 2: judge rejected the Justice Department's attempt to hold up the
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  Speaker 2: certification of the results in Alaska's election. Explain why.
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  Speaker 1: Yeah, the decision by the judge in Alaska was not
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  Speaker 1: at all surprising. Looking over the complaints that DOJ filed,
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  Speaker 1: it's maybe the weakest lawsuit I've ever seen brought by
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  Speaker 1: the Department of Justice. They didn't really cite any legal
• 2:44
  Speaker 1: authority for the relief that they were seeking. There was
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  Speaker 1: no real cause of action. And as the judge found,
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  Speaker 1: they didn't really articulate a harm to the United States
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  Speaker 1: that would grant them standing to be able to bring
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  Speaker 1: a case like this. It was just kind of procedurally
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  Speaker 1: and substantively deficient in everything. And, you know, unfortunately, that
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  Speaker 1: is kind of par for the course for the Department
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  Speaker 1: of Justice over the last couple of weeks and all
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  Speaker 1: of these elections cases that they brought. It's really unprecedented.
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  Speaker 1: And I know everyone is tired of hearing that word.
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  Speaker 1: But really, we've never seen anything like this, where the
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  Speaker 1: Justice Department on behalf of the United States is bringing
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  Speaker 1: legal actions to block election results before they even happened,
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  Speaker 1: just because the president or his party might not like
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  Speaker 1: the outcome.
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  Speaker 2: What was really interesting is the judge said that the
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  Speaker 2: Justice Department hadn't suggested any relief that she could give
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  Speaker 2: that wouldn't compromise the secrecy of the ballots.
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  Speaker 1: Yeah, that's right. And there's echoes of the district court
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  Speaker 1: decision in the California ballots case as well, where the
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  Speaker 1: people writing up these lawsuits and these motions for relief
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  Speaker 1: on behalf of the Department of Justice don't really seem
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  Speaker 1: to have a firm grasp of the mechanics of how
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  Speaker 1: elections work. the things that they are asking for to
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  Speaker 1: segregate ballots in this way. And in Alaska, a really
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  Speaker 1: kind of breathtaking request to interrogate the intent of the
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  Speaker 1: voters based on, you know, what they've written on their
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  Speaker 1: ballots just shows, you know, a fundamental misunderstanding about how
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  Speaker 1: elections work in this country. And the relief they've asked
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  Speaker 1: for would not only be kind of practically impossible to achieve,
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  Speaker 1: but also would violate a number of state and federal laws.
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  Speaker 3: So apparently the state is investigating as well. I mean,
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  Speaker 3: is this within the state's purview to investigate?
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  Speaker 1: I mean, I think it's important to draw a distinction
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  Speaker 1: between the administration of the election and the counting of votes.
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  Speaker 1: and the enforcement of any other sort of criminal and
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  Speaker 1: campaign finance laws that, you know, may have been violated
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  Speaker 1: by somebody involved with a campaign. You know, there is
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  Speaker 1: nothing about any of the reporting on the politicking behind
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  Speaker 1: the Alaska Senate race that changes the fact that The
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  Speaker 1: Department of Justice just has no legal authority to block
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  Speaker 1: the certification of an election. And, you know, under Alaska law,
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  Speaker 1: as interpreted by the Alaska Supreme Court earlier this summer,
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  Speaker 1: both Dan Sullivan were legally entitled to remain on the ballot.
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  Speaker 1: There was no violation of Alaska state law, you know,
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  Speaker 1: according to the decision of the Alaska Supreme Court, which
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  Speaker 1: is the final decision maker on questions of state law.
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  Speaker 1: Other misconduct is warranted. That's a little bit outside of
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  Speaker 1: my wheelhouse. But from an election law standpoint, there's nothing
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  Speaker 1: about the governor's investigation or any other kind of law
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  Speaker 1: enforcement investigation that should affect the actual outcome of this race.
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  Speaker 1: And especially when you think about the government theory being
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  Speaker 1: one of voter confusion, of voters not really knowing which
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  Speaker 1: Dan Sullivan is which. That's a little hard to swallow
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  Speaker 1: when you actually look at the design of the ballot
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  Speaker 1: that the Division of Elections came up with after that
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  Speaker 1: Alaska Supreme Court decision, where one of them is very
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  Speaker 1: clearly labeled as the Republican incumbent.
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  Speaker 3: Trump has called for criminal charges. Let's just suppose that
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  Speaker 3: the Peltola campaign, they recruited a second Dan Sullivan to run.
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  Speaker 2: To try to siphon votes off.
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  Speaker 3: I mean, is there anything illegal about that?
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  Speaker 1: It'll depend on, you know, state law, and I will
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  Speaker 1: confess to not being totally familiar with Alaska's laws on
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  Speaker 1: this topic, but This is a scenario that has happened before.
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  Speaker 1: In a state house race in Florida a couple of
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  Speaker 1: years ago, a Republican political operative recruited a candidate with
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  Speaker 1: the same name as the incumbent Democratic House member in
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  Speaker 1: a House district in Miami. That political operative was, I believe,
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  Speaker 1: ultimately charged with a crime because he paid that person
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  Speaker 1: to put their name on the ballot, and that payment
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  Speaker 1: was a violation of Florida law. But as far as
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  Speaker 1: recruiting spoiler candidates, look, I'm not a political operative, but
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  Speaker 1: my understanding is that that is a fairly common practice
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  Speaker 1: in American politics. It's a little yucky, but I don't
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  Speaker 1: think that recruiting somebody else to run for office is
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  Speaker 1: necessarily a violation of law. It depends how you go
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  Speaker 1: about doing it.
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  Speaker 2: Trump has called for Peltola to be criminally charged. The
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  Speaker 2: Justice Department and the FBI are conducting a criminal investigation
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  Speaker 2: into the circumstances. behind the second Dan Sullivan's candidacy. Federal
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  Speaker 2: prosecutors recently issued dozens of subpoenas, and the FBI has
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  Speaker 2: apparently been knocking on doors in Alaska. And on Friday,
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  Speaker 2: that's four days before the election, the U.S. attorney for
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  Speaker 2: Alaska held an extraordinary press conference confirming the criminal investigations.
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  Speaker 2: I mean, is there any precedent for what's going on here?
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  Speaker 1: Extraordinary is right. I mean, you know, the Justice Department
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  Speaker 1: has had a longstanding policy not to take any kind
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  Speaker 1: of overt investigatory or enforcement actions related to a live election,
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  Speaker 1: you know, as it's ongoing or in the weeks immediately prior.
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  Speaker 1: They seem to have abandoned that policy this time around
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  Speaker 1: and called by the president and the attorney general to
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  Speaker 1: Letters going out to election officials across the country threatening
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  Speaker 1: criminal prosecution for counting ballots. You know, set aside the
• 8:30
  Speaker 1: specifics of the election situation for a moment, the breadth
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  Speaker 1: of the criminal prosecution threats that we are seeing from
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  Speaker 1: the federal government against election officials, candidates, sitting elected officials
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  Speaker 1: is really astonishing. It's not something that we have ever
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  Speaker 1: seen before. They have been admonished by several courts already
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  Speaker 1: for the subpoenas and threats that they are sending to
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  Speaker 1: election officials who are in the middle of conducting a
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  Speaker 1: national election as we speak. And so, you know, it
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  Speaker 1: really is kind of shocking to see the Department of
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  Speaker 1: Justice abusing its criminal law enforcement authority to threaten and
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  Speaker 1: intimidate the president's political rivals and election officials from across
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  Speaker 1: the political spectrum, just because, again, just because the president
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  Speaker 1: might not like the outcome here.
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  Speaker 3: As you referred to, On Friday, a federal judge in
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  Speaker 3: San Francisco ordered the Trump administration not to threaten election
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  Speaker 3: officials with criminal prosecution.
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  Speaker 2: Tell us why she issued that order.
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  Speaker 1: Well, to be completely blunt about it, it's because the
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  Speaker 1: federal government, the Department of Justice, is going around making
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  Speaker 1: basic threats towards election officials, you know, on the eve
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  Speaker 1: of an election. in a way that pretty clearly is
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  Speaker 1: intended to intimidate them into not counting certain votes. And
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  Speaker 1: the Voting Rights Act and other federal statutes protect against intimidation, coercion,
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  Speaker 1: harassment that is designed to affect the electoral process, whether
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  Speaker 1: it targets voters or election officials. And those statutes, those
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  Speaker 1: protections apply even if it's a federal agency who is
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  Speaker 1: the one doing the intimidation. So I think that the
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  Speaker 1: judge in San Francisco looked at the evidence, looked at
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  Speaker 1: the comments, made by people like the U.S. attorney in
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  Speaker 1: Alaska and in Los Angeles, by the attorney general, by
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  Speaker 1: the president in these letters that were sent from the
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  Speaker 1: Department of Justice to every election official across the country
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  Speaker 1: and said, you know, enough is enough. This is improper
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  Speaker 1: use of your position and authority to attempt to influence
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  Speaker 1: or coerce election officials into breaking the law, into behaving
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  Speaker 1: the way that you want them to. And our legal
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  Speaker 1: system does not abide that kind of behavior. That includes things,
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  Speaker 1: you know, this is not the first ruling from a
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  Speaker 1: federal judge in the last month that has blocked federal
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  Speaker 1: law enforcement from abusing their authority to intimidate participants in
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  Speaker 1: the electoral process. There was another decision out of the
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  Speaker 1: Northern District of California last A few weeks ago that
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  Speaker 1: blocked Homeland Security investigation program that was going door to
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  Speaker 1: door knocking on voters, you know, front doors, interrogating them
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  Speaker 1: about their voting habits and their immigration status. The FBI's
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  Speaker 1: door knocking campaign in Alaska asking people who they voted
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  Speaker 1: for and why is textbook voter intimidation. When we think
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  Speaker 1: about when these statutes were enacted in the aftermath of
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  Speaker 1: the civil rights movement, the example you think of in
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  Speaker 1: your mind is, you know, a sheriff's deputy in a
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  Speaker 1: southern state going, you know, door to door in a
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  Speaker 1: Black neighborhood intimidating people around voting. We don't typically think
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  Speaker 1: of it as being, you know, federal agents doing this,
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  Speaker 1: but unfortunately, that's the scenario we are confronted with in
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  Speaker 1: this election.
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  Speaker 2: Coming up next, will there be problems with certifying election results?
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  Speaker 2: This is Bloomberg. Today, a D.C. federal judge ordered the
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  Speaker 2: Trump administration to stop demanding that California election officials set
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  Speaker 2: aside ballots from 20,000 people the Department of Justice says
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  Speaker 2: might be non-citizens. On Friday, the Ninth Circuit Court of
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  Speaker 2: Appeals ruled against the administration and affirmed a decision by
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  Speaker 2: a California judge refusing to set aside the 20,000 ballots.
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  Speaker 2: The Ninth Circuit said the Justice Department was intruding on
• 12:31
  Speaker 2: powers the Constitution gives to the states. So today, the
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  Speaker 2: Trump administration filed an emergency appeal and asked the U.S.
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  Speaker 2: Supreme Court to inject itself into the midterms and block
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  Speaker 2: the counting of those 20,000 mail-in ballots. And late this afternoon,
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  Speaker 2: the Supreme Court came back with a quick rejection, refusing
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  Speaker 2: to intervene in the clash. with no noted dissents. I've
• 12:58
  Speaker 2: been talking to Jonathan Diaz of the Campaign Legal Center. Jonathan,
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  Speaker 2: why is the Justice Department pushing so hard on this
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  Speaker 2: move to set aside the 20,000 ballots when that's a
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  Speaker 2: drop in the bucket of California voters? And also, it's
• 13:15
  Speaker 2: been shown over and over that the Justice Department's counts
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  Speaker 2: of non-citizens are way off.
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  Speaker 1: Well, they're not just asking to segregate the ballots. They're
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  Speaker 1: saying segregate them and don't count them until you can
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  Speaker 1: prove the eligibility of the voters to the satisfaction of
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  Speaker 1: the federal government. The problem with that is it is
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  Speaker 1: not the federal government's job to verify the eligibility of voters.
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  Speaker 1: That is the responsibility of the state. And as you said,
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  Speaker 1: The federal government has shown repeatedly over the course of
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  Speaker 1: the last two years that they are incapable of actively
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  Speaker 1: determining the eligibility of voters. The lists that they are
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  Speaker 1: sending to state and local election officials are full of errors.
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  Speaker 1: They have natural-born U.S. citizens on them. They have naturalized U.S.
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  Speaker 1: citizens on them. They have names of people who are
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  Speaker 1: not even on the voter rolls or whose voter registrations
• 14:11
  Speaker 1: have been canceled. It's one thing for a federal agency
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  Speaker 1: that has some data that might be relevant to come
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  Speaker 1: to a state in May or June and say, look,
• 14:22
  Speaker 1: we've got these names. We think they might be ineligible.
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  Speaker 1: Check your list. Because the states are doing voter list maintenance.
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  Speaker 1: They're checking and updating their voter lists all the time,
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  Speaker 1: all year long, except in these last 90 days before
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  Speaker 1: an election, because federal law prohibits systematic voter list maintenance
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  Speaker 1: in the 90 days before a federal election. And so
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  Speaker 1: for DOJ to show up at an elections office three
• 14:45
  Speaker 1: weeks before election day and say, we've got tens of
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  Speaker 1: thousands of names, don't count these ballots, that's just not
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  Speaker 1: how it works. And the National Voter Registration Act exists
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  Speaker 1: in part to prevent this kind of last minute voter
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  Speaker 1: registration purge because we don't want to get it wrong.
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  Speaker 1: And Congress understood that when you're matching large data sets,
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  Speaker 1: there is a risk of error. And it is harmful
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  Speaker 1: to not just the individual removed, but to the electoral
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  Speaker 1: process as a whole, if you are wrongfully removing eligible
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  Speaker 1: voters from the rolls right before the election, and they
• 15:24
  Speaker 1: don't have an opportunity to get back on and exercise
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  Speaker 1: their constitutional right to vote.
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  Speaker 2: A concern that I hear voiced over and over again
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  Speaker 2: is a concern that state election officials won't certify the
• 15:37
  Speaker 2: results of the election.
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  Speaker 1: I mean, unfortunately, it's an issue that we've had to
• 15:42
  Speaker 1: prepare for over the last several election cycles. Look, certification
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  Speaker 1: is the final step in the post-election process. It is,
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  Speaker 1: I've described it before as like the period on the
• 15:54
  Speaker 1: end of a sentence. It's just the formal conclusion of
• 15:58
  Speaker 1: the process. You know, elections have to end at some
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  Speaker 1: point and somebody has to formally declare, you know, the results.
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  Speaker 1: And that's all that certification is. It is not an
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  Speaker 1: opportunity to litigate or relitigate the conduct of the election.
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  Speaker 1: That's not the time or the place at which to
• 16:19
  Speaker 1: challenge the process or question whether all the laws were
• 16:22
  Speaker 1: followed or whether the ballots should have been counted or not.
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  Speaker 1: Every state has really robust post-election procedures for that purpose.
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  Speaker 1: That's why we have recounts. That's why we have audits
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  Speaker 1: of the machines. That's why there are election contest procedures
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  Speaker 1: where a candidate can come in and challenge the results
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  Speaker 1: using a legal process. Certification is not the place for
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  Speaker 1: any of that. And that's why under virtually every state's laws,
• 16:48
  Speaker 1: certification is a mandatory legal duty. whoever the certifying official
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  Speaker 1: is for a given race, they do not have the
• 16:56
  Speaker 1: discretion to decline or delay certification. And in the instances
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  Speaker 1: where officials have tried to do that because of perceived
• 17:06
  Speaker 1: flaws in the electoral process or dissatisfaction with the results,
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  Speaker 1: like in, you know, Waynesboro County, Virginia, in 2024 and
• 17:15
  Speaker 1: in Cochise County, Arizona in 2022, legal action was very
• 17:20
  Speaker 1: swift and very decisive. State courts come in and they say, no,
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  Speaker 1: this is a mandatory legal duty. You do not have
• 17:27
  Speaker 1: the option to decline. Either you do it or we
• 17:29
  Speaker 1: will find you in contempt because these officials have taken
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  Speaker 1: an oath to uphold the law and the law gives
• 17:35
  Speaker 1: them this non-discretionary responsibility.
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  Speaker 2: And we heard the Speaker of the House, Mike Johnson,
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  Speaker 2: say that there will be a peaceful transfer of power,
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  Speaker 2: but people are also concerned about that.
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  Speaker 1: Yeah, I understand why there is some anxiety around the
• 17:53
  Speaker 1: seating of the new Congress on January 3rd, because we
• 17:56
  Speaker 1: are living in a post-January 6th, 2021 world. But the
• 18:01
  Speaker 1: process for seating a new Congress is different from the
• 18:05
  Speaker 1: Electoral College process and the finalization of the presidential results,
• 18:09
  Speaker 1: especially in the House of Representatives.
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  Speaker 3: The U.S.
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  Speaker 1: House is not a continuing body. So at noon on
• 18:17
  Speaker 1: January 3rd, the term of every sitting House member from
• 18:21
  Speaker 1: Speaker Johnson all the way down to the most junior
• 18:24
  Speaker 1: member of the minority, they all end. The House dissolves
• 18:27
  Speaker 1: in its entirety. And the only person left is the
• 18:31
  Speaker 1: clerk of the House who assembles the role of the
• 18:34
  Speaker 1: members elect for the new Congress based on the certified
• 18:38
  Speaker 1: results transmitted by the state. So whoever is the certified winner,
• 18:43
  Speaker 1: according to state law, and state election officials, those are
• 18:47
  Speaker 1: the names that the clerk uses to assemble the new role.
• 18:49
  Speaker 1: And then all of the new House members are sworn
• 18:52
  Speaker 1: in kind of all together by the clerk. And then
• 18:55
  Speaker 1: they go about the process of, you know, electing a
• 18:57
  Speaker 1: speaker and organizing, you know, the House and what have you.
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  Speaker 1: So it's not really functionally possible for Speaker Johnson or
• 19:05
  Speaker 1: anybody else to disrupt that process because they all cease
• 19:09
  Speaker 1: being members of the House at the same time. So
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  Speaker 1: I'm not particularly worried about January 3rd and about the
• 19:16
  Speaker 1: swearing in of new members of Congress. I am of course,
• 19:19
  Speaker 1: glad to hear Speaker Johnson say that they will follow
• 19:23
  Speaker 1: the law and that there won't be any attempts to
• 19:25
  Speaker 1: interfere with that process. I think there have been a
• 19:27
  Speaker 1: couple of other sort of bipartisan statements from members of
• 19:30
  Speaker 1: both parties saying that they will respect the results and
• 19:33
  Speaker 1: there won't be challenges to congressional seating. But because of
• 19:36
  Speaker 1: the political environment that we're in and the experience of
• 19:39
  Speaker 1: the last few elections, we will be watching that process
• 19:42
  Speaker 1: and making sure that everything goes according to the law.
• 19:45
  Speaker 3: Do you anticipate that there will be Lawsuits. many lawsuits?
• 19:50
  Speaker 1: Almost definitely.
• 19:52
  Speaker 2: And with all these lawsuits that the Justice Department has
• 19:55
  Speaker 2: already filed, even though they've lost so far, are they
• 20:00
  Speaker 2: trying to set up grounds for lawsuits challenging the election?
• 20:05
  Speaker 1: I mean, potentially, you know, it's funny to think about
• 20:10
  Speaker 1: anticipating lawsuits when it feels like there's just been nonstop
• 20:13
  Speaker 1: election lawsuits for the last 18 months. We've just been
• 20:16
  Speaker 1: in it for over a year now. Unfortunately, I do
• 20:21
  Speaker 1: think that we are likely to see litigation after election day.
• 20:25
  Speaker 1: It feels almost inevitable at this point. I don't expect,
• 20:30
  Speaker 1: barring some kind of actual catastrophe or crisis, I don't
• 20:34
  Speaker 1: expect the litigation to be successful if it looks anything
• 20:38
  Speaker 1: like the post-election litigation that we saw in 2020 or
• 20:43
  Speaker 1: some of what we saw in 2022. The challenge with
• 20:47
  Speaker 1: all of these post-election losses is that once you walk
• 20:51
  Speaker 1: into a federal court and you demand relief, and that
• 20:55
  Speaker 1: relief requires setting aside the results of a democratically conducted election,
• 21:00
  Speaker 1: you've got to have evidence. To back up those claims,
• 21:04
  Speaker 1: you cannot walk into a federal courthouse with the same
• 21:09
  Speaker 1: speech that you would give at a rally or a
• 21:13
  Speaker 1: press conference. And so far, you know, in all of
• 21:18
  Speaker 1: these efforts to overturn election results over the last several years,
• 21:23
  Speaker 1: the evidence just has not been there. There is no
• 21:26
  Speaker 1: substance to back up the claims that have been brought
• 21:29
  Speaker 1: challenging our electoral system. And unless that changes, I think
• 21:34
  Speaker 1: that we're not really going to see any impact from
• 21:37
  Speaker 1: any post-election litigation other than to continue to undermine public
• 21:44
  Speaker 1: confidence in our elections, which maybe is the point. And,
• 21:46
  Speaker 1: you know, the ultimate winner in all of the post-election
• 21:50
  Speaker 1: battles is almost always the little hours and no one else.
• 21:54
  Speaker 3: The Georgia State Election Board asked Justice Department and Homeland
• 21:59
  Speaker 3: Security to review and potentially investigate the state's voting system
• 22:04
  Speaker 3: and handling of election data.
• 22:07
  Speaker 1: You know, the Georgia State Election Board despite its name,
• 22:12
  Speaker 1: does not actually run elections in Georgia. Elections in Georgia
• 22:16
  Speaker 1: are run by the Secretary of State and by the
• 22:18
  Speaker 1: county boards of election. The state elections board is an
• 22:22
  Speaker 1: oversight and kind of enforcement body for certain state election
• 22:25
  Speaker 1: laws that affect election officials, but they have pretty limited authority.
• 22:31
  Speaker 1: And they have been engaged in a kind of intrapartisan
• 22:36
  Speaker 1: political feud with Secretary Raffensperger for quite some time. Like
• 22:40
  Speaker 1: many supporters of the president in Georgia, they were not
• 22:45
  Speaker 1: happy with Secretary Raffensperger upholding the results of the 2020
• 22:49
  Speaker 1: election and certifying Joe Biden's victory over Donald Trump in 2020.
• 22:55
  Speaker 1: And so they've been kind of going at it ever since.
• 22:59
  Speaker 1: but the state elections board's complaint and call for the
• 23:01
  Speaker 1: Justice Department and VHS to investigate Georgia's voting machine is
• 23:05
  Speaker 1: really just an echo of the same kind of tired
• 23:10
  Speaker 1: conspiracy theories that we saw around Georgia's elections in the
• 23:13
  Speaker 1: aftermath of 2020. These claims that they're making have been
• 23:18
  Speaker 1: rejected by courts, rejected by experts, rejected by Georgia's own
• 23:22
  Speaker 1: Republican Secretary of State. So I wouldn't take the claims
• 23:26
  Speaker 1: of the Georgia State Elections Board on this issue particularly seriously.
• 23:30
  Speaker 2: And I wonder what the post-election lawsuits are going to
• 23:33
  Speaker 2: look like, because... Legal experts have complained about the quality,
• 23:38
  Speaker 2: or I should say the lack of quality, of the
• 23:41
  Speaker 2: Justice Department's papers in these cases. I mean, most of
• 23:45
  Speaker 2: the experienced line attorneys have either left on their own
• 23:49
  Speaker 2: or been fired.
• 23:50
  Speaker 1: They got rid of almost the entire civil rights division
• 23:53
  Speaker 1: and many of their most experienced appellate lawyers and people
• 23:57
  Speaker 1: at DOJ who understood the voting laws and how elections work.
• 24:01
  Speaker 1: And the people that they are left with are more
• 24:04
  Speaker 1: political operatives than actual lawyers. And like I said before
• 24:08
  Speaker 1: about the evidence, once you get in front of a judge,
• 24:11
  Speaker 1: political posturing and that kind of rhetoric is not going
• 24:14
  Speaker 1: to get you very far if you don't actually have
• 24:17
  Speaker 1: any legal cause of action to stand on.
• 24:20
  Speaker 2: It would be great if the Justice Department only files
• 24:23
  Speaker 2: challenges when it has valid legal grounds, but that hasn't
• 24:28
  Speaker 2: been the case so far. It's always a pleasure, Jonathan.
• 24:31
  Speaker 2: Thanks so much. That's Jonathan Diaz of the Campaign Legal Center.
• 24:36
  Speaker 2: Coming up next, a federal judge is launching an investigation
• 24:40
  Speaker 2: into whether Justice Department attorneys violated ethics rules in the
• 24:45
  Speaker 2: golf course case. This is Bloomberg. One D.C. federal judge
• 24:53
  Speaker 2: is fed up with the Justice Department's representations in court
• 24:58
  Speaker 2: that appear to conflict with President Trump's representations out of court.
• 25:03
  Speaker 2: Judge Ana Reyes is opening a formal inquiry into whether
• 25:07
  Speaker 2: government lawyers made misrepresentations in court about Trump's plans to
• 25:13
  Speaker 2: renovate a community golf course in D.C. The judge said
• 25:17
  Speaker 2: the inquiry will be to determine if Justice Department or
• 25:21
  Speaker 2: agency lawyers made false statements, withheld information, or otherwise violated
• 25:27
  Speaker 2: ethics rules. She also ordered the administration to preserve all
• 25:31
  Speaker 2: documents and communications about the golf course planning process. In
• 25:37
  Speaker 2: a tense hearing on Friday, Judge Reyes told Justice Department
• 25:41
  Speaker 2: Attorney Stanley Woodward, The third highest ranking official at the
• 25:45
  Speaker 2: Department of Justice is telling me, telling a federal court,
• 25:50
  Speaker 2: that he cannot say that when the president posted the
• 25:53
  Speaker 2: course will close on November 15th, what he meant was,
• 25:58
  Speaker 2: The course will close November 15th. Woodward's response was, this
• 26:03
  Speaker 2: seems to fall squarely within the executive privilege. Joining me
• 26:08
  Speaker 2: is Bloomberg Law's Suzanne Moniak, who was in the courtroom
• 26:12
  Speaker 2: and has been following all these very tense hearings. Suzanne,
• 26:17
  Speaker 2: before we get to the latest, explain what's been happening
• 26:21
  Speaker 2: in these tense hearings with Judge Reyes over the golf course.
• 26:26
  Speaker 7: There's been a lot of testy exchanges between the Justice
• 26:29
  Speaker 7: Department and Judge Ana Reyes of Washington Federal Trial Court
• 26:32
  Speaker 7: in a case about Donald Trump's proposed renovation and already
• 26:36
  Speaker 7: existing prior tree removals at a Washington Community Golf Course.
• 26:40
  Speaker 4: That's the East Potomac Park Golf Course.
• 26:42
  Speaker 7: That came to a head at a hearing this past
• 26:44
  Speaker 7: Friday when we saw the judge announce that the court
• 26:47
  Speaker 7: would be initiating a review into whether the Justice Department
• 26:51
  Speaker 7: may have violated ethics rules by making full statements to
• 26:53
  Speaker 7: the court.
• 26:54
  Speaker 2: So she said for months, the court has trusted but
• 26:57
  Speaker 2: not verified no longer. President Trump has been saying things
• 27:02
  Speaker 2: on Truth Social that the Justice Department lawyers have been
• 27:06
  Speaker 2: denying in court.
• 27:08
  Speaker 7: The issue of how to reconcile DOJ statements in court
• 27:11
  Speaker 7: with Donald Trump's Truth Social posts has been a big
• 27:14
  Speaker 7: issue in this case. There have been a number of
• 27:16
  Speaker 7: times where we've seen Donald Trump posting what sounds to
• 27:19
  Speaker 7: be definitive plans.
• 27:20
  Speaker 4: We are planning. We will close this golf course.
• 27:23
  Speaker 7: On November 15th to build this championship-style course that he's
• 27:27
  Speaker 7: envisioned with this architect. And then we're seeing DOJ lawyers
• 27:30
  Speaker 7: in court trying to make this argument that this is
• 27:33
  Speaker 7: not a final plan because they don't want to face
• 27:36
  Speaker 7: a lawsuit under administrative law, which would apply to a
• 27:38
  Speaker 7: final plan. And so we're seeing the DOJ come into
• 27:42
  Speaker 7: court and say there is actually no plan to close
• 27:44
  Speaker 7: the course, literally when Donald Trump, the day before the hearing,
• 27:47
  Speaker 7: posted on Truth Social that there was. It's been an
• 27:50
  Speaker 7: interesting line of questioning in this case, where we've seen
• 27:53
  Speaker 7: some politically appointed DOJ lawyers try to make the case that, oh,
• 27:57
  Speaker 7: Trump's posts are, you know, directives to the agency to
• 28:00
  Speaker 7: implement and are not necessarily like statements of fact, almost.
• 28:03
  Speaker 7: So they seem to, you know, not want to ever,
• 28:06
  Speaker 7: you know, point blank say that the president's post is wrong.
• 28:10
  Speaker 7: So it's been a weird line to see lawyers try
• 28:11
  Speaker 7: to cross and I think it's been something that has
• 28:14
  Speaker 7: been frustrating for the judge, at least it seems that way.
• 28:16
  Speaker 4: She's trying to kind.
• 28:18
  Speaker 7: Of untangle what happened when and when DOJ lawyers might
• 28:22
  Speaker 7: have been aware of a plan and potentially did they
• 28:25
  Speaker 7: come to court saying there was no plan when actually
• 28:27
  Speaker 7: they knew that there was.
• 28:28
  Speaker 2: So did the DOJ finally admit that Trump is going
• 28:32
  Speaker 2: to close the golf course on November 15th?
• 28:36
  Speaker 4: They did, but it didn't come immediately.
• 28:39
  Speaker 7: It was after kind of a long process and back
• 28:40
  Speaker 7: and forth between DOJ and the judge and Trump posting
• 28:44
  Speaker 7: on Truth Social, admit it all. And so the DOJ
• 28:47
  Speaker 7: did last month send a notice to the court. They
• 28:50
  Speaker 7: were required to do so 10 business days before any
• 28:53
  Speaker 7: major changes or closures to the park under a court order.
• 28:56
  Speaker 7: So they did timely alert the court that, yes, they
• 28:59
  Speaker 7: will in fact be closing this golf course on November 15th.
• 29:03
  Speaker 7: Nine days before that notice, they had told the court,
• 29:05
  Speaker 7: There were no plans to close the Gulf course on
• 29:07
  Speaker 7: November 15th, even though Trump had posted on social media
• 29:10
  Speaker 7: that there were. So that's really what, you know, I
• 29:13
  Speaker 7: think prompted this ethics inquiry that the judge announced in
• 29:18
  Speaker 7: court last week is, you know, when you told me
• 29:21
  Speaker 7: that there were no plans, was that a false statement?
• 29:23
  Speaker 4: Did you know otherwise?
• 29:24
  Speaker 2: Now, she said, you're telling me that even now, even now,
• 29:28
  Speaker 2: after DOJ has admitted and conceded that there was a
• 29:31
  Speaker 2: plan to close the course, there was no plan?
• 29:34
  Speaker 1: No.
• 29:35
  Speaker 2: You're saying to me, do not believe the president. And
• 29:38
  Speaker 2: this is the third highest. ranking official within the Justice
• 29:42
  Speaker 2: Department who's handling this.
• 29:44
  Speaker 4: That's right.
• 29:45
  Speaker 7: It's been Stanley Woodward, who's really taken the lead on
• 29:47
  Speaker 7: doing these arguments and taking this position. He's a, like
• 29:50
  Speaker 7: you've mentioned, the third ranking official at the Justice Department,
• 29:53
  Speaker 7: and he's a political appointee.
• 29:54
  Speaker 4: Um, That's an important distinction to make.
• 29:57
  Speaker 7: Some lawyers at the Justice Department are chosen by political
• 29:59
  Speaker 7: administrations and serve in political roles. Others are career attorneys
• 30:03
  Speaker 7: whose careers will span across multiple administrations.
• 30:06
  Speaker 4: They're intended to be nonpartisan.
• 30:08
  Speaker 2: They also made a claim of executive privilege?
• 30:12
  Speaker 4: Yes, that's right.
• 30:12
  Speaker 7: In a filing this morning, we saw the Justice Department
• 30:15
  Speaker 7: lawyers in the golf course case claim essentially that executive
• 30:18
  Speaker 7: privilege should cover certain communications regarding the creation of the
• 30:23
  Speaker 7: plan to renovate the golf course. What Judge Honorez really
• 30:26
  Speaker 7: wants to know here is, you know, when did some
• 30:29
  Speaker 7: people start planning for this renovation? Like, how long has
• 30:32
  Speaker 7: this been in the works and when did this plan begin?
• 30:35
  Speaker 7: The Justice Department is claiming that that should be covered
• 30:37
  Speaker 7: by executive privilege, essentially meaning that they shouldn't have to
• 30:40
  Speaker 7: turn over those records in court under a law protecting
• 30:44
  Speaker 7: presidential communications and decision-making procedures in the White House. And
• 30:47
  Speaker 7: they're making the claim that the very question of when
• 30:50
  Speaker 7: gets at that. We'll see how that plays out.
• 30:52
  Speaker 2: So she has previously barred the government from removing more
• 30:56
  Speaker 2: trees and they have to notify the court 10 days
• 30:59
  Speaker 2: before the park is closed or undergoes major changes. If
• 31:03
  Speaker 2: they start on November 15th with this golf course, is
• 31:08
  Speaker 2: that a direct violation of her order?
• 31:11
  Speaker 4: Not as of now.
• 31:12
  Speaker 7: The judge has not ordered the administration to keep the
• 31:15
  Speaker 7: park open. All that she's ordered at this point is
• 31:17
  Speaker 7: that they may not remove more trees for the duration
• 31:20
  Speaker 7: of the case at this point, which was a direct
• 31:23
  Speaker 7: response to a situation a couple of weeks ago when
• 31:26
  Speaker 7: we saw the government alert her on a Friday afternoon
• 31:29
  Speaker 7: before Columbus Day weekend that they were going to be
• 31:31
  Speaker 7: removing trees the following day and then proceeded to remove
• 31:34
  Speaker 7: hundreds of trees despite a verbal request from the judge
• 31:38
  Speaker 7: that she be given enough notice before there's any irreversible
• 31:41
  Speaker 7: changes to the park during this case. After that, that
• 31:44
  Speaker 7: was really kind of the beginning of this, you know, heated,
• 31:48
  Speaker 7: escalating tensions between the judge and DOJ in this case
• 31:51
  Speaker 7: because she was very angry about that. And now she's
• 31:53
  Speaker 7: requiring notice, but not saying that they can't close.
• 31:56
  Speaker 4: However, I do.
• 31:57
  Speaker 7: Expect court challengers in this case to potentially come forward
• 32:01
  Speaker 7: this week and request an order blocking the closure. That's
• 32:04
  Speaker 7: just not something that's before the judge at this time.
• 32:07
  Speaker 2: Yeah, I mean, I'm surprised that that hasn't moved up,
• 32:09
  Speaker 2: but I guess they're awaiting to see what happens. Now,
• 32:13
  Speaker 2: this I find a little amusing. She kicked off the
• 32:17
  Speaker 2: hearing by reading out the D.C. Bar's conduct rules.
• 32:21
  Speaker 7: It was a strong start to the hearing. She pretty
• 32:25
  Speaker 7: much kicked it off by reading out D.C. Bar ethics
• 32:27
  Speaker 7: rules on candor to the court and how government lawyers
• 32:30
  Speaker 7: are obligated to make statements that they believe to be
• 32:34
  Speaker 7: true and to have made reasonable inquiries into what they're
• 32:38
  Speaker 7: going to be relaying to the court to ensure that
• 32:39
  Speaker 7: it's true.
• 32:40
  Speaker 4: She gave Mr.
• 32:42
  Speaker 7: Woodward an opportunity to correct any statements that he or
• 32:45
  Speaker 7: others might have made.
• 32:46
  Speaker 4: He said, no, there's no false statements.
• 32:48
  Speaker 7: And then at the end of the hearing that also
• 32:50
  Speaker 7: featured a number of tense exchanges, she announced that an
• 32:53
  Speaker 7: inquiry would be opening either by her or by a
• 32:56
  Speaker 7: third-party court-appointed person to consider whether DOJ violated ethics rules.
• 33:01
  Speaker 7: And she was clear that she's not finding that they did,
• 33:04
  Speaker 7: but is opening an inquiry into whether they did.
• 33:06
  Speaker 2: So who's going to decide who handles the inquiry?
• 33:10
  Speaker 7: Somewhat remains to be seen. We have yet to have
• 33:12
  Speaker 7: a name be put forward, at least publicly. The judge
• 33:15
  Speaker 7: did say that DOJ would have an opportunity to object
• 33:18
  Speaker 7: to a court-appointed person if they wanted to.
• 33:21
  Speaker 2: Trump's beautification projects are taking up a lot of time
• 33:27
  Speaker 2: of federal judges in D.C. In another courtroom on Friday,
• 33:31
  Speaker 2: Judge Tanya Chutkin was hearing arguments about his proposed ARCH case.
• 33:37
  Speaker 2: she's expressed a lot of concerns about the Trump administration
• 33:41
  Speaker 2: moving ahead before she has a chance to rule. It's
• 33:44
  Speaker 2: like she doesn't want to wake up in the morning
• 33:46
  Speaker 2: and being told that there's bulldozing going on.
• 33:49
  Speaker 4: That's right.
• 33:49
  Speaker 7: I think one of the bigger issues that's been kind
• 33:51
  Speaker 7: of looming over both the Gulf course case, whether Trump's
• 33:54
  Speaker 7: triumphal arch, really all of these cases about Trump's projects
• 33:57
  Speaker 7: in D.C. are whether, you know, essentially the project will become,
• 34:00
  Speaker 7: as judges have said, a fait accompli, where By the
• 34:03
  Speaker 7: time that a court is able to issue a ruling
• 34:05
  Speaker 7: on whether something was legal or not, the project's already done.
• 34:08
  Speaker 7: And it's unlikely that we would see the government go
• 34:10
  Speaker 7: tear it down after it's already been built, even if
• 34:13
  Speaker 7: it turns out that they didn't have legal authorization to
• 34:15
  Speaker 7: do so. And so that's been an issue in this
• 34:18
  Speaker 7: Gulf Coast case where we've seen Judge Reyes say, hey,
• 34:20
  Speaker 7: I would like notice before irreversible changes after this tree situation.
• 34:24
  Speaker 4: And it's an issue in a.
• 34:25
  Speaker 7: Separate case that had this also a hearing on the
• 34:27
  Speaker 7: same day on Friday.
• 34:28
  Speaker 4: It was a big day. for Trump's projects.
• 34:30
  Speaker 7: We have seen that judge say at a hearing back
• 34:32
  Speaker 7: in the spring, she doesn't want to wake up to bulldozers.
• 34:35
  Speaker 7: And that's because that's what happened with the White House ballroom,
• 34:38
  Speaker 7: where that east wing was destroyed without much warning and
• 34:41
  Speaker 7: before a federal court could weigh in. And now, of course,
• 34:43
  Speaker 7: both of a lower and an appeals court have found
• 34:46
  Speaker 7: that Trump actually didn't have authorization to build a White
• 34:49
  Speaker 7: House ballroom without congressional approval.
• 34:51
  Speaker 4: So that's a fear that just really hangs over all
• 34:52
  Speaker 4: of these cases.
• 34:53
  Speaker 7: And I think it's very present is this idea that
• 34:56
  Speaker 7: once construction has gotten started, The Justice Department is going
• 34:59
  Speaker 7: to argue that halting mid-construction is a great harm to
• 35:02
  Speaker 7: the government. But before construction has gotten started, they're going
• 35:05
  Speaker 7: to argue that nothing's been final, no decisions have been made,
• 35:07
  Speaker 7: and it's premature to challenge it. It puts parties in
• 35:10
  Speaker 7: a difficult situation and judges, it seems, as well.
• 35:13
  Speaker 2: So what is the exact issue before Judge Chutkin?
• 35:16
  Speaker 7: Before Judge Chutkin is a challenge to essentially future plans
• 35:19
  Speaker 7: to build a 250-foot triumphal arch. The case has been
• 35:23
  Speaker 7: pending for months, but it's picked up this month because
• 35:26
  Speaker 7: on November 5th, the National Capital Planning Commission is considering
• 35:30
  Speaker 7: for potential approval the Trump administration's submission for this triumphal arch.
• 35:34
  Speaker 7: And the administration has told Judge Shetkin that construction could
• 35:38
  Speaker 7: literally start that very day on November 5th.
• 35:41
  Speaker 4: At that point, this case picked up.
• 35:43
  Speaker 7: And so we've now seen three lawsuits at least challenging
• 35:46
  Speaker 7: a proposal to build that arch. Judge Shetkin had a
• 35:48
  Speaker 7: hearing on it on Friday. And we will have to see.
• 35:52
  Speaker 7: There's still briefing happening in one of the other cases.
• 35:54
  Speaker 1: D.C.
• 35:55
  Speaker 7: And Virginia joined the fray over the weekend and filed
• 35:57
  Speaker 7: their own lawsuit seeking to block this.
• 36:00
  Speaker 4: Similar arguments with our different plaintiffs.
• 36:01
  Speaker 7: So if there were an issue with plaintiffs in one
• 36:04
  Speaker 7: of the other cases, they would come from a different
• 36:05
  Speaker 7: perspective and position.
• 36:07
  Speaker 4: So we will have to see.
• 36:08
  Speaker 7: I think it is very likely we'll get a ruling
• 36:10
  Speaker 7: from Judge Shutkin before the afternoon of the 5th.
• 36:14
  Speaker 2: Just a slew of legal cases challenging President Trump's projects.
• 36:20
  Speaker 2: to leave his imprint on D.C. and a lot of
• 36:23
  Speaker 2: frustrated judges. Thanks for keeping up with it all, Suzanne.
• 36:28
  Speaker 2: That's Suzanne Moniak of Bloomberg Law. And that's it for
• 36:31
  Speaker 2: this edition of the Bloomberg Law Show. Remember, you can
• 36:34
  Speaker 2: always get the latest legal news on our Bloomberg Law podcast.
• 36:37
  Speaker 2: You can find them on Apple Podcasts, Spotify, and at
• 36:41
  Speaker 2: www.bloomberg.com slash podcast slash law. And remember to tune into
• 36:46
  Speaker 2: the Bloomberg Law Show every weeknight at 10 p.m. Wall
• 36:50
  Speaker 2: Street time. I'm June Grosso, and you're listening to Bloomberg.