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Chief Justice Roberts Rebukes President Trump · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Chief Justice has stepped into the Trump administration's escalating
0:13
Speaker 2: battle against the judiciary. This morning, President Donald Trump called
0:18
Speaker 2: for the impeachment of the judge who ruled against his
0:21
Speaker 2: deportation of alleged Venezuelan gang members to l Salvador, calling
0:26
Speaker 2: him on truth social a radical left lunatic of a judge,
0:30
Speaker 2: a troublemaker, and an agitator. And before noon, Chief Justice
0:35
Speaker 2: John Roberts made a rare public statement against Trump's impeachment call, saying, quote,
0:41
Speaker 2: for more than two centuries, it has been established that
0:44
Speaker 2: impeachment is not an appropriate response to disagreement concerning a
0:49
Speaker 2: judicial decision. The normal appellate review process exists for that purpose.
0:54
Speaker 2: Joining me is an expert in the federal judiciary, Carl Tobias,
0:58
Speaker 2: a professor at the University of Richmond Law School. It's
1:02
Speaker 2: rare for Roberts to make a comment like this. How
1:05
Speaker 2: surprising is it?
1:06
Speaker 3: Well, we had an inkling of that before. Remember in
1:10
Speaker 3: his year end report he sounded a bit of an
1:13
Speaker 3: alarm just saying he was worried about threats to judges
1:18
Speaker 3: and a number of judges have spoken out, and so
1:23
Speaker 3: this is just a follow on to that. When he
1:26
Speaker 3: saw the severe criticism of Judge Boseburg in the DC
1:30
Speaker 3: District Court by President Trump today on social media, and
1:35
Speaker 3: I think he was concerned, and so I just think
1:40
Speaker 3: he is trying to calm the waters a little bit
1:43
Speaker 3: and say it's not appropriate to attack the judge. Just
1:47
Speaker 3: appeal the judge's rulings to the DC Circuit Court, which
1:51
Speaker 3: of course the Justice Department did immediately after Judge Boseburg
1:56
Speaker 3: entered the orders.
1:57
Speaker 2: Trump has bad mouth judges going back to his first
2:02
Speaker 2: administration and probably before that. Do you think it was
2:05
Speaker 2: the fact that Trump actually talked about impeaching the judge
2:09
Speaker 2: that led Roberts to make the statement.
2:12
Speaker 3: Yes, I think so in this specific instance, because there
2:17
Speaker 3: have been a number of members of Congress who either
2:21
Speaker 3: have introduced impeachment resolutions or are threatening to do so,
2:26
Speaker 3: and especially in this case, and I think he wants
2:29
Speaker 3: to tamp down that if he can, because they are
2:34
Speaker 3: largely performative. They don't have sixty seven votes to convict
2:39
Speaker 3: in the Senate, and so they just stir people up
2:43
Speaker 3: to no good end, really from his perspective, and I
2:46
Speaker 3: think most people who believe in separation of powers and
2:49
Speaker 3: the branches of government and checks and balances are concerned,
2:55
Speaker 3: and so I think Chief Justice wanted to get out
2:58
Speaker 3: in front of that and think he's made his point
3:02
Speaker 3: and hopefully that will calm down some all right, While
3:07
Speaker 3: the case is on appeal to the DC Circuit, which
3:10
Speaker 3: you know is what should happen.
3:12
Speaker 2: It hasn't calmed down. One GOP congressman has filed articles
3:16
Speaker 2: of impeachment against the judge, and as you say, it's
3:20
Speaker 2: performative because none of the other articles have gone anywhere
3:23
Speaker 2: that they've filed against these judges. But I mean what
3:26
Speaker 2: the Chief Justice said is just plain legal practice. If
3:30
Speaker 2: you have a ruling you don't like, you appeal it,
3:33
Speaker 2: you don't try to impeach a judge exactly.
3:38
Speaker 3: And historically, as Chief Justice Roberts points out, have been
3:42
Speaker 3: a tiny number of judges. Fifteen have been the subject
3:46
Speaker 3: of articles of impeachment, and eight have been convicted, but
3:50
Speaker 3: usually four. As the Constitution says, high crimes and misdemeanors,
3:54
Speaker 3: you know, some kind of serious bodily injured to somebody
3:58
Speaker 3: or a bride, which happened sometimes, but serious criminal behavior,
4:05
Speaker 3: not decisions with which the president or anybody else disagrees.
4:10
Speaker 3: That is not a basis for impeachment in our history.
4:14
Speaker 2: And aren't they already appealing Judge Bosberg's order?
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Speaker 3: In fact, I think there are a couple of appeals
4:21
Speaker 3: that they've taken to the DC Circuit, But one was
4:25
Speaker 3: his order that the planes turn around, which is I
4:29
Speaker 3: think on Saturday, which he reduced to writing in the
4:32
Speaker 3: evening on Saturday, but had said clearly in oral arguments
4:36
Speaker 3: in court before that, I think in the afternoon that
4:39
Speaker 3: that's what he expected to happen, and it didn't, and
4:42
Speaker 3: so that was a problem. But immediately after he ruled,
4:47
Speaker 3: they went to the DC Circuit I think on Saturday
4:50
Speaker 3: night with their appeal and said, basically, national security and
4:56
Speaker 3: executive brand's power is almost absolutely here, and especially immigration
5:03
Speaker 3: in the national defense. Those kinds of arguments, which you know,
5:08
Speaker 3: are courts have deferred to over our history, but not completely.
5:13
Speaker 3: And the judges have some role to play here because
5:17
Speaker 3: of course, the plaintiffs have argued that some of them
5:21
Speaker 3: that they're not members of this gang, so they're innocent
5:24
Speaker 3: people perhaps in among that group who were now in
5:28
Speaker 3: Al Salvador.
5:29
Speaker 2: And tell us a little about Judge Boseburg.
5:32
Speaker 3: I think he's a highly respected judge on the one
5:36
Speaker 3: of the best courts in the country, certainly at the
5:38
Speaker 3: district court level, and he had an incredibly strong reputation
5:43
Speaker 3: as a consummate prosecutor before he came on the bench.
5:46
Speaker 3: And he's been there a while, I think a dozen
5:49
Speaker 3: or more years in that court, and I think he's
5:51
Speaker 3: intimately familiar with the kinds of disputes, you know, separation
5:54
Speaker 3: of powers, brands as government, those kinds of issues that
5:58
Speaker 3: come to the d C District And I think he's
6:01
Speaker 3: very rigorous and he's in those nonsense judge, but I
6:05
Speaker 3: think he's very fair and enjoys enormous respect from his
6:08
Speaker 3: colleagues and from people who appear in his court.
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Speaker 2: Tell us about the questions sort of in the background here.
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Speaker 3: What led us to this point, I think is and
6:19
Speaker 3: looming in the background, is whether Trump is going to
6:22
Speaker 3: continue to appeal the cases or are they going to
6:26
Speaker 3: defy court orders. They've come dangerously close to the brink
6:31
Speaker 3: in this case and some other cases, and the system
6:35
Speaker 3: can't work if that's what they're going to do. They
6:38
Speaker 3: need to appeal to the next highest court and to
6:40
Speaker 3: the Supreme Court if they're dissatisfied with a lower court
6:43
Speaker 3: ruling at a district level and not withhold evidence or
6:48
Speaker 3: say we're just not going to give the judge the
6:50
Speaker 3: factual matters that are important to resolving the dispute. The
6:55
Speaker 3: system won't work that way. But also there's the checks
6:58
Speaker 3: and balances, and we expect independent judiciary not to be
7:02
Speaker 3: threatened with impeachment and other things. So all of that,
7:06
Speaker 3: I think went into what Roberts had to say.
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Speaker 2: The Vice President referred to Andrew Jackson saying Chief Justice
7:14
Speaker 2: has issued the order, now let him enforce it. Something
7:17
Speaker 2: along those lines which may or may not be true,
7:21
Speaker 2: but has been attributed to Jackson. So what can the
7:24
Speaker 2: courts do if Trump says, no, I won't comply with
7:27
Speaker 2: that order.
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Speaker 3: I think you're right with Jackson that it was apocryphal,
7:31
Speaker 3: but it makes for a good story. What they can
7:36
Speaker 3: do is there are tools and measures that they have.
7:39
Speaker 3: They can sanction. They can hold lawyers and litigants in
7:45
Speaker 3: civil and criminal contempt of court, and that could be
7:49
Speaker 3: imposed large fines and even jail time. Judges are reluctant
7:53
Speaker 3: to use those, and they're kind of the last resort,
7:56
Speaker 3: but they can do that if there's not cooperate. Those
8:01
Speaker 3: are the major kinds of things that courts do. It's rare,
8:05
Speaker 3: it's unusual, but courts do that if they're being frustrated
8:10
Speaker 3: in their role in trying to find the facts that
8:12
Speaker 3: apply to a lot of the facts.
8:13
Speaker 2: If so, they try to a contempt citation. Isn't the
8:18
Speaker 2: US Marshal Service that executes those? And suppose the Justice
8:24
Speaker 2: Department says we're not letting the marshals.
8:25
Speaker 3: Do that, well, then I think Judge Boseburg, for example,
8:29
Speaker 3: could call the Attorney General in and have a discussion
8:33
Speaker 3: in court, because I think those people report to her
8:37
Speaker 3: and just say, you know, the rule of law has
8:39
Speaker 3: to be upheld, and I've ruled this way and I
8:42
Speaker 3: expect the orders to be enforced. And I think he's
8:46
Speaker 3: determined to do that if he needs to do that
8:48
Speaker 3: because of the relationship between the branch as judicial independence
8:53
Speaker 3: and the need to have the information.
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Speaker 2: I don't think we've ever had a president issuing so
8:59
Speaker 2: many exist executive orders in such a short span of
9:03
Speaker 2: time and trying to have them executed very quickly. So
9:09
Speaker 2: you have Elon Musk going in and firing people while
9:12
Speaker 2: you know they can't even make it to the courthouse
9:15
Speaker 2: doors before they're fired and out the government's door.
9:18
Speaker 3: It's hard to keep up, Yes, I mean, I think
9:20
Speaker 3: there's a theory there which Bannon has bandied about, that
9:25
Speaker 3: they're flooding the zone. So you can't really keep up
9:29
Speaker 3: with all of the executive orders and challenge all of
9:32
Speaker 3: them immediately. And that's part of the strategy, is just
9:36
Speaker 3: to again flood the zone. So people are overwhelmed and
9:40
Speaker 3: the thousands of people have lost their jobs, and it's
9:42
Speaker 3: important to keep your eye on exactly what is happening.
9:46
Speaker 3: And also there are real branches of government issues about Congress,
9:50
Speaker 3: the power of the purse violating in these executive orders,
9:54
Speaker 3: clear mandates that Congress has passed. Those are serious breaches
9:59
Speaker 3: of our e understanding of what is appropriate by way
10:03
Speaker 3: of executive orders.
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Speaker 2: Yea. So Trump has been calling judges names, as I mentioned,
10:09
Speaker 2: for years. You think about the judges in his cases,
10:13
Speaker 2: like Judge one Mshawn in New York. He called him
10:16
Speaker 2: every name in the book, you know, horrible judges, unfair judges,
10:22
Speaker 2: Democrat judges. You know, do you think that hurts the judiciary? Finally,
10:27
Speaker 2: in the public's eye when they hear this over and
10:29
Speaker 2: over again.
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Speaker 3: Well, I think that is a concern that judges have,
10:33
Speaker 3: and I think to some extent Roberts is speaking to that.
10:37
Speaker 3: We want respect for the judiciary, we want the branches
10:41
Speaker 3: to cooperate and get along, we want them to follow
10:44
Speaker 3: the rule of law. All of those things are critical
10:47
Speaker 3: to democracy, and so they're extremely important, and right now
10:53
Speaker 3: it appears that to some extent they're being attacked or eroded.
10:58
Speaker 3: And the last thing you want is the judiciary to
11:02
Speaker 3: be considered the enemy of the citizens whom masurs. And
11:07
Speaker 3: so I think he's appropriately concerned and still is trying
11:11
Speaker 3: to be cautious and careful about that.
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Speaker 2: Despite what the Chief Justice said, this may be just
11:18
Speaker 2: the beginning of this battle against the judiciary. Thanks so much, Carl.
11:24
Speaker 2: That's Professor Carl Tobias of the University of Richmond Law School.
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Speaker 2: Coming up next on the Bloomberg Law Show, We're going
11:31
Speaker 2: to talk about the case behind Trump's call for impeachment.
11:35
Speaker 2: I'm June Grosso and this is Bloomberg. It's a case
11:39
Speaker 2: that has turned into an extraordinary conflict between the executive
11:44
Speaker 2: and judicial branches. President Trump has invoked an eighteenth century
11:48
Speaker 2: law to deport hundreds of alleged Venezuelan gang members to
11:53
Speaker 2: prison in El Salvador without offering any proof, let alone
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Speaker 2: a hearing. Deputy White House Chief of sis Staff Stephen Miller,
12:01
Speaker 2: has defended the president's authority to order the deportation.
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Speaker 4: Flights the President had the broadest range of authority to
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Speaker 4: remove from the nation non citizens who are part of
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Speaker 4: an alien enemy force, and that's the authority the president has.
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Speaker 2: But legal learnt of the ACLU contends that Trump did
12:21
Speaker 2: not have the authority to use the law against a
12:24
Speaker 2: criminal gang rather than a recognized state. Federal judge James
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Speaker 2: Boseburg barred the Trump administration from carrying out deportations on Saturday,
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Speaker 2: and during a court hearing on Monday, Gallern said that
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Speaker 2: the administration may have violated the judge's order.
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Speaker 1: If anything, it reinforced that our view that the government
12:46
Speaker 1: may very well have violated disorder, perhaps even knowingly violated.
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Speaker 2: The government contends that the weekend deportation did not violate
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Speaker 2: the judge's written order barring use of the law. Joining
13:00
Speaker 2: me is constitutional law expert David super, a professor at
13:04
Speaker 2: Georgetown Law David. Before we get to the actual case,
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Speaker 2: let's talk about Trump calling for the impeachment of Judge
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Speaker 2: Boseburg and the Chief Justice in a rare statement saying
13:17
Speaker 2: that impeachment is not an appropriate response to disagreeing with
13:21
Speaker 2: the Court's order. How startling is it for the Chief
13:24
Speaker 2: Justice to come out with a statement like this.
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Speaker 1: Oh, I don't think it's startling at all. The administration
13:32
Speaker 1: has been attacking judges left and right over decisions that
13:38
Speaker 1: the judges have made, and has been doing everything it
13:43
Speaker 1: can to politicize the judiciary. This Chief Justice has long
13:47
Speaker 1: felt that the judiciary's role depends on it not being
13:52
Speaker 1: regarded as a partisan judiciary. So this is entirely consistent
13:56
Speaker 1: with his past approach.
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Speaker 2: Do you think it had anything to do with Donald
14:00
Speaker 2: Trump's truth social post calling for the impeachment of Judge Bosburg.
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Speaker 2: It may be the first time in his administration that
14:08
Speaker 2: Trump has called for the impeachment of a judge.
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Speaker 1: It's the first time that I'm aware of, But he
14:14
Speaker 1: says so much that I don't follow it all. But
14:17
Speaker 1: certainly other administration officials I believe, including the Vice President
14:22
Speaker 1: and mister Musk, have said similar things.
14:25
Speaker 2: Let's talk about this case. First of all, what do
14:28
Speaker 2: you think about Trump's use of the Alien Enemies Act here,
14:32
Speaker 2: which has only been used three times, and those three
14:35
Speaker 2: times were during wars.
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Speaker 1: That's profoundly dishonest. The Enemy Aliens Act generally applies only
14:42
Speaker 1: in cases of declared war. It makes an exception where
14:46
Speaker 1: it can be applied without a declared war. If a
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Speaker 1: foreign government invades the United States. You may not like
14:56
Speaker 1: the Venezuelan immigrants that have come here because the enemy
15:00
Speaker 1: collapsed down there, but that's not a government sponsored invasion.
15:04
Speaker 1: There are no tanks, there are no canons, there are
15:07
Speaker 1: no soldiers marching in formation. This is not an invasion. Moreover,
15:12
Speaker 1: the Alien Enemies Act provides for giving people a reasonable
15:17
Speaker 1: amount of time to wrap up their affairs before they
15:20
Speaker 1: have to leave again, consistent with starting a war with
15:23
Speaker 1: a country. This administration didn't do that at all. This
15:28
Speaker 1: kind of stretching the law is inevitably unprovoke a strong
15:32
Speaker 1: reaction from the courts.
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Speaker 2: So there was a hearing, an emergency hearing on Saturday,
15:37
Speaker 2: where Judge Bosburg ordered that the Venezuelans be returned to
15:43
Speaker 2: the United States. Any plane containing those folks that is
15:46
Speaker 2: going to take off or is in the air needs
15:49
Speaker 2: to be returned to the United States. Obviously that didn't happen,
15:54
Speaker 2: So the judge held a hearing on Monday, and the
15:57
Speaker 2: government made several arguments. One they claimed that they didn't
16:02
Speaker 2: have to halt any flights under the written order, and
16:06
Speaker 2: the oral order to turn the planes around was superseded
16:10
Speaker 2: by the written order, So basically the oral order didn't count.
16:14
Speaker 1: If I took that approach while I was a trial lawyer,
16:17
Speaker 1: I would have found myself in jail faster than you
16:20
Speaker 1: can wake your right. No judge is going to tolerate
16:25
Speaker 1: the notion that their oral orders don't count. Every lawyer
16:28
Speaker 1: knows that judges oral orders count. And when the judge
16:34
Speaker 1: did nothing set nothing to suggest that he wasn't serious
16:38
Speaker 1: about requiring them to turn around the planes, or that
16:42
Speaker 1: that was inconsistent with his order. At most, the government
16:46
Speaker 1: had grounds to ask him whether he was rescinding. That's
16:50
Speaker 1: complete bad faith and will be I'm sure regarded similarly
16:55
Speaker 1: by the courts, unless there be any doubt that that's
16:58
Speaker 1: bad faith. Tom Holman, President's immigrations are announced yesterday that
17:03
Speaker 1: they don't care what judges say, so it's very clearly.
17:06
Speaker 1: They weren't misunderstanding the order, they were defying it.
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Speaker 2: The government attorney at yesterday's hearing wouldn't disclose how many
17:14
Speaker 2: planes flew or any details about them, saying he could
17:18
Speaker 2: reveal key logistical details about the flights, which involved classified information.
17:24
Speaker 2: So the judge gave them until noon today to provide
17:28
Speaker 2: the information that he requested. They did provide some information,
17:33
Speaker 2: but as far as the information about the planes, they
17:36
Speaker 2: just say that they departed before seven twenty five pm.
17:40
Speaker 2: His order was issued at seven twenty six pm, But
17:44
Speaker 2: they don't give the details he asked for about the
17:46
Speaker 2: specific times the flights departed and.
17:50
Speaker 1: Arrived, which is a pretty clear mark of a cover up.
17:54
Speaker 1: If they have nothing to hide, then they should disclose that.
17:57
Speaker 1: They say it's national security that how could it possibly be.
18:01
Speaker 1: These are flights that have long since completed. There's no
18:05
Speaker 1: danger of them being intercepted in the air. They've been
18:07
Speaker 1: on the ground for several days. This is a cover up,
18:10
Speaker 1: and I don't think it's going to work very well.
18:12
Speaker 2: The judge asked them several things. Are they in contempt
18:16
Speaker 2: if they didn't answer the questions that the judge.
18:18
Speaker 1: Asked, If you or I behaved that way, Yes, we
18:21
Speaker 1: would be in contempt and we would be reaching for
18:24
Speaker 1: our checkbooks. I think the judge is likely to bend
18:28
Speaker 1: over backwards to avoid a confrontation with the government if
18:34
Speaker 1: he possibly can, but they're giving him less and less
18:38
Speaker 1: opportunity to do that.
18:39
Speaker 2: And the cover page was signed by all the top
18:41
Speaker 2: officials of the Justice Department. Is that supposed to be symbolic?
18:46
Speaker 2: What does that signal?
18:47
Speaker 1: That's unusual. Ordinarily a large organization like the Justice Department
18:52
Speaker 1: has the lawyers who are actually doing the work on
18:55
Speaker 1: the case sign the papers. I think this is the
18:58
Speaker 1: administration signaling that it regards this case is very important.
19:02
Speaker 1: And it may also be that the line attorneys feel
19:04
Speaker 1: that they're so close to the line on contempt that
19:08
Speaker 1: they want their top bosses as implicated as they are now.
19:12
Speaker 2: Another argument the government made is that the judge had
19:15
Speaker 2: no power to turn the planes around once they were
19:19
Speaker 2: outside US air space, that the court lost jurisdiction, And
19:23
Speaker 2: the judge did say that once they landed, he lost jurisdiction.
19:27
Speaker 2: But does the court lose jurisdiction when they're in the air.
19:30
Speaker 1: The court is jurisdiction over the defendants in the case,
19:33
Speaker 1: who are high officials responsible for the flights. The court
19:37
Speaker 1: as well within its power to order those officials to
19:41
Speaker 1: turn the planes around. If they can show that the
19:45
Speaker 1: pilots of the plane disregarded an order from the defendants
19:49
Speaker 1: in the case, they might have an argument, But there's
19:51
Speaker 1: no indication of that these pilots would have followed orders
19:54
Speaker 1: if they'd been told to the government chose not to
19:57
Speaker 1: follow the court's order.
19:58
Speaker 2: Yet another argument is that federal courts don't have jurisdiction
20:02
Speaker 2: of Trump's authority. Under the eighteenth century law, the judge
20:08
Speaker 2: has no authority, they say, to question the president's proclamation
20:11
Speaker 2: that an enemy invasion has occurred, saying that it's an
20:14
Speaker 2: inherently political question.
20:17
Speaker 1: No, it's a factual question. It's a factual question that
20:21
Speaker 1: can easily be answered. If the president were declared that
20:25
Speaker 1: you or I is an enemy alien. That's a factual question,
20:29
Speaker 1: and courts could absolutely determine that it's not. If you
20:32
Speaker 1: say otherwise, than the president's effectively become a dictator.
20:36
Speaker 2: So if the judge determines that those planes either took
20:41
Speaker 2: off or were in the air, it seems pretty clear
20:44
Speaker 2: they were in the air. At least when he gave
20:46
Speaker 2: that oral order, what can he do is it a
20:49
Speaker 2: contempt citation.
20:51
Speaker 1: The courts have broad authority to vindicate their powers, so
20:55
Speaker 1: he can certainly hold any individuals who are involved in
20:59
Speaker 1: defying his order in contempt of court. He can also
21:03
Speaker 1: entertain remedial orders that ordinarily a court would issue. For example,
21:09
Speaker 1: he could issue an order that any further deportation flights
21:12
Speaker 1: have to be precleared by the court or by a
21:15
Speaker 1: special master appointed by the court to make sure the
21:18
Speaker 1: government doesn't try to evade the law by hurrying people
21:22
Speaker 1: out of the country the way they did on this occasion.
21:24
Speaker 1: I don't think any court would do that initially, but
21:27
Speaker 1: when the government has shown itself so capable of defying
21:32
Speaker 1: these orders and trying to defeat I've.
21:34
Speaker 2: Been talking to constitutional law expert David super, a professor
21:38
Speaker 2: at Georgetown Law. There is another case where the government
21:43
Speaker 2: removed Lebanese national and someone who is going to be
21:48
Speaker 2: a professor at Brown University's medical school, in violation of
21:51
Speaker 2: a court order that required the government to give forty
21:55
Speaker 2: eight hours notice before she was removed. The Justice Department
22:00
Speaker 2: claims that federal authorities found sympathetic photos and videos regarding
22:06
Speaker 2: HESBA law on her phone. So that's twice in the
22:09
Speaker 2: space of a few days that the Trump administration appears
22:12
Speaker 2: to have violated judges orders involving deportation.
22:18
Speaker 1: Yes, and I think it's not surprising that these most
22:21
Speaker 1: blatant violations involve deportation, because the very act of violating
22:26
Speaker 1: the order makes it almost impossible for the court to
22:30
Speaker 1: correct anything. But the administration repeatedly deporting people contrary to
22:35
Speaker 1: court orders is likely to lead to more intrusive court orders.
22:39
Speaker 1: Courts try to defer to the executive branch on the
22:42
Speaker 1: assumption that it is always trying to follow the law,
22:44
Speaker 1: But when the administration shows that even court orders don't
22:48
Speaker 1: phase it, it can expect more intrusive court orders and
22:52
Speaker 1: will have no one to blame but itself.
22:53
Speaker 2: Even at this hearing, the ACLU lawyer said that we're
22:58
Speaker 2: close to christ as a constitutional crisis in a battle
23:03
Speaker 2: between the power of the executive branch and the power
23:06
Speaker 2: of the judicial branch. So if Trump just chooses to
23:09
Speaker 2: start ignoring court orders, what can the judicial branch do?
23:15
Speaker 1: They can do a great deal. They have sweeping powers
23:19
Speaker 1: to hold officials in civil contempt, which means that they
23:23
Speaker 1: can apply coercive measures against those individuals until they come
23:27
Speaker 1: into compliance.
23:28
Speaker 3: With the court order.
23:29
Speaker 1: So, if for example, they find the administration is running
23:34
Speaker 1: deportation flight contrary to court orders, it can enter an
23:39
Speaker 1: order against the officials in charge of those flights that
23:44
Speaker 1: they will lose one thousand dollars ten thousand dollars a
23:48
Speaker 1: day out of their personal funds until they come into
23:51
Speaker 1: compliance with the court order. And the court can simply
23:55
Speaker 1: send their banks an order compelling the money to be
23:58
Speaker 1: passed overministration may violate court orders, but I don't think
24:02
Speaker 1: banks will.
24:03
Speaker 2: We're just about two months into the administration and Trump
24:06
Speaker 2: has said I always obey court orders. But does it
24:10
Speaker 2: seem as if we're coming close to the point where
24:13
Speaker 2: that's not going to be true anymore.
24:15
Speaker 1: Well, it's not true now. They were ordered to lift
24:19
Speaker 1: their freeze on federal funding early in the administration, and
24:24
Speaker 1: they've continued and even expanded those freezes. They were ordered
24:28
Speaker 1: to restore the projects that they illegally terminated at the
24:32
Speaker 1: US Agency for International Development, and at last report, those
24:37
Speaker 1: programs continue to be frozen. The President and his administration
24:42
Speaker 1: are not complying with court orders and whatever he's saying
24:45
Speaker 1: is either misinformed or untrue.
24:47
Speaker 2: He seems to think that the Supreme Court is his answer.
24:50
Speaker 2: You know, they're at the Supreme Court for the third
24:52
Speaker 2: time in as I said about two months. Do you
24:56
Speaker 2: think this court? I mean, judging from what Robert said today,
25:01
Speaker 2: perhaps some of them are fed up enough to ignore
25:05
Speaker 2: Trump's requests.
25:07
Speaker 1: I think the Supreme Court is philosophically sympathetic with a
25:13
Speaker 1: number of things that the administration wants to do, and
25:16
Speaker 1: they do believe that the president leads the country. But
25:19
Speaker 1: they don't believe that judges themselves are others are irrelevant,
25:24
Speaker 1: and they believe the way to resolve legal questions is
25:27
Speaker 1: to litigate cases in court and appeal if necessary. So
25:32
Speaker 1: I don't think they will support the administration disregarding court orders.
25:38
Speaker 1: The Warrant Court was very sympathetic to civil rights protesters,
25:42
Speaker 1: but when they defied a blatantly unconstitutional order against protesting,
25:47
Speaker 1: the Supreme Court in Walker versus. City of Birmingham upheld
25:51
Speaker 1: the contempt citations and said that no matter how bad
25:54
Speaker 1: a court order is, you have to follow it until
25:57
Speaker 1: you can persuade a higher court to vacate it.
26:00
Speaker 2: Just to be clear, do you think that this judge
26:03
Speaker 2: will say you're in contempt of court at some point
26:06
Speaker 2: if he sees it. The times of the flight don't match.
26:09
Speaker 1: You know, what he was told, and he has two tasks,
26:13
Speaker 1: first to determine if contempt of court occurred, and second,
26:18
Speaker 1: if it did, determine who is responsible. I believe from
26:22
Speaker 1: the orders that we've seen and what he said in
26:25
Speaker 1: court that at the moment he's working on the first
26:27
Speaker 1: of those. If he determines that the administration did violate
26:31
Speaker 1: his orders, then he's going to ask who conveyed what
26:35
Speaker 1: information to whom at which time so that he can
26:38
Speaker 1: determine who might have violated it. I would expect that
26:43
Speaker 1: before he finds any women in contempt, he would ask
26:46
Speaker 1: them to come to court and answer questions about what
26:48
Speaker 1: they've done and give them an opportunity to explain themselves.
26:53
Speaker 2: I mean, so many people are being swept up in
26:56
Speaker 2: these quick deportations. You can even be sure that the
26:59
Speaker 2: Venezuelas that were shipped there were members of the gang.
27:03
Speaker 2: I mean they might have some innocent Venezuelans in there too.
27:06
Speaker 1: For Colombians or Panamanians. In the sweeps after the nine
27:10
Speaker 1: to eleven attacks, They rounded up a lot of people
27:13
Speaker 1: who are brown. Some of them turned out to be
27:16
Speaker 1: not Muslims or Arabs, but Mexicans and Salvadorans.
27:20
Speaker 2: And is it legal for him to pay another country
27:23
Speaker 2: to have immigrants housed in prisons.
27:26
Speaker 1: There if he has an appropriation that could fairly cover that.
27:31
Speaker 1: Some of the administrative appropriations for federal agencies have a
27:35
Speaker 1: certain amount of flexibility in them, So I'm guessing he
27:39
Speaker 1: probably could find six million dollars somewhere. One other thought
27:43
Speaker 1: that's worth considering here. The Biden administration's actions were overturned
27:48
Speaker 1: repeatedly by the Supreme Court because the Court said that
27:52
Speaker 1: while the law might technically support what the administration was doing,
27:56
Speaker 1: their so called major questions doctrine made it lausible that
28:01
Speaker 1: Congress intended to allow something as sweeping as what Biden
28:05
Speaker 1: did on the eviction moratorium, on environmental policy, and on
28:09
Speaker 1: student loan forgiveness. The administration's actions under the Enemy Aliens
28:15
Speaker 1: Act is a classic example of that a narrow statute
28:19
Speaker 1: enacted for wartime is now being treated as general immigration law.
28:24
Speaker 1: The major questions doctrine that this administration has celebrated is
28:28
Speaker 1: likely to come back and bite them.
28:30
Speaker 2: Thanks so much for joining me tonight, David. I always
28:32
Speaker 2: appreciate getting your insights. That's constitutional law expert David Super,
28:37
Speaker 2: a professor at Georgetown Law. Judge Boseburg has ordered the
28:41
Speaker 2: government lawyers to submit a sealed submission by Wednesday at noon,
28:46
Speaker 2: and his questions relate to the two flights that left
28:49
Speaker 2: before seven to twenty five pm on March fifteenth. He asked,
28:53
Speaker 2: what time did the plane take off from US soil
28:56
Speaker 2: and from where? What time did it leave US airspace,
29:00
Speaker 2: What time did it land in which foreign country, including
29:03
Speaker 2: if it made more than one stop? What time were
29:06
Speaker 2: individual subjects solely to the proclamation transferred out of US custody?
29:12
Speaker 2: How many people were aboard solely on the basis of
29:15
Speaker 2: the proclamation? So this court battle continues tomorrow. And that's
29:20
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
29:23
Speaker 2: you can always get the latest legal news on our
29:25
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29:29
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Speaker 2: And remember to tune into The Bloomberg Law Show every
29:38
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29:42
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