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Weekend Law: Special Counsel Appeals & Landmark Youth Climate Case · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: The classified document's case against former President Donald Trump came
0:15
Speaker 2: to a stunning and abrupt conclusion this week as federal
0:18
Speaker 2: Judge Eileen Cannon dismissed the case outright. Cannon's dismissal had
0:23
Speaker 2: nothing to do with the evidence, but was based on
0:26
Speaker 2: a procedural point, with the Trump appointee finding against the
0:30
Speaker 2: weight of prior decisions that the appointment of special counsel
0:34
Speaker 2: Jack Smith was unconstitutional. The case charging Trump with illegally
0:39
Speaker 2: hoarding classified documents was widely considered to be the strongest
0:43
Speaker 2: and most straightforward case against him, involving conduct after Trump
0:48
Speaker 2: left the White House and with the breadth of evidence,
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Speaker 2: including surveillance footage from his own security cameras at mar
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Speaker 2: A Lago and the testimony of close aids and former lawyers.
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Speaker 2: Plus remember Trump's bizarre explanation for the declassification of the documents.
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Speaker 3: If you're the president of the United States, you can
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Speaker 3: declassify just by saying it's de classified, even by thinking
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Speaker 3: about it, because you're sending it tomorrow, Lago or to
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Speaker 3: wherever you're sending it, and there doesn't have to be
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Speaker 3: a process. There can be a process, but there doesn't
1:21
Speaker 3: have to be. You're the president. You make that decision,
1:24
Speaker 3: so when you send it, it's the classifate. I declassified everything.
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Speaker 2: The Special Council has already filed a notice of appeal
1:33
Speaker 2: of Canon's decision with the Eleventh Circuit joining me is
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Speaker 2: former Federal Prosecutor Robert Mintz, a partner maccarter and English Bob.
1:41
Speaker 2: Even though Judge Cannon has issued a lot of mystifying
1:44
Speaker 2: and unorthodox decisions, this decision dismissing the entire classified documents
1:51
Speaker 2: case still caught most legal experts by surprise.
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Speaker 4: This is really a stunning decision by the federal judge
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Speaker 4: of Florida to throw out entirely the classified documents case
2:02
Speaker 4: against former President Trump. It's something that I would suspect
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Speaker 4: that not even the Trump legal team was expecting based
2:10
Speaker 4: upon the hearing that they had on this issue.
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Speaker 5: Before the judge.
2:13
Speaker 4: But what the judge did here is basically find that
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Speaker 4: the appointment of the Special Council Jack Smith violated the Constitution.
2:22
Speaker 4: It does not address the merits of the case, it
2:24
Speaker 4: doesn't address the evidence, It doesn't address a defense that
2:28
Speaker 4: was raised by the Trump legal team. It's all about
2:31
Speaker 4: the appointment of the Special Council, and the judge found,
2:34
Speaker 4: because that was done improperly, the only remedy is to
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Speaker 4: dismiss the case.
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Speaker 2: Why did she say it was done improperly? How did
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Speaker 2: she find that?
2:44
Speaker 3: Well?
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Speaker 4: The judge wrote a ninety three page, very detailed opinion
2:49
Speaker 4: which focused entirely on the Constitution's appointments clause and said
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Speaker 4: that the appointment of the Special Council was done inappropriately
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Speaker 4: because it was a violation of that quause. In other words,
3:00
Speaker 4: the judge found that the appointment had to be approved
3:04
Speaker 4: by the Senate, had to be confirmed by the Senate,
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Speaker 4: given the level of independence that Jack Smith was given
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Speaker 4: by Attorney General Merrick Garland. The judge also found that
3:14
Speaker 4: the appointment violated another clause in the Constitution, having to
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Speaker 4: do with the expenditure of money. That was not ultimately
3:20
Speaker 4: the basis for the dismissal of the indictment, but she
3:23
Speaker 4: found that the appropriations clause also was violated here because
3:27
Speaker 4: money was being spent improperly. Again, because it was done
3:31
Speaker 4: without congressional oversight.
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Speaker 2: Canon wrote that the issue of a special Council was
3:37
Speaker 2: a novel one but it's not a novel one. This
3:40
Speaker 2: has been decided by other courts before.
3:44
Speaker 4: That's exactly right. This issue of an appointment of a
3:47
Speaker 4: special council is something that has been done by different
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Speaker 4: administrations over the years, dating back many years. Both Republicans
3:54
Speaker 4: and Democrats have used the special Council as a way
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Speaker 4: to investigate politically sensitive case and it has been challenged
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Speaker 4: before and every time in every court this type of
4:04
Speaker 4: appointment has been upheld, not only by district courts, but
4:08
Speaker 4: also by the Court of Appeal.
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Speaker 2: It seems like she took a recent concurrence by Justice
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Speaker 2: Clarence Thomas to heart. In the presidential immunity case, Thomas
4:18
Speaker 2: raised concerns about the constitutionality of the appointment of the
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Speaker 2: special Council, which wasn't part of the immunity case, and
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Speaker 2: Canon cited that opinion, which no other justice had joined
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Speaker 2: in three times in her opinion.
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Speaker 4: Yeah, that was unusual because he did have a situation
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Speaker 4: in connected with the presidential immunities case where Justice Thomas
4:39
Speaker 4: made a comment about the appointment of a special council.
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Speaker 4: It really was outside the scope of the opinions. And
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Speaker 4: as you say, none of the other justices commented on it.
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Speaker 6: But it does.
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Speaker 4: Seem to perhaps have affected the judge's decision here because
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Speaker 4: if you look at the way she reacted to the
4:56
Speaker 4: arguments during the hearing, he seemed to suggest that she
5:00
Speaker 4: would go along with the other courts in the way
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Speaker 4: that special counsels had been appointed over the years, because
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Speaker 4: there was a long standing president over many years and
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Speaker 4: many different administrations to appoint special counsels in this way.
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Speaker 4: And yet we now have this decision which really has
5:15
Speaker 4: done the legal community because it has thrown out of
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Speaker 4: precedent that has been in existence for at least twenty
5:21
Speaker 4: or twenty five years with regard to the appointment of
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Speaker 4: special counsel.
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Speaker 2: Explain how Judge Cannon has not only slow walked this case,
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Speaker 2: but her decisions have subjected her to a lot of
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Speaker 2: criticism for being outside the norm.
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Speaker 4: Well, people who have been watching this case from the
5:37
Speaker 4: beginning have been a little bit mystified by the way
5:40
Speaker 4: Judge Cannon has handled this case, in that she has
5:44
Speaker 4: given a lot of time and devoted a lot of
5:46
Speaker 4: energy to arguments that most judges, based upon past president,
5:51
Speaker 4: would have dismissed summarily. In other words, it's not surprising
5:55
Speaker 4: at all for a defense team to make all kinds
5:58
Speaker 4: of arguments, including some that are very far effect That's
6:01
Speaker 4: something defense lawyers will try to do because you never
6:04
Speaker 4: know what might actually pique a judge's interest. But most
6:08
Speaker 4: of the time judges very quickly dismiss arguments that are
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Speaker 4: out of the mainstream to try to keep the case moving,
6:15
Speaker 4: to try to keep the case focused. In this case,
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Speaker 4: it seemed that Judge Canon was giving an exceeding amount
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Speaker 4: of deference to arguments that most judges would have dismissed
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Speaker 4: out of hand, and this has slowed down the trial considerably.
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Speaker 4: And now we have sort of the culmination of all
6:30
Speaker 4: of that, an argument that seemed like a farfexed argument,
6:35
Speaker 4: an argument that was really kind of a hail Mary
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Speaker 4: argument in the eyes of most people, given the lengthy
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Speaker 4: legal precedent supporting the appointment of the Special Council, And
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Speaker 4: yet she has now found out as a basis to
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Speaker 4: dismiss the case altogether.
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Speaker 2: I just want to point out that Canon's decision has
6:50
Speaker 2: no effect on the DC case, which is in a
6:53
Speaker 2: different circuit. Now, the Special Council certainly has strong legal
6:57
Speaker 2: arguments for his appeal. It's not clear if he's going
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Speaker 2: to ask to have Canon remove from the case, there
7:05
Speaker 2: is precedent for that in the Eleventh Circuit.
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Speaker 4: Well, that's the question now as to whether or not
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Speaker 4: this is an appropriate time to do that. She already
7:13
Speaker 4: does have a bit of a shaky history with the
7:15
Speaker 4: Eleventh Circuit. If you remember, during the beginning of this case,
7:19
Speaker 4: when the search warrant was executed, she asked that an
7:23
Speaker 4: independent monitor come in to review the documents that were
7:27
Speaker 4: seized by the government, something that was highly unusual and
7:30
Speaker 4: really there was no basis in law to do it.
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Speaker 4: She more or less found that because the subject of
7:35
Speaker 4: the search was a former president, that there was a
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Speaker 4: certain level of due process that had to be accorded
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Speaker 4: that was different than anybody else. That was immediately overturned
7:45
Speaker 4: by the Eleventh Circuit, and she was really rebuked by
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Speaker 4: the courts for going way outside of the mainstream and
7:50
Speaker 4: trying to create a basically two tier system where somebody,
7:54
Speaker 4: because there were a former president, at a certain level
7:56
Speaker 4: of deference on a certain level of due process that
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Speaker 4: every other state in this country would not get. This
8:02
Speaker 4: is now going back up to that same Eleventh Circuit
8:04
Speaker 4: Court of Appeals and will be interesting to see what
8:07
Speaker 4: they do with his decision and whether or not they
8:09
Speaker 4: overturn her ruling.
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Speaker 2: It has long seem like this case wouldn't be tried
8:13
Speaker 2: before the election. This decision just about ensures that either way.
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Speaker 4: This seems to be a tremendous win for the Trump
8:20
Speaker 4: defense team because in the first instance, the case has
8:23
Speaker 4: been completely thrown out, and even if the Court of
8:25
Speaker 4: Appeals does reverse it, it's going to slow the case
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Speaker 4: down to make it nearly impossible to have this case
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Speaker 4: tried before the election. And this is really troubling for
8:34
Speaker 4: the government because let's remember, this was viewed by many
8:37
Speaker 4: people as the strongest case brought by the Department of
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Speaker 4: Justice and in fact even by state prosecutors against former
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Speaker 4: President Trump, because it did not involve a novel legal
8:47
Speaker 4: theory as some of the other cases did, and because
8:50
Speaker 4: it was focused almost exclusively on actions after he left office,
8:55
Speaker 4: which removed it from some of the immunity issues that
8:58
Speaker 4: ultimately is going to be a problem for Special Counsel
9:01
Speaker 4: of Jack Smith and connecting with the January sixth case. So,
9:04
Speaker 4: while this case was perhaps not the most exciting, it
9:07
Speaker 4: involved in properly removing classified documents according to the government,
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Speaker 4: and then the government alleged that former President Trump obstructed
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Speaker 4: the government in terms of their ability to retrieve those documents.
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Speaker 4: While it's not the most exciting case out there, it
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Speaker 4: was really on the most solid legal footing, and prosecutors,
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Speaker 4: I think, thought that this might be the best chance
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Speaker 4: they had out there to gain a conviction in one
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Speaker 4: of the federal cases.
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Speaker 2: This is another in a string of recent legal wins
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Speaker 2: for Trump. That controversial Supreme Court decision this month on
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Speaker 2: presidential immunity has put the DC election interference case on
9:42
Speaker 2: hold and even delayed the sentencing in the New York
9:45
Speaker 2: hush money case. The Georgia racketeering case is also on hold,
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Speaker 2: pending an appeal. What does it say about the legal
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Speaker 2: system that only one case out of four went to
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Speaker 2: trial because of the never ending motions filed by Trump's attorneys.
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Speaker 4: I think people who have been watching these cases closely,
10:03
Speaker 4: if they're not lawyers, are probably scratching their heads at
10:06
Speaker 4: the legal system. They're seeing a system that seems to
10:10
Speaker 4: be falling down of its own weight in the sense
10:12
Speaker 4: that the arguments are delaying the cases over and over again.
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Speaker 4: And even lawyers who've been watching I think, for the
10:19
Speaker 4: most part, are somewhat surprised at what has happened in
10:23
Speaker 4: many of these cases. Lots of these arguments that were
10:26
Speaker 4: made were real long shot arguments. Even the presidential immunity argument.
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Speaker 4: I think most expected that the Supreme Court might not
10:34
Speaker 4: take that case, or if they did, they certainly would
10:36
Speaker 4: not carve out the type of presidential immunity that they did.
10:40
Speaker 4: So I think this is a case that has really
10:43
Speaker 4: shocked the public and its shocked the legal community. It's
10:46
Speaker 4: not gone the way that one would have expected, and
10:49
Speaker 4: it certainly is a huge win for the Trump defense
10:52
Speaker 4: team because if the ultimate goal was to delay these cases,
10:55
Speaker 4: they have certainly succeeded in doing that. And it's now
10:58
Speaker 4: likely that the only case that will have gone to
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Speaker 4: trial before the election is the case brought by the
11:02
Speaker 4: Manhattan DA And now even that case, as you mentioned,
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Speaker 4: is being held up presenting purposes because of the presidential
11:09
Speaker 4: immunity decision. I don't think it's likely that the judge
11:12
Speaker 4: in that case will throw that case out, or that
11:15
Speaker 4: he'll decide that the presidential immunity decision has any real
11:18
Speaker 4: bearing on that case. I think the defense will points
11:21
Speaker 4: to a certain testimony in that case and argue that
11:23
Speaker 4: the presidential immunity case requires that case to be overturned.
11:26
Speaker 4: But I think ultimately the trialgy judge there will call
11:29
Speaker 4: that tumulative evidence or harmless error, and that that case
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Speaker 4: will stand. But in terms of all these federal cases,
11:35
Speaker 4: they are very much up in the air now, both
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Speaker 4: legally and in terms of whether or not any of
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Speaker 4: them will ever be tried before the election, or will
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Speaker 4: ever be tried at all, of.
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Speaker 2: Course, because if Trump wins the election, the federal cases
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Speaker 2: will sort of evaporate in one way or another. Thanks
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Speaker 2: so much, Bob. That's Robert Mins of maccarter and English.
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Speaker 2: Coming up next, the Landmark Youth Climate lawsuit reaches the
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Speaker 2: end of the road. I'm June Grosso and you're listening
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Speaker 2: to Bloomberg. After nearly a decade, the Landmark Youth Climate
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Speaker 2: lawsuit is nearing its end, buckling under adverse court decisions
12:11
Speaker 2: and fierce opposition from three presidential administrations. It was back
12:15
Speaker 2: in twenty fifteen that twenty one young people took on
12:19
Speaker 2: the US government with a novel argument that the government
12:22
Speaker 2: was violating their constitutional rights by allowing decades worth of
12:27
Speaker 2: greenhouse gas emissions to spew into the atmosphere. The lead
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Speaker 2: plaintiff in the lawsuit, Kelsey Juliana nineteen at the time,
12:35
Speaker 2: said the EPA had failed to implement a plan to
12:38
Speaker 2: reduce toxic air emissions as required by the nineteen ninety
12:42
Speaker 2: amendments to the Clean Air Act.
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Speaker 7: They failed to act on creating that plan that would
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Speaker 7: ensure the survivability and the thrivability of my generation and
12:51
Speaker 7: those to come.
12:52
Speaker 4: And so here we.
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Speaker 7: Are, twenty six years later, asking for the most fundamental question,
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Speaker 7: do you recognize me as someone who has rights as
13:00
Speaker 7: someone who has the same rights to live and to
13:02
Speaker 7: live healthy.
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Speaker 2: But now, after nine years of litigation and hopes that
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Speaker 2: the case might finally make it to trial, the Biden
13:10
Speaker 2: administration was successful in having the case dismissed on a
13:14
Speaker 2: procedural point. My guest is environmental law expert Pat Parento,
13:19
Speaker 2: a professor at the Vermont Law and Graduate School. Pat,
13:22
Speaker 2: before we go into its tortured legal history, tell us
13:25
Speaker 2: about the novel claims in the Juliana case.
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Speaker 5: So, this case was brought to try to establish a
13:31
Speaker 5: constitutional right under the federal US Constitution under Article fourteen,
13:37
Speaker 5: sort of fundamental right to a stable climate, where as
13:41
Speaker 5: Judge Aiken, who was the District court judge and Juliana
13:44
Speaker 5: said a client system capable of supporting human life on Earth. Now,
13:50
Speaker 5: some of us might like to think there should be
13:52
Speaker 5: such a constitutional right, but the case was brought to
13:55
Speaker 5: try to establish that in federal court. That's had almost
13:59
Speaker 5: a decade run in the federal courts, which now seems
14:02
Speaker 5: to have come to an end.
14:03
Speaker 2: And there were two different panels of the Ninth Circuit
14:07
Speaker 2: that heard this case.
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Speaker 5: Yeah, it does have a tortured procedural history. So the
14:13
Speaker 5: original complaint really shot for the moon. It asked for
14:17
Speaker 5: a plan to reduce carbon emissions basically down to zero
14:22
Speaker 5: or net zero by a date certain, with milestones all
14:26
Speaker 5: along the way. Very very aggressive demand that federal courts
14:31
Speaker 5: order the federal government, both the President and the Congress,
14:35
Speaker 5: order them to come up with a plan to achieve
14:38
Speaker 5: net zero carbon emissions for the US economy. Very aggressive.
14:42
Speaker 5: That complaint went to the first panel of the Ninth
14:46
Speaker 5: Circuit and by a two to one decision, that panel
14:49
Speaker 5: decided that kind of broad, comprehensive relief was not available
14:56
Speaker 5: under our jurisprudence, and so they dismissed the case on stand.
15:00
Speaker 5: They agreed that these youth plaintiffs had shown injury. Some
15:04
Speaker 5: of the injuries were physical. One of the kids had asthma,
15:09
Speaker 5: and we know climate change by heating up the air
15:12
Speaker 5: we breathe triggers asthma attacks. Another one of the youth
15:15
Speaker 5: planeffs said they were in a multi generation ranching family
15:18
Speaker 5: and they were watching their ranch dry up. And so
15:21
Speaker 5: right down the list, the court said, yes, these individual
15:23
Speaker 5: young people have shown particularized injury, which is the first
15:28
Speaker 5: step establishing standing, and this was a really important finding.
15:32
Speaker 5: The court agreed that the actions of the federal government,
15:37
Speaker 5: not just in action, but the actions going back five
15:40
Speaker 5: administrations Democrat and Republicans, had been making the situation worse
15:46
Speaker 5: by continuing to promote and develop fossil fuels, et cetera.
15:49
Speaker 5: And so therefore the plaintiffs had shown that their injuries
15:54
Speaker 5: were being caused or contributed to by the actions that
15:58
Speaker 5: the federal government was persist in taking. So that was
16:01
Speaker 5: two steps towards proving standing. It was the third step
16:05
Speaker 5: that tripped them up what we call redressibility, which means
16:08
Speaker 5: assuming this injury, assuming the actions of the government are
16:11
Speaker 5: making the injury worse, what can the courts do about it?
16:15
Speaker 5: And that's where the first panel of the Ninth Circuit
16:17
Speaker 5: tripped their hands. They said, we simply don't have the
16:20
Speaker 5: authority under our constitutional system of government. That's the matter
16:25
Speaker 5: for the legislature and the executive branch to work out.
16:28
Speaker 5: The courts can't simply order it.
16:30
Speaker 2: Then the trial judge allowed the youth plaintiffs to amend
16:33
Speaker 2: the complaint to only seek declaratory relief, basically, tell us
16:38
Speaker 2: if we have a constitutional right to a safe climate
16:41
Speaker 2: or not. And it went back to the Ninth Circuit.
16:43
Speaker 2: The first panel was three judges appointed by President Obama.
16:47
Speaker 2: The second panel was a different story.
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Speaker 5: So now we're talking about free Trump appointees to the
16:54
Speaker 5: Ninth Circuit. And they excoriated Judge Aiken. They said it
16:58
Speaker 5: was basically arbitrary, almost outrageous, perhaps for her to not
17:04
Speaker 5: read the original decision of the first panel as a
17:07
Speaker 5: requirement that the whole case be thrown out, lock stock,
17:10
Speaker 5: and barrel. So that's what the second panel said, and
17:13
Speaker 5: that was a three zero decision. And then we come
17:16
Speaker 5: to the very last gasp, which is after this second
17:20
Speaker 5: panel throws the case out, the youth plaintiffs lawyers asked
17:24
Speaker 5: for the full Ninth Circuit to review the case in
17:26
Speaker 5: what we call en banc, but it takes at least
17:29
Speaker 5: one judge of the Ninth Circuit to request a vote
17:33
Speaker 5: on whether to take the case up before an on
17:35
Speaker 5: bank panel, and they didn't even get one vote. So
17:38
Speaker 5: that's where we are today. The case has been dismissed.
17:42
Speaker 5: There's no further appeal to the Ninth Circuit. The only
17:45
Speaker 5: remaining avenue for appeal would be to file a petition
17:48
Speaker 5: for cusharari or review to the US Supreme Court, something
17:53
Speaker 5: that terrifies a lot of us.
17:55
Speaker 2: I mean, it's been at the Supreme Court twice already
17:58
Speaker 2: on other issues.
18:00
Speaker 5: It went up twice on what's called a rid of mandamus,
18:03
Speaker 5: which is an extraordinary remedy. The Supreme Court never granted
18:07
Speaker 5: the petition for mandamus, but they in two different orders,
18:11
Speaker 5: and particularly the last one written by Chief Justice Roberts,
18:14
Speaker 5: they made it crystal clear that this case should be dismissed.
18:18
Speaker 5: Roberts basically was speaking directly to Judge Aiken, and he
18:21
Speaker 5: was saying to her, you need to take another look
18:24
Speaker 5: at whether this case should be certified for reviews. By
18:28
Speaker 5: the Ninth Circuit, And the Ninth Circuit should look very
18:30
Speaker 5: hard at whether a case of this magnitude in scope
18:34
Speaker 5: belongs in federal court. So not too subtle message to
18:38
Speaker 5: the lower courts get rid of it, and.
18:40
Speaker 2: I guess the Ninth Circuit got that message. As you say,
18:43
Speaker 2: the only legal path left for the plaintiffs is to
18:47
Speaker 2: appeal to the Supreme Court, a court that has not
18:50
Speaker 2: been friendly to environmental concerns. Is it wiser to just
18:55
Speaker 2: let the case end?
18:56
Speaker 5: There's no way the Supreme Court is going to take
18:58
Speaker 5: this case for any reason than then to do further
19:01
Speaker 5: damage to cases being brought to try to seek remedies
19:04
Speaker 5: for climate They could even revisit the Massachusetts versus CPA case,
19:09
Speaker 5: which turned on a five to four vote on whether
19:11
Speaker 5: there was standing to challenge EPA's failure to regulate greenhouse
19:15
Speaker 5: gas emissions, and the majority in that case are now
19:18
Speaker 5: gone basically, so it's a totally different court. So the
19:20
Speaker 5: only reason this Supreme Court would take the case would
19:23
Speaker 5: be perhaps to review Massachusetts versus CPA and almost certainly
19:28
Speaker 5: issue a decision that would slam the courthouse doors shut
19:32
Speaker 5: once and for all on plaintiffs seeking remedies for climate change.
19:37
Speaker 2: Every administration, the Obama administration, the Trump administration, the Biden administration,
19:42
Speaker 2: some which we consider friendly to environmental causes, has been aggressive,
19:48
Speaker 2: so aggressive in preventing this case from going to trial.
19:53
Speaker 5: Why yeah, I've said from the beginning, why not have
19:55
Speaker 5: the trial? My goodness, if they hadn't fought so hard
19:58
Speaker 5: all the way back to Obama, they could have had
20:00
Speaker 5: a trial over with. And jedde Jakin was not saying
20:04
Speaker 5: she was going to find in favor of the planets.
20:06
Speaker 5: She was saying, you take litigation one step at a time.
20:11
Speaker 5: The first question is their standing. The second question is
20:14
Speaker 5: is their liability. And what she was saying is we'll
20:17
Speaker 5: have a trial and I'll make a decision based on
20:19
Speaker 5: the trial. So at a minimum, I thought, why not
20:22
Speaker 5: let them have a trial? You know, the Department of
20:25
Speaker 5: Justice is hired and paid for by us the taxpayers,
20:28
Speaker 5: to defend the government in court. Courts are supposed to
20:31
Speaker 5: say what the law is, so do it. So, I mean,
20:34
Speaker 5: this all could have been avoided in my view if
20:36
Speaker 5: they just had the trial long before now. Either Judge
20:40
Speaker 5: Aiken would have ruled against the planeffs in one form
20:44
Speaker 5: or another, or the case could have gone up on
20:46
Speaker 5: appeal on the basis of a trial record including all
20:50
Speaker 5: the evidence in support of what the youth planets were
20:53
Speaker 5: arguing and in support of what the government was doing
20:57
Speaker 5: to make the climate crisis worse. And wouldn't that have
21:00
Speaker 5: served some public purpose to have a record like that
21:03
Speaker 5: based on a trial tested by the evidence. I think
21:06
Speaker 5: the answer to that is yes, it would have benefited
21:09
Speaker 5: from that, even if an end result was probably going
21:12
Speaker 5: to be no determination of a constitutional right. I think
21:16
Speaker 5: that's fair to say, even with the Supreme Court we
21:19
Speaker 5: had before the Trump appointees, but certainly now there's no
21:24
Speaker 5: chance that this court would ever recognize such a constitutional right. Hell,
21:28
Speaker 5: they're busy revoking constitutional rights like Row versus Wade. So
21:33
Speaker 5: we weren't going to get a favorable decision out of
21:35
Speaker 5: this Supreme Court no matter what. But at least having
21:38
Speaker 5: a trial for no less than at least historic purposes
21:42
Speaker 5: would have made the case what the dangers were so.
21:46
Speaker 2: Pat is the Juliana case, Dad, Then.
21:49
Speaker 5: I think it's dead. I think it's time to move on.
21:52
Speaker 5: Our children's trust are very reluctant to give up on it,
21:55
Speaker 5: but they've got other avenues. This isn't the end of
21:58
Speaker 5: the story on young plays of asserting constitutional rights. I
22:02
Speaker 5: think it is the end of the road doing so
22:04
Speaker 5: in federal court.
22:05
Speaker 2: And our Children's Trust, which filed the Juliana case, has
22:09
Speaker 2: had more success with similar cases by young environmentalists suing
22:14
Speaker 2: in state court. One of those Held v. Montana, was
22:18
Speaker 2: the first such case to go to trial, and they won.
22:22
Speaker 5: That's right, and it's the first ruling this by a
22:26
Speaker 5: lower court in Montana, Judge Seeley issuing the first declaratory
22:31
Speaker 5: judgment in that case. Unlike Juliana, the court said, all
22:34
Speaker 5: I'm going to consider is a request for declaratory judgment.
22:38
Speaker 5: So this judge was smart enough to limit the case
22:40
Speaker 5: right from the get go. But her ruling backed up
22:43
Speaker 5: by a two hundred separate factual findings, the most detailed
22:47
Speaker 5: findings of fact we've ever seen in a climate case
22:50
Speaker 5: on science on technology, on the physical and mental emotional
22:55
Speaker 5: effects on these young people from climate change, particularly in Montana,
22:59
Speaker 5: and also so challenging Montana's really, how can I put
23:03
Speaker 5: this delicately arbitrary which prohibited state agencies from even considering
23:08
Speaker 5: the climate change effects of licensing, permitting fossil fuel development,
23:13
Speaker 5: from pipelines, from coal mines, from coal burning power plants,
23:17
Speaker 5: et cetera. So that's what the youth plants in the
23:19
Speaker 5: Held versus Montana case, we're arguing, your energy policies are
23:24
Speaker 5: making the situation worse, and you have a law on
23:26
Speaker 5: the books that's blinding the agencies to the consequences of
23:30
Speaker 5: what they're doing, not only to Montana's environment, but to
23:33
Speaker 5: us as the future generation that has to live with
23:36
Speaker 5: all of this. So her decision was historic and that
23:40
Speaker 5: was then taken up on appeal. The Montana Supreme Court
23:43
Speaker 5: has now heard oral arguments on appeal. We're waiting for
23:47
Speaker 5: a decision from the Montana Supreme Court.
23:49
Speaker 2: And young people suing in Hawaii reached a settlement with
23:53
Speaker 2: the state to low remissions and that was a first.
23:56
Speaker 5: So that's the first settlement agreement where a state has
24:01
Speaker 5: agreed to make changes not only to their transportation policy,
24:06
Speaker 5: but actually start ramping up significant investments where they can
24:11
Speaker 5: in mass transit on the Big Island and Oahu. Air
24:15
Speaker 5: travel is the biggest problem. So trying to figure out
24:18
Speaker 5: how are you going to deal with island hopping through
24:20
Speaker 5: airline travel is going to be a real challenge. But
24:23
Speaker 5: the point is they reached an agreement. They've got at
24:26
Speaker 5: least an initial plan for how to begin to reduce
24:29
Speaker 5: emissions from the transportation sector, and then they'll go from there.
24:32
Speaker 2: It's great to finally see these cases actually moving through
24:35
Speaker 2: the courts. Thanks so much, Pat. That's Professor Pat Parento
24:39
Speaker 2: of the Remont Law and Graduate School. Coming up next,
24:42
Speaker 2: the conviction of Senator Bob Menendez. I'm June Grosso and
24:45
Speaker 2: you're listening to Bloomberg.
24:48
Speaker 8: This case has always been about shocking levels of corruption,
24:51
Speaker 8: hundreds of thousands of dollars in bribes in the form
24:54
Speaker 8: of cash, goal bars a Mercedes Benz. This wasn't politics
24:59
Speaker 8: as usually well, this was politics for profit. And now
25:02
Speaker 8: that the jury has convicted Bob Menendez, his years of
25:05
Speaker 8: selling his office of the highest bidder have finally come
25:08
Speaker 8: to an end.
25:08
Speaker 2: Manhattan US Attorney Damian Williams basically summed up the prosecution
25:13
Speaker 2: sweeping corruption case against Senator Bob Menendez. After the jury
25:18
Speaker 2: found the once powerful New Jersey Democrat guilty of bribery, extortion,
25:24
Speaker 2: and acting as a foreign agent of Egypt. Menendez continues
25:28
Speaker 2: to maintain his innocence and says he expects to succeed
25:32
Speaker 2: on appeal.
25:33
Speaker 6: I have never violated my public oath. I have never
25:36
Speaker 6: been anything but a patriot of my country and for
25:39
Speaker 6: my country. I have never ever been a foreign agent.
25:43
Speaker 6: And the decision right edo by the jury today would
25:47
Speaker 6: put at risk every member of the United States Senate
25:50
Speaker 6: in terms of what they think a foreign agent would
25:53
Speaker 6: be joining me.
25:54
Speaker 2: He's Bloomberg Legal reporter David Voriakiz, who covered the trial.
25:58
Speaker 2: David tell us about the prosecution case.
26:01
Speaker 1: The case centered around some explosive evidence that the FBI
26:05
Speaker 1: sees two years ago at his home in suburban New Jersey,
26:09
Speaker 1: and that was thirteen gold bars, nearly five hundred thousand
26:13
Speaker 1: dollars in cash, and a black Mercedes Benz convertible that
26:18
Speaker 1: prosecutors said was the product of a bribe scheme that
26:22
Speaker 1: Menendez and his wife, Nadine received over the previous five years.
26:28
Speaker 2: The prosecution had a lot of different kinds of evidence
26:32
Speaker 2: against him. You mentioned the gold bars and the five
26:35
Speaker 2: hundred thousand dollars in cash stashed around his house, an
26:38
Speaker 2: undercover FBI videotape, a witness who flipped and testified against him.
26:43
Speaker 2: What was the strongest evidence against him.
26:47
Speaker 1: I think the strongest evidence would have to be the
26:50
Speaker 1: cash in the gold bars, both of which prosecutors presented
26:54
Speaker 1: in court so that the jurors could see what they
26:57
Speaker 1: are talking about. There was also three different summary charts
27:01
Speaker 1: that included thousands of lines of texts, emails, calls, meetings.
27:08
Speaker 1: They had very meticulous and detailed chronologies, because this was
27:14
Speaker 1: a subtle and discreete set of interlocking schemes that really
27:20
Speaker 1: could only be understood in their totality, in which jurors
27:25
Speaker 1: saw the timeline of a number of interactions and how
27:29
Speaker 1: they fit together. And so it took time to spell
27:33
Speaker 1: that out and for the picture to come into focus.
27:36
Speaker 1: And that picture, by the end of the trial, the
27:39
Speaker 1: prosecutor said, was an overwhelming case against Menendez and the
27:43
Speaker 1: two businessmen tried with him, Will Hannah and Fred Davies, and.
27:48
Speaker 2: They were both convicted as well.
27:50
Speaker 3: And David.
27:51
Speaker 2: Was there any evidence of a quid pro quo of
27:55
Speaker 2: him saying I'll do this for you in return for that, I.
27:59
Speaker 1: Would say there was no specific admission, say on tape
28:04
Speaker 1: or to another witness. Essentially, prosecutors built their case through
28:09
Speaker 1: inference in which they showed that right after Menendez, say,
28:14
Speaker 1: met with the Attorney General of New Jersey on behalf
28:17
Speaker 1: of a businessman. He then called that businessman, who then
28:21
Speaker 1: texted someone else who said, I finally found peace. It's
28:25
Speaker 1: that sort of stringing together of a collection of different
28:30
Speaker 1: discrete pieces of evidence that lead to the clear inference
28:35
Speaker 1: that Menendez was engaged in bribery schemes with his wife, Nadine.
28:41
Speaker 2: Menendez blamed his wife, and he had the benefit of
28:44
Speaker 2: being tried separately. She's going to be tried later, so
28:48
Speaker 2: Menandez wasn't put in the uncomfortable situation of pointing to
28:53
Speaker 2: his co defendant and wife sitting at the defense table
28:56
Speaker 2: with him as the real culprit here. How much evidence
28:59
Speaker 2: was there against his wife.
29:03
Speaker 1: There was a lot of evidence pointing to Nadine as
29:06
Speaker 1: a crucial go between who connected Menendez with the businessmen
29:12
Speaker 1: who were on trial with him and with other people
29:16
Speaker 1: less directly involved in the case. She also set up
29:20
Speaker 1: meetings with Egyptian military people and intelligence officials, and according
29:26
Speaker 1: to the government, collected gold bars and cash from Fred Davies,
29:30
Speaker 1: one of the co defendants, and also had a crucial
29:35
Speaker 1: connection and relationship with will Hanna who was the other
29:38
Speaker 1: co defendant, and prosecutors said they were like brother and sister.
29:42
Speaker 1: They were very close. And some of the most damning
29:46
Speaker 1: evidence involved the Mercedes Benz that another businessman, Jose Uribe,
29:52
Speaker 1: gave to her, essentially by handing her a fifteen thousand
29:55
Speaker 1: dollars cash down payment in a diner parking lot in
30:00
Speaker 1: Jersey and then making monthly payments on the car for
30:04
Speaker 1: two and a half years. There was also evidence that
30:07
Speaker 1: will Hanna, the other defendant in this case, gave her
30:12
Speaker 1: a no show job in which he paid her ten
30:16
Speaker 1: thousand dollars a month for three months, and he paid
30:20
Speaker 1: off her mortgage on her home in New Jersey when
30:24
Speaker 1: she was in a great deal of financial distress.
30:27
Speaker 7: You have to.
30:27
Speaker 2: Tell the story about the bill that prosecutors used to
30:32
Speaker 2: show that Menendez was the one in charge, not his wife.
30:37
Speaker 1: There was a crucial meeting behind the Menendez house in
30:41
Speaker 1: September of twenty nineteen at ten o'clock at night, in
30:45
Speaker 1: which Jose Uribe, the cooperating businessman who pleaded guilty, said
30:51
Speaker 1: that he came over and spoke to Bob Menendez on
30:54
Speaker 1: the patio behind their house. And this was the night
30:58
Speaker 1: before Menendez was going to meet with the Attorney General
31:01
Speaker 1: of New Jersey and make the case that state prosecutors
31:06
Speaker 1: should drop their criminal investigation of someone who was close
31:10
Speaker 1: to Eurebe. Jurors heard Eurebe talk about Menendez summoning his wife,
31:17
Speaker 1: Nadine with a bell, and that she came out from
31:21
Speaker 1: inside the house and delivered a piece of paper where
31:24
Speaker 1: Eurebe wrote down the names of the people that he
31:27
Speaker 1: was interested in. The bell became sort of a symbol
31:30
Speaker 1: of whether Menendez really controlled Nadine or not, because the
31:37
Speaker 1: Menendez defense was that Nadine was engaging in a lot
31:41
Speaker 1: of corrupt acts behind Menndez's back. The prosecutors tried to
31:46
Speaker 1: puncture that defense and say that he knew everything that
31:50
Speaker 1: Nadine was doing and that at certain times, as in
31:53
Speaker 1: the bell incident, she was sort of under his thumb.
31:56
Speaker 2: The prosecutor said, the bell showed that Menendez was not
32:00
Speaker 2: a puppet having his strings pull by someone he summoned
32:04
Speaker 2: with a bell. Now he's become the first member of
32:07
Speaker 2: Congress to be convicted of being a public official acting
32:11
Speaker 2: as a foreign agent. Was there any evidence that his
32:14
Speaker 2: actions compromised national security?
32:17
Speaker 1: There was an incident in which Menendez threw his wife
32:22
Speaker 1: and then will Hannah passed along the number of people
32:26
Speaker 1: working at the US embassy in Cairo. Prosecutor said that
32:30
Speaker 1: was sensitive information at the time and could have compromised
32:34
Speaker 1: the people who worked there and exposed them to potential
32:37
Speaker 1: terrorist attacks. The defense said that that information had already
32:41
Speaker 1: been made public in a government report years earlier, but
32:46
Speaker 1: the prosecutors countered by saying that that was old information
32:50
Speaker 1: and the current information was not public. So while they
32:54
Speaker 1: didn't actually charge him with doing harm to US security interests,
33:00
Speaker 1: they certainly suggested that that was a possibility by Menendez
33:04
Speaker 1: passing along how many people worked at the US embassy
33:06
Speaker 1: in Cairo.
33:07
Speaker 2: After the rick, Menendez said the decision would put every
33:11
Speaker 2: member of the Senate at risk in terms of what
33:14
Speaker 2: it means to be a foreign agent. Do you know
33:16
Speaker 2: what he meant by that?
33:17
Speaker 1: Yes. Their argument was during the trial that he was
33:22
Speaker 1: not engaged in being a foreign agent, that he didn't
33:25
Speaker 1: have Egypt's interests at heart, that in fact, he only
33:29
Speaker 1: had the United States interest in heart, and that as
33:33
Speaker 1: chairman of the Senate Foreign Relations Committee, he was engaged
33:37
Speaker 1: in diplomacy, not corruption, so that all of his interactions
33:41
Speaker 1: with Egyptian military and intelligence officials were acts of diplomacy
33:46
Speaker 1: and him exercising his power as chairman of that Foreign
33:50
Speaker 1: Relations Committee. So I think what he's saying is that
33:54
Speaker 1: if you find that what I did was corrupt and
33:58
Speaker 1: acting as an agent of a four peign country, than
34:00
Speaker 1: it's going to be the case for a bunch of
34:02
Speaker 1: other senators as well.
34:04
Speaker 2: Menandez didn't take the stance. So how did he defend himself,
34:08
Speaker 2: particularly with regard to the gold bars and the cash
34:11
Speaker 2: and the Mercedes.
34:13
Speaker 1: Well, the general defense strategy was to attack the witnesses
34:17
Speaker 1: through cross examination, and his lawyers were quite effective at that.
34:21
Speaker 1: I'm sure they knew that he wasn't going to testify,
34:24
Speaker 1: so they put their case on primarily through the prosecution witnesses,
34:28
Speaker 1: although they did call a half dozen witnesses. At the end,
34:31
Speaker 1: he had a number of defenses. But as you say,
34:35
Speaker 1: he had to come up with a story for the
34:37
Speaker 1: cash and the gold bars. As far as the cash went,
34:40
Speaker 1: he said that he had withdrawn cash in the amount
34:45
Speaker 1: of four hundred dollars regularly, say, every two or three weeks,
34:49
Speaker 1: for decades, and that would account for all the cash
34:52
Speaker 1: that was lying around his house. The gold bars, he said,
34:56
Speaker 1: were gifts to Nadine from her wealthy family in Lebanon,
35:02
Speaker 1: and the prosecutors countered that by saying that the larger
35:06
Speaker 1: gold bars that they seized bore the serial numbers that
35:10
Speaker 1: matched a list in the possession of Fred Davies, a
35:14
Speaker 1: prominent developer in Edgewater, New Jersey.
35:17
Speaker 2: In twenty seventeen, Menandez was tried on unrelated federal bribery
35:22
Speaker 2: and corruption charges that ended in a mistrial. Did the
35:26
Speaker 2: evidence here show that that mistrial apparently didn't deter him
35:31
Speaker 2: These schemes allegedly took place soon after.
35:34
Speaker 1: Yes, that trial ended in the fall of twenty seventeen,
35:38
Speaker 1: and the evidence showed that the bribery plot in this
35:42
Speaker 1: case for which he was convicted began in early twenty eighteen.
35:47
Speaker 1: Of course, this was handled by the federal prosecutors in Manhattan,
35:51
Speaker 1: the Southern District of New York, presumably because they felt
35:55
Speaker 1: there would be a conflict for the prosecutors in New Jersey.
35:59
Speaker 2: He's going to be sentenced on October twenty ninth. He
36:03
Speaker 2: faces decades in prison on paper. What do you think
36:05
Speaker 2: a likely sentence might be.
36:08
Speaker 1: On the most serious charges, he faces twenty years in prison.
36:12
Speaker 1: It's very rare in a white collar case like this
36:15
Speaker 1: for a first time non violent offender with a long
36:19
Speaker 1: career of public service to get anything like that kind
36:23
Speaker 1: of time. It's hard to know. If I had to guess,
36:26
Speaker 1: I would say maybe several years.
36:29
Speaker 2: He is seventy years old, so the judge will most
36:32
Speaker 2: likely take that into account. Thanks so much, David for
36:35
Speaker 2: your reporting throughout the trial. That's Bloomberg Legal reporter David Voriakis.
36:40
Speaker 2: Menandez has six months remaining in his term, but Democrats
36:44
Speaker 2: have made it clear they don't want him in office
36:46
Speaker 2: any longer. Within minutes of the verdict on Tuesday, Senate
36:50
Speaker 2: majority leader Chuck Schumer called for his resignation, and New
36:54
Speaker 2: Jersey Governor Phil Murphy said the Senate should expel him
36:58
Speaker 2: if he refuses to step down. Menandez has taken a
37:01
Speaker 2: defiant stance since he was indicted in September of last
37:04
Speaker 2: year and hasn't indicated whether he'll voluntarily resign, but expulsion
37:10
Speaker 2: requires a two thirds majority and is exceedingly rare. The
37:14
Speaker 2: last time it was even considered by the Senate was
37:17
Speaker 2: almost thirty years ago, and in our history, only fifteen
37:21
Speaker 2: senators have ever been expelled, almost all of them during
37:24
Speaker 2: the Civil War. And that's it for this edition of
37:27
Speaker 2: the Bloomberg Law Podcast. Remember you can always get the
37:30
Speaker 2: latest legal news by subscribing and listening to the show
37:33
Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,
37:37
Speaker 2: slash Law. I'm June Grosso and this is Gloomberg