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Castro Indicted, Death Penalty & Police Sue Over Trump Fund · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law.
0:04
Speaker 2: With June Grosseo from Bloomberg Radio.
0:09
Speaker 3: We are announcing an indictment charging Raul Castro and several
0:16
Speaker 3: others with conspiracy to kill US nationals.
0:21
Speaker 1: Des Acting Attorney General Todd Blanche unveiled murder and conspiracy
0:30
Speaker 1: charges against former Cuban president Raul Castro before a cheering
0:35
Speaker 1: crowd in Miami. Castro, the brother of late revolutionary dictator
0:40
Speaker 1: Fidel Castro, is accused of ordering the downing of two
0:45
Speaker 1: small civilian planes operated by the exile group Brothers to
0:49
Speaker 1: the Rescue, killing four people thirty years ago when he
0:53
Speaker 1: was Cuba's defense minister. The indictment does fuel speculation that
0:58
Speaker 1: the US is preparing to launch military action against Cuba,
1:02
Speaker 1: following the capture by US forces in January of former
1:07
Speaker 1: Venezuelan president Nicolas Maduro to face drug charges in New York.
1:12
Speaker 1: Blanche appeared irritated when asked if the indictment will be
1:16
Speaker 1: used as justification to send forces into Cuba.
1:20
Speaker 3: We didn't indict. This is na show indictment. This is
1:23
Speaker 3: indictment because we expect that there was a warrant issue
1:26
Speaker 3: for his arrest, so we expect that he will show
1:30
Speaker 3: up here by his own will or by another way.
1:34
Speaker 1: And today Secretary of State Marco Rubio refused to answer
1:39
Speaker 1: a question about hal Castro will be brought here to
1:42
Speaker 1: face the charges.
1:44
Speaker 4: Well, I'm not going to talk about how we're going
1:45
Speaker 4: to get him here.
1:46
Speaker 2: If we were trying to get him here, why would
1:48
Speaker 2: I fay to the media what our plans are about that?
1:50
Speaker 3: I know you have to ask, but why would I
1:51
Speaker 3: answer that?
1:52
Speaker 1: Joining me is former federal prosecutor Nima Romani. He's the
1:56
Speaker 1: president and co founder of West Coast Trial Lawyers. Neva
2:00
Speaker 1: tell us about this indictment.
2:02
Speaker 4: The Raoul Castro indictment is significant in so many ways.
2:07
Speaker 4: I mean something that frankly, we really haven't seen before
2:11
Speaker 4: this administration.
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Speaker 2: Obviously you know Manuel.
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Speaker 4: Noriega, but you have now the second head of state
2:18
Speaker 4: or former head of state who has been indicted by
2:22
Speaker 4: this administration or arrested by this administration. And typically there
2:28
Speaker 4: would be no world, legally or politically where it would
2:32
Speaker 4: even be possible for Raoul Castro to ever step foot
2:36
Speaker 4: in an American courtroom. But of course, with the President Trump,
2:40
Speaker 4: he can be unpredictable. So there's only the possibility that
2:43
Speaker 4: this arrest warrant is actually executed and he does face
2:47
Speaker 4: trial for these murders. Some thirty years ago, the.
2:51
Speaker 1: Acting Attorney General said, this is not a show indictment.
2:55
Speaker 1: But isn't that what this is? In many respects? I mean,
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Speaker 1: Cuban opposition leaders in Florida have long been urging US
3:04
Speaker 1: officials to bring charges against Castro. Trump has been threatening
3:08
Speaker 1: military action in Cuba ever since US forces captured Maduro.
3:14
Speaker 1: A grand jury in Miami brought the indictment on April
3:18
Speaker 1: twenty third, but the government waited to announce it until Wednesday,
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Speaker 1: about a month later, on Cuban Independence Day. And this
3:27
Speaker 1: is thirty years ago. Has the evidence been growing unlike
3:31
Speaker 1: every other case where the evidence gets weaker over time.
3:35
Speaker 4: June, I can tell you I've been doing this twenty
3:36
Speaker 4: five years, and I covered the DOJ press conference life
3:39
Speaker 4: and I can tell you I've never seen so many
3:41
Speaker 4: cheers and applause at a Department of Justice press conference.
3:45
Speaker 4: I mean, this is a big deal politically for Cuban Americans.
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Speaker 4: I obviously am not naive to the harm and suffering
3:54
Speaker 4: that them and many of their family members have endured
3:59
Speaker 4: by the rutal Cuban government. But you know, I think
4:03
Speaker 4: one of the questions that was raised repeatedly during the
4:07
Speaker 4: press conference to Todd Blanche, the US Attorney there in
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Speaker 4: the Southern District of Florida, and the Florida Attorney General,
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Speaker 4: it was a who's who of prosecutors there in Florida
4:17
Speaker 4: and throughout the country, all of whom are praising President Trump,
4:20
Speaker 4: of course, was is this a symbolic indictment? An indictment
4:26
Speaker 4: doesn't mean anything unless prosecutors can actually get across the
4:30
Speaker 4: finish line, get a conviction, put someone in prison. And
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Speaker 4: we've seen this Department of Justice have you know, some
4:37
Speaker 4: pretty high profile starts, but they haven't gotten anywhere. Right.
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Speaker 4: It can be to shames, it can becomi I mean,
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Speaker 4: you name it. Now. This is something that's even more challenging,
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Speaker 4: and I think Blanche had a tough time answering that
4:50
Speaker 4: question because frankly, it's really not within his control as
4:54
Speaker 4: the acting Attorney General. This is something that would require
4:57
Speaker 4: military intervention. There is no world or Castro's coming to
5:01
Speaker 4: the United States voluntarily, and similarly, there's no world where
5:05
Speaker 4: Cuba is going to extradite him. I can't imagine that
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Speaker 4: that's even possible politically, So the question is will there
5:13
Speaker 4: be a military operation. I think before Venezuela I would
5:17
Speaker 4: have been very skeptical, but obviously that was something that
5:21
Speaker 4: in many ways was unprecedented. Again, the only other example
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Speaker 4: would be Noriega, So it's certainly possible. But are they
5:28
Speaker 4: going to go arrested a ninety four year old and
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Speaker 4: try him. I think that would make a lot of
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Speaker 4: people here happy politically, but without some sort of military
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Speaker 4: assist legally, I think unfortunately, this isn't going to go anywhere.
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Speaker 1: Well, Blanche said quote we expect he will show up here,
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Speaker 1: either by his own will or another way. I think
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Speaker 1: another way most people see as a military operation, similar
5:53
Speaker 1: to the Maduro operation. Cuba's current president called it a
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Speaker 1: political maneuver fabricated to justify the folly of a military
6:02
Speaker 1: aggression against Cuba. I mean it seems almost blatant.
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Speaker 4: It does. And answer your last question, I think it's
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Speaker 4: an important one. You know, what's changed in the past
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Speaker 4: thirty years. You know, is there a smoking gun that
6:14
Speaker 4: you know in the past year and a half this
6:16
Speaker 4: new administration they found new evidence. No, I mean these
6:18
Speaker 4: cases get worse over time. Right if you're looking at
6:21
Speaker 4: how you would prosecute it. You need someone on the
6:23
Speaker 4: inside to testify that it was Castro's order to shoot
6:26
Speaker 4: down these planes. But the big pilots, co pilots, I mean,
6:29
Speaker 4: you name it. It would require some sort of cooperat
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Speaker 4: or testimony. One of the pilots, I believe since died.
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Speaker 4: And I can't imagine that anything's changed in terms of
6:39
Speaker 4: the facts of the case of the law. What's changed is,
6:42
Speaker 4: obviously you have a president who is willing to be
6:46
Speaker 4: very aggressive when it comes to these types of charges,
6:49
Speaker 4: and potentially even more aggressive when it comes to military intervention.
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Speaker 4: And I think that's what's changed. The politics has changed,
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Speaker 4: not the facts in the law.
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Speaker 1: Talking about the politics. This is an example of the
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Speaker 1: administration using the Justice Department to bolster its own aims,
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Speaker 1: in this case, foreign policy aims. But we've seen this
7:09
Speaker 1: time and time again, this use of the Justice Department
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Speaker 1: for President Trump's ends.
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Speaker 4: Yeah, no question, obviously. I mean the DOJ has helped
7:20
Speaker 4: Trump and his family members in terms of going after
7:23
Speaker 4: his adversaries to protect him. This is one of the
7:26
Speaker 4: main criticism of the DJ. Is this Department of Justice
7:30
Speaker 4: there to serve the American people. And the public or
7:35
Speaker 4: is it there to serve the president? And I think
7:39
Speaker 4: serving the president is a problem now. Of course, folks
7:42
Speaker 4: on the other side will say it was Biden who
7:44
Speaker 4: started it, and the weaponization the law fair, and we'll
7:47
Speaker 4: go back and forth. I think what makes this unique
7:49
Speaker 4: is that we have the DOJ, which rarely but here
7:53
Speaker 4: appears to be serving a foreign policy objective. I recognize
7:57
Speaker 4: that there are many people in Florida and elsewhere that
8:01
Speaker 4: support this from a foreign policy international relations perspective. The
8:06
Speaker 4: question I have is is our federal court system the
8:09
Speaker 4: best vehicle for something like this, right, I'm not so sure,
8:15
Speaker 4: and it hasn't been historically, but I can tell you,
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Speaker 4: like my parents moved here from Iran when they're in college,
8:21
Speaker 4: you know, so there are a lot of people in
8:24
Speaker 4: the Iranian American community that feel a certain way about
8:26
Speaker 4: that government over there and would be you know, dancing
8:30
Speaker 4: in the street if you know one of the iatolos
8:32
Speaker 4: were to stand trial here in court, and you know,
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Speaker 4: I believe that many of them are war criminals. It
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Speaker 4: just this is not typically what is done in the
8:42
Speaker 4: DOJ to be extraditing heads of state, and I actually
8:46
Speaker 4: it's a former head of state and the immunity doesn't apply. Again,
8:49
Speaker 4: it's just not how it's typically done. But obviously, when
8:52
Speaker 4: it comes to President Trump, in our legal system, you know,
8:55
Speaker 4: you can't say never. Every day there's something unprecedented, and
8:58
Speaker 4: this is certainly one of them.
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Speaker 1: I think its a bad precedent, the US indicting foreign
9:03
Speaker 1: leaders and then using military operations to go in and
9:08
Speaker 1: bring them to jail. In the US, using the legal
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Speaker 1: system to bring about regime change, but there's no exit strategy,
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Speaker 1: whether it's Venezuela, Iran, or perhaps next Cuba.
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Speaker 4: Yeah, I mean, look, I mean obviously Venezuela and Iran.
9:24
Speaker 4: So Venezuela again, you know, I spoke to many Venezuelans
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Speaker 4: immediately after Maduro was arrested. I mean they were elated,
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Speaker 4: you know, And I think it was symbolically it meant
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Speaker 4: a lot. We'll see what happens with the prosecution itself
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Speaker 4: and if he is convicted, but I wouldn't necessarily say
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Speaker 4: a whole lot has changed for the people of Venezuela.
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Speaker 4: And notwithstanding that, you know, important symbolic prosecution Iran, I
9:51
Speaker 4: would certainly argue that at least for the Iranian people,
9:54
Speaker 4: the war hasn't been very helpful. It may have been
9:56
Speaker 4: helpful for the US and some of our allies in
9:58
Speaker 4: the Middle East potentially. Again, I'm no foreign policy expert,
10:02
Speaker 4: but again, you know, I think June and I have
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Speaker 4: spoken many times. I think we really need to separate
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Speaker 4: the law from politics, and there appears to be no
10:09
Speaker 4: separation whatsoever anymore, which is which is such a big
10:13
Speaker 4: problem in my opinion, because the last thing you want
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Speaker 4: is for people to be prosecuted because of their political beliefs,
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Speaker 4: or for international disputes that should be resolved through diplomacy
10:25
Speaker 4: or the UA or even the ICC. What's going to
10:29
Speaker 4: happen when I'm a tip for tat where you know,
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Speaker 4: China and Russia and other folks who are indicting or
10:35
Speaker 4: charging whatever the equivalent is over there, you know, American
10:38
Speaker 4: political leaders. It just doesn't make a whole lot of
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Speaker 4: sense to me.
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Speaker 1: Thanks so much for joining me today, Nima. That's Nima Romani,
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Speaker 1: president of West Coast Trial Lawyers. Coming up next on
10:48
Speaker 1: the Bloomberg Law Show, the Supreme Court dismisses a death
10:51
Speaker 1: penalty case on defendants with mental disabilities without making a decision.
10:57
Speaker 1: I'm June Grosso and you're listening to Bloom. The US
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Speaker 1: Supreme Court won't rule for now on how state court
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Speaker 1: should analyze the results of multiple IQ tests when determining
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Speaker 1: if death row inmates have an intellectual disability that would
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Speaker 1: bar their execution. Today, a divided court dismissed Alabama's bid
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Speaker 1: to be allowed to execute a convicted murderer who was
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Speaker 1: found by lower courts to be intellectually disabled. The appeal
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Speaker 1: was dismissed as improvidently granted, an unusual action that leaves
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Speaker 1: the last lower court ruling in place. Joseph Clinton Smith
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Speaker 1: has been on death row roughly half his life after
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Speaker 1: his conviction for beating a man to death. In nineteen
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Speaker 1: ninety seven, the Eleventh Circuit Court of Appeals halted Smith's execution,
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Speaker 1: and that decision will now remain in place. My guest
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Speaker 1: is Greg Block, a professor at Georgetown Law. Greg tell
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Speaker 1: us about the issue in this case.
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Speaker 5: So in the back round, hover is profoundly different visions
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Speaker 5: of the death penalty, and I think that we remiss
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Speaker 5: if we don't acknowledge the intensity of that difference of
12:10
Speaker 5: perspective in the kind of medium foreground is an opinion
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Speaker 5: issued more than twenty years ago Atkins versus Virginia, which
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Speaker 5: held the person who, to use the argent of the time,
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Speaker 5: was mentally retarded to use contemporary language, a person who
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Speaker 5: was intellectually disabled, which held that a person in such
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Speaker 5: a state who had been convicted of a capital offense
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Speaker 5: and sentenced to death could nonetheless not be executed consistently
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Speaker 5: with the Eighth Amendment to our Constitution. That led to
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Speaker 5: the question. I posed the question of what constitutes mental
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Speaker 5: retardation as it was called back then, or intellectual disability
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Speaker 5: as it's referred to today, and there have been multiple
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Speaker 5: approaches to that question. Central to these approaches has been
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Speaker 5: the role of intelligence testing, which dates back one hundred
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Speaker 5: and twenty years and yet is still all current a
13:10
Speaker 5: pervasive part of our lives. We're all familiar with the
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Speaker 5: IQ test, We're all familiar with its first cousin, the SAT,
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Speaker 5: the sclastic aptitude test, etc. So this is not stuff
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Speaker 5: that is unfamiliar to most Americans, and medicine and clinical
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Speaker 5: psychology have approaches to diagnosing intellectual disabilities that do involve
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Speaker 5: some use of the IQ test, but also involve clinical assessment.
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Speaker 5: Subjective clinical assessment, which is rooted in part in people's history,
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Speaker 5: their school history, their behavioral history, et cetera, and rooted
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Speaker 5: in part in the onset of various forms of apparent disability.
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Speaker 5: And that approach contrasts with the use of just the
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Speaker 5: number the IQ test. And if we use just a number,
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Speaker 5: if people take multiple IQ tests, they get different results
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Speaker 5: because the IQ test is not measuring some inherent biological
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Speaker 5: phenomena like you might measure the amount of hemoglobin in
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Speaker 5: a person's blood. The IQ test is assessing people's behavior
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Speaker 5: on that particular test. And IQ, contrary to what lots
14:22
Speaker 5: of folks might think, is not an inherent thing that
14:25
Speaker 5: exists in the same sense as the amount of hemoglobin
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Speaker 5: in someone's blood. And so we have dispute over how
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Speaker 5: we should count multiple varying IQ tests. And I'd say,
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Speaker 5: above all else, this fight that led to this case,
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Speaker 5: which was now being dismissed as improvidently granted, but with
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Speaker 5: lots of vociferous reactions on the part of four different
14:50
Speaker 5: justices really six counting the concurrence under disc hand, this
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Speaker 5: fight is about whether medical and psychological experts should render
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Speaker 5: that final judgment about mental disability, or whether the courts
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Speaker 5: should issue an approach, whether the Supreme Court should issue
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Speaker 5: specific guidance for how mental disability should be determined for
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Speaker 5: the purpose of whether somebody should be put to death?
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Speaker 1: And did the State of Alabama basically want to use
15:22
Speaker 1: an average of the defendant's IQ scores.
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Speaker 5: Basically, the state wanted to use the IQ scores without
15:31
Speaker 5: the subjective process of clinical assessment. Now, the state accepted
15:37
Speaker 5: that there might be more than one approach to thinking
15:40
Speaker 5: about multiple IQ scores, and they were I believe, if
15:43
Speaker 5: I remember correctly, four or five different IQ scores flowing
15:47
Speaker 5: from test administered at different points in time, and most
15:51
Speaker 5: recently from test administered by psychologists working for both the
15:55
Speaker 5: defense and the state. So you can average the IQ scores.
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Speaker 5: You can, as the state suggested, take the highest IQ score.
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Speaker 5: You can look at the er arranges that each IQ
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Speaker 5: score offers up, and you can count perhaps the lowest
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Speaker 5: possible IQ based on the ERR range. There's lots of
16:15
Speaker 5: different approaches, and the state did not vigorously insist that
16:20
Speaker 5: one of those approaches had to be the correct approach,
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Speaker 5: But the state did take the position that it should
16:26
Speaker 5: be just the IQ scores, not the experts clinical assessment.
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Speaker 1: And This appeal came from the Eleventh Circuit, which is
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Speaker 1: quite a conservative circuit, that had halted Smith's execution, finding
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Speaker 1: that he met the intellectual disability standard set out by
16:44
Speaker 1: the Supreme Court in Atkins based on the results of
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Speaker 1: multiple IQ tests administered over several years.
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Speaker 5: And you could view this result today as a kind
16:56
Speaker 5: of functional affirmation of the Court of Appeals.
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Speaker 1: So what they did was it's called a dig. They
17:04
Speaker 1: said that the case was improvidently granted, meaning that Justice
17:09
Speaker 1: has made a mistake by agreeing to take it out.
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Speaker 5: Truly, I don't claim to be a professional court watcher,
17:15
Speaker 5: but that's a term of art. There's lots of terms
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Speaker 5: of art. Just like if one judge disagrees with another
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Speaker 5: and gets the votes to win, that's called, you know,
17:24
Speaker 5: an error. Does it really mean an error as in
17:26
Speaker 5: a mistake? Well, not really, that's a term of art,
17:29
Speaker 5: and same thing here with improvidently granted. The court, the
17:32
Speaker 5: Supreme Court has a variety of maneuvers that it can
17:36
Speaker 5: engage in in order basically to say, well, we're not
17:40
Speaker 5: going to decide this particular issue now, at least the
17:43
Speaker 5: way it's already been framed, or we're going to let
17:46
Speaker 5: this percolate in different kinds of ways. And that's the
17:50
Speaker 5: move that the Court made today.
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Speaker 1: Because this case had already been before them. Didn't they
17:57
Speaker 1: know what they were getting into?
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Speaker 5: Those you know within the secretive Well, I guess they're
18:03
Speaker 5: not quite as secretive as they used to be. The
18:07
Speaker 5: chambers of our Supreme Court. Things do leak occasionally, and
18:11
Speaker 5: perhaps twenty thirty forty years from now historians will go
18:15
Speaker 5: through records and find something interesting about how this result
18:19
Speaker 5: came about. But at this point we can't really know.
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Speaker 1: I mean, it seems unusual that you had you know,
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Speaker 1: this improvidently, granted, but yet there are sixty two pages
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Speaker 1: of opinions. I mean, when does that happen?
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Speaker 5: Right, it's usually the tool liner percureum. Right, you have
18:39
Speaker 5: that two lighter procureum. But the PDF says then sixty
18:43
Speaker 5: some pages.
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Speaker 1: Do we go by what Justice Sotomayor said in her
18:47
Speaker 1: concurring opinion.
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Speaker 5: How do we think? What we can say is that
18:52
Speaker 5: the Court is collectively telling us, through its phociferous disagreement, that,
18:58
Speaker 5: under circumstances that might well arise in the near term,
19:03
Speaker 5: it will again consider this issue. But for now, for
19:07
Speaker 5: whatever reasons it's going to hold off. Now we could
19:11
Speaker 5: take justice. So my work literally here and infer that
19:17
Speaker 5: once a record in some future case lays out additional findings,
19:23
Speaker 5: additional alternatives from experts, additional arguments as to how the
19:29
Speaker 5: question of mental disability should be determined, that the court
19:33
Speaker 5: will be more willing to cure the case. There is
19:36
Speaker 5: an interesting precedent for this June. If we go back
19:39
Speaker 5: to nineteen eighty six, we have the opinion for v. Wainwright,
19:45
Speaker 5: in which the Supreme Court did hold that executing somebody
19:51
Speaker 5: who was not mentally competent to be executed didn't understand
19:56
Speaker 5: because of psychiatric illness why he or she was being
20:00
Speaker 5: put to death was contrary to the Eighth Amendment. And
20:05
Speaker 5: when the Supreme Court issued for v. Wing Right, it
20:08
Speaker 5: notably failed to issue criteria for mental competence for execution,
20:15
Speaker 5: and to this day, the Supreme Court has not issued
20:18
Speaker 5: such criteria, leaving lower courts, both state and federal courts,
20:23
Speaker 5: to the task of making those determinations, perhaps inconsistently. So
20:28
Speaker 5: it is interesting we now have both for so called
20:32
Speaker 5: insanity or mental incompetence, I should say, and now for
20:35
Speaker 5: cognitive disability intellectual disability. We have the Supreme Court not
20:40
Speaker 5: providing specific guidance.
20:42
Speaker 1: I mean, do you think it's better in a case
20:44
Speaker 1: like this that they don't provide specific guidance.
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Speaker 5: Yeah, it's a pretty profound question that you've just posed,
20:51
Speaker 5: because here we have something ineffable, something intangible, something ambiguous
20:58
Speaker 5: and uncertain. It is this question of mental disability. Mental
21:03
Speaker 5: disability severe enough so that we deem it a contrary
21:08
Speaker 5: to the Eighth Amendment of the Constitution to execute somebody
21:11
Speaker 5: in this state. That's pretty vague concept. However, specifically, court
21:16
Speaker 5: tried to be in Actions versus Virginia more than twenty
21:20
Speaker 5: years ago. And then the question arises, who decides this
21:25
Speaker 5: ambiguous thing? And of course, since it's ambiguous, and since
21:29
Speaker 5: it's literally a matter of life and death, there's a
21:31
Speaker 5: whole lot of morality involved, a whole lot of you know,
21:34
Speaker 5: what people think ought to be done right? And who
21:36
Speaker 5: should decide the aught? Here is the central question, who
21:40
Speaker 5: should decide the art? And the experts Under the model
21:44
Speaker 5: that was pursued by the District Court and affirmed by
21:46
Speaker 5: the Court of Appeals, experts are the ones who get
21:48
Speaker 5: to decide the art. And so if you're a critic
21:51
Speaker 5: of the experts should decide view you know, as say
21:56
Speaker 5: Justice Alito is, you might fairly say, well, that means
22:01
Speaker 5: that experts are interpreting the Constitution, and that we have
22:04
Speaker 5: psychologists or psychiatrists deciding what constitution unconstitutional execution. You know,
22:11
Speaker 5: there's nothing in the Constitution that says physicians or psychologists
22:17
Speaker 5: are authorized interpreters of the document. Right, And if you're
22:21
Speaker 5: a supporter of the vision laid out by Justice Somaire,
22:26
Speaker 5: and if you're critical of Justice Leto in this regard
22:30
Speaker 5: and Justice Thomas, then you say that by denying experts
22:35
Speaker 5: this role, we're denying our best answer to the question.
22:38
Speaker 5: But it is ultimately a moral question where that line
22:42
Speaker 5: is how we define that line, and it's ultimately a
22:45
Speaker 5: political question. Dare I say this whether we want to
22:49
Speaker 5: look to the clinical community, psychologists and psychiatrists, or whether
22:54
Speaker 5: we want to look to judges to define this line?
22:57
Speaker 1: And Justice Thomas's dissent is no prize.
23:01
Speaker 5: Thomas is clear in his descent that he's about getting
23:04
Speaker 5: rid of Atkins versus Virginia. He's declaring a war on
23:07
Speaker 5: Atkins versus Virginia. Whether he wins that fight someday. Who knows.
23:13
Speaker 5: That's a guessing game. I'm not going to engagent. The
23:15
Speaker 5: more important descent here is the Alito descent, which has
23:19
Speaker 5: multiple of co signers and is focused on this question
23:23
Speaker 5: of who decides where that line is and weighs in
23:28
Speaker 5: heavily in favor of the court's deciding rather than the
23:33
Speaker 5: clinical community of experts.
23:35
Speaker 1: Thanks so much. That's Georgetown law professor Greg Block. Coming
23:40
Speaker 1: up next. January sixth, police officers sue over Trump's one
23:45
Speaker 1: point eight billion dollar so called anti weaponization fund. This
23:50
Speaker 1: is Bloomberg. Senate Republicans pushed back on President Trump's one
23:57
Speaker 1: point eight billion dollar fund to pay political allies alleged
24:02
Speaker 1: to be victims of government weaponization, a dramatic setback for
24:06
Speaker 1: the president. Oklahoma Senator James Langford is one Republican questioning
24:12
Speaker 1: whether the new fund could see taxpayer money going to
24:15
Speaker 1: those who beat Capitol police officers. On January sixth.
24:19
Speaker 6: There were some folks that wandered in the building, that
24:22
Speaker 6: were caught up in the crowd, came in, march around,
24:24
Speaker 6: walked right out. That's not my issue. There are folks
24:27
Speaker 6: that smashed windows, there are folks that attacked law enforcement.
24:29
Speaker 6: There are folks that beat them with polls in the
24:31
Speaker 6: American flag, folks that sprayed bear spray in their face
24:34
Speaker 6: of law enforcement. I don't understand why any of those
24:36
Speaker 6: folks would receive any kind of compensation.
24:39
Speaker 1: Republican lawmakers, who were also at odds over taxpayer funding
24:43
Speaker 1: for Trump's White House ballroom, abandoned plans to pass up
24:47
Speaker 1: partiesan seventy two billion dollar immigration enforcement package before leaving
24:52
Speaker 1: Washington for a week long Memorial Day break because of
24:56
Speaker 1: the disagreement over the two Trump priorities. Police who responded
25:00
Speaker 1: to the US capital riots involving Trump's supporters in twenty
25:05
Speaker 1: twenty one are not waiting. They've already sued to block
25:09
Speaker 1: the creation of a government anti weaponization fund, alleging that
25:13
Speaker 1: it's quote the most brazen act of presidential corruption this century.
25:18
Speaker 1: The plaintiffs are two of the most prominent officers who
25:21
Speaker 1: were involved in January sixth, Harry Dunn and Daniel Hodges.
25:26
Speaker 7: He's trolling us with the seventeen seventy six thing. He's
25:30
Speaker 7: trying to make this some type of patriotic symbol, but
25:32
Speaker 7: this could be the most unpatriotic thing rewarding terrorists and insurrectionists.
25:38
Speaker 1: Dunn says that the laws creating the Judgment Fund didn't
25:42
Speaker 1: give the Justice Department separate, independent authority to create a
25:46
Speaker 1: new commission or compensation structure for people seeking monetary damages
25:51
Speaker 1: from federal agencies.
25:54
Speaker 7: This is illegal for him to do. It raises constitutional
25:58
Speaker 7: arguments in the fourteenth Amendment where they are potentially going
26:02
Speaker 7: to be paying insurrections or people who have participated in insurrection,
26:07
Speaker 7: which is clearly a violation to the Constitution. So we
26:11
Speaker 7: do understand that it might be an uphill fight, but
26:13
Speaker 7: we do believe there's validity in it.
26:16
Speaker 1: My guest is constitutional law professor David super of Georgetown Law,
26:20
Speaker 1: can you explain what the police officers are alleging in
26:24
Speaker 1: their lawsuit?
26:25
Speaker 2: Sure, I don't think there's a serious question that the
26:30
Speaker 2: fund is illegal, But the Supreme Court has said just
26:33
Speaker 2: because something is illegal or even unconstitutional, you don't get
26:37
Speaker 2: to go into court to challenge it. The Supreme Court
26:41
Speaker 2: requires what they call injury. In fact, you have to
26:45
Speaker 2: show that you are harmed in a way other than
26:49
Speaker 2: a person who cares about the Constitution. And the police
26:53
Speaker 2: officers are saying that this money is being made available
26:57
Speaker 2: to the people who assaulted them before and who are
27:02
Speaker 2: actively threatening them, and who could well assault them again
27:08
Speaker 2: in the same way, and so that this is encouraging
27:12
Speaker 2: and arguably even subsidizing violent behavior against them, which gives
27:18
Speaker 2: them standing to challenge it.
27:21
Speaker 1: That sounds really speculative. Do you think it will pass? Muster?
27:26
Speaker 2: I think the Supreme Court has been cutting way back
27:30
Speaker 2: on standing, and it's hard for me to see them
27:35
Speaker 2: deviating from that course in a case that would embarrass
27:38
Speaker 2: the president. But I think this is better than a
27:42
Speaker 2: lot of far fetched standing cases because they're not saying
27:50
Speaker 2: something bad happen to us in the past, and so
27:53
Speaker 2: we want to litigate the future. They're saying that both
27:57
Speaker 2: the beneficiaries of these funds and the administration that's handing
28:01
Speaker 2: them out are saying that the assault on the police
28:05
Speaker 2: officers was okay. These people have been pardon The President
28:09
Speaker 2: has repeatedly said they were treated very badly for being
28:12
Speaker 2: prosecuted in this manner, and so I think the police
28:16
Speaker 2: officers can make an argument of an ongoing abuse better
28:21
Speaker 2: than most people do.
28:23
Speaker 1: So a key would be to get a preliminary injunction
28:27
Speaker 1: to stop the administration from starting to dole out the funds.
28:33
Speaker 2: Yes, yes, they would say we should get a preliminary
28:36
Speaker 2: injunction because this is illegal and it will lead to
28:40
Speaker 2: more violence and threats against us, which is unlawful. And
28:46
Speaker 2: the government will presumably say you're not entitled a preliminary
28:50
Speaker 2: injunction because we're going to get you dismissed for lack
28:54
Speaker 2: of standing, and so we will end up litigating the
28:57
Speaker 2: standing question on the preliminary injunction.
29:00
Speaker 1: I've read some legal experts saying that challenging the fund
29:05
Speaker 1: later when claimants like let's say Trump opponents those who
29:11
Speaker 1: don't fit in the January sixth category, alleged they were
29:14
Speaker 1: harmed because their payouts were too low, I find that difficult.
29:18
Speaker 2: Number one people that are going to be applying to
29:20
Speaker 2: this are not likely to be suing the president for
29:23
Speaker 2: all sorts of reasons. And yes, I suppose one would
29:28
Speaker 2: say that this thing is standardless, and so some people
29:33
Speaker 2: may get less and they think they should. But since
29:36
Speaker 2: the underlying fund is illegal, it's very hard to construct
29:41
Speaker 2: a good due process claim here.
29:42
Speaker 1: So, David, if let's say the House and the Senate
29:46
Speaker 1: change turned democratic in the midterms, can Congress stop this?
29:52
Speaker 2: If Congress flips, it could only stop it through legislation,
29:57
Speaker 2: which surely the President would be to In addition, I
30:01
Speaker 2: suspect that if Congress flips, they will hustle an awful
30:05
Speaker 2: lot of money out the door in November and December,
30:09
Speaker 2: so that it's a done deal. Notice that they didn't
30:13
Speaker 2: wait around for permission before they wrecked the East wing
30:16
Speaker 2: of the White House. They just knocked it down. I
30:18
Speaker 2: think if they'd waited, they would have been stopped, but
30:21
Speaker 2: they moved quickly. I think they'll do that here as well.
30:24
Speaker 1: I mean, does it seem like this lawsuit is a
30:27
Speaker 1: long shot and the fund is going to go through?
30:31
Speaker 2: I think, in our likelihood, the fund will go through,
30:35
Speaker 2: and if anyone kills it and won't be lawyers, it'll
30:38
Speaker 2: be bolsters.
30:39
Speaker 1: Also on Tuesday, the Justice Department released this addendum, signed
30:45
Speaker 1: that day by Acting Attorney General Todd Blands, which forever
30:51
Speaker 1: barred and precluded the government from prosecuting or pursuing pending
30:55
Speaker 1: tax claims against Trump, his family and businesses.
30:59
Speaker 2: You could argue that that is an interpretation, I think,
31:03
Speaker 2: a very aggressive interpretation of what they drafted over the weekend,
31:08
Speaker 2: But you have to remember that they were writing this
31:12
Speaker 2: very very quickly, because they desperately needed to avoid having
31:16
Speaker 2: to file briefs in the district court explaining why this
31:20
Speaker 2: collusive lawsuit is anything but a collusive lawsuit. So the
31:25
Speaker 2: work over the weekend was very sloppy, and this is
31:29
Speaker 2: something that I'm sure they intended to put in the
31:32
Speaker 2: agreement but forgot, And so Acting Attorney in General Blanche,
31:38
Speaker 2: as he has been doing since his days as Trump's
31:42
Speaker 2: personal attorney, was cleaning up after his loss.
31:46
Speaker 1: Always a pleasure, David, thanks so much. That's Professor David
31:49
Speaker 1: Super of Georgetown Law. And that's it for this edition
31:52
Speaker 1: of the Bloomberg Law Show. Remember you can always get
31:55
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32:02
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