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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: My fellow New Yorkists. As you may have heard, the

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Speaker 2: Department of Justice has directed that the case against me

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Speaker 2: be dismissed, finally ending in months long saga.

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Speaker 3: Not so fast, The saga over the criminal corruption case

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Speaker 3: against New York City Mayor Eric Adams is not over.

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Speaker 3: In fact, it's turning into a remarkable showdown between Trump's

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Speaker 3: top Justice Department officials in DC and the US Attorney's

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Speaker 3: office for the Southern District of New York. In a

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Speaker 3: stunning memo on Monday, Acting Deputy Attorney General Emil Beauvey

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Speaker 3: told federal prosecutors in Manhattan to dismiss the case against Adams.

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Speaker 3: Even more stunning, the reasons given were political and had

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Speaker 3: nothing to do with the evidence against Adams, the law,

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Speaker 3: or the merits of the case. But the interim Manhattan

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Speaker 3: US Attorney, Danielle Sassoon, resigned rather than carry out the

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Speaker 3: order to dismiss the Adams case, and that set off

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Speaker 3: a string of resignations, with five high ranking Justice Department

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Speaker 3: officials in DC and the lead prosecutor in the Adams

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Speaker 3: case in Manhattan all refusing to dismiss the case and resigning.

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Speaker 3: Joining me is former federal Prosecutor Robert Mintz, a partner

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Speaker 3: Macarter in English, Bob. Some are comparing the events of

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Speaker 3: this week to the Saturday Night massacre during the Nixon administration.

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Speaker 3: Let's put this into context. How unusual is the order

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Speaker 3: from the acting Deputy ag to dismiss the Adams case

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Speaker 3: so that the mayor could help with Trump's immigration crackdown

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Speaker 3: with no consideration of the facts or the law.

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Speaker 4: It's extremely unusual for the Department of Justice to be

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Speaker 4: ordering the dismissal of appending criminal case when that decision

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Speaker 4: was not based on the merits of the case itself.

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Speaker 4: Mister Beauvet's directive to the Southern District made clear that

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Speaker 4: the decision to dismiss the case without prejudice at this

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Speaker 4: time was not based on the strength of the evidence

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Speaker 4: or the legal theory behind the case. So it raises

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Speaker 4: the question what then drove this decision to dismiss the case,

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Speaker 4: and mister Beauvet was straightforward in saying that it was

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Speaker 4: driven by the fact that the investigation and the pending

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Speaker 4: criminal trial would interfere with Mayor Adam's ability to carry

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Speaker 4: out his duties as the mayor of the City of

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Speaker 4: New York and to enforce the immigration policies at the

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Speaker 4: Trump administration was seeking to carry out. So it really

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Speaker 4: is something that does seem to be more tied to

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Speaker 4: politics than it does to the legal strength of the case.

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Speaker 3: Then we have this extraordinary series of events where the

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Speaker 3: interim Manhattan US Attorney, Danielle Sassoon, resigns rather than dismissing

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Speaker 3: the case, and she wrote an eight page letter to

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Speaker 3: the acting Attorney General Beauvet laying out why she thought

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Speaker 3: the case had been properly charged, saying she had no

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Speaker 3: good faith reason to drop the charges, and raising concerns

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Speaker 3: that Adams and the Trump administration had engaged in an

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Speaker 3: improper quid pro quo. How troubling is.

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Speaker 4: That Let's take a step back here to focus on

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Speaker 4: the fact that in any political corruption case, when a

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Speaker 4: public official is indicted, the fact that they have to

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Speaker 4: then defend themselves, prepare a defense, perhaps go through a

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Speaker 4: trial will always interfere with their ability to carry out

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Speaker 4: their duties as an elected official. If you were to

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Speaker 4: not pursue cases on the basis that the indictment and

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Speaker 4: subsequent criminal trials would then impair the public officials' ability

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Speaker 4: to carry out their public duties. Then you would never

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Speaker 4: indict any sitting elected officials. So the fact that it

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Speaker 4: is even being discussed in connection with the dismissal of

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Speaker 4: the case is highly unusual, and based upon the letter

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Speaker 4: that Miss Deston wrote to the Department of Justice, where

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Speaker 4: she explicitly alleged that there was a quid pro quo

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Speaker 4: discussion that Mayor Adams would not be in a position

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Speaker 4: to assist the Department of Justices immigration enforcement priorities if

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Speaker 4: the case goes forward is troubling because that's really not

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Speaker 4: a topic that should enter into this decision. The decision

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Speaker 4: whether or not to pursue this case should be focused

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Speaker 4: exclusively on the merits of the case and should not

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Speaker 4: really have anything to do with whether or not the

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Speaker 4: case going forward with imperive public officials ability to carry

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Speaker 4: out their duties as a public official.

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Speaker 3: She also makes this remarkable statement, the law does not

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Speaker 3: support a dismissal, and I am confident that Adams has

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Speaker 3: committed the crime with which he is charged. It's not

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Speaker 3: often you hear federal prosecutors make those kinds of claims

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Speaker 3: about the evidence. Usually they'll say it's up to the

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Speaker 3: jury to decide something like that. Here she's saying, I'm

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Speaker 3: confident that he's guilty.

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Speaker 4: There is so much that is unprecedented about this standoff

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Speaker 4: between the Southern District of New York and the Department

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Speaker 4: of Justice that it's really almost impossible to list it.

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Speaker 4: In every respect, We've never really seen a case where

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Speaker 4: a US attorney's office has simply rejected the directive by

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Speaker 4: the Attorney General's office to dismiss a case and have

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Speaker 4: it play out so openly and so publicly and ultimately

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Speaker 4: lead to the resignation of so many Department of Justice

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Speaker 4: and US attorneys simply on the basis that they are

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Speaker 4: refusing to carry out this directive.

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Speaker 3: And Sassoon has conservative credentials. She's a Republican who clerk

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Speaker 3: for Justice antonin Scalia, and she's a member of the

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Speaker 3: Federalist Society.

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Speaker 5: Now.

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Speaker 3: Beauvet, who by the way, was Trump's personal attorney, wrote

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Speaker 3: his own eight page letter back accusing Sassoon of insubordination,

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Speaker 3: and he sort of doubled down on the reason for

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Speaker 3: dropping the prosecution being that it's interfering with Adam's ability

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Speaker 3: to govern and he.

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Speaker 4: Fires back with language that is as accusatory as hers

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Speaker 4: was to him. He basically says that she is not

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Speaker 4: following her oath to uphold the Constitution, and she's disobeying

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Speaker 4: direct orders to implement the policy of a duly elected president.

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Speaker 4: The question is not really whether she is failing to

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Speaker 4: follow those orders.

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Speaker 1: But why.

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Speaker 4: And she challenges the directive by saying that the considerations

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Speaker 4: that Mlbauve cites as the reasons for dismissing the case

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Speaker 4: are inappropriate and not something that a prosecutor has a

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Speaker 4: duty to follow. That's really what this standoff is all about.

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Speaker 3: The next event, the Department's Public Integrity Section in DC

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Speaker 3: is asked to take over the case, and the five

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Speaker 3: senior level officials overseeing the unit resign rather than dismissing

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Speaker 3: the case. Now back to Manhattan, where the lead prosecutor

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Speaker 3: on the Adams case, Hagen Scotten, also resigned, writing a

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Speaker 3: fiery letter saying that most assistant US attorneys would know

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Speaker 3: it was wrong to use prosecutorial powers to influence an

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Speaker 3: elected official. Quote, I expect you will eventually find someone

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Speaker 3: who is enough of a fool or enough of a

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Speaker 3: coward to file your motion, but it was never going

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Speaker 3: to be me. Scotton is a former clerk to Chief

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Speaker 3: Justice John Roberts and a decorated war veteran. This is

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Speaker 3: all so unusual coming from federal prosecutors.

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Speaker 4: Sure, now, that's exactly right. Federal prosecutors generally do not

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Speaker 4: comment about tending criminal cases, nor do they comment publicly

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Speaker 4: about disputes going on between a US Attorney's office and

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Speaker 4: main Justice, which does happen from time to time. But

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Speaker 4: this has exploded into the public and we really have

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Speaker 4: a situation here where this dispute and this standoff between

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Speaker 4: prosecutors are resigning one after another, refusing to carry out

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Speaker 4: this directive. This has really overtaken almost the decision to

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Speaker 4: dismiss the case and to become a story unto itself.

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Speaker 3: So Bovey and Justice Department officials finally got their way

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Speaker 3: on Friday evening. They filed a motion to dismiss the

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Speaker 3: Adams case with the judge. It was hand signed by

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Speaker 3: Beauvay and electronically signed by the acting chief of the

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Speaker 3: Justice Department's Criminal Division and also a veteran public corruption prosecutor.

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Speaker 3: So the next move will be from Judge dale Ho,

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Speaker 3: who's overseeing the case.

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Speaker 4: What do you think he'll do well? That's really the

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Speaker 4: the next interesting question here, because you have the judge

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Speaker 4: sitting back and watching all of this play out in

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Speaker 4: the news media, and the trial judge may well want

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Speaker 4: to hold a hearing to get into the reasons for

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Speaker 4: the Department of Justice wanting to dismiss this pending criminal case,

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Speaker 4: and that could play out in a very embarrassing way

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Speaker 4: for the Department of Justice, as Department of Justice officials

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Speaker 4: will have to provide reasons for this that don't appear

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Speaker 4: to be political, particularly in a case where the decision

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Speaker 4: is expressly not made based on the merits of the case. Ultimately,

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Speaker 4: the judge will likely have to grant the motion because

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Speaker 4: he can't really force the Department of Justice to prosecute

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Speaker 4: the case against their will. But the hearing itself could

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Speaker 4: prove to be something that is embarrassing for the Department

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Speaker 4: of Justice and could have longer term ramifications in terms

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Speaker 4: of any other decisions made by the Department of Justice

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Speaker 4: with regard to other pending cases.

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Speaker 3: This dismissal would be without prejudice, meaning the Justice Department

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Speaker 3: can bring it again, and Adams is going to be

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Speaker 3: required to sign basically a waiver saying that he understands that,

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Speaker 3: and that's led some New York Democrats to express concerns

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Speaker 3: and calls for Adam's resignation, saying that he'll now be

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Speaker 3: beholden to the Trump administration.

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Speaker 4: Sometimes prosecutors will dismiss the case without prejudice, and it

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Speaker 4: gives them the right to resume the case again. But

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Speaker 4: often that is based on questions about the strength of

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Speaker 4: the evidence. Maybe it has to do with whether or

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Speaker 4: not certain witnesses are available now for trial, that sort

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Speaker 4: of thing. It's not based upon whether or not the

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Speaker 4: public official can carry out his duties as a public official.

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Speaker 4: And it does give the inference that because this case

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Speaker 4: is still hanging over the Mayor's head, he has some

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Speaker 4: incentive to curry favor with the trumpet medministration in order

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Speaker 4: to try to convince them not to reinstitute the case.

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Speaker 1: And after the election, of.

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Speaker 3: Course, Mayor Adams has denied that there was any quid

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Speaker 3: pro quo. Thanks so much for joining me, Bob. That's

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Speaker 3: Robert Mintz of McCarter and English, coming up next on

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Speaker 3: The Bloomberg Law Show. Federal judges have provided the only

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Speaker 3: resistance to Trump's aggressive agenda, blocking executive orders, freezing funding,

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Speaker 3: doing away with birthright citizenship, and putting thousands of USAID

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Speaker 3: workers on leave, just to name a few. We'll take

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Speaker 3: a look at what's ahead as the Justice Department is

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Speaker 3: revamped by the new Attorney General. I'm June Grosso and

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Speaker 3: you're listening to Bloomberg. The judiciary has been the only

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Speaker 3: restraint on President Donald Trump's aggressive agenda. Federal judges have

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Speaker 3: blocked Trump's executive orders, freezing federal funding, doing away with

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Speaker 3: birthright citizenship, putting thousands of us AID employees on lee,

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Speaker 3: and threatening the funding of hospitals that provide gender affirming

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Speaker 3: care for minors. As Trump's agenda faces widespread pushback from

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Speaker 3: the federal courts, top administration officials are openly questioning the

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Speaker 3: judiciary's authority to serve as a check on the president.

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Speaker 3: From Speaker of the House Mike Johnson, who said that

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Speaker 3: judges should just back off.

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Speaker 6: I think that the courts should take a step back

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Speaker 6: and allow these processes to play out.

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Speaker 7: What we're doing is good and right for the American people.

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Speaker 3: To Vice President jd Vance, who's advocated ignoring court orders.

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Speaker 3: Here he is on the podcast Jack Murphy Live in

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Speaker 3: twenty twenty one.

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Speaker 4: And when the courts stop, you stand before the country

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Speaker 4: like Andrew Jackson did, and say the Chief Justice has

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Speaker 4: made his ruling, now let him enforce it.

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Speaker 3: Trump himself has a history of attacking judges who rule

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Speaker 3: against him, and he's blaming them for slowing down his agenda.

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Speaker 5: And today you're not allowed to look for theft and fraud, etc.

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Speaker 5: Then we don't have much of a country. So no

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Speaker 5: judge should be no judge should frankly be allowed to

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Speaker 5: make that kind of a decision.

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Speaker 6: Is a disgrace.

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Speaker 3: Joining me is constitutional law. Professor David Souper of Georgetown

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Speaker 3: Law JD Vance said judges aren't allowed to control the

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Speaker 3: executive's legitimate power fair enough, but he's argued that presidents

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Speaker 3: can and should ignore court orders that infringe on their

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Speaker 3: rightful executive powers. Quoting Andrew Jackson, is it concerning when

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Speaker 3: the vice president a lawyer? By the way, advocates like that.

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Speaker 7: It certainly is worrying, and presidents and other high officials

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Speaker 7: who have been engaged in illegal conduct have been saying

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Speaker 7: that for over two hundred years. But it's no less

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Speaker 7: disturbing when it happened. Of course, courts can't issue illegitimate orders,

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Speaker 7: but the solution when they do that is to appeal them.

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Speaker 3: One theory is that Trump is doing this to test

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Speaker 3: the limits of law so that these cases will go

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Speaker 3: to the Supreme Court, which will expand his presidential authority.

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Speaker 3: I mean, do you think it goes that far?

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Speaker 4: Oh?

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Speaker 7: I think it does go that far. There's a few

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Speaker 7: of these issues that are arguably separate, such as the

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Speaker 7: birthright citizenship, where he's violating not a statute but the

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Speaker 7: Constitution itself. But for the most part, he's going out

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Speaker 7: of his way to violate statutes that say how the

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Speaker 7: federal government should operate, and in doing that, he's setting

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Speaker 7: up a test case about whether any of these statutes

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Speaker 7: find him at all. Some things he's trying to do,

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Speaker 7: they are legal ways to do it, and he hasn't

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Speaker 7: tried to do it legally. He's deliberately violated the statute

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Speaker 7: to set up a fight.

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Speaker 3: What are some of the things he's done that he

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Speaker 3: could have done legally?

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Speaker 7: He could have done a buyout under existing BIOT authority

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Speaker 7: that requires an agency specific examination of how many people

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Speaker 7: they want to leave and in what positions but he

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Speaker 7: didn't bother to use that authority. He did this mass email.

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Speaker 7: It's likely to cause us to lose precisely the federal workers.

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Speaker 7: We can't afford to lose.

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Speaker 3: You mentioned that a lot of these orders seem to

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Speaker 3: fly in the face of the law. Who do you

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Speaker 3: think is writing these and are they getting legal advice?

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Speaker 7: I think piece are written by the people behind Project

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Speaker 7: twenty twenty five, and those people have an extremely ambitious,

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Speaker 7: radical agenda of overturning the separation of powers and the

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Speaker 7: systems checks and balances has guided this country since its founding.

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Speaker 7: That's the legal advice is behind all of this. The

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Speaker 7: rest of what they're doing is hard to take seriously.

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Speaker 7: You read references to cases in their memos. You go

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Speaker 7: look up to the case and it says the opposite.

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Speaker 7: So I don't think this is a serious effort to

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Speaker 7: think about what the law is. This is a radical

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Speaker 7: effort to change.

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Speaker 3: With the law is well. The Supreme Court has been

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Speaker 3: known to ignore president and lest July came out with

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Speaker 3: a controversial decision on presidential authority, granting immunity from prosecution

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Speaker 3: when presidents are acting within their official duties. So do

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Speaker 3: you think the Supreme Court justices will be receptive to

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Speaker 3: Trump's challenges to the law.

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Speaker 7: I don't the implication of this is that he's not

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Speaker 7: governed by the law and that the courts have no

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Speaker 7: power over him. That earns Supreme Court justice into a

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Speaker 7: very modest, relatively insignificant figure. And I don't think that

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Speaker 7: these justices are willing to give up their constitutional role

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Speaker 7: and become figureheads. I think they want to decide cases

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Speaker 7: based on the law, and President Trump's theories here are

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Speaker 7: so radical that they would greatly limit the rule of

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Speaker 7: law in this country.

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Speaker 3: I want to discuss the Justice Department under new Attorney

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Speaker 3: General Pam Bondi. There's been this remarkable string of resignations

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Speaker 3: at Justice by lawyers who refuse to follow the order

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Speaker 3: to dismiss the corruption case against New York City Mayor

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Speaker 3: Eric Adams. One of Bondi's first memos warn Justice Department

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Speaker 3: attorneys about refusing to advance legal arguments they disagree with.

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Speaker 3: Is that the way the Justice Department normally works. You know,

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Speaker 3: you get an assignment as a lawyer, and you argue

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Speaker 3: the side that the Justice Department is taken.

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Speaker 8: Well.

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Speaker 7: Lawyers are always required to act in the best interests

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Speaker 7: that they're client to the extent permitted by law and

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Speaker 7: legal ethics. So it's not surprising that a lawyer might

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Speaker 7: make an argument that if they were a judge, they

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Speaker 7: would fou against. That's ordinary. But the implication here is

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Speaker 7: that lawyers might be required to make arguments that they

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Speaker 7: regard as frivolous, and that is generally not allowed in

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Speaker 7: legal ethics. We expect lawyers to make good faith arguments

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Speaker 7: to courts, not silly ones, and this could be read

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Speaker 7: as requiring the latter.

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Speaker 3: In some of these cases challenging Trump's executive orders, the

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Speaker 3: arguments by Justice Department lawyers have been novel, to say

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Speaker 3: the least. I'm thinking of the many cases filed challenging

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Speaker 3: the ending of birthright citizenship, four out of four judges

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Speaker 3: found that unconstitutional, and a few of them were highly critical,

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Speaker 3: saying that it was an attempt to rewrite the Constitution.

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Speaker 3: Here's Seattle judge John Kunauer.

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Speaker 6: It has become ever more apparent that to our president,

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Speaker 6: the rule of law is but an impediment to his

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Speaker 6: policy goals. There are moments in the world's history when

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Speaker 6: people look back and ask where were the lawyers, Where

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Speaker 6: were the judges. In these moments, the rule of law

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Speaker 6: becomes especially vulnerable. I refuse to let that be can

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Speaker 6: go dark today.

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Speaker 3: So does the Justice Department risk losing credibility with the

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Speaker 3: federal judiciary.

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Speaker 7: Yes, and I think that's already starting to happen. Some

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Speaker 7: of the arguments that have been put forward, not just

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Speaker 7: in the birthright citizenship case, but in the funding freeze

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Speaker 7: cases have been very strange, and the judges have commented

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Speaker 7: on them. A judge in one of the funding freeze

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Speaker 7: cases said that the government lawyers were claiming that the

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Speaker 7: executive agencies must follow the president's priorities. Now, executive agencies

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Speaker 7: must follow the law because even the president is consciously

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Speaker 7: required to take care that the laws be faithfully executed.

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Speaker 3: Speaking of losing credibility, during her confirmation hearings, Pam Bondi

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Speaker 3: promis that there would be no enemies list at the

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Speaker 3: Justice Department. But then on her first day, she created

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Speaker 3: a weaponization working group and she's targeting for investigation Special

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Speaker 3: Counsel Jack Smith, New York ag Letitia James, Manhattan District

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Speaker 3: Attorney Alvin Bragg Justice Department personnel who worked on January sixth, etc.

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Speaker 3: Accusing them of improper investigative tactics and unethical behavior. I mean,

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Speaker 3: what's your take on the ag going after, for example,

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Speaker 3: the elected district attorney in Manhattan.

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Speaker 7: In principle, there can be violations taken by district attorneys.

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Speaker 7: Some of the actions in the Civil Rights era were

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Speaker 7: against people using government powers to perpetuate illegal racist subjugation.

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Speaker 7: So the fact that someone is a state attorney general

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Speaker 7: or a district attorney doesn't make them waterproof. But in

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Speaker 7: this case, the strong implication is is that this is

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Speaker 7: payback for prosecuting or investigating her boss, President Trump. And

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Speaker 7: if the Justice Department is seen as making decisions based

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Speaker 7: on the personal interests of officials. Mister Bragg normally prosecuted

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Speaker 7: mister Trump, but persuade that a jury of his peers

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Speaker 7: to convict them all accounts, then the Justice Department becomes

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Speaker 7: the political tool and will have very little respect.

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Speaker 3: Something that I think came as a surprise to many

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Speaker 3: is that Bondy intends to use criminal investigations to root

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Speaker 3: out DEI practices in the private sector. That's according to

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Speaker 3: one of the executive orders that Trump issued, and then

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Speaker 3: the DOJ memo calls for specific steps to take within weeks.

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Speaker 3: I don't even know what to say about that. I mean,

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Speaker 3: criminal investigations for DEI policies.

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Speaker 7: Well, it's quite remarkable. I can see why they keep

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Speaker 7: using the initials, because that's saying, we're criminally investing you

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Speaker 7: for inclusion. We're criminally investing in you for equity. Inclusion

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Speaker 7: and equity tend to be the things that the law supports,

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Speaker 7: So they're using DEI as a cartoon villain rather than

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Speaker 7: looking at what's actually involved. EI programs are enormously varied,

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Speaker 7: and it's hard to imagine many of them engaging in

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Speaker 7: any criminal activity any more than any other program.

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Speaker 8: To do that.

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Speaker 7: The notion that they're going to bring these cases suggests

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Speaker 7: that they're contemplating using the law for harassment.

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Speaker 3: So if these kinds of cases are brought, do you

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Speaker 3: think that a judge would dismiss them right away, perhaps

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Speaker 3: even before discovery starts.

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Speaker 7: Judges generally like to give the prosecution a chance to

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Speaker 7: be heard. In a situation like this, when there's so

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Speaker 7: much evidence that the criminal law will be misused. The

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Speaker 7: President and other senior officials essentially admitting that I think

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Speaker 7: judges may feel that the fairest thing to do is

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Speaker 7: dismiss these cases immediately and not force people who are

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Speaker 7: following legitimate orders to go through this sort of burden.

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Speaker 3: People talk about the independence of the Justice Department being threatened,

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Speaker 3: but in our history didn't a lot of justice departments

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Speaker 3: work closely with the White House. I mean, just how

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Speaker 3: independent is it?

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Speaker 7: Well, the Justice Department is part of the executive branch,

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Speaker 7: and it is supposed to serve the nation's interests under

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Speaker 7: the general guidance of the President. But it's always been

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Speaker 7: understood that because they're dealing with law, and because the

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Speaker 7: role of lawyers, particularly government lawyers, is very sensitive, that

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Speaker 7: the Justice Department has to be flee to honor them

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Speaker 7: law and to honor its obligations to only make legitlemen

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Speaker 7: arguments in court.

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Speaker 3: Thanks so much for joining me, David. That's Professor David

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Speaker 3: super of Georgetown Law. Coming up next? Will non citizens

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Speaker 3: be able to vote in New York City elections? I'm

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Speaker 3: June Grosse. When you're listening to Bloomberg, there.

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Speaker 9: Is something exceptional about this particular law, right, I mean,

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Speaker 9: this is the argument in the briefs that this is

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Speaker 9: going to expand on both sides. This is going to

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Speaker 9: expand the franchise to a very large number of individuals

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Speaker 9: may indeed change the political representation in particular districts. Yes,

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Speaker 9: this is not like some other little process.

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Speaker 3: And that exceptional law made New York City the first

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Speaker 3: major US city to grant non citizens the right to

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Speaker 3: vote in municipal elections in January of twenty twenty two.

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Speaker 3: But the law, which was approved by the Democratic led

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Speaker 3: City Council, has never been implemented due to court challenges

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Speaker 3: my Republicans, and both a trial judge and a state

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Speaker 3: depelled court found that the law violated the state constitution.

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Speaker 3: This week, the seven judges on New York's highest court

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Speaker 3: heard arguments about whether to uphold the law. The focus

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Speaker 3: was on how to interpret specific constitutional language. For example,

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Speaker 3: what does the word citizen mean?

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Speaker 8: How do you define citizen under the Constitutionistics Now, could

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Speaker 8: the state allow my thirteen year old daughter and other

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Speaker 8: thirteen year olds to vote for governor in the next election.

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Speaker 6: Yes.

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Speaker 3: Joining me is immigration law expert Leon Fresco, a partner

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Speaker 3: at hollanden Knight. He was the head of the Office

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Speaker 3: of Immigration Litigation in the Obama administration. Lee and I

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Speaker 3: just want to start with some basics because we heard

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Speaker 3: Trump claim over and over and over again that non

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Speaker 3: citizens were voting in elections. So it is clearly illegal

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Speaker 3: for non citizens to vote in federal elections.

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Speaker 1: The RUL federal elections, it is illegal for a non

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Speaker 1: citizen to vote, and not only is that a crime

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Speaker 1: and a crime that gets prosecuted every now and then,

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Speaker 1: but it's also a ground for deportation. It's a question

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Speaker 1: that's asked in every immigration form and in every immigration

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Speaker 1: interview that somebody has for an immigration benefit, have you

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Speaker 1: ever unlawfully voted in a federal election. So it's actually

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Speaker 1: quite a serious thing that a person who's not a

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Speaker 1: citizen cannot vote in a federal election.

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Speaker 3: But cities and municipalities can allow non citizens to vote

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Speaker 3: in local elections, and eleven towns in Maryland and Vermont

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Speaker 3: do allow that.

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Speaker 1: They have theoretically the authority because elections are a state

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Speaker 1: run thing other than for federal election purposes, and so

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Speaker 1: a state or a locality, if a locality is permitted

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Speaker 1: to do so by a state, can theoretically allow a

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Speaker 1: person who is here who is not a US citizen

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Speaker 1: to vote in their own election, And it would just

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Speaker 1: be up to that state or that locality to do so.

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Speaker 3: So Leon tell us about this New York City law

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Speaker 3: that was passed back in twenty twenty two but never

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Speaker 3: went into effect.

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Speaker 1: So the New York City law says that if you

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Speaker 1: are a lawful permanent resident or even someone with a

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Speaker 1: lawful ability to work in the United States, meaning that

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Speaker 1: you actually have a work permit from US Citizenship and

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Speaker 1: Immigration Services, which is interesting because there are some statuses

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Speaker 1: which are very sort of tenuous statuses, like deferred action

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Speaker 1: and temporary Protected status, and so the idea of the

442
00:27:39,800 --> 00:27:42,560
Speaker 1: New York law is any of those people with work permits,

443
00:27:42,600 --> 00:27:46,640
Speaker 1: even with such TENUS statuses, would be allowed to vote. Now,

444
00:27:46,680 --> 00:27:50,920
Speaker 1: a purely undocumented person that is here illegally and has

445
00:27:51,119 --> 00:27:53,800
Speaker 1: no right to work of any kind would not be

446
00:27:53,880 --> 00:27:55,400
Speaker 1: allowed to vote under that law.

447
00:27:55,920 --> 00:27:58,440
Speaker 3: And you just have to be a lawful permanent resident

448
00:27:59,000 --> 00:28:02,399
Speaker 3: of the city for thirty days. So Republicans filed the

449
00:28:02,480 --> 00:28:05,440
Speaker 3: lawsuit to stop the law from going into effect.

450
00:28:05,880 --> 00:28:09,080
Speaker 1: So essentially what they're trying to say is that there

451
00:28:09,080 --> 00:28:11,280
Speaker 1: are a few problems with the law. First, that the

452
00:28:11,359 --> 00:28:16,600
Speaker 1: law violates the New York State Constitution, which actually says

453
00:28:16,720 --> 00:28:20,680
Speaker 1: that citizens are the individuals who are permitted to vote

454
00:28:20,760 --> 00:28:23,600
Speaker 1: in elections. Now there's fight about whether that meant New

455
00:28:23,680 --> 00:28:26,679
Speaker 1: York citizens or US citizens, and whether that's a floor

456
00:28:27,160 --> 00:28:30,119
Speaker 1: or a ceiling. But their argument is that if you

457
00:28:30,119 --> 00:28:33,520
Speaker 1: look at the New York State Constitution, that meant that

458
00:28:33,640 --> 00:28:36,600
Speaker 1: only US citizens are allowed to vote and nobody else.

459
00:28:36,640 --> 00:28:40,120
Speaker 1: That's their first argument, and then their second argument is

460
00:28:40,160 --> 00:28:43,920
Speaker 1: that allowing eight hundred thousand potential more people to vote

461
00:28:44,080 --> 00:28:47,080
Speaker 1: in the New York City election would actually dilute the

462
00:28:47,200 --> 00:28:51,120
Speaker 1: right to vote that the US citizens have in New York,

463
00:28:51,560 --> 00:28:55,200
Speaker 1: which would then violate the municipal home rule laws in

464
00:28:55,280 --> 00:28:56,120
Speaker 1: New York City.

465
00:28:56,440 --> 00:28:59,240
Speaker 3: I just want to note the specific language in the

466
00:28:59,320 --> 00:29:02,880
Speaker 3: state constitution that a lot of the Republican arguments are

467
00:29:02,920 --> 00:29:07,240
Speaker 3: focused on. It says, quote, every citizen shall be entitled

468
00:29:07,240 --> 00:29:11,360
Speaker 3: to vote at every election for all officers elected by

469
00:29:11,400 --> 00:29:15,280
Speaker 3: the people, and upon all questions submitted to the vote

470
00:29:15,320 --> 00:29:19,520
Speaker 3: of the people. That seems pretty clear every citizen right.

471
00:29:19,680 --> 00:29:24,440
Speaker 1: So the first argument is that is a floor of rights,

472
00:29:24,480 --> 00:29:30,320
Speaker 1: meaning that what the constitution is saying is, hey state legislator,

473
00:29:30,480 --> 00:29:34,400
Speaker 1: hey local legislators, you are not allowed to do anything

474
00:29:34,760 --> 00:29:38,720
Speaker 1: to diminish the right of a citizen to vote. In

475
00:29:38,760 --> 00:29:41,960
Speaker 1: an election, but it's not a ceiling, meaning that you

476
00:29:42,000 --> 00:29:45,440
Speaker 1: can add other people to this from that perspective, so

477
00:29:45,520 --> 00:29:48,760
Speaker 1: you could add non citizens to that. That's one argument,

478
00:29:49,440 --> 00:29:52,440
Speaker 1: and so the court in this oral argument was really

479
00:29:52,480 --> 00:29:55,200
Speaker 1: trying to ask the lawyers, hey, does that mean a

480
00:29:55,280 --> 00:29:57,760
Speaker 1: twelve year old or a thirteen year old can vote? Here?

481
00:29:58,040 --> 00:30:00,360
Speaker 1: Where does this thing go? I mean, does this really

482
00:30:00,400 --> 00:30:03,920
Speaker 1: mean what you're saying it means? And the Council for

483
00:30:04,000 --> 00:30:06,560
Speaker 1: New York City had to say yes, because if you're

484
00:30:06,600 --> 00:30:09,280
Speaker 1: arguing that this is a floor, then that means that

485
00:30:09,360 --> 00:30:12,800
Speaker 1: for a local election, the localities can add people and

486
00:30:12,840 --> 00:30:15,640
Speaker 1: there's no limit basically to what they could add in

487
00:30:15,640 --> 00:30:19,080
Speaker 1: that situation. So that's one side. Now the argument for

488
00:30:19,120 --> 00:30:22,320
Speaker 1: the people opposing that is to say no, no, no, no no.

489
00:30:22,560 --> 00:30:24,800
Speaker 1: If they wanted other kinds of people to vote, they

490
00:30:24,800 --> 00:30:28,040
Speaker 1: would have added them within this protection. So this is

491
00:30:28,080 --> 00:30:30,600
Speaker 1: not a floor. This is actually both the floor and

492
00:30:30,640 --> 00:30:34,400
Speaker 1: the ceiling, because it's just enumerting the people who could vote.

493
00:30:34,560 --> 00:30:38,520
Speaker 1: The other argument is because it says citizens and not

494
00:30:38,840 --> 00:30:43,400
Speaker 1: United States citizens, that this refers to a amorphous set of

495
00:30:43,480 --> 00:30:46,400
Speaker 1: New York citizens, who would basically be people who are

496
00:30:46,440 --> 00:30:49,440
Speaker 1: just in New York for thirty days. But I don't

497
00:30:49,480 --> 00:30:52,480
Speaker 1: think the court was willing to accept that argument, and

498
00:30:52,520 --> 00:30:56,440
Speaker 1: a very strong argument by the opponents of this New

499
00:30:56,520 --> 00:30:59,200
Speaker 1: York law said, look, if this really had meant New

500
00:30:59,280 --> 00:31:02,720
Speaker 1: York citizen and not US citizens, and for the last

501
00:31:02,720 --> 00:31:05,480
Speaker 1: one hundred or so years, there's been people who have

502
00:31:05,520 --> 00:31:08,800
Speaker 1: been disenfranchised, who we've not allowed to vote, who were

503
00:31:08,880 --> 00:31:11,480
Speaker 1: constitutionally permitted to vote.

504
00:31:11,680 --> 00:31:13,600
Speaker 3: And for anyone who thought this was going to be

505
00:31:13,800 --> 00:31:17,680
Speaker 3: kind of a raw, raw argument about why non citizens

506
00:31:17,680 --> 00:31:21,040
Speaker 3: should be allowed to vote, it was nothing like that.

507
00:31:21,200 --> 00:31:24,960
Speaker 3: It was so technical. I mean, they were parsing words

508
00:31:25,120 --> 00:31:28,680
Speaker 3: talking about the meaning of, for example, method correct.

509
00:31:28,760 --> 00:31:32,080
Speaker 1: I think one they really wanted to avoid the sense

510
00:31:32,440 --> 00:31:36,680
Speaker 1: that there was any political agenda behind their decision making process.

511
00:31:36,840 --> 00:31:40,400
Speaker 1: So they really tried to approach this everybody, to their credit,

512
00:31:40,480 --> 00:31:43,560
Speaker 1: from all the arguments and from all of the justices,

513
00:31:44,080 --> 00:31:49,800
Speaker 1: to the real of the dictionary and of the interpretation,

514
00:31:50,360 --> 00:31:52,800
Speaker 1: rather than in the realm of the political and as

515
00:31:52,840 --> 00:31:56,080
Speaker 1: you know, making equitable arguments about why this is right.

516
00:31:56,480 --> 00:31:59,160
Speaker 1: You know, why immigrants paid taxes, they should be allowed

517
00:31:59,200 --> 00:32:02,280
Speaker 1: to vote. None of that really was part of this.

518
00:32:02,760 --> 00:32:05,240
Speaker 1: And so from that perspective, it's really going to come

519
00:32:05,320 --> 00:32:08,600
Speaker 1: down to, well, what did the drafters of the New

520
00:32:08,680 --> 00:32:12,280
Speaker 1: York Constitution actually intend? Which is really what it should

521
00:32:12,280 --> 00:32:13,959
Speaker 1: come down to at the end of the day, because

522
00:32:14,200 --> 00:32:16,719
Speaker 1: that's the job of the court is, here's a New

523
00:32:16,800 --> 00:32:20,320
Speaker 1: York Constitution, here are the words. What did the people

524
00:32:20,320 --> 00:32:23,600
Speaker 1: who wrote those words intended to mean when they wrote

525
00:32:23,640 --> 00:32:24,280
Speaker 1: those words?

526
00:32:24,560 --> 00:32:27,240
Speaker 3: And leon, we agree that's for the court to decide,

527
00:32:27,320 --> 00:32:30,320
Speaker 3: right whereas one of the lawyers arguing in favor of

528
00:32:30,360 --> 00:32:33,160
Speaker 3: the law seem to want to take that decision away

529
00:32:33,160 --> 00:32:34,000
Speaker 3: from the judges.

530
00:32:34,640 --> 00:32:37,280
Speaker 1: This is a problem that the people defending the New

531
00:32:37,360 --> 00:32:40,200
Speaker 1: York City law were having in this argument was they

532
00:32:40,280 --> 00:32:43,960
Speaker 1: kept saying, who gets to decide what the word citizen means?

533
00:32:44,640 --> 00:32:48,480
Speaker 1: And they were saying that either the state legislature could

534
00:32:48,520 --> 00:32:50,880
Speaker 1: decide it or the city could decide it. And the

535
00:32:50,920 --> 00:32:54,160
Speaker 1: court was saying, well, can't we decided? And aren't we

536
00:32:54,240 --> 00:32:55,960
Speaker 1: the court? Aren't we the one who are supposed to

537
00:32:56,000 --> 00:32:58,360
Speaker 1: make the actual decision about what the words of the

538
00:32:58,400 --> 00:33:01,960
Speaker 1: constitution mean? And so then there was this debate about, well,

539
00:33:02,000 --> 00:33:03,920
Speaker 1: maybe it should be put up for the voters.

540
00:33:04,080 --> 00:33:07,600
Speaker 3: Yeah, I just want to play that interchange because it

541
00:33:07,760 --> 00:33:10,520
Speaker 3: was kind of amusing where the judges were saying, but

542
00:33:11,000 --> 00:33:12,240
Speaker 3: that's our role, isn't it.

543
00:33:12,640 --> 00:33:15,640
Speaker 8: What definition would you ask this court to give? I

544
00:33:15,680 --> 00:33:17,840
Speaker 8: would say that the legislature is in the best position

545
00:33:17,920 --> 00:33:20,760
Speaker 8: to define a citizen because it is ambiguous. And the

546
00:33:20,800 --> 00:33:22,440
Speaker 8: reasons why are because.

547
00:33:22,480 --> 00:33:25,719
Speaker 2: The state how can the legislation legislature do that?

548
00:33:25,800 --> 00:33:27,200
Speaker 7: This is a constitutional provision.

549
00:33:27,760 --> 00:33:30,560
Speaker 8: So there's a constitutional provision with an ambiguous term, and

550
00:33:30,600 --> 00:33:33,320
Speaker 8: there's not enough evidence before this court to support a

551
00:33:33,400 --> 00:33:35,000
Speaker 8: more restrictive or a broader reading.

552
00:33:35,120 --> 00:33:38,280
Speaker 4: Isn't that our role to determine what this language is.

553
00:33:38,240 --> 00:33:40,720
Speaker 8: Where there is sufficient evidence to support one reading.

554
00:33:40,520 --> 00:33:43,200
Speaker 6: On Otherwise it just goes to the legislature to determine

555
00:33:43,240 --> 00:33:44,720
Speaker 6: what the state constitution means.

556
00:33:45,240 --> 00:33:47,800
Speaker 1: I think where the court is going to decide here

557
00:33:47,960 --> 00:33:51,320
Speaker 1: is look, unless the constitution is amended, which it can

558
00:33:51,360 --> 00:33:54,400
Speaker 1: always be amended, we are going to decide what the

559
00:33:54,440 --> 00:33:59,360
Speaker 1: constitution means. And while it is unclear whether they will

560
00:33:59,400 --> 00:34:03,400
Speaker 1: decide that the constitution sets the floor or whether they

561
00:34:03,400 --> 00:34:06,480
Speaker 1: will decide that the constitution actually sets a floor and

562
00:34:06,520 --> 00:34:09,879
Speaker 1: a ceiling, they're not going to say that this needs

563
00:34:09,920 --> 00:34:12,360
Speaker 1: to be decided by a referendum, except to the extent

564
00:34:12,480 --> 00:34:14,760
Speaker 1: that they are saying, look, if you want to change

565
00:34:14,760 --> 00:34:19,000
Speaker 1: our ruling, have a referendum and decide to change the constitution.

566
00:34:19,640 --> 00:34:22,120
Speaker 3: So after listening to the oral arguments, do you have

567
00:34:22,160 --> 00:34:24,239
Speaker 3: a feel for which way the court might go?

568
00:34:24,520 --> 00:34:27,279
Speaker 1: It seems very difficult to try to pin the court

569
00:34:27,400 --> 00:34:30,239
Speaker 1: down as to where they were headed here. I mean,

570
00:34:30,640 --> 00:34:32,719
Speaker 1: at the end of the day, there seemed to be

571
00:34:33,200 --> 00:34:37,000
Speaker 1: at least one judge on each side where it was

572
00:34:37,080 --> 00:34:39,200
Speaker 1: clear that they had at least one judge that was

573
00:34:39,280 --> 00:34:41,560
Speaker 1: going to vote in favor of the New York law,

574
00:34:41,880 --> 00:34:45,080
Speaker 1: and there was one judge who seemed particularly hostile to

575
00:34:45,320 --> 00:34:47,840
Speaker 1: the New York law, But that leaves five other judges.

576
00:34:48,440 --> 00:34:53,160
Speaker 1: I don't think given the potential implications of this, which

577
00:34:53,200 --> 00:34:55,800
Speaker 1: is that if you vote for this, then you're basically

578
00:34:55,920 --> 00:34:59,600
Speaker 1: leaving the localities to again let twelve year olds vote

579
00:34:59,600 --> 00:35:02,640
Speaker 1: and let you know, all kinds of other people vote

580
00:35:02,640 --> 00:35:06,320
Speaker 1: that wouldn't necessarily be allowed to vote normally in an election,

581
00:35:06,960 --> 00:35:09,000
Speaker 1: that I don't think they're going to want to open

582
00:35:09,080 --> 00:35:11,600
Speaker 1: up the floodgates in this manner, But we'll have to

583
00:35:11,600 --> 00:35:12,279
Speaker 1: wait and see.

584
00:35:12,680 --> 00:35:14,880
Speaker 3: Would you say that it would be more of a

585
00:35:15,000 --> 00:35:17,799
Speaker 3: novel ruling and they would have to go sort of

586
00:35:17,880 --> 00:35:21,520
Speaker 3: outside the box to uphol this law. In other words,

587
00:35:21,520 --> 00:35:23,759
Speaker 3: it would be easier to strike it down.

588
00:35:23,960 --> 00:35:27,279
Speaker 1: Correct, you'd have to do much more verbal gymnastics in

589
00:35:27,400 --> 00:35:31,360
Speaker 1: order to say that the non US citizens could vote

590
00:35:31,760 --> 00:35:35,319
Speaker 1: in the New York City elections, that you would just

591
00:35:35,360 --> 00:35:38,239
Speaker 1: to affirm the principle that the New York Constitution meant

592
00:35:38,640 --> 00:35:41,200
Speaker 1: that only US citizens could vote. You would have to

593
00:35:41,200 --> 00:35:45,560
Speaker 1: make the machination that all of these qualifications that were

594
00:35:45,560 --> 00:35:48,160
Speaker 1: put in were meant to be a floor, but that

595
00:35:48,440 --> 00:35:52,520
Speaker 1: localities could add more people. And then the question would be, well,

596
00:35:52,600 --> 00:35:55,279
Speaker 1: why why would the constitution of the State of New

597
00:35:55,360 --> 00:36:00,440
Speaker 1: York wanted to have had an ability for state election

598
00:36:00,800 --> 00:36:05,320
Speaker 1: to only be US citizens but somehow incorporate this principle

599
00:36:05,360 --> 00:36:09,000
Speaker 1: that localities could add more kinds of voters that can't

600
00:36:09,080 --> 00:36:12,000
Speaker 1: voted the state elections. But there is where I think

601
00:36:12,160 --> 00:36:14,480
Speaker 1: there really wasn't a good job of trying to explain

602
00:36:14,920 --> 00:36:18,040
Speaker 1: why would that be? Was that even contemplated, And if

603
00:36:18,080 --> 00:36:20,719
Speaker 1: it was, why would it have been that they would

604
00:36:20,719 --> 00:36:23,640
Speaker 1: have wanted different pools of people voting in the local

605
00:36:23,680 --> 00:36:25,320
Speaker 1: elections than in the state election.

606
00:36:25,719 --> 00:36:28,760
Speaker 3: Yeah, it seems like the law faces and uphill battle

607
00:36:29,080 --> 00:36:31,799
Speaker 3: Thanks so much Leon for being on the show. That's

608
00:36:31,920 --> 00:36:35,000
Speaker 3: Leon Fresco of Holland and Knight. And that's it for

609
00:36:35,040 --> 00:36:37,680
Speaker 3: this edition of The Bloomberg Law Show. Remember you can

610
00:36:37,719 --> 00:36:40,960
Speaker 3: always get the latest legal news on our Bloomberg Law Podcast.

611
00:36:41,239 --> 00:36:44,239
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

612
00:36:44,400 --> 00:36:49,440
Speaker 3: www dot bloomberg dot com, slash podcast Slash Law, and

613
00:36:49,520 --> 00:36:52,560
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

614
00:36:52,680 --> 00:36:56,120
Speaker 3: at ten pm Wall Street Time. I'm Jim Grosso and

615
00:36:56,160 --> 00:36:57,640
Speaker 3: you're listening to Bloomberg