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Speaker 1: When then Georgetown law professor David Cole was tapped last

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Speaker 1: summer to be the next national Legal director of the

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Speaker 1: American Civil Liberties Union, it looked to most of the

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Speaker 1: world that Hillary Clinton would be the next president. Well,

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Speaker 1: Cole's job description changed rather dramatically on election Day. Within days,

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Speaker 1: the a c o YOU was telling Donald Trump, see

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Speaker 1: you in court. And that's exactly where the a c

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Speaker 1: o U has been since Cole took over the job

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Speaker 1: eleven days before Trump's inauguration. David Cole is with us

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Speaker 1: today on Bloomberg Law. David, thanks very much for joining us.

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Speaker 1: Delited to be here. Let me start with one of

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Speaker 1: the pressing legal issues of the day, which is the

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Speaker 1: implementation of the travel ban after the Supreme Court action

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Speaker 1: this week Hawaii. You were one of the groups that

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Speaker 1: challenged the band. Hawaii, which also also challenged it, has

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Speaker 1: gone to court to say to seek a new court order.

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Speaker 1: Um to say that the Trump administration is not abiding

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Speaker 1: by the Supreme Court decision. Is the a c L

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Speaker 1: You're going to do the same thing. Well, we've been

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Speaker 1: coordinate with the Hawaii team and we are filing something

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Speaker 1: in the Hawaii court today. Um uh seems to make sense,

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Speaker 1: at least at this point, to have it, uh, you know,

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Speaker 1: have it clarified in one court. It's the same set

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Speaker 1: of issues. But we're very concerned with how the Trump

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Speaker 1: administration has interpreted the Supreme Court's uh decision, which said

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Speaker 1: that any foreign national who has a family relationship or

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Speaker 1: any relationship with a business or entity in the United

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Speaker 1: States that is formal documented and you know, in the

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Speaker 1: ordinary course of business cannot be subject to the travel band.

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Speaker 1: And yet the Trump administration yesterday rolled out a program

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Speaker 1: in which they say, well, yeah, we recognize that for

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Speaker 1: you know, for fathers, mothers, fathers in law, mothers in law, sons, daughters,

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Speaker 1: not grandparents, not un it's not uncle's. Initially, that not fiance's. Um.

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Speaker 1: Even though we had we had a fiance in our

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Speaker 1: case and the court said relationships like this ought to

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Speaker 1: be protected. Um, they reversed themselves on the fiance, but

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Speaker 1: there's at this point they're still holding the line, I'm

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Speaker 1: refusing to grant this recognition to grandparents, grandchildren and the like.

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Speaker 1: So uh yeah. So, so Hawaii went back into court

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Speaker 1: for essentially the clarification from the court of what it

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Speaker 1: means to have a close relationship with a family member

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Speaker 1: or an entity of business in the United States. David

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Speaker 1: looking at immigration policy more broadly, State officials from ten

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Speaker 1: states sent a letter to Jeff Sessions urging the Trump

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Speaker 1: administration to end the Deferred Action for Childhood Arrivals program,

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Speaker 1: saying that they would then dismiss the current lawsuit against

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Speaker 1: the program. What is the A c L you doing

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Speaker 1: as far as DOCCA and Dreamers. So we are defending

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Speaker 1: DOCTA folks wherever they get they get into trouble. We

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Speaker 1: had a case in in uh in Georgia just about

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Speaker 1: three weeks ago where a DOCTA recipient was put into

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Speaker 1: deportation seas and we went immediately went into federal court

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Speaker 1: and got the got the deportation case dismissed against her.

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Speaker 1: We're advocating, you know, in in the in the in

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Speaker 1: the public arena on behalf of Dreamers. And you know,

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Speaker 1: thus far the Trump administration has not, with the exception

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Speaker 1: of isolated instances, has not gone after DOCA, It hasn't

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Speaker 1: ended the DOCTA program. It is continuing to you know,

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Speaker 1: re up DOCTA recipients. And I think they recognize that

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Speaker 1: this would be politically. Uh, you know, not very advantageous

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Speaker 1: to them to be going after kids, innocent kids who

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Speaker 1: were who were brought here by their parents. But we're

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Speaker 1: not are not responsible in our in our you know,

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Speaker 1: serious important members of our of our community today. So

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Speaker 1: we'll see, uh, you know, if if he seeks to

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Speaker 1: undermine DOCCA, will will challenge him there and where they

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Speaker 1: have gone after individual doctor people, We've sought to defend them. David.

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Speaker 1: I find it very interesting the the overlap between the

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Speaker 1: DOCCA issue and the travel band because both have to

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Speaker 1: do with how much discretion the president has over over

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Speaker 1: the border and immigration policy. I do want to ask

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Speaker 1: you one more travel band related question. So, Um, after

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Speaker 1: the ruling, you you tweeted um that that on the

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Speaker 1: merits of that issue, it's not quote, not looking good

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Speaker 1: for president Um. Justice Thomas seemed to suggest something very

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Speaker 1: different when the court ruled this week. He he suggested

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Speaker 1: that a majority of the court fact said, uh, that

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Speaker 1: the court found that the government or or implied that

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Speaker 1: the government was likely to win win the case on

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Speaker 1: the merits. Is he wrong about that? How? Absolutely? And

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Speaker 1: it's interesting that you know it's true. Justice Thomas said

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Speaker 1: that in a separate opinion joined by Justices Alito and Thomas,

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Speaker 1: Justice is Aldo and Gorsuch, but no other justice joined

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Speaker 1: that opinion. And if you read the procur procurium opinion,

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Speaker 1: the opinion for the Court, they very carefully avoid addressing

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Speaker 1: whether the plaintiffs are likely to succeed on the merits

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Speaker 1: or whether the government is likely to succeed on the merits.

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Speaker 1: They essentially did not um. They didn't really signal one

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Speaker 1: way or the other. Some people and I was tweeting

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Speaker 1: an article by a Marty Liederman, a law professor at

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Speaker 1: Georgetown who is a major commentator on constitutional issues, and

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Speaker 1: he was he was making the argument that if you

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Speaker 1: if you look at what they did, this is the

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Speaker 1: President United States coming into the court and saying to

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Speaker 1: the court, these these lower courts have struck on a

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Speaker 1: national security immigration measure in an area where I have

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Speaker 1: essentially plenary power. David, A moment ago, I had to

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Speaker 1: cut you off when we were talking about the travel band.

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Speaker 1: You were explaining why you don't see what the Supreme

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Speaker 1: Court did uh this week as being a signed that

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Speaker 1: ultimately it will rule in favor of Donald Trump on

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Speaker 1: the travel ban. Maybe I could ask you to briefly

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Speaker 1: finish what you were saying there. Yeah, Yeah, I think

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Speaker 1: the bottom line is, look, the court upheld the injunction

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Speaker 1: with respect to anyone with a connection to the United States,

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Speaker 1: which which are all the plaintiffs in the case. Is

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Speaker 1: that these cases were brought by US based people or

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Speaker 1: US based entities that had connections to foreign nationals abroad.

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Speaker 1: And so the core if the court thought that this

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Speaker 1: injunction was completely illegitimate and interfered with President Trump's afford

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Speaker 1: lawful authority, why would they leave it in place for

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Speaker 1: all the plaintiffs in the lawsuit? If I couldn't, I

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Speaker 1: want to ask step back, ask you a bigger picture question. Um,

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Speaker 1: as you look back on your your time at the

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Speaker 1: s l U, what do you see right now as

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Speaker 1: the biggest threat to civil liberties in this country? Well,

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Speaker 1: I think the answer to that is President Donald Trump,

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Speaker 1: uh And maybe the second answer would be Attorney General

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Speaker 1: Jeff Sessions. You know that Donald Trump has shown really

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Speaker 1: very little, uh respect for in some instances, very little

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Speaker 1: understanding of basic rules that govern and protect us as Americans.

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Speaker 1: So you know, as a as a president elect, he

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Speaker 1: he tweeted the flag burners should be uh should be

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Speaker 1: jailed and should have their citizenship stripped. And that was

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Speaker 1: remarkable because in a single character tweet he proposed to

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Speaker 1: clearly unconstitutional actions. The Supreme Court is that you can't

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Speaker 1: punish people for burning the flag. It's first known protected speech.

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Speaker 1: And you can't take people's citizenship away from them, no

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Speaker 1: matter how heinously they act, it's just not a permissible act.

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Speaker 1: He has attacked the press, UH, called them the enemy

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Speaker 1: of the of the people. He's doing everything he can

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Speaker 1: to undermine essentially the fourth State, which performs a critical

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Speaker 1: function in checking UH government. He has gone after immigrants

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Speaker 1: in a way that condemns a particular religion, UH, something

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Speaker 1: that is clearly unconstitutional, and then establishment cause and that's

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Speaker 1: the principal reason that the courts have ruled against him.

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Speaker 1: He has been utterly dismissive of the role of courts,

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Speaker 1: calling the first judge who enjoined his travel ban a

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Speaker 1: a so called judge. So, you know, I think, Uh,

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Speaker 1: this is a this is a time when civil rights

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Speaker 1: and civilities are really very much under attack. But the

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Speaker 1: positive side is that I think Americans understand that Americans

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Speaker 1: have come forward in in ways that I've never seen,

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Speaker 1: frankly never seen in my career as a as a

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Speaker 1: constitutional lawyer in defense of liberty and at the end

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Speaker 1: of the day, because we are a democracy. Uh, that's

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Speaker 1: that's where our salvation live. Well, the a c l

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Speaker 1: U along that line has been breaking records as far

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Speaker 1: as donations since Trump became president. Where are you now

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Speaker 1: with donations and what are your plans for those extra funds?

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Speaker 1: So yeah, donations and membership. I tell people, you know,

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Speaker 1: before I started working for the h l U in January,

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Speaker 1: we had fourner and twenty five thousand members. Today we

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Speaker 1: have over one point six million members. Now that's not

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Speaker 1: I can't really claim credit for that. I think Donald

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Speaker 1: Trump can claim credit for that. M But that's a

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Speaker 1: tremendous uh, showing of force of American citizens banding together

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Speaker 1: around the the organization that has defended civil liberties the

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Speaker 1: longest in the United States to help stand up against

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Speaker 1: Donald Trump. They've also given made donations online donations. We've

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Speaker 1: had online donations that we've never seen before. Uh, and

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Speaker 1: we are um uh suspending those in defense of liberty.

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Speaker 1: So we are expanding our Immigrants Rights Project, We're expanding

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Speaker 1: our Voting Rights project, we're expanding our reproductive freedom project,

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Speaker 1: and we are also um put pushing out a lot

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Speaker 1: of that those resources to our affiliates. We have a

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Speaker 1: national office of about a hundred lawyers, but we also

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Speaker 1: have two hundred lawyers spread out across the country in affiliates.

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Speaker 1: Every state essentially has an a c l U affiliate

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Speaker 1: of Illinois, of Oregon, etcetera. And we are building their

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Speaker 1: capacity because the threats don't just come from Washington. The

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Speaker 1: threats also come from those who have been inspired by

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Speaker 1: Donald Trump's election to for example, seek to suppress uh

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Speaker 1: of voting, or to seek to put new restrictions on

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Speaker 1: reproductive free or takeaway protections for uh LGBT folks. So

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Speaker 1: so you know, we're we're as busy as we've ever been.

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Speaker 1: We're building our capacity to do that. We're still, of course,

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Speaker 1: way out numbered and weigh out finance and by the

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Speaker 1: Trump administration, by the Justice Department, which has you know,

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Speaker 1: thousands of lawyers, um but we're doing what we can. David,

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Speaker 1: There's so many things I'd love to ask you about,

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Speaker 1: but one thing I really want to get at is

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Speaker 1: religious rights, which has been so much of an issue

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Speaker 1: in the courts these days and the tension that we

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Speaker 1: seem to be having between religious rights and other rights

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Speaker 1: like reproductive and gay rights. And there's this new case

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Speaker 1: at the Supreme Court called Masterpiece Cake Shop where you

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Speaker 1: have a Colorado baker who says he has a religious

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Speaker 1: and he says an expressive objection to making cakes for

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Speaker 1: same sex weddings. How do you strike that balance between

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Speaker 1: those those two different rights that I know you care

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Speaker 1: about religious rights on one hand and and gay rights

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Speaker 1: on the other right, So we defend religious freedom. We

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Speaker 1: have a religious freedom project. We are often uh defending

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Speaker 1: all you know, religions of all sects who have been

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Speaker 1: targeted for for for treatment that interferes with their ability

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Speaker 1: to exercise their religion. But we also defend the rights

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Speaker 1: of LGBT folks and women and the like. And this

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Speaker 1: is this is where we draw the line. Your right

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Speaker 1: to exercise your religion uh is full and should be

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Speaker 1: protected up to the point where you are inflicting harm

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Speaker 1: on a third party. When you start inflicting harm on

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Speaker 1: a third party, when you start engaging in discriminatory action,

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Speaker 1: which is what the Colorado case is about, that's no

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Speaker 1: longer within religious freedom. So religious freedom up to the

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Speaker 1: point that you heard others did this. So did the

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Speaker 1: so called Playground case in the Supreme Court decided recently

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Speaker 1: weaken the separation between church and state. You have about

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Speaker 1: thirty seconds, David, Well, it's the first time in history

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Speaker 1: that the Court has required a state to give direct

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Speaker 1: financial support to a religious institition. So yes, it definitely

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Speaker 1: watered down the separation of church and state. I want

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Speaker 1: to thank our guests. That's David Cole. He's the National

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Speaker 1: Legal director of the American Civil Liberties Union. Took took

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Speaker 1: over that job just about the time Donald Trump Trump

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Speaker 1: took over his and he has been very busy. Thank

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