Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: There's something centers to going on here. There's something bigger
Speaker 2: than just the FBI confiscating the records that.
Speaker 3: They took, and Fulton County Chairman Rob Pitts says the
Speaker 3: county wants the twenty twenty election files that the FBI
Speaker 3: sees last week back. They're asking a federal court to
Speaker 3: order the FBI to return the seven hundred boxes of ballots,
Speaker 3: voter rolls, and other election records, calling the county the
Speaker 3: poster child for further federal action on elections elsewhere in
Speaker 3: the country.
Speaker 2: This is I think probably the first step in whatever
Speaker 2: they're going to do in order to depress voter participation,
Speaker 2: voter registration, making whatever changes they think are necessary to
Speaker 2: help their case in twenty twenty six, but more importantly
Speaker 2: in twenty twenty eight.
Speaker 3: As President Trump is doubling down on his calls to
Speaker 3: nationalize elections.
Speaker 4: I wouldn't see elections be honest, and if a state
Speaker 4: can't run an election, I think the people behind me
Speaker 4: should do something about it.
Speaker 3: Of Course, the Constitution gives the authority to administer elections
Speaker 3: to the states. My guest is Barbara McQuaid, a professor
Speaker 3: at the University of Michigan Law School and a former
Speaker 3: US attorney. Barbara, why do you think the FBI sees
Speaker 3: those hundreds of boxes of ballots and voter rolls and
Speaker 3: other election records from the twenty twenty presidential election.
Speaker 5: It's unknown, of course, but we have some hints.
Speaker 6: I mean, one is they got a search for it,
Speaker 6: which means a magistrate judge found probable cause to believe
Speaker 6: that evidence of a crime would be found there. And
Speaker 6: we know from the public filing that what they obtained
Speaker 6: were ballots, tabulation tapes, and voter roles. Now, twenty twenty
Speaker 6: is six years ago, and so it would seem that
Speaker 6: anything that occurred during that year would be time barred
Speaker 6: by the five year statute of limitations. But of course
Speaker 6: that's not something that a magistrate judge had taken into
Speaker 6: consideration at that stage. Perhaps there's some allegation of an
Speaker 6: ongoing conspiracy that could keep that allegation fresh.
Speaker 5: I don't know.
Speaker 6: But also you can't ignore the simultaneous civil request that
Speaker 6: Trump's doj has been making to try to get voter
Speaker 6: rolls from a number of states, including Georgia. They have
Speaker 6: failed in states where decisions have been made, like California
Speaker 6: and Oregon, where judges have said no.
Speaker 5: The federal government is not entitled to this stuff.
Speaker 6: So are they simply using criminal process to get that
Speaker 6: which they could not obtain otherwise. But the fact that
Speaker 6: a magistrate found probable cause suggests.
Speaker 5: That there is more information there than we currently know.
Speaker 3: The prosecutor who sought the warrant was not the US
Speaker 3: attorney in Atlanta, but the Saint Louis US Attorney, Thomas Albus.
Speaker 3: So he's been appointed to oversee this. I don't know
Speaker 3: if they're calling it election integrity, what they're calling it.
Speaker 5: Yeah, it's really unusual, but not illegal.
Speaker 6: I mean, so much of what the Trump administration does
Speaker 6: is technically lawful, but either unusual or you know, discretion
Speaker 6: you'd rather see someone not exercise. I suppose ordinarily you
Speaker 6: would expect the US Attorney from the Northern District of
Speaker 6: Georgia to oversee any search conducted within his jurisdiction. That's
Speaker 6: the way it's done in ninety nine point nine percent
Speaker 6: of the cases. The Attorney General does, however, have the
Speaker 6: authority to appoint a special attorney to investigate any matters
Speaker 6: that she chooses, and we've seen this done over the years.
Speaker 6: For example, Pat Fitzgerald, who was the US attorney in
Speaker 6: Chicago at the time, handled the Scooter Libby case. I
Speaker 6: think that was effort to just sort of get it
Speaker 6: out of Washington so that it wouldn't have the stench
Speaker 6: of politics. I know that Anne Tompkins out of North
Speaker 6: Carolina handled the prosecution of General Petraeus. For example, John Durham,
Speaker 6: before he was the special counsel looking at the origins
Speaker 6: of the Russia investigation, actually investigated CIA torture.
Speaker 5: At one time, So it's not unprecedented.
Speaker 6: It's often in sort of politically charged cases where the
Speaker 6: Attorney General may appoint somebody outside of Washington who's a
Speaker 6: US attorney or it doesn't have to be to handle
Speaker 6: maybe sensitive cases. And I think it's especially true if
Speaker 6: the case might transcend the boundaries of.
Speaker 5: A particular judicial district.
Speaker 6: So maybe this case is going to include not just Georgia,
Speaker 6: but some other states, so that might make some sense.
Speaker 6: I worry a little bit about I don't know Thomas Albis,
Speaker 6: but I do know that.
Speaker 5: He comes from Missouri.
Speaker 6: He has been the top deputy to former attorney general
Speaker 6: in Missouri named Eric Schmidt. Eric Schmidt joined in the
Speaker 6: lawsuit with Texas Attorney General Ken Paxton when they tried
Speaker 6: to file a direct lawsuit to the Supreme Court to
Speaker 6: challenge the outcome of election results in several states during
Speaker 6: the twenty twenty election. So he's got sort of the
Speaker 6: association with election deniers that causes me some concern.
Speaker 3: In your latest column for Bloomberg, you compared it to
Speaker 3: the appointment of Lindsay Halligan as US Attorney for the
Speaker 3: Eastern District of Virginia. She's the Trump loyalist with no
Speaker 3: prosecutorial experience who was put in place to get indictments
Speaker 3: against James Comey and Letitia James, indictments which were later dismissed.
Speaker 3: Is she still hanging in there?
Speaker 5: She finally resigned yep, and went on her way.
Speaker 4: Yeah.
Speaker 6: You know, this is not quite as irregular as that
Speaker 6: that was clearly legally invalid.
Speaker 5: Courts found that threw it out. This is legally.
Speaker 6: Valid, but it does have sort of the appearance at
Speaker 6: least the whiff of You remember, her predecessor was a
Speaker 6: guy named Eric Siebert, who said I'm not going to
Speaker 6: indict Jim Comey and Letitia James, and he got fired
Speaker 6: for it. And in twenty twenty, there was a different
Speaker 6: US attorney Trump appointed in the Northern District of Georgia
Speaker 6: by the name of b. J.
Speaker 5: Pack and he resigned.
Speaker 6: In December of twenty twenty when Trump started asking Brad Raffensberger,
Speaker 6: the Secretary of State there, to find me eleven seven
Speaker 6: hundred and eighty votes. So you wonder if it isn't
Speaker 6: the case that these US attorneys who've got backgrounds as
Speaker 6: federal prosecutors. As the current US attorney there in Northern Georgia,
Speaker 6: does I think his name is Hertzberger? You know, he's
Speaker 6: a career a USA. But Trump's not going to make
Speaker 6: the same mistake twice, right, He's going to make sure
Speaker 6: he's got somebody he can trust that Pam Bondy has
Speaker 6: handpicked to handle this very sensitive operation as opposed to
Speaker 6: the person.
Speaker 5: Who would ordinarily assign this case too.
Speaker 6: So that's all I meant by Lindsay Halligan. You know,
Speaker 6: the Trump appointed US attorney not willing to play ball,
Speaker 6: and so let's bring in the specialist from outside who
Speaker 6: will do Trump's bidding. Kind of has the whiff of
Speaker 6: that though, you know, certainly the appointment itself appears to
Speaker 6: be legal.
Speaker 3: And actually the special Agent in charge of the Atlanta
Speaker 3: Field Office resigned from his post about a week before
Speaker 3: the agent served the war and there was no public explanation.
Speaker 6: Yeah, that's another, you know, red flag, I suppose, And
Speaker 6: I don't know whether he resigned or was fired, and
Speaker 6: I don't know why he left. I know cash PTTEL
Speaker 6: has been firing agents who had anything to do with
Speaker 6: either the Trump investigations or the January sixth investigations, which
Speaker 6: itself is improper.
Speaker 5: There's no allegation that engaged in enimous conduct. They just
Speaker 5: don't like the cases that they worked on.
Speaker 6: I don't know why. But again, that would be another
Speaker 6: safeguard there. The Special Agent in charge of the FBI
Speaker 6: runs the FBI office in Atlanta. That office was tasked
Speaker 6: with conducting this search, and so the special Agent in
Speaker 6: charge would be someone who'd be in a position to
Speaker 6: push back and say, no, we're not going to do this.
Speaker 5: I don't think it's lawful.
Speaker 6: I don't think it's an appropriate use of our power,
Speaker 6: or at least let's talk about this and the fact
Speaker 6: that he was either fired or resigned again. Is just
Speaker 6: one more red flag and another irregularity among many.
Speaker 3: Fulton County is suing to get the records back, but
Speaker 3: they say they won't be able to verify that they've
Speaker 3: received everything back because one, typically they're given copies of
Speaker 3: the records, but this time they weren't given copies. And two,
Speaker 3: there was no chain of custody inventory taken at the
Speaker 3: time the records were seized.
Speaker 5: Oh what a mess. I didn't know that.
Speaker 6: So, you know, the chaos of the Trump administration never
Speaker 6: ceases to amaze me. I mean, of course, ordinarily, when
Speaker 6: the FBI conducts a search, there is a whole protocol
Speaker 6: for how that's done. They get training at Quantico for
Speaker 6: how to do this. There is an agent who leads
Speaker 6: the search, and then there are other agents assigned to
Speaker 6: the search. They assign various agents, at least two to every.
Speaker 5: Room that gets searched.
Speaker 6: When there are computers involved, they track what it is
Speaker 6: they're taking or whether they're just copying it, and documenting
Speaker 6: that carefully is critically important, number one, so that everybody
Speaker 6: knows what was taken, so the rightful owner of the
Speaker 6: property kind of requested back. But also if you're going
Speaker 6: to use this at evidence at trial. You have to
Speaker 6: authenticate it and show that chain of custody so that
Speaker 6: the jury knows this isn't something that you just manufactured
Speaker 6: once you got back to the FBI office, that you
Speaker 6: can have a witness testify. I am the one who
Speaker 6: showed up at the Fulton County Election office on such
Speaker 6: and such day.
Speaker 5: I took this document into.
Speaker 6: My hands, or I copied it from a computer or
Speaker 6: whatever it was. I put my initials on it. I
Speaker 6: put it in an evidence bag. I labeled the drive
Speaker 6: whatever it is, so that that chain of custody can
Speaker 6: be retrieved at trial. It makes me wonder whether they're
Speaker 6: obtaining this evidence not so much for any future criminal case,
Speaker 6: but for some other purpose.
Speaker 5: I don't know what that purpose would be.
Speaker 3: It seems to be in line with the Justice Department
Speaker 3: suing twenty four states to try to get not only
Speaker 3: names and addresses, but voter birth dates and drivers license
Speaker 3: information and partial social Security numbers. And I've been wondering
Speaker 3: what they need or want all this information for.
Speaker 5: Yeah, there's been some speculation. You know, I don't think
Speaker 5: we know.
Speaker 6: I don't think the Trump administration has said so, but
Speaker 6: some of the speculation is one to undermine public confidence
Speaker 6: in the twenty twenty City midterms.
Speaker 5: Two to identify.
Speaker 6: People who are not valid voters. You know, they're dead
Speaker 6: or they're non citizens. Fine, I mean people shouldn't be
Speaker 6: voting if they are not eligible to vote. But also
Speaker 6: to obtain private data to conduct influence campaigns. We know
Speaker 6: in twenty sixteen Steve Bannon found at Cambridge Analytica and
Speaker 6: started doing some of this analytical work. You know, in
Speaker 6: the same way Netflix will suggest to you a show
Speaker 6: you might like, and they're pretty good, right.
Speaker 5: They are based.
Speaker 6: On what you've watched before, what you've liked before. They
Speaker 6: can suggest things or you know, when you are on
Speaker 6: Google and other things, the ads that pop up are
Speaker 6: based on some of your prior searches. In the same way,
Speaker 6: what Steve Bannon's group researched and learned is that if
Speaker 6: they can learn certain information about you, then they can
Speaker 6: send you targeted ads that can have nudging effects. So,
Speaker 6: for example, if that we know that this person is
Speaker 6: a gun owner and cares deeply about gun rights, we
Speaker 6: can send them targeted ads all about how a particular
Speaker 6: candidate supports gun rates or their opponent wants to take
Speaker 6: away your guns. If a person cares deeply about immigration issues,
Speaker 6: they can send you targeted ads on that topic. So
Speaker 6: it can be a real treasure trove to have all
Speaker 6: of this information for election purposes. And voter information has
Speaker 6: always been safeguarded and considered a voter's private information. And
Speaker 6: I don't know that that's information that we want to
Speaker 6: be sharing with political campaigns.
Speaker 3: I think the answer from most of us is that
Speaker 3: we don't want that to be shared. We'll talk more
Speaker 3: about that coming up. And also Democrats are sounding the
Speaker 3: alarm that Tulsey Gabbard, the Director of National Intelligence, was
Speaker 3: at this FBI raid. Democratic Senator Mark Warner, the vice
Speaker 3: chair of the Senate Intel Committee, says Gabbard has no
Speaker 3: place in this investigation.
Speaker 4: To see her skulking around in a baseball cap the
Speaker 4: picture that was posted. You never thought you could make
Speaker 4: this stuff up.
Speaker 3: That's coming up next. I'm June Grosso and you're listening
Speaker 3: to Bloomberg. Is the recent FBI raid of a Georgia
Speaker 3: county election office a precursor to battles ahead as the
Speaker 3: Trump administration steps up efforts to obtain sensitive voter information
Speaker 3: from states. Fulton County is suing to get the FBI
Speaker 3: to return the seven hundred boxes of ballots, voter rolls,
Speaker 3: and other election records, with County Chairman Rob Pitts questioning
Speaker 3: why the records were taken.
Speaker 2: We were given no notice whatsoever. They showed up and
Speaker 2: took the seven hundred boxes that they wanted. So what
Speaker 2: they're doing with them now, we don't know. Typically we're
Speaker 2: given copies. We don't even have copies of what they took.
Speaker 2: So it's a problem. What are they doing with Where
Speaker 2: are they? Who hasn't?
Speaker 3: Lots of questions and not many answers, and Democrats in
Speaker 3: Congress are questioning why Tulci Gabbert, the Director of National Intelligence,
Speaker 3: was at the Fulton County search last week. Senator Mark
Speaker 3: Warner raised concerns about her presence because the search was
Speaker 3: a law enforcement action.
Speaker 4: What the heck is she doing on the FBI serving
Speaker 4: a domestic warranty? If this doesn't concern the heck out
Speaker 4: of every American, it sures, how should.
Speaker 3: Gabert also facilitated a phone call between those FBI agents
Speaker 3: and President Trump after the search warrant was executed, and
Speaker 3: Warner is calling on her to testify in person before
Speaker 3: the Senate Intelligence Committee.
Speaker 4: To see her skulking around in a baseball cap the
Speaker 4: picture that was posted. You never thought you could make
Speaker 4: this stuff up.
Speaker 3: I've been talking to Barbara McQuay, a professor at the
Speaker 3: University of Michigan Law School. Barbara adding to the oddity
Speaker 3: of the search was the appearance of the Director of
Speaker 3: National intelligen Gents, Tulsa Gabbard, who later said that President
Speaker 3: Trump directed her to be at the search and then
Speaker 3: afterwards President Trump spoke to the agents on the phone
Speaker 3: on speak of.
Speaker 5: All of this highly irregular and bizarre.
Speaker 6: So there are two reasons it's bizarre to me that
Speaker 6: Tulsi Gabbard was there. Number One, a person at her level,
Speaker 6: the Director of National Intelligence, like just should have better
Speaker 6: things to do, right, They have trained agents for this work.
Speaker 6: You would not expect the Attorney General to be there.
Speaker 6: You would not expect the head of the FBI to
Speaker 6: be there. Right, These are this is in the trenches
Speaker 6: kind of work that agents are trained to do and
Speaker 6: do every day. So the idea that she's there, and
Speaker 6: she's there like you know, in a ball cap and everything,
Speaker 6: like what is she rolling up her sleeves and grabbing evidence.
Speaker 5: I don't think so.
Speaker 6: So just bizarre that she's physically present at the scene,
Speaker 6: first of all. Second of all, this really feels like
Speaker 6: something way beyond her remit. Her job is to court
Speaker 6: nate intelligence collection among the eighteen intelligence agencies in the
Speaker 6: federal government, and then to report to the President about
Speaker 6: the results of those findings, to answer any questions he
Speaker 6: may have to advise him about threats to the national security.
Speaker 5: These are threats coming from foreign.
Speaker 6: Actors, So that suggests that there is some foreign nexus
Speaker 6: to this search.
Speaker 5: I can't imagine what that would be. It kind of
Speaker 5: goes back to some of those conspiracy theories. Remember when
Speaker 5: Sidney Powell was saying things like dominion falsely, I'll add
Speaker 5: dominion voting machines were programmed by Hugo Chavez in Venezuela,
Speaker 5: like what. And then remember there was some tie to
Speaker 5: Italy that caused William Barr to actually travel there with
Speaker 5: John Durham when they were investigating the origins of the
Speaker 5: Russian investigation. They never found anything there.
Speaker 6: The Inspector General never found anything relating to these things.
Speaker 6: It seems like it was all just wild, crazy stuff
Speaker 6: that was manufactured. But here we are again with some
Speaker 6: suggestion that there's some foreign nexus to all of this.
Speaker 6: I don't know what it is, but if there's not
Speaker 6: any foreign nexus, highly improper for Tulsa Gabbert to be there.
Speaker 6: But if she's there, it does raise this specter of
Speaker 6: is there some foreign nexus to this?
Speaker 5: And I just can't imagine where this is going. But
Speaker 5: brace yourself, June.
Speaker 3: Well, what I was going to say is, you know,
Speaker 3: people might say, well, let them investigate. If there's nothing there,
Speaker 3: then no harm, no foul, But you don't know if
Speaker 3: there could be you know, manufactured crimes or as you said,
Speaker 3: the risks of undermining the midterm elections. I mean, there's
Speaker 3: so much that could happen. You know, it's unsettling, to
Speaker 3: say the least.
Speaker 5: It really is.
Speaker 6: And I think one of the great harms of this
Speaker 6: administration is because of some of the acts they've engaged in,
Speaker 6: you know, just like misleading us about what happened on
Speaker 6: the ground in Minneapolis with these shooting when we can
Speaker 6: see with our.
Speaker 5: Own eyes that is not what they say.
Speaker 6: I think that some courts have said they've lost the
Speaker 6: presumption of regularity that our federal government has always enjoyed
Speaker 6: that we trust that when they say they're going to
Speaker 6: do something, that's what they're doing, and that we have
Speaker 6: to sort of, you know, trust and wait and see
Speaker 6: what happens. But I think the track record of this
Speaker 6: administration has made us all very skeptical, and I worry
Speaker 6: that that kind of skepticism will continue even after this
Speaker 6: administration ends.
Speaker 3: Thanks so much, Barbara, it's always a pleasure having you on.
Speaker 3: That's Professor Barbara McQuaid of the University of Michigan Law School.
Speaker 3: Arguments at the Ninth Circuit Court of Appeals could determine
Speaker 3: whether state legislatures can bring lawsuits over the objections of
Speaker 3: the state's governor and attorney general. The Ninth Circuit held
Speaker 3: oral arguments in a case where Republican lawmakers in Arizona
Speaker 3: sidestep the Democratic state governor and attorney general in challenging
Speaker 3: the Footsteps National Monument created by former President Joe Biden
Speaker 3: on federal land in twenty twenty three. The monument designation
Speaker 3: will help preserve fifteen hundred square miles and turned a
Speaker 3: decades long vision for Native American tribes and environmentalists into
Speaker 3: a reality, but Republican lawmakers and the uranium mining industry
Speaker 3: that operates in the area had opposed the designation. The
Speaker 3: appeals court will decide whether state lawmakers have standing to
Speaker 3: challenge the White House's use of the Antiquities Act to
Speaker 3: create national monuments. My guest is an expert in environmental law,
Speaker 3: Dave Owen, a professor at the University of California College
Speaker 3: of Law in San Francisco. There were oral arguments in
Speaker 3: this case before the Ninth Circuit on Tuesday. Tell us
Speaker 3: about the underlying case.
Speaker 1: The underlying lawsuit is about the designation by President Biden
Speaker 1: of the Ancient Footsteps National Monument in Arizona, and the
Speaker 1: plaintiffs are claiming that this designation was unlawful because basically
Speaker 1: it's too broad.
Speaker 3: To get the side straight, it's the Republican controlled Arizona
Speaker 3: legislature that filed the lawsuit challenging the monument, but the
Speaker 3: state's governor, a Democrat, and the state's Attorney general, another Democrat,
Speaker 3: opposed the lawsuit.
Speaker 1: Yes, that's exactly right. There's a group of plaintiffs, including
Speaker 1: the state legislature and the state itself, as represented by
Speaker 1: the Attorney General's office, has intervened on the side of
Speaker 1: the defendants on the side of the federal government.
Speaker 3: President Trump has not been supportive of national monuments, shall
Speaker 3: we put it that way? So is it a surprise
Speaker 3: that the Trump administration is lining up here with the
Speaker 3: democratic governor and attorney general.
Speaker 1: I would say at this stage of the litigation, it
Speaker 1: is not surprising. At this stage of the litigation, the
Speaker 1: question at issue is whether the plaintiffs have standing to suit,
Speaker 1: and the federal government almost always is arguing for more
Speaker 1: restrictive standing for lawsuits against the federal government, and so
Speaker 1: it has an institutional interest that cuts across administrations at
Speaker 1: limiting its own ability to be sued. And since that's
Speaker 1: all that's at stake right now, no, I think it
Speaker 1: makes sense. It's not surprising that the federal government is aligned.
Speaker 3: A federal judge dismissed the lawsuit. Why did he or
Speaker 3: she dismiss it?
Speaker 1: So the reason is a legal doctrine called standing just
Speaker 1: means that the plaintiffs have to have a direct personal
Speaker 1: stake in the lawsuit. They have to be threatened with
Speaker 1: some sort of injury, and it has to be both
Speaker 1: plausible and not too speculative, and then the court has
Speaker 1: to be able to fix the problem by ordering the
Speaker 1: defendants to do something differently. And so what the court
Speaker 1: said is that the legislature does not have standing because
Speaker 1: it is not authorized to claim injury on behalf of
Speaker 1: the state. Instead, it can only sue to defend some
Speaker 1: sort of injury to its ability to function as a legislature,
Speaker 1: and there's no such injury here. And then the other plaintiffs,
Speaker 1: who are local governments and private entities, the court said
Speaker 1: that their claims of injury were very speculative and therefore
Speaker 1: did not provide a basis for the lawsuit to go forward.
Speaker 3: During the oral arguments before the Ninth Circuit, the Deputy
Speaker 3: Solicitor General said, the Attorney General represents the state here
Speaker 3: in federal court, not the legislature, not the treasurer. I
Speaker 3: mean that seems like a basic concept to me. It's
Speaker 3: the attorney General who represents the state, it is, basically.
Speaker 1: I mean, I think that's why the legislature lost on
Speaker 1: that ground the first time through, That's why it will
Speaker 1: lose again on those grounds on appl You know, it's
Speaker 1: hard to predict the outcomes of cases sometimes, but I
Speaker 1: don't think this particular issue, the outcome is at all
Speaker 1: difficult to predict.
Speaker 3: So what did the legislature argue at the Ninth Circuit
Speaker 3: to try to show the head standing.
Speaker 1: Well, the first thing to note is that the legislature's
Speaker 1: argument for standing was hardly mentioned by the plaintiff's attorneys
Speaker 1: or the oral argument yesterday, which I think is a
Speaker 1: pretty strong tell that the plaintiff's attorney knows that this
Speaker 1: is not a winning argument. Instead, the planiff's attorneys chose
Speaker 1: to focus on claims of injury by local governments that
Speaker 1: think their ability to get revenue related to uranium mining
Speaker 1: by other third parties will be limited if the monument
Speaker 1: designation stands. But the legislature's argument in the past has
Speaker 1: been that the fact that this monument is designated means
Speaker 1: the legislature is going to have to worry about some
Speaker 1: other related legislate and kind of keep track of this issue,
Speaker 1: and therefore that's going to affect its ability to function
Speaker 1: as a legislature. And of course, you know, you can
Speaker 1: make that argument about anything the federal government does in
Speaker 1: a state, and that's I think partly why that argument
Speaker 1: didn't go anywhere with the court.
Speaker 3: This is all about uranium in the future.
Speaker 1: Yeah, the basic argument the local governments. I mean, I
Speaker 1: think part of this is just ideological. The federal government
Speaker 1: comes in and takes lands in a rural area. They're
Speaker 1: all federal lands, So this is not the federal government
Speaker 1: grabbing lands from anybody else, but it is taking lands
Speaker 1: in a rural and conservative area with an economy that
Speaker 1: has traditionally been fund somewhat focused on resource extraction and
Speaker 1: saying these lands aren't going to be available for resource
Speaker 1: extraction anymore, and so that gets people upset. So that's
Speaker 1: the general reaction. It has a lot to do with
Speaker 1: just general hostility to the federal government. But the more
Speaker 1: specific argument was that the promising mineral that exists on
Speaker 1: these lands is you're uranium, and maybe uranium prices will
Speaker 1: rise and demand will increase, and then mining companies will
Speaker 1: come in and that will lead to indirectly to revenue
Speaker 1: for the local government, and the loss of that revenue
Speaker 1: therefore is their claimed injury.
Speaker 3: Along those lines, Judge Michelle Friedland, a Barack Obama appointee, said,
Speaker 3: how does anyone know whether it would make sense to
Speaker 3: open up new uranium minds six years from now? Explain
Speaker 3: what the judge was getting at there?
Speaker 1: The basic theory of the plaintiff's have of standing is
Speaker 1: grounded in the idea that a law that changes market
Speaker 1: conditions to somebody's detriment can be challenging, and that the
Speaker 1: person who is detrimentally hurt by that law can have
Speaker 1: standing to challenge it. In other words, that you don't
Speaker 1: you don't necessarily need to say the governmental whoever else
Speaker 1: the defendant was, directly took money out of my pocketbook.
Speaker 1: You can say this regular is going to change market
Speaker 1: conditions in a way that hurts me, and therefore I
Speaker 1: have the ability to sue, and stated generically the way
Speaker 1: I've just stated it, that's an argument nobody would disagree with,
Speaker 1: at least that it's valid. Sometimes the question in this
Speaker 1: case is whether it's just too speculative for this particular
Speaker 1: action to be changing market conditions in a way that
Speaker 1: would actually impact the plaintiffs. If you start getting a
Speaker 1: very long chain of causation with a lot of very
Speaker 1: uncertain links, then at some point the courts will say
Speaker 1: this is just speculation, and really this case is not
Speaker 1: about arms to your market. Position is about you just
Speaker 1: don't like what the government did, and you just have
Speaker 1: generic hostility to it, and so here again, what Friedland
Speaker 1: is getting that with that question is are we dealing
Speaker 1: with a situation here where the harm that you are claiming,
Speaker 1: which is harm to your local government finance, is based
Speaker 1: on the assumption that someday in the future uranium mining
Speaker 1: is going to pick up again and do so in
Speaker 1: ways that bring revenue to you. Are you just completely
Speaker 1: speculating there?
Speaker 3: Did it seem to you like all three judges were
Speaker 3: skeptical about the plaintiffs having standing.
Speaker 1: You, I wouldn't say all three count she seemed less skeptical,
Speaker 1: Although if I'm an attorney trying to read the tea
Speaker 1: leaves of oral argument, which is always a dangerous thing
Speaker 1: to do, I did not hear her tip her hand
Speaker 1: either way. She was asking the questions one might ask
Speaker 1: if you're trying to throw softballs, or if you are
Speaker 1: trying to see if there's anything to the plaintiff's argument.
Speaker 1: You know, if you're basically saying, I don't think you
Speaker 1: have anything here, but I'm going to ask you the
Speaker 1: most empathetic questions I can, just to see if you
Speaker 1: could come up with something compelling. So it's hard to
Speaker 1: know what the motivation behind those questions was but she
Speaker 1: did not seem as thoroughly skeptical as the other two
Speaker 1: judges did.
Speaker 3: But you think that the legislature is going to lose here.
Speaker 1: I think if the plaintiffs win on this appeal, which
Speaker 1: is just about allowing the case to go forward, it
Speaker 1: would be based on injuries to the local governments in
Speaker 1: the area. I do not think anybody even seemed interested
Speaker 1: in the legislature's claims to have standing.
Speaker 3: If the legislature loses and this goes to the Supreme Court,
Speaker 3: Chief Justice Roberts has said he's skeptical about the use
Speaker 3: of the Antiquities Act. So do the plaintiffs have an
Speaker 3: advantage at the Supreme Court?
Speaker 1: So let's separate it out into if this particular decision
Speaker 1: that's an issue right now, if there's an appeal on that,
Speaker 1: and then the broader question of if the case continues
Speaker 1: forward and goes to the merits, whether there might be
Speaker 1: a Supreme Court problem. So, first off, I don't think
Speaker 1: the United States Supreme Court is going to be at
Speaker 1: all interested in the legislature's theory of standing here. I
Speaker 1: think it's going to look at that and say, no,
Speaker 1: states get to define who speaks for them in court.
Speaker 1: We're not going to mess with that. I also think
Speaker 1: in general, the Supreme Court is going to be somewhat
Speaker 1: skeptical of the plaintiffs general theory of standing, just because
Speaker 1: of the speculative nature of it. And even if the
Speaker 1: Supreme Court might sympathize with the merits of the plaintiffs'
Speaker 1: claims here, I don't think you are going to have
Speaker 1: five justices or four on the Court who are interested
Speaker 1: in expanding standing for potentially speculative harms and taking up
Speaker 1: a case just for that basis. So I think probably
Speaker 1: this case gets dismissed on standing grounds, and a certain petition,
Speaker 1: if one is filed, is not accepted. I think that
Speaker 1: is the most likely outcome. But your other question was, well,
Speaker 1: what about you know, maybe it's not this monument, Maybe
Speaker 1: it's another monument. The Court has shown some or Chief
Speaker 1: Justice Roberts, but I don't think it's just him, has
Speaker 1: shown hints of interest in claims that monument designations are
Speaker 1: overly brought. Now it's hard to know what to make
Speaker 1: of those because broad monument designations have been with us
Speaker 1: as a nation for over a century. This is not
Speaker 1: a new practice. It's been around for a very very
Speaker 1: long time. Most of those broad monuments in hindsight or
Speaker 1: designations that people have been very glad about. At least
Speaker 1: a majority of the American public has been very very
Speaker 1: glad about, and a majority of the states in which
Speaker 1: they are located have been glad about. And so you know,
Speaker 1: there's a bunch of reasons why the Supreme Court might
Speaker 1: think this is not an issue that's really important enough
Speaker 1: to be worth our time or that we feel strongly enough,
Speaker 1: But it's hard to know, and it's all speculation.
Speaker 5: There.
Speaker 3: Recent Democratic presidents, I'm thinking former presidents Biden, Obama, and
Speaker 3: Clinton have expanded national monuments. Why is it that the
Speaker 3: Republican seemed to be not in favor of national monuments
Speaker 3: generally and the Democrats seemed to be in favor well.
Speaker 1: Correction there by geographic area. The largest national monument designation
Speaker 1: ever a huge margin, was from George W. Bush Oh
Speaker 1: and it was the Hawaiian Islands Northwest Hawaiian Islands National Monument.
Speaker 1: So it's an incredibly remote area, but it's enormous. And
Speaker 1: so it's not always the case that monument designations are
Speaker 1: a democratic presidential thing. And there was some controversy that
Speaker 1: was not like an easy nobody cares. You know, I
Speaker 1: can win without making any mean, there were fishing interests
Speaker 1: that were upset about that designation. But you are right
Speaker 1: with the general Trent that designating monuments is much more
Speaker 1: a thing that democratic presidents do, and I think the
Speaker 1: reasons are fairly straightforward. The people who oppose these designations
Speaker 1: are typically people in very rural parts of the West,
Speaker 1: and then extractive industries that are not voting for Democrats
Speaker 1: or contributing money to Democrats no matter what. So the
Speaker 1: people who are offended by these actions, there's no political
Speaker 1: loss on the Democratic side, and they're widely popular. I mean,
Speaker 1: even like Utah is kind of a funny example. Utah
Speaker 1: aggressively markets its national monuments in its tourism materials well.
Speaker 1: At the same time, the Utah political establishment is like
Speaker 1: almost duty bound to complain about them constantly. And so
Speaker 1: I think the more interesting question, honestly on the political
Speaker 1: side is why the Republicans are so opposed When monuments
Speaker 1: tend to be popular, they tend to be good for
Speaker 1: business development, and I think the basic reason is that
Speaker 1: there's sort of a core and entrenched part of the
Speaker 1: Republican Party that cares very deeply about these issues, and
Speaker 1: it sees them as symbolically important to broader questions about
Speaker 1: the role of the federal government in the world West,
Speaker 1: and it really demands that the Republican political establishment get upset,
Speaker 1: at least in the West, get upset about monuments. You know,
Speaker 1: I would guess that a lot of those representatives and senators,
Speaker 1: if you gave them truth serum, would say, yeah, actually,
Speaker 1: these designations have been great for our state key constituencies
Speaker 1: that hate them. And so I've got to oppose.
Speaker 3: Can a later president alter a national monument that a
Speaker 3: prior president has put in place?
Speaker 1: And there's two schools of thought on that question. One
Speaker 1: school of thought is that because the governing statutes speak
Speaker 1: very specifically about designating monuments and say absolutely nothing about
Speaker 1: shrinking them, that that silence implies that there is not
Speaker 1: an ability for a later president to reduce a monument.
Speaker 1: On the other side, people have argued that the power
Speaker 1: to designate inherently also conveys the power to reduce. I
Speaker 1: think that second argument is a little strange. I mean,
Speaker 1: usually we don't convey broad sweeping powers presidents through statutory silences.
Speaker 1: But that's the argument that others have made, and that
Speaker 1: question has not been tested by the Supreme Court. That
Speaker 1: would most likely be the case that eventually might come
Speaker 1: up to the Supreme Court. It'll either be a designation
Speaker 1: case where the question is was this designation too broad
Speaker 1: in the first place? Or it will be a monument
Speaker 1: shrinking case. But because we've had for your flip flops,
Speaker 1: designation shrinking cases haven't yet been around long enough to
Speaker 1: make it to the Supreme Court.
Speaker 3: I always find the subject of national monuments so interesting,
Speaker 3: So thanks so much for joining me today. That's Professor
Speaker 3: Dave Owen of the UC College of the Law, San Francisco.
Speaker 3: And that's it for this edition of the Bloomberg Law Show.
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