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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash Podcasts. Speaking at a

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Speaker 1: rally in Kentucky last week, President Trump responded to protests

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Speaker 1: in opposition to his presidency and the confirmation of Brett

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Speaker 1: Kavanaugh to the Supreme Court. You can either vote for

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Speaker 1: Democrat mob rule, or you can vote for a Republican

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Speaker 1: party that stands proudly the law and order, fairness, freedom,

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Speaker 1: and justice. And now the Trump administration is seeking to

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Speaker 1: curb that so called mob rule with new restrictions on

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Speaker 1: protests and demonstrations in the nation's capital. Joining me is

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Speaker 1: Howard Schweber, a professor at the University of Wisconsin Law School.

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Speaker 1: Howard the proposed regulation could limit demonstrations on some of

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Speaker 1: the capital's most iconic grounds for protests, including the National

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Speaker 1: Law where Martin Luther King Jr. Develivered his I Have

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Speaker 1: a Dream speech. Tell us about some of the strictest

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Speaker 1: out of the dozen or so limitations being proposed sure, so,

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Speaker 1: the proposers regulations following the three categories. One is limitations

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Speaker 1: direct limitations on access, and the strictest of these, I

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Speaker 1: think is the outright ban on pedestrian traffic UH in

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Speaker 1: front of the White House UH, with with a small

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Speaker 1: exception of what's being called a pedestrian walkway. UM. That's

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Speaker 1: really extraordinary. It's it's depriving the American public of one

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Speaker 1: of the most traditional sites for protest, for expression, for discussion,

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Speaker 1: and just for gathering. And it's the most public imaginable

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Speaker 1: place in the nation. UH. And to limit people's access

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Speaker 1: there as a way of avoiding being exposed to protest

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Speaker 1: is really deeply the spiriting UM. The other one that's

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Speaker 1: really dramatic is the idea that permits can be revoked

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Speaker 1: for any violation. And the reason that's so tricky is

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Speaker 1: that there's no as the regulations are proposed, there's no

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Speaker 1: requirement that the violation of the terms of permit occur

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Speaker 1: by the people who got the permit. In other words,

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Speaker 1: it would be possible to disrupt a protest merely by

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Speaker 1: showing up using an unauthorized bullhorn, and that could be

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Speaker 1: used as a pretext for the part police to shut

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Speaker 1: down the entirety of of the previously permitted protest. There

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Speaker 1: are also possible requirements of fees for permits and reimbursements

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Speaker 1: for costs. How much when does this cross the line

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Speaker 1: as far as infringing on First Amendment rights? That's an

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Speaker 1: extremely good question, and it's a question with which colleges

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Speaker 1: and universities are wrestling even as we speak. So there

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Speaker 1: have been these famous incidences instances excuse me, UH, students

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Speaker 1: protesting against speakers, for example at Berkeley UH, and these

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Speaker 1: events to create costs that one millions of dollars, and

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Speaker 1: for colleges with tight public budgets, that can be a

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Speaker 1: real issue. In the case of the National Mall UH,

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Speaker 1: the sidewalk in front of the White House, I think

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Speaker 1: this really gets to be a fundamental question. Yes, it

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Speaker 1: costs money to allow the public to gather a petition

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Speaker 1: for address and protests, as as the Constitution puts it,

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Speaker 1: um are we willing to subsidize these efforts with public

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Speaker 1: funds or will we plead poverty? And is the richest

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Speaker 1: nation on earth unable to afford the costs of maintaining

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Speaker 1: a public space which the people can express themselves at

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Speaker 1: the most iconic setting in the entire nation. As for

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Speaker 1: the technical question of when asking for fees becomes an

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Speaker 1: infringements on free speech, that's very difficult and I don't

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Speaker 1: think there's any clear answer. Certainly such a requirement would

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Speaker 1: have be imposed equally UH, and certainly would have to

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Speaker 1: be shown to me reasonable. That is, it couldn't be

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Speaker 1: a pretext for charging outrageous fees just to prevent protests

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Speaker 1: from occurring. But where that line would be drawn, that's

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Speaker 1: something to be fought over in litigation. I think for

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Speaker 1: quite a long time. Yes, now has and of course

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Speaker 1: decades of court cases have set out many of the

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Speaker 1: rules in this area. But has the Roberts Court given

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Speaker 1: an expansive view to the First Amendment in cases of protests. No,

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Speaker 1: And I think it's really worth noting um two things. One,

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Speaker 1: there's been a very expensive view of the First Amendment

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Speaker 1: and free speech and other context it's sometimes referred to

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Speaker 1: as the weaponization of free speech. That is, free speech

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Speaker 1: arguments have been used UH to justify rulings against unions, UH,

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Speaker 1: to justify rulings to require permitting religious expressions in all

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Speaker 1: kinds of areas, where in the past they would not

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Speaker 1: have been used. When it comes to public protest, the

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Speaker 1: Roberts Court, and for that matter, courts for some time,

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Speaker 1: have been really quite restrictive. And it's worth pointing out

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Speaker 1: that both Democrats and Republicans, for example, at their national

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Speaker 1: conventions going back twenty years now, have been relying on

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Speaker 1: these very restrictive free speech zones, which are sometimes called

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Speaker 1: free speech cages, where protesters are required to be in

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Speaker 1: an area surrounded by a chain link fence away from

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Speaker 1: the arena. In other words, there's been a general trend

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Speaker 1: towards federal authorities lamping down on free speech and protest,

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Speaker 1: and that has just fed the i think, the tendency

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Speaker 1: of the Trump administration to want to move in a

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Speaker 1: more authoritarian direction. The a c l U has previously

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Speaker 1: sued the government over attempts to limit protests near the

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Speaker 1: White House. How has it fared, There have been mixed results. Um.

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Speaker 1: What has never happened is there has never been and

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Speaker 1: perhaps we are coming up on this, there's never been

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Speaker 1: a court ruling that simply force right declared um that

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Speaker 1: a public forum such as the National Mall must make

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Speaker 1: itself available for protests. The idea of a public forum

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Speaker 1: is an area where people traditionally express themselves take a

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Speaker 1: town square or or a park. UM. One would argue

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Speaker 1: that the National Mall is uniquely the most iconic public

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Speaker 1: forum in the country and therefore should be specially made available.

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Speaker 1: But even the general rules UH say that while time,

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Speaker 1: place and manner restrictions are permissible, there have to be

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Speaker 1: adequate avenues for expression and protest. But the a CL

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Speaker 1: has never succeeded in getting the Roberts Court UM to

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Speaker 1: really make a clear declaration that protests has to be

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Speaker 1: allowed in ways that are visible and effective UH and

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Speaker 1: and that fit the general public understanding of what that

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Speaker 1: guarantee would require. So the Park Service says that for

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Speaker 1: now it's just looking for the public's views on the matters,

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Speaker 1: and that common period is over today. What happens next, well, um,

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Speaker 1: now that the comments have been received, the Park Service

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Speaker 1: will consider them. UM, depending how suspicious one is the

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Speaker 1: Park service park services motives. You can wonder how that

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Speaker 1: consideration will take place once a consideration period has been expired,

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Speaker 1: has expired, excuse me? Those regulations will be allowed to

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Speaker 1: go into effect and when when they have taken effect

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Speaker 1: and someone has tried to hold the protests and been

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Speaker 1: prevented or had a permit revoke. They can then go

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Speaker 1: to court UH. That court challenge will go through the

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Speaker 1: various stages of federal litigation. This can take months or

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Speaker 1: even years, and in that intervening period, these regulations will

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Speaker 1: remain in place and protests will be prevented. So the

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Speaker 1: A c l U or another organization can't sue before

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Speaker 1: the protests. They have to wait for the protest to

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Speaker 1: be denied. Well, it is possible to seek at injunction

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Speaker 1: UH preventing the implementation of the regulations, but the bar

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Speaker 1: for securing such an injunction is very very high. So,

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Speaker 1: for example, members of the public is recently, we we've

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Speaker 1: all paid a lot of attention to orders preventing the

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Speaker 1: Trump and administration from implementing certain rules by immigration and

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Speaker 1: excluding people from majority Muslim countries. That's an example where

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Speaker 1: a federal judge was willing to step in and prevent

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Speaker 1: the government from doing something that it wants to do.

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Speaker 1: In this case, I suspect that would be more difficult

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Speaker 1: unless there could be a showing of an immediate issue.

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Speaker 1: Now that issue might turn on the proximity of of

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Speaker 1: midterm elections, or it might be raised by a group

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Speaker 1: seeking a permit for a protest and not getting one.

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Speaker 1: But as I say, it is difficult to persuade a

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Speaker 1: federal court to issue in junction against an administrative regulation,

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Speaker 1: barring that the a C or whomever is trying to

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Speaker 1: bring this case would have to go to the court system.

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Speaker 1: Thanks so much, Howard. That's Howard Schwebber. He's a professor

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Speaker 1: at the University of Wisconsin Law School. We're live from

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Speaker 1: the Bloomberg Interactive Broker Studio today. Saudi Arabia is promising

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Speaker 1: to retaliate against any and all sanctions brought against the

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Speaker 1: country and the continuing fallout from journalist Jamal Kashobi's disappearance.

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Speaker 1: Speaking on ABC's This Week, National Economic Council Director Larry

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Speaker 1: Cudlow would not say what the President meant when he

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Speaker 1: threatened Saudi Arabia with severe punishment. Believe what the President

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Speaker 1: says when he says, we will take very tough action

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Speaker 1: if the allegations of Saudi interference proved to be the case.

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Speaker 1: This morning, on his way to Florida, Trump said he's

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Speaker 1: immediately sending Secretary of State Mike Pompeo to Saudi Arabia

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Speaker 1: to meet with the Saudi King. Pompeo is on his

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Speaker 1: way there, and Trump also suggested that quote rogue killers

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Speaker 1: might be behind the disappearance. Joining me is Adam Smith,

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Speaker 1: a partner at Gibson Donne. Adam, this situation continues to escalate.

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Speaker 1: There's growing pressure from Congress. Is the Trump administration taking

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Speaker 1: the right steps here? Or should sanctions be imposed immediately? Well,

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Speaker 1: I think immediately might be saying a bit too much.

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Speaker 1: Thanks so much for having me. I think we need

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Speaker 1: to find out exactly what happened, which is what Congress

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Speaker 1: has demanded of the President thus far by sending a

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Speaker 1: letter to him last week. Uh. An investigation, of course,

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Speaker 1: should be done on unfettered basis, and depending on what

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Speaker 1: happened and what the conclusion is, I think action should

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Speaker 1: then be taken. Absolutely So. Now let's talk about the

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Speaker 1: various steps that are available, various things that the White

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Speaker 1: House could do to react in Congress. And the White

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Speaker 1: House hasn't specified any the nature of any of the

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Speaker 1: steps it may take, but they range from punishments under

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Speaker 1: disc They range from downgrading diplomatic relations or sanctioning Saudi

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Speaker 1: officials too. You know, withdrawing from an investment conference in React.

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Speaker 1: So tell us about the different levels. There is a

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Speaker 1: significant range, as you've said, and the president's authority to

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Speaker 1: execute on the international stage is really unlimited even by Congress.

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Speaker 1: And so you're right, everything from downgrading diplomatic relations which

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Speaker 1: seems unlikely, um which would be rather significant, potentially sanctioning

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Speaker 1: very important actors and even components of the Saudi economy

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Speaker 1: again seems rather unlikely, all the way down to sort

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Speaker 1: of even more sort of minimal sort of statements of

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Speaker 1: disapproval rather than actually is of activity, diplomatic statements, senses

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Speaker 1: of Congress, these sorts of activities, of course Congress would

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Speaker 1: do rather than the president, and really everything in between.

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Speaker 1: The US, of course sell the Saudi's a lot of arms.

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Speaker 1: There's been a lot of talk recently about that we

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Speaker 1: should stop doing that for various reasons. So that would

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Speaker 1: be a significant issue as well. So you mentioned that

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Speaker 1: senators in both parties invoked the Magnitsky Act in a

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Speaker 1: letter to President Trump. What makes you think that sanctions

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Speaker 1: will not be imposed With what you said, with the

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Speaker 1: Congress putting pressure on Trump in a bipartisan way, Well,

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Speaker 1: at the end, of the day, it still is the

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Speaker 1: president's call. So what the Magnitsky Act says is that

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Speaker 1: if a letter like the one that was submitted last

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Speaker 1: Wednesday is received, the president then has a hundred twenty

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Speaker 1: days to do an investigation and to report back to

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Speaker 1: Congress about whether or not one or more of the

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Speaker 1: individuals on this letter is involved in extraditional killings, torture,

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Speaker 1: or other sort of violations of human rights, and then

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Speaker 1: make a determination as to whether or not that person

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Speaker 1: or persons will be sanctioned. But at the end of

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Speaker 1: the day, it's a presidential call. Hundred twenty days unfortunately

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Speaker 1: a long time from now, and so who knows what

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Speaker 1: the world will look like then, of course, post mid

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Speaker 1: terms and all the rest. So there is pressure the

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Speaker 1: Congress can put on the president, but that pressure is

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Speaker 1: very much limited by the fact that at the end

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Speaker 1: of the day, this is still a presidential call that

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Speaker 1: the Congress has only sort of indirect control over. Congress

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Speaker 1: has indirect control. But there seems this seems to be

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Speaker 1: a situation that's quickly ratcheting up, and the pressure internationally,

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Speaker 1: the pressure from news organizations. It seems to be a

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Speaker 1: situation that won't hold for days, will it, or do

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Speaker 1: you think it will hold for that long? Well, we

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Speaker 1: don't know. I mean I think you're right. If if

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Speaker 1: it continues at the pace of that has been the

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Speaker 1: past couple of days, I think you're right. I think

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Speaker 1: if some something we'll need to give, and whether that

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Speaker 1: is sanctions or some other sort of response, I don't know.

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Speaker 1: But if more information is discovered, if there's clear evidence

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Speaker 1: of activity on behalf of the Saudiast with respect to

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Speaker 1: what happened in Istanbul, then I think you're right. I

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Speaker 1: don't think it will hold. And I think that for

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Speaker 1: political reasons, if not because it's the right thing to do,

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Speaker 1: but certainly for local reasons. Action will if we have

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Speaker 1: to be taken, what that is, I think that will

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Speaker 1: depend on what is discovered. Uh. If you know, I'm

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Speaker 1: not sure these rogue killer ideas that Mr Trump is

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Speaker 1: talking about, whether that will be the reality or whether

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Speaker 1: we'll go all the way up as some people have said,

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Speaker 1: with respect to who in the Saudi government is involved,

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Speaker 1: and I think that will depend. What's the response will

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Speaker 1: be will depend on what's found, obviously, and if the

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Speaker 1: higher up definding, I think the more the title wave

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Speaker 1: will will sort of be pith artisan, be international, and

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Speaker 1: I then then think Trump will be forced to act

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Speaker 1: in some respect. Will you explain how the Congress was

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Speaker 1: able to enact sanctions against Russia despite President Trump's reluctance. Yeah,

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Speaker 1: I mean so, the president's authority to impose sanctions is

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Speaker 1: an executive authority unencumbered by Congress unless Congress passes a

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Speaker 1: law to basically compel compel the president. And that's what

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Speaker 1: happened last August. The President did not seem inclined to

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Speaker 1: impose sanctions on Russia for any of the number of

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Speaker 1: activities they're doing in Syria, election interference, et cetera. And

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Speaker 1: so Congress back in August passed a new law, the

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Speaker 1: Countering America's Adverse Everies through Sanctions Act CATSA, which was

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Speaker 1: done in a bipartisan basis. Both houses of Congress done

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Speaker 1: passed to a level that is beyond the veto proof

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Speaker 1: majority needed, because of course, the President could have just

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Speaker 1: vetoed it unless the veto proof and so it was

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Speaker 1: enough anger. I think bipartisan basis enough concern in both

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Speaker 1: houses of Congress to result in this law that pushes

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Speaker 1: the president again even Katsa, even though that is a

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Speaker 1: definitely pushing the president to impose sanctions. Even that, I

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Speaker 1: think you would have seen very limited sanctions actually imposed

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Speaker 1: since August under that law, and Congress was quite upset

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Speaker 1: with that because at the end of the day, still

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Speaker 1: is an executive action that the executive needs to execute

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Speaker 1: on law. And the same thing would be true here.

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Speaker 1: If the President doesn't want to impose sanctions on Saudi Arabia,

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Speaker 1: Congress could pass the law requiring the president to do so,

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Speaker 1: but at the end of the day, the president could

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Speaker 1: potentially slow roll that or decided not to impose sanctions

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Speaker 1: for any of the number of reasons. Uh. And so

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Speaker 1: the Congress has authority, but that that authority is limited

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Speaker 1: by the fact that at the end of the day

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Speaker 1: of the executive is the one needs to execute that

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Speaker 1: law and has has sort of inherent discretion to decide

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Speaker 1: how to do that, when to do that, and against

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Speaker 1: whom to do that. All right, Thanks so much, Adam.

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Speaker 1: That's Adam Smith. He is a partner at Gibson Done.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud

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Speaker 1: and on bloomberg dot com Slash Podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg. Yeah,