WEBVTT - Trump Proposes New Rules for Protesting in Capital

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com Slash Podcasts. Speaking at a

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<v Speaker 1>rally in Kentucky last week, President Trump responded to protests

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<v Speaker 1>in opposition to his presidency and the confirmation of Brett

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<v Speaker 1>Kavanaugh to the Supreme Court. You can either vote for

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<v Speaker 1>Democrat mob rule, or you can vote for a Republican

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<v Speaker 1>party that stands proudly the law and order, fairness, freedom,

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<v Speaker 1>and justice. And now the Trump administration is seeking to

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<v Speaker 1>curb that so called mob rule with new restrictions on

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<v Speaker 1>protests and demonstrations in the nation's capital. Joining me is

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<v Speaker 1>Howard Schweber, a professor at the University of Wisconsin Law School.

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<v Speaker 1>Howard the proposed regulation could limit demonstrations on some of

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<v Speaker 1>the capital's most iconic grounds for protests, including the National

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<v Speaker 1>Law where Martin Luther King Jr. Develivered his I Have

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<v Speaker 1>a Dream speech. Tell us about some of the strictest

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<v Speaker 1>out of the dozen or so limitations being proposed sure, so,

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<v Speaker 1>the proposers regulations following the three categories. One is limitations

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<v Speaker 1>direct limitations on access, and the strictest of these, I

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<v Speaker 1>think is the outright ban on pedestrian traffic UH in

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<v Speaker 1>front of the White House UH, with with a small

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<v Speaker 1>exception of what's being called a pedestrian walkway. UM. That's

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<v Speaker 1>really extraordinary. It's it's depriving the American public of one

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<v Speaker 1>of the most traditional sites for protest, for expression, for discussion,

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<v Speaker 1>and just for gathering. And it's the most public imaginable

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<v Speaker 1>place in the nation. UH. And to limit people's access

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<v Speaker 1>there as a way of avoiding being exposed to protest

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<v Speaker 1>is really deeply the spiriting UM. The other one that's

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<v Speaker 1>really dramatic is the idea that permits can be revoked

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<v Speaker 1>for any violation. And the reason that's so tricky is

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<v Speaker 1>that there's no as the regulations are proposed, there's no

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<v Speaker 1>requirement that the violation of the terms of permit occur

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<v Speaker 1>by the people who got the permit. In other words,

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<v Speaker 1>it would be possible to disrupt a protest merely by

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<v Speaker 1>showing up using an unauthorized bullhorn, and that could be

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<v Speaker 1>used as a pretext for the part police to shut

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<v Speaker 1>down the entirety of of the previously permitted protest. There

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<v Speaker 1>are also possible requirements of fees for permits and reimbursements

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<v Speaker 1>for costs. How much when does this cross the line

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<v Speaker 1>as far as infringing on First Amendment rights? That's an

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<v Speaker 1>extremely good question, and it's a question with which colleges

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<v Speaker 1>and universities are wrestling even as we speak. So there

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<v Speaker 1>have been these famous incidences instances excuse me, UH, students

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<v Speaker 1>protesting against speakers, for example at Berkeley UH, and these

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<v Speaker 1>events to create costs that one millions of dollars, and

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<v Speaker 1>for colleges with tight public budgets, that can be a

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<v Speaker 1>real issue. In the case of the National Mall UH,

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<v Speaker 1>the sidewalk in front of the White House, I think

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<v Speaker 1>this really gets to be a fundamental question. Yes, it

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<v Speaker 1>costs money to allow the public to gather a petition

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<v Speaker 1>for address and protests, as as the Constitution puts it,

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<v Speaker 1>um are we willing to subsidize these efforts with public

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<v Speaker 1>funds or will we plead poverty? And is the richest

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<v Speaker 1>nation on earth unable to afford the costs of maintaining

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<v Speaker 1>a public space which the people can express themselves at

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<v Speaker 1>the most iconic setting in the entire nation. As for

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<v Speaker 1>the technical question of when asking for fees becomes an

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

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<v Speaker 1>think there's any clear answer. Certainly such a requirement would

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<v Speaker 1>have be imposed equally UH, and certainly would have to

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<v Speaker 1>be shown to me reasonable. That is, it couldn't be

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<v Speaker 1>a pretext for charging outrageous fees just to prevent protests

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<v Speaker 1>from occurring. But where that line would be drawn, that's

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<v Speaker 1>something to be fought over in litigation. I think for

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<v Speaker 1>quite a long time. Yes, now has and of course

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<v Speaker 1>decades of court cases have set out many of the

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<v Speaker 1>rules in this area. But has the Roberts Court given

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

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

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<v Speaker 1>there's been a very expensive view of the First Amendment

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<v Speaker 1>and free speech and other context it's sometimes referred to

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<v Speaker 1>as the weaponization of free speech. That is, free speech

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<v Speaker 1>arguments have been used UH to justify rulings against unions, UH,

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<v Speaker 1>to justify rulings to require permitting religious expressions in all

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<v Speaker 1>kinds of areas, where in the past they would not

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<v Speaker 1>have been used. When it comes to public protest, the

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<v Speaker 1>Roberts Court, and for that matter, courts for some time,

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<v Speaker 1>have been really quite restrictive. And it's worth pointing out

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<v Speaker 1>that both Democrats and Republicans, for example, at their national

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<v Speaker 1>conventions going back twenty years now, have been relying on

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<v Speaker 1>these very restrictive free speech zones, which are sometimes called

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<v Speaker 1>free speech cages, where protesters are required to be in

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<v Speaker 1>an area surrounded by a chain link fence away from

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

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<v Speaker 1>towards federal authorities lamping down on free speech and protest,

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<v Speaker 1>and that has just fed the i think, the tendency

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<v Speaker 1>of the Trump administration to want to move in a

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<v Speaker 1>more authoritarian direction. The a c l U has previously

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<v Speaker 1>sued the government over attempts to limit protests near the

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

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<v Speaker 1>What has never happened is there has never been and

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<v Speaker 1>perhaps we are coming up on this, there's never been

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<v Speaker 1>a court ruling that simply force right declared um that

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<v Speaker 1>a public forum such as the National Mall must make

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<v Speaker 1>itself available for protests. The idea of a public forum

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<v Speaker 1>is an area where people traditionally express themselves take a

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<v Speaker 1>town square or or a park. UM. One would argue

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<v Speaker 1>that the National Mall is uniquely the most iconic public

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<v Speaker 1>forum in the country and therefore should be specially made available.

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<v Speaker 1>But even the general rules UH say that while time,

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<v Speaker 1>place and manner restrictions are permissible, there have to be

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<v Speaker 1>adequate avenues for expression and protest. But the a CL

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<v Speaker 1>has never succeeded in getting the Roberts Court UM to

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<v Speaker 1>really make a clear declaration that protests has to be

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<v Speaker 1>allowed in ways that are visible and effective UH and

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<v Speaker 1>and that fit the general public understanding of what that

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<v Speaker 1>guarantee would require. So the Park Service says that for

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<v Speaker 1>now it's just looking for the public's views on the matters,

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

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<v Speaker 1>now that the comments have been received, the Park Service

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<v Speaker 1>will consider them. UM, depending how suspicious one is the

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<v Speaker 1>Park service park services motives. You can wonder how that

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<v Speaker 1>consideration will take place once a consideration period has been expired,

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<v Speaker 1>has expired, excuse me? Those regulations will be allowed to

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<v Speaker 1>go into effect and when when they have taken effect

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<v Speaker 1>and someone has tried to hold the protests and been

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<v Speaker 1>prevented or had a permit revoke. They can then go

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<v Speaker 1>to court UH. That court challenge will go through the

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<v Speaker 1>various stages of federal litigation. This can take months or

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<v Speaker 1>even years, and in that intervening period, these regulations will

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<v Speaker 1>remain in place and protests will be prevented. So the

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<v Speaker 1>A c l U or another organization can't sue before

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<v Speaker 1>the protests. They have to wait for the protest to

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<v Speaker 1>be denied. Well, it is possible to seek at injunction

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<v Speaker 1>UH preventing the implementation of the regulations, but the bar

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<v Speaker 1>for securing such an injunction is very very high. So,

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<v Speaker 1>for example, members of the public is recently, we we've

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<v Speaker 1>all paid a lot of attention to orders preventing the

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<v Speaker 1>Trump and administration from implementing certain rules by immigration and

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<v Speaker 1>excluding people from majority Muslim countries. That's an example where

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<v Speaker 1>a federal judge was willing to step in and prevent

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<v Speaker 1>the government from doing something that it wants to do.

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<v Speaker 1>In this case, I suspect that would be more difficult

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<v Speaker 1>unless there could be a showing of an immediate issue.

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<v Speaker 1>Now that issue might turn on the proximity of of

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<v Speaker 1>midterm elections, or it might be raised by a group

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<v Speaker 1>seeking a permit for a protest and not getting one.

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<v Speaker 1>But as I say, it is difficult to persuade a

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<v Speaker 1>federal court to issue in junction against an administrative regulation,

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<v Speaker 1>barring that the a C or whomever is trying to

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<v Speaker 1>bring this case would have to go to the court system.

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<v Speaker 1>Thanks so much, Howard. That's Howard Schwebber. He's a professor

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<v Speaker 1>at the University of Wisconsin Law School. We're live from

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<v Speaker 1>the Bloomberg Interactive Broker Studio today. Saudi Arabia is promising

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<v Speaker 1>to retaliate against any and all sanctions brought against the

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<v Speaker 1>country and the continuing fallout from journalist Jamal Kashobi's disappearance.

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<v Speaker 1>Speaking on ABC's This Week, National Economic Council Director Larry

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<v Speaker 1>Cudlow would not say what the President meant when he

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<v Speaker 1>threatened Saudi Arabia with severe punishment. Believe what the President

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<v Speaker 1>says when he says, we will take very tough action

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<v Speaker 1>if the allegations of Saudi interference proved to be the case.

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<v Speaker 1>This morning, on his way to Florida, Trump said he's

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<v Speaker 1>immediately sending Secretary of State Mike Pompeo to Saudi Arabia

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<v Speaker 1>to meet with the Saudi King. Pompeo is on his

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<v Speaker 1>way there, and Trump also suggested that quote rogue killers

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<v Speaker 1>might be behind the disappearance. Joining me is Adam Smith,

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<v Speaker 1>a partner at Gibson Donne. Adam, this situation continues to escalate.

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<v Speaker 1>There's growing pressure from Congress. Is the Trump administration taking

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<v Speaker 1>the right steps here? Or should sanctions be imposed immediately? Well,

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<v Speaker 1>I think immediately might be saying a bit too much.

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<v Speaker 1>Thanks so much for having me. I think we need

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<v Speaker 1>to find out exactly what happened, which is what Congress

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<v Speaker 1>has demanded of the President thus far by sending a

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<v Speaker 1>letter to him last week. Uh. An investigation, of course,

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<v Speaker 1>should be done on unfettered basis, and depending on what

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<v Speaker 1>happened and what the conclusion is, I think action should

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<v Speaker 1>then be taken. Absolutely So. Now let's talk about the

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<v Speaker 1>various steps that are available, various things that the White

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<v Speaker 1>House could do to react in Congress. And the White

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<v Speaker 1>House hasn't specified any the nature of any of the

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<v Speaker 1>steps it may take, but they range from punishments under

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<v Speaker 1>disc They range from downgrading diplomatic relations or sanctioning Saudi

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<v Speaker 1>officials too. You know, withdrawing from an investment conference in React.

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<v Speaker 1>So tell us about the different levels. There is a

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

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<v Speaker 1>execute on the international stage is really unlimited even by Congress.

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<v Speaker 1>And so you're right, everything from downgrading diplomatic relations which

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<v Speaker 1>seems unlikely, um which would be rather significant, potentially sanctioning

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<v Speaker 1>very important actors and even components of the Saudi economy

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<v Speaker 1>again seems rather unlikely, all the way down to sort

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<v Speaker 1>of even more sort of minimal sort of statements of

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<v Speaker 1>disapproval rather than actually is of activity, diplomatic statements, senses

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<v Speaker 1>of Congress, these sorts of activities, of course Congress would

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<v Speaker 1>do rather than the president, and really everything in between.

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

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<v Speaker 1>There's been a lot of talk recently about that we

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<v Speaker 1>should stop doing that for various reasons. So that would

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<v Speaker 1>be a significant issue as well. So you mentioned that

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<v Speaker 1>senators in both parties invoked the Magnitsky Act in a

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<v Speaker 1>letter to President Trump. What makes you think that sanctions

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<v Speaker 1>will not be imposed With what you said, with the

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<v Speaker 1>Congress putting pressure on Trump in a bipartisan way, Well,

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<v Speaker 1>at the end, of the day, it still is the

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<v Speaker 1>president's call. So what the Magnitsky Act says is that

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<v Speaker 1>if a letter like the one that was submitted last

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<v Speaker 1>Wednesday is received, the president then has a hundred twenty

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<v Speaker 1>days to do an investigation and to report back to

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<v Speaker 1>Congress about whether or not one or more of the

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<v Speaker 1>individuals on this letter is involved in extraditional killings, torture,

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<v Speaker 1>or other sort of violations of human rights, and then

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<v Speaker 1>make a determination as to whether or not that person

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<v Speaker 1>or persons will be sanctioned. But at the end of

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

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<v Speaker 1>a long time from now, and so who knows what

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<v Speaker 1>the world will look like then, of course, post mid

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<v Speaker 1>terms and all the rest. So there is pressure the

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<v Speaker 1>Congress can put on the president, but that pressure is

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<v Speaker 1>very much limited by the fact that at the end

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<v Speaker 1>of the day, this is still a presidential call that

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<v Speaker 1>the Congress has only sort of indirect control over. Congress

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<v Speaker 1>has indirect control. But there seems this seems to be

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<v Speaker 1>a situation that's quickly ratcheting up, and the pressure internationally,

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<v Speaker 1>the pressure from news organizations. It seems to be a

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<v Speaker 1>situation that won't hold for days, will it, or do

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<v Speaker 1>you think it will hold for that long? Well, we

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<v Speaker 1>don't know. I mean I think you're right. If if

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<v Speaker 1>it continues at the pace of that has been the

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<v Speaker 1>past couple of days, I think you're right. I think

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<v Speaker 1>if some something we'll need to give, and whether that

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

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<v Speaker 1>But if more information is discovered, if there's clear evidence

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<v Speaker 1>of activity on behalf of the Saudiast with respect to

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<v Speaker 1>what happened in Istanbul, then I think you're right. I

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<v Speaker 1>don't think it will hold. And I think that for

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

0:12:59.160 --> 0:13:01.599
<v Speaker 1>but certainly for local reasons. Action will if we have

0:13:01.720 --> 0:13:04.320
<v Speaker 1>to be taken, what that is, I think that will

0:13:04.360 --> 0:13:06.800
<v Speaker 1>depend on what is discovered. Uh. If you know, I'm

0:13:06.800 --> 0:13:09.199
<v Speaker 1>not sure these rogue killer ideas that Mr Trump is

0:13:09.240 --> 0:13:11.520
<v Speaker 1>talking about, whether that will be the reality or whether

0:13:11.600 --> 0:13:13.360
<v Speaker 1>we'll go all the way up as some people have said,

0:13:13.400 --> 0:13:16.040
<v Speaker 1>with respect to who in the Saudi government is involved,

0:13:16.320 --> 0:13:19.200
<v Speaker 1>and I think that will depend. What's the response will

0:13:19.240 --> 0:13:21.400
<v Speaker 1>be will depend on what's found, obviously, and if the

0:13:21.559 --> 0:13:24.880
<v Speaker 1>higher up definding, I think the more the title wave

0:13:24.920 --> 0:13:27.559
<v Speaker 1>will will sort of be pith artisan, be international, and

0:13:27.600 --> 0:13:29.720
<v Speaker 1>I then then think Trump will be forced to act

0:13:29.840 --> 0:13:34.520
<v Speaker 1>in some respect. Will you explain how the Congress was

0:13:34.720 --> 0:13:42.080
<v Speaker 1>able to enact sanctions against Russia despite President Trump's reluctance. Yeah,

0:13:42.200 --> 0:13:44.880
<v Speaker 1>I mean so, the president's authority to impose sanctions is

0:13:44.920 --> 0:13:48.760
<v Speaker 1>an executive authority unencumbered by Congress unless Congress passes a

0:13:48.880 --> 0:13:52.240
<v Speaker 1>law to basically compel compel the president. And that's what

0:13:52.360 --> 0:13:55.559
<v Speaker 1>happened last August. The President did not seem inclined to

0:13:55.640 --> 0:13:58.079
<v Speaker 1>impose sanctions on Russia for any of the number of

0:13:58.120 --> 0:14:01.480
<v Speaker 1>activities they're doing in Syria, election interference, et cetera. And

0:14:01.559 --> 0:14:04.240
<v Speaker 1>so Congress back in August passed a new law, the

0:14:04.720 --> 0:14:08.480
<v Speaker 1>Countering America's Adverse Everies through Sanctions Act CATSA, which was

0:14:08.559 --> 0:14:11.520
<v Speaker 1>done in a bipartisan basis. Both houses of Congress done

0:14:11.720 --> 0:14:14.440
<v Speaker 1>passed to a level that is beyond the veto proof

0:14:14.520 --> 0:14:16.559
<v Speaker 1>majority needed, because of course, the President could have just

0:14:16.679 --> 0:14:19.440
<v Speaker 1>vetoed it unless the veto proof and so it was

0:14:19.640 --> 0:14:23.440
<v Speaker 1>enough anger. I think bipartisan basis enough concern in both

0:14:23.480 --> 0:14:26.800
<v Speaker 1>houses of Congress to result in this law that pushes

0:14:26.920 --> 0:14:29.080
<v Speaker 1>the president again even Katsa, even though that is a

0:14:29.800 --> 0:14:32.440
<v Speaker 1>definitely pushing the president to impose sanctions. Even that, I

0:14:32.520 --> 0:14:35.320
<v Speaker 1>think you would have seen very limited sanctions actually imposed

0:14:35.360 --> 0:14:37.760
<v Speaker 1>since August under that law, and Congress was quite upset

0:14:37.840 --> 0:14:39.680
<v Speaker 1>with that because at the end of the day, still

0:14:40.240 --> 0:14:43.120
<v Speaker 1>is an executive action that the executive needs to execute

0:14:43.120 --> 0:14:45.080
<v Speaker 1>on law. And the same thing would be true here.

0:14:45.080 --> 0:14:47.560
<v Speaker 1>If the President doesn't want to impose sanctions on Saudi Arabia,

0:14:47.800 --> 0:14:50.400
<v Speaker 1>Congress could pass the law requiring the president to do so,

0:14:50.800 --> 0:14:52.200
<v Speaker 1>but at the end of the day, the president could

0:14:52.240 --> 0:14:55.080
<v Speaker 1>potentially slow roll that or decided not to impose sanctions

0:14:55.120 --> 0:14:57.400
<v Speaker 1>for any of the number of reasons. Uh. And so

0:14:58.080 --> 0:15:02.360
<v Speaker 1>the Congress has authority, but that that authority is limited

0:15:02.440 --> 0:15:03.720
<v Speaker 1>by the fact that at the end of the day

0:15:03.720 --> 0:15:05.760
<v Speaker 1>of the executive is the one needs to execute that

0:15:05.920 --> 0:15:08.720
<v Speaker 1>law and has has sort of inherent discretion to decide

0:15:08.920 --> 0:15:10.760
<v Speaker 1>how to do that, when to do that, and against

0:15:10.840 --> 0:15:12.960
<v Speaker 1>whom to do that. All right, Thanks so much, Adam.

0:15:13.080 --> 0:15:16.040
<v Speaker 1>That's Adam Smith. He is a partner at Gibson Done.

0:15:17.080 --> 0:15:20.000
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:15:20.080 --> 0:15:23.800
<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud

0:15:23.920 --> 0:15:27.800
<v Speaker 1>and on bloomberg dot com Slash Podcast. I'm June Brasso.

0:15:28.280 --> 0:15:33.240
<v Speaker 1>This is Bloomberg. Yeah,