1
00:00:02,759 --> 00:00:07,480
Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.

2
00:00:08,680 --> 00:00:12,119
Speaker 2: I guess it was like last week President encouraged me

3
00:00:12,840 --> 00:00:16,599
Speaker 2: via through social and also viophone called to be more aggressive,

4
00:00:17,280 --> 00:00:21,560
Speaker 2: and I was like, okay, yeah, yes, sir, as President.

5
00:00:21,600 --> 00:00:22,360
Speaker 3: We'll give you that.

6
00:00:23,120 --> 00:00:27,000
Speaker 1: One thing no one disputes is that Elon Musk has

7
00:00:27,040 --> 00:00:31,160
Speaker 1: been aggressive. A barrage of lawsuits have been filed in

8
00:00:31,200 --> 00:00:34,959
Speaker 1: an effort to rein Musk in as the billionaire pushes

9
00:00:35,000 --> 00:00:40,880
Speaker 1: a relentless campaign to slash government spending, firing thousands of workers,

10
00:00:40,920 --> 00:00:48,080
Speaker 1: dismantling federal agencies, canceling contracts, and accessing sensitive information systems

11
00:00:48,560 --> 00:00:52,199
Speaker 1: as he and his Doze employees drive to downsize the

12
00:00:52,280 --> 00:00:56,280
Speaker 1: government with speed and in secrecy. Many of the lawsuits

13
00:00:56,400 --> 00:01:01,600
Speaker 1: argue that the virtually unchecked authority Musk wields is unconstitutional.

14
00:01:02,000 --> 00:01:05,640
Speaker 1: Judges have questioned Musk's role in the government, and the

15
00:01:05,680 --> 00:01:08,640
Speaker 1: White House answer has been that Musk isn't the head

16
00:01:08,640 --> 00:01:11,760
Speaker 1: of DOGE, but rather is a senior advisor to the

17
00:01:11,800 --> 00:01:16,440
Speaker 1: President with no authority to make government decisions. That was

18
00:01:16,520 --> 00:01:20,440
Speaker 1: contradicted by President Trump as he gave a shout out

19
00:01:20,480 --> 00:01:23,360
Speaker 1: to Musk during his speech Tuesday Night.

20
00:01:23,680 --> 00:01:27,880
Speaker 4: I have created the brand new Department of Government Efficiency

21
00:01:29,120 --> 00:01:37,400
Speaker 4: go perhaps you've heard of it, perhaps, which is headed

22
00:01:37,440 --> 00:01:40,679
Speaker 4: by Elon Musk Poison the gallery.

23
00:01:40,319 --> 00:01:44,959
Speaker 1: Tonight, in the gallery, in the Oval Office, and at

24
00:01:45,000 --> 00:01:51,200
Speaker 1: cabinet meetings. The unelected billionaire seems to be exerting influence everywhere.

25
00:01:51,800 --> 00:01:55,920
Speaker 1: My guest is constitutional law expert Jamal Green, a professor

26
00:01:55,960 --> 00:01:59,760
Speaker 1: at Columbia Law School. Some of the lawsuits, including the

27
00:01:59,800 --> 00:02:05,120
Speaker 1: war by fourteen Democratic Attorneys General, argue that Trump's granting

28
00:02:05,360 --> 00:02:10,960
Speaker 1: sweeping powers to Mosque without proper authorization from Congress, and

29
00:02:11,000 --> 00:02:13,920
Speaker 1: that it's a violation of the appointment's clause. Can you

30
00:02:13,919 --> 00:02:15,200
Speaker 1: tell us more about that argument?

31
00:02:15,800 --> 00:02:18,120
Speaker 3: So, the first thing to note is we don't actually

32
00:02:18,120 --> 00:02:21,080
Speaker 3: have a whole lot of transparency about exactly what the

33
00:02:21,160 --> 00:02:24,120
Speaker 3: nature of his appointment is. But what we do know

34
00:02:24,240 --> 00:02:28,440
Speaker 3: from a constitutional perspective is that if you are exercising

35
00:02:29,000 --> 00:02:32,400
Speaker 3: what the Supreme Court refers to as significant authority on

36
00:02:32,520 --> 00:02:35,440
Speaker 3: behalf of the United States, and if you don't have

37
00:02:35,480 --> 00:02:38,880
Speaker 3: a supervisor or other than the President, then you have

38
00:02:38,960 --> 00:02:42,400
Speaker 3: to be appointed consistent with the Constitution, and for that

39
00:02:42,520 --> 00:02:46,720
Speaker 3: kind of person, a high level figure exercising authority on

40
00:02:46,800 --> 00:02:49,840
Speaker 3: behalf of the United States. It has to be presidential

41
00:02:49,880 --> 00:02:53,000
Speaker 3: appointment and Senate confirmation, and we know for sure he

42
00:02:53,000 --> 00:02:56,400
Speaker 3: hasn't been confirmed by the Senate. So the argument would

43
00:02:56,400 --> 00:03:01,000
Speaker 3: be that he is basically exercising government power without going

44
00:03:01,040 --> 00:03:04,600
Speaker 3: through the kinds of accountability that the Constitution provides for

45
00:03:04,680 --> 00:03:06,160
Speaker 3: people officials of that sort.

46
00:03:06,720 --> 00:03:11,000
Speaker 1: As you mentioned, there's no transparency about Musk's role and

47
00:03:11,400 --> 00:03:15,280
Speaker 1: what DOJE is doing behind the scenes, and judges in

48
00:03:15,320 --> 00:03:18,440
Speaker 1: many of these cases have been trying to find out,

49
00:03:19,000 --> 00:03:23,239
Speaker 1: and the Justice Department has argued that Musk may carry

50
00:03:23,280 --> 00:03:27,640
Speaker 1: sway or influence within the executive branch, even significant influence,

51
00:03:27,880 --> 00:03:31,520
Speaker 1: but that's not the same as exercising authority that the

52
00:03:31,520 --> 00:03:35,800
Speaker 1: Constitution's appointments clause says is reserved for officers of the

53
00:03:35,920 --> 00:03:39,520
Speaker 1: United States. So they're contending that his role is more

54
00:03:39,640 --> 00:03:42,520
Speaker 1: like a senior advisor, more like a White House chief

55
00:03:42,560 --> 00:03:43,160
Speaker 1: of staff.

56
00:03:43,880 --> 00:03:47,000
Speaker 3: Yeah, so that's the argument they'd make, if that's probably

57
00:03:47,040 --> 00:03:48,960
Speaker 3: the argument I would make if I were them, That

58
00:03:49,320 --> 00:03:51,600
Speaker 3: there are people in the president's orbit, and the chief

59
00:03:51,640 --> 00:03:53,800
Speaker 3: of staff is an example of that who don't have

60
00:03:53,840 --> 00:03:56,400
Speaker 3: to go through the appointments clause, and the reason they

61
00:03:56,400 --> 00:03:58,280
Speaker 3: don't have to go through the appointment's clause. Is they're

62
00:03:58,680 --> 00:04:01,240
Speaker 3: essentially acting on behalf as the president and kind of

63
00:04:01,280 --> 00:04:04,600
Speaker 3: conveying the president's wishes, but they themselves are not the

64
00:04:04,600 --> 00:04:08,080
Speaker 3: ones exercising the authority. A court that hears that kind

65
00:04:08,080 --> 00:04:10,400
Speaker 3: of argument can try to get to the bottom of

66
00:04:10,440 --> 00:04:13,440
Speaker 3: the facts of the matter. The President himself said that

67
00:04:14,000 --> 00:04:16,960
Speaker 3: Elon Musk is the head of this entity called DOGE.

68
00:04:17,120 --> 00:04:19,000
Speaker 3: He said that, you know, in front of a joint

69
00:04:19,040 --> 00:04:22,720
Speaker 3: meeting of Congress, and others in the administration have said

70
00:04:22,720 --> 00:04:25,720
Speaker 3: that they're taking some directions from Musk. Musk is showing

71
00:04:25,800 --> 00:04:28,800
Speaker 3: up at cabinet meetings, and all the cabinet officials are

72
00:04:28,800 --> 00:04:31,039
Speaker 3: people who are principal officers, So it can be a

73
00:04:31,080 --> 00:04:34,200
Speaker 3: matter of kind of semantic to say, well, he's not

74
00:04:34,520 --> 00:04:37,600
Speaker 3: actually been appointed to head an agency, but if he's

75
00:04:37,600 --> 00:04:40,920
Speaker 3: actually exercising authority, he's actually issuing directions, you know, it

76
00:04:41,040 --> 00:04:43,560
Speaker 3: sort of walks like a cabinet official, talks like one.

77
00:04:43,720 --> 00:04:46,200
Speaker 3: A court can certainly say that, you know, he's exercising

78
00:04:46,320 --> 00:04:48,599
Speaker 3: authority in the way in which the Secretary of the

79
00:04:48,600 --> 00:04:51,479
Speaker 3: Treasury or the Attorney General or someone else who counts

80
00:04:51,480 --> 00:04:54,799
Speaker 3: as what's called the principal officer would be exercising authority.

81
00:04:55,120 --> 00:04:57,520
Speaker 1: I think it just took a few hours for the

82
00:04:57,600 --> 00:05:01,840
Speaker 1: lawyers in one of the lawsuits to cite what President

83
00:05:01,839 --> 00:05:05,920
Speaker 1: Trump said about Elon Musk in his speech as an

84
00:05:05,920 --> 00:05:09,880
Speaker 1: admission that Elon Musk is acting as a head of

85
00:05:09,920 --> 00:05:10,560
Speaker 1: an agency.

86
00:05:11,120 --> 00:05:11,839
Speaker 4: Yeah, he sure.

87
00:05:11,640 --> 00:05:13,640
Speaker 3: Doesn't sound like an advisor in the way in which

88
00:05:13,680 --> 00:05:17,720
Speaker 3: the President himself spoke about him and in the aggressiveness

89
00:05:17,760 --> 00:05:21,760
Speaker 3: with which he's proceeding. If this is directions directly from

90
00:05:21,760 --> 00:05:24,720
Speaker 3: the President and you're trying to litigate this kind of thing,

91
00:05:24,760 --> 00:05:27,120
Speaker 3: you'd want to hear more from the President about the

92
00:05:27,160 --> 00:05:30,279
Speaker 3: way in which he's operating according to directions. But he

93
00:05:30,320 --> 00:05:32,599
Speaker 3: seems pretty autonomous from what we can tell.

94
00:05:33,279 --> 00:05:38,320
Speaker 1: So are they trying to insulate Musk from oversight by

95
00:05:38,360 --> 00:05:42,080
Speaker 1: making him an advisor he would enjoy executive privilege.

96
00:05:42,120 --> 00:05:45,039
Speaker 3: Then well, if he's really an advisor and really is

97
00:05:45,080 --> 00:05:50,160
Speaker 3: not actually exercising authority on behalf of the government, then

98
00:05:50,600 --> 00:05:53,320
Speaker 3: for one thing, there wouldn't be an appointments clause problem

99
00:05:53,640 --> 00:05:56,680
Speaker 3: for the nature of his appointment. Even private citizens can

100
00:05:56,680 --> 00:06:00,520
Speaker 3: be advisors to the president. The other kind of insulation

101
00:06:01,080 --> 00:06:04,000
Speaker 3: is if he's in the White House, and it's just

102
00:06:04,000 --> 00:06:06,800
Speaker 3: a White House advisor, he wouldn't be subject to Freedom

103
00:06:06,800 --> 00:06:10,120
Speaker 3: of Information Act requests, whereas if he's part of an

104
00:06:10,120 --> 00:06:13,600
Speaker 3: agency or issuing directions to the agency, that becomes much more.

105
00:06:14,160 --> 00:06:17,640
Speaker 3: He starts to fall within federal transparency laws. So as

106
00:06:17,640 --> 00:06:21,039
Speaker 3: the oversight Congress isn't really doing much oversight right now,

107
00:06:21,800 --> 00:06:24,800
Speaker 3: but if it were, he may have certain kinds of

108
00:06:24,839 --> 00:06:29,800
Speaker 3: defenses grounded in what's called a presidential communications privilege, so

109
00:06:30,360 --> 00:06:34,960
Speaker 3: that he is issuing orders based on his conversations with

110
00:06:35,040 --> 00:06:37,359
Speaker 3: the president or the wishes of the president. That I

111
00:06:37,360 --> 00:06:40,719
Speaker 3: think doesn't depend so much on what his actual position is.

112
00:06:41,080 --> 00:06:43,720
Speaker 3: It depends more on the nature of his interactions with

113
00:06:43,800 --> 00:06:44,760
Speaker 3: the White House.

114
00:06:45,279 --> 00:06:48,200
Speaker 1: I'm not sure that the Justice Department has raised that

115
00:06:48,400 --> 00:06:50,919
Speaker 1: in any of these lawsuits. I haven't seen it referred to.

116
00:06:51,320 --> 00:06:53,360
Speaker 1: You know that he has executive privilege.

117
00:06:53,520 --> 00:06:56,039
Speaker 3: Well, depending on what the nature of the privilege is.

118
00:06:56,279 --> 00:06:58,400
Speaker 3: You know, anyone in the executive branch might be able

119
00:06:58,400 --> 00:07:01,920
Speaker 3: to claim some kind of executive It depends on what

120
00:07:02,080 --> 00:07:07,040
Speaker 3: is being shielded. Now Here, we actually have orders being

121
00:07:07,080 --> 00:07:13,520
Speaker 3: issued to departments and to actually engage in activity, cutting programs,

122
00:07:13,840 --> 00:07:17,760
Speaker 3: canceling contracts, and so forth. Those are final actions of

123
00:07:17,840 --> 00:07:21,120
Speaker 3: the executive branch, and finding out whether those things are

124
00:07:21,120 --> 00:07:24,120
Speaker 3: happening or not is something that the American people have

125
00:07:24,200 --> 00:07:25,840
Speaker 3: a right to know. And I don't just mean that

126
00:07:25,880 --> 00:07:29,440
Speaker 3: in a general sense, but based on federal transparency laws,

127
00:07:29,520 --> 00:07:31,720
Speaker 3: so that those aren't things that he'd be able to

128
00:07:31,720 --> 00:07:34,200
Speaker 3: claim privilege about. He might be able to claim a

129
00:07:34,280 --> 00:07:36,880
Speaker 3: privilege if you know, someone were to ask, when did

130
00:07:36,880 --> 00:07:39,000
Speaker 3: the President tell you to do this? If he were

131
00:07:39,040 --> 00:07:41,200
Speaker 3: to say, well, let's privilege, well that might be something

132
00:07:41,520 --> 00:07:44,000
Speaker 3: that someone could claim privilege about. But there are there

133
00:07:44,000 --> 00:07:47,800
Speaker 3: are actions being taken, and they are coming from somewhere,

134
00:07:47,840 --> 00:07:49,720
Speaker 3: and you know that's not a privileged back.

135
00:07:50,480 --> 00:07:54,840
Speaker 1: Several judges, perhaps all the judges, are having trouble finding

136
00:07:54,840 --> 00:07:59,920
Speaker 1: out the information about Mosque and Doge. Marilyn judged theatre

137
00:08:00,120 --> 00:08:05,680
Speaker 1: Or Chwang called the administration's answers to the questions about

138
00:08:05,800 --> 00:08:12,000
Speaker 1: Musk and Doge highly suspicious, and DC Judge John Bates

139
00:08:12,120 --> 00:08:16,760
Speaker 1: ordered the Trump administration to produce witnesses for depositions, as

140
00:08:16,800 --> 00:08:20,560
Speaker 1: well as produce records and answer questions. That's in a

141
00:08:20,640 --> 00:08:26,080
Speaker 1: lawsuit brought by labor unions and nonprofit groups. Another problem

142
00:08:26,160 --> 00:08:31,080
Speaker 1: is the judges are getting conflicting information from the Justice

143
00:08:31,120 --> 00:08:33,880
Speaker 1: Department lawyers, or no information at all. A lot of

144
00:08:33,880 --> 00:08:36,719
Speaker 1: the time, the Justice Department lawyers can answer the questions

145
00:08:37,120 --> 00:08:38,720
Speaker 1: that the judges are asking.

146
00:08:39,320 --> 00:08:41,480
Speaker 3: And it's not clear to me whether they necessarily even

147
00:08:41,480 --> 00:08:43,520
Speaker 3: know the answers to the questions they're being asked. I

148
00:08:43,559 --> 00:08:47,960
Speaker 3: wouldn't necessarily assume that the Justice Department lawyers are obfuscating.

149
00:08:48,200 --> 00:08:51,240
Speaker 3: They may not be getting the right information from their clients.

150
00:08:51,880 --> 00:08:55,200
Speaker 3: And there are tools that a judge can use to

151
00:08:55,320 --> 00:08:58,000
Speaker 3: find out this kind of information, as you mentioned, they

152
00:08:58,000 --> 00:09:01,440
Speaker 3: can have and evidentry hearing, they can conduct depositions, they

153
00:09:01,440 --> 00:09:04,319
Speaker 3: can issue subpoenas, and failing to comply with those, or

154
00:09:04,400 --> 00:09:07,240
Speaker 3: being mis leading in the course of a deposition, or

155
00:09:07,360 --> 00:09:10,160
Speaker 3: failing to respond appropriately to a subpoena, either for a

156
00:09:10,200 --> 00:09:13,120
Speaker 3: testimony or for documents, you can be held in contempt.

157
00:09:13,320 --> 00:09:17,080
Speaker 3: And so that's a serious penalty that presumably anyone would

158
00:09:17,080 --> 00:09:19,880
Speaker 3: want to avoid. But part of this, I think is

159
00:09:19,920 --> 00:09:22,439
Speaker 3: the lawyers themselves are having trouble tracking down this kind

160
00:09:22,440 --> 00:09:25,960
Speaker 3: of information. And we'll see how successful various courts are

161
00:09:26,000 --> 00:09:28,120
Speaker 3: in trying to get people to actually show up and

162
00:09:28,200 --> 00:09:30,800
Speaker 3: answer their question. A judge can always say, you tell

163
00:09:30,840 --> 00:09:33,800
Speaker 3: me who issued this order, and I'm going to bring

164
00:09:33,840 --> 00:09:35,600
Speaker 3: that person in and I'm going to talk to them.

165
00:09:35,640 --> 00:09:37,600
Speaker 3: I'm going to issue an order. And that's a very

166
00:09:37,600 --> 00:09:41,600
Speaker 3: aggressive move, but we may be approaching that stage in some.

167
00:09:41,520 --> 00:09:45,560
Speaker 1: Of these cases. Are the plaintiffs asking the judges to

168
00:09:45,640 --> 00:09:49,600
Speaker 1: determine that DOGE is an agency that's subject to the

169
00:09:49,679 --> 00:09:50,720
Speaker 1: laws of agencies.

170
00:09:51,200 --> 00:09:54,559
Speaker 3: I'm not sure from the individual complaints whether that's one

171
00:09:54,600 --> 00:09:57,839
Speaker 3: of the things that they're asking for. DOGE is very

172
00:09:57,880 --> 00:10:02,079
Speaker 3: clearly not a fatchatorily created entity. It's not an agency.

173
00:10:02,320 --> 00:10:05,319
Speaker 3: It's because it hasn't been created by in Congress. There

174
00:10:05,400 --> 00:10:09,160
Speaker 3: are entities that can be set up within the executive

175
00:10:09,200 --> 00:10:12,640
Speaker 3: branch and subject to different kinds of rules than the

176
00:10:12,720 --> 00:10:16,760
Speaker 3: typical agencies that are controlled by cabinet officials or cabinet

177
00:10:16,800 --> 00:10:21,560
Speaker 3: level officials. So I don't know exactly what determinations along

178
00:10:21,600 --> 00:10:25,160
Speaker 3: those lines are being requested by Theolitiicans in these cases.

179
00:10:25,600 --> 00:10:29,840
Speaker 1: We were speaking about contradictions before, and Judge Bates wrote

180
00:10:29,840 --> 00:10:34,880
Speaker 1: that basically the government was given contradictory information about DOGE

181
00:10:34,880 --> 00:10:38,720
Speaker 1: depending on the circumstance. In the government's view, DOGE is

182
00:10:38,800 --> 00:10:43,679
Speaker 1: quote a Goldilock's entity not an agency when it is burdensome,

183
00:10:44,040 --> 00:10:46,359
Speaker 1: but an agency when it is convenient.

184
00:10:46,679 --> 00:10:49,720
Speaker 3: Yeah, And there's a real irony about this, which is

185
00:10:49,760 --> 00:10:55,640
Speaker 3: that part of the overall philosophy of the administration is

186
00:10:56,080 --> 00:10:59,080
Speaker 3: what sometimes referred to as unitary executive theory, which is

187
00:10:59,200 --> 00:11:02,319
Speaker 3: sort of all power or in the executive branch runs

188
00:11:02,480 --> 00:11:05,720
Speaker 3: to the president and is accountable to the president. And

189
00:11:05,720 --> 00:11:08,920
Speaker 3: that's a theory that is popular among some circles of

190
00:11:09,000 --> 00:11:12,480
Speaker 3: legal scholars and judges and so forth, but it relies

191
00:11:12,520 --> 00:11:15,520
Speaker 3: on a theory of accountability. And when you don't even

192
00:11:15,600 --> 00:11:19,439
Speaker 3: know who's exercising authority, how they're appointed, where they got

193
00:11:19,440 --> 00:11:22,400
Speaker 3: their power from, whether they're answering for the president or not,

194
00:11:22,679 --> 00:11:27,400
Speaker 3: and those basic questions are unclear, it's entirely at odds

195
00:11:27,440 --> 00:11:31,280
Speaker 3: with the idea of unitary executive theory. It's really kind

196
00:11:31,320 --> 00:11:34,040
Speaker 3: of a chaotic environment. And I have to think that

197
00:11:34,240 --> 00:11:37,560
Speaker 3: for at least some judges, some of the arguments that

198
00:11:37,960 --> 00:11:41,520
Speaker 3: the president has to have certain levels of control over

199
00:11:41,559 --> 00:11:44,959
Speaker 3: the executive branch are going to start to fall flat

200
00:11:45,080 --> 00:11:47,280
Speaker 3: when it seems as though there are other entities or

201
00:11:47,320 --> 00:11:50,400
Speaker 3: other power centers within the executive branch. That are either

202
00:11:50,440 --> 00:11:53,839
Speaker 3: not controlled by the president or that the administration is

203
00:11:53,920 --> 00:11:56,280
Speaker 3: unwilling to be transparent about.

204
00:11:56,160 --> 00:11:59,640
Speaker 1: Up next, will the Supreme Court provide any guard rails?

205
00:12:00,080 --> 00:12:04,320
Speaker 1: This is bloomberg. A blitz of lawsuits have been filed

206
00:12:04,400 --> 00:12:07,240
Speaker 1: in an effort to rain in Elon Musk and his

207
00:12:07,400 --> 00:12:13,560
Speaker 1: relentless campaign to slash government spending by firing thousands of workers,

208
00:12:14,000 --> 00:12:21,319
Speaker 1: eliminating federal agencies, canceling contracts, and accessing sensitive information systems,

209
00:12:21,880 --> 00:12:25,280
Speaker 1: and judges are asking questions about the power of Musk

210
00:12:25,559 --> 00:12:29,080
Speaker 1: and Doge. I've been talking to Columbia Law School professor

211
00:12:29,160 --> 00:12:32,360
Speaker 1: Jamal Green. One of the problems seems to be that

212
00:12:32,520 --> 00:12:37,960
Speaker 1: courts move slowly usually, and Musk and Doge are operating

213
00:12:38,040 --> 00:12:42,000
Speaker 1: with such speed and in secrecy. So people are being

214
00:12:42,120 --> 00:12:46,920
Speaker 1: fired and agencies are being dismantled and sensitive information is

215
00:12:46,960 --> 00:12:50,240
Speaker 1: being accessed while the courts try to catch up.

216
00:12:50,520 --> 00:12:53,600
Speaker 3: Courts can move relatively quickly, but I think the key

217
00:12:53,679 --> 00:12:55,440
Speaker 3: point is that they can move as quickly as the

218
00:12:55,480 --> 00:12:59,280
Speaker 3: executive branch can, and it is not the job of

219
00:12:59,400 --> 00:13:02,480
Speaker 3: courts within our system, within our constitutional system, it's not

220
00:13:02,520 --> 00:13:05,800
Speaker 3: the job of courts to control a lawless executive branch.

221
00:13:06,200 --> 00:13:08,720
Speaker 3: Courts are a last resort. If the executive branch is

222
00:13:08,720 --> 00:13:12,760
Speaker 3: not itself abiding by any kind of internal checks or

223
00:13:12,920 --> 00:13:16,800
Speaker 3: internal control, legal controls over it's over what it's doing,

224
00:13:17,120 --> 00:13:19,720
Speaker 3: it can do quite a lot of damage before anything

225
00:13:19,760 --> 00:13:23,080
Speaker 3: gets filed in a court, even when you win in

226
00:13:23,160 --> 00:13:26,000
Speaker 3: challenging the executive branch. If you're talking about, for example,

227
00:13:26,679 --> 00:13:29,520
Speaker 3: if eighty thousand people get fired and then then a

228
00:13:29,520 --> 00:13:33,079
Speaker 3: week later they're reinstated, well that week matter to their lives,

229
00:13:33,160 --> 00:13:35,719
Speaker 3: and some of those people are never coming back, right.

230
00:13:35,760 --> 00:13:38,920
Speaker 3: So that's just one example. But the executive branch does

231
00:13:38,960 --> 00:13:41,439
Speaker 3: a ton of things that will never get to a

232
00:13:41,520 --> 00:13:44,240
Speaker 3: court that are really hard to figure out whether they're

233
00:13:44,280 --> 00:13:49,480
Speaker 3: happening or not. And for generations, we've relied upon an

234
00:13:49,480 --> 00:13:53,640
Speaker 3: executive branch that has its own internal process for deciding

235
00:13:53,640 --> 00:13:55,920
Speaker 3: whether it's acting legally, and it's not at all clear

236
00:13:55,960 --> 00:13:58,120
Speaker 3: that there's any kind of process going on right now.

237
00:14:00,240 --> 00:14:08,320
Speaker 1: Yesterday, the Supreme Court rejected Trump rejected Trump's request to

238
00:14:08,320 --> 00:14:13,000
Speaker 1: toss out a lower court order that requires the quick

239
00:14:13,040 --> 00:14:16,840
Speaker 1: dispersement of as much as two billion dollars owed to

240
00:14:17,120 --> 00:14:22,760
Speaker 1: contractors for already completed work. Four justices dissented. Does that

241
00:14:22,880 --> 00:14:26,920
Speaker 1: indicate to you that there are at least five justices

242
00:14:26,960 --> 00:14:29,440
Speaker 1: who are willing to put the brakes on Trump.

243
00:14:29,840 --> 00:14:32,880
Speaker 3: I think the most we can say from that decision

244
00:14:33,560 --> 00:14:36,720
Speaker 3: and from the few other ways in which the Supreme

245
00:14:36,760 --> 00:14:39,040
Speaker 3: Court has weighed in so far on the Trump administration,

246
00:14:39,960 --> 00:14:44,640
Speaker 3: is that the Court is acting extremely cautiously. So by

247
00:14:44,680 --> 00:14:46,640
Speaker 3: the court, I mean the middle of the court, which

248
00:14:46,680 --> 00:14:50,000
Speaker 3: in this case is Chief Justice Roberts and Amy Clay Barrett.

249
00:14:50,160 --> 00:14:52,920
Speaker 3: I think the Court knows that whenever it weighs in,

250
00:14:52,960 --> 00:14:54,920
Speaker 3: people are going to be paying a lot of attention

251
00:14:55,000 --> 00:14:58,120
Speaker 3: and reading those tea leaves very carefully, and so they're

252
00:14:58,560 --> 00:15:02,440
Speaker 3: kind of holding their a little bit until they really

253
00:15:02,480 --> 00:15:06,160
Speaker 3: have to rule on something. And so in this USAID

254
00:15:06,360 --> 00:15:11,680
Speaker 3: related case involving money owed under contracts, the court they

255
00:15:11,680 --> 00:15:15,080
Speaker 3: didn't really weigh in on whether the money was owed

256
00:15:15,200 --> 00:15:17,760
Speaker 3: or anything like that. It was really just to say,

257
00:15:17,880 --> 00:15:19,880
Speaker 3: we're not going to throw out what the district Court

258
00:15:19,920 --> 00:15:23,520
Speaker 3: has done, but we're going to ask it to make

259
00:15:23,560 --> 00:15:26,520
Speaker 3: sure that it clarifies exactly what it's asking the government

260
00:15:26,520 --> 00:15:28,080
Speaker 3: to do, so that it can give the government a

261
00:15:28,160 --> 00:15:31,880
Speaker 3: very specific order rather than something broader than that. It's

262
00:15:31,920 --> 00:15:34,440
Speaker 3: really kind of a we're not going to reveal too

263
00:15:34,520 --> 00:15:38,960
Speaker 3: much kind of decision that I would interpret as at

264
00:15:39,040 --> 00:15:41,200
Speaker 3: least there are five people on the Court who are

265
00:15:41,200 --> 00:15:44,880
Speaker 3: not willing at this stage to give the Trump administration

266
00:15:45,040 --> 00:15:48,000
Speaker 3: everything at once, but that doesn't necessarily mean that they

267
00:15:48,000 --> 00:15:49,400
Speaker 3: won't get there at some point.

268
00:15:50,120 --> 00:15:52,960
Speaker 1: What's happening is a lot of the lower court judges

269
00:15:53,120 --> 00:15:58,960
Speaker 1: are doing things. They're issuing tros or preliminary injunctions, and

270
00:15:59,120 --> 00:16:05,080
Speaker 1: today Judge John McConnell of Rhode Island issued a preliminary

271
00:16:05,120 --> 00:16:10,960
Speaker 1: injunction blocking Trump's attempt to freeze billions of dollars in

272
00:16:11,160 --> 00:16:15,440
Speaker 1: Congressional approved loans, grants, and other payments, and judge in

273
00:16:15,560 --> 00:16:18,960
Speaker 1: Washington ruled similarly in a case last week. The judge

274
00:16:19,000 --> 00:16:22,480
Speaker 1: said the interaction of three coequal branches of government is

275
00:16:22,520 --> 00:16:26,480
Speaker 1: an intricate, delicate, and sophisticated balance that's crucial to the

276
00:16:26,480 --> 00:16:29,680
Speaker 1: functioning of the government. And with the spending freeze, the

277
00:16:29,720 --> 00:16:33,560
Speaker 1: executive branch put itself above Congress. Do you expect that

278
00:16:33,560 --> 00:16:36,080
Speaker 1: that's going to end up at the Supreme Court as well?

279
00:16:36,360 --> 00:16:39,160
Speaker 3: I think if the Trump administration decides to appeal it

280
00:16:39,200 --> 00:16:41,040
Speaker 3: all the way to the Supreme Court, I think there's

281
00:16:41,080 --> 00:16:45,480
Speaker 3: a good chance it ends up there. The spending freezes

282
00:16:45,640 --> 00:16:49,400
Speaker 3: are really among the many kinds of challenges that are

283
00:16:49,440 --> 00:16:53,560
Speaker 3: being brought against the administration. I think they're on just

284
00:16:53,600 --> 00:16:57,040
Speaker 3: about their weakest footing when it comes to refusing to

285
00:16:57,080 --> 00:17:00,640
Speaker 3: spend money that Congress has appropriated. It's a very kind

286
00:17:00,720 --> 00:17:04,760
Speaker 3: of constitutional law one oh one basic proposition that Congress

287
00:17:04,760 --> 00:17:08,800
Speaker 3: decides whether to appropriate money, and the president has to

288
00:17:08,800 --> 00:17:11,960
Speaker 3: take care that the laws are faithfully executed and among

289
00:17:12,000 --> 00:17:14,800
Speaker 3: those laws or laws that require the spending of money. So,

290
00:17:15,520 --> 00:17:17,639
Speaker 3: you know, if you're the Trump administration and you're trying

291
00:17:17,680 --> 00:17:20,200
Speaker 3: to figure out what cases you have the best chance

292
00:17:20,200 --> 00:17:23,440
Speaker 3: of winning before the court, you know, it's conceivable that

293
00:17:24,119 --> 00:17:27,679
Speaker 3: you pull back a little bit and try to communicate

294
00:17:27,760 --> 00:17:31,119
Speaker 3: that actually, you're not trying to not spend money that

295
00:17:31,160 --> 00:17:34,280
Speaker 3: Congress has appropriated, and try to kind of delay and

296
00:17:34,359 --> 00:17:36,440
Speaker 3: with the district court before taking that kind of case

297
00:17:36,520 --> 00:17:39,000
Speaker 3: up to the Supreme Court, because it's really not you know,

298
00:17:39,000 --> 00:17:41,760
Speaker 3: if we're talking about a blanket spending freeze that just

299
00:17:41,840 --> 00:17:44,480
Speaker 3: asserts the authority of the president to refuse to spend

300
00:17:44,480 --> 00:17:47,800
Speaker 3: money based on his own policy priorities, that that's really

301
00:17:48,000 --> 00:17:52,600
Speaker 3: pretty blatantly unconstitutional, and so you'd want a different posture

302
00:17:52,640 --> 00:17:53,679
Speaker 3: if you're the administration.

303
00:17:54,640 --> 00:17:57,520
Speaker 1: But I mean, they're taking up, for example, the birthright

304
00:17:57,600 --> 00:18:01,120
Speaker 1: citizenship case. That's another one that seems like a complete

305
00:18:01,160 --> 00:18:05,040
Speaker 1: loser for the administration. But yet they're fighting in district

306
00:18:05,119 --> 00:18:08,320
Speaker 1: courts and appellate courts and they'll probably take it to

307
00:18:08,400 --> 00:18:11,639
Speaker 1: the Supreme Court. It doesn't seem like they're exercising the

308
00:18:11,720 --> 00:18:18,040
Speaker 1: discretion that other Justice departments have exercised. I mean, maybe

309
00:18:18,040 --> 00:18:20,919
Speaker 1: it's because Trump is pushing them because he thinks the

310
00:18:20,920 --> 00:18:23,160
Speaker 1: Supreme Court is on his side.

311
00:18:23,480 --> 00:18:26,560
Speaker 3: Yeah, it's certainly possible that this administration is not being

312
00:18:26,640 --> 00:18:30,840
Speaker 3: especially kind of rationally strategic about the law. You know,

313
00:18:30,880 --> 00:18:34,280
Speaker 3: I do think the birthright Citizenship Executive Order, which is

314
00:18:34,280 --> 00:18:38,399
Speaker 3: certainly another example of something that's not on solid legal

315
00:18:38,400 --> 00:18:42,919
Speaker 3: footing based on text and history and precedent of the

316
00:18:42,920 --> 00:18:46,680
Speaker 3: Supreme Court. But I'm not sure that the administration necessarily

317
00:18:46,760 --> 00:18:50,639
Speaker 3: expects to win that case. There's a lot of symbolic

318
00:18:51,160 --> 00:18:56,159
Speaker 3: politics potentially going on there, Whereas I in terms of

319
00:18:56,200 --> 00:18:59,520
Speaker 3: these spending cuts, you know, this really does seem to

320
00:18:59,560 --> 00:19:02,800
Speaker 3: be a policy priority, and they're kind of I wouldn't

321
00:19:02,840 --> 00:19:04,960
Speaker 3: be surprised if they're trying, really are trying to push

322
00:19:05,000 --> 00:19:06,840
Speaker 3: the envelope in a variety of ways in terms of

323
00:19:06,840 --> 00:19:10,560
Speaker 3: what they're allowed to do. So you know, we'll see

324
00:19:10,880 --> 00:19:12,960
Speaker 3: what they take to the court and what they don't.

325
00:19:13,040 --> 00:19:16,320
Speaker 3: If you're being rational and if you're a lawyer trying

326
00:19:16,359 --> 00:19:21,080
Speaker 3: to actually win cases, neither this what's called impoundment or

327
00:19:21,160 --> 00:19:25,560
Speaker 3: in refusing to spend appropriated money or the birthright citizenship

328
00:19:25,680 --> 00:19:28,600
Speaker 3: executive order, neither of these is a strong case.

329
00:19:29,440 --> 00:19:32,040
Speaker 1: Do you think that the lower courts are moving as

330
00:19:32,119 --> 00:19:35,840
Speaker 1: quickly as they can or quickly enough to stop mosk

331
00:19:36,160 --> 00:19:39,720
Speaker 1: or you know it'll be over before the cases are over.

332
00:19:40,720 --> 00:19:44,160
Speaker 3: So they are moving as quickly as we ever really

333
00:19:44,160 --> 00:19:46,880
Speaker 3: see courts move. A lot of these decisions are coming

334
00:19:46,920 --> 00:19:49,119
Speaker 3: within a matter of days. A lot of these courts,

335
00:19:49,200 --> 00:19:52,639
Speaker 3: especially in the District of Columbia, are really inundays with

336
00:19:52,680 --> 00:19:55,560
Speaker 3: a lot of cases, so they are certainly working extremely

337
00:19:55,600 --> 00:19:58,680
Speaker 3: hard and working around the clock on this. But even

338
00:19:58,800 --> 00:20:02,640
Speaker 3: the fastest courts the world can't operate as quickly as

339
00:20:03,000 --> 00:20:05,879
Speaker 3: the so called DOGE seems to be operating. Where if

340
00:20:05,920 --> 00:20:09,119
Speaker 3: you can just send someone into agency and then attach

341
00:20:09,560 --> 00:20:13,719
Speaker 3: a flash driver, have access to payment systems, fire people,

342
00:20:14,160 --> 00:20:18,159
Speaker 3: freeze contracts, refuse to pay out money however illegal. So

343
00:20:18,280 --> 00:20:22,280
Speaker 3: many of these things are They do damage immediately if

344
00:20:22,280 --> 00:20:24,640
Speaker 3: someone isn't getting a drug that they need that day

345
00:20:25,480 --> 00:20:29,280
Speaker 3: or that hour, even if a court says two days later,

346
00:20:29,520 --> 00:20:31,080
Speaker 3: you've got to pay that money and you've got to

347
00:20:31,119 --> 00:20:34,560
Speaker 3: provide those resources, and then that winds its way through

348
00:20:34,600 --> 00:20:36,600
Speaker 3: the system, and then another day passes. You know that

349
00:20:36,640 --> 00:20:39,600
Speaker 3: person may lose their life in that interim, And so

350
00:20:40,040 --> 00:20:43,879
Speaker 3: multiply that by hundreds of thousands of potential cases, and

351
00:20:44,000 --> 00:20:46,920
Speaker 3: there's really a lot that can happen. Even if courts

352
00:20:46,920 --> 00:20:48,560
Speaker 3: are moving as fast as they can.

353
00:20:49,040 --> 00:20:52,400
Speaker 1: There are more than one hundred lawsuits already. It's sort

354
00:20:52,400 --> 00:20:54,720
Speaker 1: of astonishing and very hard to follow.

355
00:20:55,240 --> 00:20:57,760
Speaker 3: We're at the beginning rather than the end of this,

356
00:20:57,960 --> 00:20:59,840
Speaker 3: and that they're going to do more things. But we

357
00:20:59,840 --> 00:21:01,800
Speaker 3: have I haven't really seen you at of spoil litigation

358
00:21:02,080 --> 00:21:04,639
Speaker 3: trying to figure out what's going on inside of these agencies.

359
00:21:04,880 --> 00:21:08,280
Speaker 3: Because after you file a playact during twenty business days

360
00:21:08,320 --> 00:21:12,120
Speaker 3: before you can file litigation between the requests and the litigation,

361
00:21:12,320 --> 00:21:15,000
Speaker 3: and so we'll just be getting to the point where

362
00:21:15,040 --> 00:21:17,159
Speaker 3: you'll see lots of foil litigation and that's all going

363
00:21:17,200 --> 00:21:19,640
Speaker 3: to go to the same courts in DC, and there'll

364
00:21:19,640 --> 00:21:22,360
Speaker 3: be lots of rulings of various sorts, so it'll get

365
00:21:22,400 --> 00:21:23,040
Speaker 3: harder to follow.

366
00:21:23,400 --> 00:21:26,480
Speaker 1: Thanks so much for sharing your insights with us. That's

367
00:21:26,480 --> 00:21:30,280
Speaker 1: Columbia Law School professor Jamal Green coming up next on

368
00:21:30,320 --> 00:21:33,439
Speaker 1: the Bloomberg Law Show. The Supreme Court has dealt a

369
00:21:33,480 --> 00:21:38,600
Speaker 1: severe blow to a Holocaust survivor's lawsuit to recover compensation

370
00:21:38,880 --> 00:21:42,280
Speaker 1: from Hungary. I'm June Gross. When you're listening to Bloomberg.

371
00:21:43,920 --> 00:21:47,800
Speaker 1: The Supreme Court justices have struggled in several recent cases

372
00:21:48,040 --> 00:21:52,280
Speaker 1: brought by Holocaust survivors against foreign countries with how to

373
00:21:52,359 --> 00:21:58,000
Speaker 1: balance potential international friction with congressional intent to redress World

374
00:21:58,040 --> 00:22:01,720
Speaker 1: War Two wrongs. In at least cases, and in the

375
00:22:01,800 --> 00:22:05,280
Speaker 1: latest case, the Court dealt a severe blow to Holocaust

376
00:22:05,359 --> 00:22:09,480
Speaker 1: survivors and their families in a long running lawsuit seeking

377
00:22:09,560 --> 00:22:14,320
Speaker 1: compensation from Hungary for property confiscated during World War II.

378
00:22:14,840 --> 00:22:18,280
Speaker 1: In a unanimous ruling, the justices took a narrow view

379
00:22:18,680 --> 00:22:23,160
Speaker 1: of when suits involving properties stolen from Holocaust victims can

380
00:22:23,200 --> 00:22:26,719
Speaker 1: be litigated in US courts. The court found that the

381
00:22:26,760 --> 00:22:31,040
Speaker 1: survivors couldn't meet the exception to the Foreign Sovereign Immunities Act,

382
00:22:31,320 --> 00:22:35,000
Speaker 1: which allows suits in American courts for property taken in

383
00:22:35,160 --> 00:22:39,840
Speaker 1: violation of international law if there's a sufficient connection between

384
00:22:39,920 --> 00:22:44,040
Speaker 1: the property taken and commercial activity in the US. And

385
00:22:44,080 --> 00:22:48,040
Speaker 1: the justices found that their legal theory that Hungry sold

386
00:22:48,080 --> 00:22:51,800
Speaker 1: off the property, mixed the proceeds with its general funds

387
00:22:52,040 --> 00:22:55,080
Speaker 1: and used that commingled money to issue bonds and by

388
00:22:55,160 --> 00:22:59,119
Speaker 1: military equipment in the US, and the two thousands didn't

389
00:22:59,119 --> 00:23:02,240
Speaker 1: meet the exception. Joining me is a Pellet attorney mc

390
00:23:02,440 --> 00:23:06,160
Speaker 1: sun Guila, a partner at the Complex Appellet Litigation Group.

391
00:23:06,440 --> 00:23:08,919
Speaker 1: This case has been going on since twenty ten. Just

392
00:23:09,040 --> 00:23:11,320
Speaker 1: I mean it's been at the Supreme Court before. Tell

393
00:23:11,400 --> 00:23:12,800
Speaker 1: us what it's about.

394
00:23:13,520 --> 00:23:17,920
Speaker 5: This case against Hungary is on behalf of Holocaust survivors

395
00:23:18,200 --> 00:23:22,679
Speaker 5: or their heirs who were taken as part of the

396
00:23:22,680 --> 00:23:26,680
Speaker 5: Holocaust en route. The train company took all of their

397
00:23:26,720 --> 00:23:32,840
Speaker 5: property pursuant to Hungary's laws that said that Jews property

398
00:23:32,880 --> 00:23:36,280
Speaker 5: belongs to the state. And so the survivors and their

399
00:23:36,320 --> 00:23:40,240
Speaker 5: heirs are saying, hey, you know, we want some compensation

400
00:23:40,520 --> 00:23:43,440
Speaker 5: for that property that was taken from us, and it's

401
00:23:43,480 --> 00:23:47,240
Speaker 5: been just an ongoing, as you mentioned twenty ten, an

402
00:23:47,280 --> 00:23:51,880
Speaker 5: ongoing uphel battle for those errors to bring those claims

403
00:23:52,080 --> 00:23:55,199
Speaker 5: in US court. And really we're still at the pleating stages.

404
00:23:55,240 --> 00:23:58,960
Speaker 5: I mean, that's one of the amazing things that really

405
00:23:59,000 --> 00:24:00,840
Speaker 5: struck me when I was reading in the Court's opinion

406
00:24:00,880 --> 00:24:04,399
Speaker 5: in this cases, like, Oh, we're just talking about standards

407
00:24:04,440 --> 00:24:07,919
Speaker 5: for foreign sovereign immunity and exceptions to it, really just

408
00:24:07,960 --> 00:24:10,760
Speaker 5: at the pleating stage, you know, the question of proof

409
00:24:10,880 --> 00:24:14,720
Speaker 5: that's to work out later. And it just struck me, like,

410
00:24:15,000 --> 00:24:17,920
Speaker 5: we're still at the pleating stage, you know, after that long.

411
00:24:18,800 --> 00:24:22,240
Speaker 1: So the problem that the plaintiffs or survivors here are

412
00:24:22,280 --> 00:24:26,040
Speaker 1: facing is they have to fit within the exception to

413
00:24:26,119 --> 00:24:29,960
Speaker 1: the Foreign Sovereign Immunities Act. So they have to show

414
00:24:30,160 --> 00:24:33,959
Speaker 1: a sufficient connection between the property that was taken and

415
00:24:34,040 --> 00:24:37,639
Speaker 1: commercial activity in the US. How are they trying to

416
00:24:37,680 --> 00:24:38,000
Speaker 1: do that?

417
00:24:38,680 --> 00:24:42,479
Speaker 5: Yeah, exactly, that's the question. And as the Court pointed

418
00:24:42,520 --> 00:24:44,800
Speaker 5: out in his opinion, it said, oh, well, if this were,

419
00:24:44,960 --> 00:24:48,840
Speaker 5: as it often is in Holocaust cases, a tangible asset

420
00:24:49,080 --> 00:24:52,120
Speaker 5: like a painting, then we could trace that. We could say, oh,

421
00:24:52,119 --> 00:24:55,080
Speaker 5: it's owned by someone here, we've found it here or

422
00:24:55,640 --> 00:24:57,840
Speaker 5: you know, there was some kind of movement through through

423
00:24:57,880 --> 00:25:01,359
Speaker 5: the US of funds from this sale of that. But

424
00:25:01,680 --> 00:25:06,199
Speaker 5: here where we really have a commingling into really the

425
00:25:06,280 --> 00:25:10,680
Speaker 5: general treasury of Hungary. And because it's so long ago,

426
00:25:11,240 --> 00:25:14,879
Speaker 5: really what the theory that the survivors in their errors

427
00:25:14,960 --> 00:25:17,720
Speaker 5: have and really the only one they can have given

428
00:25:17,760 --> 00:25:20,320
Speaker 5: the passage of time and the way their property was

429
00:25:20,440 --> 00:25:23,000
Speaker 5: just added to the rest of the property for the state.

430
00:25:23,560 --> 00:25:28,200
Speaker 5: The theory they're proceeding on is a commingling theory saying, okay,

431
00:25:28,560 --> 00:25:31,480
Speaker 5: you know it was mingled with other assets of this state.

432
00:25:31,640 --> 00:25:36,000
Speaker 5: The states purchased and did some commercial activities within the US,

433
00:25:36,320 --> 00:25:40,080
Speaker 5: and we do not need to directly trace that money

434
00:25:40,280 --> 00:25:43,920
Speaker 5: to our property or our heir's property. Is that would

435
00:25:43,920 --> 00:25:47,720
Speaker 5: just be too burdensome and unreasonable to expect us to

436
00:25:47,760 --> 00:25:51,479
Speaker 5: be able to do. And so this general commingling of

437
00:25:51,640 --> 00:25:56,000
Speaker 5: funds of fungible funds in this case money is enough.

438
00:25:56,080 --> 00:25:58,760
Speaker 5: That's enough for us to show that we fit within

439
00:25:58,800 --> 00:26:02,199
Speaker 5: this exception for the Foreign Sovereign Communities Act. And the

440
00:26:02,280 --> 00:26:05,720
Speaker 5: court said no, you know, as a matter of pleading,

441
00:26:06,320 --> 00:26:09,359
Speaker 5: they said, not proof. And then's necessarily in this case

442
00:26:09,880 --> 00:26:12,840
Speaker 5: that you can't do that. You have to show some

443
00:26:12,960 --> 00:26:17,639
Speaker 5: kind of tracing. And they rely on the s touchtory

444
00:26:17,680 --> 00:26:21,080
Speaker 5: text of the Foreign Sovereign Communities Act and what it

445
00:26:21,160 --> 00:26:24,800
Speaker 5: is meant to do, and the examples of prior cases

446
00:26:24,840 --> 00:26:27,679
Speaker 5: where the court is said, yeah, this is enough to

447
00:26:27,800 --> 00:26:31,639
Speaker 5: track something and saying, well, this case is not like those.

448
00:26:32,200 --> 00:26:34,359
Speaker 5: Now the court is really careful to say we're not

449
00:26:34,480 --> 00:26:37,240
Speaker 5: saying you could never prove com England. We're not saying

450
00:26:37,280 --> 00:26:41,399
Speaker 5: you could never rely on this theory. We're just saying,

451
00:26:42,119 --> 00:26:46,760
Speaker 5: here as fled in this case under these circumstances, they

452
00:26:46,840 --> 00:26:51,520
Speaker 5: haven't even fled enough. So we're saying in federal court

453
00:26:51,560 --> 00:26:55,040
Speaker 5: that thing you haven't not that you haven't proven this,

454
00:26:55,320 --> 00:27:00,159
Speaker 5: but that you haven't even really pled a plausible theory

455
00:27:00,240 --> 00:27:03,720
Speaker 5: under your in your context, in your scenario under which

456
00:27:03,840 --> 00:27:08,399
Speaker 5: you could possibly establish commingling. So it's a really threshold

457
00:27:08,640 --> 00:27:10,520
Speaker 5: problem that they have in your case.

458
00:27:11,200 --> 00:27:15,680
Speaker 1: Were you surprised that it was a unanimous decision, not given.

459
00:27:15,880 --> 00:27:18,040
Speaker 5: Some of the careful wording in the decisions.

460
00:27:18,160 --> 00:27:19,000
Speaker 3: So I look at it.

461
00:27:19,320 --> 00:27:22,080
Speaker 5: I was reading the opinion and I'm thinking, well, yes,

462
00:27:22,240 --> 00:27:26,000
Speaker 5: all of them, and Justice stood in my rotate and

463
00:27:26,080 --> 00:27:30,080
Speaker 5: she you know, tends to be sympathetic to uh, to

464
00:27:30,200 --> 00:27:32,680
Speaker 5: these I mean, these are sympathetic claims. Let's just put

465
00:27:32,680 --> 00:27:34,760
Speaker 5: it that way. You know, you don't think of her

466
00:27:34,880 --> 00:27:37,160
Speaker 5: as being a justice who wants to close the door

467
00:27:37,440 --> 00:27:40,320
Speaker 5: to claims that would be as sympathetic as this. But

468
00:27:41,119 --> 00:27:44,440
Speaker 5: the phrasing, you know, they're very careful to say, we're

469
00:27:44,720 --> 00:27:49,280
Speaker 5: just looking at the statute, We're looking at the feedings

470
00:27:49,359 --> 00:27:52,679
Speaker 5: in this case and the context. Well, we're not saying

471
00:27:52,760 --> 00:27:57,160
Speaker 5: that there isn't a scenario where a commingling theory could

472
00:27:57,160 --> 00:28:01,000
Speaker 5: be used in another context in an another way. So

473
00:28:01,040 --> 00:28:05,520
Speaker 5: they're very carefully narrowing this. They also say, we're not

474
00:28:05,640 --> 00:28:09,000
Speaker 5: saying you can't bring your claims at all under this theory.

475
00:28:09,200 --> 00:28:12,000
Speaker 5: We're saying you cannot bring your claims.

476
00:28:11,520 --> 00:28:12,320
Speaker 3: In the US.

477
00:28:12,880 --> 00:28:17,000
Speaker 5: So in that way they're also recognizing, well, you know,

478
00:28:17,440 --> 00:28:20,840
Speaker 5: we're just have this threshold question of access to US courts.

479
00:28:20,960 --> 00:28:24,640
Speaker 5: The question would be to you errors and survivors, bring

480
00:28:25,440 --> 00:28:29,960
Speaker 5: your substan of claims elsewhere, just not the US. And

481
00:28:30,280 --> 00:28:33,239
Speaker 5: so they suggest, I think that's the way of you know,

482
00:28:33,240 --> 00:28:36,679
Speaker 5: maybe feeling a little better about closing the courthouse doors

483
00:28:36,680 --> 00:28:39,160
Speaker 5: and saying, well, we're not saying if that's the reason,

484
00:28:39,320 --> 00:28:42,200
Speaker 5: but you can bring them elsewhere perhaps, So I think

485
00:28:42,240 --> 00:28:45,440
Speaker 5: that's how you all of those things in the opinion.

486
00:28:45,920 --> 00:28:48,320
Speaker 5: I think it's how you get the unanimous opinion.

487
00:28:48,880 --> 00:28:51,840
Speaker 1: So I mean, to me, it made sense because you

488
00:28:51,840 --> 00:28:55,600
Speaker 1: know they really can't trace the funds. It's it's sort

489
00:28:55,640 --> 00:28:56,720
Speaker 1: of amorphous.

490
00:28:57,480 --> 00:29:00,760
Speaker 5: Well, I mean, I think that the question is a

491
00:29:00,800 --> 00:29:03,840
Speaker 5: statutory question and a question they're always concerned about in

492
00:29:03,880 --> 00:29:06,440
Speaker 5: the Sovereign community cases, which is, we don't want to

493
00:29:06,480 --> 00:29:10,160
Speaker 5: be too magnanimous in opening our courthouse stores because perhaps

494
00:29:10,200 --> 00:29:13,600
Speaker 5: other jurisdictions would do the same thing with us, sort

495
00:29:13,600 --> 00:29:16,160
Speaker 5: of as a matter to protect kind of things, So

496
00:29:16,200 --> 00:29:18,080
Speaker 5: we want to be very cautious about that. We also

497
00:29:18,120 --> 00:29:21,720
Speaker 5: want to be cautious because Congress, in enacting the Foreign

498
00:29:21,720 --> 00:29:24,720
Speaker 5: Sovereign Communities that was saying, well, there's certain kinds of

499
00:29:24,800 --> 00:29:28,240
Speaker 5: things that states will not get immunity for, and those

500
00:29:28,280 --> 00:29:31,880
Speaker 5: are really things that focus on commercial activities rather than

501
00:29:32,000 --> 00:29:35,080
Speaker 5: purely public activities. And so we want to be true

502
00:29:35,200 --> 00:29:37,960
Speaker 5: to what Congress has opened the door for as well.

503
00:29:38,440 --> 00:29:41,600
Speaker 5: So all of those things, and given the court questions,

504
00:29:42,040 --> 00:29:44,400
Speaker 5: the various members of the court questions that argument who

505
00:29:44,400 --> 00:29:47,120
Speaker 5: were concerned about this like, how would you apply a

506
00:29:47,160 --> 00:29:49,800
Speaker 5: tommun going tests? And you know how narrow would the

507
00:29:49,800 --> 00:29:53,760
Speaker 5: court house door be open if we really allowed this

508
00:29:53,960 --> 00:29:58,840
Speaker 5: without any proof of requirement of tracing. So it does

509
00:29:58,840 --> 00:30:01,840
Speaker 5: seem like it flows from questions at argument and the

510
00:30:02,120 --> 00:30:08,440
Speaker 5: overall tendency to really hew the language and the Foreign

511
00:30:08,440 --> 00:30:09,480
Speaker 5: Sovereign Communities Act.

512
00:30:10,240 --> 00:30:12,520
Speaker 1: I think we discussed it in twenty twenty one when

513
00:30:12,520 --> 00:30:16,240
Speaker 1: the Justice has sided with Germany in the dispute over

514
00:30:16,400 --> 00:30:21,680
Speaker 1: the religious art works in these Holocaust recovery cases, has

515
00:30:21,720 --> 00:30:27,200
Speaker 1: the court been generally ruling against the survivors who are

516
00:30:27,240 --> 00:30:28,600
Speaker 1: trying to get their property back.

517
00:30:29,760 --> 00:30:33,080
Speaker 5: Yeah, in large part, it's been a very upheld battle

518
00:30:33,320 --> 00:30:38,560
Speaker 5: for those who seek to recover property, including artworks, in

519
00:30:38,640 --> 00:30:42,720
Speaker 5: Holocaust recovery cases in the US. That's not to say

520
00:30:42,720 --> 00:30:45,960
Speaker 5: there haven't been some successes, but I would point out

521
00:30:46,000 --> 00:30:49,560
Speaker 5: even in the Altman case from like two thousand and four,

522
00:30:49,680 --> 00:30:53,480
Speaker 5: which was decited favorably by the US Supreme Court under

523
00:30:53,480 --> 00:30:56,320
Speaker 5: the Foreign Sovereign Communities Act, under which the Court said, yes,

524
00:30:56,480 --> 00:31:00,680
Speaker 5: you can sue Austria for your climped paintings. Less court

525
00:31:01,240 --> 00:31:04,280
Speaker 5: Maria Alban ended up opting out of that and going

526
00:31:04,360 --> 00:31:08,160
Speaker 5: to arbitration in Austria and eventually recovering her paintings that way.

527
00:31:08,440 --> 00:31:11,040
Speaker 5: And you know, part of the calculus of that, no doubt,

528
00:31:11,080 --> 00:31:14,120
Speaker 5: was like how long it takes to get your claim

529
00:31:14,320 --> 00:31:18,280
Speaker 5: through court in the United States, your your Holocaust recovery

530
00:31:18,280 --> 00:31:21,400
Speaker 5: claims like this one decades and you know, we never

531
00:31:21,440 --> 00:31:25,160
Speaker 5: got to the substance of it. So there are you know,

532
00:31:25,200 --> 00:31:29,000
Speaker 5: some hard decisions that claimants in these cases have to

533
00:31:29,040 --> 00:31:33,960
Speaker 5: make in terms of where they go to resolve these claims.

534
00:31:34,400 --> 00:31:39,080
Speaker 5: And there's actually a movement within Europe. Germany has a commission.

535
00:31:39,160 --> 00:31:40,960
Speaker 5: Now there are a lot of countries who are setting

536
00:31:41,080 --> 00:31:46,480
Speaker 5: up their own commission somewhat like arbitral bodies, in order

537
00:31:46,560 --> 00:31:51,000
Speaker 5: to decide on the merits these Holocaust claims, largely art

538
00:31:51,000 --> 00:31:54,520
Speaker 5: recovery claims, but other kinds of claims too, because you know,

539
00:31:54,560 --> 00:31:55,480
Speaker 5: people want closure.

540
00:31:55,680 --> 00:31:58,480
Speaker 1: Speaking of not getting closure, the court sent this back

541
00:31:58,560 --> 00:32:03,360
Speaker 1: to the Ure's appeals court for the DC Circuit. I mean,

542
00:32:03,440 --> 00:32:06,680
Speaker 1: what's left of the lawsuit after this, although the DC

543
00:32:06,840 --> 00:32:11,400
Speaker 1: Circuit has ruled for them time and time again. Yeah, exactly.

544
00:32:11,440 --> 00:32:13,640
Speaker 5: We talked about that last time, listending it back to

545
00:32:13,680 --> 00:32:16,520
Speaker 5: the DC Circuit to try and find you know, one

546
00:32:16,560 --> 00:32:20,440
Speaker 5: more slim read through which perhaps they can allow the

547
00:32:20,560 --> 00:32:24,400
Speaker 5: case to continue. I mean, under the decision here, it

548
00:32:24,520 --> 00:32:27,440
Speaker 5: certainly seems to close the door on the commingling theory,

549
00:32:27,760 --> 00:32:30,560
Speaker 5: not in other cases, but in this case. So I know,

550
00:32:30,600 --> 00:32:33,280
Speaker 5: I saw that disposition, and I thought, well, to do

551
00:32:33,400 --> 00:32:37,560
Speaker 5: what now? What is left not on the Kommingling point

552
00:32:37,600 --> 00:32:40,240
Speaker 5: for sure at the pleating stage. So I don't know.

553
00:32:40,400 --> 00:32:44,280
Speaker 5: It would have to be some alternative ethery or alternative ground.

554
00:32:44,320 --> 00:32:47,120
Speaker 5: But this is really the key question. Can you be

555
00:32:47,200 --> 00:32:49,680
Speaker 5: in US court at all? So I don't know if

556
00:32:49,680 --> 00:32:53,720
Speaker 5: they have another theory on which to remain in the

557
00:32:53,800 --> 00:32:54,640
Speaker 5: United States Court.

558
00:32:55,800 --> 00:32:59,840
Speaker 1: And the Supreme Court is considering taking yet another case

559
00:33:00,520 --> 00:33:05,120
Speaker 1: involving the recovery of art by a Holocaust survivor, and

560
00:33:05,160 --> 00:33:10,680
Speaker 1: this involves a Psorrow painting that Spain has possession of.

561
00:33:10,960 --> 00:33:12,640
Speaker 1: And we've discussed this one before.

562
00:33:12,400 --> 00:33:15,360
Speaker 5: Too, and that's been up and back to the US

563
00:33:15,480 --> 00:33:19,120
Speaker 5: and Court and the Ninth Circuit. And that has to

564
00:33:19,200 --> 00:33:22,160
Speaker 5: do with a choice of law question about whether Spanish

565
00:33:22,240 --> 00:33:28,920
Speaker 5: law applies or California law applies to determine whether the

566
00:33:28,920 --> 00:33:33,840
Speaker 5: foundation in Spain has now gained a right to the

567
00:33:33,880 --> 00:33:38,520
Speaker 5: painting by having had possession of it openly for so long.

568
00:33:39,080 --> 00:33:42,040
Speaker 5: And that is a theory that applies in Spanish law,

569
00:33:42,080 --> 00:33:44,720
Speaker 5: but it does not apply in California law. And so

570
00:33:44,880 --> 00:33:47,720
Speaker 5: once again the ninth clurkage. But Spanish law is the

571
00:33:47,840 --> 00:33:51,600
Speaker 5: right subsm of law to apply. Although certainly some members

572
00:33:51,640 --> 00:33:54,440
Speaker 5: of the Court were very set with this results and

573
00:33:54,520 --> 00:33:57,600
Speaker 5: felt that it didn't like the moral one. But in

574
00:33:57,640 --> 00:34:01,760
Speaker 5: the interim between that decision and this first petition, California

575
00:34:02,440 --> 00:34:06,640
Speaker 5: enacted a law retroactively that said California's substance of law

576
00:34:06,840 --> 00:34:10,719
Speaker 5: I'll apply impending in future cases brought by California residents

577
00:34:10,760 --> 00:34:14,240
Speaker 5: to recover stolen artworks in the possession of a museum.

578
00:34:14,400 --> 00:34:17,640
Speaker 5: So there's a cert petition pending on the underlying Night's

579
00:34:17,640 --> 00:34:20,319
Speaker 5: look At decision and the choice of law question. But

580
00:34:20,920 --> 00:34:23,640
Speaker 5: the first question in the petition has to do with page.

581
00:34:23,800 --> 00:34:27,520
Speaker 5: This court should just grant vacate and remand for application

582
00:34:27,600 --> 00:34:29,959
Speaker 5: of the choice of law statute, the brand new one

583
00:34:29,960 --> 00:34:33,319
Speaker 5: that California just enacted, which is the opposite of what

584
00:34:33,440 --> 00:34:36,200
Speaker 5: the nice look At had concluded. And then, of course,

585
00:34:36,280 --> 00:34:39,280
Speaker 5: if the Court doesn't do that, then the third petition

586
00:34:39,360 --> 00:34:41,560
Speaker 5: asks the court to take the case up on the

587
00:34:41,560 --> 00:34:45,520
Speaker 5: merits of the Nine Circus decision and choice of law decision,

588
00:34:45,800 --> 00:34:48,440
Speaker 5: and also to look at the impact of treaties and

589
00:34:48,560 --> 00:34:52,960
Speaker 5: international law on policies and agreements on US law and

590
00:34:53,040 --> 00:34:56,400
Speaker 5: choice of law questions. So it's a juicy petition but

591
00:34:56,480 --> 00:35:00,600
Speaker 5: with a really potentially quick, you know, remand I'm given

592
00:35:00,960 --> 00:35:02,400
Speaker 5: the new California.

593
00:35:01,920 --> 00:35:04,960
Speaker 1: Statue and this is one of the reasons why these

594
00:35:05,000 --> 00:35:08,759
Speaker 1: cases go on and on. Thanks so much, MC. That's

595
00:35:08,920 --> 00:35:12,839
Speaker 1: mcsun Gila of the Complex Appellate Litigation Group. And that's

596
00:35:12,880 --> 00:35:15,480
Speaker 1: it for this edition of The Bloomberg Law Show. Remember

597
00:35:15,520 --> 00:35:17,600
Speaker 1: you can always get the latest legal news on our

598
00:35:17,640 --> 00:35:21,799
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

599
00:35:21,960 --> 00:35:27,000
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

600
00:35:27,400 --> 00:35:30,000
Speaker 1: and remember to tune into The Bloomberg Law Show every

601
00:35:30,040 --> 00:35:33,960
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

602
00:35:34,080 --> 00:35:35,680
Speaker 1: and you're listening to Bloomberg