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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: On the first day of his second term, President Donald

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Speaker 2: Trump granted full pardons or commutations to the more than

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Speaker 2: fifteen hundred people convicted or charged in the January sixth

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Speaker 2: riots at the US Capitol four years ago.

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Speaker 1: So this is.

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Speaker 2: January sixth, and these are the hostages, approximately fifteen hundred

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Speaker 2: for a pardon, Yes, full pardon. That was just the

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Speaker 2: beginning of what has been something of a pardoning spree

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Speaker 2: for Trump. Today was the convicted founder of the crypto

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Speaker 2: exchange Binance Chaopeng Jao. Last week it was convicted former

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Speaker 2: Republican Congressman George Santos. But it's one thing to be

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Speaker 2: cleared by the president. It's another to be cleared by

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Speaker 2: the banks. And some of the people pardoned during Trump's

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Speaker 2: first term found that out when they were debanked. Joining

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Speaker 2: me is Bloomberg Senior reporter Tom Schoenberg. Tom. Republican fundraiser

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Speaker 2: Elliot Brody, who was convicted for violating a lobbying law,

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Speaker 2: and former CFO of social media company x Ma mood Raised,

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Speaker 2: a BANKI who was convicted of making false statements, were

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Speaker 2: both pardoned at the end of Trump's first term, but

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Speaker 2: explain how those White House reprieves only go so far.

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Speaker 3: So both, you know, mister Broydy and mister Banky kind

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Speaker 3: of recently within the you know, last year or so

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Speaker 3: sought banking services. Both had applied, you know, for credit

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Speaker 3: Brody from American Express, Bonki from JP Morgan and were

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Speaker 3: denied and as they pushed for explanation as to why,

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Speaker 3: in both instances, were told that it was due to

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Speaker 3: a criminal record that they had had, you know, that

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Speaker 3: was tied to the pardon that they received from President

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Speaker 3: Trump in his first term. With bank it had also

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Speaker 3: meant he had applied for a credit card with Bank

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Speaker 3: of America and a five twenty nine account that involved

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Speaker 3: a fidelity and the same situation he was denied accounts

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Speaker 3: or denied access to credit.

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Speaker 2: Is there really a term debanked?

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Speaker 4: There is now there?

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Speaker 3: I mean, it's a good question because when I was

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Speaker 3: interviewing people for the article, including Liz Oyer, who is

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Speaker 3: former parton attorney at the Justice Department.

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Speaker 4: She asked, well, what is to banking?

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Speaker 3: Because you know, until recently it was it wasn't really

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Speaker 3: a term, but it is now and is also used

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Speaker 3: in both these lawsuits that were brought by mister Brody

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Speaker 3: and mister Banking.

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Speaker 2: Is a pardon meant to erase the legal conviction on

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Speaker 2: your record? Or is it meant to wipe the slate clean?

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Speaker 3: Really, in terms of how it's been interpreted, it really

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Speaker 3: is race. Is that legal stain of the conviction?

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Speaker 4: Right?

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Speaker 3: And I think in terms of financial services, what these

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Speaker 3: cases are sort of raising to an extent is does

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Speaker 3: that necessarily override these risk assessments of private lender that

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Speaker 3: are required under law to prevent against money laundering and

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Speaker 3: to know their customer, which usually is a look back

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Speaker 3: on their history, both financial but also criminal history.

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Speaker 2: When you get a pardon, is your criminal record expunged

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Speaker 2: or is there sort of a big red stamp on it,

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Speaker 2: you know, pardon.

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Speaker 3: So if you go to the criminal dockets, you would

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Speaker 3: see their note at the case was dismissed or you

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Speaker 3: would see that pardon in there in some fashion. So

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Speaker 3: for mister Broydy, he had pleaded guilty to account of

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Speaker 3: conspiring to violate the Foreign Agent's Registration Act in October

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Speaker 3: twenty twenty, but he would yet to be sentenced to

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Speaker 3: when President Trump pardoned him. So what you see in

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Speaker 3: his record, is you see that his attorneys moved to

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Speaker 3: dismiss the case because of that, which then happens, So

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Speaker 3: it's logged there. In terms of mister a Banky, you know,

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Speaker 3: he was convicted way back in twenty ten of multiple

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Speaker 3: crimes tied to Iranian sanctions, and on appeal two of

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Speaker 3: those counts were thrown out, so he had one sort

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Speaker 3: of remaining conviction when he was pardoned for false statements

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Speaker 3: to investigators. So in terms of banking, when you pull

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Speaker 3: up sort of say the press release from the Manhattan

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Speaker 3: US Attorney's office, at the top you will see an update.

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Speaker 4: On there in red.

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Speaker 3: So the press release stays laying out, you know, extensively

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Speaker 3: what he was convicted of by a jury, but at

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Speaker 3: the top in red it says, you know, update and

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Speaker 3: it notes both the appellate and then it says, you know,

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Speaker 3: he received a presidential.

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Speaker 4: Pardon for the fourth conviction.

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Speaker 3: So the record remains, and you can also pull up

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Speaker 3: those cases and you can look at transcripts and see,

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Speaker 3: you know, in the case of mister Broydy, what he

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Speaker 3: said to the judge at the time when he was

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Speaker 3: pleading guilty.

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Speaker 2: Who is representing Boydie and Banky.

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Speaker 4: Yeah.

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Speaker 3: So they're represented by a firm called Share Jaffy. It's

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Speaker 3: a boutique firm here in Washington, d C. They've really

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Speaker 3: done a lot of work on sort of political conservative causes.

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Speaker 3: They've brought cases on behalf of America First Legal, which

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Speaker 3: is an advocacy group that was co founded by current

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Speaker 3: White House Deputy Chief of Staff Stephen Miller. They've also

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Speaker 3: did a lot on behalf of Elon Musk some years

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Speaker 3: ago when he said he would have legal representation for

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Speaker 3: people that it may have been penalized for what they've

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Speaker 3: said on his social media network Twitter and then x

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Speaker 3: and so they famously kind of represented a Disney actress

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Speaker 3: who had lost her job because some postings online. Those

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Speaker 3: are just a flavor of some of the cases that

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Speaker 3: they've they've brought.

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Speaker 2: Some maga people think that conservatives are being debanked for

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Speaker 2: their political belief and you're right that it's become an

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Speaker 2: obsession with some including President Trump.

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Speaker 3: Yes, I mean President Trump or and the Trump Organization

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Speaker 3: has sued Capital One Financial Core making accusations that they

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Speaker 3: had improperly kind of closed hundreds of accounts that the

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Speaker 3: Trump organization had and Capital ones denied any sort of

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Speaker 3: wrongdoing here. They moved to have the case dismissed. You know,

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Speaker 3: that's in front of a judge right now, and you know,

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Speaker 3: the argument on their end is that they had the

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Speaker 3: right to cancel accounts based on sort of the contracts

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Speaker 3: that they had for those accounts. You know, it's been

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Speaker 3: a personal issue for the president. Additionally, in August, he

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Speaker 3: issued an executive order directly at this issue, called Guaranteeing

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Speaker 3: Fair Banking for All Americans, in which he sort of

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Speaker 3: calls out the quote unquote de banking of you know,

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Speaker 3: specifically conservatives and others for you know, whether political or

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Speaker 3: religious reasons, and orders financial regulators to remove some of

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Speaker 3: the standards they had in reviewing accounts at institutions, as

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Speaker 3: well as kind of looking back and see whether any

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Speaker 3: people's accounts had been closed due to whether political, religious reasons,

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Speaker 3: or some other sort of unfair determination.

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Speaker 4: So that's ongoing right now.

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Speaker 2: I mean, is there any evidence that banks are targeting

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Speaker 2: specifically targeting conservatives because of their political views.

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Speaker 3: After January sixth, there were a lot of sort of

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Speaker 3: stories coming out. You know, there was a lot of

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Speaker 3: concern that people were losing their accounts in some way.

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Speaker 3: I mean, banks have a lot of leeway in terms

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Speaker 3: of deciding whether to close an account. They kind of

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Speaker 3: used this term reputational risk. That's kind of a catch

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Speaker 3: all when sort of making those determinations, and then also

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Speaker 3: includes sort of looking at you know, news media accounts

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Speaker 3: involving people. It's one thing they look at. And so

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Speaker 3: I've seen it on sort of both ends. I mean,

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Speaker 3: I think on the Democratic side, Elizabeth Warren and others

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Speaker 3: have also been very vocal about claiming that certain Americans

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Speaker 3: were losing their banking, specifically Muslim Americans, you know, So

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Speaker 3: it has been on both sides of the political aisle.

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Speaker 2: Since the executive order, have banks been making changes.

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Speaker 3: Some got out ahead of that, you know, JP Morgan,

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Speaker 3: you know, beginning even after the election last year, had

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Speaker 3: started making changes, you know, both in public materials and

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Speaker 3: then in their own policies, specifically noting that that it

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Speaker 3: would not you know, base decision making on accounts on

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Speaker 3: religious or political views. So you're seeing it there. You're

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Speaker 3: even seeing it in terms of these cases. Mister Bonkey.

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Speaker 3: You know, one of the things that happened after he

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Speaker 3: brought his case over not receiving credit from JP Moore.

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Speaker 3: Is it happened that he had two accounts at another

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Speaker 3: institution called First Republic Bank, which in twenty twenty three

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Speaker 3: had collapsed and was taken over by JP Morgan, and

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Speaker 3: that included two of his accounts. So initially they had

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Speaker 3: moved to close those two accounts, with one of their

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Speaker 3: anti money laundering executives selling the court due to his

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Speaker 3: earlier conviction. Once this lawsuit was sort of underway and

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Speaker 3: he moved for a temporary restraining order to stop them

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Speaker 3: from closing those accounts. JP Morgan kind of reversed itself

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Speaker 3: and they made the decision. They told us that they

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Speaker 3: looked at, you know, that appeal that he was successful

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Speaker 3: on with some of the criminal accounts.

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Speaker 4: They also looked at it had.

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Speaker 3: Been fifteen years to them that this time had gone

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Speaker 3: by without any other sort of criminal allegation against him,

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Speaker 3: and so they're going to keep those accounts open. So

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Speaker 3: you're so also seeing it here at this level in

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Speaker 3: the litigation.

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Speaker 2: Did Broidy ever get an American Express card?

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Speaker 3: Unclear at the moment, but in terms of his matter,

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Speaker 3: you know, his company, Broady Capital, an investment firm, and

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Speaker 3: the company had an American Express card. You know, it

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Speaker 3: was under his operations manager's name. He wanted one for

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Speaker 3: himself and that's what sort of sparked all this when

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Speaker 3: they denied him. And you know, at the moment, this

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Speaker 3: is still in litigation. In fact, there's a you know,

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Speaker 3: a hearing this week in the matter. And on American

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Speaker 3: Express's end, they are telling me the judge that they

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Speaker 3: need to dismiss his case because these card member agreements

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Speaker 3: account agreements usually require that dispute to be handled and arbitration, and.

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Speaker 2: From the bank's point of view, explain why they might

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Speaker 2: not want to extend credit to someone who was convicted

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Speaker 2: of a crime, especially financial crimes.

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Speaker 4: Right.

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Speaker 3: Well, so it's really a liability issue for the banks

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Speaker 3: that they're making these assessments. They have to comply under

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Speaker 3: the law. You know that the people who they're giving

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Speaker 3: access to the US financial system too are not going

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Speaker 3: to be using it for illicit purposes.

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Speaker 4: So you have a twofold one.

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Speaker 3: If someone's a fraudster, the bank itself could later be

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Speaker 3: sued by victims claiming that they didn't do enough. They

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Speaker 3: can also be penalized for the government for not abiding

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Speaker 3: by all the rules and regulations to ensure that we have,

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Speaker 3: you know, a safe banking system. So if somebody has

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Speaker 3: some type of financial crime on the record, that's going

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Speaker 3: to be looked at very closely by the bank. You know,

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Speaker 3: in terms of how aggressive they are in this space.

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Speaker 3: Talking to a number of defense lawyers, a lot of

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Speaker 3: times people lose their banking even at the first sign

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Speaker 3: of an investigation, let alone a conviction. So you know,

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Speaker 3: it's quite common for a bank to receive a subpoena

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Speaker 3: even for records of somebody you know, related to a case,

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Speaker 3: and immediately cut off an account. So someone might learn

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Speaker 3: their under investigation just by losing access to their banking.

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Speaker 3: It's kind of a large wave in terms of you know,

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Speaker 3: investigation and losing banking.

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Speaker 2: It's really been a fascinating conversation. Thanks so much, Tom.

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Speaker 2: That's Tom Schoenberg, Bloomberg Senior Reporter. The Trump administration got

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Speaker 2: some serious pushback from a panel of Ninth Circuit Appellate

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Speaker 2: judges during oral arguments over the administration's deployment of thousands

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Speaker 2: of California National Guard troops to Los Angeles. In June.

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Speaker 2: San Francisco Federal Judge Charles Bryer had ruled in September

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Speaker 2: that Trump's deployment violated the Posse Comma Tatis Act, a

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Speaker 2: nineteenth century law that bars using the military for civilian

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Speaker 2: law enforcement. The Trump administration appealed, and Judge Eric Miller

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Speaker 2: was one of the appellate judges who sounded skeptical that

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Speaker 2: the protests were violent riots that created an exception to

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Speaker 2: Possecomma tatis. He questioned the Justice Department's attorney, Eric MacArthur

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Speaker 2: about the extent of the protests.

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Speaker 4: Why is.

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Speaker 5: A couple of hundred people engaging in disorderly conduct and

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Speaker 5: throwing things that of building over the course of two

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Speaker 5: days of comparable severity to an invasion or a rebellion. Well,

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Speaker 5: because violence is being used to thwart enforcement of federal law.

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Speaker 5: And I don't know, but violence is used to thwart

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Speaker 5: enforcement to federal law all the time. Well, right, I mean,

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Speaker 5: like the FBI goes to arrest somebody and he shoots

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Speaker 5: at them or tries to run away, and that happens

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Speaker 5: every day.

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Speaker 2: On the same day the oral arguments took place Wednesday,

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Speaker 2: the full Ninth Circuit declined to reyear on bank, meaning

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Speaker 2: the full court another decision allowing Trump's federalization of the

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Speaker 2: California National Guard. If it sounds confusing, that's because it is.

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Speaker 2: And here to help us sort it out is Joshua Castenberg,

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Speaker 2: a professor at the University of New Mexico Law School

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Speaker 2: and a former judge in the US Air Force. Josh

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Speaker 2: let's start with the oral arguments over the posse Cooma

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Speaker 2: toaddis Act. One of the things that Trump administration argued

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Speaker 2: was that the president has unreviewable power when it comes

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Speaker 2: to deploying the National Guard.

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Speaker 1: One of the things that the administration is arguing is

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Speaker 1: that if you go back to the beginning of the

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Speaker 1: country and you look at this case called Martin versus Mott,

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Speaker 1: which the Supreme Court rolled on in eighteen twenty seven,

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Speaker 1: coming out of the War of eighteen twelve, it just

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Speaker 1: took a while for that issue to percolate up to

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Speaker 1: the court that the president's authority to declare something an

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Speaker 1: emergency is non reviewable by the courts. That's what the

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Speaker 1: administration's position is, California's position, New York's position, the Illinois

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Speaker 1: position is that's not true that the president commander in

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Speaker 1: chief and the commander in chief's orders to his or

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Speaker 1: her troops may be non reviewable by the courts, but

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Speaker 1: the actual declaration of an emergency or the use of

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Speaker 1: those troops is clearly reviewable by the courts. So those

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Speaker 1: are two different things, and that's central to what the

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Speaker 1: Ninth Circuit is trying to rule on right now.

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Speaker 2: And so did it seem like the judges were skeptical

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Speaker 2: about the government's argument that they couldn't review it.

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Speaker 1: Well, I believe they are. I mean, when you say government,

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Speaker 1: there are several governments fighting each other in the court.

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Speaker 2: Let's say the Trump administration.

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Speaker 1: Yeah, I think the judges are skeptical about that. To me,

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Speaker 1: it goes back to the Youngstown sheet and Tube versus

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Speaker 1: Sawyer decision in the last days of the Harry Truman administration,

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Speaker 1: when Truman tried to make a similar argument. And the

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Speaker 1: thing is, you know, I go back to one of

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Speaker 1: the things that William O. Douglas mentioned his concurrence in

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Speaker 1: that plurality, which is, if a president is free to

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Speaker 1: declare anything as an emergency so to bridge the basic

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Speaker 1: rights of the people, then all will have in the

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Speaker 1: future is government by emergency. That it'll just be the

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Speaker 1: idea of a president. The laws in the way the

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Speaker 1: peacetime laws are in the way. So to avoid dealing

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Speaker 1: with the courts, I'm just going to declare things are

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Speaker 1: an emergency. And I think the Ninth Circuit is skeptical

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Speaker 1: of that argument, as they should be, because you know,

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Speaker 1: the courts and the country as a whole have already

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Speaker 1: been warned that that argument is a non starter when

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Speaker 1: it comes to domestic issues.

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Speaker 2: Another issue was whether the Trump had violated the Posse

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Speaker 2: Commatatis Act. So the White House had framed the protest

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Speaker 2: as violent riots, but Judge Eric Miller Trump pointde asked

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Speaker 2: why a few hundred people engaging in disorderly conduct over

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Speaker 2: two days was comparable to an invasion or a rebellion,

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Speaker 2: and he pushed the Trump administration lawyer on that.

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Speaker 1: Yeah, you know, as he should be skeptical. I mean

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Speaker 1: a riot, an insurrection, a rebellion, none of them have

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Speaker 1: you know, really true tight legal definitions. I look at

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Speaker 1: a rebellion, and I look at South Carolina militia firing

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Speaker 1: on Fort Sumter in eighteen sixty one, and that's clear

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Speaker 1: that that's a rebellion. Politicians have called things rebellions before

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Speaker 1: that are far short of a rebellion or an insurrection

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Speaker 1: and World War One, there was a group of farmers

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Speaker 1: in Oklahoma who thought they could march on Washington, d C.

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Speaker 1: To prevent the draft from occurring. They called it the

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Speaker 1: green Corn Rebellion. It's really just about a thousand farmers.

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Speaker 1: It wasn't a rebellion at all, and most of them

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Speaker 1: didn't make it out of state. So a rebellion or

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Speaker 1: an insurrection is something that either threatens to topple the

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Speaker 1: government or completely prevents the government from fulfilling its functions,

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Speaker 1: whether that's a federal or a state government. And that's

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Speaker 1: not at play here. You do have people breaking the law,

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Speaker 1: you also have the majority of people simply exercising their

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Speaker 1: constitutional rights of freedom of speech and freedom of assembly.

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Speaker 1: And if a president can call that a rebellion, an insurrection,

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Speaker 1: or an uncontrollable riot, we'll never hear the end of that.

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Speaker 1: That will be used to crush dissent. So I think

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Speaker 1: where the Trump appointee the judges coming down on, and

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Speaker 1: it's something I think we should all take to heart,

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Speaker 1: is this is not a case about whether or not

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Speaker 1: the president can use law enforcement. This is a case

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Speaker 1: about whether the president can use the military as law enforcement,

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Speaker 1: and that's what the Possecomma Tatis Law was drafted to

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Speaker 1: prevent in eighteen seventy seven. The Posse Cooma Tatis Act

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Speaker 1: comes into being partly as Southern demands to end reconstruction,

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Speaker 1: Southern demands to prohibit the use of the army to

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Speaker 1: enforce civil rights. Kind of as a sordid beginning, but

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Speaker 1: also it was a reflection on what the framers of

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Speaker 1: the Constitution feared, which was a standing army being used

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Speaker 1: to police the people, to course how they vote and

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Speaker 1: who would remain in office, and who remains in power

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Speaker 1: and the like. Until Donald Trump, the only president that

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Speaker 1: acted in a manner that I would say was heavy

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Speaker 1: handed was Grover Cleveland. And Grover Cleveland though at least

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Speaker 1: he had a US District Court injunction on his side.

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Speaker 1: During the Pullman strikes, you know, in the Midwest in

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Speaker 1: eighteen ninety five, there was a wide scale labor strike.

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Speaker 1: There were anarchists were a part of that strike, though

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Speaker 1: most of them are simply following Eugene Debs, who later

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Speaker 1: ran for president. But the strikers were preventing the mail

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Speaker 1: from going on trains, and so that's what Grover Cleveland

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Speaker 1: and his Attorney General, Richard Olney, latched onto when using

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Speaker 1: the army to suppress the strike, but again they had

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Speaker 1: gone to the courts first and gotten permission. Here you

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Speaker 1: have the president acting as though the courts don't matter,

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Speaker 1: as though the courts are not a coequal branch of government,

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Speaker 1: and he can use the military for anything he wants

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Speaker 1: and it's non reviewable. And I think that's where the

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Speaker 1: skepticism comes in from the Trump appointing. But there's one

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Speaker 1: other thing I'd point out. No one is opposing the

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Speaker 1: president enlarging the FBI. No one's opposing the president enlarging

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Speaker 1: ICE or any other federal police force. But the fundamental

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Speaker 1: difference between the FBI or ICE or any other federal

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Speaker 1: police force on the one side and the military on

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Speaker 1: the other is that the President of the United States

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Speaker 1: is not the commander in chief of the FBI. He's

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Speaker 1: still the chief executive. And the FBI is much more

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Speaker 1: free to question a president's orders and to say the

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Speaker 1: heck with this and walk off their job then the military.

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Speaker 1: And when a soldier, sailor airman, or marine gets an

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Speaker 1: order from the President, that soldier, sailor, airman, and marine

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Speaker 1: operates under a separate legal system, the Uniform Code of

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Speaker 1: Military Justice, and it is the only legal system in

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Speaker 1: the United States which places a burden of proof on

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Speaker 1: the defendant to prove that a presidential order is unlawful,

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Speaker 1: rather than the government having to prove that the order

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Speaker 1: is lawful. So the presumption of everyone in Uniform is

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Speaker 1: the President orders me to do this, I have no

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Speaker 1: choice but to do. If I don't, I may end

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Speaker 1: up with a dishonorable discharge and a long sentence in

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Speaker 1: a military prison. And I think that smart judges understand

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Speaker 1: that distinction, and that's why the Posse Comma Tatis Act

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Speaker 1: is so important, as well as the framers of the

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Speaker 1: Constitution and their division of power and checks and balances

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Speaker 1: and the fear of standing armies.

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Speaker 2: I mean, there are so many seemingly conflicting opinions out

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Speaker 2: there on Trump's sending troops in so On Wednesday, the

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Speaker 2: full Ninth Circuit declined to hear Newsome versus Trump on

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Speaker 2: bank meaning by a full court bench, and so that

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Speaker 2: basically uphosed the ruling that permits Trump to maintain federal

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Speaker 2: authority over California National Guard troops that were deployed in

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Speaker 2: Los Angeles during the protest. At the same time, you

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Speaker 2: had these oral arguments also at the Ninth Circuit over

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Speaker 2: whether Trump's deployment of the troops to LA violated the

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Speaker 2: Posse Commatatis Act. Though that seems to be on its

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Speaker 2: face a conflict. Explain why it isn't.

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Speaker 1: That's a great question. So this is what's going on.

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Speaker 1: No member of the bench, on the one hand, want

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Speaker 1: to prevent the president from having the authority to federalize

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Speaker 1: the Guard. There would be no desire, for example, if

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Speaker 1: China were to invade an ally or Russia were to

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Speaker 1: invade an ally, that the Court should be called to

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Speaker 1: intervene on a presidential call up. No one wants to

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Speaker 1: spend time in the courts if there's a real, no kidding,

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Speaker 1: real national emergency where the President would have to call

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Speaker 1: up the Guard, say a massive earthquake or typhoon disrupts

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Speaker 1: and disables the Eastern Seaboard or California. So there's a

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Speaker 1: reluctance to intervene in the president calling up the Guard.

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Speaker 1: But it's what the president does when the Guard is

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Speaker 1: called into federal service or using active duty forces, particularly

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Speaker 1: the army, which that's what the posse Cooma Tatis Act

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Speaker 1: covers this doesn't cover the Marine Corps. There's a fundamental

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Speaker 1: difference between that what the president does with the military

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Speaker 1: versus calling up And I think that's what part of

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Speaker 1: the confusion is with these myriad of cases. The other

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Speaker 1: has to do with whether or not a temporary restraining

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Speaker 1: order should stay in effect or not. And just keep

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Speaker 1: in mind that a president or any party may lose

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Speaker 1: on a temporary restraining order but then win later on

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Speaker 1: on the substantive issue or vice versa, And so you

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Speaker 1: get all these sort of convoluted, you know, decisions. What

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Speaker 1: is the standard, what is the question being raised under

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Speaker 1: the standard? And to the general public, who isn't trained

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Speaker 1: in the law, it looks like the court is sea

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Speaker 1: sawing between various things and making no sense. But that

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Speaker 1: that's really not what's going on. It's that there are

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Speaker 1: these nuances questions.

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Speaker 2: Coming up next. But what about the conflicting opinions from

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Speaker 2: the Ninth and Seventh Circuits, one allowing Trump to send

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Speaker 2: troops into Portland, Oregon, the other barring Trump from sending

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Speaker 2: troops to Chicago, Illinois. You're listening to Bloomberg. President Trump's

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Speaker 2: push to send the military into democratic run cities despite

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Speaker 2: fearce opposition from state and local leaders has unleashed a

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Speaker 2: whirlwin of lawsuits and overlapping court rulings. Some just seem

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Speaker 2: to be contradictory, others are contradictory. I've been talking to

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Speaker 2: Professor Joshua Castenberg at the University of New Mexico Law School.

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Speaker 2: Even for those of us who know, does it seem

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Speaker 2: like courts are coming down with different decisions Because you

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Speaker 2: had the Seventh Circuit saying that no, you can't send

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Speaker 2: troops into Chicago, Illinois, and then you had the Ninth

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Speaker 2: Circuit panel with two Trump appointees saying you can send

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Speaker 2: them into Portland. You know, the facts were slightly different,

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Speaker 2: but not that different.

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Speaker 1: You know. It's actually what you say is a great point.

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Speaker 1: Two different federal circuits ruling differently on similar issues is

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Speaker 1: not unheard of, and generally that's what gets a case

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Speaker 1: into the Supreme Court circuit splits. I'm not a big

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Speaker 1: fan on you know, this is an Obama judge, This

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Speaker 1: is a Trump judge versus a Biden or a Bush judge.

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Speaker 1: Although I will say there's a couple of judges that

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Speaker 1: Donald Trump appointed that to me are clearly partisan towards him.

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Speaker 1: But those judges are not in the Seventh or ninth

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Speaker 1: Circuit that I'm thinking about, so they're not really playing

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Speaker 1: a role in this at all. What strikes me is

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Speaker 1: the question of how much difference should a president have

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Speaker 1: on military affairs is key to this. There has been

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Speaker 1: an unfor in my opinion, an unfortunate doctrine called the

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00:27:01,920 --> 00:27:05,720
Speaker 1: military deference doctrine. You don't find it stated clearly by

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00:27:05,840 --> 00:27:09,760
Speaker 1: the Supreme Court anywhere, but it exists that goes back

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00:27:10,119 --> 00:27:13,560
Speaker 1: to the turn of the last century, at least to

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Speaker 1: the Spanish American War, if not World War One, where

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Speaker 1: the courts give the president greater deference in military matters

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00:27:22,040 --> 00:27:26,000
Speaker 1: than they do on anything else. And there are judges

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Speaker 1: who don't like the defference doctrine, and there are judges

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00:27:29,520 --> 00:27:32,639
Speaker 1: who seem to just acquiesce to the defference doctrine. And

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00:27:32,680 --> 00:27:34,720
Speaker 1: I think that's where some of this difference is.

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Speaker 2: The Illinois case is before the Supreme Court. Yeah, and

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00:27:40,840 --> 00:27:43,800
Speaker 2: does it seem likely on a temporary basis that they'll

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Speaker 2: allow Trump to send troops in.

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Speaker 1: I can't predict what the court will do. I could

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Speaker 1: only tell you what I would hope the Court would do.

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00:27:52,400 --> 00:27:55,040
Speaker 1: But I can't predict what the Court will do. They

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00:27:55,160 --> 00:27:59,960
Speaker 1: couldn't guess everything President Trump will do that. They can't

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00:28:00,200 --> 00:28:03,040
Speaker 1: guess that. But they sure as heck could have seen

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00:28:03,119 --> 00:28:07,080
Speaker 1: this coming when they issued Trump versus United States, because

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00:28:07,119 --> 00:28:10,680
Speaker 1: now you have a president who can test the boundaries

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00:28:10,880 --> 00:28:14,439
Speaker 1: in a way that no other president did in peacetime

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00:28:14,520 --> 00:28:17,800
Speaker 1: before him, and thinking, what's the worst that can happen?

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Speaker 1: It's an official presidential act.

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Speaker 2: I think most of us are still questioning that case

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Speaker 2: and how it came out that way and the Chief

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Speaker 2: Justice's opinion.

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Speaker 1: Yeah, well, as a legal historian, you know, and there

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Speaker 1: can be differences of opinion what I would say about this,

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00:28:33,880 --> 00:28:39,000
Speaker 1: just like Fitzgerald versus Nixon in nineteen eighty and just

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Speaker 1: like you know, Deshaney versus you know, which is the

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00:28:43,400 --> 00:28:47,280
Speaker 1: judicial immunity case. None of that is required by the Constitution.

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Speaker 1: What they basically did was shield the judicial branch and

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Speaker 1: the executive branch from having to deal with the normal

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Speaker 1: day to day operations of the law that you and

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00:28:58,200 --> 00:29:01,480
Speaker 1: I and everyone else have to deal with. And I

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00:29:01,560 --> 00:29:05,880
Speaker 1: go back to Byron White's dissent on the Fitzgerald case.

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Speaker 1: To me, Nixon versus Fitzgerald and Trump versus United States,

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00:29:12,320 --> 00:29:16,600
Speaker 1: are the majority showed a disregard and a distrust of

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00:29:16,680 --> 00:29:19,520
Speaker 1: the very rule of law that in their speeches every

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00:29:19,640 --> 00:29:22,920
Speaker 1: day they encourage us to embrace. I try to be

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00:29:23,160 --> 00:29:27,080
Speaker 1: soft tongued and objective when we talk about these things.

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00:29:27,120 --> 00:29:30,040
Speaker 1: It was very difficult to be, because if there's one

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Speaker 1: thing that the far right and the far left and

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00:29:33,480 --> 00:29:38,560
Speaker 1: everybody in between should agree on and embrace in the law,

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00:29:38,840 --> 00:29:43,479
Speaker 1: it's that John Adams and Thomas Jefferson, Alexander Hamilton, all

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00:29:43,520 --> 00:29:46,920
Speaker 1: these so called bright men who created the Constitution, and

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00:29:47,000 --> 00:29:49,640
Speaker 1: those we don't know of who voted to ratify it

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00:29:49,680 --> 00:29:56,479
Speaker 1: did so with the understanding that military authority would only

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Speaker 1: exist on the borders of this country, that it would

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Speaker 1: never be used in the manner that it's being used now,

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00:30:04,120 --> 00:30:07,320
Speaker 1: and that we would never have another Oliver Cromwell come

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Speaker 1: onto our shores, and we would stop it before it began.

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Speaker 2: Josh, I understand that one of the law review articles

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00:30:15,240 --> 00:30:20,560
Speaker 2: you've written was quoted from extensively by the dissenting judge

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00:30:21,000 --> 00:30:25,160
Speaker 2: in the Ninth Circuit's opinion turning down an on Bank

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00:30:25,280 --> 00:30:30,880
Speaker 2: review of the decision allowing President Trump's federalization of the

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Speaker 2: California National Guard. So tell us a little about it.

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Speaker 1: So there's been a lot of discussion about this decision

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00:30:38,320 --> 00:30:42,080
Speaker 1: from the Supreme Court called Martin versus Mott, and it's

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00:30:42,120 --> 00:30:45,600
Speaker 1: from eighteen twenty seven. And what the government has increasingly

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00:30:45,720 --> 00:30:49,600
Speaker 1: used it to argue from is this idea that the

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00:30:49,640 --> 00:30:56,400
Speaker 1: president's decisions on national security are immune from judicial review.

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Speaker 1: And the problem with Martin versus Mott is that it's

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00:30:59,560 --> 00:31:03,160
Speaker 1: legal history doesn't say that at all. It just focused

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00:31:03,200 --> 00:31:08,440
Speaker 1: on what the relationship is between a National guardsman. But

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00:31:08,840 --> 00:31:14,000
Speaker 1: those days they called it a militia troupe and the president.

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00:31:14,120 --> 00:31:18,040
Speaker 1: It has nothing to do with presidential authority at all

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00:31:18,120 --> 00:31:20,800
Speaker 1: over the people of this country or over the laws.

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00:31:20,880 --> 00:31:23,720
Speaker 1: And I point that out that when Martin versus Mott

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00:31:24,040 --> 00:31:29,880
Speaker 1: was decided, the judicial oversight of the military was quite robust.

510
00:31:30,040 --> 00:31:32,479
Speaker 1: I mean, it went through the New York state court system.

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00:31:32,520 --> 00:31:37,360
Speaker 1: You can't challenge military orders in state courts anymore. That

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00:31:37,520 --> 00:31:41,480
Speaker 1: ended after the Civil War. And so Martin versus Mott

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00:31:41,720 --> 00:31:44,680
Speaker 1: does not carry with it any of the strength that

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00:31:44,720 --> 00:31:48,920
Speaker 1: the Trump administration believes that it does. And my article

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00:31:49,080 --> 00:31:52,760
Speaker 1: was published in the Louisiana State University Law Review back

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00:31:52,840 --> 00:31:56,479
Speaker 1: in twenty twenty one. I wasn't thinking of this issue

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00:31:56,480 --> 00:31:59,080
Speaker 1: at all when I published it. I was thinking of

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00:31:59,120 --> 00:32:03,160
Speaker 1: something else when I publish the legal history article on it.

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00:32:03,360 --> 00:32:06,520
Speaker 1: But I'm happy that it's sings some use now.

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00:32:06,880 --> 00:32:11,000
Speaker 2: Well, congratulations on getting cited in a ninth Circuit decision,

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00:32:11,480 --> 00:32:15,400
Speaker 2: and thanks for the discussion today. That's Professor Joshua Castenberg

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00:32:15,520 --> 00:32:19,200
Speaker 2: of the University of New Mexico Law School. And that's

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00:32:19,240 --> 00:32:21,840
Speaker 2: it for this edition of The Bloomberg Law Show. Remember

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00:32:21,880 --> 00:32:23,960
Speaker 2: you can always get the latest legal news on our

525
00:32:24,000 --> 00:32:28,160
Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

526
00:32:28,320 --> 00:32:33,360
Speaker 2: and at www dot Bloomberg dot com, slash podcast slash Law,

527
00:32:33,760 --> 00:32:36,360
Speaker 2: and remember to tune into The Bloomberg Law Show every

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00:32:36,400 --> 00:32:40,320
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

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00:32:40,440 --> 00:32:42,040
Speaker 2: and you're listening to Bloomberg