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

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Speaker 2: Could a president order Seal Team six to assassinate a

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Speaker 2: political rival? That's an official act? In order to Seal

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Speaker 2: Team six.

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Speaker 1: He would have to be and would speedily be, you know,

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Speaker 1: uh uh impeached and convicted before the criminal.

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Speaker 2: But if you weren't, there would be no criminal prosecution,

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Speaker 2: no criminal liability for that.

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Speaker 1: What the founders were concerned about was not I asked

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Speaker 1: you a.

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Speaker 2: Yes, yes or no question. Could a president who ordered

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Speaker 2: Seal Team six to assassinate a political rival who was

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Speaker 2: not impeached, would he be subject to criminal prosecution.

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Speaker 1: If he were impeached and convicted first? So your answer

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Speaker 1: is is that My answer is qualified. Yes, there's a

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Speaker 1: political process that have to occur on it.

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Speaker 3: And that question, pressed repeatedly by Judge Florence Pan, was

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Speaker 3: just one of the tough questions that Donald Trump lawyer

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Speaker 3: faced at the DC Appellate Court today. All three judges

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Speaker 3: on the panel seem skeptical of Trump's claim that he's

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Speaker 3: immune from criminal prosecution for trying to overturn the twenty

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Speaker 3: twenty election because he was president at the time.

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Speaker 1: Thank's the notion that criminal community for a president doesn't

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Speaker 1: exist as a shocking holding. It would authorize, for example,

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Speaker 1: the indictment of President Biden in the Western District of

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Speaker 1: Texas after he leaves office for mismanaging the border allegedly.

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Speaker 3: Trump's attorney John Sower argued that a president can only

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Speaker 3: be criminally prosecuted after Congress has voted to both impeach

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Speaker 3: and convict him on similar charges. Judge Michelle Chiles didn't

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Speaker 3: find that argument particularly convincing.

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Speaker 4: But not everybody goes through that process, and of course

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Speaker 4: it's limited to the certain actors in that regard, but

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Speaker 4: not everybody has to go through that process. Prosecutors later

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Speaker 4: on can come into information and evidence after they've investigated,

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Speaker 4: to make their determinations about what they'd like to criminally prosecute.

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Speaker 4: So you're not always fine to whatever would be in

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Speaker 4: the impeachment judgment clause.

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Speaker 1: Whatever the practice has been with respect to support and officers,

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Speaker 1: the form the founding generation as clear as you cannot

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Speaker 1: do that respect to the beast.

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Speaker 3: My guest is Michael Gerhard, a professor at the University

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Speaker 3: of North Carolina Law School and an expert on impeachment.

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Speaker 3: In fact, his new book is called The Law of

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Speaker 3: Presidential Impeachment. It seemed like the focus of the argument

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Speaker 3: for Trump's lawyer was that under the Constitution's impeachment clause,

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Speaker 3: a president can't be prosecuted unless he's first impeached and

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Speaker 3: convicted over the same charges. Tell me about that argument

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Speaker 3: and what you think of it.

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Speaker 5: It's really dumb as it's not a good argument. There

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Speaker 5: are three judges in the late nineteen eighties that all

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Speaker 5: faced impeachment, and all three were actually tried criminally before

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Speaker 5: they were impeached, and they raised that argument back in

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Speaker 5: the late ninety eight and courts rejected. There's no constitutional

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Speaker 5: requirement that impeachment proceede a criminal investigation. Whether a criminal

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Speaker 5: investigation proceed an impeachment, their separate proceedings just as simple.

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Speaker 3: So then where did they get that argument? Did they

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Speaker 3: make it up out of whole cloth?

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Speaker 5: I think they largely made it up. I think it's

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Speaker 5: designed in part to delay things. That's first. Secondly, I

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Speaker 5: think it is probably and this might be the best

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Speaker 5: characterization of it. It might be loosely based on some

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Speaker 5: constitutional language that seems to leave an inference after an

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Speaker 5: impeachment that officials could still remain liable at law, but

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Speaker 5: that's not a command. That's just basically suggesting that after

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Speaker 5: impeachment there could be separately go proceeding. But I would

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Speaker 5: also maybe suggest third that I think it's just another

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Speaker 5: variation of Trump's arguments, which date back to his presidency,

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Speaker 5: that he currently no other president, but he at least

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Speaker 5: is above the law.

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Speaker 3: That led to some really startling hypotheticals. Judge Florence Pan

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Speaker 3: asked if a president ordered Seal Team six to assassinate

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Speaker 3: a political rival, could he be criminally prosecuted? And Trump's

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Speaker 3: lawyer seemed reluctant. Over and over again. She tried to

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Speaker 3: press him yes or no, Yes or no. He seemed

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Speaker 3: reluctant to even make a concession there.

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Speaker 5: Well, I think that he was, in a sense, arguing

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Speaker 5: from a corner. So he's already backed in, and I

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Speaker 5: think he thought maybe his best option was just to

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Speaker 5: take a hard line. But I think that question, among others,

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Speaker 5: sort of underscores the absurdity of Trump's argument.

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Speaker 3: Did you see any inkling that any of the judges

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Speaker 3: were buying that particular argument.

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Speaker 5: I did not, but that may not mean very much.

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Speaker 5: There's not always a complete overlap between what happens in

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Speaker 5: a oral argument and what comes out of an opinion.

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Speaker 5: So you know, lawyers tend to take with a grain

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Speaker 5: of salt all the questioning in oral argument because boris

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Speaker 5: understand it may not necessarily to or predicted exactly what

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Speaker 5: the opinion might look like. But I think before there

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Speaker 5: was any argument that I and other scholars to short

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Speaker 5: study this area thought Trump's arguments was probably at best

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Speaker 5: a week. It's not absurd, and I think that the

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Speaker 5: judges at least appear to have so far taken the

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Speaker 5: stimular sort of approach.

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Speaker 3: So before the argument, I had understood, well, did the

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Speaker 3: lawyer concede that then Trump does not that if his

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Speaker 3: premise is correct about the impeachment clause, that Trump does

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Speaker 3: not have absolute presidential immunity.

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Speaker 6: Was that conceded by him at all? I couldn't tell.

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Speaker 5: I don't know that the lawyer made any such concession.

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Speaker 5: But the lawyer's arguments, if you kind of think about them,

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Speaker 5: practically speaking, the lawyer's arguments in this oral argument today

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Speaker 5: is the same as they were all throughout Trump's presidency,

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Speaker 5: and that is that Donald Trump is somehow above the wall.

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Speaker 5: But there's no way to hold Donald Trump accountable for anything.

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Speaker 3: Well, I expected more discussion of whether Trump's actions on

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Speaker 3: January sixth were part of his official duties or discretionary.

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Speaker 3: What did you hear about that particular issue?

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Speaker 5: Now, I was a little surprised that that was impressed

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Speaker 5: more so by Trump's lawyers, not because there was a

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Speaker 5: good argument, but just because it's an argument that could

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Speaker 5: make So I think that I don't want to read

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Speaker 5: too much in the silence is you know on either side,

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Speaker 5: but it strikes me as possible that Trump's lawyers may

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Speaker 5: have recognized that they'd have to draw a line at

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Speaker 5: some point about where official duties end. They can't argue

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Speaker 5: that official duties are boundless because the Speedwar has rejected

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Speaker 5: that in more than one and I think that Trump

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Speaker 5: lawyers probably were reluctant their fortune engage with this issue

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Speaker 5: because they don't want to draw that line.

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Speaker 3: There was one thing that I think one or two

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Speaker 3: of the judges picked up on. Judge Karen Henderson express

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Speaker 3: concern that a ruling saying the president doesn't have immunity

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Speaker 3: would lead to politically driven prosecutions of future presidents.

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Speaker 4: How do we write an opinion that would stop the

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Speaker 4: flood dates.

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Speaker 7: Your predecessors, in their ollc opinions, recognized that aliability would

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Speaker 7: be unavoidably political.

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Speaker 6: What side had the better of that argument?

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Speaker 5: Well, I think that question really has been answered already

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Speaker 5: by the United States Supreme Court. They answered it in

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Speaker 5: case called Trump versus Vans And in that Supreme Court case,

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Speaker 5: the Supreme Court ruled that a president in Trump's case,

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Speaker 5: then a sitting president may be subject to state criminal prosecution.

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Speaker 5: Trump tried to argue in that case, oh, the president

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Speaker 5: could then be subject to all sorts of partisan prosecutions,

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Speaker 5: and Spreme Court rejected that because the Court said, they're

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Speaker 5: all sorts of stafeguards against that. So it's not really

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Speaker 5: going to be a real or practical concern because if

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Speaker 5: that's the motivation, Again, if it's in federal court, set

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Speaker 5: of judges could obviously try to not just look behind it,

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Speaker 5: but so could state judges, And ultimately, a state prosecution

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Speaker 5: of somebody, let's say, who used to be president is

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Speaker 5: still possibly appealable to the United States Supreme Court, which

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Speaker 5: is a whole other stateguard that could exist. So there's

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Speaker 5: no reason to think that the possibility of a prostitution used.

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Speaker 5: This may never be across the teacher.

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Speaker 1: Well.

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Speaker 3: Trump suggested on Monday that if the court doesn't rule

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Speaker 3: in his favor and he wins the presidential election, he'd

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Speaker 3: have Joe Biden indicted. So we'll see what happens there.

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Speaker 5: Not a good thing, I think, because presidents shouldn't be

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Speaker 5: making that decision here.

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Speaker 6: Stay right there.

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Speaker 3: Michael will discuss more about the contours of any decision

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Speaker 3: coming up next. And Donald Trump was actually in the

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Speaker 3: courtroom for the oral arguments and had some comments afterwards.

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Speaker 7: And I think we're doing very well. I think it's

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Speaker 7: very unfair when a opponent, a political opponent, is prosecuted

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Speaker 7: by the DOJ, by Biden's DOJ. So they're losing in

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Speaker 7: every ball, they're losing in almost every Demographic numbers came

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Speaker 7: out today that are very mind boggling if you happen

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Speaker 7: to be Joe Biden. And I think they feel this

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Speaker 7: is the way they're going to try and win, and

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Speaker 7: that's not the way it goes. That will be bedlam

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Speaker 7: in the country. It's a very bad thing. It's a

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Speaker 7: very bad precedent. As we said, it's the opening of

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Speaker 7: a Pandora's box. And that's that's a very sad thing

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Speaker 7: that's happened with this whole situation.

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Speaker 6: I'm Jim Gross when you're listening to Bloomberg.

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Speaker 8: Never in our nation's history until this case, as a

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Speaker 8: president claimed that immunity from criminal prosecution extends beyond his

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Speaker 8: time office. The president has a unique constitutional role, but

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Speaker 8: he is not above the law. Separation of powers principles,

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Speaker 8: constitutional texts, history, precedent, and other immunity doctrines all point

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Speaker 8: to the conclusion that a former president enjoys no immunity

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Speaker 8: from criminal prosecution.

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Speaker 3: James Pierce, a lawyer working with Special counsel Jack Smith,

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Speaker 3: explained to the d C. Appellate Court today why former

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Speaker 3: President Donald Trump is not immune from prosecution for his

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Speaker 3: attempt to overturn the twenty twenty election. In his final

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Speaker 3: days as president, Trump was in the pack courtroom listening,

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Speaker 3: even though he was not required to be there. The

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Speaker 3: panel of three judges, two Biden appointees and one George W.

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Speaker 3: Bush appointee, appeared very skeptical about Trump's claim that he

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Speaker 3: has presidential immunity from the criminal charges brought by the

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Speaker 3: Special Council and his attorney, John Sower, appeared to be

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Speaker 3: caught by the judges questions several times, particularly when judges

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Speaker 3: Karen Henderson and Florence Pann noted that the lawyer who

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Speaker 3: represented Trump during his twenty twenty one impeachment trial had

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Speaker 3: in fact suggested that he could later face criminal prosecution.

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Speaker 4: He did not say that.

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Speaker 1: Could never be raised immunity defense. It's that criminal process

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Speaker 1: could going.

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Speaker 2: There's a quote in the congressal record in which your council,

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Speaker 2: I'm sorry, your client sets through cal No former officeholder

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Speaker 2: is immune from investigation.

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Speaker 1: Investigation, is what There's no issue. Well, that may be

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Speaker 1: true of subbortinate officers, but as to the principal officer

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Speaker 1: of the president, he is immune unless he is impeachent

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Speaker 1: connected ay, and it comes back to the point way he.

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Speaker 2: Was president at the time, and his position was that

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Speaker 2: no former officeholder is immune. And in fact, the argument was,

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Speaker 2: there's no need to vote for impeachment because we have

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Speaker 2: this backstop, which is criminal prosecution. And it seems that

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Speaker 2: many senators relied on that voting to a quit.

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Speaker 3: Trump is trying to get the panel to reverse a

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Speaker 3: ruling by federal trial judge Tanya Chutkin, who rejected Trump's

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Speaker 3: immunity defense and suggested he was seeking the power of

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Speaker 3: a monarch. I've been talking to Michael Gerhard, a professor

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Speaker 3: at the University of North Carolina Law School. So the

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Speaker 3: Special Council and Judge Michelle Child pointed to the fact

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Speaker 3: that Richard Nixon was pardoned upon leaving office to show

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Speaker 3: that it's been assumed that presidents can be prosecuted after

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Speaker 3: leaving office.

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Speaker 6: Is that much of a legal argument, though, I think.

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Speaker 5: It's a perfectly good argument, because what it's doing is

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Speaker 5: is trying to ensure that whatever the court does now

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Speaker 5: is going to make sense of the whole system as

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Speaker 5: we've understood it up untown now. And so the pardon

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Speaker 5: of Nixon presumed that Nixon could be criminally prosecuted for

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Speaker 5: things he had done as president. That presumption cuts directly

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Speaker 5: against Trump's arguments right now, and by the way, that's

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Speaker 5: not from a democratic president.

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Speaker 3: There was a question at the beginning of jurisdiction, and

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Speaker 3: it wasn't raised by either of the parties, and it

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Speaker 3: seemed like neither of the parties wanted to endorse it.

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Speaker 3: But it was by an amiicus brief that Trump doesn't

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Speaker 3: have the right to make the request before trial. What's

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Speaker 3: known as an interlocutory appeal. Would you explain that and

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Speaker 3: where you think they came.

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Speaker 6: Out on that.

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Speaker 5: Sure, Well, a jurisdictional issue has to do with not

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Speaker 5: court or a court has the power to do something.

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Speaker 5: So a jurisdictional issue may be raised at any time,

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Speaker 5: and it may be raised by the court itself. Court

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Speaker 5: doesn't have to rely on the parties to a case,

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Speaker 5: because the court's always going to be concerned with do

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Speaker 5: we have the power to decide this case or even

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Speaker 5: hear this case? And an interlocuatory appeal is an appeal

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Speaker 5: that could be made before the end of the case.

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Speaker 5: So an appeal could be made to some higher court

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Speaker 5: based on some concerns, and they may be so excuse

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Speaker 5: that it could be raised before there's actually been a trial,

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Speaker 5: or before there's even been conviction, or the case is

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Speaker 5: not yet over. I think the court was reasonable in

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Speaker 5: raising this question. The fact that either side could really

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Speaker 5: address it well might suggest that either side has thought

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Speaker 5: about it very much. But what is clear is that

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Speaker 5: Trump is trying to raise this now before he's he's

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Speaker 5: gone to trial, much less having been convicted, and so

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Speaker 5: that raises a question, least in my mind, not so

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Speaker 5: much about whether there should be an intelocatory appeal that

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Speaker 5: is a special appeal right now, but what we call

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Speaker 5: a rightness issue, is the issue really right as a

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Speaker 5: mature to the point where a court suard decided in

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Speaker 5: rightness and they also become a concern for a colored

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Speaker 5: cord as well.

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Speaker 3: Yeah, I mean, so there are a lot of things

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Speaker 3: that the appellate court could do. They could say they

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Speaker 3: don't have jurisdiction at this point. I mean, they could

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Speaker 3: go just based on the Constitution's impeachment clause and Trump's

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Speaker 3: argument there.

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Speaker 5: Yes, I mean, of course they could craft this anyway

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Speaker 5: they like. I think generally speaking, it has long been

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Speaker 5: understood and I would even argue well settled that there's

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Speaker 5: no what we'll call a double the jeopardy problem with

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Speaker 5: having an impeachment on the one hand and a criminal

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Speaker 5: process on the other. They are two separate proceedings, and

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Speaker 5: an impeachment proceeding is not a criminal proceeding. So the

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Speaker 5: double jeopardy clause mean you can't bring two criminal prosecutions

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Speaker 5: for the same in this conduct doesn't apply because it's

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Speaker 5: not a criminal process. Beyond that I think that the

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Speaker 5: court has to be thinking, among other things, about what

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Speaker 5: kind of precedent are we going to establish here? And

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Speaker 5: if I had to guess, my guess would be that

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Speaker 5: the Court's going to not want to establish a precedent

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Speaker 5: that makes it easier for presidents to be above the wall.

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Speaker 5: The bottom line is Trump's going to face criminal trial,

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Speaker 5: and you can't avoid that.

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Speaker 3: What's the best argument of all the arguments Trump made?

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Speaker 3: What's the best of them?

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Speaker 5: I confess I'm not sure any of them are any good.

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Speaker 5: And I mean it seriously. I mean, I've studied this

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Speaker 5: for decades. I think these arguments are They've all been

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Speaker 5: raised to some extent in the past, all have been

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Speaker 5: rejected or found the lack of credibility by historians. So

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Speaker 5: I confess I could think of one.

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Speaker 3: And so Trump's lawyer asked for a stay of the

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Speaker 3: opinion so that they can appeal. So if they appeal

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Speaker 3: to the full DC Circuit as for an on bank hearing,

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Speaker 3: do you think the DC Circuit would.

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Speaker 6: Take on bank?

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Speaker 5: Well, you don't know the answer. I'm not sure why

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Speaker 5: the full DC Circuit needs to hear this. I think

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Speaker 5: that's another move by Trump's lawyers to delay everything, sort

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Speaker 5: of to throw a lot of legal process and the

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Speaker 5: proceedings against him as a way to kind of delay

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Speaker 5: them in the hopes I suppose that Trump will win

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Speaker 5: the presidency and pardon themselves, or that one of his

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Speaker 5: bacoltes will win the presidency and pardon him. But the courts,

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Speaker 5: I think, are aware of the possibilities that they're being

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Speaker 5: used here, and generally speaking, courts don't like to be

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Speaker 5: used in that manner.

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Speaker 3: Everyone assumes that this is going to be appealed to

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Speaker 3: the Supreme Court no matter what happens, and a lot

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Speaker 3: of legal experts are predicting that the court will take

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Speaker 3: the case.

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Speaker 6: But is that necessarily true.

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Speaker 5: No. Let's say, for example, this current panel concludes that

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Speaker 5: none of Trump's arguments are credible, and the court rejects

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Speaker 5: all of them. The Supreme Court could simply reject any

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Speaker 5: appeal based in part on the justices considering there's no

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Speaker 5: real issue here and we have to decide because what

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Speaker 5: the panel would have concluded is consistent with whatever courts

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Speaker 5: have said before. So there's no compelling reason why the

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Speaker 5: US sping Court needs to get needs to intervenient at

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Speaker 5: this point. The other thing I might just raise at

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Speaker 5: this point is to just make note of the fact

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Speaker 5: that Trump is still trying to argue that as a

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Speaker 5: former president he has some kind of special community. The

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Speaker 5: sitting president may not be immune to criminal process that

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Speaker 5: was decided by the USPN Court. When Trump is president,

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Speaker 5: it's Trump versus Advanced. So as a former president, Donald

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Speaker 5: Trump's making these are quite long reaches claiming for a

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Speaker 5: former president immunity that, by the way, no sitting president

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Speaker 5: has ever had, and that just increases the odds. I

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Speaker 5: think that courts will reject his.

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Speaker 3: Claim, and the decision from the panel of the DC

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Speaker 3: Circuit could come at any time. Thanks so much, Michael.

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Speaker 3: That's Michael Gerhard, a professor with the University of North

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Speaker 3: Carolina Law School. His new book is entitled The Law

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Speaker 3: of Presidential Impeachment. Coming up next on the Bloomberg Lan Show.

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Speaker 3: Do you know what it takes to get on the

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Speaker 3: no Fly list and what it takes to get off?

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Speaker 3: Those questions were explored at the Supreme Court. I'm June Grasso,

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Speaker 3: and this is Bloomberg. This week, the Supreme Court sought

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Speaker 3: to untangle whether an Oregon man can proceed with a

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Speaker 3: lawsuit against the FBI for placing him on its no

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Speaker 3: fly list before removing him and then calling the matter moot.

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Speaker 3: The justices heard arguments in the case of Jonas Fikre,

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Speaker 3: a US citizen who sued the government over his placement

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Speaker 3: on the list. Fikree says he learned he was on

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Speaker 3: the list in twenty ten while traveling to Sudan, after

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Speaker 3: FBI agents approached him asking about his association with a

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Speaker 3: particular mosque in Portland. Joining me is Hinna Shamsi, director

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Speaker 3: of the acl u'sed National Security Project, the ACLU f Wild,

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Speaker 3: then amikas brief in the case. So start out by

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Speaker 3: telling us what happened to Jonas kra Well.

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Speaker 9: Yonis Sicra is a US citizen who discovered that he

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Speaker 9: was on the no fly list in twenty ten, and

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Speaker 9: he then filed a lawsuit saying that the government wrongly

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Speaker 9: placed him on the list in violation of his constitutionally

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Speaker 9: protected right to travel, and that the procedures that the

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Speaker 9: government used to place him on the list violated fundamental

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Speaker 9: due process. So the case moved forward, and the government

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Speaker 9: then removed him from the list in twenty sixteen, and

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Speaker 9: since then, it is argued that his lawsuit could not

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Speaker 9: go forward because it was moot there was no live

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Speaker 9: case or controversy to be adjudicated. Mister Ficra then appealed

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Speaker 9: from a district court judgment in the government's favor, and

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Speaker 9: the Ninth Circuit Court of Appeals twice shoed decisions in

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Speaker 9: mister vickras favor, rejecting the government's attempts to end the case.

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Speaker 9: And that's when the government appealed to the Supreme Court,

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Speaker 9: and that's the argument that the court heard.

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Speaker 3: Does the FBI frequently refuse to tell someone why they've

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Speaker 3: been placed on the no fly list or why they've

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Speaker 3: been taken off the list?

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Speaker 9: Absolutely, you know, And this is one of our fundamental

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Speaker 9: problems with the no flylist and why we've been working

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Speaker 9: on litigating these issues for about twenty years, which is

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Speaker 9: that the no fly list program potentially operates in a

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Speaker 9: black box of executive branch discretion and secrecy. The government

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Speaker 9: refuses usually to tell people the full reasons and most

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Speaker 9: often any reason for placing people on the no fly list,

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Speaker 9: and so for decades and other rights groups have documented

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Speaker 9: the secrecy and unfairness of this program, and it's devastating

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Speaker 9: consequences for people's lives, yet it remains a black box.

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Speaker 9: Let me be more specific, Americans who are on the

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Speaker 9: no fly list and West often left in the dark

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Speaker 9: about why they've been placed on the list. They're not

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Speaker 9: given any meaningful explanation when they are removed, if they

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Speaker 9: are removed, or any guarantee against being wrongfully placed on

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Speaker 9: the list in the future. And the issue before the

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Speaker 9: court was whether mister Sikra's case could go forward after

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Speaker 9: he had been removed.

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Speaker 3: Does mister fire know why he was put on the list?

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Speaker 9: He does not have the reasons, all the reasons that

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Speaker 9: he was put on the list. You know, in the

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Speaker 9: argument that took place on Monday, the government repeatedly said, well,

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Speaker 9: we've provided a reason, you know, we've explained the criteria

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Speaker 9: for placement on the no fly list that was applied

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Speaker 9: to him. But here's the problem. What that means is

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Speaker 9: that the government has disclosed what standard it uses to

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Speaker 9: place people on the no fly list. And we can

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Speaker 9: talk about why that standard is vague and broad and

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Speaker 9: deeply problematic, but it hasn't disclosed the reasons that it

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Speaker 9: thinks mister Fikra satisfied that standard. So mister Figray doesn't

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Speaker 9: know what he's alleged to have done wrong in the

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Speaker 9: first place, and how he can, as he argued to

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Speaker 9: the court, you know, know what to do in order

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Speaker 9: not to be placed on the no fly list again

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Speaker 9: in the future.

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Speaker 3: It seemed as if several of the justices cross ideological lines,

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Speaker 3: were sympathetic to mister Fikra. Justice Brett Kavanaugh said, that's

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Speaker 3: a complete wild card.

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Speaker 6: A return to the.

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Speaker 3: List still depends on the FBI's assessment of someone's activity

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Speaker 3: based on a multi factor security threat threshold. We're in

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Speaker 3: the dark, and Justice Sonya Sotomayor said, how can someone

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Speaker 3: tell you that they're not going to engage in a

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Speaker 3: terrorist activity if they don't know what terrorist activity you

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Speaker 3: claim they did?

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Speaker 6: So Catch twenty two.

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Speaker 9: It is a real catch twenty two and it was

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Speaker 9: a concern. You know, the discretion as well as the

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Speaker 9: secrecy is something that the justices, and I think a

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Speaker 9: lot of the justices across the spectrum were troubled by

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Speaker 9: or expressed concern about, because, as often happens, courts as

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Speaker 9: well as the people who are impacted by the placement,

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Speaker 9: are left in the dark in this black box of

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Speaker 9: a program, just.

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Speaker 3: As Elena Kagan suggested that the government should be required

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Speaker 3: to go before a judge in private to explain why

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Speaker 3: someone had been placed on the no fly list and

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Speaker 3: why they've been removed from the list and what they

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Speaker 3: would not be returned to the list, and Justice course

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Speaker 3: it seemed to agree with that. Is that a possible

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Speaker 3: solution here?

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Speaker 9: Well, you know, I want to start with what justice

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Speaker 9: the Gorsich said, which is that you know, normally in

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Speaker 9: our legal system, we have a right to know what

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Speaker 9: evidence the government has against us, and Justice Gorsic rightly said,

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Speaker 9: that's due process, that's a pillar of our democracy. And

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Speaker 9: why is it? I think he asked that an American

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Speaker 9: citizen who's been denied a right and evidence, why shouldn't

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Speaker 9: he be able to determine what's at state? So, you know,

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Speaker 9: one of the factors in one of the alternatives proposed

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Speaker 9: during the argument in court was that the government could

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Speaker 9: provide its reasons to judge in camera, meaning you know,

441
00:25:58,160 --> 00:26:02,320
Speaker 9: in continued secrecy a judge to make a determination, and

442
00:26:02,400 --> 00:26:06,680
Speaker 9: that would certainly be better than what exists now or

443
00:26:07,040 --> 00:26:10,000
Speaker 9: what mister Fickray was facing, which is not being able

444
00:26:10,080 --> 00:26:17,360
Speaker 9: to have any kind of meaningful guarantee that the government

445
00:26:17,440 --> 00:26:22,080
Speaker 9: would not place him on the list wrongly again in

446
00:26:22,119 --> 00:26:25,000
Speaker 9: the future. I think we should still pause and think

447
00:26:25,000 --> 00:26:28,640
Speaker 9: about what that might mean though that the government tells

448
00:26:28,840 --> 00:26:32,880
Speaker 9: a judge. But if your person who has been left

449
00:26:32,920 --> 00:26:36,960
Speaker 9: in the dark about why you've been placed on the

450
00:26:36,960 --> 00:26:39,600
Speaker 9: list in the first place, why you've been denied as

451
00:26:39,640 --> 00:26:44,360
Speaker 9: some of my clients have the right to travel to

452
00:26:44,400 --> 00:26:46,800
Speaker 9: be with their loved ones on their sick beds, to

453
00:26:46,880 --> 00:26:51,880
Speaker 9: attend funerals or weddings or graduations, you know, surely more

454
00:26:51,960 --> 00:26:56,760
Speaker 9: is required to the person impacted themselves. But let's see

455
00:26:56,760 --> 00:26:58,040
Speaker 9: how the court rules.

456
00:26:58,440 --> 00:27:01,879
Speaker 6: So the FBI's position is that this is moot. Is

457
00:27:01,920 --> 00:27:02,320
Speaker 6: that right?

458
00:27:02,680 --> 00:27:08,199
Speaker 9: The FBI's position was that they have told mister Fikra

459
00:27:08,560 --> 00:27:12,280
Speaker 9: that he would not be placed on the list again

460
00:27:13,119 --> 00:27:17,280
Speaker 9: quote based on currently available information, and that that is

461
00:27:17,440 --> 00:27:20,679
Speaker 9: enough to end his case. And what mister Fickra was

462
00:27:20,800 --> 00:27:25,320
Speaker 9: arguing was that that isn't enough. That when the government

463
00:27:25,440 --> 00:27:29,560
Speaker 9: acts as it did here, which is that it voluntarily

464
00:27:29,720 --> 00:27:35,320
Speaker 9: takes someone off the list, the case is not moot

465
00:27:35,440 --> 00:27:39,520
Speaker 9: because the standard the government has to meet is to

466
00:27:39,600 --> 00:27:44,600
Speaker 9: make it absolutely clear that the allegedly wrongful behavior won't

467
00:27:44,640 --> 00:27:49,320
Speaker 9: happen again, and mister Fikra argued that the government hasn't

468
00:27:49,480 --> 00:27:52,720
Speaker 9: repudiated its decision to put him on the list, and

469
00:27:52,920 --> 00:27:55,600
Speaker 9: it remained free to return him to the list for

470
00:27:55,640 --> 00:27:59,200
Speaker 9: the same reasons and using the same procedures that mister

471
00:27:59,280 --> 00:28:04,239
Speaker 9: Fra ledges were unlawful. So, in essence, mister Fickray was

472
00:28:04,280 --> 00:28:07,000
Speaker 9: asking for his case to go forward so he could

473
00:28:07,080 --> 00:28:08,920
Speaker 9: have his day in court.

474
00:28:09,800 --> 00:28:13,920
Speaker 3: The Chief Justice suggested that the government's promise might be enough.

475
00:28:14,359 --> 00:28:19,040
Speaker 3: Did you get a feel from the justices about what

476
00:28:19,080 --> 00:28:20,040
Speaker 3: they might do here?

477
00:28:20,480 --> 00:28:23,399
Speaker 9: Well? I think what leaves me cautiously optimistic about the

478
00:28:23,680 --> 00:28:28,919
Speaker 9: argument is that most of the justices understood that a

479
00:28:29,080 --> 00:28:33,240
Speaker 9: system in which a person does not know the government's

480
00:28:33,280 --> 00:28:36,200
Speaker 9: reasons for placing them on the list or taking them off,

481
00:28:36,240 --> 00:28:40,000
Speaker 9: it that there's not really a guarantee here against the

482
00:28:40,120 --> 00:28:43,480
Speaker 9: kind of wrongful conduct that is being challenged occurring.

483
00:28:44,240 --> 00:28:46,600
Speaker 3: Is this the first time the no fly list has

484
00:28:46,640 --> 00:28:48,080
Speaker 3: come before the justices.

485
00:28:48,600 --> 00:28:51,480
Speaker 9: It's not the first time that a no flylist related

486
00:28:51,600 --> 00:28:54,840
Speaker 9: issue has come before the justices. There was a previous

487
00:28:55,120 --> 00:28:58,880
Speaker 9: case about whether an individual who alleged that he was

488
00:28:58,960 --> 00:29:01,480
Speaker 9: placed on the no fly list after he refused to

489
00:29:01,520 --> 00:29:06,640
Speaker 9: become an informant, whether he consued to retain damages under

490
00:29:06,640 --> 00:29:10,719
Speaker 9: the Religious Freedom Restoration Act because he said that, you know,

491
00:29:10,840 --> 00:29:13,800
Speaker 9: he refused to become an informant because to have become

492
00:29:13,800 --> 00:29:17,040
Speaker 9: an informant would have gone against his religious beliefs. You know,

493
00:29:17,520 --> 00:29:21,200
Speaker 9: it's important to know that the issue in the case

494
00:29:21,600 --> 00:29:29,280
Speaker 9: was whether mister Fikray's constitutional claims could go forward. The

495
00:29:29,360 --> 00:29:33,320
Speaker 9: issue was not the lawfulness of the government's no flylist

496
00:29:33,520 --> 00:29:39,320
Speaker 9: placement and administrative redress process. The Court has never actually

497
00:29:40,080 --> 00:29:43,680
Speaker 9: ruled on the lawfulness of the no flylist placement and

498
00:29:43,800 --> 00:29:50,320
Speaker 9: redress process, but the lawfulness of the government's no fly

499
00:29:50,440 --> 00:29:54,440
Speaker 9: list program itself, whether the decision to place people on

500
00:29:54,480 --> 00:29:59,480
Speaker 9: the list, or the constitutionality of the administrative redress process

501
00:29:59,480 --> 00:30:03,440
Speaker 9: the government provides. None of that was before the court,

502
00:30:04,200 --> 00:30:07,880
Speaker 9: but to understand whether the case was neot or not,

503
00:30:08,480 --> 00:30:12,760
Speaker 9: it was necessary for the Court to consider what the

504
00:30:12,840 --> 00:30:16,600
Speaker 9: program is, and as we argued in our Friend of

505
00:30:16,680 --> 00:30:19,040
Speaker 9: the Court brief that we submitted to the court, it

506
00:30:19,080 --> 00:30:24,479
Speaker 9: was necessary to understand government discretion and the secrecy that

507
00:30:24,520 --> 00:30:30,880
Speaker 9: the government asserts in making its decisions. So we identified

508
00:30:31,000 --> 00:30:34,360
Speaker 9: in fact, you know, we comb through federal court dockets,

509
00:30:34,360 --> 00:30:38,200
Speaker 9: and we identified forty US citizens and residents who had

510
00:30:38,320 --> 00:30:42,360
Speaker 9: challenged their placement on no fly list in court, and

511
00:30:42,400 --> 00:30:46,040
Speaker 9: we found that the government kept secret the full reasons

512
00:30:46,160 --> 00:30:50,000
Speaker 9: or any reason for placing each of them on the list.

513
00:30:50,480 --> 00:30:55,440
Speaker 9: And we argued that from what is publicly known, the

514
00:30:55,480 --> 00:31:00,800
Speaker 9: government removed about seventy percent of those people from the

515
00:31:00,880 --> 00:31:05,560
Speaker 9: list during litigation, and many of the removals occurred just

516
00:31:05,800 --> 00:31:11,160
Speaker 9: before court imposed deadlines or while awaiting court rulings. So,

517
00:31:11,320 --> 00:31:15,800
Speaker 9: in essence, the government can take people off the list

518
00:31:16,280 --> 00:31:22,640
Speaker 9: and prevent their challenges to placement or the process from

519
00:31:22,680 --> 00:31:24,880
Speaker 9: being heard, and we wanted the court to take that

520
00:31:24,960 --> 00:31:28,960
Speaker 9: into account in making its determination in mister Fikra's case.

521
00:31:29,280 --> 00:31:32,600
Speaker 3: Let me ask you a general question. So someone gets

522
00:31:32,640 --> 00:31:35,840
Speaker 3: placed on the no fly list and they don't know why,

523
00:31:36,200 --> 00:31:38,440
Speaker 3: who do they sue to try to find out or

524
00:31:38,520 --> 00:31:40,120
Speaker 3: try to get off the list.

525
00:31:40,320 --> 00:31:44,560
Speaker 9: So when people are placed on the no fly list,

526
00:31:45,320 --> 00:31:51,120
Speaker 9: they can avail themselves of a process called DHS trip

527
00:31:51,200 --> 00:31:57,240
Speaker 9: It's through DHS and what that requires is that you

528
00:31:57,840 --> 00:32:02,560
Speaker 9: submit information to Dhryes saying I think I'm on the

529
00:32:02,600 --> 00:32:04,880
Speaker 9: no fly list and I'm wrongly on the no fly list,

530
00:32:05,560 --> 00:32:10,640
Speaker 9: and the government will review this information, and if you're

531
00:32:10,640 --> 00:32:14,320
Speaker 9: a US citizen or a lawful permanent resident, it will,

532
00:32:14,480 --> 00:32:19,120
Speaker 9: after a couple of different stages, tell you if you're

533
00:32:19,160 --> 00:32:22,560
Speaker 9: on the no flylist. It will tell you what standard

534
00:32:22,800 --> 00:32:25,520
Speaker 9: it used to place you on the no fly list,

535
00:32:26,240 --> 00:32:31,320
Speaker 9: and it can but as we found, most often does

536
00:32:31,480 --> 00:32:38,240
Speaker 9: not provide you with a summary of the reasons or

537
00:32:38,640 --> 00:32:42,200
Speaker 9: a reason. But most often, we've found that the government

538
00:32:42,280 --> 00:32:47,600
Speaker 9: does not provide all or even most often any reason

539
00:32:48,200 --> 00:32:52,680
Speaker 9: for placing people on the list. So that's often when

540
00:32:52,720 --> 00:33:01,800
Speaker 9: people sue to compel constitutional due process us to find

541
00:33:01,840 --> 00:33:04,600
Speaker 9: out why they've been placed on the list and to

542
00:33:05,080 --> 00:33:09,240
Speaker 9: seek a meaningful process through the court to remove themselves.

543
00:33:09,360 --> 00:33:11,680
Speaker 3: It'll be interesting to see how far the Supreme Court

544
00:33:11,800 --> 00:33:12,320
Speaker 3: goes here.

545
00:33:12,400 --> 00:33:13,959
Speaker 6: Thanks so much for being on the show.

546
00:33:14,440 --> 00:33:18,840
Speaker 3: That's Hannah Shamsey, director of the acl USED National Security Project,

547
00:33:19,240 --> 00:33:21,920
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.

548
00:33:22,240 --> 00:33:24,640
Speaker 3: Remember you can always get the latest legal news by

549
00:33:24,680 --> 00:33:28,480
Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,

550
00:33:28,760 --> 00:33:32,640
Speaker 3: and at Bloomberg dot com slash podcast Slash Law. I'm

551
00:33:32,720 --> 00:33:35,120
Speaker 3: June Grosso and this is Bloomberg