1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,880 --> 00:00:12,400 Speaker 1: The saga of the Justice Department's attempt to dismiss the 3 00:00:12,480 --> 00:00:17,200 Speaker 1: corruption case against New York City Mayor Eric Adams continued 4 00:00:17,200 --> 00:00:22,160 Speaker 1: in Manhattan courtroom today. Federal Judge Dale Hoe heard arguments 5 00:00:22,200 --> 00:00:26,400 Speaker 1: from adams lawyer and Acting Deputy Attorney General Emil Bove, 6 00:00:26,920 --> 00:00:30,159 Speaker 1: whose order to the Manhattan US Attorney to drop the 7 00:00:30,320 --> 00:00:33,879 Speaker 1: charges against Adams led to the stunning resignation of that 8 00:00:34,080 --> 00:00:38,280 Speaker 1: US attorney and seven other career prosecutors joining me as 9 00:00:38,320 --> 00:00:43,200 Speaker 1: former federal prosecutor Robert Mintz a partner maccarter in English, Bob, 10 00:00:43,240 --> 00:00:47,160 Speaker 1: it was an atypical scene in the courtroom. On one side, 11 00:00:47,159 --> 00:00:51,320 Speaker 1: you had the Justice Department, represented by the acting Deputy 12 00:00:51,360 --> 00:00:54,640 Speaker 1: Attorney General, and on the other you had Adams and 13 00:00:54,720 --> 00:00:58,600 Speaker 1: his lawyers. Nowhere was there a representative from the Manhattan 14 00:00:58,720 --> 00:01:01,400 Speaker 1: US Attorney's office that brought the case. 15 00:01:02,200 --> 00:01:05,839 Speaker 2: In terms of a courtroom proceeding, it was quite unusual 16 00:01:06,240 --> 00:01:09,760 Speaker 2: because you didn't have any of the prosecutors who actually 17 00:01:09,880 --> 00:01:12,680 Speaker 2: worked on the case, who worked on the investigation over 18 00:01:12,720 --> 00:01:16,560 Speaker 2: the past two or three years before the judge. Instead, 19 00:01:16,640 --> 00:01:21,640 Speaker 2: you had this situation where Embo Beauveay, the acting Deputy 20 00:01:21,640 --> 00:01:27,280 Speaker 2: Attorney General, was really the loan Justice Department official defending 21 00:01:27,319 --> 00:01:30,440 Speaker 2: the actions of the Justice Department, and it created really 22 00:01:30,520 --> 00:01:32,160 Speaker 2: quite a remarkable situation. 23 00:01:32,600 --> 00:01:36,320 Speaker 1: The judge questioned Adams to find out whether he understood 24 00:01:36,880 --> 00:01:41,840 Speaker 1: that the charges could be brought against him again, and 25 00:01:41,920 --> 00:01:44,679 Speaker 1: Adams said, I have not committed a crime. I do 26 00:01:44,800 --> 00:01:47,880 Speaker 1: not see them bringing it back. I'm not afraid of that. 27 00:01:48,560 --> 00:01:52,080 Speaker 2: Well, the Justice Department was requesting what's called the dismissal 28 00:01:52,080 --> 00:01:55,320 Speaker 2: without prejudice, which means that the government has the ability 29 00:01:55,360 --> 00:01:58,480 Speaker 2: to refile these charges at any point in the future, 30 00:01:58,600 --> 00:02:01,640 Speaker 2: subject to the statute of limitation, if they desire to 31 00:02:01,720 --> 00:02:04,279 Speaker 2: do so. So what the judge here was making sure 32 00:02:04,360 --> 00:02:09,000 Speaker 2: was that the defendant, Mayor Adams, understood that this dismissal 33 00:02:09,320 --> 00:02:11,840 Speaker 2: could be reinstated at some point in the future, and 34 00:02:11,919 --> 00:02:14,200 Speaker 2: the mayor's response was that he did not fear that 35 00:02:14,280 --> 00:02:16,200 Speaker 2: at all, because he had done nothing wrong. 36 00:02:17,480 --> 00:02:21,519 Speaker 1: One of the concerns of the Manhattan US attorney who 37 00:02:21,600 --> 00:02:26,200 Speaker 1: resigned is that this was a quid pro quo Adam's 38 00:02:26,200 --> 00:02:30,600 Speaker 1: help on immigration enforcement in exchange for the Justice Department 39 00:02:30,720 --> 00:02:34,040 Speaker 1: dropping the case, and the judge asked Bouve if there 40 00:02:34,080 --> 00:02:38,280 Speaker 1: were other examples where a similar rationale was used to 41 00:02:38,360 --> 00:02:42,360 Speaker 1: drop charges against a public official. Bouvet couldn't come up 42 00:02:42,400 --> 00:02:45,760 Speaker 1: with a case like that, but he cited the Biden 43 00:02:45,800 --> 00:02:51,040 Speaker 1: administration's decision to release Russian arms dealer Victor Bout in 44 00:02:51,120 --> 00:02:56,240 Speaker 1: exchange for US basketball player Britney Griner. But that's clearly 45 00:02:56,280 --> 00:02:57,120 Speaker 1: a quid pro quo. 46 00:02:58,400 --> 00:03:01,120 Speaker 2: Well, I think what he was trying to show was 47 00:03:01,160 --> 00:03:05,200 Speaker 2: that there are some times where the government will take 48 00:03:05,240 --> 00:03:09,200 Speaker 2: a position in which they will exchange one thing for another. 49 00:03:09,480 --> 00:03:13,440 Speaker 2: In prisoner exchanges, you do have a circumstance where somebody 50 00:03:13,480 --> 00:03:16,399 Speaker 2: who's being held by the United States government, who obviously 51 00:03:16,919 --> 00:03:20,600 Speaker 2: was duly tried and convicted before a jury, and another 52 00:03:21,000 --> 00:03:25,080 Speaker 2: US citizen, usually who's held by another foreign country, usually 53 00:03:25,080 --> 00:03:27,680 Speaker 2: in the situation in which they were deprived of all 54 00:03:27,760 --> 00:03:32,959 Speaker 2: due process, they are exchanged. But there's really no parallel there, 55 00:03:33,000 --> 00:03:36,360 Speaker 2: because nobody is saying that is anything but a quid 56 00:03:36,400 --> 00:03:40,200 Speaker 2: pro quo in exchange for one prisoner for another. For 57 00:03:40,280 --> 00:03:44,200 Speaker 2: various policy reasons, it does not go to the dismissal 58 00:03:44,280 --> 00:03:47,280 Speaker 2: of a pending criminal charge, which is something that is 59 00:03:47,440 --> 00:03:51,360 Speaker 2: entirely different. Those are circumstances where each of those individuals 60 00:03:51,480 --> 00:03:53,520 Speaker 2: have already been tried and convicted, whether it's in this 61 00:03:53,640 --> 00:03:57,360 Speaker 2: country or somewhere else, and are now simply getting exchanged 62 00:03:57,400 --> 00:03:59,000 Speaker 2: for purely political reasons. 63 00:03:59,360 --> 00:04:03,040 Speaker 1: It seemed as if Beauvay was sort of outlining what 64 00:04:03,120 --> 00:04:06,280 Speaker 1: the judge could and could not consider. For example, he 65 00:04:06,320 --> 00:04:10,080 Speaker 1: said that the judge couldn't do a wide ranging inquiry 66 00:04:10,640 --> 00:04:14,520 Speaker 1: into DOJ decision making in the case. He said, the 67 00:04:14,560 --> 00:04:17,520 Speaker 1: inquiry is limited to whether the department made the request 68 00:04:17,640 --> 00:04:21,479 Speaker 1: in good faith. That's the end of the inquiry. Beauve said, 69 00:04:21,560 --> 00:04:24,039 Speaker 1: I'm telling you as an officer of the court that 70 00:04:24,040 --> 00:04:26,720 Speaker 1: that was made in good faith. I mean, did the 71 00:04:26,800 --> 00:04:27,880 Speaker 1: judge have to accept that? 72 00:04:28,560 --> 00:04:31,400 Speaker 2: Well, what the Deputy Attorney General was trying to do 73 00:04:31,960 --> 00:04:36,600 Speaker 2: was to take away all of this controversy, the unprecedented 74 00:04:36,920 --> 00:04:41,920 Speaker 2: scene of one prosecutor after another resigning rather than follow 75 00:04:41,920 --> 00:04:45,200 Speaker 2: in order that they believed was improper, and to take 76 00:04:45,240 --> 00:04:47,960 Speaker 2: that issue completely off the table and present to the 77 00:04:48,080 --> 00:04:52,039 Speaker 2: judge what he said was simply a straightforward exercise in 78 00:04:52,160 --> 00:04:56,039 Speaker 2: prosecutorial discretion. And to really try to make this sound 79 00:04:56,400 --> 00:04:59,800 Speaker 2: as if this is a routine dismissal of a criminal 80 00:05:00,720 --> 00:05:04,680 Speaker 2: that is, in the words of mister Bob, virtually unreviewable 81 00:05:04,880 --> 00:05:07,400 Speaker 2: by this courtroom. What he was trying to do with 82 00:05:07,520 --> 00:05:09,960 Speaker 2: the signal to the judge that the judge here really 83 00:05:10,000 --> 00:05:13,520 Speaker 2: does not have much discretion at all, and that if 84 00:05:13,560 --> 00:05:16,440 Speaker 2: the government is moving to dismiss this case, the court 85 00:05:16,520 --> 00:05:19,360 Speaker 2: really should simply acquiesce and sign the order. 86 00:05:19,960 --> 00:05:25,000 Speaker 1: What continues to surprise me is that Beauvet's argument for 87 00:05:25,080 --> 00:05:28,440 Speaker 1: dismissing the charges is the same argument he made in 88 00:05:28,520 --> 00:05:31,719 Speaker 1: his first order to the Manhattan US Attorney and that 89 00:05:31,920 --> 00:05:36,400 Speaker 1: caused a string of prosecutors to resign. He said, the 90 00:05:36,440 --> 00:05:40,960 Speaker 1: continuation of this prosecution is interfering with both national security 91 00:05:41,000 --> 00:05:45,080 Speaker 1: and immigration initiatives. I think the fact that Mayor Adams 92 00:05:45,120 --> 00:05:47,520 Speaker 1: is sitting to my left is part of the problem. 93 00:05:47,839 --> 00:05:51,520 Speaker 1: He's not able to be outrunning the city. So again, 94 00:05:51,600 --> 00:05:56,120 Speaker 1: there's no consideration of the evidence against Adams. So the 95 00:05:56,360 --> 00:06:00,279 Speaker 1: Justice Department is dismissing a case based on political consideration 96 00:06:00,560 --> 00:06:02,080 Speaker 1: and it's admitting that. 97 00:06:02,640 --> 00:06:05,080 Speaker 2: Yeah. Well, what this really does is it raises the 98 00:06:05,240 --> 00:06:09,640 Speaker 2: question as to what limits, if any, there are in 99 00:06:09,760 --> 00:06:14,040 Speaker 2: terms of prosecutorial discretion. Hear, what the Deputy Attorney General 100 00:06:14,160 --> 00:06:17,679 Speaker 2: is really arguing that if the Department of Justice wants 101 00:06:17,720 --> 00:06:20,320 Speaker 2: to dismiss the case, they can pretty much do it 102 00:06:20,360 --> 00:06:24,159 Speaker 2: for any reason whatsoever. And in this case, the argument 103 00:06:24,400 --> 00:06:28,920 Speaker 2: is that the continued prosecution of Mayor Adams will interfere 104 00:06:29,320 --> 00:06:33,600 Speaker 2: with President Trump's ability to pursue his immigration agenda. And 105 00:06:33,640 --> 00:06:37,440 Speaker 2: the real question then is is that an appropriate basis 106 00:06:37,480 --> 00:06:40,599 Speaker 2: to dismiss the case? And what the government's position now 107 00:06:40,760 --> 00:06:43,480 Speaker 2: is that the judge does not get to question whether 108 00:06:43,600 --> 00:06:46,320 Speaker 2: or not the basis for the dismissal is appropriate or not, 109 00:06:46,600 --> 00:06:50,360 Speaker 2: simply if it is made in good faith, that that's enough. Now, 110 00:06:50,400 --> 00:06:53,720 Speaker 2: what we've seen here too is mister Beauveat kind of 111 00:06:53,760 --> 00:06:55,960 Speaker 2: trying to have it both ways, in the sense that 112 00:06:56,240 --> 00:06:59,599 Speaker 2: initially he said that the decision to dismiss this case 113 00:06:59,760 --> 00:07:03,080 Speaker 2: would not based at all on the case's legal merits 114 00:07:03,200 --> 00:07:06,039 Speaker 2: or the theory of prosecution, and he stuck to that 115 00:07:06,240 --> 00:07:09,760 Speaker 2: again during this hearing, But then he also told the 116 00:07:09,880 --> 00:07:14,520 Speaker 2: judge that the prosecution had the appearances of impropriety and 117 00:07:14,640 --> 00:07:18,240 Speaker 2: the suggestion that this entire case was brought simply to 118 00:07:18,360 --> 00:07:21,520 Speaker 2: punish the mayor for his stance on immigration, which was 119 00:07:21,600 --> 00:07:24,840 Speaker 2: contrary to the position of the Biden administration at the time. 120 00:07:25,200 --> 00:07:28,960 Speaker 2: So he really is challenging in some way the merits 121 00:07:29,000 --> 00:07:33,080 Speaker 2: of the case and suggesting that this case was improvidently 122 00:07:33,160 --> 00:07:36,360 Speaker 2: brought by the US Attorney's office. The problem with that 123 00:07:36,560 --> 00:07:40,640 Speaker 2: argument is that the investigation began well before Mayor Adams 124 00:07:40,680 --> 00:07:45,240 Speaker 2: became mayor, and well before he criticized the Biden administration's 125 00:07:45,280 --> 00:07:48,640 Speaker 2: position on immigration. So the acting US Attorney for the 126 00:07:48,640 --> 00:07:51,120 Speaker 2: Southern District of New York, who refused to carry out 127 00:07:51,320 --> 00:07:54,960 Speaker 2: this order and who has since resigned in protests, pointed 128 00:07:55,000 --> 00:07:58,240 Speaker 2: out that that argument really didn't hold any water, and 129 00:07:58,280 --> 00:08:02,600 Speaker 2: that this investigation was never about Mayor Adam's position with 130 00:08:02,800 --> 00:08:05,680 Speaker 2: regard to immigration and the fact that he challenged the 131 00:08:05,680 --> 00:08:08,960 Speaker 2: Biden administration on some of the immigration policies. 132 00:08:09,360 --> 00:08:11,840 Speaker 1: And both Ay also said at one point that even 133 00:08:11,880 --> 00:08:15,480 Speaker 1: if there were a quid pro quo, there wouldn't be 134 00:08:15,520 --> 00:08:17,520 Speaker 1: any issue with this motion. 135 00:08:18,040 --> 00:08:21,360 Speaker 2: Once again, the position of the Deputy US Attorney General 136 00:08:21,440 --> 00:08:24,800 Speaker 2: here is that the government can come in to dismiss 137 00:08:24,840 --> 00:08:28,640 Speaker 2: the case pretty much for any reason whatsoever, as long 138 00:08:28,800 --> 00:08:31,760 Speaker 2: as they are quote unquote acting in good faith. And 139 00:08:31,840 --> 00:08:34,160 Speaker 2: here the position that was put forward to the judge 140 00:08:34,559 --> 00:08:37,319 Speaker 2: was that if the decision is made by the Department 141 00:08:37,360 --> 00:08:41,800 Speaker 2: of Justice, that this decision furthers a policy agenda by 142 00:08:41,840 --> 00:08:45,600 Speaker 2: the administration, that that is a valid basis to dismiss 143 00:08:45,600 --> 00:08:48,640 Speaker 2: the case. And what troubled the prosecutors from the Southern 144 00:08:48,720 --> 00:08:51,800 Speaker 2: District of New York and other federal prosecutors he resigned 145 00:08:51,800 --> 00:08:55,440 Speaker 2: in protests is that really is saying to somebody that 146 00:08:55,559 --> 00:08:58,200 Speaker 2: if you're in a position as an elected official to 147 00:08:58,440 --> 00:09:03,120 Speaker 2: further the political agenda of the administration, that then your 148 00:09:03,360 --> 00:09:07,040 Speaker 2: value as a public official and your ability to carry 149 00:09:07,040 --> 00:09:10,640 Speaker 2: out the administrations again to outweighs the fact that you 150 00:09:10,760 --> 00:09:13,280 Speaker 2: may have committed a crime and that the case should 151 00:09:13,280 --> 00:09:14,840 Speaker 2: be dropped for that reason. 152 00:09:15,040 --> 00:09:17,280 Speaker 1: So Judge Host said he was aware that he had 153 00:09:17,679 --> 00:09:21,560 Speaker 1: little discretion and that courts have found prosecutors are the 154 00:09:21,600 --> 00:09:24,439 Speaker 1: best judges of whether or not a case should continue, 155 00:09:24,720 --> 00:09:27,600 Speaker 1: but he said judges do have a limited role to play. 156 00:09:28,200 --> 00:09:32,320 Speaker 1: There was a request from emotion from common cause for 157 00:09:32,400 --> 00:09:35,520 Speaker 1: the judge to appoint a special prosecutor, and something like 158 00:09:35,559 --> 00:09:38,079 Speaker 1: that was done in the Michael Flynn case. Couldn't the 159 00:09:38,160 --> 00:09:38,880 Speaker 1: judge do that? 160 00:09:40,040 --> 00:09:43,760 Speaker 2: Well, judge could do that here. The judge is very measured, 161 00:09:44,200 --> 00:09:46,920 Speaker 2: very methodical in the way he approached this hearing. He 162 00:09:47,040 --> 00:09:50,800 Speaker 2: started out by calling it an unusual situation, which is 163 00:09:50,840 --> 00:09:54,520 Speaker 2: a rather understated way to describe the situation that was 164 00:09:54,559 --> 00:09:57,559 Speaker 2: before him that led to this hearing. He also said 165 00:09:57,600 --> 00:10:00,040 Speaker 2: that he acknowledged, as you point out, that he he 166 00:10:00,080 --> 00:10:03,400 Speaker 2: has limited discretion here, but that he is entitled to 167 00:10:03,440 --> 00:10:06,559 Speaker 2: have a hearing and to understand the government's position for 168 00:10:06,720 --> 00:10:09,800 Speaker 2: dismissing the case and to determine whether or not dismissal 169 00:10:10,040 --> 00:10:13,560 Speaker 2: is in the public interest. The judge can, as you mentioned, 170 00:10:13,760 --> 00:10:17,160 Speaker 2: appoint a special prosecutor if it finds that the Justice 171 00:10:17,160 --> 00:10:21,480 Speaker 2: Department acted improperly, and he can order that evidence that 172 00:10:21,600 --> 00:10:24,480 Speaker 2: was gathered by the Department of Justice, for example, be 173 00:10:24,559 --> 00:10:28,160 Speaker 2: made available to state and local prosecutors so they could 174 00:10:28,200 --> 00:10:31,360 Speaker 2: pursue the case if the Department of Justice refused. 175 00:10:30,840 --> 00:10:31,319 Speaker 1: To do so. 176 00:10:31,679 --> 00:10:34,640 Speaker 2: But that would be a really unusual move by the judge, 177 00:10:34,840 --> 00:10:37,160 Speaker 2: and based upon the way this hearing went, I don't 178 00:10:37,160 --> 00:10:38,280 Speaker 2: think he's likely to do that. 179 00:10:38,800 --> 00:10:42,280 Speaker 1: Judge Hoe ended the hearing by saying he wouldn't shoot 180 00:10:42,280 --> 00:10:45,840 Speaker 1: from the hip and rule immediately, but he was aware 181 00:10:45,920 --> 00:10:48,720 Speaker 1: that it's not in anyone's interest here for this to 182 00:10:48,840 --> 00:10:53,000 Speaker 1: drag on. Of course, even After this motion to dismiss 183 00:10:53,200 --> 00:10:57,400 Speaker 1: is settled, there are still continuing questions about Eric Adams's 184 00:10:57,440 --> 00:11:01,240 Speaker 1: future as the mayor of New York City. Governor Kathy 185 00:11:01,320 --> 00:11:05,199 Speaker 1: Hochel held a series of meetings with key political figures 186 00:11:05,240 --> 00:11:10,239 Speaker 1: Tuesday as she contemplates removing Mayor Adams from his office. 187 00:11:10,640 --> 00:11:14,280 Speaker 1: It would be an unprecedented step in New York history. 188 00:11:14,800 --> 00:11:18,480 Speaker 1: Thanks so much, Bob. That's Robert Mintz of Macarter and English. 189 00:11:18,800 --> 00:11:21,680 Speaker 1: Coming up next on the Bloomberg Law Show. Trump is 190 00:11:21,760 --> 00:11:25,760 Speaker 1: forcing the Supreme Court to face its greatest fear. I'll 191 00:11:25,760 --> 00:11:30,240 Speaker 1: talk to Bloomberg Supreme Court reporter Greg Store. I'm June Grosso, 192 00:11:30,360 --> 00:11:35,760 Speaker 1: and you're listening to Bloomberg. Unlike the executive and legislative 193 00:11:35,800 --> 00:11:40,080 Speaker 1: branches of government, the Supreme Court has no real power 194 00:11:40,160 --> 00:11:45,400 Speaker 1: to enforce its decisions, no army or constitutional spending power 195 00:11:45,559 --> 00:11:49,000 Speaker 1: to use. So what happens if the President of the 196 00:11:49,120 --> 00:11:53,280 Speaker 1: United States refuses to comply with a Supreme Court order? 197 00:11:53,640 --> 00:11:57,240 Speaker 1: It hasn't happened since the Civil War, but Donald Trump 198 00:11:57,320 --> 00:12:02,400 Speaker 1: seems to be ignoring longstandingly legal constraints. Is the next step. 199 00:12:02,679 --> 00:12:06,120 Speaker 1: Defying a court order. Though Trump has said he always 200 00:12:06,160 --> 00:12:10,400 Speaker 1: follows court orders. His truth. Social posts and statements from 201 00:12:10,440 --> 00:12:14,600 Speaker 1: his key aids seem to suggest defiance. My guest, his 202 00:12:14,600 --> 00:12:18,840 Speaker 1: Bloomberg Supreme Court reporter Greg Storr. His recent essay is 203 00:12:19,040 --> 00:12:23,840 Speaker 1: entitled Trump forces the Supreme Court to face its greatest fear. 204 00:12:24,440 --> 00:12:27,920 Speaker 1: You know, you wrote this article and it's very scholarly, Greg, 205 00:12:28,160 --> 00:12:30,840 Speaker 1: and it reminds me of being in law school in 206 00:12:30,880 --> 00:12:33,360 Speaker 1: a good way. And you start with the history of 207 00:12:33,720 --> 00:12:38,280 Speaker 1: the landmark case known to every lawyer, Marbury versus Madison. 208 00:12:38,880 --> 00:12:41,679 Speaker 3: Yeah, this is probably the most important case in the 209 00:12:41,760 --> 00:12:45,160 Speaker 3: history of the country, written by Chief Justice John Marshall. 210 00:12:45,520 --> 00:12:48,240 Speaker 3: As you said, it established that the Court has the 211 00:12:48,320 --> 00:12:52,440 Speaker 3: power to strike down acts of Congress. But what's notable 212 00:12:52,679 --> 00:12:55,560 Speaker 3: for our purposes here is is how Marshall got to 213 00:12:55,600 --> 00:13:00,360 Speaker 3: that conclusion. The case is about when John Adams the 214 00:13:00,400 --> 00:13:05,440 Speaker 3: presidency after losing reelection. He on his way out the 215 00:13:05,480 --> 00:13:09,440 Speaker 3: door in eighteen oh one, appointed a bunch of judges 216 00:13:09,920 --> 00:13:13,120 Speaker 3: known as Midnight Judges, and kind of in the frenzy 217 00:13:13,160 --> 00:13:15,800 Speaker 3: of doing that with one of them, a guy by 218 00:13:15,840 --> 00:13:19,600 Speaker 3: the name of William Marbury, the vital step of paperwork 219 00:13:19,640 --> 00:13:24,320 Speaker 3: didn't happen. The commission didn't get delivered to Marbury, before 220 00:13:24,440 --> 00:13:29,080 Speaker 3: Adam's left office. Then Jefferson comes into office and his 221 00:13:29,120 --> 00:13:33,240 Speaker 3: Secretary of State James Madison, refuses to deliver the paperwork, 222 00:13:33,280 --> 00:13:37,200 Speaker 3: even though that's a pretty routine step. So Marbury goes 223 00:13:37,240 --> 00:13:40,880 Speaker 3: to the Supreme Court and says, hey, order Madison to 224 00:13:41,200 --> 00:13:44,000 Speaker 3: turn over that commission. He's violating the law by not 225 00:13:44,160 --> 00:13:47,440 Speaker 3: doing that. And so John Marshall has this dilemma here. 226 00:13:47,880 --> 00:13:51,680 Speaker 3: Supreme Court's new hasn't really established itself. The question is 227 00:13:51,679 --> 00:13:54,520 Speaker 3: is he going to or is the Supreme Court going 228 00:13:54,559 --> 00:13:57,600 Speaker 3: to order Madison in the Jefferson administration to turn over 229 00:13:57,679 --> 00:14:02,280 Speaker 3: that commission to Marbury. And the continuous solution that he came. 230 00:14:02,240 --> 00:14:05,679 Speaker 2: Up with was, Hey, we don't want to. 231 00:14:05,160 --> 00:14:09,480 Speaker 3: Risk the possibility that Jefferson and Madison won't comply, so 232 00:14:09,520 --> 00:14:12,240 Speaker 3: instead we're going to say, yes, Marbury is entitled to 233 00:14:12,320 --> 00:14:15,000 Speaker 3: the commission. But as it turns out, we don't actually 234 00:14:15,000 --> 00:14:18,120 Speaker 3: have jurisdiction to decide this case because this law that 235 00:14:18,200 --> 00:14:24,040 Speaker 3: Congress passed giving us jurisdiction is actually unconstitutional. So Marbury 236 00:14:24,560 --> 00:14:28,600 Speaker 3: ducked the confrontation with Jefferson while establishing that the Court 237 00:14:28,720 --> 00:14:30,760 Speaker 3: is this very powerful institution. 238 00:14:31,440 --> 00:14:35,960 Speaker 1: Marshall's fear that a President wouldn't comply with the Court's order. 239 00:14:36,440 --> 00:14:42,240 Speaker 1: Came to fruition during Andrew Jackson's administration. Jackson, who, by 240 00:14:42,280 --> 00:14:44,680 Speaker 1: the way, is one of Trump's heroes. 241 00:14:46,120 --> 00:14:50,560 Speaker 3: So this is in the context of efforts to move 242 00:14:50,640 --> 00:14:55,040 Speaker 3: the Jerkey Indians off their land in Georgia. And there 243 00:14:55,080 --> 00:14:57,440 Speaker 3: was a case that didn't actually involve the Jackson administration. 244 00:14:57,520 --> 00:15:00,920 Speaker 3: It was between the State of Georgia and a private 245 00:15:01,280 --> 00:15:06,360 Speaker 3: white man named Worcester, and the Supreme Court said that 246 00:15:06,560 --> 00:15:11,880 Speaker 3: the State of Georgia was illegally forcing Worcester to take 247 00:15:11,920 --> 00:15:14,880 Speaker 3: an oath of allegiance to the state. Worcester's a white 248 00:15:14,920 --> 00:15:18,280 Speaker 3: missionary who lived on Cherokee land, and Georgia law that 249 00:15:18,320 --> 00:15:22,360 Speaker 3: required every taken oath. Georgia arrested him and refused to 250 00:15:22,840 --> 00:15:26,240 Speaker 3: release him after the Supreme Court ruling, and then Andrew Jackson, 251 00:15:26,440 --> 00:15:28,320 Speaker 3: you know, it was not actually a party to the case, 252 00:15:28,320 --> 00:15:31,520 Speaker 3: but had definite interest in it, essentially refused to help 253 00:15:31,560 --> 00:15:34,280 Speaker 3: the Supreme Court enforce the ruling and refused to use 254 00:15:34,280 --> 00:15:37,240 Speaker 3: federal troops to help ensure that that Worcester was released. 255 00:15:37,480 --> 00:15:41,800 Speaker 3: Jackson's quote, which is probably apocryphal, was John Marshall has 256 00:15:41,800 --> 00:15:44,040 Speaker 3: made his decision now let him enforce it. 257 00:15:44,720 --> 00:15:49,840 Speaker 1: And President Lincoln also clashed with a Supreme Court justice 258 00:15:50,000 --> 00:15:53,800 Speaker 1: during the Civil War. He actually went further than Jackson. 259 00:15:54,440 --> 00:15:57,000 Speaker 1: He suspended the writ of habeas corpus. 260 00:15:57,720 --> 00:16:01,000 Speaker 3: Yeah, this is probably the closest as president has ever 261 00:16:01,040 --> 00:16:04,440 Speaker 3: come to directly defining the Supreme Court. This is a 262 00:16:04,480 --> 00:16:08,960 Speaker 3: situation where the war had started. The war was precipitated 263 00:16:09,200 --> 00:16:11,520 Speaker 3: in part by the Supreme Court in Chief Justice Roger 264 00:16:11,560 --> 00:16:15,760 Speaker 3: brook Tawny issuing the dread Scott decision that declared that 265 00:16:15,880 --> 00:16:19,480 Speaker 3: freed slaves could never be be citizens in the United States. 266 00:16:19,960 --> 00:16:24,800 Speaker 3: And as the war starts, Abraham Lincoln's very concerned about sabotage, 267 00:16:25,080 --> 00:16:29,800 Speaker 3: and he issues an order that authorized one of his 268 00:16:29,880 --> 00:16:34,120 Speaker 3: generals to suspend the rid of habeas corpus near railroad 269 00:16:34,120 --> 00:16:37,360 Speaker 3: lines in Maryland and hapeas corpus is this notion that 270 00:16:37,640 --> 00:16:40,360 Speaker 3: if the government holds you, rescue you can go to 271 00:16:40,400 --> 00:16:43,600 Speaker 3: a judge and make the governments defend why it's holding you. 272 00:16:44,040 --> 00:16:47,800 Speaker 3: And Lincoln said, we're going to suspend that notion because 273 00:16:47,840 --> 00:16:50,840 Speaker 3: of the crisis we face here. Well, the guy named 274 00:16:50,880 --> 00:16:55,920 Speaker 3: John Merriman was arrested, turned to Roger brook Tawny got 275 00:16:55,960 --> 00:16:58,880 Speaker 3: a rid of habeas corpus anyway, which demanded that the 276 00:16:58,920 --> 00:17:03,120 Speaker 3: military justified why Merriman had been been picked up, and 277 00:17:03,400 --> 00:17:07,040 Speaker 3: Lincoln in his generals essentially ignored the order. Merriman did 278 00:17:07,119 --> 00:17:11,680 Speaker 3: not go before a judge, and Roger brook Tawney eventually said, look, 279 00:17:11,920 --> 00:17:14,400 Speaker 3: I've done all I can do here, But he said, 280 00:17:14,480 --> 00:17:17,000 Speaker 3: my power has been resisted by a force too strong 281 00:17:17,040 --> 00:17:20,480 Speaker 3: for me to overcome. And Lincoln later justified what he did, saying, 282 00:17:21,080 --> 00:17:23,800 Speaker 3: are all the laws but one to go on executed, 283 00:17:23,920 --> 00:17:26,359 Speaker 3: and the government itself to go to pieces lest that 284 00:17:26,440 --> 00:17:29,320 Speaker 3: one be violated. In other words, he said he was 285 00:17:29,440 --> 00:17:32,359 Speaker 3: justified by the exigencies of the circumstance, namely of the 286 00:17:32,400 --> 00:17:32,920 Speaker 3: Civil War. 287 00:17:33,920 --> 00:17:39,720 Speaker 1: Since Lincoln, presidents have complied with Supreme Court orders, and 288 00:17:39,880 --> 00:17:44,320 Speaker 1: Richard Nixon turning over the secret White House recordings in 289 00:17:44,400 --> 00:17:47,960 Speaker 1: nineteen seventy two is the most recent incident and probably 290 00:17:48,359 --> 00:17:51,199 Speaker 1: one that people remember most but tell us about some 291 00:17:51,240 --> 00:17:54,119 Speaker 1: of the other presidents who chose not to defy a 292 00:17:54,160 --> 00:17:54,800 Speaker 1: court order. 293 00:17:55,040 --> 00:17:57,280 Speaker 3: So there's a litany of examples. A few of the 294 00:17:57,280 --> 00:18:00,000 Speaker 3: biggest ones just because of how high profile they came, 295 00:18:00,119 --> 00:18:03,760 Speaker 3: as were nineteen fifty two President Harry Truman seizes the 296 00:18:03,880 --> 00:18:06,880 Speaker 3: nation's steel mills to make sure there's not a work 297 00:18:06,920 --> 00:18:12,120 Speaker 3: stoppage during the Korean War. Supreme Court rules against them, 298 00:18:12,160 --> 00:18:16,960 Speaker 3: says he did that illegally. Truman immediately complies. In nineteen 299 00:18:17,000 --> 00:18:19,919 Speaker 3: fifty four the Brown Versus Board of Education decision and 300 00:18:20,000 --> 00:18:25,080 Speaker 3: some subsequent rulings, President Dwight Eisenhower initially reluctant to get involved, 301 00:18:25,119 --> 00:18:28,480 Speaker 3: but actually helped the Supreme Court enforce those rulings and 302 00:18:28,480 --> 00:18:31,280 Speaker 3: the lower courts enforce those rulings when he sent federal 303 00:18:31,359 --> 00:18:36,600 Speaker 3: troops to escort black students into a high school in Arkansas. 304 00:18:36,640 --> 00:18:40,080 Speaker 3: And then nineteen seventy four, Supreme Court orders Richard Nixon 305 00:18:40,119 --> 00:18:44,560 Speaker 3: to turnover secret White House recordings. Nixon complies days later 306 00:18:44,640 --> 00:18:47,480 Speaker 3: he has to resign the presidency. 307 00:18:47,600 --> 00:18:50,679 Speaker 1: So you asked this question in your piece, and so 308 00:18:50,720 --> 00:18:52,720 Speaker 1: now I'm going to ask you for the answer. Why 309 00:18:52,760 --> 00:18:57,320 Speaker 1: are presidents so quick to accept Supreme Court rulings as binding? 310 00:18:57,760 --> 00:19:00,840 Speaker 3: Well, there are both specific answers to each instance and 311 00:19:00,960 --> 00:19:03,119 Speaker 3: kind of a general answer. And the specific answer is 312 00:19:03,160 --> 00:19:05,720 Speaker 3: often a lot of the time the president is taking 313 00:19:05,720 --> 00:19:10,360 Speaker 3: a very unpopular position. Harry Truman's position, for example, very 314 00:19:10,440 --> 00:19:13,720 Speaker 3: unpopular at the time, and his standing was especially low. 315 00:19:14,160 --> 00:19:16,920 Speaker 3: But there's also the more general issue, which is that 316 00:19:17,359 --> 00:19:20,920 Speaker 3: the Court over the years, over the decades and centuries, 317 00:19:21,000 --> 00:19:25,200 Speaker 3: has earned some trust with the public. It has institutional 318 00:19:25,240 --> 00:19:28,959 Speaker 3: standing that, at least until recently, was pretty strong and 319 00:19:29,520 --> 00:19:32,080 Speaker 3: very often stronger than the other branches of government. And 320 00:19:32,119 --> 00:19:36,359 Speaker 3: that goodwill has essentially created what some call it, the 321 00:19:36,520 --> 00:19:40,200 Speaker 3: habit of accepting the Supreme Court decisions even when folks 322 00:19:40,200 --> 00:19:40,960 Speaker 3: disagree with them. 323 00:19:41,960 --> 00:19:45,160 Speaker 1: And so now we're at a time where the Supreme 324 00:19:45,240 --> 00:19:48,960 Speaker 1: Court and courts in general are not held in as 325 00:19:49,080 --> 00:19:52,359 Speaker 1: high regard by the public. I mean, the standing of 326 00:19:52,400 --> 00:19:55,240 Speaker 1: the Supreme Court is it at its lowest since it's 327 00:19:55,280 --> 00:19:56,000 Speaker 1: been recorded. 328 00:19:56,359 --> 00:19:59,320 Speaker 3: It's not quite at it flowest. Now it has recovered somewhat, 329 00:19:59,400 --> 00:20:01,400 Speaker 3: but it did. It did hit bottom just a couple 330 00:20:01,440 --> 00:20:04,200 Speaker 3: of years ago after the Dobbs really have overturned the 331 00:20:04,280 --> 00:20:05,439 Speaker 3: test too, so right to abortion. 332 00:20:06,200 --> 00:20:11,919 Speaker 1: And so President Trump has said that he'll obey court orders. 333 00:20:11,960 --> 00:20:14,760 Speaker 1: I always obey court orders, he said in the Oval 334 00:20:14,840 --> 00:20:19,280 Speaker 1: Office when asked. But he also has said some things 335 00:20:19,320 --> 00:20:22,000 Speaker 1: that leave a question mark in the air. For example, 336 00:20:22,440 --> 00:20:25,800 Speaker 1: on social media on Saturday, he posted a quote that's 337 00:20:25,880 --> 00:20:30,800 Speaker 1: been attributed to Napoleon Bonaparte. He who saves his country 338 00:20:30,920 --> 00:20:35,120 Speaker 1: does not violate any law. So is there a question 339 00:20:35,320 --> 00:20:38,560 Speaker 1: still of whether he's going to be different than he 340 00:20:38,680 --> 00:20:40,000 Speaker 1: was in his first administration? 341 00:20:40,800 --> 00:20:45,920 Speaker 3: Absolutely, there's a question. The administration is clearly sending out 342 00:20:46,040 --> 00:20:48,080 Speaker 3: mixed signals about its intentions. 343 00:20:48,119 --> 00:20:48,320 Speaker 4: Here. 344 00:20:48,600 --> 00:20:51,240 Speaker 3: You talked about some of the things President Trump has said. 345 00:20:51,480 --> 00:20:53,520 Speaker 3: There are also things that some of his top aides 346 00:20:53,880 --> 00:20:58,400 Speaker 3: have said, like Vice President Jade Vance, who actually quoted 347 00:20:58,400 --> 00:21:03,080 Speaker 3: that apocryphal Andrew Jackson comment about the Chief Justices made 348 00:21:03,160 --> 00:21:06,240 Speaker 3: is really now let him enforce it. Elon Musk has 349 00:21:06,720 --> 00:21:09,879 Speaker 3: said things that have strongly suggested he would be willing 350 00:21:09,920 --> 00:21:15,440 Speaker 3: to defy the Supreme Court. So that concern is in 351 00:21:15,480 --> 00:21:18,720 Speaker 3: the air in a way it has not been in 352 00:21:18,760 --> 00:21:23,320 Speaker 3: my lifetime. Even in those moments of huge national crisis, 353 00:21:23,359 --> 00:21:26,000 Speaker 3: major Supreme Court decisions like the next one Takes case, 354 00:21:26,240 --> 00:21:29,480 Speaker 3: there wasn't this level of concern that a president might 355 00:21:29,520 --> 00:21:31,920 Speaker 3: just bumb his nose at the Supreme Court. 356 00:21:32,320 --> 00:21:36,600 Speaker 1: And he has issued a lot of executive orders that 357 00:21:37,800 --> 00:21:41,359 Speaker 1: either ignore the law or defy the law. And you 358 00:21:41,359 --> 00:21:44,480 Speaker 1: know one that stands out not only the funding freeze, 359 00:21:44,480 --> 00:21:49,639 Speaker 1: but the birthright Citizenship order, which every judge that's ruled 360 00:21:49,680 --> 00:21:53,879 Speaker 1: on has blocked it. So is it almost a deliberate 361 00:21:54,040 --> 00:21:56,480 Speaker 1: defying of the legal norms. 362 00:21:57,400 --> 00:22:01,640 Speaker 3: So let me separate two things. With right citizenship, what 363 00:22:01,680 --> 00:22:05,480 Speaker 3: we have seen this administration do is start off by 364 00:22:06,119 --> 00:22:09,879 Speaker 3: just ignoring what has been the longstanding understanding of the 365 00:22:09,920 --> 00:22:15,680 Speaker 3: fourteenth Amendment and acting as though birthright citizenship is not guaranteed. 366 00:22:16,040 --> 00:22:19,280 Speaker 3: But once quote orders have come through, they are complying 367 00:22:19,400 --> 00:22:23,840 Speaker 3: with them. But in other contexts the administration has, for example, 368 00:22:24,359 --> 00:22:30,600 Speaker 3: with an order to unfreeze federal funding, the administration has 369 00:22:30,720 --> 00:22:34,520 Speaker 3: been a little less quick to comply, and in one 370 00:22:34,560 --> 00:22:37,560 Speaker 3: case is promptly a judge to issue a follow up 371 00:22:37,680 --> 00:22:41,480 Speaker 3: order saying, hey, I really expect you to unfreeze that funding. 372 00:22:41,760 --> 00:22:44,640 Speaker 3: So this is planning out in a lot of different cases. 373 00:22:44,960 --> 00:22:48,240 Speaker 3: And we haven't yet got to that point where I 374 00:22:48,280 --> 00:22:51,879 Speaker 3: would say we're at, say, a constitutional crisis, but there 375 00:22:51,920 --> 00:22:53,560 Speaker 3: are at least hints that we could have a big 376 00:22:53,600 --> 00:22:54,440 Speaker 3: issue down the road. 377 00:22:54,840 --> 00:22:57,160 Speaker 1: And you bring this out, which I thought was really interesting. 378 00:22:57,440 --> 00:23:01,240 Speaker 1: Trump's control of the Republican Party, and we've seen that 379 00:23:01,680 --> 00:23:05,400 Speaker 1: Congress is not intervening even when Trump does things that 380 00:23:05,800 --> 00:23:08,320 Speaker 1: take away some of their power. He has such tight 381 00:23:08,359 --> 00:23:12,960 Speaker 1: control over the Republican Party, so the Court can't count 382 00:23:13,080 --> 00:23:14,840 Speaker 1: on Congress to support it. 383 00:23:15,359 --> 00:23:18,879 Speaker 3: Right now, some members of Congress have suggested that the 384 00:23:18,880 --> 00:23:22,280 Speaker 3: Supreme Court should be obeyed. Josh Hawley is Senator jesshal 385 00:23:22,280 --> 00:23:25,879 Speaker 3: Ad Missouri is when it comes to mind. But we 386 00:23:26,000 --> 00:23:31,199 Speaker 3: have seen time and again how Republicans in Congress ultimately 387 00:23:31,400 --> 00:23:35,359 Speaker 3: have given in to what this president wants, and we 388 00:23:35,440 --> 00:23:38,360 Speaker 3: end up in a world where it is the Supreme 389 00:23:38,400 --> 00:23:42,240 Speaker 3: Court against both the President and Congress. You know, that's 390 00:23:42,280 --> 00:23:44,520 Speaker 3: a tough fight for the Supreme Court. You look back 391 00:23:44,560 --> 00:23:48,840 Speaker 3: in history at the big moments. Richard Nixon resigned in 392 00:23:49,320 --> 00:23:52,399 Speaker 3: big part because members of his own party went to 393 00:23:52,480 --> 00:23:55,200 Speaker 3: him and said, mister President, you can't continue. You don't 394 00:23:55,200 --> 00:23:58,720 Speaker 3: have the support. There have been people who are more 395 00:23:58,760 --> 00:24:03,879 Speaker 3: concerned about the institutional interests of the government and the 396 00:24:03,960 --> 00:24:09,520 Speaker 3: continuing functioning of our democratic system rather than loyalty to 397 00:24:09,640 --> 00:24:13,560 Speaker 3: a person or a party. And given this political climate, 398 00:24:13,840 --> 00:24:16,520 Speaker 3: it's fair to wonder, is this going to be the 399 00:24:16,560 --> 00:24:21,959 Speaker 3: Supreme Court standing by itself against both the President and 400 00:24:22,359 --> 00:24:23,840 Speaker 3: the majority of Congress. 401 00:24:24,160 --> 00:24:27,040 Speaker 1: Craig I have to say I find some irony here 402 00:24:27,320 --> 00:24:29,840 Speaker 1: in the fact that it seems like the Supreme Court 403 00:24:29,920 --> 00:24:34,639 Speaker 1: has made its own bed with that ruling in Trump 404 00:24:34,760 --> 00:24:39,320 Speaker 1: the United States last term, granting immunity to the president 405 00:24:39,440 --> 00:24:44,240 Speaker 1: for official acts. I mean that ruling was stunning, and 406 00:24:44,720 --> 00:24:48,240 Speaker 1: now they're facing a president who may or may not 407 00:24:48,400 --> 00:24:53,280 Speaker 1: listen to their orders. But administration lawyers are now quoting 408 00:24:53,320 --> 00:24:58,159 Speaker 1: that opinion to demonstrate their points about presidential authority. 409 00:24:59,080 --> 00:25:02,000 Speaker 3: Yes, there's a case that the in fact, the Trump 410 00:25:02,040 --> 00:25:05,760 Speaker 3: administration's first case at the Supreme Court in this new term, 411 00:25:05,960 --> 00:25:09,160 Speaker 3: asking the court to let him immediately fire the head 412 00:25:09,200 --> 00:25:14,359 Speaker 3: of a whistleblower agency. That brief was chock full of 413 00:25:14,680 --> 00:25:17,679 Speaker 3: citations to Trump versus the United States. The case you 414 00:25:17,720 --> 00:25:21,000 Speaker 3: talk about, the immunity case basically saying that the president 415 00:25:21,560 --> 00:25:26,560 Speaker 3: has broad authority, complete authority over the executive branch of government. 416 00:25:26,720 --> 00:25:30,800 Speaker 3: And what they're arguing in this case involving the whistleblower 417 00:25:30,880 --> 00:25:34,280 Speaker 3: agency and what they're arguing in other contexts is the 418 00:25:34,320 --> 00:25:38,480 Speaker 3: Supreme Court has said that the president is the head 419 00:25:38,480 --> 00:25:42,679 Speaker 3: of the executive branch and can fire people when he 420 00:25:42,720 --> 00:25:45,800 Speaker 3: deems it to be in the country's best interest. And 421 00:25:46,320 --> 00:25:50,480 Speaker 3: that ruling has put a fair amount of wind behind 422 00:25:50,520 --> 00:25:51,359 Speaker 3: Trump's sales and. 423 00:25:51,440 --> 00:25:54,040 Speaker 1: Making that argument maybe the Chief Justice, did you have 424 00:25:54,080 --> 00:25:57,840 Speaker 1: a few regrets tell us about his annual remarks. 425 00:25:58,280 --> 00:26:00,720 Speaker 3: So every year John Roberts put out a report on 426 00:26:00,760 --> 00:26:02,600 Speaker 3: the state of the federal judiciary at the end of 427 00:26:02,600 --> 00:26:05,280 Speaker 3: the year, comes out December thirty first, and this year 428 00:26:05,320 --> 00:26:08,960 Speaker 3: he decided to talk about judicial independence, which is a 429 00:26:09,000 --> 00:26:12,119 Speaker 3: subject that is near and dear to his heart. He 430 00:26:12,240 --> 00:26:16,080 Speaker 3: talked about the safety of judges and threats against judges, 431 00:26:16,600 --> 00:26:19,159 Speaker 3: and he talked about this issue that you and I 432 00:26:19,200 --> 00:26:23,080 Speaker 3: have been talking about, the prospect that court rulings would 433 00:26:23,280 --> 00:26:29,359 Speaker 3: be defined. He didn't explicitly mention Donald Trump. He didn't 434 00:26:29,400 --> 00:26:31,919 Speaker 3: just talk about the president, but he talked about the 435 00:26:32,000 --> 00:26:35,080 Speaker 3: situations in the fifties and sixties when a lot of 436 00:26:35,080 --> 00:26:39,160 Speaker 3: state officials were refusing to abide by Brown versus Board 437 00:26:39,160 --> 00:26:43,720 Speaker 3: of Education. And he talked about the Kennedy and the 438 00:26:43,760 --> 00:26:48,000 Speaker 3: Eisenhower administrations backing up the court and helping to enforce 439 00:26:48,040 --> 00:26:51,480 Speaker 3: those rulings. And also talked about the federal judges who, 440 00:26:52,080 --> 00:26:55,440 Speaker 3: in some cases, at risk of their safety, stood by 441 00:26:55,480 --> 00:26:59,960 Speaker 3: those rulings and enforce the law. And he said these suggestions, 442 00:27:00,640 --> 00:27:03,960 Speaker 3: called them dangerous, suggestions that federal court rules could be defied, 443 00:27:04,600 --> 00:27:06,400 Speaker 3: must be quotes soundly rejected. 444 00:27:06,840 --> 00:27:10,240 Speaker 1: So it's barely a month into the administration and they're 445 00:27:10,280 --> 00:27:13,639 Speaker 1: bringing a case before the Supreme Court. Tell us about it. 446 00:27:14,240 --> 00:27:16,520 Speaker 3: Yes, this is a guy named Hampton Dellinger who's the 447 00:27:16,560 --> 00:27:20,240 Speaker 3: head of a federal whistleblower agency that's called the US 448 00:27:20,280 --> 00:27:24,480 Speaker 3: Office of Special Counsel. Footnote it's different from Special Counsel 449 00:27:24,560 --> 00:27:27,119 Speaker 3: Jack Smith, who was the one who was prosecuting Trump 450 00:27:27,440 --> 00:27:31,560 Speaker 3: during the Biden presidency. And Donald Trump is trying to 451 00:27:31,680 --> 00:27:34,160 Speaker 3: fire him and put his own person in place there. 452 00:27:34,640 --> 00:27:37,440 Speaker 3: And the legal issue, the underlying legal issue is sort 453 00:27:37,480 --> 00:27:39,680 Speaker 3: of similar to the case the Court had a couple 454 00:27:39,720 --> 00:27:42,760 Speaker 3: of years ago when the question was whether the president 455 00:27:42,760 --> 00:27:45,439 Speaker 3: could fire the head of the Consumer Financial Protection Bureau, 456 00:27:45,520 --> 00:27:48,800 Speaker 3: and the Supreme Court say yes, notwithstanding the job protections 457 00:27:48,880 --> 00:27:52,480 Speaker 3: Congress gave that person, and the Special Council also has 458 00:27:52,560 --> 00:27:55,040 Speaker 3: job protection in the law. And the White House says, 459 00:27:55,200 --> 00:27:58,199 Speaker 3: we want to fire him anyway. So the question for 460 00:27:58,240 --> 00:28:01,440 Speaker 3: the Court with at the court right now is a 461 00:28:01,480 --> 00:28:05,360 Speaker 3: federal judge has issued a temporary restraining order for fourteen 462 00:28:05,480 --> 00:28:09,360 Speaker 3: days saying he can't be fired. While I give this 463 00:28:09,440 --> 00:28:14,360 Speaker 3: case a little deeper consideration, and the normally a temporary 464 00:28:14,400 --> 00:28:17,960 Speaker 3: restraining order like that can't be appealed. But the Trump 465 00:28:18,000 --> 00:28:20,920 Speaker 3: administration first asked the Federal appeals Court and now is 466 00:28:20,960 --> 00:28:25,800 Speaker 3: asking the Supreme Court to consider that appeal anyway and 467 00:28:25,880 --> 00:28:30,199 Speaker 3: to set aside the temporary restraining order so that Hampton 468 00:28:30,280 --> 00:28:34,800 Speaker 3: Dellinger can be fired right away. Basically, they're saying, you know, yeah, 469 00:28:34,920 --> 00:28:37,879 Speaker 3: we know this normal rule that you can't appeal a RO, 470 00:28:38,400 --> 00:28:42,320 Speaker 3: but when we're talking about an infringement on core presidential powers, 471 00:28:42,640 --> 00:28:44,960 Speaker 3: that should be an exception to that general rule about 472 00:28:45,000 --> 00:28:46,240 Speaker 3: not appealing to ros. 473 00:28:47,160 --> 00:28:47,280 Speaker 4: So. 474 00:28:47,480 --> 00:28:49,920 Speaker 3: I think Trump is really testing how accommodating the Court's 475 00:28:49,960 --> 00:28:52,760 Speaker 3: going to be to his efforts to remake the federal 476 00:28:52,800 --> 00:28:56,760 Speaker 3: government house people who don't share his views. It will 477 00:28:56,800 --> 00:29:00,240 Speaker 3: be the minimum. A very interesting and potentially a telling 478 00:29:00,600 --> 00:29:04,120 Speaker 3: signal about just how accommodating this Supreme Court is going 479 00:29:04,160 --> 00:29:06,000 Speaker 3: to be in the new Trump administration. 480 00:29:06,560 --> 00:29:08,200 Speaker 1: And we'll talk to you about it as soon as 481 00:29:08,240 --> 00:29:12,240 Speaker 1: that's decided. Thanks so much, Greg. That's Bloomberg News Supreme 482 00:29:12,280 --> 00:29:15,719 Speaker 1: Court reporter Greg Store turning out of other legal news 483 00:29:16,200 --> 00:29:19,040 Speaker 1: after the Supreme Court weekend, a key piece of the 484 00:29:19,120 --> 00:29:23,400 Speaker 1: Voting Rights Act. Voting discrimination cases are not just harder 485 00:29:23,400 --> 00:29:27,400 Speaker 1: to bring to court, but dramatically so. That's according to 486 00:29:27,440 --> 00:29:31,600 Speaker 1: a Bloomberg Law analysis, and experts who examine the findings. 487 00:29:32,240 --> 00:29:35,600 Speaker 1: Joining me to talk about their analysis is Alex Ebert, 488 00:29:35,800 --> 00:29:42,840 Speaker 1: Bloomberg Law Senior Correspondent and Diana Dombrowski, Bloomberg Law Investigative reporter. So, Alex, 489 00:29:42,840 --> 00:29:45,640 Speaker 1: why don't you start by explaining the ruling in the 490 00:29:45,680 --> 00:29:46,720 Speaker 1: Bernovich case? 491 00:29:47,800 --> 00:29:52,160 Speaker 4: Sure, Jean, So, both progressive and conservative litigators say this 492 00:29:52,320 --> 00:29:54,760 Speaker 4: was a real sea change because what it did was 493 00:29:54,800 --> 00:29:59,640 Speaker 4: it created a new test for how courts will interpret challenges, 494 00:30:00,080 --> 00:30:03,640 Speaker 4: especially to state voting laws, and these are the laws 495 00:30:03,640 --> 00:30:07,240 Speaker 4: that handle the time, place, and manner for when people 496 00:30:07,280 --> 00:30:10,080 Speaker 4: can cast their votes. What it does is it creates 497 00:30:10,160 --> 00:30:13,440 Speaker 4: new standards that really raise the bar for these kind 498 00:30:13,480 --> 00:30:16,760 Speaker 4: of suits. These kind of suits have to have bigger 499 00:30:16,800 --> 00:30:21,760 Speaker 4: sort of disparities between minority voting groups and white voting groups. 500 00:30:22,200 --> 00:30:26,680 Speaker 4: They have to be different but still similar to what 501 00:30:26,760 --> 00:30:31,000 Speaker 4: you see in the nineteen eighties when the law was updated, 502 00:30:31,560 --> 00:30:35,680 Speaker 4: and they really make it a lot harder for groups 503 00:30:35,720 --> 00:30:39,240 Speaker 4: to bring challenges against things that are now common practice 504 00:30:39,240 --> 00:30:44,320 Speaker 4: throughout the United States. That includes things like dropboxes, early voting, 505 00:30:44,920 --> 00:30:47,760 Speaker 4: having someone help you carry in your ballot if you 506 00:30:47,800 --> 00:30:50,600 Speaker 4: have a disability. Things that we are now used to 507 00:30:50,640 --> 00:30:53,720 Speaker 4: seeing across the United States to help people vote, those 508 00:30:53,760 --> 00:30:57,640 Speaker 4: things are now much harder to challenge underneath this Burndage standard. 509 00:30:58,040 --> 00:31:01,600 Speaker 1: So, Diana, this was a long term project from the 510 00:31:01,640 --> 00:31:04,600 Speaker 1: investigations team. Tell us what your research found. 511 00:31:05,080 --> 00:31:09,040 Speaker 5: Sure, So we were trying to measure the impact of 512 00:31:09,200 --> 00:31:13,120 Speaker 5: this particular decision on Section two of the Voting Rights Act. 513 00:31:13,400 --> 00:31:16,840 Speaker 5: So our biggest finding we looked at five hundred and 514 00:31:16,880 --> 00:31:22,240 Speaker 5: seventy nine federal voting rights complaints, and our biggest finding 515 00:31:22,560 --> 00:31:25,680 Speaker 5: was that there was a sixty percent drop off in 516 00:31:25,760 --> 00:31:28,920 Speaker 5: cases relying on Section two of the Voting Rights Act 517 00:31:29,280 --> 00:31:32,760 Speaker 5: after the Bernovich decision. In terms of what the cases 518 00:31:32,760 --> 00:31:37,240 Speaker 5: were actually about, we saw cases related to immigrations, the 519 00:31:37,280 --> 00:31:40,480 Speaker 5: cases that mentioned the phrases like illegal immigrants or non 520 00:31:40,520 --> 00:31:44,920 Speaker 5: English voting materials or proof of citizenship. Those increased by 521 00:31:44,920 --> 00:31:47,920 Speaker 5: almost one hundred and ten percent. We also saw a 522 00:31:47,920 --> 00:31:51,880 Speaker 5: big increase in suburging of voter rolls cases about that 523 00:31:52,040 --> 00:31:56,240 Speaker 5: over one hundred percent. Voter registration laws cases challenging those 524 00:31:56,400 --> 00:32:01,680 Speaker 5: those increased by almost seventy percent. We also saw complaints 525 00:32:01,760 --> 00:32:04,720 Speaker 5: related to voting not on election base, so these would 526 00:32:04,720 --> 00:32:08,680 Speaker 5: be about like mail in ballots, early in person voting, 527 00:32:08,760 --> 00:32:13,360 Speaker 5: and ballot dropox voting. Those all decreased by almost twenty 528 00:32:13,400 --> 00:32:18,640 Speaker 5: two percent, and cases related to disability related voting concerns 529 00:32:18,680 --> 00:32:22,480 Speaker 5: decreased by twenty six percent. I think the drop off itself, like, 530 00:32:22,520 --> 00:32:26,160 Speaker 5: that's our biggest finding. And the attorneys we talked to 531 00:32:26,280 --> 00:32:29,480 Speaker 5: were surprised by how big the drop off was. This 532 00:32:29,520 --> 00:32:33,000 Speaker 5: is sixty percent drop off, and you know, it was 533 00:32:33,120 --> 00:32:35,800 Speaker 5: the whole point of the decision. You know, it was 534 00:32:35,840 --> 00:32:38,760 Speaker 5: supposed to be harder to bring Section two cases, but 535 00:32:39,080 --> 00:32:41,840 Speaker 5: I mean the number itself was surprising to many of 536 00:32:41,840 --> 00:32:43,560 Speaker 5: the sources that we spoke with. 537 00:32:44,080 --> 00:32:48,040 Speaker 1: Alex, is it that these cases aren't being brought or 538 00:32:48,040 --> 00:32:51,720 Speaker 1: is it that they're being brought in different ways not 539 00:32:51,880 --> 00:32:52,840 Speaker 1: under Section two? 540 00:32:53,640 --> 00:32:56,480 Speaker 4: Both of those things are true. Jan So we have 541 00:32:56,720 --> 00:33:00,680 Speaker 4: two major trends that experts have told us are really 542 00:33:00,680 --> 00:33:04,840 Speaker 4: exhibited in this data. One is that litigators are searching 543 00:33:05,000 --> 00:33:07,400 Speaker 4: for some way to bring these kinds of lawsuits they 544 00:33:07,400 --> 00:33:11,240 Speaker 4: brought in the past. Oftentimes these cases just aren't getting brought. 545 00:33:11,520 --> 00:33:15,120 Speaker 4: But they're also having to rely much more on the 546 00:33:15,200 --> 00:33:19,600 Speaker 4: politically turbulent state courts, where as you know we've talked 547 00:33:19,600 --> 00:33:22,960 Speaker 4: about in the past, elections can really determine how these 548 00:33:23,000 --> 00:33:26,440 Speaker 4: courts approach voting rights, and so now all of a 549 00:33:26,440 --> 00:33:29,640 Speaker 4: sudden you see groups having to rely on novel theories 550 00:33:29,720 --> 00:33:33,920 Speaker 4: under state constitutions or newly passed voting laws in liberal 551 00:33:33,920 --> 00:33:39,640 Speaker 4: states in efforts to bolster the rights of minority voters, and. 552 00:33:39,600 --> 00:33:43,280 Speaker 1: Where what areas are voters' rights being impinged upon? 553 00:33:43,440 --> 00:33:49,080 Speaker 4: Most so, the instances we're seeing are where litigation groups 554 00:33:49,120 --> 00:33:52,240 Speaker 4: aren't really able to grab some purchase in the state courts. 555 00:33:52,880 --> 00:33:55,440 Speaker 4: You know, we're being told that, especially in the South, 556 00:33:55,920 --> 00:33:59,760 Speaker 4: where we no longer have this federal court access to 557 00:33:59,760 --> 00:34:03,120 Speaker 4: bring in these Section two claims, litigants aren't really having 558 00:34:03,160 --> 00:34:08,080 Speaker 4: success in Republican controlled states where the state constitutions might 559 00:34:08,120 --> 00:34:13,520 Speaker 4: have strong rights to vote. While most states have these 560 00:34:13,719 --> 00:34:17,000 Speaker 4: really strong rights to vote inside of their state constitutions, 561 00:34:17,280 --> 00:34:20,920 Speaker 4: those things are up to interpretation, and so courts, especially 562 00:34:20,960 --> 00:34:23,759 Speaker 4: in the South, Republican holed states that really can help 563 00:34:23,760 --> 00:34:26,680 Speaker 4: determine the control of Congress, they're seeing not as much 564 00:34:26,719 --> 00:34:29,960 Speaker 4: success there as they might see in state courts like 565 00:34:30,400 --> 00:34:35,520 Speaker 4: New York or California, where states have literally passed a 566 00:34:35,680 --> 00:34:40,400 Speaker 4: Voting Rights Act law after Bernovich in order to bolster 567 00:34:40,440 --> 00:34:42,200 Speaker 4: the rights of litigants Diana. 568 00:34:42,239 --> 00:34:47,200 Speaker 1: There are some people who think that this ruling refocused 569 00:34:47,920 --> 00:34:50,520 Speaker 1: and sort of reined in Section two as it needed 570 00:34:50,560 --> 00:34:51,480 Speaker 1: to be reined in. 571 00:34:52,880 --> 00:34:53,320 Speaker 3: Correct. 572 00:34:54,320 --> 00:34:56,640 Speaker 5: There's sort of two sides to this. One is that 573 00:34:56,680 --> 00:35:01,080 Speaker 5: this is like a huge this took away from one 574 00:35:01,080 --> 00:35:04,520 Speaker 5: of the most important civil rights laws. And then the 575 00:35:04,560 --> 00:35:07,640 Speaker 5: other side of this is saying, this is going back 576 00:35:07,680 --> 00:35:11,200 Speaker 5: to what Section two was initially intended for. It was 577 00:35:11,239 --> 00:35:15,400 Speaker 5: too sweeping, it was too broad, and this is actually 578 00:35:15,440 --> 00:35:17,120 Speaker 5: what it was originally intended for. 579 00:35:17,640 --> 00:35:21,040 Speaker 1: I thought it was interesting, Alex that lawyers are hesitant 580 00:35:21,080 --> 00:35:24,680 Speaker 1: to file cases because they were afraid data bad ruling 581 00:35:24,880 --> 00:35:27,200 Speaker 1: on the books, and they were even afraid to appeal 582 00:35:27,239 --> 00:35:28,560 Speaker 1: for that reason they are. 583 00:35:28,640 --> 00:35:32,239 Speaker 4: Indeed, we've covered litigation in recent years where there will 584 00:35:32,280 --> 00:35:35,640 Speaker 4: be a massive loss for voting rights groups. A good 585 00:35:35,680 --> 00:35:38,799 Speaker 4: example is there's an entire circuit in this country where 586 00:35:38,920 --> 00:35:42,680 Speaker 4: you can't bring a Section two case in many instances, 587 00:35:43,000 --> 00:35:44,759 Speaker 4: but they didn't want to appeal that to the US 588 00:35:44,760 --> 00:35:47,200 Speaker 4: Supreme Court because they were afraid of getting a ruling 589 00:35:47,280 --> 00:35:50,239 Speaker 4: against them and making that apply across the United States. 590 00:35:50,560 --> 00:35:54,920 Speaker 4: That's just a microchasm, a microcosm of this broader issue 591 00:35:54,960 --> 00:35:58,080 Speaker 4: we have, which is really a fight at its core 592 00:35:58,239 --> 00:36:02,880 Speaker 4: between the concepts of equality to the ballot right and 593 00:36:02,960 --> 00:36:07,040 Speaker 4: equality outcome at the ballot. And liberal groups are saying 594 00:36:07,280 --> 00:36:10,120 Speaker 4: we need to be able to use modern statistics and 595 00:36:10,200 --> 00:36:14,000 Speaker 4: the courts to fight for you know, equal access for 596 00:36:14,520 --> 00:36:17,480 Speaker 4: mail in voting or early voting, and others are saying 597 00:36:17,640 --> 00:36:21,880 Speaker 4: we need to allow states to manage elections and not 598 00:36:22,040 --> 00:36:24,440 Speaker 4: have to bog down things when they innovate and make 599 00:36:24,480 --> 00:36:24,960 Speaker 4: things better. 600 00:36:25,200 --> 00:36:28,680 Speaker 1: Professor Justin Levitt of Loyal Law School said it's like 601 00:36:28,680 --> 00:36:30,839 Speaker 1: a hammer and a screwdrivers. Yeah. 602 00:36:31,120 --> 00:36:34,160 Speaker 5: Basically, he was saying that Section two was the best 603 00:36:34,160 --> 00:36:36,600 Speaker 5: tool for the job, like this was the most direct 604 00:36:36,719 --> 00:36:40,839 Speaker 5: path to argue these cases, and without it, you can 605 00:36:41,000 --> 00:36:45,480 Speaker 5: try to rely on other laws, but they're just not 606 00:36:45,680 --> 00:36:48,239 Speaker 5: as good. You know. We found like the National Voter 607 00:36:48,320 --> 00:36:51,520 Speaker 5: Registration Act and the Help America Vote Act both increase 608 00:36:52,200 --> 00:36:55,680 Speaker 5: and maybe some of that captured that attorneys are relying 609 00:36:55,680 --> 00:36:59,120 Speaker 5: on those laws, but they also weren't designed specifically for this, 610 00:36:59,239 --> 00:37:02,120 Speaker 5: so they'll also be used for other things you could 611 00:37:02,239 --> 00:37:07,160 Speaker 5: use like the fourteenth and fifteenth Amendment. Bernovich didn't impact those, 612 00:37:07,280 --> 00:37:10,400 Speaker 5: but again, they're like not the most direct way to 613 00:37:10,520 --> 00:37:14,200 Speaker 5: address it. And we even saw a decrease in the 614 00:37:14,200 --> 00:37:18,480 Speaker 5: fourteenth Amendment after Burnabitt. The fifteenth Amendment increased about thirty 615 00:37:18,600 --> 00:37:19,240 Speaker 5: six percent. 616 00:37:20,120 --> 00:37:24,160 Speaker 4: Many sources are worried about creating a patchwork across the 617 00:37:24,320 --> 00:37:30,719 Speaker 4: United States, which really causes a strange battlefield for these rules. 618 00:37:31,000 --> 00:37:34,600 Speaker 4: You'll have states like Wisconsin or North Carolina where a 619 00:37:34,680 --> 00:37:37,960 Speaker 4: flip of the state Supreme Court, which happens fairly frequently, 620 00:37:38,520 --> 00:37:43,200 Speaker 4: could change really important voting laws. You have other states 621 00:37:43,239 --> 00:37:45,680 Speaker 4: where there's just not as much access to the poles 622 00:37:46,360 --> 00:37:49,800 Speaker 4: usum states where you have immense amounts of early voting, 623 00:37:49,840 --> 00:37:52,560 Speaker 4: but you might not have other things, and without sort 624 00:37:52,560 --> 00:37:56,480 Speaker 4: of the federal clearinghouse for what does and doesn't violate 625 00:37:56,520 --> 00:37:59,839 Speaker 4: the rights of minority groups. They're concerned among people that 626 00:38:00,080 --> 00:38:03,600 Speaker 4: we're missing out on the ability of federal courts to 627 00:38:03,680 --> 00:38:08,600 Speaker 4: stabilize elections in certain ways. And this also increases the 628 00:38:08,640 --> 00:38:12,160 Speaker 4: attacks that we might see on those state judges that 629 00:38:12,280 --> 00:38:16,040 Speaker 4: now have that responsibility placed on their shoulder, and they 630 00:38:16,120 --> 00:38:19,920 Speaker 4: might be seeing additional threats, which is something that sources 631 00:38:19,960 --> 00:38:23,560 Speaker 4: have said they're noticing in time post Burnovich, what. 632 00:38:23,680 --> 00:38:26,839 Speaker 1: Is left of the Voting Rights Act Diana after this 633 00:38:26,920 --> 00:38:28,880 Speaker 1: decision and after Shelby County. 634 00:38:29,160 --> 00:38:33,800 Speaker 5: So I mean it still applies to redistricting cases. Burnevich 635 00:38:33,880 --> 00:38:38,240 Speaker 5: did not affect how it's used to argue redistricting cases, 636 00:38:38,239 --> 00:38:41,000 Speaker 5: So we actually took those out of our analysis. Everything 637 00:38:41,040 --> 00:38:44,200 Speaker 5: we're talking about is non redistricting cases, so it's still 638 00:38:44,200 --> 00:38:45,719 Speaker 5: going to be used in that context. 639 00:38:46,120 --> 00:38:48,879 Speaker 4: Yeah, I think that the conservatives that we reached out 640 00:38:48,920 --> 00:38:52,080 Speaker 4: to for their insights correctly point out that if the 641 00:38:52,120 --> 00:38:56,040 Speaker 4: disparity between the racial minority voting group and the white 642 00:38:56,080 --> 00:39:00,720 Speaker 4: voting group for a certain rule, let's say, state eliminate 643 00:39:00,840 --> 00:39:04,120 Speaker 4: souls to the polls, an early voting dance Sunday, or 644 00:39:04,480 --> 00:39:07,839 Speaker 4: black congregations might encourage folks to go vote. That might 645 00:39:07,880 --> 00:39:10,920 Speaker 4: be an instance where because there's such a disparity, you 646 00:39:10,960 --> 00:39:15,160 Speaker 4: could still bring a Section two case, But it's going 647 00:39:15,239 --> 00:39:18,279 Speaker 4: to have to be really really strong to bring one 648 00:39:18,320 --> 00:39:21,880 Speaker 4: of these time, place and manner cases, and getting that 649 00:39:22,040 --> 00:39:25,960 Speaker 4: sort of information is expensive and time consuming for these 650 00:39:26,000 --> 00:39:29,320 Speaker 4: litigation groups. So you're seeing a plummet in these federal cases. 651 00:39:29,320 --> 00:39:31,960 Speaker 1: Thank you both for being on this show. That's Alex 652 00:39:32,000 --> 00:39:36,919 Speaker 1: Ebert Bloomberg Law Senior Correspondent, and Diana Dombrowski, Bloomberg Law 653 00:39:37,000 --> 00:39:39,600 Speaker 1: Investigative Reporter. And that's it for this edition of The 654 00:39:39,640 --> 00:39:42,600 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 655 00:39:42,640 --> 00:39:45,759 Speaker 1: legal news on our Bloomberg Law Podcast. You can find 656 00:39:45,760 --> 00:39:50,360 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg 657 00:39:50,400 --> 00:39:54,200 Speaker 1: dot com slash podcast Slash Law, And remember to tune 658 00:39:54,200 --> 00:39:57,480 Speaker 1: into The Bloomberg Law Show every weeknight at ten pm 659 00:39:57,520 --> 00:40:01,080 Speaker 1: Wall Street Time. I'm June Grosso and you're listening to 660 00:40:01,120 --> 00:40:06,600 Speaker 1: Bloomberg mhm