1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,800 --> 00:00:14,480 Speaker 2: Attorney General Pam Bondi has repeatedly criticized federal judges who've 3 00:00:14,520 --> 00:00:19,400 Speaker 2: held back President Trump's agenda, calling them liberal activists and 4 00:00:19,480 --> 00:00:20,439 Speaker 2: out of control. 5 00:00:20,960 --> 00:00:24,560 Speaker 3: Judges have used these injunctions to block virtually all of 6 00:00:24,640 --> 00:00:29,640 Speaker 3: President Trump's policies. To put this in perspective, there are 7 00:00:29,800 --> 00:00:36,839 Speaker 3: ninety four federal judicial districts. Five of those districts throughout 8 00:00:36,880 --> 00:00:42,200 Speaker 3: this country held thirty five of the nationwide injunctions. Think 9 00:00:42,240 --> 00:00:46,000 Speaker 3: about that, ninety four districts and thirty five out of 10 00:00:46,040 --> 00:00:50,879 Speaker 3: the forty opinions with nationwide injunctions came from five liberal 11 00:00:51,080 --> 00:00:52,839 Speaker 3: districts in this country. 12 00:00:53,360 --> 00:00:57,280 Speaker 2: And one of those so called liberal districts where nationwide 13 00:00:57,280 --> 00:01:01,600 Speaker 2: injunctions have been issued is the District of Maryland, and 14 00:01:01,640 --> 00:01:05,319 Speaker 2: the Justice Department has picked that district to file an 15 00:01:05,480 --> 00:01:10,880 Speaker 2: unprecedented lawsuit against all the sitting federal judges in the district. 16 00:01:11,480 --> 00:01:14,880 Speaker 2: It's over a standing order that blocks for two days 17 00:01:14,920 --> 00:01:20,880 Speaker 2: the deportation of detained immigrants who file habeas petitions. Of course, 18 00:01:21,000 --> 00:01:24,959 Speaker 2: Maryland is also the district that drew national attention in 19 00:01:25,000 --> 00:01:29,640 Speaker 2: the case of Kilmar Abrego Garcia, who was wrongfully deported 20 00:01:29,680 --> 00:01:34,080 Speaker 2: to El Salvador joining me is constitutional law expert Harold Krant, 21 00:01:34,200 --> 00:01:37,759 Speaker 2: a professor at the Chicago Kent College of Law. How 22 00:01:38,080 --> 00:01:42,640 Speaker 2: this lawsuit is unprecedented? How much is this ratcheting up 23 00:01:42,680 --> 00:01:46,400 Speaker 2: of the Trump administration's power struggle with the judiciary. 24 00:01:46,760 --> 00:01:49,320 Speaker 4: The Department of Justice had options here. They could have 25 00:01:49,560 --> 00:01:52,240 Speaker 4: easily chosen one of the twelve cases in which the 26 00:01:52,320 --> 00:01:56,320 Speaker 4: automatic stay had been opposed to file an appeal, and 27 00:01:56,400 --> 00:01:59,200 Speaker 4: they would have been able to obtain an orly fashion 28 00:01:59,520 --> 00:02:02,640 Speaker 4: of pelic review of the propriety of the District of 29 00:02:02,640 --> 00:02:06,680 Speaker 4: Maryland standing order which imposed the automatic stay in an 30 00:02:06,720 --> 00:02:10,440 Speaker 4: immigration habeasts context. They chose not to do that. They 31 00:02:10,600 --> 00:02:15,239 Speaker 4: ratcheted up the tension by filing an parallel lawsuit against 32 00:02:15,560 --> 00:02:20,120 Speaker 4: all members of the District of Maryland individually as judges, 33 00:02:20,600 --> 00:02:24,799 Speaker 4: and that sets the framework for a very important separation 34 00:02:24,840 --> 00:02:30,360 Speaker 4: of powish challenge, namely, whether the executive branch can sue 35 00:02:30,880 --> 00:02:35,120 Speaker 4: judges get information about them depositions because they don't like 36 00:02:35,200 --> 00:02:38,760 Speaker 4: a standing order. So the procedural posture itself is what 37 00:02:38,840 --> 00:02:41,400 Speaker 4: is the most troubling aspect of the case, not the 38 00:02:41,440 --> 00:02:42,960 Speaker 4: only one that's certainly the most troubling. 39 00:02:43,760 --> 00:02:47,640 Speaker 2: The government says that two day pause in deportations in 40 00:02:47,800 --> 00:02:54,680 Speaker 2: cases where detained immigrants are challenging their detainment by habeas corpus. 41 00:02:55,160 --> 00:02:58,480 Speaker 2: They say that that inhibits the president's ability to enforce 42 00:02:58,560 --> 00:03:02,240 Speaker 2: federal immigration laws and that the Chief Judge has no 43 00:03:02,320 --> 00:03:04,640 Speaker 2: authority to issue such a blanket order. 44 00:03:05,520 --> 00:03:08,880 Speaker 4: Yeah. So many courts of appeals, and in the case 45 00:03:08,880 --> 00:03:11,960 Speaker 4: I think they cited five courts of appeals have automatic 46 00:03:12,000 --> 00:03:15,160 Speaker 4: stays in certain contexts in order to preserve the jurisdiction 47 00:03:15,240 --> 00:03:18,160 Speaker 4: of the court. And so the District of Maryland is 48 00:03:18,440 --> 00:03:22,400 Speaker 4: the site which famously gave rise to the Kilmer Abrago 49 00:03:22,440 --> 00:03:27,040 Speaker 4: Garcia case, where the government shipped Garcia out of the 50 00:03:27,080 --> 00:03:32,480 Speaker 4: country surreptitiously while a challenge was going on. And so 51 00:03:32,680 --> 00:03:35,760 Speaker 4: because they had been burned and the Department Justice had 52 00:03:36,280 --> 00:03:39,720 Speaker 4: interfered with the jurisdiction of the court previously, that's what 53 00:03:39,920 --> 00:03:44,160 Speaker 4: led to this standing order being promulgated. So, I mean, 54 00:03:44,280 --> 00:03:46,960 Speaker 4: the Department Justice is right in the sense that an 55 00:03:47,000 --> 00:03:52,680 Speaker 4: automatic stay does interfere with cases in which the individual 56 00:03:52,760 --> 00:03:55,480 Speaker 4: has no claim whatsoever not to be deported. But you know, 57 00:03:55,560 --> 00:03:58,480 Speaker 4: the delay is only for two days, and given what's 58 00:03:58,520 --> 00:04:01,800 Speaker 4: happened before in terms of the due process violation that 59 00:04:01,840 --> 00:04:05,800 Speaker 4: the government has committed by transporting Garcia and others away 60 00:04:05,840 --> 00:04:09,360 Speaker 4: without any kind of chance for hearing, the court followed 61 00:04:09,360 --> 00:04:11,960 Speaker 4: the lead of other court's appeals, which said, look, just 62 00:04:12,280 --> 00:04:14,960 Speaker 4: give us two days to see if there's any substance here, 63 00:04:15,160 --> 00:04:17,840 Speaker 4: and if there's no substance, we'll say go ahead, ship 64 00:04:17,920 --> 00:04:20,880 Speaker 4: the person out. So the Department Justice has taking a 65 00:04:21,080 --> 00:04:26,159 Speaker 4: very unusual stance in this context to again increase the 66 00:04:26,200 --> 00:04:30,159 Speaker 4: pressure on judges by suing them, which is unparalleled. And 67 00:04:30,400 --> 00:04:33,119 Speaker 4: the hearing that we had just a couple of days ago, 68 00:04:33,560 --> 00:04:38,480 Speaker 4: the Trump appointee seems very dubious as to the validity 69 00:04:38,960 --> 00:04:41,599 Speaker 4: of the Department of Justices challenge. 70 00:04:41,880 --> 00:04:46,760 Speaker 2: So Judge Colin, who by the way, normally sits in Roanoke, Virginia, 71 00:04:46,839 --> 00:04:50,880 Speaker 2: but the Fourth Circuit assigned him to hear this case 72 00:04:50,960 --> 00:04:55,320 Speaker 2: because all the Maryland judges were conflicted out and he 73 00:04:55,480 --> 00:04:58,480 Speaker 2: is a Trump appointee. And he said, one of the 74 00:04:58,480 --> 00:05:00,839 Speaker 2: things about me is I don't have a very good 75 00:05:00,880 --> 00:05:03,760 Speaker 2: poker face. He said to the government lawyer, and I 76 00:05:03,800 --> 00:05:06,040 Speaker 2: think you've probably picked up on the fact that I 77 00:05:06,120 --> 00:05:09,520 Speaker 2: have some skepticism. He had a lot of skepticism if 78 00:05:09,560 --> 00:05:12,599 Speaker 2: you look at what happened at the hearing. Also, he 79 00:05:12,760 --> 00:05:17,280 Speaker 2: questioned whether this could lead to other executive branch litigation 80 00:05:17,560 --> 00:05:21,520 Speaker 2: against federal benches all the way up to the Supreme Court. Yeah. 81 00:05:21,560 --> 00:05:26,000 Speaker 4: I mean, we don't want the specter of DJ suing 82 00:05:26,080 --> 00:05:29,919 Speaker 4: judges and having other judges than sitting to judge the 83 00:05:30,040 --> 00:05:36,520 Speaker 4: lawsuit against judges, and that comes with subpoenas, depositions, discovery. 84 00:05:36,880 --> 00:05:41,320 Speaker 4: Not only said unseemly, it would certainly chill independent judging. 85 00:05:41,440 --> 00:05:45,400 Speaker 4: So the very fact of rumging around in a judge's 86 00:05:45,640 --> 00:05:48,400 Speaker 4: files to determine what lay behind in this case the 87 00:05:48,440 --> 00:05:52,760 Speaker 4: standing order, kind of correspondence there was, would inhibit judicial 88 00:05:52,800 --> 00:05:56,440 Speaker 4: freedom and really compromise the independence of the judiciary as 89 00:05:56,440 --> 00:05:58,480 Speaker 4: we know it. So I think the judge Calme was 90 00:05:58,920 --> 00:06:02,159 Speaker 4: was right on saying that even if there were some 91 00:06:02,279 --> 00:06:05,799 Speaker 4: kind of issue on the merits here and there's something 92 00:06:05,800 --> 00:06:08,480 Speaker 4: of a case that the Department Justice has, this is 93 00:06:08,520 --> 00:06:11,640 Speaker 4: not the way to challenge it. Take it normally and 94 00:06:11,960 --> 00:06:14,520 Speaker 4: challenge it up to the four Circuit, and if you 95 00:06:14,600 --> 00:06:19,520 Speaker 4: need to the Supreme Court, don't sue the judges themselves. 96 00:06:20,480 --> 00:06:26,080 Speaker 2: Representing the judges was Paul Clement, a top conservative litigator 97 00:06:26,080 --> 00:06:28,560 Speaker 2: and a former Solicitor General in the George W. Bush 98 00:06:28,600 --> 00:06:33,360 Speaker 2: administration who's been appearing in many cases challenging the Trump administration. 99 00:06:33,880 --> 00:06:37,200 Speaker 2: He warned about a nightmare scenario in which judges could 100 00:06:37,200 --> 00:06:41,039 Speaker 2: be deposed, other internal judiciary documents could be reviewed by 101 00:06:41,080 --> 00:06:45,919 Speaker 2: the government executive branch lawyers, cross examining judges and lawyers 102 00:06:45,920 --> 00:06:49,560 Speaker 2: for the judges, grilling White House officials in open court. 103 00:06:49,839 --> 00:06:53,359 Speaker 4: And again, this is not how these dispeech should be resolved. 104 00:06:53,480 --> 00:06:57,200 Speaker 4: I think the Department Justice needlessly fanned the flames of 105 00:06:57,800 --> 00:07:01,279 Speaker 4: conflict here. I think they'll be repudiator by the courts. 106 00:07:01,839 --> 00:07:05,400 Speaker 4: This was a needless exercise, was a thoughtless exercise, and 107 00:07:05,480 --> 00:07:07,760 Speaker 4: I think it will be resolved in the court system. 108 00:07:07,760 --> 00:07:10,800 Speaker 4: And the question all these on these cases is will 109 00:07:11,400 --> 00:07:14,920 Speaker 4: the government comply? Will they not deport people for at 110 00:07:14,960 --> 00:07:18,200 Speaker 4: least that two day period to give judges a sneak 111 00:07:18,240 --> 00:07:20,880 Speaker 4: peek at the merits to say well, we need to 112 00:07:20,880 --> 00:07:23,960 Speaker 4: have a hearing here, or to say no, go ahead 113 00:07:24,280 --> 00:07:27,239 Speaker 4: and deport the individual. We'll have to see where they comply. 114 00:07:27,800 --> 00:07:31,840 Speaker 2: And the Justice Department's lawyer refused to commit to not 115 00:07:32,000 --> 00:07:37,280 Speaker 2: filing similar lawsuits against federal courts in the future, and they. 116 00:07:37,160 --> 00:07:39,920 Speaker 4: Will be repeated at predicted. I think that's the only 117 00:07:39,960 --> 00:07:43,040 Speaker 4: way I think judges can react to this provocation. But 118 00:07:43,120 --> 00:07:47,000 Speaker 4: if they do file again, we are entering into a 119 00:07:47,120 --> 00:07:51,000 Speaker 4: very tumultuous period of even more intense conflict between the 120 00:07:51,000 --> 00:07:54,240 Speaker 4: Trump Justice Department and the judges. You know, at the 121 00:07:54,320 --> 00:07:56,640 Speaker 4: end of the day, that's even going to frighten the 122 00:07:56,680 --> 00:08:01,440 Speaker 4: Supreme Court, which is obviously ruled strongly in President Trump's 123 00:08:01,440 --> 00:08:04,000 Speaker 4: favor in most cases. They're not going to like this either. 124 00:08:04,480 --> 00:08:07,480 Speaker 4: And I think that the Department Justice is very shortsighted 125 00:08:08,000 --> 00:08:11,040 Speaker 4: in following these kind of lawsuits, because at the end 126 00:08:11,040 --> 00:08:14,160 Speaker 4: of the day, I think the Supreme Court is the 127 00:08:14,200 --> 00:08:18,200 Speaker 4: one that can try to trim the president's sales, and 128 00:08:18,680 --> 00:08:21,760 Speaker 4: largely that are his side, but this may push a 129 00:08:21,760 --> 00:08:23,080 Speaker 4: couple to the other side. 130 00:08:23,280 --> 00:08:27,480 Speaker 2: The Clement mentioned a few different grounds for dismissing the suit, 131 00:08:28,040 --> 00:08:30,560 Speaker 2: that the government failed to state a claim through which 132 00:08:30,600 --> 00:08:33,920 Speaker 2: they could seek to block the standing order, or that 133 00:08:33,960 --> 00:08:37,560 Speaker 2: the court could dismiss the case on judicial immunity grounds. 134 00:08:37,960 --> 00:08:38,440 Speaker 1: Yeah, I mean, it. 135 00:08:38,440 --> 00:08:41,840 Speaker 4: Seems to me that this is just an improvident jurisdictional channel, 136 00:08:42,080 --> 00:08:46,080 Speaker 4: that the dj should be able to sue the standing order, 137 00:08:46,320 --> 00:08:51,200 Speaker 4: but not by directly challenging judges themselves. And so the 138 00:08:51,240 --> 00:08:53,360 Speaker 4: court could, you know, I don't know if you want 139 00:08:53,400 --> 00:08:55,840 Speaker 4: to call a judicial immunity to say that the judges 140 00:08:55,880 --> 00:08:58,720 Speaker 4: could never be sued, because I think they probably can 141 00:08:58,760 --> 00:09:02,120 Speaker 4: be in some context. So without going down that route, 142 00:09:02,160 --> 00:09:04,880 Speaker 4: I think the more delimited route would just be saying 143 00:09:05,240 --> 00:09:08,960 Speaker 4: that in this particular context there was a jurisdictional they're 144 00:09:09,120 --> 00:09:13,280 Speaker 4: made by the court, and that to have jurisdiction over 145 00:09:13,360 --> 00:09:16,360 Speaker 4: the standing order, there should be an appeal in a 146 00:09:16,440 --> 00:09:19,640 Speaker 4: concrete case. I mean, maybe there's a standing order that 147 00:09:19,640 --> 00:09:22,680 Speaker 4: would give rise to a case or controversy, but there's 148 00:09:22,720 --> 00:09:27,320 Speaker 4: no sort of immediate chill to the standing order. And 149 00:09:27,679 --> 00:09:31,480 Speaker 4: since it can be challenging a case or controversy, I 150 00:09:31,520 --> 00:09:33,400 Speaker 4: think the Court might just stay its hand and say, 151 00:09:33,400 --> 00:09:36,520 Speaker 4: as a prudential manner, he's going to wait for that context. 152 00:09:37,040 --> 00:09:40,200 Speaker 2: And the judge also asked why they didn't take this 153 00:09:40,240 --> 00:09:43,199 Speaker 2: after the Supreme Court, saying it would have been decided quicker. 154 00:09:43,679 --> 00:09:46,960 Speaker 2: And that's the path they've taken before, and I wonder 155 00:09:47,000 --> 00:09:48,720 Speaker 2: why they didn't bring it to the Supreme Court. 156 00:09:49,000 --> 00:09:50,600 Speaker 4: You know, I think, as you said, it's not a 157 00:09:50,600 --> 00:09:52,600 Speaker 4: matter of them not wanting to sprinqule to do this. 158 00:09:53,120 --> 00:09:57,720 Speaker 4: They simply, either negligently or intentionally tried to fan the 159 00:09:57,760 --> 00:10:00,880 Speaker 4: flames of the conflict between judges and the Department of 160 00:10:01,080 --> 00:10:04,480 Speaker 4: Justice by choosing this procedural route. And so I think 161 00:10:04,480 --> 00:10:07,839 Speaker 4: as well within the Court's power to say you chose 162 00:10:07,880 --> 00:10:10,079 Speaker 4: the wrong route. We're not saying you can't challenge this. 163 00:10:10,160 --> 00:10:12,400 Speaker 4: You should be able to challenge us, but just not 164 00:10:12,520 --> 00:10:16,120 Speaker 4: by suing judges directly, but rather by appealing in a 165 00:10:16,600 --> 00:10:18,800 Speaker 4: context of a particular case or controversy. 166 00:10:19,160 --> 00:10:24,720 Speaker 2: This illustrates the Trump administration's offensive against the federal judiciary. 167 00:10:25,040 --> 00:10:30,280 Speaker 2: There's the inflammatory rhetoric, allegations that the administration has ignored 168 00:10:30,320 --> 00:10:34,800 Speaker 2: court orders, and they've filed ethics complaints against two federal 169 00:10:34,880 --> 00:10:38,120 Speaker 2: judges for things that they said in the courtroom. What's 170 00:10:38,160 --> 00:10:44,080 Speaker 2: the administration's strategy. Are they expecting that judges will be intimidated? 171 00:10:44,800 --> 00:10:49,000 Speaker 4: Certainly part of the rationale of the Trump administration is 172 00:10:49,080 --> 00:10:55,040 Speaker 4: to receive a softer reception in the courts. So the theory, 173 00:10:55,160 --> 00:10:57,880 Speaker 4: I guess is that you have a broadside here, and 174 00:10:57,920 --> 00:11:01,400 Speaker 4: a broadside there that judges is down the road will 175 00:11:01,440 --> 00:11:06,200 Speaker 4: be more receptive to their arguments and treat their claims 176 00:11:06,440 --> 00:11:09,640 Speaker 4: with greater receptivity. You know, but it could backfire. And 177 00:11:09,679 --> 00:11:12,040 Speaker 4: as I mentioned before, my thought is that this kind 178 00:11:12,040 --> 00:11:18,160 Speaker 4: of action will boomerang because it will scare even judges 179 00:11:18,160 --> 00:11:21,960 Speaker 4: who would otherwise be sympathetic with the Trump administration peak safe. 180 00:11:22,040 --> 00:11:24,800 Speaker 4: We want to have any kind of independent judging left 181 00:11:24,840 --> 00:11:28,800 Speaker 4: in this country, we can't have the executive grant suing 182 00:11:29,000 --> 00:11:36,040 Speaker 4: and deposing and seeking private correspondence from judges in particular cases. 183 00:11:36,520 --> 00:11:39,640 Speaker 4: So that's the spectru of what we have through this lawsuit. 184 00:11:40,080 --> 00:11:43,600 Speaker 4: And again I don't think the Trump administration will achieve 185 00:11:43,640 --> 00:11:45,439 Speaker 4: their ends at least through this. 186 00:11:45,520 --> 00:11:47,800 Speaker 2: Means how You're going to come back a little later 187 00:11:47,840 --> 00:11:50,920 Speaker 2: in the show to talk about our next topic. The 188 00:11:51,000 --> 00:11:54,960 Speaker 2: DC Circuit Court allowing the Trump administration to block billions 189 00:11:54,960 --> 00:12:01,160 Speaker 2: of dollars in foreign aid. This is Bloomberg. It's a 190 00:12:01,200 --> 00:12:05,120 Speaker 2: significant win for President Trump in his efforts to dissolve 191 00:12:05,160 --> 00:12:09,880 Speaker 2: the US Agency for International Development and with whole funding 192 00:12:09,960 --> 00:12:13,640 Speaker 2: from programs that have fallen out of favor with his administration. 193 00:12:14,160 --> 00:12:16,800 Speaker 2: The DC's Circuit Court of Appeals has ruled that the 194 00:12:16,840 --> 00:12:21,319 Speaker 2: administration can cut billions of dollars in foreign assistance funds 195 00:12:21,640 --> 00:12:26,319 Speaker 2: approved by Congress for this year. The nonprofits and businesses 196 00:12:26,360 --> 00:12:30,959 Speaker 2: that sued argued that the President and agency leaders couldn't 197 00:12:30,960 --> 00:12:35,640 Speaker 2: defy Congress's spending mandates and didn't have discretion to decide 198 00:12:35,679 --> 00:12:40,000 Speaker 2: that only some, let alone none of the money appropriated 199 00:12:40,040 --> 00:12:43,800 Speaker 2: by Congress should be paid out. Joining me is Zoe Tillman, 200 00:12:43,960 --> 00:12:47,760 Speaker 2: Bloomberg News Senior reporter. A lower court had found that 201 00:12:47,800 --> 00:12:52,200 Speaker 2: the administration was violating the separation of powers by not 202 00:12:52,400 --> 00:12:55,079 Speaker 2: authorizing the money to be paid in line with what 203 00:12:55,559 --> 00:12:59,320 Speaker 2: Congress had approved. Why did the appellate court reverse? 204 00:13:00,200 --> 00:13:03,880 Speaker 1: The two to one majority of this DC Circuit panel 205 00:13:04,200 --> 00:13:09,239 Speaker 1: basically said that the challengers in this case, which included nonprofits, businesses, 206 00:13:09,320 --> 00:13:12,640 Speaker 1: private contractors that do foreign aid work, that they don't 207 00:13:12,760 --> 00:13:17,000 Speaker 1: have their own separate constitutional challenge path for something like this. 208 00:13:17,600 --> 00:13:21,160 Speaker 1: That if the President wants to refuse to spend money 209 00:13:21,200 --> 00:13:24,520 Speaker 1: that Congress has appropriated, which is known as impoundment, there's 210 00:13:24,520 --> 00:13:28,240 Speaker 1: a US law that says that's not allowed, and the 211 00:13:28,280 --> 00:13:31,960 Speaker 1: only party that can enforce that, basically is Congress. That 212 00:13:32,200 --> 00:13:35,880 Speaker 1: an official called the Comptrol or General consue to enforce 213 00:13:35,920 --> 00:13:39,679 Speaker 1: that Impoundment Control law, but that there isn't a separate 214 00:13:39,840 --> 00:13:43,760 Speaker 1: private cause of action for anyone else to bring a 215 00:13:43,880 --> 00:13:46,559 Speaker 1: claim like the one brought in this case saying there 216 00:13:46,640 --> 00:13:50,640 Speaker 1: was a separation of powers violation. So the court basically said, 217 00:13:50,679 --> 00:13:52,440 Speaker 1: you know, we're not going to reach the question of 218 00:13:52,600 --> 00:13:56,040 Speaker 1: whether what Trump is doing in refusing to spend this 219 00:13:56,240 --> 00:14:00,040 Speaker 1: money is constitutional or is not constitutional. The Court's but 220 00:14:00,679 --> 00:14:03,000 Speaker 1: this type of lawsuit just isn't allowed. 221 00:14:03,520 --> 00:14:06,280 Speaker 2: I mean, is it the Government Accountability Office that has 222 00:14:06,320 --> 00:14:07,559 Speaker 2: to sue? 223 00:14:08,080 --> 00:14:10,960 Speaker 1: Right? So, as the majority said that under the Empoundment 224 00:14:11,000 --> 00:14:15,679 Speaker 1: Control Act, the Government Accountability Office and the Comptroller General 225 00:14:15,840 --> 00:14:18,679 Speaker 1: have separate roles to play. That they have to send, 226 00:14:18,840 --> 00:14:21,600 Speaker 1: you know, there's a notice that goes to Congress, you 227 00:14:21,640 --> 00:14:25,360 Speaker 1: know there's a violation, and then within statutorily prescribed period 228 00:14:25,400 --> 00:14:28,560 Speaker 1: of time I think it's maybe twenty five days after that, 229 00:14:28,760 --> 00:14:32,360 Speaker 1: then the Comptroller General can bring a lawsuit against the 230 00:14:32,400 --> 00:14:37,680 Speaker 1: administration to enforce the appropriation that Congress approved. And you know, 231 00:14:37,960 --> 00:14:41,520 Speaker 1: the odds of that happening very unclear if that's a 232 00:14:41,560 --> 00:14:46,160 Speaker 1: thing that could happen or would happen. Republicans control Congress, 233 00:14:46,360 --> 00:14:49,760 Speaker 1: and it's not a situation where Congress has at all 234 00:14:49,800 --> 00:14:53,480 Speaker 1: been adversarials to the administration, even when this administration has 235 00:14:53,560 --> 00:14:57,640 Speaker 1: really tried to, you know, exercise more control over things 236 00:14:57,680 --> 00:15:01,520 Speaker 1: that have been traditionally in constitutiontionally the role of Congress, 237 00:15:02,080 --> 00:15:04,160 Speaker 1: like deciding how federal money is that. 238 00:15:04,680 --> 00:15:08,359 Speaker 2: The Government Accountability Office has found that the Trump administration 239 00:15:09,240 --> 00:15:13,640 Speaker 2: illegally impounded funds authorized by Congress a few times, but 240 00:15:14,040 --> 00:15:15,520 Speaker 2: they've never sued over it. 241 00:15:15,840 --> 00:15:18,920 Speaker 1: That's true, they've played that oversight role. It just would 242 00:15:18,960 --> 00:15:22,760 Speaker 1: be really an escalation between the two branches to suit. 243 00:15:23,080 --> 00:15:24,760 Speaker 1: It's not that kind of dynamic. 244 00:15:24,960 --> 00:15:28,600 Speaker 2: So far, there's been a lot of lawsuits over Trump 245 00:15:28,680 --> 00:15:33,520 Speaker 2: failing to use funds as directed by Congress. Has this 246 00:15:34,520 --> 00:15:37,560 Speaker 2: type of analysis been done before? 247 00:15:38,360 --> 00:15:41,560 Speaker 1: We certainly have not had a ruling like this, and 248 00:15:42,240 --> 00:15:45,920 Speaker 1: definitely not from a circuit court, let alone the DC Circuit, 249 00:15:46,440 --> 00:15:50,840 Speaker 1: which sets precedent for the nation's capital and where the 250 00:15:50,880 --> 00:15:54,880 Speaker 1: majority of cases against the administration over everything from funding 251 00:15:55,000 --> 00:15:57,920 Speaker 1: to fire and has played out. Now, it's important to 252 00:15:57,960 --> 00:16:03,240 Speaker 1: say that this is about impoundment. It doesn't automatically knock 253 00:16:03,280 --> 00:16:06,320 Speaker 1: out from court parties that are suing over other ways. 254 00:16:06,360 --> 00:16:09,280 Speaker 1: The administration has so thought to cut spending. You know, 255 00:16:09,360 --> 00:16:13,560 Speaker 1: it doesn't apply to cases regarding certain types of grant 256 00:16:13,600 --> 00:16:18,240 Speaker 1: cancelations or suspensions. It doesn't deal with cases we've been 257 00:16:18,400 --> 00:16:23,040 Speaker 1: over new conditions that the administration has placed on grants 258 00:16:23,040 --> 00:16:27,320 Speaker 1: and contracts and how it wants to direct several dollars. 259 00:16:27,360 --> 00:16:29,720 Speaker 1: But to the extent, there are cases that sort of 260 00:16:29,760 --> 00:16:33,800 Speaker 1: broadly challenge what they say are legal moved by the 261 00:16:33,840 --> 00:16:39,160 Speaker 1: President to simply unilaterally refuse to spend money or obligate 262 00:16:39,160 --> 00:16:42,920 Speaker 1: it once Congress has appropriated it. If this DC Circuit 263 00:16:43,120 --> 00:16:46,080 Speaker 1: decision stands, and that's a very big if, given things 264 00:16:46,080 --> 00:16:49,960 Speaker 1: we expect to come soon, it would really complicate efforts 265 00:16:50,000 --> 00:16:52,360 Speaker 1: to bring those types of cases, at least in Washington 266 00:16:52,560 --> 00:16:53,240 Speaker 1: going forward. 267 00:16:53,800 --> 00:16:56,520 Speaker 2: It was a two to one decision, as you mentioned, 268 00:16:56,880 --> 00:17:02,160 Speaker 2: with judges appointed by George H. W. Bush and Donald 269 00:17:02,160 --> 00:17:07,440 Speaker 2: Trump in the majority and a Biden appointee dissenting. If 270 00:17:07,480 --> 00:17:11,480 Speaker 2: they asked the full DC Circuit to hear the case 271 00:17:11,600 --> 00:17:16,120 Speaker 2: on bank there there are more judges appointed by Democrats 272 00:17:16,720 --> 00:17:20,560 Speaker 2: than judges appointed by Republicans. Is there any indication that 273 00:17:20,640 --> 00:17:22,800 Speaker 2: they might ask for a non bank panel. 274 00:17:23,359 --> 00:17:28,080 Speaker 1: Yes, we've gotten, you know, statements from groups involved in 275 00:17:28,359 --> 00:17:32,880 Speaker 1: this litigation saying that they're going to pursue options to review, 276 00:17:33,000 --> 00:17:35,119 Speaker 1: which we understand to mean they're going to ask the 277 00:17:35,160 --> 00:17:39,439 Speaker 1: full DC Circuit to reconsider the panel's decision. And you know, 278 00:17:39,520 --> 00:17:44,240 Speaker 1: it's interesting this year because of just coincidence the ways 279 00:17:44,240 --> 00:17:46,879 Speaker 1: that the wheel has spun in DC. Even though there 280 00:17:46,920 --> 00:17:51,320 Speaker 1: are a majority of or liberal leaning Democrat appointed judges 281 00:17:51,359 --> 00:17:54,040 Speaker 1: on the circuit, there have been a number of panels 282 00:17:54,040 --> 00:17:58,800 Speaker 1: in consequential cases with majority of Republican appointees who are 283 00:17:58,920 --> 00:18:02,920 Speaker 1: more conservative leaning, like Judge Henderson who was an H. W. 284 00:18:03,359 --> 00:18:06,560 Speaker 1: Bush appoint a Judge cass who was a Trump appointee. 285 00:18:06,840 --> 00:18:09,960 Speaker 1: So it's not a guarantee. The Court is supposed to 286 00:18:10,000 --> 00:18:12,520 Speaker 1: set a very high bar for when it takes cases 287 00:18:12,560 --> 00:18:14,919 Speaker 1: on bank. It's not just supposed to be you know, 288 00:18:15,000 --> 00:18:18,960 Speaker 1: whoever loses gets that next step of review. It's supposed 289 00:18:18,960 --> 00:18:22,960 Speaker 1: to be a reserved for extraordinary situations, situations where the 290 00:18:23,000 --> 00:18:25,280 Speaker 1: Court you know, seas a need to step in and 291 00:18:25,320 --> 00:18:28,919 Speaker 1: really set new precedent for the circuit. But you know, 292 00:18:29,000 --> 00:18:32,359 Speaker 1: giving the stakes here, it seems like at least a 293 00:18:32,400 --> 00:18:36,440 Speaker 1: contender for the judges to vote to take this up 294 00:18:37,119 --> 00:18:39,720 Speaker 1: and reconsider what the panel did is. 295 00:18:39,680 --> 00:18:43,800 Speaker 2: This case one of the few where the Supreme Court 296 00:18:43,880 --> 00:18:49,320 Speaker 2: refused to step in where the administration lost that motion 297 00:18:49,440 --> 00:18:50,960 Speaker 2: before the Supreme Court. 298 00:18:51,480 --> 00:18:55,000 Speaker 1: That's right, very early on, and it's this case also 299 00:18:55,119 --> 00:18:59,639 Speaker 1: has a number of different claims in it, and some 300 00:18:59,720 --> 00:19:04,000 Speaker 1: of the early orders that were at issue involved sort 301 00:19:04,000 --> 00:19:07,639 Speaker 1: of related but separate issues on a more sort of 302 00:19:07,680 --> 00:19:11,359 Speaker 1: emergency temporary restraining order type basis, So you know, there 303 00:19:11,359 --> 00:19:14,600 Speaker 1: were sort of claims related to the government's refusal to 304 00:19:14,720 --> 00:19:17,359 Speaker 1: pay money for work that had already been done pursu 305 00:19:17,400 --> 00:19:21,640 Speaker 1: into contracts, different from the sort of sweeping constitutional claims 306 00:19:22,000 --> 00:19:24,880 Speaker 1: that were at issue in this latest opinion. But early on, yes, 307 00:19:25,000 --> 00:19:28,080 Speaker 1: there was a situation where the judge entered orders that 308 00:19:28,200 --> 00:19:31,680 Speaker 1: said the government could not just simply refuse to pay money, 309 00:19:31,800 --> 00:19:34,560 Speaker 1: especially for this work that had been done early in 310 00:19:34,560 --> 00:19:38,440 Speaker 1: the administration, and the Supreme Court had refused to step 311 00:19:38,480 --> 00:19:42,920 Speaker 1: in and disturb that initial order that you know, required 312 00:19:42,960 --> 00:19:46,439 Speaker 1: the government to keep paying out the money that it 313 00:19:46,520 --> 00:19:49,160 Speaker 1: was supposed to. But you know, it's not a merit's decision. 314 00:19:49,240 --> 00:19:51,639 Speaker 1: It was on the emergency docket, also known as the 315 00:19:51,680 --> 00:19:55,359 Speaker 1: shadow docket. And if this case went back up again 316 00:19:55,560 --> 00:19:59,080 Speaker 1: now on a merits basis. That's certainly not a guarantee 317 00:19:59,400 --> 00:20:03,280 Speaker 1: that the government would fail to sway a majority of 318 00:20:03,280 --> 00:20:04,760 Speaker 1: the justices this time around. 319 00:20:05,040 --> 00:20:07,560 Speaker 2: So I mean, does this mean that the Trump administration 320 00:20:08,280 --> 00:20:12,480 Speaker 2: can use that money for something else right away? Or 321 00:20:13,040 --> 00:20:15,760 Speaker 2: is there an injunction in place or right now? 322 00:20:16,040 --> 00:20:20,800 Speaker 1: The Circuit's opinion I believe has not formally taken effect yet. 323 00:20:20,840 --> 00:20:23,560 Speaker 1: They haven't issued the mandate, which would be sort of 324 00:20:23,600 --> 00:20:27,920 Speaker 1: making it official. There's this time window where the plaintiffs, 325 00:20:27,960 --> 00:20:31,080 Speaker 1: the nonprofits and the contractors and the businesses could ask 326 00:20:31,160 --> 00:20:35,080 Speaker 1: the full court to reconsider. So sort of nothing immediately 327 00:20:35,440 --> 00:20:38,639 Speaker 1: changes for the next few weeks at least. You know, 328 00:20:38,680 --> 00:20:42,119 Speaker 1: when money is impounded, my understanding is that you know, 329 00:20:42,160 --> 00:20:45,879 Speaker 1: it goes back to the treasury. If that's the administration 330 00:20:46,000 --> 00:20:48,439 Speaker 1: is free to do whatever it wants with it. It's just 331 00:20:48,480 --> 00:20:50,920 Speaker 1: that it doesn't have to spend it in the way 332 00:20:50,960 --> 00:20:55,320 Speaker 1: that Congress proved it to be spent for the fiscal year. 333 00:20:55,880 --> 00:20:58,760 Speaker 2: Thanks so much for joining me, Zoe. That's Bloomberg News 334 00:20:58,760 --> 00:21:04,199 Speaker 2: Senior reporter, Zoey Tillman. It was a significant win for 335 00:21:04,280 --> 00:21:07,879 Speaker 2: the Trump administration when the DC Court of Appeals, in 336 00:21:07,920 --> 00:21:11,280 Speaker 2: a two to one vote, ruled that the administration can 337 00:21:11,320 --> 00:21:15,200 Speaker 2: cut billions of dollars in foreign assistance funds that were 338 00:21:15,200 --> 00:21:18,119 Speaker 2: approved by Congress for this year. I've been talking to 339 00:21:18,119 --> 00:21:22,000 Speaker 2: Professor Harold Krant of the Chicago Kent College of Law. 340 00:21:22,080 --> 00:21:24,600 Speaker 2: How big a win is this for the Trump administration. 341 00:21:25,200 --> 00:21:27,560 Speaker 4: So I think this is a huge win on several 342 00:21:27,560 --> 00:21:30,359 Speaker 4: different grounds for the Trump administration. And I think that 343 00:21:30,440 --> 00:21:34,880 Speaker 4: the long term impact of decision really rests upon which 344 00:21:34,920 --> 00:21:39,480 Speaker 4: of two possible rationales the DC Court of Appeals used. 345 00:21:39,760 --> 00:21:41,520 Speaker 4: And in this case is a question of releasing one 346 00:21:41,600 --> 00:21:44,879 Speaker 4: hundreds of millions of dollars that the Congress has already 347 00:21:44,880 --> 00:21:48,719 Speaker 4: appropriated for foreign aid. President decided not to spend it, 348 00:21:49,160 --> 00:21:53,320 Speaker 4: and so would be recipients of the foreign aid sued, 349 00:21:53,680 --> 00:21:56,000 Speaker 4: arguing that they have standing because they're injured because they 350 00:21:56,000 --> 00:21:59,000 Speaker 4: didn't receive the aid, and that the government acted ultra 351 00:21:59,080 --> 00:22:03,600 Speaker 4: virusly violation of separation of powers by refusing to spend 352 00:22:03,640 --> 00:22:07,800 Speaker 4: the moneys as directed by Congress. So the District Court 353 00:22:07,960 --> 00:22:11,080 Speaker 4: agreed with them and ordered the money to be dispersed 354 00:22:11,119 --> 00:22:14,240 Speaker 4: and said that Congress was clear the President has no 355 00:22:14,840 --> 00:22:17,960 Speaker 4: independent of poundment authority these acting and violation and the 356 00:22:17,960 --> 00:22:22,520 Speaker 4: empowerment control Act. Therefore, the district court judge directed the 357 00:22:22,560 --> 00:22:25,000 Speaker 4: administration to spend the money, and the two to one 358 00:22:25,040 --> 00:22:29,720 Speaker 4: decision the court overturned that, but again on two different rationales. 359 00:22:30,160 --> 00:22:32,560 Speaker 4: The first rationale, which I consider to be the broad 360 00:22:32,600 --> 00:22:36,400 Speaker 4: one and more frightening, is that the court said that 361 00:22:36,560 --> 00:22:40,560 Speaker 4: if you only are arguing that the president violates the statute, 362 00:22:41,000 --> 00:22:43,560 Speaker 4: you don't have a cause of action. There is no 363 00:22:43,720 --> 00:22:48,639 Speaker 4: power for anybody who's injured by direct presidential action based 364 00:22:48,680 --> 00:22:51,679 Speaker 4: upon violation of statute that can be brought in the 365 00:22:51,720 --> 00:22:56,480 Speaker 4: federal courts. This is an astounding decision of immense significance 366 00:22:56,680 --> 00:23:00,879 Speaker 4: because the argument is whether the president just stonewalls violates 367 00:23:01,080 --> 00:23:04,760 Speaker 4: a statute, ignores the statute, et cetera, et cetera, that 368 00:23:04,880 --> 00:23:07,840 Speaker 4: no one can sue to challenge that because the president 369 00:23:08,160 --> 00:23:11,960 Speaker 4: is immune from suit. So to me, that is a 370 00:23:12,200 --> 00:23:17,280 Speaker 4: very consequential, incredibly broad understanding of precedent and will be 371 00:23:17,440 --> 00:23:22,680 Speaker 4: very deleterious in terms of establishing constraints on presidential authority. 372 00:23:23,119 --> 00:23:26,720 Speaker 4: The majority also use the second rational that's much more 373 00:23:26,800 --> 00:23:30,240 Speaker 4: narrow and I think has some plausibility to it. There 374 00:23:30,359 --> 00:23:34,160 Speaker 4: the court said that Congress, in creating the Empowerment Control 375 00:23:34,200 --> 00:23:39,959 Speaker 4: Act established the very sensitive procedure by which the Controller General, 376 00:23:40,320 --> 00:23:44,680 Speaker 4: an agent of Congress, can decide to sue the President 377 00:23:45,000 --> 00:23:50,680 Speaker 4: for violation of the directions from Congress. In those procedures 378 00:23:50,720 --> 00:23:54,879 Speaker 4: involved correspondence between the Controller General and members of Congress 379 00:23:55,160 --> 00:23:58,600 Speaker 4: some time to study the issue prior to filing suit. 380 00:23:59,080 --> 00:24:02,040 Speaker 4: And so the Court said that there is an implicit 381 00:24:02,119 --> 00:24:06,199 Speaker 4: preclusion of review, that Congress wanted these kinds of empowerment 382 00:24:06,560 --> 00:24:11,359 Speaker 4: controversies to be adjudicated only by the Controller General after 383 00:24:11,400 --> 00:24:16,040 Speaker 4: consultation with Congress, not by private third parties. The Court 384 00:24:16,080 --> 00:24:19,680 Speaker 4: has held in comparable context that there is an implicit 385 00:24:19,720 --> 00:24:22,480 Speaker 4: preclusion of review. I think the issue may be closer, 386 00:24:22,600 --> 00:24:25,600 Speaker 4: but certainly my point is that this would have a 387 00:24:25,680 --> 00:24:29,439 Speaker 4: much more narrow impact upon future cases. This idea of 388 00:24:29,480 --> 00:24:33,639 Speaker 4: implicit preclusion review only arises when there is a kind 389 00:24:33,680 --> 00:24:37,720 Speaker 4: of alternative review mechanism specified by Congress. In most of 390 00:24:37,720 --> 00:24:40,080 Speaker 4: these other cases we have, the federal employee cases, the 391 00:24:40,160 --> 00:24:45,720 Speaker 4: grant cases, there is no implicit alternative procedure, at least arguably, 392 00:24:46,000 --> 00:24:47,959 Speaker 4: and so there would not be as much of an 393 00:24:48,000 --> 00:24:52,240 Speaker 4: impact upon future litigation. But this first rationale forwarded by 394 00:24:52,240 --> 00:24:56,120 Speaker 4: the Court is astonishing. Again and they've said, as shocking 395 00:24:56,160 --> 00:24:59,040 Speaker 4: as it may be, that no one can sue for 396 00:24:59,280 --> 00:25:03,320 Speaker 4: statutory of violation by the president, that the president's simply 397 00:25:03,359 --> 00:25:06,600 Speaker 4: immune from that suit because the APA Administrative Procedure Act 398 00:25:06,640 --> 00:25:09,920 Speaker 4: doesn't waive his his immunity and there's no other cause 399 00:25:09,960 --> 00:25:14,480 Speaker 4: of action available to make sure that the president follows statutes. 400 00:25:14,760 --> 00:25:17,600 Speaker 4: I read presidents differently, and I think we would be 401 00:25:18,040 --> 00:25:21,040 Speaker 4: not a very happy place if we said that the 402 00:25:21,040 --> 00:25:24,320 Speaker 4: president is immune from satutory violations, because, after all, that's 403 00:25:24,359 --> 00:25:28,240 Speaker 4: one of the basic assumptions of our entire separation of powers, 404 00:25:28,560 --> 00:25:32,639 Speaker 4: is that the president must comply with statutes, and so 405 00:25:32,760 --> 00:25:37,400 Speaker 4: this decision would intentive immunize the president from suits not 406 00:25:37,440 --> 00:25:40,600 Speaker 4: only about releasing foreign aid as in this case that 407 00:25:40,640 --> 00:25:43,920 Speaker 4: you mentioned, but in so many other contexts as well. 408 00:25:44,320 --> 00:25:49,800 Speaker 4: You discharging employees, counceling grants, et cetera, et cetera. If 409 00:25:49,840 --> 00:25:53,440 Speaker 4: you could sue a subordinate executive granch official, that would 410 00:25:53,520 --> 00:25:56,520 Speaker 4: enable the plaintiffs to get into court. But according to 411 00:25:56,560 --> 00:25:59,119 Speaker 4: the DC Circuit handle in this case, there could be 412 00:25:59,200 --> 00:26:02,880 Speaker 4: no direct claim against the president in this case himself. 413 00:26:03,480 --> 00:26:05,640 Speaker 2: So, as you mentioned, there was a two to one 414 00:26:05,680 --> 00:26:10,440 Speaker 2: decision with judges appointed by Donald Trump and George H. W. 415 00:26:10,760 --> 00:26:16,440 Speaker 2: Bush in the majority and a Biden appointee dissenting. If 416 00:26:16,480 --> 00:26:21,480 Speaker 2: the challengers ask the DC Circuit, the entire DC Circuit 417 00:26:21,600 --> 00:26:25,560 Speaker 2: to reconsider the decision, judges appointed by Democrats hold the 418 00:26:25,600 --> 00:26:28,040 Speaker 2: majority there. I mean, it's sad to look at this, 419 00:26:28,200 --> 00:26:32,600 Speaker 2: as you know, democratic appointed judges versus Republican appointed judges. 420 00:26:32,600 --> 00:26:35,639 Speaker 2: But that's the way it seems to be breaking down. 421 00:26:36,480 --> 00:26:39,200 Speaker 4: Yeah, And in this case, I just find one aspect 422 00:26:39,200 --> 00:26:43,439 Speaker 4: of the majority's decision so frightening and so destructive of 423 00:26:43,480 --> 00:26:46,800 Speaker 4: our constitutional order. I'm sure that the entire court that 424 00:26:46,880 --> 00:26:49,680 Speaker 4: took up this case would at least narrow the scope 425 00:26:50,000 --> 00:26:53,960 Speaker 4: of the majority's decision. And again, going back to the 426 00:26:54,040 --> 00:26:57,000 Speaker 4: case we discussed with respect to the standing order of 427 00:26:57,040 --> 00:27:00,960 Speaker 4: the District of Maryland, they're at least a Trump appointee, 428 00:27:01,600 --> 00:27:04,560 Speaker 4: I think, will have the independence of mind seemingly so 429 00:27:04,600 --> 00:27:07,800 Speaker 4: far to say no, the Justice Department has gone too far. 430 00:27:08,040 --> 00:27:12,280 Speaker 4: And I think that's healthy. It's healthy to have sometimes 431 00:27:12,720 --> 00:27:17,119 Speaker 4: Biden judges going against Biden or against democratic sort of 432 00:27:17,240 --> 00:27:21,080 Speaker 4: positions and publican judges doing the same. So we'll have 433 00:27:21,160 --> 00:27:23,960 Speaker 4: to see what happens and plays out. If the full 434 00:27:24,000 --> 00:27:28,000 Speaker 4: Court takes this case as a whole and that remains 435 00:27:28,000 --> 00:27:28,440 Speaker 4: to be seen. 436 00:27:28,800 --> 00:27:31,440 Speaker 2: Thanks so much, Hall. That's Professor Harold Krent of the 437 00:27:31,560 --> 00:27:35,439 Speaker 2: Chicago Kent College of Law. Turning to other legal news, 438 00:27:35,960 --> 00:27:40,680 Speaker 2: a foreign adversary targeted sealed documents in espionage and other 439 00:27:40,800 --> 00:27:45,040 Speaker 2: sensitive cases in a breach of the federal judiciary's case 440 00:27:45,119 --> 00:27:50,080 Speaker 2: management system. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline, 441 00:27:50,119 --> 00:27:51,840 Speaker 2: what do we know about this hack? 442 00:27:52,080 --> 00:27:54,919 Speaker 5: So what we know right now is that at some 443 00:27:55,080 --> 00:28:00,320 Speaker 5: point over the summer, judiciary officials started noticing increased thattvity 444 00:28:00,880 --> 00:28:04,960 Speaker 5: by folks who had apparently breached the case management system 445 00:28:05,080 --> 00:28:07,520 Speaker 5: and had been sitting in there for a while. Their 446 00:28:07,600 --> 00:28:12,960 Speaker 5: understanding is that they had used past vulnerabilities that existed 447 00:28:13,000 --> 00:28:18,040 Speaker 5: within the system to then go through and start grabbing 448 00:28:18,080 --> 00:28:22,560 Speaker 5: information about cases. In those cases were ones that were 449 00:28:22,640 --> 00:28:25,760 Speaker 5: under sealed, they were past cases, they were current cases, 450 00:28:26,240 --> 00:28:30,120 Speaker 5: and there were cases that hadn't been filed yet as well. 451 00:28:30,280 --> 00:28:33,560 Speaker 5: So you know, they had been going through and grabbing 452 00:28:33,600 --> 00:28:36,240 Speaker 5: this information that wasn't meant to be made public. 453 00:28:36,600 --> 00:28:39,520 Speaker 2: Do you know what kind of information they were looking 454 00:28:39,560 --> 00:28:41,280 Speaker 2: for or they got access to? 455 00:28:41,960 --> 00:28:44,400 Speaker 5: So one of my sources says that they had targeted 456 00:28:44,560 --> 00:28:49,120 Speaker 5: cases that were related to espionage and other national security matters. 457 00:28:49,520 --> 00:28:52,440 Speaker 5: There were some cases that were fraud cases, some are 458 00:28:52,480 --> 00:28:56,800 Speaker 5: money laundering, and some others were related to agents of 459 00:28:56,880 --> 00:28:59,520 Speaker 5: foreign government. So it's the sort of cases that you 460 00:28:59,560 --> 00:29:02,720 Speaker 5: would act a foreign adversary would have been to fit 461 00:29:02,960 --> 00:29:06,480 Speaker 5: someone from their country or an agent of their country, 462 00:29:06,800 --> 00:29:10,200 Speaker 5: or facing scrutiny or investigation within a federal system. That 463 00:29:10,360 --> 00:29:12,480 Speaker 5: is something another government would want to know about. 464 00:29:13,040 --> 00:29:15,320 Speaker 2: Have they been identified as Russian hackers? 465 00:29:16,120 --> 00:29:18,560 Speaker 5: The New York Times has reported that it is Russian 466 00:29:18,600 --> 00:29:21,920 Speaker 5: hackers that are behind it. I believe Trump referenced it 467 00:29:22,000 --> 00:29:25,040 Speaker 5: in a press office as well as response to a questions, saying, 468 00:29:25,080 --> 00:29:27,400 Speaker 5: you know, it's no surprise that's the sort of thing 469 00:29:27,400 --> 00:29:29,960 Speaker 5: that Russia does, and you know it's something that could 470 00:29:29,960 --> 00:29:33,480 Speaker 5: potentially come up with the summit with Vladimir Putin. But 471 00:29:34,000 --> 00:29:36,040 Speaker 5: you know, obviously they have other things they want to 472 00:29:36,080 --> 00:29:38,760 Speaker 5: talk about. But Russia has always been known as a 473 00:29:38,960 --> 00:29:41,480 Speaker 5: major foreign adversary within the cyber space. 474 00:29:41,920 --> 00:29:46,080 Speaker 2: The judicial system noticed this first in July. Why didn't 475 00:29:46,080 --> 00:29:47,240 Speaker 2: they do anything about it? 476 00:29:47,400 --> 00:29:50,400 Speaker 5: So to even go further back in twenty twenty, there 477 00:29:50,440 --> 00:29:53,000 Speaker 5: had been a breach of the Federal judiciary s CAPE 478 00:29:53,000 --> 00:29:56,200 Speaker 5: management system, which is the same system that was breached 479 00:29:56,200 --> 00:30:00,520 Speaker 5: within this more recent activity. So there were vulnerable within 480 00:30:00,600 --> 00:30:04,960 Speaker 5: that system. Courts were encouraged to take precautions that would 481 00:30:05,040 --> 00:30:09,400 Speaker 5: allow sensitive documents to be safeguarded and not access by 482 00:30:09,480 --> 00:30:13,840 Speaker 5: anyone else who was accessing that system like these foreign hackers. 483 00:30:14,160 --> 00:30:17,800 Speaker 5: But years later, it turns out that those same vulnerabilities 484 00:30:17,800 --> 00:30:22,400 Speaker 5: were never fully addressed, and it was similar weaknesses within 485 00:30:22,520 --> 00:30:25,840 Speaker 5: the case management system that we're exploited this time again. 486 00:30:26,360 --> 00:30:29,880 Speaker 5: So we don't know why these issues weren't resolved, and 487 00:30:30,000 --> 00:30:33,440 Speaker 5: we're expecting there's going to be future briefings about this issue, 488 00:30:33,760 --> 00:30:36,760 Speaker 5: and the Federal Judiciary typically does the press conference with 489 00:30:36,880 --> 00:30:40,920 Speaker 5: reporters in September, so we're hoping we'll learn more information 490 00:30:41,000 --> 00:30:42,040 Speaker 5: about it then as well. 491 00:30:42,920 --> 00:30:47,480 Speaker 2: Is the real worry about witnesses being identified or about 492 00:30:47,600 --> 00:30:50,440 Speaker 2: cases being derailed by this? 493 00:30:51,520 --> 00:30:54,920 Speaker 5: You know, those are all possibilities here. The information that's 494 00:30:54,960 --> 00:30:58,160 Speaker 5: under seal attends to be pretty sensitive information, right, because 495 00:30:58,200 --> 00:31:00,400 Speaker 5: it's not anything that you want to be made public. 496 00:31:01,200 --> 00:31:04,200 Speaker 5: You wouldn't want the name of a confidential informant made public. 497 00:31:04,480 --> 00:31:09,240 Speaker 5: You wouldn't want details about how an investigation originated, any 498 00:31:09,600 --> 00:31:14,320 Speaker 5: tips involving you know, sources that federal prosecutors are federal 499 00:31:14,360 --> 00:31:17,800 Speaker 5: agents who are investigating these issues that then we're resulting 500 00:31:17,840 --> 00:31:20,280 Speaker 5: in charges. You know, any of that sort of sensitive 501 00:31:20,320 --> 00:31:23,520 Speaker 5: information being made public. So you know, there's a wide 502 00:31:23,600 --> 00:31:26,680 Speaker 5: range of concerns out there for why it's important for 503 00:31:26,720 --> 00:31:30,520 Speaker 5: this information to stop the accessed by outside entities. 504 00:31:31,520 --> 00:31:36,080 Speaker 2: Does the judiciary have one system that covers all the 505 00:31:36,120 --> 00:31:39,080 Speaker 2: federal courts or are they separate systems. 506 00:31:39,520 --> 00:31:44,360 Speaker 5: My understanding is they are separate. The cm ECS is 507 00:31:44,400 --> 00:31:47,280 Speaker 5: what is often called as the case management system that 508 00:31:47,320 --> 00:31:52,000 Speaker 5: the judiciary uses internally. That's the one that lawyers when 509 00:31:52,000 --> 00:31:53,720 Speaker 5: they go in to make a filing, that's what they 510 00:31:53,720 --> 00:31:56,280 Speaker 5: log it too, and they upload whatever document they have. 511 00:31:57,160 --> 00:31:59,920 Speaker 5: And then CACER is sort of the public facing side 512 00:32:00,080 --> 00:32:02,120 Speaker 5: of it, and that's where you or I were trying 513 00:32:02,160 --> 00:32:04,920 Speaker 5: to figure out, Okay, so and so got charged in court. 514 00:32:05,160 --> 00:32:07,200 Speaker 5: Let me pull up that court document and read it. 515 00:32:07,640 --> 00:32:10,880 Speaker 5: So there are those two aspects of it. The federal 516 00:32:10,960 --> 00:32:17,600 Speaker 5: judiciary generally is a very decentralized place. Each court sort 517 00:32:17,640 --> 00:32:20,920 Speaker 5: of does its own thing, but there is a push 518 00:32:21,000 --> 00:32:25,240 Speaker 5: right now to modernize the case management system is just 519 00:32:25,440 --> 00:32:28,320 Speaker 5: taking them quite a bit to do it. It's not 520 00:32:28,440 --> 00:32:31,080 Speaker 5: an easy fix for them to be able to go 521 00:32:31,160 --> 00:32:34,520 Speaker 5: through and revamp this saying that exists in every federal 522 00:32:34,640 --> 00:32:37,760 Speaker 5: district and appeals court within the country. 523 00:32:38,280 --> 00:32:42,680 Speaker 2: And also, I mean, is any system not vulnerable to 524 00:32:43,240 --> 00:32:45,560 Speaker 2: cyber attacks these dates. 525 00:32:45,560 --> 00:32:48,360 Speaker 5: That's absolutely true. If you ever hear a companies say 526 00:32:48,400 --> 00:32:51,240 Speaker 5: that they have something that is unhackable, that is sort 527 00:32:51,240 --> 00:32:53,600 Speaker 5: of just a dare to a hacker to try to 528 00:32:53,600 --> 00:32:54,000 Speaker 5: get it. 529 00:32:54,120 --> 00:32:57,840 Speaker 2: So and I understand that instead of technical fixes, some 530 00:32:57,880 --> 00:33:00,120 Speaker 2: of the courts are just are going to ask let 531 00:33:00,200 --> 00:33:05,240 Speaker 2: these sensitive documents be submitted by paper like the old days. 532 00:33:05,640 --> 00:33:08,880 Speaker 5: Right, Yeah, that's something that's been in place almost since 533 00:33:08,920 --> 00:33:12,200 Speaker 5: twenty twenty one now for some courts. They've been asking 534 00:33:12,800 --> 00:33:15,640 Speaker 5: attorneys saying, hey, if you have a key style that 535 00:33:16,120 --> 00:33:20,120 Speaker 5: really has been designated as highly sensitive it really cannot 536 00:33:20,160 --> 00:33:23,440 Speaker 5: be made public, just come by the court and hand 537 00:33:23,480 --> 00:33:25,720 Speaker 5: it over to us on a piece of paper, and 538 00:33:25,760 --> 00:33:29,880 Speaker 5: that way we can mitigate any possibility of someone else 539 00:33:29,960 --> 00:33:33,480 Speaker 5: being able to access this. And you know, our understanding 540 00:33:33,600 --> 00:33:39,080 Speaker 5: is this could be temporary if it's found that vulnerabilities 541 00:33:39,160 --> 00:33:42,960 Speaker 5: can't be fixed within the system. Or that it's going 542 00:33:43,040 --> 00:33:45,440 Speaker 5: to take a while to get at the root cause here, 543 00:33:45,840 --> 00:33:48,280 Speaker 5: you know, there's always a possibility that it could happen 544 00:33:48,440 --> 00:33:51,600 Speaker 5: even longer. And my understanding is that for some courts 545 00:33:51,640 --> 00:33:54,640 Speaker 5: it has been happening since twenty twenty that they've been asking, 546 00:33:54,880 --> 00:33:59,160 Speaker 5: you know, federal prosecutors or others dealing with these filed 547 00:33:59,240 --> 00:34:02,120 Speaker 5: documents to go hand them over in person. 548 00:34:02,680 --> 00:34:05,680 Speaker 2: Thanks so much for joining me, Jacqueline. That's Bloomberg Law 549 00:34:05,760 --> 00:34:09,360 Speaker 2: reporter Jacqueline Thompson, and that's it for this edition of 550 00:34:09,360 --> 00:34:12,040 Speaker 2: the Bloomberg Law Show. 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