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

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Speaker 2: This is what happens when people have the best centrist

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Speaker 2: of our state in mind and work in good faith

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Speaker 2: to come to a resolution. Michael Madigan was an almost

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Speaker 2: mythical figure in Illinois politics. His three decade reign earned

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Speaker 2: him the nickname the Velvet Hammer because of the way

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Speaker 2: he maintained power over decades of leading the state House

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Speaker 2: and enforcing fealty from its members. But today Madigan stands

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Speaker 2: convicted of bribery, conspiracy, and fraud after a four month

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Speaker 2: trial where he was accused of running a year's long

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Speaker 2: criminal enterprise to enrich himself and his political allies. Prosecutors

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Speaker 2: built their four month case on witnesses who turned state's

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Speaker 2: evidence and wore wires, emails, and documents and wired to

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Speaker 2: a conversations like these.

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Speaker 3: If you can get near your mind that your client

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Speaker 3: is only Mike Madigan. I generally never refer to the speaker.

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Speaker 3: I just say our friend. So if you could say

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Speaker 3: our friend, no one really knows what we're talking about.

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Speaker 3: Speakers of that, hey, michaeh, hey, will you tell the speaker.

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Speaker 3: I took care of burials and Pennonovic. You could just

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Speaker 3: throw away that note.

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Speaker 2: The trial may be over and Madigan's seven and a

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Speaker 2: half year sentence handed down, but it's just the beginning

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Speaker 2: of an impellent process that could have real consequences for

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Speaker 2: corruption cases. Joining me is former federal prosecutor Mark Chutko,

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Speaker 2: a partner at Daikemagasset. Mark. For those who aren't familiar

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Speaker 2: with Illinois politics, tell us a little about Madigan.

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Speaker 4: Michael Madigan was the longtime Speaker of the House, a

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Speaker 4: Democrat in the state of Illinois, actually the longest serving

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Speaker 4: state speaker in the history of the United States, having

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Speaker 4: served that they're six years. He resigned office in approximately

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Speaker 4: twenty twenty one because of scrutiny by the federal government

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Speaker 4: in connection with corruption allegations.

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Speaker 2: And a four month trial ended in a split verdict.

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Speaker 2: Tell us about the trial and.

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Speaker 3: The verdict well.

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Speaker 4: In the trial itself, the jury throughout the racketeering conspiracy

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Speaker 4: charges also had some difficulty on some of the other

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Speaker 4: bribery counts, but ultimately ended up convicting of ten counts,

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Speaker 4: including some of the bribery counts.

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Speaker 2: He has to report to prison on October thirteenth. I'm

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Speaker 2: curious as to why the judge didn't allow him to

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Speaker 2: remain out of prison pending appeal, he.

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Speaker 4: Filed a motion for release pending appeal, which are generally

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Speaker 4: disfavored in cases like this. He would have had to

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Speaker 4: have shown that there were substantial questions of law or

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Speaker 4: fact that would have resulted in a reversal or a

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Speaker 4: new trial for the chargers for which he was sentenced

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Speaker 4: to prison. The judge on Friday issued a forty four

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Speaker 4: page order denying that motion, indicating that at least in

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Speaker 4: the judge's mind, there was no question but that he

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Speaker 4: had committed these crimes. The evidence was there, and at

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Speaker 4: least the judge was somewhat dismissive over some of his

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Speaker 4: legal challenges.

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Speaker 2: So one of his likely arguments on appeal, which was

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Speaker 2: previewed in the motion, centers on the definition of corruptly

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Speaker 2: in the Federal bribery statute. Will you explain this debate

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Speaker 2: over that word corruptly.

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Speaker 1: Yeah.

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Speaker 4: The statute itself Tedal eighteen, Section six sixty six, which

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Speaker 4: is a federal theft and bribery statute, specifically uses the

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Speaker 4: term corruptly in connection with obtaining something of value in

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Speaker 4: exchange for an official act or being influenced in connection

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Speaker 4: with an official duty, and the term has never been

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Speaker 4: ruled upon by the Supreme Court, although in a recent

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Speaker 4: case last year involving a Portage, Indiana mayor named James Snyder,

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Speaker 4: there was healthy debate within the oral argument about what

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Speaker 4: the term corruptly means. And generally the Supreme Court is

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Speaker 4: wary of vague terms, especially in the criminal law, and

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Speaker 4: there has been a trend recently towards them ratcheting back

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Speaker 4: on the scope of the prosecutors and the government use

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Speaker 4: of Corushian statutes. And so that seems to be the

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Speaker 4: highlight ear of what Madigan and perhaps the other comments

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Speaker 4: or defendants are going to argue that corruptly is a vague,

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Speaker 4: unconstitutionally vague term that doesn't give fair notice to a

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Speaker 4: defendant to a public official of where the right line is.

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Speaker 2: The Supreme Court, as you mentioned, has been cutting back

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Speaker 2: on the reach of federal corruption laws and prosecutorial discretion

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Speaker 2: to bring charges against government officials in a string of

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Speaker 2: cases in the last decade. Can you sort of trace

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Speaker 2: that out for us?

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Speaker 4: Yeah, really started especially over the last decade in the US.

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Speaker 4: The McDonald case involving a Virginia governor McDonald, who was

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Speaker 4: convicted of various bribery charges which were overturned at the

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Speaker 4: Supreme Court based on what the definition of an official

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Speaker 4: act is.

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Speaker 1: In that case, the.

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Speaker 4: Virginia governor was lending his public space, the governor's mansion,

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Speaker 4: to a backer of his who had been providing him

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Speaker 4: items of value both to him and his wife. This

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Speaker 4: was a nutritional supplement company, and the governor was making

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Speaker 4: access so that this nutritional supplement company could have meetings

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Speaker 4: with officials at the University of Virginia hoping to get contracts.

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Speaker 4: And while the court said that that might be in

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Speaker 4: some ways an abuse of power, it was not an

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Speaker 4: official act. It wasn't a core duty of the governor

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Speaker 4: to provide this sort of service, and so that case

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Speaker 4: was struck down. Following that, in twenty twenty, in what

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Speaker 4: has been known as the Bridgegate case Kelly versus the

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Speaker 4: United States, the Supreme Court again overturned convictions of two

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Speaker 4: former New Jersey public officials that had admittedly abused their

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Speaker 4: power by realigning toll lanes as political retribution. But the

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Speaker 4: court there said that did not fit under the male

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Speaker 4: Wire fraud statutes because there had been no money or

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Speaker 4: property that had been obtained in connection with that case. Then,

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Speaker 4: just a couple of years ago, in a couple cases,

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Speaker 4: Supreme Court in a case called Percoco and another one

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Speaker 4: called Simonelli, also narrowed the scope of the term intangible

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Speaker 4: right of honor services as unconstitutionally vague, and in a

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Speaker 4: bid rigging case, scaled back understanding that the government had

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Speaker 4: been using a bid rigging cases to say that withholding

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Speaker 4: information from a competitor is not a traditional property interest

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Speaker 4: under wirefraud. Finally, this culminated last year in twenty twenty

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Speaker 4: four in the case I alluded to before involving this

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Speaker 4: forty Giana Mayor James Snyder, where the court said that

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Speaker 4: under the six sixty sixth Bribery Statute, you cannot criminalize

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Speaker 4: after the fact gratuities or rewards to a public official

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Speaker 4: for positive actions on behalf of a developer.

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Speaker 2: Of the decade of Supreme Court decisions in these public

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Speaker 2: corruption cases, I found that Snyder decision stunning because it

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Speaker 2: seemed like a textbook example of kickbacks. He got the

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Speaker 2: thirteen thousand dollars after a trucking company was awarded city contracts.

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Speaker 3: Yeah, I mean.

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Speaker 4: It certainly is what we call in the criminal parliament slime,

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Speaker 4: but was it crime. The Court looked at the statute

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Speaker 4: itself and compared the sixt sixty six bribery Statute with

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Speaker 4: comparable federal statutes when federal officials engage in bribery and

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Speaker 4: corruption and said that it simply did not match the

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Speaker 4: gratuity statute, which criminalizes after the fact rewards. And what

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Speaker 4: the Court was looking for was a traditional in advanced

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Speaker 4: understanding by both parties that there was going to be

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Speaker 4: a quid pro quo of this for that transaction of

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Speaker 4: single value for official act.

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Speaker 2: Court said a contrary ruling had the potential to criminalize

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Speaker 2: commonplace gratuities like a Duncan Donuts gift card at Chipotle

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Speaker 2: dinner or tickets to a Hoosiers game, and that was

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Speaker 2: six to three decision down ideological lines. Justice Katanji Brown

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Speaker 2: Jackson wrote for the liberals and said Snyder's absurd and

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Speaker 2: a textual reading of the statute is one only today's

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Speaker 2: court could love. Do you have any inkling as to

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Speaker 2: why you know the Supreme Court has been cutting back

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Speaker 2: on these public corruption prosecutions.

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Speaker 4: Some of it may have to do with federalism, concerns

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Speaker 4: that the Court does not want to see the federal

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Speaker 4: government micromanaging how state and local officials conduct their campaigns

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Speaker 4: or interact with the public. Some of it has to

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Speaker 4: do with fair notice. The government has been very aggressive,

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Speaker 4: or had been very aggressive ten fifteen years ago, in

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Speaker 4: asserting an intangible right to honest services and other sorts

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Speaker 4: of theories to basically tried to look at criminal or

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Speaker 4: corruption activity within the state and local level, and at

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Speaker 4: some point the Court thought that was an overstretched that

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Speaker 4: it was giving too much discretion to prosecutors to import

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Speaker 4: their own principles as to what good governance means.

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Speaker 2: And Madigan has hired as his appellate lawyers a team

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Speaker 2: that includes the lawyers who successfully argued that Snyder case,

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Speaker 2: indicating that he may be aiming for the Supreme Court.

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Speaker 4: Yeah, that's right, Lisa Blatt and another woman by the

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Speaker 4: name of Amy's Saharia, who successfully argued in the Supreme

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Speaker 4: Court last year that Snyder his conviction should be overturned.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with former federal prosecutor Mark Chutko. We'll talk

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Speaker 2: about possible issues for Madigan's appeal and how difficult it

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Speaker 2: is for prosecutors to bring public corruption cases these days.

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Speaker 2: I'm June Grosso, and you're listening to Bloomberg. I've been

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Speaker 2: talking to former federal prosecutor Mark Chutko about the Michael

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Speaker 2: Madigan corruption case, which may offer the Supreme Court a

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Speaker 2: chance to redefine bribery law. Again. Madigan's appellate brief hasn't

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Speaker 2: been filed yet, but that motion which was unsuccessful to

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Speaker 2: stay out of custody pending appeal offers a preview of

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Speaker 2: some of the likely arguments. And as far as that

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Speaker 2: word corruptly, are they just saying that there should have

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Speaker 2: been a different jury instruction, You're saying.

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Speaker 4: That it just simply was vague. I mean, as the

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Speaker 4: instruction looks right now. In the Madigan case, corruptly simply

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Speaker 4: means that a defendant X with the understanding that something

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Speaker 4: of value is to be offered or given to war

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Speaker 4: or influenced someone in connection with their official duties. And

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Speaker 4: so there was no specific definition of corruptly, although I

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Speaker 4: must say that in the Snyder oral argument it was

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Speaker 4: debated quite a bit. In fact, the government in Snyder

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Speaker 4: in oral argument suggested that corruptly might mean wrongful or

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Speaker 4: consciousness of wrongdoing. They also alluded to an Arthur Anderson

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Speaker 4: Supreme Court case where corruptly had been defined as immoral

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Speaker 4: or inherently wrongful. Some of the justices pushed back on

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Speaker 4: that is not really guidance at all, that there are

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Speaker 4: no real clear rules to guide public sector officials, if

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Speaker 4: that's what you're going to be looking at. And so

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Speaker 4: in this case, what Madigan has seized upon is that

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Speaker 4: corruptly must mean something, and he is concluding that it

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Speaker 4: means consciousness of wrongdoing, sort of alluding to what the

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Speaker 4: government itself argued in Snyder. And that almost imports what

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Speaker 4: we call a specific intent requirement that the public official

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Speaker 4: not only knows the fact that they did, but also

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Speaker 4: knows that those facts, the actions that they took were

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Speaker 4: wrongful were illegal under the law.

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Speaker 2: I mean, the trial included eleven weeks of testimony. The

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Speaker 2: jury heard from more than sixty witnesses, including Madigan. Was

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Speaker 2: there enough evidence there for Madigan to be convicted even

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Speaker 2: using a jury instruction that requires specific intent.

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Speaker 4: Well, you know, it's interesting because Judge Blaky actually said that,

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Speaker 4: he said that in this case bribery itself, especially bribery

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Speaker 4: has now been defined by Snyder as in advance agreement

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Speaker 4: between a public official and a private party is inherently

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Speaker 4: wrongful and so almost suggesting that everybody knows that this

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Speaker 4: is illegal to do, and so you don't have to

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Speaker 4: have that specific intent requirement. The court also alluded to

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Speaker 4: the fact that Madigan and himself was trained as a lawyer,

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Speaker 4: which kind of gave him also notice that this was

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Speaker 4: wrong what he was doing.

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Speaker 2: So does it seem like the Supreme Court is poised

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Speaker 2: to take another step in a case like Madigan's.

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Speaker 4: According to Judge Blakey, No, he suggests that the law

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Speaker 4: is clear in the Seventh Circuit on this issue. But

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Speaker 4: clearly Madigan is looking beyond the Seventh Circuit by hiring

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Speaker 4: people that had advocated before the Supreme Court and successfully.

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Speaker 4: So I would expect that their eyes are set on

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Speaker 4: the Supreme Court and that they think this is a

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Speaker 4: further avenue to try to narrow the scope of what

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Speaker 4: they would consider prosecutorial overreach.

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Speaker 2: Let's just say that the Supreme Court reversed the bribery convictions.

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Speaker 2: He was also convicted of conspiracy and wire fraud, would

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Speaker 2: those convictions hold, and he'd still have to serve time.

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Speaker 4: That is possible, and the court did allude to the

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Speaker 4: fact that he was also convicted of Travel Act violation,

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Speaker 4: which has as a predicate act state level bribery laws.

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Speaker 4: And so even if Madigan was to succeed ultimately in

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Speaker 4: overturning is bribery convictions, that isn't the end of the story.

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Speaker 4: He may end up still with other convictions at the

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Speaker 4: end of the day.

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Speaker 2: And in the convictions of what are called the Commed Four,

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Speaker 2: the defendants who were convicted of bribery, conspiracy, and falsifying

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Speaker 2: records in a scheme to illegally influence Madigan and Illinois

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Speaker 2: judge earlier this year. Throughout the bribery convictions there because

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Speaker 2: of flawed jury instructions.

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Speaker 1: That's right.

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Speaker 4: That trial had occurred before the Snyder case, and so

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Speaker 4: when the court looked back with the benefit of now

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Speaker 4: understanding what the Supreme Court had said about bribery, was

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Speaker 4: concerned that the instructions were flawed and so removed all

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Speaker 4: of those substantive bribery convictions. But let's stand the conspiracy conviction,

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Speaker 4: and that is a multi object conspiracy which involved both

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Speaker 4: six sixty six bribery and these FCPA violations, And one

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Speaker 4: possible simple avenue for appeal by the comment for is

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Speaker 4: to suggest that because this was a general verdict which

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Speaker 4: did not specify which criminal logic was proven under the conspiracy,

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Speaker 4: that once the court threw out the bribery allegations, that

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Speaker 4: it's not clear what the jury decided. Did they decide

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Speaker 4: that there had been a conspiracy based on the bribery

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Speaker 4: or on the SDPA violations. So I would expect the

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Speaker 4: comment for to attack the conspiracy conviction as well.

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Speaker 2: And one of the defendants has hired Paul Clement, superstar

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Speaker 2: conservative lawyer and Supreme Court litigator. Does a statement seem

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Speaker 2: to indicate they're going to focus on the Trump administration's

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Speaker 2: news stance on the FCPA.

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Speaker 4: Yeah, it's interesting. I heard stories to suggest that the

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Speaker 4: defendants in the Comment four case actually had gone to

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Speaker 4: the Justice Department to get them to reconsider these FCPA

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Speaker 4: books and records violations based on recent guidance in which

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Speaker 4: EJ has been scaling it back its use of the

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Speaker 4: Foreign Corrupt Practices Act. Basically, they don't want to prosecute

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Speaker 4: what are otherwise considered routine violations and they're focused more

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Speaker 4: on transnational organized crime and other sorts of national security interests.

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Speaker 4: And so at least what some reporters have suggested is

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Speaker 4: that there had been some outreach with the Justice Department,

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Speaker 4: but they weren't successful. But I would assume by the

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Speaker 4: hiring of Paul Clement that the comment for or at

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Speaker 4: least the former CEO, intend to try to pursue this

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Speaker 4: all the way to the Supreme Court, to suggest that

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Speaker 4: the prosecutors here are also stretching the boundaries of the

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Speaker 4: Foreign Corrupt Practices Act, which really was designed to attack

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Speaker 4: and combat against bribery of foreign officials, not domestic concerns.

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Speaker 4: And what the Justice Department has done in the Comment

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Speaker 4: four case was to bring these books and records violations

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Speaker 4: to basically address purely domestic companies that were involved in

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Speaker 4: purely domestic alleged bribery. I would expect that mister Clement

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Speaker 4: would say that really stretches beyond the intended purposes of

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Speaker 4: the Foreign Corrupt Practices Act.

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Speaker 2: Mark, you were the chief of the Public Corruption Unit

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Speaker 2: at the Detroit US Attorney's Office. Can you describe how

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Speaker 2: difficult it is now to bring these kinds of cases?

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Speaker 2: What prosecutors have to consider before bringing a case.

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Speaker 4: Yeah, public corruption cases are intensely difficult to bring. That

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Speaker 4: traditionally has been the elite office in any US attorney's

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Speaker 4: office and consists of some of the stars of the

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Speaker 4: office who have been there for a long time and

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Speaker 4: know how to build a case. And the challenge of

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Speaker 4: a corruption case is unlike let's say a drug transaction,

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Speaker 4: where you know, for instance, that cocaine exchanging hands is illegal,

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Speaker 4: in the case of public corruption, the thing that is

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Speaker 4: being bargained for is an official act, which in it

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Speaker 4: of itself is not illegal, and so you need to

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Speaker 4: know more understand why that transaction is illegal, and so

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Speaker 4: you have to look at the intent of the parties.

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Speaker 4: You've got to draw a lot of circumstantial evidence, either

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Speaker 4: of consciousness of guilt because they're hiding the money, or

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Speaker 4: having a wire tap so you can actually hear the

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Speaker 4: words of the two parties transacting in these things, maybe

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Speaker 4: having an informant wearing a recording device. But because of

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Speaker 4: the Supreme Court's ratcheting back of the corruption statutes, it

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Speaker 4: is becoming increasingly difficult to try to prove these cases,

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Speaker 4: especially with the use of consultants and other people that

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Speaker 4: sort of insulate the public official from maybe the person

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Speaker 4: that is paying the money. And so I think in

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Speaker 4: the future it's going to be harder and harder to

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Speaker 4: bring these kind of cases. Added to that is the

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Speaker 4: polarization of our country. I mean, right now, both political

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Speaker 4: parties are making counter accusations against each other of the

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Speaker 4: weaponization of the Department of Justice, that somehow that the

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Speaker 4: Department of Justice is misusing its investigator of been prosecutorial

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Speaker 4: functions that seeps into a jury pool and it could

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Speaker 4: have a stillover effect. In a criminal case, you've got

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Speaker 4: to get twelve people that unanimously agree beyond a reasonable

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Speaker 4: doubt that a crime has been committed. And can you

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Speaker 4: get that today when there are a lot of skepticism

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Speaker 4: about the motivations of the prosecutors. It remains to be seen.

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Speaker 2: And also the Trump administration has been cutting back on

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Speaker 2: the people in the public corruption units.

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Speaker 4: Right at least in the Department of Justice in their

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Speaker 4: Public Integrity section. There are fewer prosecutors I'm told there.

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Speaker 4: I don't know that that's impacted the US attorney's offices

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Speaker 4: around the country, which really bring the bulk of the

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Speaker 4: corruption cases.

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Speaker 2: This is a really fascinating area. Thanks so much for

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Speaker 2: joining me.

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Speaker 3: Mark.

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Speaker 2: That's former federal prosecutor Mark Chutko, a partner at Daikema Gossip.

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Speaker 5: Well, already they're saying he's a dictator. The place is

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Speaker 5: going to hell, and we've got to stop it. Instead

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Speaker 5: of saying he's a dictator, they should say, we're going

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Speaker 5: to join him and make Washington say.

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Speaker 2: President Trump says he'll indefinitely extend the federal government's takeover

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Speaker 2: of the Washington, d c. Police Department past the thirty

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Speaker 2: days allotted by law by proposing a law to Congress, or,

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Speaker 2: if necessary, by declaring an emergency. Trump also suggested that

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Speaker 2: a DC crime bill would be a template for other cities.

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Speaker 6: And we're going to do something, and that's going to

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Speaker 6: serve as a beacon for New York, Chicago, Los Angeles,

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Speaker 6: and other places all over the country. This whole, our

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Speaker 6: whole country is going to be so different and so great.

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Speaker 6: It's going to be clean and safe and beautiful.

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Speaker 2: My guest is Joshua Castenberg, a professor at the University

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Speaker 2: of New Mexico Law School and a former judge in

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Speaker 2: the US Air Force. We keep saying unprecedented but in

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Speaker 2: an unprecedented move, Trump deployed nearly five thousand National Guard

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Speaker 2: troops and Marines to Los Angeles. In June, he's deployed

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Speaker 2: about eighty five hundred active duty troops to the southern border,

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Speaker 2: and now he's deploying eight hundred National Guard troops to DC.

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Speaker 2: And in all these situations, he said there was an

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Speaker 2: emergency of some kind. Is he trying to expand the

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Speaker 2: use of the military for domestic issues?

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Speaker 1: You can take each of those three instances, and there

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Speaker 1: are three different legal analysis that you would have to

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Speaker 1: do with each of them. But you could take each

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Speaker 1: of those three instances and you can come up with

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Speaker 1: the conclusion, as I do, that he is trying to

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Speaker 1: normalize the use of military force to coerce Americans, including

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Speaker 1: their elected representatives, to get his way. This is the

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Speaker 1: very thing that the framers of the Constitution warned of

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Speaker 1: in terms of fears of standing armies. You can read

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Speaker 1: that in the Federalist papers. It's very clear that bright

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Speaker 1: men like Thomas Jefferson and James Madison and John Adams

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Speaker 1: were all opposed to the use of military force to

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Speaker 1: police and corral the American people. They were fine with

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Speaker 1: governors as commanders in chief of their militia, using the

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Speaker 1: militia forces as a police power. And so they created

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Speaker 1: a constitution that has a federal government that is a

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Speaker 1: government of limited powers. And you look at the Tenth Amendment,

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Speaker 1: you look at the militia clauses, and you can conclude

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Speaker 1: from that that governors have what's known as police powers,

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Speaker 1: but the federal government does not. And what that means

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Speaker 1: is that within those limited powers, the use of a

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Speaker 1: military force to police, particularly in light of the eighteen

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Speaker 1: seventy eight Posi Commitatis Act, should only occur if there's

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Speaker 1: an emergency from a foreign country, or if there's an

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Speaker 1: insurrection or a complete collapse of the civil government, meaning

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Speaker 1: the courts aren't working, the police aren't working, and the

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Speaker 1: people have nowhere to go. That's not what's happened, and

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Speaker 1: in Los Angeles, it's not what's happened in Washington, d c.

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Speaker 1: And as for the border, the President of the United

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Speaker 1: States has the authority to protect the national security of

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Speaker 1: the country, and in theory, as long as Congress appropriates money,

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Speaker 1: there's nothing inherently unconstitutional about using the military on the border,

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Speaker 1: creating military zones that are enlarged beyond the norm. That's

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Speaker 1: kind of a gray area of the law. But I

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Speaker 1: think the courts will probably rule in the favor of

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Speaker 1: the administration on that one, and I could understand why.

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Speaker 1: But if you couple that with what happens in Los

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Speaker 1: Angeles and what's happening in Washington, d C. Then it

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Speaker 1: becomes worrisome.

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Speaker 2: Explain why Washington, DC is different from LA or any

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Speaker 2: other city.

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Speaker 1: So if you take Washington, d C, it's not a state.

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Speaker 1: Home rule was established by the Congress of the United

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Speaker 1: States in nineteen seventy three. So some fifty two years ago,

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Speaker 1: go Washington, d C. Obtained a degree of home rule

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Speaker 1: where they elect a mayor, and we have a very popular,

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Speaker 1: democratically elected mayor in Muriel Bowser. You have a democratically

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Speaker 1: appointed chief of police. The people in Washington, d C.

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Speaker 1: Are largely confident based on their voting patterns in both

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Speaker 1: the mayor and the chief of police, and crime is

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Speaker 1: going down. Now. The president is the commander in chief

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Speaker 1: of the DC National Guard. He doesn't have to go

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Speaker 1: through the governors to activate the DC National Guard. He

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Speaker 1: can do that. The president, in theory, could run the

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Speaker 1: police force from the Attorney General of the United States

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Speaker 1: or the Homeland Security Department, or from the White House

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Speaker 1: itself for abbreviated periods of time. In theory, if there's

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Speaker 1: an emergency or a need to do so, there is

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Speaker 1: no spike in crime or vast amounts of lawlessness of

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Speaker 1: a violent nature in Washington, d c. That would justify this,

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Speaker 1: And it'll fall to the courts to make a determination

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Speaker 1: as to whether there even has to be an emergency

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Speaker 1: to justify what the president is doing in this or not.

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Speaker 1: But the rhetoric behind it is troubling because it reminds

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Speaker 1: me of something that the Supreme Court decided in a

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Speaker 1: very famous and important case on presidential authority known as

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Speaker 1: the Youngs down Sheet and Tube case, and it has

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Speaker 1: to do with Harry Truman ordering the seizure of steel

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Speaker 1: mills in the United States during the Korean War when

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Speaker 1: Congress didn't act to authorize it, and Justice William O.

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Speaker 1: Douglas said, if a president can routinely declare when an

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Speaker 1: emergency exists without the oversight of Congress, or without a

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Speaker 1: real emergency that's apparent to the people of the United

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Speaker 1: States and the Congress of the United States, then we'll

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Speaker 1: never hear the end of presidents declaring one emergency after

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Speaker 1: another to get their way and do an ind run

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Speaker 1: on the law. And I think that's what's happening Washington

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Speaker 1: DC right now. In point of fact, the biggest crime

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Speaker 1: wave in Washington DC that we've seen in the last

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Speaker 1: couple of decades occurred on January the sixth, twenty twenty one.

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Speaker 1: And yet the President did not exercise his authority as

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Speaker 1: commander in chief to call out the guard or federalize

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Speaker 1: the police at that moment. So why is he doing that? Well,

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Speaker 1: probably to suit political and to appear as a strong man,

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Speaker 1: and it's to push the boundaries of the law. Keeping

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Speaker 1: in mind that he does have certain authorities to do

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Speaker 1: it that he does not have in places like Los Angeles,

439
00:26:35,160 --> 00:26:38,320
Speaker 1: where the Tenth Amendment reserves quite a bit of power

440
00:26:38,440 --> 00:26:40,200
Speaker 1: to the state governments.

441
00:26:40,680 --> 00:26:44,879
Speaker 2: Is LA a test case because about a month ago, Trump,

442
00:26:44,960 --> 00:26:49,400
Speaker 2: while in the Oval Office, talked about taking action if

443
00:26:49,720 --> 00:26:54,000
Speaker 2: Zoran Mandami was elected as mayor of New York.

444
00:26:54,960 --> 00:26:55,520
Speaker 1: I used to.

445
00:26:55,440 --> 00:27:01,120
Speaker 7: Say, we will not ever be a socialist count. Well,

446
00:27:01,320 --> 00:27:04,600
Speaker 7: I'll say it again, We're not going to have if

447
00:27:04,640 --> 00:27:08,960
Speaker 7: a communist gets elected to run New York it can

448
00:27:09,000 --> 00:27:11,560
Speaker 7: never be the same. But we have tremendous power at

449
00:27:11,560 --> 00:27:14,879
Speaker 7: the White House to run places when we have to,

450
00:27:15,160 --> 00:27:16,000
Speaker 7: we can run DC.

451
00:27:16,920 --> 00:27:19,720
Speaker 1: Here's the problem with that rhetoric, and it's the same

452
00:27:19,800 --> 00:27:25,240
Speaker 1: problem that Homeland Security Secretary Nomes said, and I'm paraphrasing

453
00:27:25,280 --> 00:27:28,680
Speaker 1: her about why the Guard is going into Los Angeles.

454
00:27:28,680 --> 00:27:33,119
Speaker 1: She said, it's there basically to affect political change. And

455
00:27:33,600 --> 00:27:36,640
Speaker 1: that's you know, Trump's threat in regard to New York.

456
00:27:37,400 --> 00:27:40,879
Speaker 1: I can't help but think it's more than a coincidence.

457
00:27:40,880 --> 00:27:43,159
Speaker 1: But at the very time, in the United States District

458
00:27:43,200 --> 00:27:47,960
Speaker 1: Court judge in California is ruling on the constitutionality of

459
00:27:48,040 --> 00:27:53,479
Speaker 1: Trump federalizing the National Guard without going through the governor first,

460
00:27:53,640 --> 00:27:57,760
Speaker 1: and perhaps in violation of the Possi Commatatis Act, that

461
00:27:58,000 --> 00:28:00,920
Speaker 1: the National Guard is being federalized in Washington, d C.

462
00:28:01,359 --> 00:28:05,080
Speaker 1: It's as if to tell the judge in California, you

463
00:28:05,160 --> 00:28:08,040
Speaker 1: don't matter. I'm the boss here, and I want to

464
00:28:08,080 --> 00:28:10,760
Speaker 1: harken back on these threats to a time that we

465
00:28:10,800 --> 00:28:15,960
Speaker 1: don't really study much anymore in our constitutional law classes

466
00:28:16,000 --> 00:28:18,760
Speaker 1: in law school or even in high school history and

467
00:28:18,880 --> 00:28:22,440
Speaker 1: why the framers of the Constitution constructed a document as

468
00:28:22,480 --> 00:28:25,960
Speaker 1: they did, and what their fear of standing armies was.

469
00:28:26,680 --> 00:28:30,160
Speaker 1: They were very well aware that in Britain one hundred

470
00:28:30,280 --> 00:28:33,240
Speaker 1: or so years earlier, at the time of Oliver Cromwell,

471
00:28:33,680 --> 00:28:38,880
Speaker 1: that when Cromwell's forces overthrew King Charles and there were

472
00:28:38,920 --> 00:28:42,560
Speaker 1: important votes being taken in Parliament about what kind of

473
00:28:42,600 --> 00:28:46,000
Speaker 1: government to have, what to do with to depose King Charles,

474
00:28:46,400 --> 00:28:50,720
Speaker 1: the army of Oliver Cromwell, parts of it marched into

475
00:28:50,800 --> 00:28:54,880
Speaker 1: Parliament and kept those middle of the road members of

476
00:28:54,920 --> 00:28:58,320
Speaker 1: Parliament from voting on those key issues. And it was

477
00:28:58,400 --> 00:29:02,680
Speaker 1: called Pride's Purge, named after major prior to who led

478
00:29:02,800 --> 00:29:07,040
Speaker 1: cromwell soldiers to stop Parliament from voting. Shortly after that,

479
00:29:07,200 --> 00:29:10,080
Speaker 1: the government of Oliver Cromwell was dubbed the Reign of

480
00:29:10,120 --> 00:29:14,840
Speaker 1: the Major Generals. It was by all instances of military state,

481
00:29:15,080 --> 00:29:20,240
Speaker 1: and it ignored the Magna Carta other documents of important,

482
00:29:20,320 --> 00:29:23,920
Speaker 1: you know, basis of liberty which we cherished today, particularly

483
00:29:24,000 --> 00:29:29,720
Speaker 1: the Magna Carta. So when Madison and Jefferson and Adams

484
00:29:29,720 --> 00:29:32,800
Speaker 1: and the other bright minds that led the United States

485
00:29:32,800 --> 00:29:36,760
Speaker 1: to the War of Independence constructed the document after you know,

486
00:29:36,760 --> 00:29:39,960
Speaker 1: it was clear the Articles of Confederation had failed the

487
00:29:40,000 --> 00:29:43,400
Speaker 1: people of the United States. They constructed a document that

488
00:29:43,480 --> 00:29:47,360
Speaker 1: tried to reign in as much military authority as possible

489
00:29:47,480 --> 00:29:50,480
Speaker 1: from the president by keeping the army very, very small

490
00:29:51,160 --> 00:29:54,040
Speaker 1: and out on the borders and warning about the fear

491
00:29:54,080 --> 00:29:57,080
Speaker 1: of standing armies, to never allow that to happen again,

492
00:29:57,400 --> 00:29:59,760
Speaker 1: not in this country. And you can read letters from

493
00:30:00,000 --> 00:30:03,239
Speaker 1: Adams and Jefferson and Madison and the men in the

494
00:30:03,240 --> 00:30:07,280
Speaker 1: States that voted to ratify the Constitution on that point.

495
00:30:07,840 --> 00:30:11,960
Speaker 1: That was one of the most important features in creating

496
00:30:12,000 --> 00:30:15,600
Speaker 1: the Constitution of the United States. And it seems to

497
00:30:15,640 --> 00:30:18,560
Speaker 1: me that if you take a look at what you know,

498
00:30:18,680 --> 00:30:23,080
Speaker 1: Secretary Nomes said about calling up forces in Los Angeles,

499
00:30:23,640 --> 00:30:27,000
Speaker 1: or Trump's threats about, you know, taking over the city

500
00:30:27,040 --> 00:30:30,920
Speaker 1: of New York, it's the very type of you know,

501
00:30:31,080 --> 00:30:35,840
Speaker 1: Cromwellian dictatorial move that was assured by the framers of

502
00:30:35,840 --> 00:30:39,440
Speaker 1: the Constitution would not happen in this country. You know,

503
00:30:39,440 --> 00:30:42,240
Speaker 1: when I've made this comment on the local news, I'll

504
00:30:42,280 --> 00:30:45,320
Speaker 1: occasionally get hate mail like what are you a Marxist?

505
00:30:45,360 --> 00:30:48,960
Speaker 1: Are you anti American? And my answer to that is no,

506
00:30:49,400 --> 00:30:55,400
Speaker 1: I am simply reiterating what those freedom fighters, Jefferson, Adams,

507
00:30:55,480 --> 00:31:00,600
Speaker 1: Madison warned about in creating the document. It's not a

508
00:31:00,680 --> 00:31:04,240
Speaker 1: radical idea to speak of the fear of standing armies.

509
00:31:04,360 --> 00:31:06,920
Speaker 1: To the contrary, it's an idea that goes into the

510
00:31:06,960 --> 00:31:12,680
Speaker 1: heart of what makes American liberty exceptional. It is that

511
00:31:12,720 --> 00:31:15,320
Speaker 1: we do not govern by the military. We do not

512
00:31:15,560 --> 00:31:19,920
Speaker 1: use the military to corral the political behavior of the votes,

513
00:31:20,280 --> 00:31:24,760
Speaker 1: the abilities of democratically elected people we disagree with from

514
00:31:24,800 --> 00:31:27,520
Speaker 1: doing what the voter sent them to office to do.

515
00:31:28,480 --> 00:31:28,600
Speaker 3: So.

516
00:31:28,760 --> 00:31:32,880
Speaker 2: Now, he said today that he's going to be asking

517
00:31:32,960 --> 00:31:37,320
Speaker 2: for extensions on the thirty days, and he said, I

518
00:31:37,320 --> 00:31:40,960
Speaker 2: think the Republicans in Congress will approve this pretty much unanimously.

519
00:31:41,800 --> 00:31:44,880
Speaker 2: And he also said he wants a crime bill that

520
00:31:44,920 --> 00:31:49,240
Speaker 2: will initially apply to DC, but then to other cities.

521
00:31:50,440 --> 00:31:54,240
Speaker 1: What I would say about that is, if Republicans were

522
00:31:54,240 --> 00:31:56,920
Speaker 1: to listen, if I were to be advising them, I

523
00:31:56,920 --> 00:32:00,560
Speaker 1: would remind them that any law they passed today can

524
00:32:00,600 --> 00:32:04,680
Speaker 1: be used by any future president with the flexibility that

525
00:32:04,760 --> 00:32:07,800
Speaker 1: President Trump seeks. You would only vote for this kind

526
00:32:07,840 --> 00:32:12,120
Speaker 1: of a law if you believe that in the decades ahead,

527
00:32:12,240 --> 00:32:16,640
Speaker 1: you will only have Republicans like President Trump with his

528
00:32:16,800 --> 00:32:20,920
Speaker 1: ideology sitting in the White House. Because otherwise, these kinds

529
00:32:20,920 --> 00:32:26,480
Speaker 1: of laws are disastrous for a democratic society that permits

530
00:32:26,560 --> 00:32:30,600
Speaker 1: people to freely vote for the changes or the continuance

531
00:32:30,800 --> 00:32:34,880
Speaker 1: of government as they see fit. And so, you know,

532
00:32:35,200 --> 00:32:38,240
Speaker 1: I go back to the House on American Activities. Example,

533
00:32:38,280 --> 00:32:41,960
Speaker 1: it comes up under Roosevelt's administration during the New Deal,

534
00:32:42,520 --> 00:32:45,560
Speaker 1: and it's designed to focus on Nazi influences in the

535
00:32:45,680 --> 00:32:49,320
Speaker 1: United States, and the Democrats beliefully pass it, but within

536
00:32:49,360 --> 00:32:51,920
Speaker 1: a half of a decade of its passage, it's being

537
00:32:51,960 --> 00:32:55,360
Speaker 1: turned on liberal Americans who are accused of Communist sympathies

538
00:32:55,360 --> 00:32:58,760
Speaker 1: and communist fies. And you don't vote for the very

539
00:32:58,800 --> 00:33:03,520
Speaker 1: thing that Trump is askedoking for unless you are somehow

540
00:33:03,800 --> 00:33:07,720
Speaker 1: absolutely assured through your magic eight ball that you will

541
00:33:07,760 --> 00:33:11,440
Speaker 1: always have your guy sitting in the White House. And

542
00:33:11,480 --> 00:33:13,800
Speaker 1: you're not. You can't have that kind of assurance.

543
00:33:14,760 --> 00:33:20,000
Speaker 2: Also, the Washington Post is reporting, according to internal Pentagon

544
00:33:20,160 --> 00:33:25,000
Speaker 2: documents reviewed by them, that the Trump administration is evaluating

545
00:33:25,080 --> 00:33:28,920
Speaker 2: plans that would establish a quote domestic civil disturbance quick

546
00:33:28,960 --> 00:33:32,800
Speaker 2: Reaction Force composed of six hundred National Guard troops to

547
00:33:32,840 --> 00:33:35,960
Speaker 2: be on standby at all times so they can be

548
00:33:36,040 --> 00:33:40,080
Speaker 2: deployed in as little as an hour to American cities

549
00:33:40,160 --> 00:33:43,520
Speaker 2: facing protests or other unrest.

550
00:33:43,800 --> 00:33:46,640
Speaker 1: I have a suspicion that those documents may have been

551
00:33:46,680 --> 00:33:50,920
Speaker 1: deliberately leaked for two reasons. One is, this is not

552
00:33:51,360 --> 00:33:55,520
Speaker 1: the first time a presidential administration that's had internal documents

553
00:33:55,720 --> 00:33:59,560
Speaker 1: that speak to this issue. That happened in the Nixon administration,

554
00:34:00,080 --> 00:34:05,720
Speaker 1: but in the Johnson administration. Neither presidency actually had those

555
00:34:05,800 --> 00:34:09,239
Speaker 1: plans in effect when they came in. But I think

556
00:34:09,320 --> 00:34:12,600
Speaker 1: that they're probably hoping that the media makes an error

557
00:34:12,600 --> 00:34:15,840
Speaker 1: and says this is unprecedent, it's never happened before. Having

558
00:34:15,920 --> 00:34:20,080
Speaker 1: said that, we need to take cognizance and embrace this

559
00:34:20,239 --> 00:34:24,600
Speaker 1: concept of the lessons of history. It's perfectly fine to

560
00:34:24,719 --> 00:34:29,760
Speaker 1: have a military force that's trained to respond to national emergencies,

561
00:34:29,920 --> 00:34:35,000
Speaker 1: you know, natural disasters and foreign invasion, cyber attacks and

562
00:34:35,040 --> 00:34:38,840
Speaker 1: things like that. If we don't, then we're not having

563
00:34:38,840 --> 00:34:42,919
Speaker 1: the military that we need. But having said that, if

564
00:34:42,960 --> 00:34:46,600
Speaker 1: the Republicans in Congress Robert stamp this type of thing

565
00:34:46,760 --> 00:34:51,520
Speaker 1: by funding it, by voting for extensions of presidential authority

566
00:34:51,520 --> 00:34:55,880
Speaker 1: and undermining DC home rule, then essentially what they're doing

567
00:34:56,000 --> 00:34:59,040
Speaker 1: is they're taking a step stone back to that you

568
00:34:59,080 --> 00:35:02,680
Speaker 1: know place that the framers of the Constitution warned we

569
00:35:02,680 --> 00:35:07,360
Speaker 1: should never go. And I would hope that that enough

570
00:35:07,960 --> 00:35:11,960
Speaker 1: people on both sides of the aisle on ideologies ranging

571
00:35:12,000 --> 00:35:15,680
Speaker 1: from libertarianism to the far left, they take a step

572
00:35:15,719 --> 00:35:19,160
Speaker 1: back and they say, no, you can't do this. This

573
00:35:19,320 --> 00:35:22,080
Speaker 1: is not why we elected you into the White House,

574
00:35:22,120 --> 00:35:25,040
Speaker 1: this is not why we elected you to Congress. You

575
00:35:25,120 --> 00:35:29,000
Speaker 1: cannot just willie nilly say there's an emergency here, and

576
00:35:29,040 --> 00:35:31,600
Speaker 1: there's an emergency there, and I'm going to enforce my

577
00:35:32,280 --> 00:35:34,239
Speaker 1: will for the presence of the military.

578
00:35:35,080 --> 00:35:37,240
Speaker 2: Well, I think it's going to be important to see

579
00:35:37,719 --> 00:35:41,319
Speaker 2: how Judge Brier rules in the trial over the Trump

580
00:35:41,360 --> 00:35:46,360
Speaker 2: administration deploying the National Guard and Marines to Los Angeles.

581
00:35:46,680 --> 00:35:50,440
Speaker 2: Thanks so much, josh Best, Professor Joshua Castenberg of the

582
00:35:50,560 --> 00:35:54,279
Speaker 2: University of New Mexico Law School. And that's it for

583
00:35:54,320 --> 00:35:56,960
Speaker 2: this edition of The Bloomberg Law Show. Remember you can

584
00:35:57,000 --> 00:36:00,000
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.

585
00:36:00,480 --> 00:36:03,520
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

586
00:36:03,680 --> 00:36:08,719
Speaker 2: www dot Bloomberg dot com, Slash podcast, Slash Law, And

587
00:36:08,800 --> 00:36:11,840
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

588
00:36:11,920 --> 00:36:15,400
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and

589
00:36:15,440 --> 00:36:16,920
Speaker 2: you're listening to Bloomberg