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

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Speaker 2: More than two hundred thousand people have been denied gun

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Speaker 2: permits since nineteen ninety eight because of drug use. But

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Speaker 2: now the Supreme Court will consider the constitutionality of the

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Speaker 2: federal law that bans firearm possession by drug users and addicts.

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Speaker 2: It's the law Hunter Biden was convicted of violating, but

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Speaker 2: the Fifth Circuit Court of Appeals has concluded that the

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Speaker 2: gun ban can't be applied to people unless they're using

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Speaker 2: illegal substances at the same time they're found in possession

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Speaker 2: of a firearm. My guest is Andrew Willinger, Executive director

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Speaker 2: of the Duke Center for Firearms Law. Andrew tell us

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Speaker 2: about the federal law at issue here in the Harmani case.

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Speaker 1: This section of federal law might sound familiar to people

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Speaker 1: who have been following the court It's second Amendment ures

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Speaker 1: prudence over the past couple of years. This lists groups

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Speaker 1: of people who, because of their status, are prohibited under

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Speaker 1: federal law from possessing firearms or ammunition, and one of

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Speaker 1: those groups was an issue in the Rahimi case. That's

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Speaker 1: individuals who are subject to a domestic violence restraining order

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Speaker 1: that meets certain criteria, but there are other groups as well,

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Speaker 1: felons for example, and then, as relevant to the Harmani case,

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Speaker 1: individuals who are considered unlawful users of or addicted to

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Speaker 1: a controlled substance. So that's the specific revision of federal

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Speaker 1: criminal law that's an issue in this case is a

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Speaker 1: ban on unlawful drug users possessing firearms.

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Speaker 2: The Fifth Circuit found that a blanket ban is unconstitutional,

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Speaker 2: but said the ban could be used against people accused

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Speaker 2: of being high and armed at the same time. Explain

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Speaker 2: the logic of that.

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Speaker 1: It is a little bit confusing because there really isn't

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Speaker 1: lengthy decision because the Circuit had decided in an earlier

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Speaker 1: case called Connolly, and all the judges said in this

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Speaker 1: specific case is that you know, we're applying our ruling

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Speaker 1: in Connolly and therefore find that as applied to this

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Speaker 1: individual Harmioni, the provision is also unconstitutional. But basically, the

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Speaker 1: approach that the Fifth Circuit has taken in these drug

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Speaker 1: cases is to say that, as a historical matter, that

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Speaker 1: judges believe that their support for applying this provision when

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Speaker 1: somebody is under the influence of drugs and at the

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Speaker 1: same time in possession of guns or ammunition. But when

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Speaker 1: there's no proof that those two things were contemporaneous, that

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Speaker 1: they occurred at the same time, then the judges have

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Speaker 1: said that the provision cannot be applied, and that's what

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Speaker 1: they decided in the Harmonic case.

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Speaker 2: So the Justice Department is arguing that the law is valid.

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Speaker 2: So they're arguing, then, for a law that restricts Second

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Speaker 2: Amendment rights.

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Speaker 1: That's right. Yeah, it's a little bit of an interesting posture.

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Speaker 1: But again, I think what this comes back to is

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Speaker 1: the distinction between a facial challenge and it has applied challenge.

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Speaker 1: So the Hamani case deals with an as applied challenge

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Speaker 1: and the government is saying, you know, we think the

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Speaker 1: Fifth Circuit got it wrong, but on these specific facts.

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Speaker 1: So I think it's going to be a little bit

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Speaker 1: of a delicate dance throughout this case as it works

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Speaker 1: its way through the briefing and the oral argument before

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Speaker 1: the Supreme Court, where I actually don't think that the

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Speaker 1: current administration believes that nine twenty two G three has

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Speaker 1: the language has been interpreted, is constitutional in all of

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Speaker 1: its applications, right. I don't know that they would say

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Speaker 1: that this is constitutional as applied to somebody who's just

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Speaker 1: you know, using marijuana on a regular basis. But they

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Speaker 1: want to say in this case because there are maybe

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Speaker 1: exacerbating factors not just marijuana. There's potentially other legal drugs

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Speaker 1: at issue, and there's a connection allegedly to foreign terrorism

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Speaker 1: that's not really relevant to the to the Second Amendment.

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Speaker 1: But they're going to, i think, focus a lot on

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Speaker 1: the as applied nature and on the specific facts of

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Speaker 1: this case.

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Speaker 2: The Supreme Court in twenty twenty two, in the Bruin case,

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Speaker 2: ruled that any restrictions on firearms have to be consistent

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Speaker 2: with the nation's historical tradition of firearms regulation. What is

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Speaker 2: the history and tradition that the government is saying supports

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Speaker 2: their position here?

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Speaker 1: The government, at least below in these cases in the

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Speaker 1: Fifth Circuit has basically rested on three categories of historical

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Speaker 1: statutes or restrictions. So the first is the historical treatment

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Speaker 1: of the mentally ill, and that's sort of an argument

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Speaker 1: that maybe drug users are analogous in some way to

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Speaker 1: those who are mentally ill, that it's some form of

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Speaker 1: a temporary incapacitation. The second is more generally just laws

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Speaker 1: that we're based on a legislative determination that some group

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Speaker 1: of people is dangerous and we're not going to allow

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Speaker 1: them to have guns. And then the third is and

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Speaker 1: this kind of you know, goes in sequential order. You know,

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Speaker 1: the mental illness and the dangerousness laws are earlier, and

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Speaker 1: then eventually you start to see laws that talk about

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Speaker 1: alcohol and being intoxicated with alcohol, and those are also

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Speaker 1: a category that the government has come forward with in

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Speaker 1: these cases. And again, I think for each one, you know,

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Speaker 1: it's going to depend on this level of generality issue

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Speaker 1: that courts have really been wrestling with under Bruin, which

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Speaker 1: is how close do the historical statutes really need to

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Speaker 1: be in order to uphold the modern law.

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Speaker 2: So the historical statutes go back to the eighteenth century

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Speaker 2: when the Second Amendment was ratified, do they also go

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Speaker 2: back to the nineteenth century? I mean, what does the

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Speaker 2: court consider an acceptable period of time for these historical comparisons.

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Speaker 1: Yeah, Well, that's one of the really interesting aspects of

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Speaker 1: these cases that the Court has granted now, which is

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Speaker 1: that in some sense there are narrow questions, but I

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Speaker 1: think in the background, you have this doctrinal uncertainty, and

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Speaker 1: we're going to start to get some clues about questions

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Speaker 1: like the one you raise, which is what's even the

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Speaker 1: time period right? How far back do you go? You know,

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Speaker 1: if something's enacted in the nineteenth century, is that too new?

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Speaker 1: Like does that not really inform the original meaning of

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Speaker 1: the Second Amendment? In the Bruin case, the court seems

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Speaker 1: to at least leave the door open to considering historical

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Speaker 1: laws anywhere from around the time of the founding all

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Speaker 1: the way up through about nineteen hundred. But there's really

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Speaker 1: been a divergence in the courts of appeal in terms

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Speaker 1: of what courts have done with this later in time

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Speaker 1: history and how much emphasis they're putting on reconstruction era history,

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Speaker 1: and that's going to come up I think in these cases.

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Speaker 2: Actually, to me, this illustrates the problems with originalism making

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Speaker 2: comparisons to a time when the laws we're dealing with muskets.

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Speaker 2: But I digress. So Andrew tell us about the defendants'

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Speaker 2: arguments here.

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Speaker 1: It's really an argument for this contemporaneousness requirement. So the

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Speaker 1: argument is that the historically correct way to think about

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Speaker 1: this type of prohibition is that legislatures had the power

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Speaker 1: to say if you are actively under the influence of

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Speaker 1: some intoxicating substance and you're not acting in your right

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Speaker 1: mind at that point in time. You can be prohibited

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Speaker 1: from having guns. But otherwise just sort of evidence that

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Speaker 1: you may have used drugs in the past isn't enough,

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Speaker 1: And I think that's what they're going to say here.

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Speaker 1: There probably also will be a lot of back and

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Speaker 1: forth about how much work these other facts are doing.

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Speaker 1: You know, the connection to the terrorist organization, you know,

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Speaker 1: that shouldn't really be relevant. But I think what's happened.

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Speaker 1: You mentioned the Hunter Biden case. You know, the federal

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Speaker 1: government doesn't charge this provision a lot, so they tend

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Speaker 1: to charge it in sort of egregious cases. Do you

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Speaker 1: know Hunter Biden, He's not just somebody who's using marijuana

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Speaker 1: and happens to have a gun. He's going out and

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Speaker 1: writing about more where he admits to this type of conduct.

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Speaker 1: So I think there will be some discussion of the

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Speaker 1: sort of how the provisions actually used, with the government

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Speaker 1: maybe saying, look, we're not intending to really bring this

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Speaker 1: type of charge. You know, if somebody's just without any

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Speaker 1: aggravating circumstance occasionally using marijuana.

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Speaker 2: Last year, the court did upoll the federal law that

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Speaker 2: bars firearm possession by people under domestic violence restraining orders,

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Speaker 2: even though there was no historical comparison. That was a

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Speaker 2: reversal of the Fifth Circuit. Do you think that's where

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Speaker 2: the justices are going with this case, that they took

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Speaker 2: it to reverse the Fifth Circuit?

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Speaker 1: Yeah, so my best guess is that they did that.

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Speaker 1: They took it tending to reverse the Fifth Circuit. I

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Speaker 1: think actually it could be close to unanimous decision again

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Speaker 1: resting on this facial versus as applied issue, which was

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Speaker 1: a similar issue in the Rahemi case, right where they're

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Speaker 1: sort of getting these cases with bad facts and saying, look,

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Speaker 1: has applied here, this provision's okay. But we're not necessarily

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Speaker 1: going to say that the unlawful user ban is okay

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Speaker 1: if somebody is just a medical marijuana user and has

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Speaker 1: a gun. So that would be my guest that they'll

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Speaker 1: reverse here.

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Speaker 2: This is one of two Second Amendment cases the Court

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Speaker 2: is going to hear this term. Earlier this month, they

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Speaker 2: said they'll hear a challenge to a Hawaii law that

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Speaker 2: bars people from bringing firearms to mall stores and other

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Speaker 2: private property without the owner's express permission, so tell us

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Speaker 2: about this law, which is similar to laws in other states.

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Speaker 1: In the year or two after that Brewin decision which

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Speaker 1: set out this new test and also ruled that discretionary

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Speaker 1: concealed carry permitting was unconstitutional. So in other words, basically

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Speaker 1: said that states that had these stricter laws for determining

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Speaker 1: whether somebody can have a concealed carry permit had to

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Speaker 1: relax them. And so the you know, six or eight

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Speaker 1: states that had those laws reacted ultimately by enacting new statutes,

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Speaker 1: but they also instituted new application requirements, and they restricted

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Speaker 1: where permit holders can carry their guns. And so typically

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Speaker 1: what these laws look like and what they look like

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Speaker 1: in New York, California and then Hawaii was that they

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Speaker 1: would have a long list of what's called sensitive places,

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Speaker 1: so locations where guns are absolutely prohibited. You can't carry

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Speaker 1: your firearm in a school, a government building, and a

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Speaker 1: courthouse and so on. And then a few states also did,

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Speaker 1: as Hawaii did what you can think of as switching

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Speaker 1: the default rule for private property. So the default has

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Speaker 1: always been that you are allowed to carry a firearm

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Speaker 1: onto private property unless you are told otherwise. I think

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Speaker 1: about businesses posting a sign that says no guns allowed.

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Speaker 3: Right.

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Speaker 1: That's why they do that, because they have to specify

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Speaker 1: if they don't want people to carry. But what these

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Speaker 1: states have done is to say, we're going to flip

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Speaker 1: that and we're going to make the default that no

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Speaker 1: carry is allowed. And if a business, for example, would

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Speaker 1: like to allow a permit holder to carry their gun,

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Speaker 1: they need to post a sign or otherwise say yes,

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Speaker 1: you're allowed to do that. But as a default that

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Speaker 1: they do nothing, a permit holder is not allowed to

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Speaker 1: carry there.

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Speaker 2: And the Court hasn't scheduled either of these cases for

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Speaker 2: argument yet. Thanks Andrew. That's Andrew Willinger of the Duke

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Speaker 2: Center for Firearms Law. A note. Michael Bloomberg, the founder

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Speaker 2: majority owner of Bloomberg LP, the parent of Bloomberg Radio,

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Speaker 2: is a donor to groups that support gun control, including

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Speaker 2: Every Town for Gun Safety. Coming up next, the Supreme

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Speaker 2: Court questions when police can enter a home without a

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Speaker 2: warrant during an emergency. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg.

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Speaker 4: If the police could not enter this house based on

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Speaker 4: the facts that they knew, then I don't know when

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Speaker 4: the police are ever going to be able to enter

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Speaker 4: a house to prevent somebody from committing suicide.

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Speaker 2: Police didn't have a warrant when they entered the home

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Speaker 2: of an army veteran in Montana, but they weren't there

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Speaker 2: to arrest William Trevor Case. They were there to help him.

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Speaker 2: His ex girlfriend said that Case had threatened suicide and

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Speaker 2: had a loaded handgun. The police knocked, they yelled, They

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Speaker 2: waited forty minutes, and then they went in. The question

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Speaker 2: before the Supreme Court is what's the standard for police

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Speaker 2: entering a home in an emergency. Justices from across the

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Speaker 2: ideological spectrum suggested that the officers were right to go

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Speaker 2: in in this case. Here are Justices Samuel Alito and

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Speaker 2: Katanji Brown Jackson.

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Speaker 4: What more would they need here? They need to be

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Speaker 4: able to look through the window and see him with

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Speaker 4: a gun and pointed to his head, or they need

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Speaker 4: to see a dead body or before what more did

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Speaker 4: they need?

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Speaker 5: This person had a long history of threatening suicide, whether

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Speaker 5: it be by cop or whether it be on his

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Speaker 5: own or whatever. We have a long conversation detailed specific

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Speaker 5: with the girlfriend about circumstances that look like they're creating

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Speaker 5: a pretty significant emergency.

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Speaker 2: And justice Brett Kavanaugh questioned Case's attorney about the alternative scenario.

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Speaker 1: Well, if they, after deliberations, walk away and he commits suicide,

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Speaker 1: I mean, what do you think? And then if the officers,

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Speaker 1: that would be unfortunate and tragic. But we are trying

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Speaker 1: to strike a balance between them and the officers need

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Speaker 1: some clarity, I would think in circumstances like this about

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Speaker 1: what they can do and what they can't do.

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Speaker 2: But there was no such clarity by the end of

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Speaker 2: the arguments. Joining me is former federal prosecutor Robert Mintz,

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Speaker 2: a partner maccarter in English, Bob, So, police normally need

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Speaker 2: a warrant to enter home, but there are some emergency

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Speaker 2: situations that are exceptions. Tell us about though.

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Speaker 6: There is a so called Emergency Aid exception to the

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Speaker 6: Fourth Amendment, which allows police officers to conduct a warrantless

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Speaker 6: search if they have reasonable suspicion that there is an

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Speaker 6: emergency and an immediate need to protect others or themselves

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Speaker 6: from harm.

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Speaker 2: And tell us about the facts here. Because Case ended

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Speaker 2: up being convicted of assaulting a police officer.

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Speaker 6: The defendant in this case, William Trevor Case, was an

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Speaker 6: army veteran who had a girlfriend who contacted police suggesting

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Speaker 6: that mister Case might be suicidal. Officers arrived at mister

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Speaker 6: Case's house around nine pm, and they were familiar with

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Speaker 6: his history of alcohol abuse and certain mental health issues.

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Speaker 6: The ex girlfriend had told police that mister Case had

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Speaker 6: a loaded gun. He had threatened to harm police if

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Speaker 6: she tried to send officers to his home, and she

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Speaker 6: claimed before she hung up with the police that she

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Speaker 6: had heard a pop and then silence and was concerned

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Speaker 6: that mister Case had actually the trigger. The officers arrived

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Speaker 6: at mister Case's door, they yelled they shine flashlights through

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Speaker 6: the windows. They could see empty beer cans, an empty handgun, holster,

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Speaker 6: and a notepad with handwriting, which the officers believed at

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Speaker 6: the time was a.

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Speaker 7: Possible suicide note.

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Speaker 6: After about forty minutes, they entered through the unlocked front door,

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Speaker 6: and when they went upstairs they saw a closet curtain open.

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Speaker 6: Mister Case lunged forward, his armed outstretched with what officers.

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Speaker 7: Believed was a handgun.

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Speaker 6: The officer fired one shot, striking mister Case and the abdomen.

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Speaker 6: It turned out the handgun was found in a nearby

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Speaker 6: laundry basket. The issue with trial, then, was when the

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Speaker 6: defense tried to exclude the gun and other evidence of

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Speaker 6: the confrontation from the trial.

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Speaker 7: The trial judge overruled.

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Speaker 6: That defense and allowed the prosecution to present it to

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Speaker 6: the jury, and he was convicted after a trial.

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Speaker 2: It seemed like the police had a lot of reasons

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Speaker 2: to go in. How much more did the defense think

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Speaker 2: they should have before they entered the house.

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Speaker 6: To put this in context, the Fourth Amendment of the

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Speaker 6: Constitution prohibits unreasonable searches and provides protections for a person's

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Speaker 6: home by generally prohibiting law enforcement from entering without a

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Speaker 6: warrant that is really set up in order to allow

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Speaker 6: people to have privacy in their home in the context

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Speaker 6: of a possible criminal case. The question that was facing

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Speaker 6: justices in this case is what level of certainty must

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Speaker 6: police have that an emergency is underway before entering a

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Speaker 6: home without a warrant. Mister Case's lawyers argued that it

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Speaker 6: should be a high bar. They argue that it should

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Speaker 6: be something called probable cause, which is what police officers

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Speaker 6: need in order to get a warrant to search your

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Speaker 6: home in the case of a criminal investigation. But here

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Speaker 6: this was not a criminal investigation. This was a circumstance

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Speaker 6: in which they believe that there was an emergency and

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Speaker 6: there was someone's life at risk inside the house. So

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Speaker 6: the question is what is the level of certainty that

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Speaker 6: police officers need to have in order to enter the

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Speaker 6: home without warrant? And the defense argued that that level

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Speaker 6: of certainty in order to avoid needless and dangerous confrontations

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Speaker 6: and to prevent police officers from circumventing the concept of

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Speaker 6: probable cause, that there has to be probable cause that

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Speaker 6: they believe that there is an emergency and that somebody

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Speaker 6: is in imminent danger.

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Speaker 2: The state of Montana and the Trump administration argued that

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Speaker 2: probable cause was too high a standard in these emergency cases.

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Speaker 2: Montana's solicitor general said that a stricter rule of probable

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Speaker 2: cause would quote require police to stand outside a dying

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Speaker 2: man's door. So what standard did they argue for the.

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Speaker 6: Government argued that the justices should rely on A Supreme

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Speaker 6: Court case from two thousand and six was a unanimous

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Speaker 6: opinion in a case called Brigham City versus Stuart, in

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Speaker 6: which the Supreme Court held that police may enter a

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Speaker 6: building without a warrant when they have an objectively reasonable

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Speaker 6: basis to believe that an occupant is seriously injured or

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Speaker 6: threatened with such injury. So in that case, they took

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Speaker 6: it completely out of the context of probable cause, which

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Speaker 6: really has an entire body of case law that talks

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Speaker 6: about when police may enter a home with or without

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Speaker 6: a warrant in the context of a criminal investigation, and

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Speaker 6: said that here we're talking about imminent risk to somebody.

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Speaker 7: It's not a criminal investigation.

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Speaker 6: It's really a circumstance where police officers may come into a.

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Speaker 7: Home in order to arguably save the life of.

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Speaker 6: Somebody or save the life of somebody who may be

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Speaker 6: with somebody who's in danger of hurting them. And in

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Speaker 6: that case the standard is objectively reasonable basis to believe

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Speaker 6: that the occupant is seriously injured or threatened with such injury.

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Speaker 2: It seemed like justice is across the ideological spectrum, thought

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Speaker 2: that the police had good reason to enter here.

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Speaker 6: Yeah, Well, what's interesting here is that the Montana Supreme Court,

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Speaker 6: which is the court that had just heard the case

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Speaker 6: before going to the US Supreme Court, sided with the state.

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Speaker 6: But it was a four to three decision, and there

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Speaker 6: were actually three judges on the Montana Supreme Courts who

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Speaker 6: dissented and said that for a warrantless search to be reasonable,

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Speaker 6: the higher bar of probable cause must apply.

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Speaker 7: And then they went further and added that there was no.

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Speaker 6: Probable cause to believe mister Case was an imminent danger

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Speaker 6: or in need of immediate assistants that would have justified

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Speaker 6: the warrantless.

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Speaker 7: Entry into the home. When the case went to the Supreme.

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Speaker 6: Court and was argued before the Justice is there, there

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Speaker 6: was virtual unanimity that the standard that had been applied

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Speaker 6: by the state was the correct one. First, for example,

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Speaker 6: Justice Thomas noted that the issue of probable cause is

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Speaker 6: a standard that is normally limited to the criminal context.

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Speaker 6: This was not a criminal investigation, and Justice Robert joined

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Speaker 6: in on that to say, when we talk about probable cause,

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Speaker 6: we talk about probable cause that a crime is occurring.

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Speaker 6: What standard would be used here when we're not talking

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Speaker 6: about a crime, but about a risk of injury to somebody.

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Speaker 6: Us Kagan also jumped in, saying that there is a

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Speaker 6: full body of case law out there describing what probable

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Speaker 6: cause is. It's not a self defining term. It has

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Speaker 6: been raised in many cases and there is a full

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Speaker 6: explanation in the criminal context of what constitutes probable cause,

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Speaker 6: but this is something entirely different, and the justices all

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Speaker 6: seemed to go back to the Brigham City versus Stewart

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Speaker 6: case from two thousand and six to say that the

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Speaker 6: standard of objectively reasonable basis for believing if somebody needs

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Speaker 6: emergency help. Is this standard that should apply here, and

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Speaker 6: Justice Alito and Justice Brown agreed, which doesn't happen very often.

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Speaker 6: They both push back on the contention here of the

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Speaker 6: defense lawyer that this was an unreasonable act by police.

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Speaker 6: Justice Alito went so far as to say, if the

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Speaker 6: police couldnot enter the house based on the facts that

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Speaker 6: they knew in this case, then I don't know when

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Speaker 6: police are ever able to go into a house to

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Speaker 6: prevent something from committing suicide. The concern here is that

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Speaker 6: if there is a legal standard of probable cause in

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Speaker 6: order to go in under these emergency situations, that police

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Speaker 6: officers may hesitate to go into a house when somebody's

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Speaker 6: life is at risk, And they seem to weigh more

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Speaker 6: in favor of protecting the life of an individual and

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Speaker 6: allowing police officers more latitude to go in under these

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Speaker 6: circumstances than they were about the privacy concerns of entering

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Speaker 6: a house without a warrant.

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Speaker 2: So do you think that the justices will just announce

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Speaker 2: a standard and that will be the end of the case.

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Speaker 6: If the Supreme Court decides to uphold the lower court,

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Speaker 6: then there was some discussion about what comes next. In

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Speaker 6: other words, there were some justices who said that they

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Speaker 6: should simply rule that the lower court was correct and

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Speaker 6: that the standard of objectively reasonable was properly applied, and

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Speaker 6: that in this case, clearly the fact warranted the police

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Speaker 6: entering the home. Justice Soda Manor and Justice Thomas, on

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Speaker 6: the other hand, argued that it's the normal practice of

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Speaker 6: the court if they're not certain about a standard and

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Speaker 6: state a new standard, that it should.

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Speaker 7: Be sent back to the Montana.

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Speaker 6: Supreme Court to determine whether, based on these facts, that

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Speaker 6: objectively reasonable standard had in fact been satisfied. Justice Alito

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Speaker 6: expressed some concern that in doing that it might suggest

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Speaker 6: to the lower court that.

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Speaker 7: This was in some way a close call.

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Speaker 6: And could, he argued, have some kind of a killing

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Speaker 6: effect on police when they're trying to determine whether to

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Speaker 6: enter a house prevent somebody from committing suicide.

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Speaker 2: And the Supreme Court is usually protective of the expectation

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Speaker 2: of privacy in one's own home. And we should point

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Speaker 2: out here that some civil rights and privacy groups did

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Speaker 2: line up behind the defendant in this case.

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Speaker 6: Mister Case's attorney reminded the justices that police had entered

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Speaker 6: mister Case's home without permission, without a warrant, or without

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Speaker 6: even probable cause, and ended up shooting him in his

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Speaker 6: own home. He argued that the reasonableness standard that the

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Speaker 6: state was suggesting was so vague as to invite.

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Speaker 7: Abuse and confusion by law enforcement.

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Speaker 6: That was essentially the civil rights argument that mister Case's

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Speaker 6: lawyer was arguing, and a number of prominent civil rights

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Speaker 6: organizations came out in favor of the defense, arguing that

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Speaker 6: the warrantless surch here was a violation of the Fourth Amendment,

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Speaker 6: and they were more comfortable with the probable cost standard

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Speaker 6: to allow police to enter a home even in a

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Speaker 6: case where there was an emergency and there was some

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Speaker 6: concern for the safety of an individual inside the home.

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Speaker 2: This is one case this term where it appears you

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Speaker 2: never know, but it appears that we know how it's

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Speaker 2: going to turn out. But we shall see thanks for

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Speaker 2: joining me, Bob. That's former federal prosecutor Robert Mintz of

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Speaker 2: Macarter and English. Coming up next on the Bloomberg Law Show.

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Speaker 2: Why President Trump wants two hundred and thirty million dollars

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00:24:02,280 --> 00:24:06,400
Speaker 2: from the Justice Department And Trump may give you a pardon,

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00:24:06,760 --> 00:24:09,880
Speaker 2: but that doesn't mean the banks will remember. You can

427
00:24:09,960 --> 00:24:12,520
Speaker 2: always get the latest legal news by listening to our

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00:24:12,560 --> 00:24:16,880
Speaker 2: Bloomberg on podcasts wherever you get your favorite podcasts. I'm

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00:24:16,920 --> 00:24:19,480
Speaker 2: June Grosso and you're listening to Bloomberg.

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Speaker 8: Because of everything that we found out, I guess they

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Speaker 8: owe me a.

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Speaker 5: Lot of money.

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Speaker 2: Two hundred and thirty million dollars. That's the amount of

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Speaker 2: money President Donald Trump says he's entitled to as compensation

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Speaker 2: for the investigations into whether his campaign colluded with Russia

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Speaker 2: in the twenty sixteen election and the search of his

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00:24:40,800 --> 00:24:45,320
Speaker 2: mar Lago property for classified documents in twenty twenty two.

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Speaker 2: Trump has filed claims with the Justice Department in that amount,

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Speaker 2: and even he seemed to acknowledge how odd it is

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Speaker 2: that he'll have the final say on his compensation.

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Speaker 5: And uh, you're on that decision.

442
00:24:59,480 --> 00:25:01,600
Speaker 2: You would have to go bruss my desk and it's

443
00:25:01,640 --> 00:25:04,600
Speaker 2: soffully strange to make a decision where I'm paying myself.

444
00:25:05,000 --> 00:25:08,800
Speaker 2: My guest is constitutional law professor Harold Krant Other, Chicago,

445
00:25:08,920 --> 00:25:12,840
Speaker 2: Kent College of Law. How this is another instance where

446
00:25:13,200 --> 00:25:15,400
Speaker 2: I'm going to use the word unprecedented.

447
00:25:15,760 --> 00:25:18,920
Speaker 8: So this is the most on the one hand, amazing

448
00:25:19,160 --> 00:25:22,080
Speaker 8: hutzba or hubris than any of us have seen. Because

449
00:25:22,080 --> 00:25:25,680
Speaker 8: what the President is saying is because the former administration

450
00:25:26,040 --> 00:25:29,439
Speaker 8: investigated my actions with the class off documents, investigated my

451
00:25:29,640 --> 00:25:34,120
Speaker 8: role in the Russia supposed to influence of the twenty

452
00:25:34,200 --> 00:25:39,159
Speaker 8: sixteen election, that they've committed torts. I've committed torts against me,

453
00:25:39,280 --> 00:25:43,879
Speaker 8: violated by privacy rights, malicious prosecution, and therefore, because of

454
00:25:43,920 --> 00:25:46,800
Speaker 8: those torts I can recover under the Federal Tort Claims Act.

455
00:25:46,960 --> 00:25:49,800
Speaker 8: Federal Tort Claims Act is a government's waiver of immunity

456
00:25:50,119 --> 00:25:55,680
Speaker 8: from tort suit in particularly defined circumstances. And under the

457
00:25:55,760 --> 00:25:59,200
Speaker 8: Federal Tort Claims Act, before you can sue in court

458
00:25:59,320 --> 00:26:02,760
Speaker 8: for a tourt, you can file an administrative claim before

459
00:26:02,760 --> 00:26:07,119
Speaker 8: the agency that want assert cause the individual harm. So

460
00:26:07,200 --> 00:26:10,520
Speaker 8: what this is is an administrative claim preparatory to a

461
00:26:10,560 --> 00:26:14,800
Speaker 8: potential denotoria claims Act lawsuit saying that I was injured

462
00:26:14,840 --> 00:26:20,800
Speaker 8: by torts through this investigation. In both these two contexts.

463
00:26:20,280 --> 00:26:23,600
Speaker 2: Accord to the Justice Department Manual, settlements of claims against

464
00:26:23,640 --> 00:26:26,800
Speaker 2: the Department for more than four million dollars must be

465
00:26:26,840 --> 00:26:30,800
Speaker 2: approved by the Deputy Attorney General or the Associate Attorney General.

466
00:26:31,200 --> 00:26:34,879
Speaker 2: The Deputy Attorney General is Todd Bland, who represented Trump

467
00:26:34,920 --> 00:26:39,119
Speaker 2: in his criminal cases, and the Associate Attorney General is

468
00:26:39,160 --> 00:26:44,119
Speaker 2: Stanley Woodward, who represented Trump's co defendant. So the ethical

469
00:26:44,200 --> 00:26:47,359
Speaker 2: issues are apparent. You don't have to be a lawyer

470
00:26:47,520 --> 00:26:51,440
Speaker 2: to see them. But who's going to stop them?

471
00:26:52,000 --> 00:26:52,520
Speaker 3: Not you or me.

472
00:26:53,040 --> 00:26:56,720
Speaker 8: Why this is so unbelievable is then it's the Justice

473
00:26:56,800 --> 00:26:59,720
Speaker 8: Department that gets to decide whether to pay the claims

474
00:26:59,800 --> 00:27:02,439
Speaker 8: or not, so that people he can fire his own

475
00:27:02,600 --> 00:27:06,200
Speaker 8: former personal attorneys then will sit on this issue about

476
00:27:06,200 --> 00:27:10,480
Speaker 8: whether he deserves compensation. So there's no court review, there's

477
00:27:10,520 --> 00:27:14,199
Speaker 8: no public review. This is insider. It's like opening up

478
00:27:14,200 --> 00:27:16,560
Speaker 8: the treasury. Let me scoop out as much as I would.

479
00:27:16,880 --> 00:27:19,840
Speaker 8: That's what this is in essence, and it's just outrageous.

480
00:27:19,880 --> 00:27:24,000
Speaker 8: But let me also say that what's amazing about this

481
00:27:24,119 --> 00:27:27,119
Speaker 8: that I'm sure the President hasn't considered is this is

482
00:27:27,240 --> 00:27:30,840
Speaker 8: opening up the same process with those who've been injured

483
00:27:30,840 --> 00:27:34,080
Speaker 8: by ice, because what people are saying is the only

484
00:27:34,200 --> 00:27:38,600
Speaker 8: type of compensation allowed will be for people to go

485
00:27:38,640 --> 00:27:43,119
Speaker 8: before the Federal Toward Claims Act and basically allege claims

486
00:27:43,160 --> 00:27:48,440
Speaker 8: of brutality, false arrests. Well, there's just prosecution privacy rights

487
00:27:48,480 --> 00:27:52,800
Speaker 8: invasions by ice officers, And if I were defending those

488
00:27:52,840 --> 00:27:55,800
Speaker 8: ICE officers, I would say, well, look, the President's done

489
00:27:55,840 --> 00:27:59,040
Speaker 8: the same thing, almost the same theories. If the Presidence

490
00:27:59,240 --> 00:28:01,800
Speaker 8: says we can do the Federal Tart Claims Act for

491
00:28:01,920 --> 00:28:04,520
Speaker 8: his own purposes, that obviously people have been injured by

492
00:28:04,560 --> 00:28:08,160
Speaker 8: ice officers should be able to use the mechanism despite

493
00:28:08,160 --> 00:28:10,280
Speaker 8: the defenses and the Federal Tart Claims Act itself.

494
00:28:10,520 --> 00:28:16,000
Speaker 2: A Justice Department spokesperson said, in any circumstance, all officials

495
00:28:16,040 --> 00:28:19,400
Speaker 2: at the Department of Justice follow the guidance of career

496
00:28:19,600 --> 00:28:25,680
Speaker 2: ethics officials. However, Attorney General Pam Bondi fired the department's

497
00:28:25,800 --> 00:28:31,000
Speaker 2: top official responsible for advising the Attorney General and the

498
00:28:31,040 --> 00:28:34,760
Speaker 2: Deputy Attorney General on ethics issues in July.

499
00:28:35,119 --> 00:28:37,320
Speaker 8: So, yeah, we don't have a top ethics official anymore.

500
00:28:37,359 --> 00:28:39,560
Speaker 8: There is just no break. There's no internal guardrail on this.

501
00:28:39,760 --> 00:28:42,320
Speaker 8: It just shows the problem of having no type of

502
00:28:42,640 --> 00:28:44,160
Speaker 8: separation or independence.

503
00:28:44,840 --> 00:28:47,840
Speaker 2: Will we know when this happens or is it all

504
00:28:48,440 --> 00:28:51,280
Speaker 2: internally done within the Justice Department.

505
00:28:51,600 --> 00:28:53,800
Speaker 8: The actual payment has to be in a record, so

506
00:28:53,840 --> 00:28:57,280
Speaker 8: there will be legally cognizable means to say whether or

507
00:28:57,360 --> 00:29:00,400
Speaker 8: not this happened. But the deliberations don't have to be

508
00:29:00,480 --> 00:29:02,280
Speaker 8: in public, so we're not going to get a sense

509
00:29:02,320 --> 00:29:04,040
Speaker 8: of who said what. There's not going to be like

510
00:29:04,320 --> 00:29:08,680
Speaker 8: reefs before court. This is an internal decision by his

511
00:29:09,080 --> 00:29:11,880
Speaker 8: deputy and associate as to whether and how much to

512
00:29:12,000 --> 00:29:15,000
Speaker 8: pay him. But we will know that taxpayer moneys will

513
00:29:15,000 --> 00:29:18,760
Speaker 8: be allocated to his bank accounts. And who knew that

514
00:29:18,800 --> 00:29:21,040
Speaker 8: being president would be so profitable? This is just another

515
00:29:21,720 --> 00:29:25,480
Speaker 8: ingenious way that President Trump has found to line his

516
00:29:25,600 --> 00:29:28,400
Speaker 8: own pockets at the expense of the American taxpayer.

517
00:29:28,440 --> 00:29:31,480
Speaker 2: I'll say it again, unprecedented. Thanks so much, Hal for

518
00:29:31,640 --> 00:29:34,920
Speaker 2: joining me. That's Professor Harold Krant of the Chicago Kent

519
00:29:35,080 --> 00:29:38,720
Speaker 2: College of Law. Let's turn out of President Trump's sort

520
00:29:38,760 --> 00:29:42,880
Speaker 2: of pardoning spree. Trump has issued more than sixteen hundred

521
00:29:43,040 --> 00:29:47,280
Speaker 2: pardons and commutations in the last nine months. Last week

522
00:29:47,360 --> 00:29:52,280
Speaker 2: it was former convicted Republican Congressman George Santos. This week

523
00:29:52,320 --> 00:29:56,120
Speaker 2: it was the convicted founder of the crypto exchange finance,

524
00:29:56,400 --> 00:29:58,600
Speaker 2: Chang Pen Joo. I don't know.

525
00:29:58,640 --> 00:30:00,840
Speaker 7: He was recommended by a lot of people.

526
00:30:01,400 --> 00:30:03,600
Speaker 8: A lot of people say that, are you talking about

527
00:30:03,600 --> 00:30:04,640
Speaker 8: the crypto person?

528
00:30:05,640 --> 00:30:08,000
Speaker 7: A lot of people say that he wasn't guilty of anything.

529
00:30:08,320 --> 00:30:11,000
Speaker 2: But it's one thing to be cleared by the president.

530
00:30:11,320 --> 00:30:14,320
Speaker 2: It's another thing to be cleared by the banks. And

531
00:30:14,440 --> 00:30:17,960
Speaker 2: some of the people pardoned during Trump's first term found

532
00:30:17,960 --> 00:30:21,520
Speaker 2: that out when they were debanked. Joining me is Bloomberg

533
00:30:21,640 --> 00:30:27,360
Speaker 2: senior reporter Tom Schoenberg, Tom Republican fundraiser Elliott Broidy, who

534
00:30:27,440 --> 00:30:32,600
Speaker 2: was convicted for violating a lobbying law, and former CFO

535
00:30:32,760 --> 00:30:37,280
Speaker 2: of social media company x mahmood Raisa Banki, who was

536
00:30:37,360 --> 00:30:41,600
Speaker 2: convicted of making false statements, were both pardoned at the

537
00:30:41,760 --> 00:30:45,880
Speaker 2: end of Trump's first term. But explain how those White

538
00:30:45,880 --> 00:30:48,640
Speaker 2: House reprieves only go so far.

539
00:30:49,440 --> 00:30:52,800
Speaker 3: So both, you know, mister Broydy and mister Banky kind

540
00:30:52,840 --> 00:30:56,200
Speaker 3: of recently within the you know, last year or so,

541
00:30:56,200 --> 00:31:00,320
Speaker 3: sought banking services. Both had applied you know, for edit

542
00:31:00,520 --> 00:31:06,520
Speaker 3: Broidy from American Express, Bonki from JP Morgan and were denied,

543
00:31:07,320 --> 00:31:11,560
Speaker 3: and as they pushed for explanation as to why in

544
00:31:11,680 --> 00:31:15,160
Speaker 3: both instances, were told that it was due to a

545
00:31:15,200 --> 00:31:17,920
Speaker 3: criminal record that they had had, you know, that was

546
00:31:18,360 --> 00:31:21,920
Speaker 3: tied to the pardon that they received from President Trump

547
00:31:22,040 --> 00:31:25,560
Speaker 3: in his first term with bank had also meant he

548
00:31:25,640 --> 00:31:28,640
Speaker 3: had applied for a credit card with Bank of America

549
00:31:29,200 --> 00:31:33,040
Speaker 3: and a five twenty nine account that involved a fidelity

550
00:31:33,320 --> 00:31:36,400
Speaker 3: and the same situation he was denied accounts or denied

551
00:31:36,400 --> 00:31:37,280
Speaker 3: access to credit.

552
00:31:37,920 --> 00:31:39,760
Speaker 2: Is there really a term de banked?

553
00:31:40,360 --> 00:31:44,760
Speaker 3: There is now? I mean, it's a good question because

554
00:31:44,880 --> 00:31:48,360
Speaker 3: when I was interviewing people for the article, including Liz Oyer,

555
00:31:48,480 --> 00:31:52,520
Speaker 3: who was former parton attorney at the Justice Department, she asked, well,

556
00:31:52,560 --> 00:31:55,400
Speaker 3: what is to banking? Because until recently it wasn't really

557
00:31:55,440 --> 00:31:57,880
Speaker 3: a term, but it is now and is also used

558
00:31:58,000 --> 00:32:01,200
Speaker 3: in both these lawsuits that were brought by mister Brody

559
00:32:01,200 --> 00:32:01,840
Speaker 3: and mister banking.

560
00:32:02,720 --> 00:32:05,520
Speaker 2: Is a pardon meant to erase the legal conviction on

561
00:32:05,560 --> 00:32:10,240
Speaker 2: your record or is it meant to wipe the slate clean?

562
00:32:10,840 --> 00:32:13,480
Speaker 3: Really, in terms of how it's been interpreted erases that

563
00:32:13,600 --> 00:32:15,840
Speaker 3: legal stain in the conviction right, And I think in

564
00:32:15,960 --> 00:32:19,920
Speaker 3: terms of financial services, what these cases are sort of

565
00:32:20,120 --> 00:32:23,840
Speaker 3: raising to an extent is does that necessarily override these

566
00:32:24,160 --> 00:32:27,360
Speaker 3: risk assessments of private lender that are required under law

567
00:32:27,440 --> 00:32:30,880
Speaker 3: to prevent money laundering and to know their customer, which

568
00:32:30,960 --> 00:32:34,120
Speaker 3: usually is a look back on their history, both financial

569
00:32:34,240 --> 00:32:35,720
Speaker 3: but also criminal history.

570
00:32:36,800 --> 00:32:41,680
Speaker 2: Some MAGA people think that conservatives are being debanked for

571
00:32:41,760 --> 00:32:45,400
Speaker 2: their political beliefs, and you write that it's become an

572
00:32:45,400 --> 00:32:48,360
Speaker 2: obsession with some including President Trump.

573
00:32:48,520 --> 00:32:51,760
Speaker 3: Yes, I mean President Trump and the Trump Organization has

574
00:32:51,840 --> 00:32:56,720
Speaker 3: to shoot Capital One Financial Core, making accusations that they

575
00:32:56,800 --> 00:33:00,640
Speaker 3: had improperly kind of closed hundreds of acts that the

576
00:33:00,680 --> 00:33:04,840
Speaker 3: Trump organization had, and Capital Ones denied any sort of wrongdoing.

577
00:33:05,000 --> 00:33:08,080
Speaker 3: They moved to have the case dismissed. You know, that's

578
00:33:08,120 --> 00:33:10,960
Speaker 3: in front of a judge right now. And the argument

579
00:33:11,000 --> 00:33:12,960
Speaker 3: on their end is that they had the right to

580
00:33:13,000 --> 00:33:15,760
Speaker 3: cancel accounts based on the contracts that they had for

581
00:33:15,800 --> 00:33:18,120
Speaker 3: those accounts. You know, it's been a personal issue for

582
00:33:18,160 --> 00:33:22,960
Speaker 3: the President. Additionally, in August, he issued an executive order

583
00:33:23,160 --> 00:33:27,440
Speaker 3: directly at this issue, called Guaranteeing Fair Banking for All Americans,

584
00:33:27,680 --> 00:33:30,280
Speaker 3: in which he calls out to the quote unquote de

585
00:33:30,360 --> 00:33:35,120
Speaker 3: banking of you know, specifically conservatives and others for whether

586
00:33:35,160 --> 00:33:40,920
Speaker 3: political or religious reasons, and orders financial regulators to remove

587
00:33:41,040 --> 00:33:44,480
Speaker 3: some of the you know, standards they had in reviewing

588
00:33:44,520 --> 00:33:48,840
Speaker 3: accounts at institutions, as well as looking back and see

589
00:33:48,840 --> 00:33:53,400
Speaker 3: whether any people's accounts had been closed due to whether political,

590
00:33:53,600 --> 00:33:57,240
Speaker 3: religious reasons, or some other sort of unfair determination.

591
00:33:58,360 --> 00:34:02,520
Speaker 2: Since the executive order, have banks been making changes.

592
00:34:03,160 --> 00:34:06,080
Speaker 3: Some got out ahead of that. JP Morgan, beginning even

593
00:34:06,240 --> 00:34:10,319
Speaker 3: after the election last year, had started making changes both

594
00:34:10,360 --> 00:34:14,000
Speaker 3: in public materials and then in their own policies, specifically

595
00:34:14,080 --> 00:34:17,000
Speaker 3: noting that it would not base decision making on accounts

596
00:34:17,040 --> 00:34:21,400
Speaker 3: on religious or political views. So you're seeing it there,

597
00:34:21,600 --> 00:34:24,560
Speaker 3: you're even seeing it in terms of these cases. Mister Bonkey.

598
00:34:24,960 --> 00:34:27,080
Speaker 3: One of the things that happened after he brought his

599
00:34:27,200 --> 00:34:31,120
Speaker 3: case over not receiving credit from JP Morgan, it happened

600
00:34:31,120 --> 00:34:34,840
Speaker 3: that he had two accounts at another institution called First

601
00:34:34,880 --> 00:34:39,279
Speaker 3: Republic Bank, which in twenty twenty three had collapsed and

602
00:34:39,400 --> 00:34:42,799
Speaker 3: was taken over by JP Morgan. So initially they had

603
00:34:42,840 --> 00:34:45,560
Speaker 3: moved to close those two accounts, with one of their

604
00:34:45,760 --> 00:34:49,360
Speaker 3: anti money laundering executives selling the court due to his

605
00:34:49,480 --> 00:34:53,640
Speaker 3: earlier conviction. Once this lawsuit was sort of underway and

606
00:34:53,760 --> 00:34:57,440
Speaker 3: he moved for a temporary restraining order to stop them

607
00:34:57,480 --> 00:35:01,240
Speaker 3: from closing those accounts. JP Morgan kind of reversed itself.

608
00:35:01,400 --> 00:35:04,400
Speaker 3: They told us that they looked at that appeal that

609
00:35:04,440 --> 00:35:07,160
Speaker 3: he was successful on with some of the criminal accounts.

610
00:35:07,280 --> 00:35:10,520
Speaker 3: They also looked at it had been fifteen years to

611
00:35:10,680 --> 00:35:13,359
Speaker 3: them that this time had gone by without any other

612
00:35:13,400 --> 00:35:16,319
Speaker 3: sort of criminal allegation against him, and so they're going

613
00:35:16,360 --> 00:35:17,600
Speaker 3: to keep those accounts open.

614
00:35:18,000 --> 00:35:20,319
Speaker 2: Did Broidy ever get an American Express card?

615
00:35:20,800 --> 00:35:24,120
Speaker 3: Unclear? You know at the moment this is still in

616
00:35:24,200 --> 00:35:26,920
Speaker 3: litigation in fact American Expresses, but telling the judge that

617
00:35:26,960 --> 00:35:29,879
Speaker 3: they need to dismiss his case because these card member

618
00:35:29,920 --> 00:35:33,640
Speaker 3: agreements account agreements usually require that dispute be handled and

619
00:35:33,719 --> 00:35:35,560
Speaker 3: arbitration and explain.

620
00:35:35,320 --> 00:35:37,239
Speaker 2: The perspective of the banks on this.

621
00:35:37,640 --> 00:35:40,319
Speaker 3: It's really a liability issue for the banks that they're

622
00:35:40,320 --> 00:35:43,320
Speaker 3: making these assessments. They have to comply under the law.

623
00:35:43,560 --> 00:35:46,160
Speaker 3: You know that the people who they're giving access to

624
00:35:46,200 --> 00:35:48,560
Speaker 3: the US financial system too are not going to be

625
00:35:48,640 --> 00:35:51,760
Speaker 3: using it for illicit purposes. So you have a twofold one.

626
00:35:52,160 --> 00:35:55,279
Speaker 3: If someone's a fraudster. The bank itself could later be

627
00:35:55,280 --> 00:35:57,759
Speaker 3: sued by victims claiming that they didn't do enough. They

628
00:35:57,800 --> 00:36:00,680
Speaker 3: can also be penalized for the government for no abiding

629
00:36:00,719 --> 00:36:03,920
Speaker 3: by all the rules and regulations to ensure that we

630
00:36:04,000 --> 00:36:06,360
Speaker 3: have a safe banking system. So if somebody has some

631
00:36:06,440 --> 00:36:09,040
Speaker 3: type of financial crime on the record, that's going to

632
00:36:09,080 --> 00:36:11,080
Speaker 3: be looked at very closely by the bank, you know,

633
00:36:11,239 --> 00:36:14,960
Speaker 3: in terms of how aggressive they are in this space.

634
00:36:15,280 --> 00:36:18,239
Speaker 3: Talking to a number of defense lawyers, a lot of

635
00:36:18,280 --> 00:36:22,320
Speaker 3: times people lose their banking even at the first sign

636
00:36:22,360 --> 00:36:25,200
Speaker 3: of an investigation, let alone a conviction. So you know,

637
00:36:25,200 --> 00:36:29,200
Speaker 3: it's quite common for a bank to receive a subpoena

638
00:36:29,400 --> 00:36:32,839
Speaker 3: even for records of somebody related to a case, and

639
00:36:33,160 --> 00:36:36,560
Speaker 3: immediately cut off an account. So someone might learn their

640
00:36:36,640 --> 00:36:39,879
Speaker 3: under investigation just by losing access to their banking. It's

641
00:36:39,960 --> 00:36:41,960
Speaker 3: kind of a large wave in terms of you know,

642
00:36:42,080 --> 00:36:43,560
Speaker 3: investigation and losing banking.

643
00:36:43,719 --> 00:36:46,720
Speaker 2: It's really been a fascinating conversation. Thanks so much, Tom.

644
00:36:47,000 --> 00:36:51,040
Speaker 2: That's Tom Schoenberg, Bloomberg Senior Reporter, and that's it for

645
00:36:51,040 --> 00:36:53,680
Speaker 2: this edition of the Bloomberg Law Show. Remember you can

646
00:36:53,719 --> 00:36:56,960
Speaker 2: always get the latest legal news on our Bloomberg Law podcast.

647
00:36:57,239 --> 00:37:01,759
Speaker 2: You can find them on Apple Podcasts, Spotify, www dot

648
00:37:01,800 --> 00:37:05,960
Speaker 2: Bloomberg dot com, slash podcast, Slash Law, and remember to

649
00:37:06,000 --> 00:37:09,080
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

650
00:37:09,120 --> 00:37:12,880
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

651
00:37:13,000 --> 00:37:13,640
Speaker 2: to Bloomberg