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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Eighteen states, six

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Speaker 1: cities in a biparisan US conference of mayors are suing

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Speaker 1: to block the Trump administration from adding a citizenship question

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Speaker 1: Toss California fog the lawsuit to block the question last week.

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Speaker 1: Joining me is Leon Fresco, a partner at Hollandon Knight Leon.

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Speaker 1: What are the plaintiffs arguing in the lawsuit? The planetifs

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Speaker 1: essentially have one simple claim, which is that the constitutional

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Speaker 1: requirement of counting every single person, which is required by

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Speaker 1: the Constitution, is undermined and diminished by the count by

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Speaker 1: the requirement of a citizenship question. Hey in that the

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Speaker 1: addition of this question violates both the Constitution and the

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Speaker 1: Administrative Procedure Act because the government is intentionally including a

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Speaker 1: question that they know will produce an undercounted census. So

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Speaker 1: is this another case where the argument is that the

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Speaker 1: Trump administration hasn't followed the proper procedures for putting in

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Speaker 1: another question. Correct, there's two are there's two cases. There's

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Speaker 1: two sorry, there's two claims. One is that they haven't

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Speaker 1: followed the proper procedures because they say that there are

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Speaker 1: many times when a question is added in the census,

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Speaker 1: the tradition is that you have many test samples that

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Speaker 1: you do to see if that question actually hurts participation

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Speaker 1: in the census. And they say that this new question

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Speaker 1: hasn't been tested, and that, in fact, the position of

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Speaker 1: the federal government since nineteen eighty every time it's been

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Speaker 1: asked is that a citizenship question reduces participation, and so

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Speaker 1: the agency couldn't ship position so quickly and say that

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Speaker 1: this wouldn't decrease the number of people participating without actually

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Speaker 1: having tested it. And then second, they say that this

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Speaker 1: is just illegal because they because the Constitution requires an

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Speaker 1: actual enumeration of all people in the United States, doing

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Speaker 1: something that that the government knows won't produce an actual

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Speaker 1: enumeration of all people in the United States violates the law.

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Speaker 1: Leon what's the response of the Trump administration been, what's

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Speaker 1: their defense to this? So the Trump administration says two things.

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Speaker 1: One that prior to nineteen fifty, this question was asked

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Speaker 1: and nobody sued, and nobody thought it was a problem

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Speaker 1: for the Census, And then even since nineteen fifty, not

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Speaker 1: in the census itself, but in the American Community Survey,

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Speaker 1: which is a survey that the Census Bureau does every

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Speaker 1: couple of years and they do it as part of

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Speaker 1: the Department of Commerce, that this question is asked and

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Speaker 1: that this doesn't reduce participation. That's their view. Uh, people

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Speaker 1: might might disagree about that. And and they also say

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Speaker 1: that this question is needed in order to make decisions

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Speaker 1: about who are how these district works in terms of

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Speaker 1: the Voting Rights Act, so that they can actually try

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Speaker 1: to figure out what are fair districts that aren't discriminatory,

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Speaker 1: and that if you if you only know pure numbers

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Speaker 1: and that numbers of voters, you might not be able

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Speaker 1: to appropriately make districts that are not discriminatory. Leon is

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Speaker 1: there any evidence it seems likely that immigrants who are

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Speaker 1: are not who are not legally here wouldn't want to

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Speaker 1: go and complete this census for him if this question

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Speaker 1: is asked, but is there any evidence that backs it up? Well,

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Speaker 1: the the the problem is no, it's a lot of

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Speaker 1: a lot of this is speculative and conjecture with the

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Speaker 1: with the one caveat that that is the stated position

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Speaker 1: of the Centers Bureau since nineteen eighty. So there was

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Speaker 1: a brief that was done by nine UH. There was

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Speaker 1: an amicus brief that was done UH in a different case,

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Speaker 1: not about adding the question itself, but where nine previous

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Speaker 1: directors of the sense of Census Bureau and a bi

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Speaker 1: partisan basis all stated in the brief that it is

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Speaker 1: their belief that adding the citizenship question would decrease participation.

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Speaker 1: And what the States say in this lawsuit is, even

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Speaker 1: if you didn't think that before, now, with the kinds

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Speaker 1: of policies the Trump administration is putting in, people have

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Speaker 1: more of a reason to be afraid. And so we've

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Speaker 1: never tested this environment of asking a question like this

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Speaker 1: in this environment where imagine if a government census worker

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Speaker 1: is actually coming up to you and asking you this question,

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Speaker 1: can you confuse them potentially if you're an undocumented person

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Speaker 1: for an ICE agent. And so this is the concern

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Speaker 1: and the fear about adding this question. At this point,

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Speaker 1: there are already moves in Congress to stop this question

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Speaker 1: from being asked and including by two New York representatives.

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Speaker 1: Carolyn Maloney has introduced a bill and Jose Serrano says

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Speaker 1: he's going to offer an amendment to the fiscal im

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Speaker 1: the best spending bill is are any moves in Congress

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Speaker 1: likely to stop this? Well, if they were to defund

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Speaker 1: so for Mr Serrano's bill, for instance, he's the ranking

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Speaker 1: member on what's called the Commerce, Justice, and Science Appropriations Committee,

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Speaker 1: and so if he actually was successful in defunding the

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Speaker 1: ability to ask that question in the census, then that

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Speaker 1: question could not be asked in the census. But the

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Speaker 1: question is in all of these kinds of issues, if

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Speaker 1: Democrats on mass vote against something like that and say

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Speaker 1: we won't vote for a spending bill that actually includes this,

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Speaker 1: then what they're doing is theoretically shutting down the government

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Speaker 1: over the census question. And that's where it becomes tops

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Speaker 1: is are they really willing to go to that length

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Speaker 1: in order to get the sense of question not placed

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Speaker 1: in there? Because that's what your bargaining chip is when

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Speaker 1: you're trying to put it in an appropriations bill. And

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Speaker 1: so that's the question that no one knows. All right,

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Speaker 1: So about a minute here, Leon, how likely is it

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Speaker 1: that a coordinated New Yorker California will at least put

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Speaker 1: the question on whole while the litigation proceeds. I think

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Speaker 1: it's pretty likely that given that the given that this

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Speaker 1: lawsuit was filed in the Southern District of New York,

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Speaker 1: where there are a lot of judges that are sympathetic

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Speaker 1: to this case, if for no other reason, also because

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Speaker 1: you know, the number of judges ends up getting a

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Speaker 1: portions a lot of times based on the size of

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Speaker 1: the population, etcetera, I think that I think you could

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Speaker 1: see an injunction for for the meantime been saying look,

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Speaker 1: this wasn't tested, the procedure wasn't done, wasn't done. But

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Speaker 1: I do think, uh, it will be hard to sort

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Speaker 1: of figure out what the irreparable harm will be to

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Speaker 1: move that through the through the court quickly. But the

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Speaker 1: government will certainly argue that it's irreparably harmed by not

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Speaker 1: adding not asking this question, which is kind of hard

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Speaker 1: to prove because seventh decade they haven't asked the question.

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Speaker 1: So if they just get one injunction, it'll be hard

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Speaker 1: to get it back in the census in time. Okay,

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Speaker 1: thanks as always, Leon, that's Leon Fresco, a partner at

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Speaker 1: hollanden Night. Be careful what you argue when you're dealing

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Speaker 1: with Special Counsel Robert Muller. You may get a two

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Speaker 1: d eighty two page response from Mueller shooting down your argument,

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Speaker 1: as Paul Manafort did. The former Trump campaign chairman argued

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Speaker 1: that prosecutors overstepped their authority by charging him with crimes

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Speaker 1: beyond Russian meddling in the presidential election. The Special Counsel

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Speaker 1: responded with a detailed memo explaining his power to investigate

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Speaker 1: and charge Manifort, and attaching a secret government memorandum from

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Speaker 1: Acting Attorney General Rod Rosenstein detailing that authority and confirming

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Speaker 1: the oversight Rosenstein testified to before Congress last December. I

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Speaker 1: know what he's doing. I'm appropriately exercising my oversight responsibilities,

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Speaker 1: and so I can assure you that the Special Council

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Speaker 1: is conducting himself consistently with our understanding about the scope

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Speaker 1: of his investigation. My guest is William Banks, a professor

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Speaker 1: at Syracuse University Law School. Bill, does this memo shut

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Speaker 1: down this part of Manafort's defense strategy? I think it does. June.

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Speaker 1: You recall earlier Manafort brought a civil action to attempt

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Speaker 1: to quash the lawsuit on the grounds that the investigation

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Speaker 1: was beyond the scope of Mueller's authority. That's going nowhere.

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Speaker 1: And now he's done what he what most criminal defendants

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Speaker 1: would do, which is to challenge the authority for the investigation.

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Speaker 1: But I think even without the new memorandum that you

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Speaker 1: dis referenced in your clip, that the argument was a

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Speaker 1: long shot. And I think now with the memorandum specifically

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Speaker 1: detailing the kind of questions that Mueller was investigating concerning Manaford,

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Speaker 1: I think it's uh game seven match. I think it's over.

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Speaker 1: There's a footnote in the memo from a section of

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Speaker 1: the Code of Federal Regulations which notes that the Special

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Speaker 1: Council has the authority to investigate federal crimes that interfere

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Speaker 1: with the Special Council's investigation, such as perjury, obstruction of justice,

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Speaker 1: destruction of evidence, and intimidation of witnesses. They didn't have

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Speaker 1: to put that footnote in. Is it a warning shot

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Speaker 1: Muller's firing, Well, it might be, given the given the record.

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Speaker 1: Even you know, this memo was stated August, so in

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Speaker 1: the months before that, we already had evidence beginning with

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Speaker 1: Mr Flynn, that people in the campaign are central to

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Speaker 1: the Trump organization might not have been completely forthcoming, shall

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Speaker 1: we say, in their interviews with the Independent Council's office.

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Speaker 1: So I think it is a warning is does this

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Speaker 1: does this memo show how meticulous the Special Counsel is

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Speaker 1: as he gets his authority? While they're highly meticulous, they

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Speaker 1: have been from the beginning. Uh that they don't leak.

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Speaker 1: Mueller does not make public statements. It's it's an extraordinarily

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Speaker 1: efficiently and professionally run organization, and we shouldn't expect anything different,

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Speaker 1: I think, until its conclusion. The Washington Post reported that

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Speaker 1: Mueller informed President Trump's attorneys last month that he does

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Speaker 1: not consider Trump to be a criminal target in the

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Speaker 1: Russia investigation. Explain the implications of being a criminal target

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Speaker 1: and whether this means Trump is in the clear, Yes,

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Speaker 1: it's a It is an important use of language here.

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Speaker 1: So he's not a target. That means that he's not

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Speaker 1: subject to indictment. And that is because it's almost certain

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Speaker 1: that a president may not be legally indicted while he's

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Speaker 1: still in office. That's Justice Department policy, and it has

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Speaker 1: been for a long time, and it's highly unlikely that Mr.

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Speaker 1: Mueller would attempt to circumvent or or make a case

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Speaker 1: against existing Justice Department policy. At the same time, he

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Speaker 1: he indicated that the president is a subject of the

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Speaker 1: investigation instead of a target subject, means that he's still

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Speaker 1: talking to the president, and that the material that the

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Speaker 1: President might provide to Mueller or his team could assist

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Speaker 1: in developing evidence that could be used against others who

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Speaker 1: could become targets or who eventually could include the President

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Speaker 1: as a potential target down the road. If he wasn't

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Speaker 1: a subject of the investigation, he might be characterized, say

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Speaker 1: as a witness, But he wasn't. He was characterized as

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Speaker 1: a subject. So that Mueller still believes that the President's

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Speaker 1: got something to say that it's going to be useful

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Speaker 1: to them as they try to get to the bottom

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Speaker 1: of the rusher portion of this investigation, as well as

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Speaker 1: the obstruction possibility involving the president's Hell, I know it's

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Speaker 1: never been done before, but could a president be indicted

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Speaker 1: after he leaves office? Yes, he could, uh, and then

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Speaker 1: he's a citizen like you and me, so he's subject

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Speaker 1: to indictment at that time. It could happen. But you

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Speaker 1: know the more the more likely remedy is the one

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Speaker 1: that's been exercised a few times in our history. That

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Speaker 1: is impeachment. If there are serious charges that could give grabs. Bill,

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Speaker 1: why do you think Mueller wants an interview with Trump

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Speaker 1: so much? I mean, they keep pressing it. They haven't

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Speaker 1: served as subpoena, right. I think there are two two

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Speaker 1: lines of inquiry that Mr Mueller would very much like

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Speaker 1: to pursue with the President. One involves the circumstances surrounding

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Speaker 1: the termination of Mr Comey. Did Trump fire call me

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Speaker 1: because of Comey's refusal to say that he was not

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Speaker 1: a target of the of the investigation. The second line

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Speaker 1: of courses his knowledge the President's knowledge about what members

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Speaker 1: of his team campaign related or otherwise UH did or

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Speaker 1: had communications with Russians or others involved outside the United

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Speaker 1: States in attempt to support his candidacy. So, Bill Manafort

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Speaker 1: has really come under fire from Mueller. He has all

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Speaker 1: these different you know, the the indictments against him, He's

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Speaker 1: got Gates to testify against him. We don't know what

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Speaker 1: else he has. Do you suppose that Mueller is still

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Speaker 1: hoping that that Manafort will flip. I believe he is.

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Speaker 1: That's the way that if you're reading Tea Leaves, I

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Speaker 1: think here every day the screws turn a little tighter

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Speaker 1: against Mr Manaford. And the almost certain failure of this

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Speaker 1: motion to dismiss the indictment that we talked about earlier,

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Speaker 1: I think it tightens this cruise yet again. And so

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Speaker 1: now uh, Mr Manafort might be looking for a presidential

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Speaker 1: pardon and absent to pardon, I think we might be

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Speaker 1: looking at a at a flip, because otherwise he's in

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Speaker 1: very serious legal jeopardy. Well, we have about forty five

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Speaker 1: seconds left. You brought up the pardon. What if he

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Speaker 1: does get a pardon from a presidential pardon that wouldn't

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Speaker 1: cover crimes in New York and supposedly the New York

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Speaker 1: um a G is looking into this. Yes, that's correct,

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Speaker 1: and that would be true if others involved in in

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Speaker 1: this entire investigation as well, and some circumstances, there are

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Speaker 1: potential state charges I know I've heard in New York

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Speaker 1: and possibly Pennsylvania for some of the officials under investigation.

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Speaker 1: That's why we have a federal system. So the federal uh,

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Speaker 1: the federal pardon is only part of the UH concern

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Speaker 1: that each of them would have to focus on all right, Bill,

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Speaker 1: Thanks as always. That's William Banks, a professor at Syracuse

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Speaker 1: University Law School. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg Ye.