WEBVTT - States Challenge 2020 Census Citizenship Question 0:00:03.480 --> 0:00:07.560 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.640 --> 0:00:10.440 day we bring you insight and analysis into the most 0:00:10.480 --> 0:00:13.440 important legal news of the day. You can find more 0:00:13.480 --> 0:00:18.040 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 0:00:18.320 --> 0:00:22.920 and on Bloomberg dot com slash podcasts. Eighteen states, six 0:00:22.960 --> 0:00:26.360 cities in a biparisan US conference of mayors are suing 0:00:26.400 --> 0:00:29.720 to block the Trump administration from adding a citizenship question 0:00:29.800 --> 0:00:34.480 Toss California fog the lawsuit to block the question last week. 0:00:34.840 --> 0:00:38.040 Joining me is Leon Fresco, a partner at Hollandon Knight Leon. 0:00:38.159 --> 0:00:42.199 What are the plaintiffs arguing in the lawsuit? The planetifs 0:00:42.320 --> 0:00:46.680 essentially have one simple claim, which is that the constitutional 0:00:46.800 --> 0:00:51.599 requirement of counting every single person, which is required by 0:00:51.680 --> 0:00:56.319 the Constitution, is undermined and diminished by the count by 0:00:56.360 --> 0:01:00.960 the requirement of a citizenship question. Hey in that the 0:01:01.520 --> 0:01:04.679 addition of this question violates both the Constitution and the 0:01:04.720 --> 0:01:08.720 Administrative Procedure Act because the government is intentionally including a 0:01:08.840 --> 0:01:12.720 question that they know will produce an undercounted census. So 0:01:13.080 --> 0:01:16.240 is this another case where the argument is that the 0:01:16.280 --> 0:01:20.640 Trump administration hasn't followed the proper procedures for putting in 0:01:20.800 --> 0:01:25.040 another question. Correct, there's two are there's two cases. There's 0:01:25.040 --> 0:01:27.959 two sorry, there's two claims. One is that they haven't 0:01:27.959 --> 0:01:31.399 followed the proper procedures because they say that there are 0:01:31.400 --> 0:01:34.040 many times when a question is added in the census, 0:01:34.120 --> 0:01:38.039 the tradition is that you have many test samples that 0:01:38.120 --> 0:01:41.560 you do to see if that question actually hurts participation 0:01:41.640 --> 0:01:44.360 in the census. And they say that this new question 0:01:44.400 --> 0:01:47.640 hasn't been tested, and that, in fact, the position of 0:01:47.680 --> 0:01:50.360 the federal government since nineteen eighty every time it's been 0:01:50.400 --> 0:01:55.240 asked is that a citizenship question reduces participation, and so 0:01:55.320 --> 0:01:58.720 the agency couldn't ship position so quickly and say that 0:01:58.800 --> 0:02:02.360 this wouldn't decrease the number of people participating without actually 0:02:02.400 --> 0:02:04.920 having tested it. And then second, they say that this 0:02:05.000 --> 0:02:09.960 is just illegal because they because the Constitution requires an 0:02:10.000 --> 0:02:13.800 actual enumeration of all people in the United States, doing 0:02:13.880 --> 0:02:16.840 something that that the government knows won't produce an actual 0:02:16.919 --> 0:02:20.399 enumeration of all people in the United States violates the law. 0:02:21.120 --> 0:02:24.560 Leon what's the response of the Trump administration been, what's 0:02:24.600 --> 0:02:28.880 their defense to this? So the Trump administration says two things. 0:02:29.040 --> 0:02:32.760 One that prior to nineteen fifty, this question was asked 0:02:32.760 --> 0:02:35.600 and nobody sued, and nobody thought it was a problem 0:02:35.639 --> 0:02:38.720 for the Census, And then even since nineteen fifty, not 0:02:38.880 --> 0:02:42.360 in the census itself, but in the American Community Survey, 0:02:42.400 --> 0:02:45.560 which is a survey that the Census Bureau does every 0:02:45.600 --> 0:02:47.400 couple of years and they do it as part of 0:02:47.440 --> 0:02:51.000 the Department of Commerce, that this question is asked and 0:02:51.120 --> 0:02:56.200 that this doesn't reduce participation. That's their view. Uh, people 0:02:56.280 --> 0:03:00.400 might might disagree about that. And and they also say 0:03:00.520 --> 0:03:03.440 that this question is needed in order to make decisions 0:03:03.440 --> 0:03:07.160 about who are how these district works in terms of 0:03:07.160 --> 0:03:10.480 the Voting Rights Act, so that they can actually try 0:03:10.520 --> 0:03:15.240 to figure out what are fair districts that aren't discriminatory, 0:03:15.280 --> 0:03:17.600 and that if you if you only know pure numbers 0:03:17.639 --> 0:03:20.280 and that numbers of voters, you might not be able 0:03:20.320 --> 0:03:25.320 to appropriately make districts that are not discriminatory. Leon is 0:03:25.360 --> 0:03:31.280 there any evidence it seems likely that immigrants who are 0:03:31.360 --> 0:03:35.200 are not who are not legally here wouldn't want to 0:03:35.280 --> 0:03:38.480 go and complete this census for him if this question 0:03:38.560 --> 0:03:43.720 is asked, but is there any evidence that backs it up? Well, 0:03:43.800 --> 0:03:46.920 the the the problem is no, it's a lot of 0:03:46.960 --> 0:03:50.640 a lot of this is speculative and conjecture with the 0:03:50.840 --> 0:03:55.120 with the one caveat that that is the stated position 0:03:55.760 --> 0:03:58.360 of the Centers Bureau since nineteen eighty. So there was 0:03:58.400 --> 0:04:02.000 a brief that was done by nine UH. There was 0:04:02.040 --> 0:04:05.440 an amicus brief that was done UH in a different case, 0:04:05.520 --> 0:04:09.440 not about adding the question itself, but where nine previous 0:04:09.480 --> 0:04:11.680 directors of the sense of Census Bureau and a bi 0:04:11.720 --> 0:04:14.960 partisan basis all stated in the brief that it is 0:04:15.000 --> 0:04:20.520 their belief that adding the citizenship question would decrease participation. 0:04:21.000 --> 0:04:23.640 And what the States say in this lawsuit is, even 0:04:23.680 --> 0:04:27.200 if you didn't think that before, now, with the kinds 0:04:27.240 --> 0:04:31.039 of policies the Trump administration is putting in, people have 0:04:31.200 --> 0:04:33.400 more of a reason to be afraid. And so we've 0:04:33.400 --> 0:04:37.719 never tested this environment of asking a question like this 0:04:38.080 --> 0:04:41.520 in this environment where imagine if a government census worker 0:04:42.000 --> 0:04:44.679 is actually coming up to you and asking you this question, 0:04:45.600 --> 0:04:48.800 can you confuse them potentially if you're an undocumented person 0:04:48.839 --> 0:04:51.960 for an ICE agent. And so this is the concern 0:04:52.040 --> 0:04:54.239 and the fear about adding this question. At this point, 0:04:54.560 --> 0:04:57.839 there are already moves in Congress to stop this question 0:04:57.880 --> 0:05:02.440 from being asked and including by two New York representatives. 0:05:02.640 --> 0:05:06.800 Carolyn Maloney has introduced a bill and Jose Serrano says 0:05:06.839 --> 0:05:10.240 he's going to offer an amendment to the fiscal im 0:05:10.320 --> 0:05:14.000 the best spending bill is are any moves in Congress 0:05:14.040 --> 0:05:17.800 likely to stop this? Well, if they were to defund 0:05:18.120 --> 0:05:21.160 so for Mr Serrano's bill, for instance, he's the ranking 0:05:21.200 --> 0:05:25.359 member on what's called the Commerce, Justice, and Science Appropriations Committee, 0:05:25.640 --> 0:05:29.120 and so if he actually was successful in defunding the 0:05:29.200 --> 0:05:32.120 ability to ask that question in the census, then that 0:05:32.200 --> 0:05:34.960 question could not be asked in the census. But the 0:05:35.080 --> 0:05:38.480 question is in all of these kinds of issues, if 0:05:38.920 --> 0:05:43.600 Democrats on mass vote against something like that and say 0:05:43.600 --> 0:05:48.160 we won't vote for a spending bill that actually includes this, 0:05:48.360 --> 0:05:50.960 then what they're doing is theoretically shutting down the government 0:05:50.960 --> 0:05:53.920 over the census question. And that's where it becomes tops 0:05:54.040 --> 0:05:56.480 is are they really willing to go to that length 0:05:56.880 --> 0:05:59.159 in order to get the sense of question not placed 0:05:59.200 --> 0:06:01.920 in there? Because that's what your bargaining chip is when 0:06:01.920 --> 0:06:04.600 you're trying to put it in an appropriations bill. And 0:06:04.640 --> 0:06:06.800 so that's the question that no one knows. All right, 0:06:06.880 --> 0:06:10.559 So about a minute here, Leon, how likely is it 0:06:10.760 --> 0:06:14.200 that a coordinated New Yorker California will at least put 0:06:14.240 --> 0:06:18.400 the question on whole while the litigation proceeds. I think 0:06:18.440 --> 0:06:21.719 it's pretty likely that given that the given that this 0:06:21.800 --> 0:06:24.320 lawsuit was filed in the Southern District of New York, 0:06:24.320 --> 0:06:26.400 where there are a lot of judges that are sympathetic 0:06:26.839 --> 0:06:29.719 to this case, if for no other reason, also because 0:06:29.760 --> 0:06:32.680 you know, the number of judges ends up getting a 0:06:32.800 --> 0:06:35.599 portions a lot of times based on the size of 0:06:35.600 --> 0:06:39.640 the population, etcetera, I think that I think you could 0:06:39.680 --> 0:06:43.520 see an injunction for for the meantime been saying look, 0:06:43.560 --> 0:06:47.640 this wasn't tested, the procedure wasn't done, wasn't done. But 0:06:47.680 --> 0:06:50.760 I do think, uh, it will be hard to sort 0:06:50.760 --> 0:06:53.159 of figure out what the irreparable harm will be to 0:06:53.200 --> 0:06:56.320 move that through the through the court quickly. But the 0:06:56.360 --> 0:06:58.920 government will certainly argue that it's irreparably harmed by not 0:06:58.960 --> 0:07:01.600 adding not asking this question, which is kind of hard 0:07:01.640 --> 0:07:04.680 to prove because seventh decade they haven't asked the question. 0:07:05.120 --> 0:07:08.119 So if they just get one injunction, it'll be hard 0:07:08.160 --> 0:07:11.240 to get it back in the census in time. Okay, 0:07:11.240 --> 0:07:13.920 thanks as always, Leon, that's Leon Fresco, a partner at 0:07:13.920 --> 0:07:20.320 hollanden Night. Be careful what you argue when you're dealing 0:07:20.320 --> 0:07:23.120 with Special Counsel Robert Muller. You may get a two 0:07:23.400 --> 0:07:26.760 d eighty two page response from Mueller shooting down your argument, 0:07:26.840 --> 0:07:30.559 as Paul Manafort did. The former Trump campaign chairman argued 0:07:30.600 --> 0:07:34.400 that prosecutors overstepped their authority by charging him with crimes 0:07:34.400 --> 0:07:39.040 beyond Russian meddling in the presidential election. The Special Counsel 0:07:39.120 --> 0:07:42.680 responded with a detailed memo explaining his power to investigate 0:07:42.720 --> 0:07:46.920 and charge Manifort, and attaching a secret government memorandum from 0:07:47.000 --> 0:07:51.680 Acting Attorney General Rod Rosenstein detailing that authority and confirming 0:07:51.680 --> 0:07:57.000 the oversight Rosenstein testified to before Congress last December. I 0:07:57.080 --> 0:08:01.320 know what he's doing. I'm appropriately exercising my oversight responsibilities, 0:08:01.680 --> 0:08:04.040 and so I can assure you that the Special Council 0:08:04.480 --> 0:08:07.760 is conducting himself consistently with our understanding about the scope 0:08:07.760 --> 0:08:11.040 of his investigation. My guest is William Banks, a professor 0:08:11.080 --> 0:08:15.480 at Syracuse University Law School. Bill, does this memo shut 0:08:15.560 --> 0:08:21.040 down this part of Manafort's defense strategy? I think it does. June. 0:08:21.520 --> 0:08:25.800 You recall earlier Manafort brought a civil action to attempt 0:08:25.880 --> 0:08:30.640 to quash the lawsuit on the grounds that the investigation 0:08:30.800 --> 0:08:35.320 was beyond the scope of Mueller's authority. That's going nowhere. 0:08:35.360 --> 0:08:39.000 And now he's done what he what most criminal defendants 0:08:39.040 --> 0:08:42.439 would do, which is to challenge the authority for the investigation. 0:08:43.120 --> 0:08:46.559 But I think even without the new memorandum that you 0:08:46.720 --> 0:08:50.040 dis referenced in your clip, that the argument was a 0:08:50.080 --> 0:08:53.959 long shot. And I think now with the memorandum specifically 0:08:54.160 --> 0:08:59.600 detailing the kind of questions that Mueller was investigating concerning Manaford, 0:08:59.640 --> 0:09:02.680 I think it's uh game seven match. I think it's over. 0:09:03.720 --> 0:09:06.960 There's a footnote in the memo from a section of 0:09:06.960 --> 0:09:09.959 the Code of Federal Regulations which notes that the Special 0:09:09.960 --> 0:09:13.880 Council has the authority to investigate federal crimes that interfere 0:09:13.920 --> 0:09:18.200 with the Special Council's investigation, such as perjury, obstruction of justice, 0:09:18.480 --> 0:09:22.640 destruction of evidence, and intimidation of witnesses. They didn't have 0:09:22.760 --> 0:09:25.920 to put that footnote in. Is it a warning shot 0:09:26.000 --> 0:09:31.160 Muller's firing, Well, it might be, given the given the record. 0:09:31.280 --> 0:09:35.000 Even you know, this memo was stated August, so in 0:09:35.040 --> 0:09:38.400 the months before that, we already had evidence beginning with 0:09:38.559 --> 0:09:42.680 Mr Flynn, that people in the campaign are central to 0:09:42.720 --> 0:09:47.120 the Trump organization might not have been completely forthcoming, shall 0:09:47.160 --> 0:09:50.760 we say, in their interviews with the Independent Council's office. 0:09:50.800 --> 0:09:54.640 So I think it is a warning is does this 0:09:54.800 --> 0:09:58.600 does this memo show how meticulous the Special Counsel is 0:09:59.200 --> 0:10:03.880 as he gets his authority? While they're highly meticulous, they 0:10:03.920 --> 0:10:07.080 have been from the beginning. Uh that they don't leak. 0:10:07.880 --> 0:10:12.680 Mueller does not make public statements. It's it's an extraordinarily 0:10:13.280 --> 0:10:18.480 efficiently and professionally run organization, and we shouldn't expect anything different, 0:10:18.520 --> 0:10:22.200 I think, until its conclusion. The Washington Post reported that 0:10:22.280 --> 0:10:25.960 Mueller informed President Trump's attorneys last month that he does 0:10:26.000 --> 0:10:28.760 not consider Trump to be a criminal target in the 0:10:28.840 --> 0:10:34.280 Russia investigation. Explain the implications of being a criminal target 0:10:34.440 --> 0:10:38.440 and whether this means Trump is in the clear, Yes, 0:10:38.840 --> 0:10:42.880 it's a It is an important use of language here. 0:10:43.040 --> 0:10:45.960 So he's not a target. That means that he's not 0:10:46.080 --> 0:10:50.640 subject to indictment. And that is because it's almost certain 0:10:50.679 --> 0:10:54.200 that a president may not be legally indicted while he's 0:10:54.200 --> 0:10:58.160 still in office. That's Justice Department policy, and it has 0:10:58.200 --> 0:11:01.480 been for a long time, and it's highly unlikely that Mr. 0:11:01.559 --> 0:11:05.360 Mueller would attempt to circumvent or or make a case 0:11:05.440 --> 0:11:09.800 against existing Justice Department policy. At the same time, he 0:11:09.800 --> 0:11:13.080 he indicated that the president is a subject of the 0:11:13.120 --> 0:11:16.920 investigation instead of a target subject, means that he's still 0:11:16.960 --> 0:11:19.640 talking to the president, and that the material that the 0:11:19.679 --> 0:11:24.800 President might provide to Mueller or his team could assist 0:11:24.960 --> 0:11:29.800 in developing evidence that could be used against others who 0:11:29.840 --> 0:11:33.960 could become targets or who eventually could include the President 0:11:34.400 --> 0:11:37.120 as a potential target down the road. If he wasn't 0:11:37.120 --> 0:11:40.640 a subject of the investigation, he might be characterized, say 0:11:40.679 --> 0:11:44.240 as a witness, But he wasn't. He was characterized as 0:11:44.240 --> 0:11:47.880 a subject. So that Mueller still believes that the President's 0:11:47.880 --> 0:11:49.959 got something to say that it's going to be useful 0:11:50.440 --> 0:11:52.640 to them as they try to get to the bottom 0:11:52.679 --> 0:11:55.800 of the rusher portion of this investigation, as well as 0:11:55.840 --> 0:12:02.240 the obstruction possibility involving the president's Hell, I know it's 0:12:02.240 --> 0:12:05.920 never been done before, but could a president be indicted 0:12:06.120 --> 0:12:09.920 after he leaves office? Yes, he could, uh, and then 0:12:09.920 --> 0:12:12.720 he's a citizen like you and me, so he's subject 0:12:12.760 --> 0:12:16.320 to indictment at that time. It could happen. But you 0:12:16.320 --> 0:12:18.760 know the more the more likely remedy is the one 0:12:18.800 --> 0:12:21.240 that's been exercised a few times in our history. That 0:12:21.440 --> 0:12:26.720 is impeachment. If there are serious charges that could give grabs. Bill, 0:12:27.240 --> 0:12:31.520 why do you think Mueller wants an interview with Trump 0:12:31.840 --> 0:12:33.880 so much? I mean, they keep pressing it. They haven't 0:12:33.920 --> 0:12:38.120 served as subpoena, right. I think there are two two 0:12:39.080 --> 0:12:41.800 lines of inquiry that Mr Mueller would very much like 0:12:41.920 --> 0:12:46.280 to pursue with the President. One involves the circumstances surrounding 0:12:46.400 --> 0:12:50.360 the termination of Mr Comey. Did Trump fire call me 0:12:50.440 --> 0:12:54.040 because of Comey's refusal to say that he was not 0:12:55.040 --> 0:12:59.720 a target of the of the investigation. The second line 0:12:59.720 --> 0:13:03.840 of courses his knowledge the President's knowledge about what members 0:13:03.880 --> 0:13:08.920 of his team campaign related or otherwise UH did or 0:13:09.000 --> 0:13:14.760 had communications with Russians or others involved outside the United 0:13:14.800 --> 0:13:22.520 States in attempt to support his candidacy. So, Bill Manafort 0:13:22.800 --> 0:13:26.840 has really come under fire from Mueller. He has all 0:13:26.920 --> 0:13:30.360 these different you know, the the indictments against him, He's 0:13:30.400 --> 0:13:33.840 got Gates to testify against him. We don't know what 0:13:33.920 --> 0:13:38.200 else he has. Do you suppose that Mueller is still 0:13:38.240 --> 0:13:44.439 hoping that that Manafort will flip. I believe he is. 0:13:44.720 --> 0:13:47.360 That's the way that if you're reading Tea Leaves, I 0:13:47.400 --> 0:13:50.280 think here every day the screws turn a little tighter 0:13:50.760 --> 0:13:54.400 against Mr Manaford. And the almost certain failure of this 0:13:54.520 --> 0:13:58.600 motion to dismiss the indictment that we talked about earlier, 0:13:58.640 --> 0:14:02.040 I think it tightens this cruise yet again. And so 0:14:02.200 --> 0:14:06.520 now uh, Mr Manafort might be looking for a presidential 0:14:06.559 --> 0:14:10.320 pardon and absent to pardon, I think we might be 0:14:10.400 --> 0:14:13.120 looking at a at a flip, because otherwise he's in 0:14:13.400 --> 0:14:18.680 very serious legal jeopardy. Well, we have about forty five 0:14:18.720 --> 0:14:22.400 seconds left. You brought up the pardon. What if he 0:14:22.440 --> 0:14:25.800 does get a pardon from a presidential pardon that wouldn't 0:14:25.840 --> 0:14:30.800 cover crimes in New York and supposedly the New York 0:14:31.520 --> 0:14:36.000 um a G is looking into this. Yes, that's correct, 0:14:37.040 --> 0:14:39.480 and that would be true if others involved in in 0:14:39.520 --> 0:14:43.040 this entire investigation as well, and some circumstances, there are 0:14:43.600 --> 0:14:46.880 potential state charges I know I've heard in New York 0:14:46.920 --> 0:14:50.480 and possibly Pennsylvania for some of the officials under investigation. 0:14:50.880 --> 0:14:54.240 That's why we have a federal system. So the federal uh, 0:14:54.520 --> 0:14:59.080 the federal pardon is only part of the UH concern 0:14:59.240 --> 0:15:02.320 that each of them would have to focus on all right, Bill, 0:15:02.400 --> 0:15:05.640 Thanks as always. That's William Banks, a professor at Syracuse 0:15:05.720 --> 0:15:09.400 University Law School. Thanks for listening to the Bloomberg Law Podcast. 0:15:09.760 --> 0:15:13.840 You can subscribe and listen to the show on Apple Podcasts, SoundCloud, 0:15:13.920 --> 0:15:17.800 and on Bloomberg dot com slash podcast. I'm June Brosso. 0:15:18.280 --> 0:15:23.120 This is Bloomberg Ye.