Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Eighteen states, six
Speaker 1: cities in a biparisan US conference of mayors are suing
Speaker 1: to block the Trump administration from adding a citizenship question
Speaker 1: Toss California fog the lawsuit to block the question last week.
Speaker 1: Joining me is Leon Fresco, a partner at Hollandon Knight Leon.
Speaker 1: What are the plaintiffs arguing in the lawsuit? The planetifs
Speaker 1: essentially have one simple claim, which is that the constitutional
Speaker 1: requirement of counting every single person, which is required by
Speaker 1: the Constitution, is undermined and diminished by the count by
Speaker 1: the requirement of a citizenship question. Hey in that the
Speaker 1: addition of this question violates both the Constitution and the
Speaker 1: Administrative Procedure Act because the government is intentionally including a
Speaker 1: question that they know will produce an undercounted census. So
Speaker 1: is this another case where the argument is that the
Speaker 1: Trump administration hasn't followed the proper procedures for putting in
Speaker 1: another question. Correct, there's two are there's two cases. There's
Speaker 1: two sorry, there's two claims. One is that they haven't
Speaker 1: followed the proper procedures because they say that there are
Speaker 1: many times when a question is added in the census,
Speaker 1: the tradition is that you have many test samples that
Speaker 1: you do to see if that question actually hurts participation
Speaker 1: in the census. And they say that this new question
Speaker 1: hasn't been tested, and that, in fact, the position of
Speaker 1: the federal government since nineteen eighty every time it's been
Speaker 1: asked is that a citizenship question reduces participation, and so
Speaker 1: the agency couldn't ship position so quickly and say that
Speaker 1: this wouldn't decrease the number of people participating without actually
Speaker 1: having tested it. And then second, they say that this
Speaker 1: is just illegal because they because the Constitution requires an
Speaker 1: actual enumeration of all people in the United States, doing
Speaker 1: something that that the government knows won't produce an actual
Speaker 1: enumeration of all people in the United States violates the law.
Speaker 1: Leon what's the response of the Trump administration been, what's
Speaker 1: their defense to this? So the Trump administration says two things.
Speaker 1: One that prior to nineteen fifty, this question was asked
Speaker 1: and nobody sued, and nobody thought it was a problem
Speaker 1: for the Census, And then even since nineteen fifty, not
Speaker 1: in the census itself, but in the American Community Survey,
Speaker 1: which is a survey that the Census Bureau does every
Speaker 1: couple of years and they do it as part of
Speaker 1: the Department of Commerce, that this question is asked and
Speaker 1: that this doesn't reduce participation. That's their view. Uh, people
Speaker 1: might might disagree about that. And and they also say
Speaker 1: that this question is needed in order to make decisions
Speaker 1: about who are how these district works in terms of
Speaker 1: the Voting Rights Act, so that they can actually try
Speaker 1: to figure out what are fair districts that aren't discriminatory,
Speaker 1: and that if you if you only know pure numbers
Speaker 1: and that numbers of voters, you might not be able
Speaker 1: to appropriately make districts that are not discriminatory. Leon is
Speaker 1: there any evidence it seems likely that immigrants who are
Speaker 1: are not who are not legally here wouldn't want to
Speaker 1: go and complete this census for him if this question
Speaker 1: is asked, but is there any evidence that backs it up? Well,
Speaker 1: the the the problem is no, it's a lot of
Speaker 1: a lot of this is speculative and conjecture with the
Speaker 1: with the one caveat that that is the stated position
Speaker 1: of the Centers Bureau since nineteen eighty. So there was
Speaker 1: a brief that was done by nine UH. There was
Speaker 1: an amicus brief that was done UH in a different case,
Speaker 1: not about adding the question itself, but where nine previous
Speaker 1: directors of the sense of Census Bureau and a bi
Speaker 1: partisan basis all stated in the brief that it is
Speaker 1: their belief that adding the citizenship question would decrease participation.
Speaker 1: And what the States say in this lawsuit is, even
Speaker 1: if you didn't think that before, now, with the kinds
Speaker 1: of policies the Trump administration is putting in, people have
Speaker 1: more of a reason to be afraid. And so we've
Speaker 1: never tested this environment of asking a question like this
Speaker 1: in this environment where imagine if a government census worker
Speaker 1: is actually coming up to you and asking you this question,
Speaker 1: can you confuse them potentially if you're an undocumented person
Speaker 1: for an ICE agent. And so this is the concern
Speaker 1: and the fear about adding this question. At this point,
Speaker 1: there are already moves in Congress to stop this question
Speaker 1: from being asked and including by two New York representatives.
Speaker 1: Carolyn Maloney has introduced a bill and Jose Serrano says
Speaker 1: he's going to offer an amendment to the fiscal im
Speaker 1: the best spending bill is are any moves in Congress
Speaker 1: likely to stop this? Well, if they were to defund
Speaker 1: so for Mr Serrano's bill, for instance, he's the ranking
Speaker 1: member on what's called the Commerce, Justice, and Science Appropriations Committee,
Speaker 1: and so if he actually was successful in defunding the
Speaker 1: ability to ask that question in the census, then that
Speaker 1: question could not be asked in the census. But the
Speaker 1: question is in all of these kinds of issues, if
Speaker 1: Democrats on mass vote against something like that and say
Speaker 1: we won't vote for a spending bill that actually includes this,
Speaker 1: then what they're doing is theoretically shutting down the government
Speaker 1: over the census question. And that's where it becomes tops
Speaker 1: is are they really willing to go to that length
Speaker 1: in order to get the sense of question not placed
Speaker 1: in there? Because that's what your bargaining chip is when
Speaker 1: you're trying to put it in an appropriations bill. And
Speaker 1: so that's the question that no one knows. All right,
Speaker 1: So about a minute here, Leon, how likely is it
Speaker 1: that a coordinated New Yorker California will at least put
Speaker 1: the question on whole while the litigation proceeds. I think
Speaker 1: it's pretty likely that given that the given that this
Speaker 1: lawsuit was filed in the Southern District of New York,
Speaker 1: where there are a lot of judges that are sympathetic
Speaker 1: to this case, if for no other reason, also because
Speaker 1: you know, the number of judges ends up getting a
Speaker 1: portions a lot of times based on the size of
Speaker 1: the population, etcetera, I think that I think you could
Speaker 1: see an injunction for for the meantime been saying look,
Speaker 1: this wasn't tested, the procedure wasn't done, wasn't done. But
Speaker 1: I do think, uh, it will be hard to sort
Speaker 1: of figure out what the irreparable harm will be to
Speaker 1: move that through the through the court quickly. But the
Speaker 1: government will certainly argue that it's irreparably harmed by not
Speaker 1: adding not asking this question, which is kind of hard
Speaker 1: to prove because seventh decade they haven't asked the question.
Speaker 1: So if they just get one injunction, it'll be hard
Speaker 1: to get it back in the census in time. Okay,
Speaker 1: thanks as always, Leon, that's Leon Fresco, a partner at
Speaker 1: hollanden Night. Be careful what you argue when you're dealing
Speaker 1: with Special Counsel Robert Muller. You may get a two
Speaker 1: d eighty two page response from Mueller shooting down your argument,
Speaker 1: as Paul Manafort did. The former Trump campaign chairman argued
Speaker 1: that prosecutors overstepped their authority by charging him with crimes
Speaker 1: beyond Russian meddling in the presidential election. The Special Counsel
Speaker 1: responded with a detailed memo explaining his power to investigate
Speaker 1: and charge Manifort, and attaching a secret government memorandum from
Speaker 1: Acting Attorney General Rod Rosenstein detailing that authority and confirming
Speaker 1: the oversight Rosenstein testified to before Congress last December. I
Speaker 1: know what he's doing. I'm appropriately exercising my oversight responsibilities,
Speaker 1: and so I can assure you that the Special Council
Speaker 1: is conducting himself consistently with our understanding about the scope
Speaker 1: of his investigation. My guest is William Banks, a professor
Speaker 1: at Syracuse University Law School. Bill, does this memo shut
Speaker 1: down this part of Manafort's defense strategy? I think it does. June.
Speaker 1: You recall earlier Manafort brought a civil action to attempt
Speaker 1: to quash the lawsuit on the grounds that the investigation
Speaker 1: was beyond the scope of Mueller's authority. That's going nowhere.
Speaker 1: And now he's done what he what most criminal defendants
Speaker 1: would do, which is to challenge the authority for the investigation.
Speaker 1: But I think even without the new memorandum that you
Speaker 1: dis referenced in your clip, that the argument was a
Speaker 1: long shot. And I think now with the memorandum specifically
Speaker 1: detailing the kind of questions that Mueller was investigating concerning Manaford,
Speaker 1: I think it's uh game seven match. I think it's over.
Speaker 1: There's a footnote in the memo from a section of
Speaker 1: the Code of Federal Regulations which notes that the Special
Speaker 1: Council has the authority to investigate federal crimes that interfere
Speaker 1: with the Special Council's investigation, such as perjury, obstruction of justice,
Speaker 1: destruction of evidence, and intimidation of witnesses. They didn't have
Speaker 1: to put that footnote in. Is it a warning shot
Speaker 1: Muller's firing, Well, it might be, given the given the record.
Speaker 1: Even you know, this memo was stated August, so in
Speaker 1: the months before that, we already had evidence beginning with
Speaker 1: Mr Flynn, that people in the campaign are central to
Speaker 1: the Trump organization might not have been completely forthcoming, shall
Speaker 1: we say, in their interviews with the Independent Council's office.
Speaker 1: So I think it is a warning is does this
Speaker 1: does this memo show how meticulous the Special Counsel is
Speaker 1: as he gets his authority? While they're highly meticulous, they
Speaker 1: have been from the beginning. Uh that they don't leak.
Speaker 1: Mueller does not make public statements. It's it's an extraordinarily
Speaker 1: efficiently and professionally run organization, and we shouldn't expect anything different,
Speaker 1: I think, until its conclusion. The Washington Post reported that
Speaker 1: Mueller informed President Trump's attorneys last month that he does
Speaker 1: not consider Trump to be a criminal target in the
Speaker 1: Russia investigation. Explain the implications of being a criminal target
Speaker 1: and whether this means Trump is in the clear, Yes,
Speaker 1: it's a It is an important use of language here.
Speaker 1: So he's not a target. That means that he's not
Speaker 1: subject to indictment. And that is because it's almost certain
Speaker 1: that a president may not be legally indicted while he's
Speaker 1: still in office. That's Justice Department policy, and it has
Speaker 1: been for a long time, and it's highly unlikely that Mr.
Speaker 1: Mueller would attempt to circumvent or or make a case
Speaker 1: against existing Justice Department policy. At the same time, he
Speaker 1: he indicated that the president is a subject of the
Speaker 1: investigation instead of a target subject, means that he's still
Speaker 1: talking to the president, and that the material that the
Speaker 1: President might provide to Mueller or his team could assist
Speaker 1: in developing evidence that could be used against others who
Speaker 1: could become targets or who eventually could include the President
Speaker 1: as a potential target down the road. If he wasn't
Speaker 1: a subject of the investigation, he might be characterized, say
Speaker 1: as a witness, But he wasn't. He was characterized as
Speaker 1: a subject. So that Mueller still believes that the President's
Speaker 1: got something to say that it's going to be useful
Speaker 1: to them as they try to get to the bottom
Speaker 1: of the rusher portion of this investigation, as well as
Speaker 1: the obstruction possibility involving the president's Hell, I know it's
Speaker 1: never been done before, but could a president be indicted
Speaker 1: after he leaves office? Yes, he could, uh, and then
Speaker 1: he's a citizen like you and me, so he's subject
Speaker 1: to indictment at that time. It could happen. But you
Speaker 1: know the more the more likely remedy is the one
Speaker 1: that's been exercised a few times in our history. That
Speaker 1: is impeachment. If there are serious charges that could give grabs. Bill,
Speaker 1: why do you think Mueller wants an interview with Trump
Speaker 1: so much? I mean, they keep pressing it. They haven't
Speaker 1: served as subpoena, right. I think there are two two
Speaker 1: lines of inquiry that Mr Mueller would very much like
Speaker 1: to pursue with the President. One involves the circumstances surrounding
Speaker 1: the termination of Mr Comey. Did Trump fire call me
Speaker 1: because of Comey's refusal to say that he was not
Speaker 1: a target of the of the investigation. The second line
Speaker 1: of courses his knowledge the President's knowledge about what members
Speaker 1: of his team campaign related or otherwise UH did or
Speaker 1: had communications with Russians or others involved outside the United
Speaker 1: States in attempt to support his candidacy. So, Bill Manafort
Speaker 1: has really come under fire from Mueller. He has all
Speaker 1: these different you know, the the indictments against him, He's
Speaker 1: got Gates to testify against him. We don't know what
Speaker 1: else he has. Do you suppose that Mueller is still
Speaker 1: hoping that that Manafort will flip. I believe he is.
Speaker 1: That's the way that if you're reading Tea Leaves, I
Speaker 1: think here every day the screws turn a little tighter
Speaker 1: against Mr Manaford. And the almost certain failure of this
Speaker 1: motion to dismiss the indictment that we talked about earlier,
Speaker 1: I think it tightens this cruise yet again. And so
Speaker 1: now uh, Mr Manafort might be looking for a presidential
Speaker 1: pardon and absent to pardon, I think we might be
Speaker 1: looking at a at a flip, because otherwise he's in
Speaker 1: very serious legal jeopardy. Well, we have about forty five
Speaker 1: seconds left. You brought up the pardon. What if he
Speaker 1: does get a pardon from a presidential pardon that wouldn't
Speaker 1: cover crimes in New York and supposedly the New York
Speaker 1: um a G is looking into this. Yes, that's correct,
Speaker 1: and that would be true if others involved in in
Speaker 1: this entire investigation as well, and some circumstances, there are
Speaker 1: potential state charges I know I've heard in New York
Speaker 1: and possibly Pennsylvania for some of the officials under investigation.
Speaker 1: That's why we have a federal system. So the federal uh,
Speaker 1: the federal pardon is only part of the UH concern
Speaker 1: that each of them would have to focus on all right, Bill,
Speaker 1: Thanks as always. That's William Banks, a professor at Syracuse
Speaker 1: University Law School. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg Ye.