1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,760 --> 00:00:12,080 Speaker 2: The Supreme Court deadlocked four to four today in a 3 00:00:12,200 --> 00:00:16,320 Speaker 2: major case over the separation of religion and government, thwarting 4 00:00:16,320 --> 00:00:19,680 Speaker 2: an effort to create the nation's first faith based charter 5 00:00:19,760 --> 00:00:23,240 Speaker 2: school in Oklahoma. The tie was the result of Justice 6 00:00:23,239 --> 00:00:27,520 Speaker 2: Amy Coney Barrett's recusal in the case. The Supreme Court's 7 00:00:27,680 --> 00:00:32,159 Speaker 2: one sentence order didn't reveal which justices were on which 8 00:00:32,200 --> 00:00:35,320 Speaker 2: side of the divide, but during the oral arguments it 9 00:00:35,360 --> 00:00:39,520 Speaker 2: seemed apparent that four conservative justices were likely to side 10 00:00:39,520 --> 00:00:42,680 Speaker 2: with the charter school and the three liberal justices were 11 00:00:42,800 --> 00:00:46,880 Speaker 2: likely to side with Oklahoma, leaving Chief Justice John Roberts 12 00:00:46,920 --> 00:00:50,600 Speaker 2: as the key vote. And the Chief distinguished this case 13 00:00:50,880 --> 00:00:54,400 Speaker 2: from past Supreme Court decisions backing the use of public 14 00:00:54,520 --> 00:00:56,600 Speaker 2: money for religious schools. 15 00:00:56,400 --> 00:01:04,000 Speaker 3: Trinity luther and Espinoza Carson, those involved fairly discreete state involvement. 16 00:01:04,120 --> 00:01:06,760 Speaker 3: In Trinity Lutheran, they're going to pave the or you know, 17 00:01:06,840 --> 00:01:10,959 Speaker 3: put woodchips on the playground. In Espinosa, it was a 18 00:01:11,000 --> 00:01:16,560 Speaker 3: tuition credit. In Carson again, tax credits. I mean, this 19 00:01:16,640 --> 00:01:24,080 Speaker 3: does strike me as a much more comprehensive involvement. 20 00:01:24,680 --> 00:01:28,720 Speaker 2: The split means the Oklahoma Supreme Court ruling that rejected 21 00:01:28,760 --> 00:01:33,039 Speaker 2: the creation of Saint Isidore of Seville Catholic Virtual School 22 00:01:33,319 --> 00:01:36,920 Speaker 2: remains in place, and it leaves open the question of 23 00:01:36,959 --> 00:01:42,360 Speaker 2: whether states with taxpayer funded charter school programs are constitutionally 24 00:01:42,440 --> 00:01:47,440 Speaker 2: required to incorporate religious institutions. Joining me is religious liberty 25 00:01:47,480 --> 00:01:51,800 Speaker 2: expert Stephanie Barklay, a professor at Georgetown Law and faculty 26 00:01:51,840 --> 00:01:56,360 Speaker 2: co director at the Georgetown Center for the Constitution. How 27 00:01:56,560 --> 00:02:00,000 Speaker 2: important is this case? What would the consequences have been 28 00:02:00,080 --> 00:02:04,680 Speaker 2: in if the court had allowed the nation's first faith 29 00:02:04,760 --> 00:02:06,320 Speaker 2: based charter school. 30 00:02:06,960 --> 00:02:09,240 Speaker 4: So there's really two questions there. The one question is 31 00:02:09,720 --> 00:02:12,680 Speaker 4: if the court had ruled in favor of the faith 32 00:02:12,720 --> 00:02:15,760 Speaker 4: based charter school, how important of a decision would it 33 00:02:15,760 --> 00:02:18,480 Speaker 4: have been? And that would have been a landmark case, 34 00:02:18,520 --> 00:02:19,960 Speaker 4: that would have been the first time that we had 35 00:02:20,200 --> 00:02:23,120 Speaker 4: a face based charter school and would have had some 36 00:02:23,280 --> 00:02:26,480 Speaker 4: significant implications, probably not just for faith based schools and 37 00:02:26,600 --> 00:02:29,480 Speaker 4: charter schools, but potentially in other states as well. Now 38 00:02:29,480 --> 00:02:32,279 Speaker 4: there's the second question, which is, Okay, well, how significant 39 00:02:32,720 --> 00:02:35,680 Speaker 4: is the court's decision given that it's just, you know, 40 00:02:36,080 --> 00:02:39,240 Speaker 4: a very brief order without an opinion for for split 41 00:02:39,360 --> 00:02:41,680 Speaker 4: affirming the lower court decision. And at that point the 42 00:02:41,720 --> 00:02:44,240 Speaker 4: answer is, as a matter of precedent, that precedent is 43 00:02:44,280 --> 00:02:47,400 Speaker 4: not particularly important. It's not going to tell us you 44 00:02:47,400 --> 00:02:50,120 Speaker 4: know much about anything besides the fact that they're affirming 45 00:02:50,560 --> 00:02:54,040 Speaker 4: this case. There weren't five votes to reverse the Supreme 46 00:02:54,040 --> 00:02:56,240 Speaker 4: Court in Oklahoma, and in that way, it's going to 47 00:02:56,240 --> 00:02:58,040 Speaker 4: be of limited presidential effect. 48 00:02:58,440 --> 00:03:02,359 Speaker 2: Do the arguments from each side here reflect or involve 49 00:03:02,400 --> 00:03:07,000 Speaker 2: the tensions between the first amendments to religion clauses? 50 00:03:07,480 --> 00:03:09,880 Speaker 4: I don't think there is a tension between the two 51 00:03:09,919 --> 00:03:12,960 Speaker 4: religion clauses, and the Supreme Court emphasize that in its 52 00:03:13,040 --> 00:03:16,720 Speaker 4: recent case in Kennedy versus Birmerton School District. But largely 53 00:03:16,840 --> 00:03:20,160 Speaker 4: those clauses work together in a mutually reinforcing way. But 54 00:03:20,280 --> 00:03:22,959 Speaker 4: this case does highlight the way in which you could 55 00:03:22,960 --> 00:03:25,880 Speaker 4: get a different outcome under either of those clauses, depending 56 00:03:25,880 --> 00:03:29,400 Speaker 4: on whether we're dealing with a private school or a 57 00:03:29,440 --> 00:03:32,320 Speaker 4: government school. Because if it's a government school, then it 58 00:03:32,360 --> 00:03:36,360 Speaker 4: is pretty clear that government doesn't get to run religious 59 00:03:36,360 --> 00:03:39,280 Speaker 4: programs where it's preferring one type of denomination over another, 60 00:03:39,400 --> 00:03:42,400 Speaker 4: or setting out religious liturgy and things like that would 61 00:03:42,400 --> 00:03:45,480 Speaker 4: be prohibited under the approach to the establishment clause. The 62 00:03:45,520 --> 00:03:48,080 Speaker 4: Court has been taking post Kennedy where it looks at 63 00:03:48,120 --> 00:03:51,240 Speaker 4: the six historical hallmarks of an established religion. Now, if 64 00:03:51,240 --> 00:03:54,080 Speaker 4: it's a private school, then the free exercise clause is 65 00:03:54,120 --> 00:03:57,200 Speaker 4: the relevant focus. Then the question is can the government 66 00:03:57,280 --> 00:04:00,680 Speaker 4: exclude the private school? And the trajection of cases that 67 00:04:00,720 --> 00:04:04,880 Speaker 4: it has had in Trindi, Lutheran, Espinoza, and Carson makes 68 00:04:04,880 --> 00:04:07,080 Speaker 4: pretty clear that the Court taks the free exercise clause 69 00:04:07,120 --> 00:04:11,080 Speaker 4: for hibbits governments from excluding religiouschools just on that basis. 70 00:04:11,120 --> 00:04:13,640 Speaker 4: So it is a case that highlights for an outcomes 71 00:04:13,680 --> 00:04:16,440 Speaker 4: depending on the government versus private nature of the entity. 72 00:04:17,120 --> 00:04:20,960 Speaker 2: As you mentioned, we don't know how the justices voted. 73 00:04:21,279 --> 00:04:27,000 Speaker 2: The arguments suggested perhaps that the Chief Justice was the 74 00:04:27,080 --> 00:04:30,200 Speaker 2: pivotal vote who might have gone with the three liberals. 75 00:04:30,880 --> 00:04:33,320 Speaker 4: I think that that's probably the most likely outcome. That 76 00:04:33,440 --> 00:04:37,680 Speaker 4: you had the Chief Justice, Sonoyer, Kagan, and Jackson that 77 00:04:38,000 --> 00:04:42,160 Speaker 4: do not feel comfortable overruling the Oklahoma Supreme Court, and 78 00:04:42,200 --> 00:04:48,800 Speaker 4: then you had the other four justices, Justice Thomas, Alito, Gorsich, 79 00:04:48,839 --> 00:04:52,159 Speaker 4: and Kavanaugh. It probably would have ruled to overrule the 80 00:04:52,200 --> 00:04:55,719 Speaker 4: Oklahoma Supreme Court, and then of course Justice spirit is recusing. 81 00:04:55,760 --> 00:04:57,080 Speaker 4: So if I had to guess, then of course we 82 00:04:57,120 --> 00:04:58,320 Speaker 4: don't know. But if I had to guess, I think 83 00:04:58,320 --> 00:05:01,360 Speaker 4: that's what I would speculate that the vote likely would 84 00:05:01,400 --> 00:05:03,599 Speaker 4: have been. And of course, because they only got to 85 00:05:03,640 --> 00:05:06,880 Speaker 4: four four, that means it's an automatic affirmance of the 86 00:05:06,920 --> 00:05:07,799 Speaker 4: previous judgment. 87 00:05:08,320 --> 00:05:11,440 Speaker 2: The four to four tie was a product of Justice 88 00:05:11,680 --> 00:05:15,800 Speaker 2: amy Cony Barrett recusing herself. So since it's not a 89 00:05:15,880 --> 00:05:20,919 Speaker 2: nationwide precedent, is it likely that proponents of religious charter 90 00:05:21,080 --> 00:05:25,840 Speaker 2: schools will simply try again to create a school and 91 00:05:26,200 --> 00:05:29,120 Speaker 2: in a case where Justice Barrett can sit on the case. 92 00:05:30,200 --> 00:05:32,719 Speaker 4: So I think that that is certainly not for close 93 00:05:33,120 --> 00:05:36,080 Speaker 4: by the Court's opinion in this case, and a possibility 94 00:05:36,080 --> 00:05:38,440 Speaker 4: at some point in the future. I think the most 95 00:05:38,520 --> 00:05:41,440 Speaker 4: likely next case that you will see in the school 96 00:05:41,520 --> 00:05:45,680 Speaker 4: choice movement is Saint Dominic Academy versus Macon, which would 97 00:05:45,680 --> 00:05:47,920 Speaker 4: be coming out of Maine. This is a Beckett case. 98 00:05:48,160 --> 00:05:50,320 Speaker 4: It's possible other cases could too, but this is one 99 00:05:50,360 --> 00:05:53,159 Speaker 4: that is already in the court system, and it is 100 00:05:53,240 --> 00:05:57,599 Speaker 4: essentially Carson two point zero. So the same government that 101 00:05:57,680 --> 00:06:01,679 Speaker 4: the Supreme Court ruled against and Carves and revised their 102 00:06:02,120 --> 00:06:03,960 Speaker 4: laws when the case was sent back down to try 103 00:06:03,960 --> 00:06:07,200 Speaker 4: and find other creative ways to keep faith based schools 104 00:06:07,600 --> 00:06:09,440 Speaker 4: out of what is not a charter school system, but 105 00:06:09,520 --> 00:06:13,320 Speaker 4: it's just a traditional sort of voucher based school choice system. 106 00:06:13,880 --> 00:06:16,120 Speaker 4: And there are faith based schools that are challenging that 107 00:06:16,400 --> 00:06:18,520 Speaker 4: right now, and that's making its way through the court system. 108 00:06:18,960 --> 00:06:22,960 Speaker 4: And in oral argument in Saint Isidor, the justices distinguished 109 00:06:23,000 --> 00:06:26,200 Speaker 4: the program in Maine, which has always included private schools 110 00:06:26,200 --> 00:06:29,560 Speaker 4: and operates more like a traditional tuition voucher program from 111 00:06:29,560 --> 00:06:32,760 Speaker 4: the program in Oklahoma creating public charter schools, where a 112 00:06:32,760 --> 00:06:35,200 Speaker 4: lot of the dispute was over difficult questions related to 113 00:06:35,240 --> 00:06:38,560 Speaker 4: whether charter schools are in fact private or government schools, 114 00:06:38,560 --> 00:06:41,279 Speaker 4: And that sort of sticky issue just is not present 115 00:06:41,279 --> 00:06:43,520 Speaker 4: in the same way in the same dominant case. So 116 00:06:43,600 --> 00:06:46,920 Speaker 4: I think we're the court to take another school choice 117 00:06:47,040 --> 00:06:49,800 Speaker 4: sort of case. I think that's a more likely next step. 118 00:06:50,200 --> 00:06:52,400 Speaker 4: There are no cases right now percolating that I'm aware 119 00:06:52,400 --> 00:06:55,720 Speaker 4: of where there's another faith based charter school that has 120 00:06:55,760 --> 00:06:58,360 Speaker 4: been approved or requested to be created and been denied, 121 00:06:58,360 --> 00:06:59,840 Speaker 4: and that they're doing over that right now. 122 00:07:00,480 --> 00:07:04,560 Speaker 2: Has the Supreme Court in recent years expanded religious liberty 123 00:07:04,640 --> 00:07:06,440 Speaker 2: rights over other rights? 124 00:07:06,720 --> 00:07:08,679 Speaker 4: I don't think that I would say they've expanded religious 125 00:07:08,720 --> 00:07:12,160 Speaker 4: liberty rights over other rights, but they have certainly given 126 00:07:12,160 --> 00:07:16,520 Speaker 4: a lot of attention to and been solicitous towards religious claims. 127 00:07:16,880 --> 00:07:19,880 Speaker 4: And although there are certainly religious claimants that have been 128 00:07:19,920 --> 00:07:21,920 Speaker 4: before the courts that didn't win their case, and this 129 00:07:21,960 --> 00:07:23,600 Speaker 4: is another one, so I think I think this is 130 00:07:23,600 --> 00:07:26,679 Speaker 4: a court that takes balanced and cautious approaches while still 131 00:07:26,840 --> 00:07:29,960 Speaker 4: being sympathetic towards religious liberty claims and wanting to ensure 132 00:07:29,960 --> 00:07:33,040 Speaker 4: that it's providing for best protection under our First Amendments. 133 00:07:33,600 --> 00:07:37,800 Speaker 2: We're waiting for two more decisions from the Court in 134 00:07:37,840 --> 00:07:40,040 Speaker 2: religion cases. Tell us about those. 135 00:07:40,840 --> 00:07:44,680 Speaker 4: One is a case called Mafood and that is another 136 00:07:44,720 --> 00:07:48,200 Speaker 4: case in the educational context coming out of Maryland. And 137 00:07:48,280 --> 00:07:51,720 Speaker 4: this is a case where this school district has instituted 138 00:07:51,720 --> 00:07:55,480 Speaker 4: a policy where books are being read to children down 139 00:07:55,520 --> 00:07:59,480 Speaker 4: to elementary school and preschool that deal with issues related 140 00:07:59,520 --> 00:08:05,320 Speaker 4: to sexuality, gender identity. And there are parents who aren't 141 00:08:05,320 --> 00:08:08,680 Speaker 4: objecting to those books being read broadly, but would like 142 00:08:08,760 --> 00:08:11,040 Speaker 4: to be able to opt their children out in the 143 00:08:11,080 --> 00:08:13,840 Speaker 4: school in that case has said that they are not 144 00:08:14,200 --> 00:08:16,440 Speaker 4: allowed to opt their children out. Their only option is 145 00:08:16,480 --> 00:08:18,840 Speaker 4: to drop out of school altogether if they don't like 146 00:08:18,880 --> 00:08:21,600 Speaker 4: that policy. So the Supreme Court has heard oral argument 147 00:08:21,600 --> 00:08:24,480 Speaker 4: in that case, and it seems likely from oral arguments 148 00:08:24,520 --> 00:08:26,880 Speaker 4: that they will rule in favor of a religious parents 149 00:08:26,880 --> 00:08:29,560 Speaker 4: whose Muslim parents, Jewish parents, and Christian parents in a 150 00:08:29,600 --> 00:08:32,200 Speaker 4: coalition in that case. Another case is the Catholic Charity 151 00:08:32,240 --> 00:08:34,640 Speaker 4: is case that the Court heard before that that is 152 00:08:34,679 --> 00:08:37,800 Speaker 4: a case where there is a question of whether a 153 00:08:37,920 --> 00:08:43,360 Speaker 4: Catholic constitution can qualify for a tax benefit in the state. 154 00:08:43,720 --> 00:08:47,040 Speaker 4: The decision from the state Supreme Court had said that 155 00:08:47,200 --> 00:08:51,480 Speaker 4: if the Catholic groups were engaging in more typical religious behavior, 156 00:08:51,520 --> 00:08:53,280 Speaker 4: and we're organized in a more typical way, and we're 157 00:08:53,320 --> 00:08:57,480 Speaker 4: doing things like proselytizing to other individuals as part of 158 00:08:57,480 --> 00:09:00,800 Speaker 4: their ministry, then they would qualify for the tax benefits. 159 00:09:00,840 --> 00:09:06,080 Speaker 4: But because this Catholic charity does not proselytize and that's 160 00:09:06,080 --> 00:09:08,640 Speaker 4: not part of their mission. They would serve people of 161 00:09:08,640 --> 00:09:11,079 Speaker 4: their religious groups or not all alike, and they don't 162 00:09:11,080 --> 00:09:13,400 Speaker 4: try and convert people to their theology. Because the Catholic 163 00:09:13,760 --> 00:09:17,120 Speaker 4: Ministry doesn't do that on that basis, they don't qualify 164 00:09:17,160 --> 00:09:19,199 Speaker 4: for the tax benefit. And that was another case where 165 00:09:19,480 --> 00:09:22,800 Speaker 4: the Court seems quite skeptical of the government action. Justice 166 00:09:22,880 --> 00:09:25,480 Speaker 4: Kagan in that case even asked like, isn't it pretty 167 00:09:25,480 --> 00:09:28,079 Speaker 4: clear is that government doesn't get to tell people what 168 00:09:28,720 --> 00:09:32,920 Speaker 4: ordinary religious practices and which practices are approved and which 169 00:09:32,920 --> 00:09:35,000 Speaker 4: are not. So I mean, it's even impossible in that 170 00:09:35,040 --> 00:09:39,040 Speaker 4: case the government might be facing unanimous defeat. Certainly something 171 00:09:39,160 --> 00:09:41,200 Speaker 4: is likely that they could get eight one or seven 172 00:09:41,240 --> 00:09:42,400 Speaker 4: two votes in that case. 173 00:09:43,000 --> 00:09:47,400 Speaker 2: In today's Oklahoma case, were you surprised that there weren't 174 00:09:47,480 --> 00:09:50,400 Speaker 2: five votes for the religious charter school. 175 00:09:51,000 --> 00:09:53,560 Speaker 4: I think it's unfortunate that there weren't five votes. I 176 00:09:53,559 --> 00:09:56,960 Speaker 4: think it's possible that the Chief was concerned about lack 177 00:09:57,000 --> 00:09:59,240 Speaker 4: of percolation. This is the first case of its kind. 178 00:09:59,360 --> 00:10:02,120 Speaker 4: There aren't others cases that have grappled with this yet, 179 00:10:02,440 --> 00:10:05,120 Speaker 4: so hard to read the tea leaves about exactly what 180 00:10:05,280 --> 00:10:08,040 Speaker 4: was the worry for him. But I think it's promising 181 00:10:08,520 --> 00:10:11,240 Speaker 4: that this court doesn't have an opinion from the chief 182 00:10:11,400 --> 00:10:13,920 Speaker 4: sort of taking it out in a way that suggests 183 00:10:13,920 --> 00:10:15,640 Speaker 4: that this would be a permanent position. But leaving the 184 00:10:15,679 --> 00:10:18,439 Speaker 4: door open to future challengers and future cases. 185 00:10:19,640 --> 00:10:23,679 Speaker 2: So, then do you think that states that fund charter 186 00:10:23,800 --> 00:10:28,760 Speaker 2: schools should be required to fund religious charter schools. 187 00:10:29,559 --> 00:10:32,840 Speaker 4: I think that if a state is operating such that 188 00:10:32,880 --> 00:10:35,600 Speaker 4: they're using the label of like a government school, that 189 00:10:35,640 --> 00:10:39,520 Speaker 4: they're really treating it like a voucher, then I think 190 00:10:39,559 --> 00:10:43,199 Speaker 4: probably the functional analysis matters more than the labels do. 191 00:10:43,440 --> 00:10:46,760 Speaker 4: But if the government is really operating charter schools like 192 00:10:46,840 --> 00:10:49,800 Speaker 4: other government schools, then I think government should be entitled 193 00:10:49,840 --> 00:10:53,480 Speaker 4: to make choices about running secular government schools. So it 194 00:10:53,600 --> 00:10:56,040 Speaker 4: really just the devils in the details of how is 195 00:10:56,080 --> 00:10:59,520 Speaker 4: that particular government operating at school system, how much oversight 196 00:10:59,640 --> 00:11:02,199 Speaker 4: is there being even handed in the way it's approaching 197 00:11:02,240 --> 00:11:05,040 Speaker 4: that overside with the different types of churtis schools and 198 00:11:05,080 --> 00:11:07,720 Speaker 4: public schools, those are all going to be questions that 199 00:11:07,840 --> 00:11:10,120 Speaker 4: will be certainly relevant to the court should a case 200 00:11:10,160 --> 00:11:10,680 Speaker 4: like this arrive. 201 00:11:10,720 --> 00:11:14,400 Speaker 2: Again, thanks so much for joining me today. That's Professor 202 00:11:14,440 --> 00:11:18,120 Speaker 2: Stephanie Barklay of Georgetown Law coming up next on the 203 00:11:18,160 --> 00:11:22,520 Speaker 2: Bloomberg Law Show. The head of the Justice Department's Weaponization 204 00:11:22,760 --> 00:11:26,480 Speaker 2: Working Group says he'll name people who the Department was 205 00:11:26,720 --> 00:11:30,800 Speaker 2: unable to charge in order to shame them. You're listening 206 00:11:30,880 --> 00:11:35,439 Speaker 2: to Bloomberg. The Trump administration seems to be ratcheting up 207 00:11:35,480 --> 00:11:38,960 Speaker 2: its use of the legal system to target the president's 208 00:11:38,960 --> 00:11:44,080 Speaker 2: perceived enemies, including launching criminal investigations into New York Attorney 209 00:11:44,160 --> 00:11:48,680 Speaker 2: General Letitia James and former New York Governor Andrew Cuomo. 210 00:11:48,760 --> 00:11:52,680 Speaker 2: The Justice Department is also departing from its long held 211 00:11:52,720 --> 00:11:57,400 Speaker 2: policy by commenting publicly on cases that haven't been charged 212 00:11:57,480 --> 00:12:01,480 Speaker 2: yet and going one step further, promising to shame a 213 00:12:01,520 --> 00:12:05,840 Speaker 2: person publicly even if there's not enough evidence to charge them. 214 00:12:06,080 --> 00:12:09,599 Speaker 2: Here's Ed Martin, the new head of the DOJ's Weaponization 215 00:12:09,800 --> 00:12:10,520 Speaker 2: Working Group. 216 00:12:10,760 --> 00:12:13,360 Speaker 1: There are some really bad actors, some people that did 217 00:12:13,400 --> 00:12:16,040 Speaker 1: some really bad things to the American people, and if 218 00:12:16,080 --> 00:12:18,760 Speaker 1: they can be charged, will charge them. But if they 219 00:12:18,800 --> 00:12:21,319 Speaker 1: can't be charged, we will name them, and we will 220 00:12:21,400 --> 00:12:25,200 Speaker 1: name them. And in a culture that respects shame, they 221 00:12:25,240 --> 00:12:28,280 Speaker 1: should be people that are shamed. And that's a fact. 222 00:12:28,280 --> 00:12:29,360 Speaker 1: That's the way things work. 223 00:12:29,800 --> 00:12:32,760 Speaker 2: My guest is Barbara McQuaid, a professor at the University 224 00:12:32,760 --> 00:12:35,959 Speaker 2: of Michigan Law School and the former US Attorney for 225 00:12:36,040 --> 00:12:40,800 Speaker 2: the Eastern District of Michigan. Barbara. Attorney General Pam Bondi 226 00:12:40,880 --> 00:12:46,320 Speaker 2: has created this Weaponization Working Group that seems openly to 227 00:12:46,400 --> 00:12:51,360 Speaker 2: be designed to go after those that Trump claims weaponize 228 00:12:51,360 --> 00:12:55,559 Speaker 2: the legal system against him. Can you explain where they're 229 00:12:55,559 --> 00:12:56,520 Speaker 2: coming from here? 230 00:12:57,600 --> 00:12:59,880 Speaker 5: Well, it's difficult to know where they're coming from because 231 00:13:00,120 --> 00:13:03,000 Speaker 5: so different from the way we have thought about the 232 00:13:03,000 --> 00:13:06,480 Speaker 5: Department of Justice, at least since the Watergate era, which 233 00:13:06,600 --> 00:13:07,960 Speaker 5: was fifty years ago. 234 00:13:08,000 --> 00:13:08,240 Speaker 6: Now. 235 00:13:08,400 --> 00:13:10,360 Speaker 5: I think one of the things that's most troubling to 236 00:13:10,400 --> 00:13:13,360 Speaker 5: me is this memo that Attorney General Pam Bondi issued 237 00:13:13,400 --> 00:13:17,640 Speaker 5: on day one creating a Weaponization Working Group. It takes 238 00:13:17,679 --> 00:13:21,720 Speaker 5: the position that the last administration abused its power of 239 00:13:21,760 --> 00:13:25,200 Speaker 5: bringing criminal prosecution and said that she was going to 240 00:13:25,760 --> 00:13:28,839 Speaker 5: work to hold those people accountable, and then it names 241 00:13:28,840 --> 00:13:32,760 Speaker 5: by name people like Special Council Jack Smith and New 242 00:13:32,840 --> 00:13:36,720 Speaker 5: York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg. 243 00:13:36,720 --> 00:13:40,360 Speaker 5: Of course, these are all people who investigated Donald Trump 244 00:13:40,400 --> 00:13:43,079 Speaker 5: in the past, and so I think this is at 245 00:13:43,120 --> 00:13:47,800 Speaker 5: first a very significant piece of disinformation or propaganda to 246 00:13:47,840 --> 00:13:50,640 Speaker 5: suggests that they did something wrong, and then to suggest 247 00:13:50,679 --> 00:13:54,319 Speaker 5: that by turning the tables on them and going after them. 248 00:13:54,360 --> 00:13:57,760 Speaker 5: All she's doing is evening the score and holding them 249 00:13:57,800 --> 00:14:01,520 Speaker 5: accountable for their misconduct. It is credible distortion of the 250 00:14:01,559 --> 00:14:04,920 Speaker 5: facts and the history and the traditions of the Justice Department, 251 00:14:04,960 --> 00:14:08,960 Speaker 5: which by policy neither confirms nor denies even the existence 252 00:14:09,000 --> 00:14:11,600 Speaker 5: of an investigation. So the idea that we're going to 253 00:14:11,600 --> 00:14:14,320 Speaker 5: go after these people and look at them as opposed 254 00:14:14,320 --> 00:14:16,840 Speaker 5: to saying, you know, we look at conduct when it 255 00:14:16,880 --> 00:14:20,520 Speaker 5: appears to violate the law, in my view, this itself 256 00:14:20,800 --> 00:14:23,120 Speaker 5: is what it means to weaponize the Justice Department. 257 00:14:23,320 --> 00:14:27,440 Speaker 2: Ed Martin, the former interim DCUs attorney who has a 258 00:14:27,480 --> 00:14:31,560 Speaker 2: new role now as head of this weaponization working group, 259 00:14:32,000 --> 00:14:37,240 Speaker 2: made some remarkable statements that if they can't be charged, 260 00:14:37,440 --> 00:14:41,800 Speaker 2: we'll name them. Is that ethical and does that comport 261 00:14:41,880 --> 00:14:43,640 Speaker 2: with Justice Department policy? 262 00:14:44,480 --> 00:14:44,640 Speaker 6: No? 263 00:14:45,000 --> 00:14:47,200 Speaker 5: So, you know, the Ed Martin story is in some 264 00:14:47,240 --> 00:14:50,080 Speaker 5: ways a really bad story. There's parts of history that 265 00:14:50,120 --> 00:14:52,280 Speaker 5: are a good story. I think because Donald Trump, of 266 00:14:52,280 --> 00:14:55,000 Speaker 5: course put him in place as the interim UIs Attorney 267 00:14:55,440 --> 00:14:58,400 Speaker 5: in Washington, d C. But it appeared he was not 268 00:14:58,520 --> 00:15:00,720 Speaker 5: going to get the votes in the sense even by 269 00:15:00,720 --> 00:15:04,320 Speaker 5: Senate Republicans, and so his nomination was withdrawn and he 270 00:15:04,400 --> 00:15:07,120 Speaker 5: was moved over to be the parton attorney and to 271 00:15:07,240 --> 00:15:11,120 Speaker 5: head this weaponization working group. So the good nugget there, 272 00:15:11,200 --> 00:15:14,040 Speaker 5: I think is that there is a redline for Congress 273 00:15:14,160 --> 00:15:16,680 Speaker 5: that the Senate is not going to allow somebody who 274 00:15:16,920 --> 00:15:21,320 Speaker 5: engages in political activity in the guise of a prosecutor 275 00:15:21,640 --> 00:15:23,640 Speaker 5: from holding such an important office. So I think that's 276 00:15:23,680 --> 00:15:26,080 Speaker 5: good news. But to get to your question, no, this 277 00:15:26,280 --> 00:15:29,840 Speaker 5: is not at all the way prosecutors are supposed to 278 00:15:29,880 --> 00:15:33,520 Speaker 5: conduct themselves. The idea that I'm going to investigate and 279 00:15:33,640 --> 00:15:36,120 Speaker 5: even if I do not find sufficient evidence of the crime, 280 00:15:36,560 --> 00:15:39,920 Speaker 5: I am going to share whatever I found about you. 281 00:15:40,040 --> 00:15:42,320 Speaker 5: I'm going to put your name out there because my 282 00:15:42,400 --> 00:15:45,600 Speaker 5: goal is to bring you shame. So first, it is 283 00:15:45,680 --> 00:15:49,160 Speaker 5: unethical for a prosecutor to make extra judicial statements that 284 00:15:49,240 --> 00:15:51,200 Speaker 5: are harmful to a person that are not within the 285 00:15:51,240 --> 00:15:55,680 Speaker 5: four corners of a charging document. That's problematic. It has 286 00:15:55,720 --> 00:15:59,000 Speaker 5: also been the Department of Justice policy for the past 287 00:15:59,320 --> 00:16:02,040 Speaker 5: fifty years, as we said, to neither confirm nor deny 288 00:16:02,080 --> 00:16:06,160 Speaker 5: the existence of an investigation, so that a person's reputation 289 00:16:06,760 --> 00:16:11,800 Speaker 5: will not be harmed if no charges ever materialize. And 290 00:16:11,880 --> 00:16:15,640 Speaker 5: we saw this at lay when Jim Comey was run 291 00:16:15,680 --> 00:16:18,960 Speaker 5: out of his job as FBI director. You may recall 292 00:16:19,320 --> 00:16:22,400 Speaker 5: that Donald Trump claimed that the reason that Jim Comey 293 00:16:22,520 --> 00:16:24,800 Speaker 5: was fired as FBI director was because he received a 294 00:16:24,800 --> 00:16:28,080 Speaker 5: memo from Rod Rosenstein, who was the Deputy Attorney General 295 00:16:28,080 --> 00:16:31,720 Speaker 5: at the time, saying that James Comy had violated this 296 00:16:31,840 --> 00:16:36,000 Speaker 5: principle when he held that press conference castigating Hillary Clinton, 297 00:16:36,080 --> 00:16:39,280 Speaker 5: even though no charges were brought. He called her extremely careless, 298 00:16:39,760 --> 00:16:44,320 Speaker 5: and he complained about her publicly, which is inappropriate. Rod 299 00:16:44,400 --> 00:16:46,760 Speaker 5: Rosenstein said, so many others said so at the time, 300 00:16:46,840 --> 00:16:49,600 Speaker 5: and it's what cost Jim Comy his job. And now 301 00:16:49,640 --> 00:16:52,600 Speaker 5: the idea that Ed Martin, in this very prominent role, 302 00:16:53,120 --> 00:16:55,440 Speaker 5: is going to just use it as a place to 303 00:16:55,440 --> 00:16:58,080 Speaker 5: do the same even if there's no sufficient evidence to 304 00:16:58,080 --> 00:17:01,360 Speaker 5: bring charges, is in my view, an abuse of that 305 00:17:01,440 --> 00:17:02,320 Speaker 5: position of power. 306 00:17:02,960 --> 00:17:06,680 Speaker 2: So the Justice Department has launched a criminal investigation into 307 00:17:06,840 --> 00:17:10,439 Speaker 2: New York Attorney General Letitia James, who had secured a 308 00:17:10,600 --> 00:17:13,520 Speaker 2: four hundred and fifty four million dollar judgment against Trump 309 00:17:13,560 --> 00:17:17,639 Speaker 2: and the Trump organization. So the criminal investigation is for 310 00:17:18,040 --> 00:17:21,040 Speaker 2: mortgage fraud, and the head of the FBI has already 311 00:17:21,080 --> 00:17:25,040 Speaker 2: called this a case of great public importance. So they're 312 00:17:25,080 --> 00:17:28,639 Speaker 2: going after her for something that has no relation to 313 00:17:29,480 --> 00:17:30,840 Speaker 2: her case against Trump. 314 00:17:31,119 --> 00:17:34,399 Speaker 5: You know, in ordinary times, I would say that public 315 00:17:34,400 --> 00:17:37,080 Speaker 5: officials are not above the law, and that if they 316 00:17:37,080 --> 00:17:40,000 Speaker 5: have violated the law, they should expect to invite scrutiny 317 00:17:40,040 --> 00:17:42,080 Speaker 5: and be held accountable. But I think in light of 318 00:17:42,119 --> 00:17:44,960 Speaker 5: the track record this Trump administration has developed in the 319 00:17:44,960 --> 00:17:49,240 Speaker 5: past four months with this Weaponization Working Group, especially because 320 00:17:49,240 --> 00:17:52,399 Speaker 5: it names Letitia James in it, as well as President 321 00:17:52,400 --> 00:17:55,760 Speaker 5: Trump's statements during the campaign that he would seek retribution 322 00:17:56,200 --> 00:17:59,600 Speaker 5: cash Buttel, the FBI director, talking about coming after political 323 00:17:59,680 --> 00:18:02,880 Speaker 5: rival and journalists. All of these things together I think 324 00:18:03,480 --> 00:18:06,919 Speaker 5: cause us to lose confidence that the Justice Department is 325 00:18:06,920 --> 00:18:09,760 Speaker 5: acting in good faith. Now we'll see how it pans out. 326 00:18:10,000 --> 00:18:12,119 Speaker 5: When you bring in a criminal case, you have to 327 00:18:12,160 --> 00:18:14,240 Speaker 5: have evidence, you have to prove it in a court 328 00:18:14,280 --> 00:18:16,320 Speaker 5: of law, then the jury has to find guilt beyond. 329 00:18:16,160 --> 00:18:16,920 Speaker 6: A reasonable doubt. 330 00:18:17,040 --> 00:18:18,919 Speaker 5: If they've got the evidence, then I don't have a 331 00:18:18,920 --> 00:18:21,400 Speaker 5: problem with their bringing the case. But I'm really quite 332 00:18:21,440 --> 00:18:25,240 Speaker 5: skeptical that they coincidentally found a criminal charge against Litis 333 00:18:25,320 --> 00:18:28,040 Speaker 5: James right after saying they were going to go after her. 334 00:18:28,160 --> 00:18:30,720 Speaker 5: So it puts the Justice Department. I think in a 335 00:18:30,840 --> 00:18:33,560 Speaker 5: very dangerous place because it is supposed to be a 336 00:18:33,600 --> 00:18:37,160 Speaker 5: place that is not guided by partisan politics but by 337 00:18:37,240 --> 00:18:39,920 Speaker 5: fact in law. And I worry that if they are 338 00:18:40,040 --> 00:18:42,560 Speaker 5: using it, or even creating the appearance that they are 339 00:18:42,680 --> 00:18:45,399 Speaker 5: using it as a partisan tool, it will diminish the 340 00:18:45,400 --> 00:18:48,280 Speaker 5: public reputation of the Department for decades to come. 341 00:18:48,560 --> 00:18:52,040 Speaker 2: Lititia James said this week, this investigation, to me, is 342 00:18:52,119 --> 00:18:56,119 Speaker 2: nothing more than retribution. It's baseless. Let's just suppose that 343 00:18:56,200 --> 00:18:59,240 Speaker 2: it does go to trial. Is there a problem with 344 00:18:59,440 --> 00:19:03,720 Speaker 2: the jury pool having been influenced by these statements by 345 00:19:03,960 --> 00:19:08,160 Speaker 2: Trump and others? Also just the damage to her reputation. 346 00:19:08,800 --> 00:19:10,160 Speaker 5: Yeah, you know. And this is one of the things 347 00:19:10,160 --> 00:19:12,719 Speaker 5: that again traditionally, the Apartment of Justice is very careful 348 00:19:12,760 --> 00:19:18,359 Speaker 5: about charging high profile public officials. Requires typically high level approvals, 349 00:19:18,359 --> 00:19:21,840 Speaker 5: not because anybody is more deserving than anyone else under 350 00:19:21,840 --> 00:19:24,360 Speaker 5: the law, but because of the reputational harm that will 351 00:19:24,400 --> 00:19:27,080 Speaker 5: ensue because of their inability to do their jobs, and 352 00:19:27,119 --> 00:19:30,040 Speaker 5: sometimes the effect it might have on their election or 353 00:19:30,119 --> 00:19:33,919 Speaker 5: re election, and so caution should be used before raising 354 00:19:34,040 --> 00:19:37,000 Speaker 5: charges about that. The fact that we know about this 355 00:19:37,160 --> 00:19:41,040 Speaker 5: investigation is one of the things that so deeply troubles me. Ordinarily, 356 00:19:41,119 --> 00:19:44,000 Speaker 5: as we've said a couple of times now, prosecutors neither 357 00:19:44,040 --> 00:19:47,000 Speaker 5: confirm nor tonight, even the existence of an investigation. How 358 00:19:47,000 --> 00:19:49,320 Speaker 5: do we know that there's this investigation? Will somebody has 359 00:19:49,520 --> 00:19:53,600 Speaker 5: leaked it? And that alone is problematic. Ordinarily, if you're 360 00:19:53,640 --> 00:19:58,480 Speaker 5: investigating anyone, especially a prominent person, you do so quietly, secretly, 361 00:19:58,520 --> 00:20:00,760 Speaker 5: and if you can't make the case go away. It 362 00:20:00,840 --> 00:20:03,560 Speaker 5: is not the job of the Justice Department to harm 363 00:20:03,600 --> 00:20:08,040 Speaker 5: the reputations of individuals, especially public figures, and in prior 364 00:20:08,080 --> 00:20:10,560 Speaker 5: administrations they went to great pains to avoid doing that. 365 00:20:11,560 --> 00:20:15,359 Speaker 2: And now we have the Justice Department reportedly opening an 366 00:20:15,400 --> 00:20:21,480 Speaker 2: investigation into Andrew Cuomo, who is currently the top candidate 367 00:20:21,480 --> 00:20:25,160 Speaker 2: for New York City mayor, apparently following a referral from 368 00:20:25,400 --> 00:20:29,800 Speaker 2: congressional Republicans who accused him of lying during an investigation 369 00:20:30,200 --> 00:20:35,119 Speaker 2: of his administration's COVID nineteen response. And this comes just 370 00:20:35,359 --> 00:20:41,080 Speaker 2: after the Trump Justice Department dropped the charges against Mayor 371 00:20:41,200 --> 00:20:44,240 Speaker 2: Eric Adams, who will be running against Cuomo. You know, 372 00:20:44,280 --> 00:20:46,560 Speaker 2: if they both get past the primary. I mean, you 373 00:20:46,640 --> 00:20:50,920 Speaker 2: talked about prior Justice departments being concerned about the possible 374 00:20:50,960 --> 00:20:52,879 Speaker 2: effects on elections. 375 00:20:52,760 --> 00:20:56,080 Speaker 5: So again without knowing the underlying evidence. Maybe there's a 376 00:20:56,119 --> 00:20:58,720 Speaker 5: case there. We don't know he made statements. Now, of course, 377 00:20:58,720 --> 00:21:00,359 Speaker 5: the mere fact that you made a statement that might 378 00:21:00,400 --> 00:21:03,359 Speaker 5: be inconsistent with the testimony of other witnesses is not 379 00:21:03,520 --> 00:21:06,000 Speaker 5: alone a crime. You have to show that you made 380 00:21:06,040 --> 00:21:08,399 Speaker 5: a false statement, that you then in there knew the 381 00:21:08,440 --> 00:21:10,440 Speaker 5: statement was false at the time you were making it, 382 00:21:10,760 --> 00:21:13,240 Speaker 5: and that it is material to the investigation in some 383 00:21:13,359 --> 00:21:16,040 Speaker 5: way that it matters. And so I don't know whether 384 00:21:16,240 --> 00:21:19,320 Speaker 5: his efforts to make himself look better than he was 385 00:21:19,640 --> 00:21:22,119 Speaker 5: really mattered in the grand scheme of things. But leaving 386 00:21:22,160 --> 00:21:24,560 Speaker 5: that all aside, the merits of the case, maybe it 387 00:21:24,560 --> 00:21:27,000 Speaker 5: has merits, maybe it doesn't. Number One, the fact that 388 00:21:27,040 --> 00:21:29,920 Speaker 5: we know about this case is because two people familiar 389 00:21:29,920 --> 00:21:32,399 Speaker 5: with the investigation revealed it to the New York Times. 390 00:21:32,480 --> 00:21:32,960 Speaker 6: So it's a leak. 391 00:21:33,119 --> 00:21:35,560 Speaker 5: Somebody has leaked the fact that he is under investigation, 392 00:21:36,080 --> 00:21:38,480 Speaker 5: That alone, I think is suspect. And then the point 393 00:21:38,520 --> 00:21:42,160 Speaker 5: you raise about contrast this with the treatment of Eric Adams, 394 00:21:42,400 --> 00:21:45,640 Speaker 5: who had been under indictment in the last administration. It 395 00:21:45,720 --> 00:21:49,600 Speaker 5: was dismissed by this administration, and according to a judge 396 00:21:49,800 --> 00:21:54,640 Speaker 5: in exchange for cooperation in Donald Trump's policy agenda, which 397 00:21:54,640 --> 00:21:57,560 Speaker 5: he called, you know, smacks of a bargain, seems to 398 00:21:57,600 --> 00:22:01,000 Speaker 5: be an effort to create leverage over Eric Adams, and 399 00:22:01,080 --> 00:22:04,440 Speaker 5: so you've got that situation. It really leaves the Department 400 00:22:04,480 --> 00:22:08,359 Speaker 5: in a place of lacking the importance of public trust 401 00:22:08,760 --> 00:22:11,800 Speaker 5: when it brings its cases. It all just seems too 402 00:22:11,840 --> 00:22:15,439 Speaker 5: convenient that once again they are targeting a prominent public 403 00:22:15,480 --> 00:22:20,760 Speaker 5: official whose interests they oppose. It's why the Justice Department 404 00:22:20,800 --> 00:22:25,120 Speaker 5: works so hard to maintain its reputation for integrity so 405 00:22:25,160 --> 00:22:27,760 Speaker 5: that when it does go on a limb and charge 406 00:22:27,760 --> 00:22:30,879 Speaker 5: somebody with a serious crime, the public takes it seriously. 407 00:22:31,320 --> 00:22:34,600 Speaker 5: In the past, the Justice Department has always enjoyed in 408 00:22:34,680 --> 00:22:37,040 Speaker 5: courts at least the benefit of the doubt and the 409 00:22:37,080 --> 00:22:40,640 Speaker 5: presumption of regularity. I think that's going to erode to 410 00:22:40,680 --> 00:22:43,720 Speaker 5: the detriment of prosecutors and FBI agents in the future, 411 00:22:44,200 --> 00:22:47,359 Speaker 5: and as a result, to the public safety of the 412 00:22:47,400 --> 00:22:50,359 Speaker 5: American people, because when a prosecutor or an FBI agent 413 00:22:50,640 --> 00:22:53,199 Speaker 5: testifies in court, I think jurors are going to be 414 00:22:53,200 --> 00:22:56,680 Speaker 5: far more skeptical about the accuracy of their statements than 415 00:22:56,720 --> 00:22:57,679 Speaker 5: they have been in the past. 416 00:22:58,040 --> 00:23:02,760 Speaker 2: Also, President Trump defended the decision to charge New Jersey 417 00:23:02,760 --> 00:23:08,200 Speaker 2: Democratic Congresswoman la Monica mcgiver for a scuffle outside an 418 00:23:08,200 --> 00:23:11,359 Speaker 2: ice facility and said she was out of control. 419 00:23:12,440 --> 00:23:15,200 Speaker 5: You know, if any other president had done this, there 420 00:23:15,240 --> 00:23:19,400 Speaker 5: would have been howls of protest from the public, from 421 00:23:19,400 --> 00:23:23,359 Speaker 5: the media, and rightly so. Because the president is the 422 00:23:23,520 --> 00:23:28,240 Speaker 5: chief executive of the entire executive branch, anything he says 423 00:23:28,240 --> 00:23:32,000 Speaker 5: can be seen as an unlawful command from the president 424 00:23:32,200 --> 00:23:36,679 Speaker 5: to direct people to pursue particular angles in cases. And 425 00:23:36,760 --> 00:23:39,280 Speaker 5: so as a result, most presidents are very careful to 426 00:23:39,359 --> 00:23:45,520 Speaker 5: scrupulously avoid commenting on not just pending cases, but investigations, 427 00:23:45,560 --> 00:23:48,480 Speaker 5: to let their Justice department do their job based on 428 00:23:48,520 --> 00:23:50,320 Speaker 5: the facts and the laws, and to stay out of 429 00:23:50,359 --> 00:23:54,960 Speaker 5: it because every time he comments on some rival who 430 00:23:55,000 --> 00:23:57,520 Speaker 5: finds themselves in the crossairs of the Department of Justice, 431 00:23:57,600 --> 00:24:01,520 Speaker 5: it is creating the impression that the case is being 432 00:24:01,560 --> 00:24:05,399 Speaker 5: brought for partisan political reasons, which, according to the Justice 433 00:24:05,400 --> 00:24:10,280 Speaker 5: departments principles of federal prosecution, is absolutely prohibited. And so 434 00:24:10,680 --> 00:24:13,199 Speaker 5: I think it's a terrible thing. Maybe he does it 435 00:24:13,240 --> 00:24:15,639 Speaker 5: out of a place of ignorance, but he's been president 436 00:24:15,680 --> 00:24:17,480 Speaker 5: long enough now that he really ought to know better. 437 00:24:18,160 --> 00:24:23,520 Speaker 2: Besides, you know, people winning these cases. Is there anything 438 00:24:23,560 --> 00:24:27,119 Speaker 2: that can be done about this new weaponization of the 439 00:24:27,240 --> 00:24:31,240 Speaker 2: Justice Department. I mean, career attorneys are leaving in droves 440 00:24:31,640 --> 00:24:35,640 Speaker 2: and others are being fired. The public Integrity section has 441 00:24:35,680 --> 00:24:39,400 Speaker 2: been whittled down to nothing. But is there any solution. 442 00:24:39,960 --> 00:24:42,119 Speaker 5: I don't know that there's any quick fix, and I 443 00:24:42,200 --> 00:24:45,119 Speaker 5: am really worried about the long term ramifications to the 444 00:24:45,160 --> 00:24:49,520 Speaker 5: Department of Justice. Historically, it has been a plum job 445 00:24:49,640 --> 00:24:52,240 Speaker 5: to be able to work for the Department of Justice. 446 00:24:52,400 --> 00:24:55,080 Speaker 5: It has an honors program that is very selective and 447 00:24:55,119 --> 00:24:57,800 Speaker 5: recruits out of law schools. This year, all of the 448 00:24:57,920 --> 00:25:00,359 Speaker 5: students who agreed to take jobs there got their jobs 449 00:25:00,359 --> 00:25:03,199 Speaker 5: cut at the very last minute, long after it was 450 00:25:03,240 --> 00:25:05,800 Speaker 5: possible for them to secure other jobs, even though they 451 00:25:05,800 --> 00:25:08,840 Speaker 5: would have been highly sought after if they had done so. 452 00:25:09,280 --> 00:25:11,240 Speaker 5: That kind of pulled the rug out from under me. 453 00:25:11,440 --> 00:25:14,320 Speaker 5: Kind of behavior I think is going to cause problems 454 00:25:14,359 --> 00:25:17,000 Speaker 5: in attracting and retaining top talent, which is what we 455 00:25:17,040 --> 00:25:20,800 Speaker 5: would want with our Justice Department. I think running roughshot 456 00:25:20,840 --> 00:25:22,960 Speaker 5: over all of these norms is going to take time 457 00:25:23,000 --> 00:25:25,840 Speaker 5: to repair. I am hopeful that we will get through this, 458 00:25:26,040 --> 00:25:28,160 Speaker 5: and at some point we will have a new administration 459 00:25:28,680 --> 00:25:32,200 Speaker 5: that understands how important it is to correct all of 460 00:25:32,240 --> 00:25:35,800 Speaker 5: these egregious attacks on the Justice Department. But I don't 461 00:25:35,800 --> 00:25:38,000 Speaker 5: think it's going to be something that gets fixed overnight, 462 00:25:38,040 --> 00:25:40,600 Speaker 5: because I think once you breach the public trust, it 463 00:25:40,680 --> 00:25:41,959 Speaker 5: takes a long time to repair it. 464 00:25:42,160 --> 00:25:45,199 Speaker 2: Thanks so much for joining me, Barbara. That's Professor Barbara 465 00:25:45,240 --> 00:25:48,640 Speaker 2: McQuaid of the University of Michigan Law School. Coming up, 466 00:25:48,960 --> 00:25:55,600 Speaker 2: nationwide injunctions, This is Bloomberg. During the oral arguments over 467 00:25:55,720 --> 00:26:00,880 Speaker 2: President Trump's executive orders to restrict birthright citizenship, the Court's 468 00:26:00,920 --> 00:26:04,280 Speaker 2: conservatives suggested they want to limit the use of so 469 00:26:04,359 --> 00:26:09,840 Speaker 2: called nationwide injunctions, but Key Justice's voiced concerns about doing 470 00:26:09,880 --> 00:26:13,000 Speaker 2: so in a way that would let Trump's plan birthright 471 00:26:13,080 --> 00:26:17,359 Speaker 2: citizenship restrictions take effect before the High Court can rule 472 00:26:17,440 --> 00:26:22,280 Speaker 2: on their legality. But in the Supreme Court's decision blocking 473 00:26:22,320 --> 00:26:26,400 Speaker 2: Trump from sending additional Venezuelans to a Salvador in prison, 474 00:26:27,000 --> 00:26:30,600 Speaker 2: there are significant language that could provide broad relief from 475 00:26:30,800 --> 00:26:35,080 Speaker 2: other administration policies. Even if the Justices do limit the 476 00:26:35,200 --> 00:26:39,040 Speaker 2: use of nationwide injunctions. My guest is Elijah Soohman, a 477 00:26:39,119 --> 00:26:43,040 Speaker 2: law professor at George Mason University, Will you explain how 478 00:26:43,080 --> 00:26:46,800 Speaker 2: the use of nationwide injunctions is being questioned? 479 00:26:47,280 --> 00:26:52,440 Speaker 6: So obviously, the Trump's administration wants the Supreme Court to 480 00:26:52,600 --> 00:26:58,480 Speaker 6: rules that nationwide injunctions are inherently illegitimate, because, in their view, 481 00:26:58,680 --> 00:27:04,239 Speaker 6: courts only have jury fiction to issue remedies for the 482 00:27:04,320 --> 00:27:08,920 Speaker 6: parties actually before the court, as opposed to more universally. 483 00:27:10,040 --> 00:27:13,840 Speaker 6: There are some conservative Supreme Court justices who in the 484 00:27:13,920 --> 00:27:18,240 Speaker 6: past have expressed the more sentiments listening to the oral argument. 485 00:27:19,320 --> 00:27:21,800 Speaker 6: It is unclear to me whether there might be five 486 00:27:21,880 --> 00:27:26,400 Speaker 6: votes for that proposition, or whether instead the Court might 487 00:27:26,440 --> 00:27:30,680 Speaker 6: issue some sort of clarifying rules which clarify or perhaps 488 00:27:30,760 --> 00:27:34,240 Speaker 6: limit nationwide injunctions, but don't get rid of them entiroly. 489 00:27:34,960 --> 00:27:38,600 Speaker 2: So some of the justices seem to suggest that an 490 00:27:38,680 --> 00:27:44,240 Speaker 2: alternative would be to have proposed class actions that produce 491 00:27:44,320 --> 00:27:47,440 Speaker 2: the same result as a nationwide injunction. What do you 492 00:27:47,440 --> 00:27:48,840 Speaker 2: think of that as an alternative? 493 00:27:49,200 --> 00:27:52,560 Speaker 6: So it's certainly much better than nothing, But as the 494 00:27:52,640 --> 00:27:56,760 Speaker 6: world argument brought out, there can be difficulties with class certification. 495 00:27:57,320 --> 00:28:02,879 Speaker 6: And moreover, if we're taught about so called putative classes, 496 00:28:03,520 --> 00:28:06,240 Speaker 6: like in the air Key case that the Supreme Court 497 00:28:06,280 --> 00:28:10,520 Speaker 6: decided I think last Friday. Then a putative class, first, 498 00:28:10,680 --> 00:28:14,480 Speaker 6: it has the same issues that the administration claims exist 499 00:28:14,560 --> 00:28:18,920 Speaker 6: with nationwide injunctions, which is that amputative class necessarily includes 500 00:28:19,000 --> 00:28:22,600 Speaker 6: people who are not parties to litigation, and that a 501 00:28:22,680 --> 00:28:25,760 Speaker 6: putative class is not the same thing as a real class. 502 00:28:25,760 --> 00:28:27,720 Speaker 6: So at some point, if you want to get permanent 503 00:28:28,000 --> 00:28:30,639 Speaker 6: as opposed to temporary release, the court would have to 504 00:28:30,680 --> 00:28:33,760 Speaker 6: decide whether the putative class can become a real class 505 00:28:33,880 --> 00:28:37,240 Speaker 6: or not, and that brings back these same issues with certification. 506 00:28:37,720 --> 00:28:41,160 Speaker 2: The court then, after hearing these oral arguments, the Court 507 00:28:41,240 --> 00:28:46,600 Speaker 2: then continued the injunction, the temporary injunction that blocked sending 508 00:28:46,680 --> 00:28:50,360 Speaker 2: Venezuelans to L Salvador. I mean, were they doing the 509 00:28:50,440 --> 00:28:54,600 Speaker 2: same thing that they discussed not doing in the birthright 510 00:28:54,640 --> 00:28:55,640 Speaker 2: citizenship case. 511 00:28:56,600 --> 00:29:00,360 Speaker 6: In a certain sense, they were, because that injunction, which 512 00:29:00,400 --> 00:29:04,200 Speaker 6: is a temporary one, is for a putative class, and 513 00:29:04,240 --> 00:29:07,680 Speaker 6: so a class that has not been actually certified and 514 00:29:07,800 --> 00:29:10,840 Speaker 6: possibly may never be certified depending on how things go. 515 00:29:11,240 --> 00:29:15,040 Speaker 6: So it was definitely providing relief for non parties, which 516 00:29:15,080 --> 00:29:18,000 Speaker 6: is exactly the kind of thing that the Trump administration 517 00:29:18,760 --> 00:29:22,200 Speaker 6: says should not be permissible, and that you know, some 518 00:29:22,360 --> 00:29:25,880 Speaker 6: Supreme Court justices have said should not be permissible. It's 519 00:29:26,080 --> 00:29:30,360 Speaker 6: notable that Justice Gorsuch, who has expressed complaints about nationwide 520 00:29:30,400 --> 00:29:33,440 Speaker 6: adjuncts that pass, seems to have been in the majority 521 00:29:33,520 --> 00:29:37,880 Speaker 6: in the air P case. Only Thomas and Alito dissented 522 00:29:38,280 --> 00:29:41,680 Speaker 6: in theory in their shadow doctor case like this, they 523 00:29:41,720 --> 00:29:45,200 Speaker 6: don't have to announce where every single individual justice stood. 524 00:29:45,640 --> 00:29:47,480 Speaker 6: But I think I don't know for sure, obviously, but 525 00:29:47,520 --> 00:29:50,080 Speaker 6: I think if there were other dissenters, we would have 526 00:29:50,120 --> 00:29:50,560 Speaker 6: seen them. 527 00:29:51,040 --> 00:29:54,240 Speaker 2: Tell me about the descent written by Alito and that 528 00:29:54,360 --> 00:29:55,360 Speaker 2: Thomas joined in. 529 00:29:55,880 --> 00:29:59,120 Speaker 6: So the descent raises a number of points which are 530 00:29:59,160 --> 00:30:03,760 Speaker 6: not really reallyated to nationwide injunctions or class actions. But 531 00:30:03,880 --> 00:30:07,160 Speaker 6: one argument that he argues at lengthage if he doesn't 532 00:30:07,200 --> 00:30:10,880 Speaker 6: think that class certification should be permissible in a case 533 00:30:10,960 --> 00:30:14,160 Speaker 6: like that, and therefore by implication, you shouldn't have a 534 00:30:14,640 --> 00:30:15,840 Speaker 6: putative class either. 535 00:30:16,320 --> 00:30:21,160 Speaker 2: In that decision, there's a language sort of encouraging using 536 00:30:21,400 --> 00:30:23,960 Speaker 2: putative class actions in these cases. 537 00:30:24,600 --> 00:30:26,080 Speaker 6: So I don't know that you can really point to 538 00:30:26,120 --> 00:30:29,680 Speaker 6: specific language, but the very fact that the Court did 539 00:30:29,720 --> 00:30:33,920 Speaker 6: what it did should be encouraging new advocates of putative 540 00:30:33,920 --> 00:30:37,000 Speaker 6: classes in that, you know, they allowed the putative class 541 00:30:37,000 --> 00:30:39,239 Speaker 6: to go forward, and they even did sort of an 542 00:30:39,240 --> 00:30:43,560 Speaker 6: emergency intervention to enable it to do so. And you know, 543 00:30:43,680 --> 00:30:48,240 Speaker 6: that's not a conclusive determination, but it's a fairly strong signal. 544 00:30:48,600 --> 00:30:50,480 Speaker 6: I think that there is a majority in the Supreme 545 00:30:50,520 --> 00:30:54,000 Speaker 6: Court that is willing to accept putative classes, at least 546 00:30:54,000 --> 00:30:57,880 Speaker 6: in some situations. So again I emphasize, a putative class 547 00:30:58,120 --> 00:30:59,880 Speaker 6: is not ultimately the same thing as they do. 548 00:31:01,480 --> 00:31:06,560 Speaker 2: I wonder why the Supreme Court decided to take the 549 00:31:06,560 --> 00:31:10,960 Speaker 2: birthright citizenship case, and you know, hear arguments on it 550 00:31:11,320 --> 00:31:14,360 Speaker 2: when it seems to be one of the cases that 551 00:31:15,160 --> 00:31:18,200 Speaker 2: proves that if you're ever going to have nationwide injunctions, 552 00:31:18,760 --> 00:31:21,200 Speaker 2: that would be the case where you would have them, 553 00:31:21,520 --> 00:31:25,120 Speaker 2: because otherwise there'll be different rules in different parts of 554 00:31:25,160 --> 00:31:29,040 Speaker 2: the country about whether babies are citizens. 555 00:31:29,400 --> 00:31:32,120 Speaker 6: So in my case, you're preaching to the converted on that. 556 00:31:32,840 --> 00:31:35,880 Speaker 6: I think there are two possible theories, perhaps more than two, 557 00:31:35,920 --> 00:31:38,200 Speaker 6: but two did occur to me as to why the 558 00:31:38,280 --> 00:31:41,080 Speaker 6: Supreme Court specs the case. Which of them is true? 559 00:31:41,120 --> 00:31:44,840 Speaker 6: I do not know. One possibility is if you posit 560 00:31:44,960 --> 00:31:49,560 Speaker 6: that there's a faction that just wants to add nationwide injunctions, 561 00:31:49,800 --> 00:31:52,400 Speaker 6: then you know, fueling it in a case which is 562 00:31:52,440 --> 00:31:54,960 Speaker 6: sort of the best case scenario for supporters of those 563 00:31:55,040 --> 00:31:57,959 Speaker 6: kind of injunctions. That would show like we really mean 564 00:31:58,000 --> 00:32:00,360 Speaker 6: it when they say there should be no nationwide junction. 565 00:32:00,760 --> 00:32:05,160 Speaker 6: That's one possibility. The other possibility is you can imagine 566 00:32:05,200 --> 00:32:08,280 Speaker 6: that this the four justices it takes four to take 567 00:32:08,320 --> 00:32:10,680 Speaker 6: a case who wanted to take this one did so 568 00:32:10,880 --> 00:32:14,480 Speaker 6: because they're actually in favor of nationwide injunctions and want 569 00:32:14,560 --> 00:32:17,520 Speaker 6: to precedent saying that, and this would be a good 570 00:32:17,760 --> 00:32:20,520 Speaker 6: sort of sympathetic case and wish to do that. So 571 00:32:20,640 --> 00:32:24,080 Speaker 6: those are two possible theories. Which is true. I do 572 00:32:24,200 --> 00:32:27,160 Speaker 6: not know if you have inside sources and can tell 573 00:32:27,200 --> 00:32:30,120 Speaker 6: you which is true, Neil, I would be happy to 574 00:32:30,200 --> 00:32:31,120 Speaker 6: find out myself. 575 00:32:31,520 --> 00:32:35,240 Speaker 2: So you already have a federal district judge who cited 576 00:32:35,400 --> 00:32:40,320 Speaker 2: the language in that May sixteenth ruling to temporarily certify 577 00:32:40,920 --> 00:32:45,520 Speaker 2: a class of alleged Venezuela and gang members. So once 578 00:32:45,640 --> 00:32:50,120 Speaker 2: one federal judge does so, others will likely follow. 579 00:32:51,000 --> 00:32:54,160 Speaker 6: Yeah, So I think it's fairly obvious that if the 580 00:32:54,200 --> 00:32:57,080 Speaker 6: Supreme Court was willing to essentially bless this kind of 581 00:32:57,160 --> 00:32:59,680 Speaker 6: arrangement in this case that it can also be done 582 00:32:59,680 --> 00:33:03,120 Speaker 6: in other cases. I suspect this judge will not be 583 00:33:03,200 --> 00:33:06,880 Speaker 6: the last to do it, obviously. It's the Supreme Court 584 00:33:07,040 --> 00:33:09,960 Speaker 6: did not give us a lot of clarity on exactly 585 00:33:10,040 --> 00:33:13,320 Speaker 6: when putative classes are permitted and when they're not, for 586 00:33:13,440 --> 00:33:16,360 Speaker 6: how line they're permitted, and so on, and yield that 587 00:33:16,680 --> 00:33:19,640 Speaker 6: to those issues. They will have to be litigated in 588 00:33:19,720 --> 00:33:22,640 Speaker 6: future cases in the lower courts and perhaps also in 589 00:33:22,640 --> 00:33:26,400 Speaker 6: the Supreme Court. But the basic idea of putative classes, 590 00:33:26,800 --> 00:33:30,000 Speaker 6: it seems like there are seven Supreme Court justices who 591 00:33:30,040 --> 00:33:32,520 Speaker 6: are okay with it at least in some instances, and 592 00:33:32,640 --> 00:33:35,720 Speaker 6: lower court judges are not stupid. They can see us. 593 00:33:36,520 --> 00:33:39,200 Speaker 2: So what's your take on nationwide injunctions? 594 00:33:39,520 --> 00:33:41,640 Speaker 6: So I agree with what you said earlier, which is 595 00:33:41,680 --> 00:33:45,760 Speaker 6: that very valuable too in cases like the birthright citizenship 596 00:33:45,840 --> 00:33:50,960 Speaker 6: case where you have nationwide illegality. The reasons why you know, 597 00:33:50,960 --> 00:33:54,040 Speaker 6: the government actually illegals do not vary from place to 598 00:33:54,120 --> 00:33:57,480 Speaker 6: place or from case to case. Their uniform and the 599 00:33:57,600 --> 00:33:59,880 Speaker 6: rights of many thousands of people may be a stake. 600 00:34:00,040 --> 00:34:02,240 Speaker 6: It might be difficult or impossible for all when to 601 00:34:02,240 --> 00:34:05,320 Speaker 6: bring their own individual actions there might be, And so 602 00:34:05,400 --> 00:34:09,640 Speaker 6: it seemed to me that nationwide illegality requires a nationwide response. 603 00:34:09,880 --> 00:34:14,240 Speaker 6: At least in some cases, nationwide adjunctions are the appropriate response. 604 00:34:14,560 --> 00:34:16,520 Speaker 6: I do not agree that sort of the con turn 605 00:34:16,600 --> 00:34:19,400 Speaker 6: of the other side of lowiela Rose District judged block 606 00:34:19,440 --> 00:34:22,200 Speaker 6: of policy for the entire country. If he's truly a 607 00:34:22,360 --> 00:34:25,319 Speaker 6: road and here her reading is really bad, it can 608 00:34:25,360 --> 00:34:28,680 Speaker 6: be quickly overturned by the health court. Kind of power courts, 609 00:34:28,840 --> 00:34:32,120 Speaker 6: you have proceeadures for dealing with these kinds of cases 610 00:34:32,160 --> 00:34:33,360 Speaker 6: and extedited basis. 611 00:34:33,719 --> 00:34:37,680 Speaker 2: So we will see by July whether the Supreme Court 612 00:34:38,200 --> 00:34:43,000 Speaker 2: actually makes a move to restrict nationwide injunctions. Thanks so 613 00:34:43,080 --> 00:34:46,320 Speaker 2: much for joining me. That's Professor Elias Sohman of George 614 00:34:46,360 --> 00:34:49,120 Speaker 2: Mason University. And that's it for this edition of the 615 00:34:49,160 --> 00:34:52,120 Speaker 2: Bloomberg Law Show. Remember you can always get the latest 616 00:34:52,160 --> 00:34:55,279 Speaker 2: legal news on our Bloomberg Law Podcast. 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