WEBVTT - Three Courts Debate Census Citizenship Question

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<v Speaker 1>M Welcome to the Bloomberg Law Podcast. I'm June Grosso.

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<v Speaker 1>Every day we bring you insight and analysis into the

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<v Speaker 1>most important legal news of the day. You can find

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<v Speaker 1>more episodes of the Bloomberg Law Podcast on Apple Podcasts,

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<v Speaker 1>SoundCloud and on Bloomberg dot com slash podcasts. Cases challenging

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<v Speaker 1>the Trump administration's edition of a citizenship question to the

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<v Speaker 1>census are moving forward in federal courts in New York, California,

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<v Speaker 1>and Maryland. Speaking to the House Oversight Committee in May,

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<v Speaker 1>Congresswoman Eleanor Holmes Norton voiced her concerns about the question.

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<v Speaker 1>You do not believe, in your expert opinion, that asking

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<v Speaker 1>this a question, even after Mr Levitt's testimony, will have

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<v Speaker 1>any effects upon the willingness of people to answer questions.

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<v Speaker 1>You think that there is no danger here. Joining me

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<v Speaker 1>is Kimberly Strawbridge Robinson, Supreme Court reporter for Bloomberg Law. Kimberly,

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<v Speaker 1>why does the Trump administration say this question should be

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<v Speaker 1>added and what is the challenger's response? Well, the citizenship

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<v Speaker 1>question is a question that has appeared on the census

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<v Speaker 1>before UH several decades ago, and it has since been

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<v Speaker 1>taken off Now, the way that this citizenship question got

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<v Speaker 1>added on this time is somewhat of a mystery. The

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<v Speaker 1>Department of Commerce, which is responsible for the Census, says

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<v Speaker 1>that the Department of Justice actually reached out to it

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<v Speaker 1>UH to ask that the citizenship question be added to

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<v Speaker 1>the census in order to give the Department of Justice

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<v Speaker 1>more information to successfully enforce the Voting Rights Act, which

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<v Speaker 1>is a landmark act protecting minority voting rights. Now, this

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<v Speaker 1>question is currently asked on a different survey sent out

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<v Speaker 1>by the Census Bureau, but the Department of UH Justice

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<v Speaker 1>says that it needs even more responses UH and that

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<v Speaker 1>it should go on the Census, which is sent to

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<v Speaker 1>every American household. Now, during these cases, there's been some

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<v Speaker 1>evidence that it was actually the Commerce Department that reached

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<v Speaker 1>out to the d o J. And one of the

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<v Speaker 1>judges in these cases out of New York said that

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<v Speaker 1>the citizenship question was really a problem in search or

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<v Speaker 1>a solution in search of a problem. And you know,

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<v Speaker 1>opponents of the citizenship question really point to that latter

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<v Speaker 1>timeline as evidence that you know, the v r A

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<v Speaker 1>excuse is really just a pretext for the Trump administration

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<v Speaker 1>UH to be able to UH depressed response rates among

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<v Speaker 1>immigrant communities, and they stressed that it's not only UH

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<v Speaker 1>supposed to depress depress response rates from individuals who entered

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<v Speaker 1>the country illegally, but even U s citizens who may

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<v Speaker 1>live in household with individuals who entered the country illegally.

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<v Speaker 1>Did any of the courts consider any of President Trump's

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<v Speaker 1>statements regarding immigration, Well, they did tangentially so at this

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<v Speaker 1>point of the litigation, and the question is whether or

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<v Speaker 1>not the Trump administration can even be challenged on these

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<v Speaker 1>kinds of decisions, or whether or not it's UH completely

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<v Speaker 1>something that's left up to the political branches UH separate

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<v Speaker 1>from the judiciary. And so in reviewing whether or not

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<v Speaker 1>these claims can be made and whether or not the

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<v Speaker 1>plaintiffs have brought forth enough evidence to go forward, the

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<v Speaker 1>courts have focused on whether or not response rates will

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<v Speaker 1>actually be depressed, and at least one of the federal

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<v Speaker 1>judges noted that the current political climate certainly suggests that

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<v Speaker 1>individuals may be afraid, given some of then candidate Trump

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<v Speaker 1>statements and the Trump administration's immigration position. So it's there

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<v Speaker 1>are separate cases. Is there any similarity in the legal

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<v Speaker 1>arguments of the challengers. Are they basing it on the

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<v Speaker 1>same considerations? Well, there are really there are a few

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<v Speaker 1>different legal challenges that are brought in these cases. All

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<v Speaker 1>of them include uh statutory claims um that relate to

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<v Speaker 1>a statue that effectively cabins the way that the executive

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<v Speaker 1>can change the federal law. But they also make some

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<v Speaker 1>larger constitutional claims that vary slightly. But all of the cases,

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<v Speaker 1>all six of them, are all seeking the same result,

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<v Speaker 1>and that is an order prohibiting the Trump administration from

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<v Speaker 1>putting this question onsus. So now timing is essential here

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<v Speaker 1>because questions need to be finalized before the spring of

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<v Speaker 1>Will the courts be able to resolve these issues by then? Well,

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<v Speaker 1>the courts do know that they're operating on quite a

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<v Speaker 1>tight timeline. And that's because even though the census questions

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<v Speaker 1>won't go out until, of course, they have to be

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<v Speaker 1>published and they have to be printed and then actually

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<v Speaker 1>sent out. UM. So there's somewhat of a moving target

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<v Speaker 1>for these cases. Right now, they're on track to be

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<v Speaker 1>uh to go at least one of them to go

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<v Speaker 1>to trial in January. And that's really kind of the

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<v Speaker 1>limit of where uh the opponents who are challenging this question.

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<v Speaker 1>Think that the trial courts uh need to finish up

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<v Speaker 1>in order to allow for enough time for appeals to follow.

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<v Speaker 1>In time for appeals, this could be appealed to the

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<v Speaker 1>Supreme Court. Well, that's right, And these are the kinds

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<v Speaker 1>of cases, UH, kinds of really consequential cases that the

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<v Speaker 1>justices do like to um intervene on, especially if the

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<v Speaker 1>courts in these cases come to different results. So Kimberly,

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<v Speaker 1>what kind of evidence is likely to be presented at trial? Well,

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<v Speaker 1>they're likely going to be looking at whether or not

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<v Speaker 1>the citizenship question will in effect lower response rates. And

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<v Speaker 1>I think one of the key pieces of information for

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<v Speaker 1>the opponents is actually going to be the Commerce Department's

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<v Speaker 1>own findings that citizenship question would depress UH response rates dramatically.

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<v Speaker 1>And another you know, piece that they're going to be

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<v Speaker 1>looking at, is really the purpose of adding the citizenship question.

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<v Speaker 1>Is the v R a defense something that is true

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<v Speaker 1>or is it just a pretext to harm President Trump's

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<v Speaker 1>political opponents? So then what will the government present if

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<v Speaker 1>their own experts are going to testify on behalf of

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<v Speaker 1>the challengers, Well, the experts likely the government will present

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<v Speaker 1>experts UM that support their timeline that it was the

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<v Speaker 1>Commerce or the Department of Justice that reached out to

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<v Speaker 1>the Commerce Department, and that there's a good reason for

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<v Speaker 1>doing this, and that is of course enforcing voting rights um.

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<v Speaker 1>And they'll be pressing on the increased information that they'll

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<v Speaker 1>get by adding this information, Toss and well, will Will

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<v Speaker 1>Burross take the stand that you think, well, this is

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<v Speaker 1>really uh, it's brought against the Secretary in his um

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<v Speaker 1>capacity as uh, you know, an official, but likely he

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<v Speaker 1>has had very little to do with the actual question.

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<v Speaker 1>It's more likely we'll see individuals from the Census Bureau

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<v Speaker 1>who will be presented in these cases. You sound really

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<v Speaker 1>like senating cases, more fascinating than I initially thought. Thanks

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<v Speaker 1>so much, Kimberly. That's Kimberly Strawbridge Robinson, Supreme Court reporter

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<v Speaker 1>for Bloomberg Law. Also remember that the Census is tied

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<v Speaker 1>to not only how many representatives there are in the

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<v Speaker 1>House of Representatives for states, but also allocates more than

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<v Speaker 1>six hundred seventy five billion dollars in federal funding. President

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<v Speaker 1>Trump has shown support for former campaign chairman Paul Manaford,

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<v Speaker 1>who was found guilty on eight counts of bank and

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<v Speaker 1>tax fraud last week in tweets and speaking with Fox

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<v Speaker 1>News last week, I have great respect for what he's

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<v Speaker 1>done in terms of what he's gone through some of

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<v Speaker 1>the charges say threw against him. Every consultant, every lobbyist

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<v Speaker 1>in Washington probably does. But despite the President's support, Manafort's

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<v Speaker 1>legal woes seemed to be snowballing. He faces a second

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<v Speaker 1>trial starting in Washington, d C. Next month on money

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<v Speaker 1>laundering and obstruction of justice charges, and a potential third

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<v Speaker 1>trial in Virginia. Joining me is former federal prosecutor Robert Mints,

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<v Speaker 1>a partner Macarter in English. So, Bob Manafort was convicted

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<v Speaker 1>last week on eight counts of tax and bank fraud,

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<v Speaker 1>but the jury hung on ten other counts. The prosecutors

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<v Speaker 1>are going to tell us today, are going to tell

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<v Speaker 1>man of for more importantly, whether they're going to pursue

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<v Speaker 1>a retrial. What are the chances they'll retry him? Well,

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<v Speaker 1>I think typically they would not, because the charges that

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<v Speaker 1>he was convicted of already carry substantial jail time, and

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<v Speaker 1>so it might not be worth the government's time to

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<v Speaker 1>investage resources in the retrial. But in this case, I

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<v Speaker 1>could see prosecutors at this point telling Judge ellis that

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<v Speaker 1>they do intend at this point in time to retry

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<v Speaker 1>those ten charges. We do know from speaking with yourors

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<v Speaker 1>after the trial that there was a loan holdout, so

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<v Speaker 1>it was only there were only one vote away from

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<v Speaker 1>getting conviction, then those ten other accounts. And as a

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<v Speaker 1>practical matter, what prosecutors can do is allowed the case

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<v Speaker 1>in Washington, d C. To proceed, see how that goes,

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<v Speaker 1>and then ultimately they can always make the decision not

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<v Speaker 1>to go forward with this third trial if they decide

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<v Speaker 1>that that's the right thing for them to do. Man

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<v Speaker 1>of Forts lawyers reportedly, we're talking about a plea deal

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<v Speaker 1>with prosecutors while the Virginia jury was deliberating. That's stalled

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<v Speaker 1>over issues reportedly, according to The Wall Street Journal, raised

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<v Speaker 1>by the prosecutors. So it's obvious why he would want

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<v Speaker 1>a plea deal. But why would Muller be inclined to

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<v Speaker 1>give him a deal when he has him, you might

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<v Speaker 1>say over a barrel. Well, there'd be two reasons. One

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<v Speaker 1>is simply to gain the certainty of a conviction in

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<v Speaker 1>d C. Although that seems like a strong case, and

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<v Speaker 1>the jury pool in the District of Columbia is likely

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<v Speaker 1>to be more favorable to the government. The jury pool

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<v Speaker 1>in the Eastern District of Virginia will typically draw on

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<v Speaker 1>more Republican voters, and we know that there were a

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<v Speaker 1>number of supporters of the president that we're on that

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<v Speaker 1>jury panel. So I think prosecutors are probably feeling pretty

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<v Speaker 1>good about their chances of a conviction in Washington, d c.

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<v Speaker 1>But if they can get that conviction by way of

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<v Speaker 1>a plea, they still may be interested in doing it.

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<v Speaker 1>And then, of course there's always a possibility of Manafort

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<v Speaker 1>agreeing to cooperate, which is really what prosecutors are looking

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<v Speaker 1>for here. On the more pressure that they apply to him,

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<v Speaker 1>the more likely that becomes as a possibility. So cooperation

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<v Speaker 1>would be an essential part of any plea. Uh it could.

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<v Speaker 1>I think they would be willing to take a plea

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<v Speaker 1>without cooperation, but they're much likely much more likely to

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<v Speaker 1>give him less favorable terms. If all he's looking for

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<v Speaker 1>is a straight up plea without cooperation. With cooperation, he's

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<v Speaker 1>going to get a sanction of the same terms. But

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<v Speaker 1>then of course there's the opportunity for the judge to

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<v Speaker 1>move to reduce that sentence based upon his cooperation. So

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<v Speaker 1>Mr Manaford has a lot his plate right now, a

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<v Speaker 1>lot of difficult decisions to be made. But if he

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<v Speaker 1>is going to strike a deal, and he is going

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<v Speaker 1>and he is going to consider cooperating, now it's really

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<v Speaker 1>the time to do it. He's really got to probably

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<v Speaker 1>make that decision before this Washington trial gets underway. So, Bob,

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<v Speaker 1>if you were his defense attorney, how would you tell

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<v Speaker 1>him to factor in the possibility of a pardon from Trump. Well,

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<v Speaker 1>that's a very interesting question, and it's very difficult to

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<v Speaker 1>come up with some kind of number and give your

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<v Speaker 1>clients some kind of comfort as to whether or not

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<v Speaker 1>that's going to happen. The President has obviously made a

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<v Speaker 1>number of statements about that possibility. He has reportedly discussed

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<v Speaker 1>that internally with his lawyers. Um. But whether or not

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<v Speaker 1>the political blowback will be so substantial that he ultimately

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<v Speaker 1>decides not to do that, We'll just have to wait

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<v Speaker 1>and see. And I think one thing the President is

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<v Speaker 1>doing also is perhaps waiting to see where Manifort goes

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<v Speaker 1>with this. His Manafort continues to stand Paul, as the

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<v Speaker 1>President put it in, continue to fight these charges and

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<v Speaker 1>not cut a deal. He may wait and let let

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<v Speaker 1>this play out. Let's see if he gets convicted in

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<v Speaker 1>Washington as his trial goes forward, and then make a

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<v Speaker 1>decision at some point in the future. Let's talk about

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<v Speaker 1>that upcoming trial and DC charges of conspiring to launder money,

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<v Speaker 1>obstruct justice, and acting as an unregistered foreign lobbyist. But

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<v Speaker 1>a very different judge, Judge Amy Berman Jackson, how issued

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<v Speaker 1>different from Judge Ellis, who had There was a lot

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<v Speaker 1>of criticism of Judge Ellis for his comments during the

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<v Speaker 1>trial and his rulings against the prosecution. Well, I think

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<v Speaker 1>what we can say June is that Judge Ellis, through

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<v Speaker 1>his comments during the course of the trial and in

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<v Speaker 1>particular during the course of motions that were argued in

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<v Speaker 1>the case before the trial and underway, showed some sympathy

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<v Speaker 1>towards Mr Manafort, and some antipathy to the government's case

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<v Speaker 1>and to the government's handling of the trial as the

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<v Speaker 1>case proceeded. So far, Judge Berman Jackson has shown no

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<v Speaker 1>particular sympathy towards Mr Manafort. She's known as a very straightforward,

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<v Speaker 1>plate down the middle kind of judge. She's not going

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<v Speaker 1>to tolerate any nonsense, uh, and I think she is

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<v Speaker 1>going to probably inject herself and her personality and her

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<v Speaker 1>personal style into the trial, less than we saw with

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<v Speaker 1>Judge Ellis in the case in the Eastern District of Virginia.

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<v Speaker 1>She's also the judge who sent Manafort to jail pre

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<v Speaker 1>trial during and so at this point they're talking about

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<v Speaker 1>questions the jury can be asked, and the prosecutors want

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<v Speaker 1>to be able to ask or to have the judge

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<v Speaker 1>ask about whether jurors voted in the election, whether they

0:13:50.720 --> 0:13:53.920
<v Speaker 1>had any opinions of Trump or others associated with his

0:13:54.000 --> 0:13:58.000
<v Speaker 1>campaign for president. Is the judge likely to allow those

0:13:58.040 --> 0:14:02.360
<v Speaker 1>specific kinds of questions. Well, it's interesting they have the

0:14:02.480 --> 0:14:06.200
<v Speaker 1>same type of back and forth in advance of the

0:14:06.280 --> 0:14:09.240
<v Speaker 1>trial before Judge Ellis, and in that case, Judge Ellis

0:14:09.240 --> 0:14:11.400
<v Speaker 1>made clear that he was not going to go down

0:14:11.440 --> 0:14:15.320
<v Speaker 1>that road. He was not going to inject politics into

0:14:15.320 --> 0:14:19.800
<v Speaker 1>this trial, even through a backdoor questioning of jurors. And

0:14:19.920 --> 0:14:24.040
<v Speaker 1>I would suspect that Judge Berman Jackson will agree with

0:14:24.120 --> 0:14:28.280
<v Speaker 1>that strategy. The problem was getting into questions about whether

0:14:28.280 --> 0:14:31.040
<v Speaker 1>people voted in whether they have any particular feelings about

0:14:31.280 --> 0:14:34.880
<v Speaker 1>the president and about his associates, is that it injects

0:14:34.960 --> 0:14:37.880
<v Speaker 1>a level of politics into the trial that I think

0:14:37.920 --> 0:14:41.160
<v Speaker 1>the judge is going to try to avoid, so I

0:14:41.200 --> 0:14:44.600
<v Speaker 1>think they're going to say listen. Would be interesting for

0:14:44.720 --> 0:14:47.360
<v Speaker 1>both sides, the defense and the prostitution to know the

0:14:47.360 --> 0:14:49.480
<v Speaker 1>answers to these questions, but I think it's best if

0:14:49.480 --> 0:14:52.960
<v Speaker 1>nobody knows and we will find out after the trial,

0:14:53.040 --> 0:14:55.760
<v Speaker 1>as we did in the Virginia case. Thanks so much, Bob.

0:14:56.000 --> 0:14:59.360
<v Speaker 1>That's Robert Mans. He's a partner at McCarter in English.

0:14:59.560 --> 0:15:03.200
<v Speaker 1>Thanks listening to the Bloomberg Law podcast. You can subscribe

0:15:03.240 --> 0:15:06.480
<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

0:15:06.520 --> 0:15:11.000
<v Speaker 1>on Bloomberg dot com slash podcast. I'm June Brosso. This

0:15:11.360 --> 0:15:17.520
<v Speaker 1>is Bloomberg m