Speaker 1: M Welcome to the Bloomberg Law Podcast. I'm June Grosso.
Speaker 1: Every day we bring you insight and analysis into the
Speaker 1: most important legal news of the day. You can find
Speaker 1: more episodes of the Bloomberg Law Podcast on Apple Podcasts,
Speaker 1: SoundCloud and on Bloomberg dot com slash podcasts. Cases challenging
Speaker 1: the Trump administration's edition of a citizenship question to the
Speaker 1: census are moving forward in federal courts in New York, California,
Speaker 1: and Maryland. Speaking to the House Oversight Committee in May,
Speaker 1: Congresswoman Eleanor Holmes Norton voiced her concerns about the question.
Speaker 1: You do not believe, in your expert opinion, that asking
Speaker 1: this a question, even after Mr Levitt's testimony, will have
Speaker 1: any effects upon the willingness of people to answer questions.
Speaker 1: You think that there is no danger here. Joining me
Speaker 1: is Kimberly Strawbridge Robinson, Supreme Court reporter for Bloomberg Law. Kimberly,
Speaker 1: why does the Trump administration say this question should be
Speaker 1: added and what is the challenger's response? Well, the citizenship
Speaker 1: question is a question that has appeared on the census
Speaker 1: before UH several decades ago, and it has since been
Speaker 1: taken off Now, the way that this citizenship question got
Speaker 1: added on this time is somewhat of a mystery. The
Speaker 1: Department of Commerce, which is responsible for the Census, says
Speaker 1: that the Department of Justice actually reached out to it
Speaker 1: UH to ask that the citizenship question be added to
Speaker 1: the census in order to give the Department of Justice
Speaker 1: more information to successfully enforce the Voting Rights Act, which
Speaker 1: is a landmark act protecting minority voting rights. Now, this
Speaker 1: question is currently asked on a different survey sent out
Speaker 1: by the Census Bureau, but the Department of UH Justice
Speaker 1: says that it needs even more responses UH and that
Speaker 1: it should go on the Census, which is sent to
Speaker 1: every American household. Now, during these cases, there's been some
Speaker 1: evidence that it was actually the Commerce Department that reached
Speaker 1: out to the d o J. And one of the
Speaker 1: judges in these cases out of New York said that
Speaker 1: the citizenship question was really a problem in search or
Speaker 1: a solution in search of a problem. And you know,
Speaker 1: opponents of the citizenship question really point to that latter
Speaker 1: timeline as evidence that you know, the v r A
Speaker 1: excuse is really just a pretext for the Trump administration
Speaker 1: UH to be able to UH depressed response rates among
Speaker 1: immigrant communities, and they stressed that it's not only UH
Speaker 1: supposed to depress depress response rates from individuals who entered
Speaker 1: the country illegally, but even U s citizens who may
Speaker 1: live in household with individuals who entered the country illegally.
Speaker 1: Did any of the courts consider any of President Trump's
Speaker 1: statements regarding immigration, Well, they did tangentially so at this
Speaker 1: point of the litigation, and the question is whether or
Speaker 1: not the Trump administration can even be challenged on these
Speaker 1: kinds of decisions, or whether or not it's UH completely
Speaker 1: something that's left up to the political branches UH separate
Speaker 1: from the judiciary. And so in reviewing whether or not
Speaker 1: these claims can be made and whether or not the
Speaker 1: plaintiffs have brought forth enough evidence to go forward, the
Speaker 1: courts have focused on whether or not response rates will
Speaker 1: actually be depressed, and at least one of the federal
Speaker 1: judges noted that the current political climate certainly suggests that
Speaker 1: individuals may be afraid, given some of then candidate Trump
Speaker 1: statements and the Trump administration's immigration position. So it's there
Speaker 1: are separate cases. Is there any similarity in the legal
Speaker 1: arguments of the challengers. Are they basing it on the
Speaker 1: same considerations? Well, there are really there are a few
Speaker 1: different legal challenges that are brought in these cases. All
Speaker 1: of them include uh statutory claims um that relate to
Speaker 1: a statue that effectively cabins the way that the executive
Speaker 1: can change the federal law. But they also make some
Speaker 1: larger constitutional claims that vary slightly. But all of the cases,
Speaker 1: all six of them, are all seeking the same result,
Speaker 1: and that is an order prohibiting the Trump administration from
Speaker 1: putting this question onsus. So now timing is essential here
Speaker 1: because questions need to be finalized before the spring of
Speaker 1: Will the courts be able to resolve these issues by then? Well,
Speaker 1: the courts do know that they're operating on quite a
Speaker 1: tight timeline. And that's because even though the census questions
Speaker 1: won't go out until, of course, they have to be
Speaker 1: published and they have to be printed and then actually
Speaker 1: sent out. UM. So there's somewhat of a moving target
Speaker 1: for these cases. Right now, they're on track to be
Speaker 1: uh to go at least one of them to go
Speaker 1: to trial in January. And that's really kind of the
Speaker 1: limit of where uh the opponents who are challenging this question.
Speaker 1: Think that the trial courts uh need to finish up
Speaker 1: in order to allow for enough time for appeals to follow.
Speaker 1: In time for appeals, this could be appealed to the
Speaker 1: Supreme Court. Well, that's right, And these are the kinds
Speaker 1: of cases, UH, kinds of really consequential cases that the
Speaker 1: justices do like to um intervene on, especially if the
Speaker 1: courts in these cases come to different results. So Kimberly,
Speaker 1: what kind of evidence is likely to be presented at trial? Well,
Speaker 1: they're likely going to be looking at whether or not
Speaker 1: the citizenship question will in effect lower response rates. And
Speaker 1: I think one of the key pieces of information for
Speaker 1: the opponents is actually going to be the Commerce Department's
Speaker 1: own findings that citizenship question would depress UH response rates dramatically.
Speaker 1: And another you know, piece that they're going to be
Speaker 1: looking at, is really the purpose of adding the citizenship question.
Speaker 1: Is the v R a defense something that is true
Speaker 1: or is it just a pretext to harm President Trump's
Speaker 1: political opponents? So then what will the government present if
Speaker 1: their own experts are going to testify on behalf of
Speaker 1: the challengers, Well, the experts likely the government will present
Speaker 1: experts UM that support their timeline that it was the
Speaker 1: Commerce or the Department of Justice that reached out to
Speaker 1: the Commerce Department, and that there's a good reason for
Speaker 1: doing this, and that is of course enforcing voting rights um.
Speaker 1: And they'll be pressing on the increased information that they'll
Speaker 1: get by adding this information, Toss and well, will Will
Speaker 1: Burross take the stand that you think, well, this is
Speaker 1: really uh, it's brought against the Secretary in his um
Speaker 1: capacity as uh, you know, an official, but likely he
Speaker 1: has had very little to do with the actual question.
Speaker 1: It's more likely we'll see individuals from the Census Bureau
Speaker 1: who will be presented in these cases. You sound really
Speaker 1: like senating cases, more fascinating than I initially thought. Thanks
Speaker 1: so much, Kimberly. That's Kimberly Strawbridge Robinson, Supreme Court reporter
Speaker 1: for Bloomberg Law. Also remember that the Census is tied
Speaker 1: to not only how many representatives there are in the
Speaker 1: House of Representatives for states, but also allocates more than
Speaker 1: six hundred seventy five billion dollars in federal funding. President
Speaker 1: Trump has shown support for former campaign chairman Paul Manaford,
Speaker 1: who was found guilty on eight counts of bank and
Speaker 1: tax fraud last week in tweets and speaking with Fox
Speaker 1: News last week, I have great respect for what he's
Speaker 1: done in terms of what he's gone through some of
Speaker 1: the charges say threw against him. Every consultant, every lobbyist
Speaker 1: in Washington probably does. But despite the President's support, Manafort's
Speaker 1: legal woes seemed to be snowballing. He faces a second
Speaker 1: trial starting in Washington, d C. Next month on money
Speaker 1: laundering and obstruction of justice charges, and a potential third
Speaker 1: trial in Virginia. Joining me is former federal prosecutor Robert Mints,
Speaker 1: a partner Macarter in English. So, Bob Manafort was convicted
Speaker 1: last week on eight counts of tax and bank fraud,
Speaker 1: but the jury hung on ten other counts. The prosecutors
Speaker 1: are going to tell us today, are going to tell
Speaker 1: man of for more importantly, whether they're going to pursue
Speaker 1: a retrial. What are the chances they'll retry him? Well,
Speaker 1: I think typically they would not, because the charges that
Speaker 1: he was convicted of already carry substantial jail time, and
Speaker 1: so it might not be worth the government's time to
Speaker 1: investage resources in the retrial. But in this case, I
Speaker 1: could see prosecutors at this point telling Judge ellis that
Speaker 1: they do intend at this point in time to retry
Speaker 1: those ten charges. We do know from speaking with yourors
Speaker 1: after the trial that there was a loan holdout, so
Speaker 1: it was only there were only one vote away from
Speaker 1: getting conviction, then those ten other accounts. And as a
Speaker 1: practical matter, what prosecutors can do is allowed the case
Speaker 1: in Washington, d C. To proceed, see how that goes,
Speaker 1: and then ultimately they can always make the decision not
Speaker 1: to go forward with this third trial if they decide
Speaker 1: that that's the right thing for them to do. Man
Speaker 1: of Forts lawyers reportedly, we're talking about a plea deal
Speaker 1: with prosecutors while the Virginia jury was deliberating. That's stalled
Speaker 1: over issues reportedly, according to The Wall Street Journal, raised
Speaker 1: by the prosecutors. So it's obvious why he would want
Speaker 1: a plea deal. But why would Muller be inclined to
Speaker 1: give him a deal when he has him, you might
Speaker 1: say over a barrel. Well, there'd be two reasons. One
Speaker 1: is simply to gain the certainty of a conviction in
Speaker 1: d C. Although that seems like a strong case, and
Speaker 1: the jury pool in the District of Columbia is likely
Speaker 1: to be more favorable to the government. The jury pool
Speaker 1: in the Eastern District of Virginia will typically draw on
Speaker 1: more Republican voters, and we know that there were a
Speaker 1: number of supporters of the president that we're on that
Speaker 1: jury panel. So I think prosecutors are probably feeling pretty
Speaker 1: good about their chances of a conviction in Washington, d c.
Speaker 1: But if they can get that conviction by way of
Speaker 1: a plea, they still may be interested in doing it.
Speaker 1: And then, of course there's always a possibility of Manafort
Speaker 1: agreeing to cooperate, which is really what prosecutors are looking
Speaker 1: for here. On the more pressure that they apply to him,
Speaker 1: the more likely that becomes as a possibility. So cooperation
Speaker 1: would be an essential part of any plea. Uh it could.
Speaker 1: I think they would be willing to take a plea
Speaker 1: without cooperation, but they're much likely much more likely to
Speaker 1: give him less favorable terms. If all he's looking for
Speaker 1: is a straight up plea without cooperation. With cooperation, he's
Speaker 1: going to get a sanction of the same terms. But
Speaker 1: then of course there's the opportunity for the judge to
Speaker 1: move to reduce that sentence based upon his cooperation. So
Speaker 1: Mr Manaford has a lot his plate right now, a
Speaker 1: lot of difficult decisions to be made. But if he
Speaker 1: is going to strike a deal, and he is going
Speaker 1: and he is going to consider cooperating, now it's really
Speaker 1: the time to do it. He's really got to probably
Speaker 1: make that decision before this Washington trial gets underway. So, Bob,
Speaker 1: if you were his defense attorney, how would you tell
Speaker 1: him to factor in the possibility of a pardon from Trump. Well,
Speaker 1: that's a very interesting question, and it's very difficult to
Speaker 1: come up with some kind of number and give your
Speaker 1: clients some kind of comfort as to whether or not
Speaker 1: that's going to happen. The President has obviously made a
Speaker 1: number of statements about that possibility. He has reportedly discussed
Speaker 1: that internally with his lawyers. Um. But whether or not
Speaker 1: the political blowback will be so substantial that he ultimately
Speaker 1: decides not to do that, We'll just have to wait
Speaker 1: and see. And I think one thing the President is
Speaker 1: doing also is perhaps waiting to see where Manifort goes
Speaker 1: with this. His Manafort continues to stand Paul, as the
Speaker 1: President put it in, continue to fight these charges and
Speaker 1: not cut a deal. He may wait and let let
Speaker 1: this play out. Let's see if he gets convicted in
Speaker 1: Washington as his trial goes forward, and then make a
Speaker 1: decision at some point in the future. Let's talk about
Speaker 1: that upcoming trial and DC charges of conspiring to launder money,
Speaker 1: obstruct justice, and acting as an unregistered foreign lobbyist. But
Speaker 1: a very different judge, Judge Amy Berman Jackson, how issued
Speaker 1: different from Judge Ellis, who had There was a lot
Speaker 1: of criticism of Judge Ellis for his comments during the
Speaker 1: trial and his rulings against the prosecution. Well, I think
Speaker 1: what we can say June is that Judge Ellis, through
Speaker 1: his comments during the course of the trial and in
Speaker 1: particular during the course of motions that were argued in
Speaker 1: the case before the trial and underway, showed some sympathy
Speaker 1: towards Mr Manafort, and some antipathy to the government's case
Speaker 1: and to the government's handling of the trial as the
Speaker 1: case proceeded. So far, Judge Berman Jackson has shown no
Speaker 1: particular sympathy towards Mr Manafort. She's known as a very straightforward,
Speaker 1: plate down the middle kind of judge. She's not going
Speaker 1: to tolerate any nonsense, uh, and I think she is
Speaker 1: going to probably inject herself and her personality and her
Speaker 1: personal style into the trial, less than we saw with
Speaker 1: Judge Ellis in the case in the Eastern District of Virginia.
Speaker 1: She's also the judge who sent Manafort to jail pre
Speaker 1: trial during and so at this point they're talking about
Speaker 1: questions the jury can be asked, and the prosecutors want
Speaker 1: to be able to ask or to have the judge
Speaker 1: ask about whether jurors voted in the election, whether they
Speaker 1: had any opinions of Trump or others associated with his
Speaker 1: campaign for president. Is the judge likely to allow those
Speaker 1: specific kinds of questions. Well, it's interesting they have the
Speaker 1: same type of back and forth in advance of the
Speaker 1: trial before Judge Ellis, and in that case, Judge Ellis
Speaker 1: made clear that he was not going to go down
Speaker 1: that road. He was not going to inject politics into
Speaker 1: this trial, even through a backdoor questioning of jurors. And
Speaker 1: I would suspect that Judge Berman Jackson will agree with
Speaker 1: that strategy. The problem was getting into questions about whether
Speaker 1: people voted in whether they have any particular feelings about
Speaker 1: the president and about his associates, is that it injects
Speaker 1: a level of politics into the trial that I think
Speaker 1: the judge is going to try to avoid, so I
Speaker 1: think they're going to say listen. Would be interesting for
Speaker 1: both sides, the defense and the prostitution to know the
Speaker 1: answers to these questions, but I think it's best if
Speaker 1: nobody knows and we will find out after the trial,
Speaker 1: as we did in the Virginia case. Thanks so much, Bob.
Speaker 1: That's Robert Mans. He's a partner at McCarter in English.
Speaker 1: Thanks listening to the Bloomberg Law podcast. You can subscribe
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and
Speaker 1: on Bloomberg dot com slash podcast. I'm June Brosso. This
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