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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: This is liberation Day in DC, and we're going to

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Speaker 2: take our capital back. We're taking it back.

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Speaker 3: On Monday, President Trump announced that he would take federal

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Speaker 3: control of Washington, d C's police Department, citing what he

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Speaker 3: called out of control crime to declare a public safety emergency.

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Speaker 4: The city will no longer be a sanctuary for illegal

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Speaker 4: alien criminals. We will have full, seamless, integrated cooperation at

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Speaker 4: all levels of law enforcement, and will deploy offices across

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Speaker 4: the district. With an overwhelming presidence you'll have more police

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Speaker 4: and you'll be so happy.

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Speaker 3: Well, DC Mayor Muriel Browser didn't seem so happy. She

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Speaker 3: said violent crime in the Capitol was at a thirty

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Speaker 3: year low, but that the president's authority is pretty broad.

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Speaker 3: Under DC's Home Rule Act.

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Speaker 5: The Home Rule Charter requires the mayor to provide the

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Speaker 5: services of MPD during special conditions of an emergency, and

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Speaker 5: we will follow the law, though there's a question about

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Speaker 5: the subjectivity of that declaration.

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Speaker 3: But three days later, tensions flared when the mayor and

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Speaker 3: DC's Attorney general rejected an order from US Attorney General

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Speaker 3: Pam BONDI that would have stripped the Metropolitan Police Department's

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Speaker 3: chief of her authority and place the agency under federal control.

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Speaker 3: And on Friday morning, DC Attorney General Brian Schwab sued

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Speaker 3: the Trump administration, saying the attempted takeover of the city's

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Speaker 3: police force was illegal.

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Speaker 6: And the Home Rule Charter and the Home Rule Act

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Speaker 6: is very clear with respect to when the President can

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Speaker 6: request limited services of MPD, limited by time, limited by

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Speaker 6: emergency circumstances, and limited for federal purposes, and in all

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Speaker 6: cases those services must be requested to the mayor to

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Speaker 6: be provided by the chief of Police. Not a hostile

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Speaker 6: takeover of our police.

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Speaker 3: By Friday afternoon, both sides were in court for hearing

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Speaker 3: on DC's request for a temporary restraining order to avoid

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Speaker 3: sidelining DC's police chief. My guest is former federal prosecutor

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Speaker 3: Mary McCord, a professor at Georgetown Law. It seemed like

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Speaker 3: Mayor Browser was grudgingly complying with the federalizing of the

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Speaker 3: DC Police force until this order from the US Attorney

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Speaker 3: General naming the head of the dea Emergency Police Commissioner

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Speaker 3: of d C.

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Speaker 7: Well, I mean, certainly even before the new order from

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Speaker 7: the Attorney General. There were I think a lot of

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Speaker 7: problems with the declaration of an emergency in terms of

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Speaker 7: just not really having a factual basis, but the DC

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Speaker 7: Attorney General had decided obviously not to sue based on that,

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Speaker 7: and I think you're right that the trigger event was

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Speaker 7: this order from Attorney General Bondie that basically really did

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Speaker 7: take over the Metropolitan Police Department. It pointed Terry Cole,

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Speaker 7: the DEA Commissioner, as the commissioner to assume all of

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Speaker 7: the powers and duties of the DC Police Chief required

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Speaker 7: that anything the DC Police Chief or the Mayor or

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Speaker 7: the commanders of Police wanted to do had to get

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Speaker 7: approval from Commissioner Cole before doing it. And then it

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Speaker 7: actually rescinded various police executive orders and general orders, and

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Speaker 7: so that really is a takeover, and that's what prompted

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Speaker 7: DC Attorney General Brian Schwab to come in with the complaint.

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Speaker 3: In the lawsuit, DC alleged that Trump doesn't have the

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Speaker 3: authority to take control over the police force, and he

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Speaker 3: can only require the mayor to offer assistance from the

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Speaker 3: police in certain emergency circumstances. About the suit, well.

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Speaker 7: I mean it's really the DC Attorney General saying you've

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Speaker 7: got to comply with the law, and the law that

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Speaker 7: President Trump invogud. That's part of the Home Rule Act

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Speaker 7: that gave the District of Columbia starting in nineteen seventy three,

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Speaker 7: the authority to elect its own mayor and elect the

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Speaker 7: DC Council, and enact legislation for the city, and to

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Speaker 7: have its own police chief and its own police force.

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Speaker 7: But that Home Rule Acts vegatory provision that the President

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Speaker 7: relied on, doesn't say anything about taking over the Metropolitan

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Speaker 7: to Police Department. It says that whenever the President determines

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Speaker 7: that special conditions of an emergency nature exist which require

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Speaker 7: the use of the Metropolitan Police Force for federal purposes,

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Speaker 7: he may direct the mayor to provide him and the

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Speaker 7: mayor shall provide such services of the Metropolitan Police Force

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Speaker 7: as the President may be necessary and appropriate. And that

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Speaker 7: is also time limited, no more than thirty days. So

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Speaker 7: what the PC Attorney General is said is there's nothing

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Speaker 7: about that language that says that the President can actually

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Speaker 7: appoint someone to completely take over the entire Metropolitan too

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Speaker 7: Police Department, restind general orders, and require all activity to

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Speaker 7: go through him. What this is saying is that the

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Speaker 7: president can require the mayor to provide services of MPD.

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Speaker 7: So if you think about it, let's assume, you know,

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Speaker 7: there's some sort of assault on a federal building that

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Speaker 7: houses a federal agency. You know, protesters rioting and throwing

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Speaker 7: rocks at the building and maybe lighting fires, what have you.

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Speaker 7: You can imagine the president saying, we have a state

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Speaker 7: of emergency. I don't have enough federal agents to protect

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Speaker 7: this federal property. I'm going to invoke this provision and

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Speaker 7: require the mayor to provide Metropolitan Police Department officers to

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Speaker 7: go and help protect this building and quell the you know,

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Speaker 7: the disturbance and the criminal activity there. That's like requesting services,

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Speaker 7: and services must be provided. And I will just say,

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Speaker 7: as a footnote, having been a prosecutor in GC for

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Speaker 7: twenty years and lived in this area for thirty five years,

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Speaker 7: a president would never need to invoke this in order

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Speaker 7: to get that kind of assistance from the Metropolitan Police

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Speaker 7: Department if there was a real emergency. Because the Metropolitan

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Speaker 7: the Police Department and federal law enforcement work together all

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Speaker 7: the time. They have all kinds of passporces, they have

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Speaker 7: mutual assistance agreements and if you had a real emergency,

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Speaker 7: MPD would be going to help. There was a real

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Speaker 7: emergency at the Capitol in January sixth of twenty twenty one,

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Speaker 7: and even though there are US Capitol Police, which are

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Speaker 7: federal police that protect the capital. DC's Metropolitan Police Department

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Speaker 7: went immediately to help with the emergency there. President of

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Speaker 7: course didn't ask for it, but didn't request it and

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Speaker 7: didn't use this provision. But at any rate, this complete

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Speaker 7: is saying you can't just come in and take over

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Speaker 7: the entire DC police.

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Speaker 3: And it seems like in these lawsuits against the Trump

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Speaker 3: administration there is almost always an allegation that the Strative

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Speaker 3: Procedure Act is being violated. What was it here?

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Speaker 7: In this case, what the President did is he delegated

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Speaker 7: his authority to the Attorney General, Pam Bondi, who then

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Speaker 7: is the one who put out this order actually effectuating

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Speaker 7: or trying to effectuate this takeover. And so part of

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Speaker 7: the causes of actions in the complaint or that that

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Speaker 7: is an administrative action taken by the head of an

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Speaker 7: administrative agency that is contrary to law and arbitrary and capricious.

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Speaker 7: So a number of different causes of actions in the complaint,

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Speaker 7: but it really all comes down to there's just no

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Speaker 7: authority to completely take over the police department.

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Speaker 3: Let's talk about the hearing over DC's request for a

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Speaker 3: temporary restraining order before Judge Anna Reyes, what were her

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Speaker 3: main concerns.

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Speaker 7: So she agreed that section one of Attorney General Bondi's order,

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Speaker 7: this is the section by which Attorney General Bondi purported

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Speaker 7: to basically give mister Cole all of the authorities of

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Speaker 7: the Chief of Police and complete direction and control really

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Speaker 7: over the Metropolitan Police Department. She agreed that that is

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Speaker 7: inconsistent with the Home Rule Act in terms of the

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Speaker 7: other parts of the order where Attorney General Bondi purported

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Speaker 7: to rescind executive orders and general orders that operate within

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Speaker 7: the Police Department, which are all immigration related. They have

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Speaker 7: to do with not voluntarily cooperating with ice enforcement unless

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Speaker 7: it's something that's required by law, and there's very little

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Speaker 7: that's actually required by law. So what the judge was

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Speaker 7: focused on is isn't it a problem to have these

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Speaker 7: things be rescinded. Don't you need to put things in

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Speaker 7: a framework of asking for services from the mayor and

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Speaker 7: the mayor providing those services. What you seem to be

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Speaker 7: trying to do US government is you seem to be

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Speaker 7: essentially bypassing the mayor and saying we're just taking over.

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Speaker 7: And that can't be the way the statute works, because

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Speaker 7: when Congress enacted the Home Rule Act, they consider a

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Speaker 7: provision that would have just allowed the president to just

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Speaker 7: take over the police Department, and that was rejected because

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Speaker 7: the members of Congress who were considering the Home Rule Act,

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Speaker 7: they were doing so for the very purpose of there

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Speaker 7: being local control, you know, turning over local government, local

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Speaker 7: policing to local control, and so it would be the

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Speaker 7: antithesis of that to have the president actually take over

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Speaker 7: the police department.

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Speaker 3: And what was the government's argument in support of this

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Speaker 3: order from the US Attorney General.

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Speaker 7: The government was trying to argue that really the request

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Speaker 7: could simply be to the mayor that we require the

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Speaker 7: services of MPD, and that then the President, pursuant to

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Speaker 7: the Home Rule Act, has the discretion to ask for

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Speaker 7: services as the president may be necessary and appropriate. And

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Speaker 7: in the view of the government, that kind of meant

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Speaker 7: you can ask for anything, and you can have a

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Speaker 7: federal official actually controlling the police department. That's not where

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Speaker 7: we ended up. We ended up in the judge taking

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Speaker 7: a very long break to see if the parties could

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Speaker 7: work something out between them, because she said, you know,

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Speaker 7: I'll asure at cro if I have to, but if

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Speaker 7: it's violated, that's going to be contemptive court. And I

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Speaker 7: really think that this is the kind of thing that

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Speaker 7: the parties should try to work out on their own.

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Speaker 3: And they did. Both sides agreed to leave the DC

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Speaker 3: Police Chief in control of the department. The DEA chief

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Speaker 3: is required to go through the mayor, and the mayor

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Speaker 3: is still required to fulfill policing requests from the Trump administration.

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Speaker 3: Thanks so much for joining me, Mary. That's Mary McCord,

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Speaker 3: a professor at Georgetown Law. Coming up next on the

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Speaker 3: Bloomberg Law Show, California and the Trump administration face off

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Speaker 3: at a landmark federal trial over Trump's deployment of troops

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Speaker 3: to Los Angeles in June. I'm June Grosso. When you're

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Speaker 3: listening to Bloomberg, President Trump has repeatedly said that sending

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Speaker 3: about four thousand troops to Los Angeles in June saved

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Speaker 3: the city.

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Speaker 2: And you watched crimes out, but you wouldn't have Los Angeles.

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Speaker 2: It wouldn't be existing today. We would have had to

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Speaker 2: cancel the Olympics if I let that go on.

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Speaker 3: But LA's mayor and California's governor have said that the

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Speaker 3: troops weren't needed to handle the limited protests, and the

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Speaker 3: presence of the military actually inflamed tensions.

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Speaker 1: The Marines that were never needed here, that never played

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Speaker 1: a role in crowd control, they're not trained to do that.

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Speaker 1: They're trained to kill the enemy on foreign lands. The

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Speaker 1: enemy is not Angelina's. But there's a bottom line.

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Speaker 4: The police do policing military.

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Speaker 1: It's for the battlefield.

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Speaker 3: After hearing testimony in a landmark trial in San Francisco

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Speaker 3: this week, a federal judge will decide whether Trump's deployment

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Speaker 3: of the National Guarden Marines to Los Angeles was legal.

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Speaker 3: My guest is an expert in wars and national security,

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Speaker 3: Claire Finkelstein, a professor of law at the University of Pennsylvania.

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Speaker 3: Claire tell us about California's sued against the Trump administration.

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Speaker 8: There were two bases that the Trump administration has claimed

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Speaker 8: for federalizing the California National Guard, and one is the

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Speaker 8: protective power. This is claimed to be an inherent article

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Speaker 8: to power that the president can wield in order to

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Speaker 8: protect federal assets. That means federal persons, federal buildings, and

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Speaker 8: to say we're out there in order to protect anything federal,

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Speaker 8: so that means ICE agents, and the claim is ice

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Speaker 8: agents couldn't do their jobs. There are also federal buildings

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Speaker 8: under threat, and so we had to federalize the National

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Speaker 8: Guard in order to protect federal assets. So that's number one,

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Speaker 8: and then the other one is ten USD twelve four

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Speaker 8: h six, which is a little use statue. The last

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Speaker 8: time it was used was actually in the Nixon era

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Speaker 8: to federalize the Guard on the grounds that there was

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Speaker 8: a rebellion or that they could not otherwise get compliance

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Speaker 8: with the law, and that was something that the Trump

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Speaker 8: administration was claiming in this instance. The State of California

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Speaker 8: challenged that and said, what's the basis for the federal

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Speaker 8: government thinking that there was a rebellion? No signs of

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Speaker 8: rebellion here, just some law enforcement issues which we, the

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Speaker 8: state of California, can handle on top of it. California

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Speaker 8: was saying, this is a violation of the Tenth Amendment.

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Speaker 8: We the State of California, California Governor, California officials are

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Speaker 8: in charge of law enforcement and police powers, and we

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Speaker 8: are not asking you to come in. So that, in general,

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Speaker 8: when there is federalization to assist with police thing, that

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Speaker 8: is normally at the request of a governor. Twelve four

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Speaker 8: h sixs that troops be deployed through the governor, and

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Speaker 8: that wasn't done. Governor Newsom wasn't even informed about the

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Speaker 8: federalization of the National Guard before it occurred. That's the

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Speaker 8: gist of their claim.

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Speaker 3: The trial judge Charles Bryer, who by the way, is

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Speaker 3: retired Justice Stephen Bryer's younger brother, So that the factual

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Speaker 3: issue is did the Marines and National Guard violate the

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Speaker 3: Passcomma Tatis Act? Tell us about that Act from eighteen

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Speaker 3: seventy eight.

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Speaker 8: So the pass Commatatas says that federal troops normally cannot

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Speaker 8: engage in law enforcement. So that is very different from

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Speaker 8: when the governor is in control of the California National

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Speaker 8: Guard under states active duty status or Title thirty two,

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Speaker 8: because in that case there is an exception to possecommatadis

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Speaker 8: when it is under control of state and local authorities.

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Speaker 8: But when troops are federalized, the pussy Commatatis Act applies,

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Speaker 8: and that is a criminal statute that says federal troops

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Speaker 8: cannot engage in law enforcement activities. Now, the federal government says,

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Speaker 8: in this case, under the protective Power and under twelve

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Speaker 8: four h six number one, we were not engaged in

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Speaker 8: law enforcement activities. The rules for the use of force

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Speaker 8: that we gave to the troops, that's like their rules

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Speaker 8: of engagement, except in domestic context. We call that rules

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Speaker 8: for the use of force did not involve, for example,

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Speaker 8: making arrest. Troops were told that they could not make

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Speaker 8: arrests specifically, and therefore they were not violating pussy coommatadis

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Speaker 8: because they weren't involved in law enforcement activities. But California

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Speaker 8: has said, in fact, you were involved in law enforcement

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Speaker 8: activities and cited a number of instances such as the

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Speaker 8: ability to detain individuals waiting for law enforcements such as

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Speaker 8: LAPD to show up. They maintained that that's a violation

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Speaker 8: of posscommatatas.

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Speaker 3: And why does the administration say that posskomma tatis doesn't

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Speaker 3: even apply here?

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Speaker 8: The administration, in addition to everything else, rejects the claim

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Speaker 8: that possecommatatus applies when the troops are deployed in their

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Speaker 8: protective capacity, namely engaged in protection for federal assets. They

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Speaker 8: also deny that it applies under twelve four oh six,

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Speaker 8: and they say twelve four oh six is like the

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Speaker 8: Insurrection Act. Under the Insurrection Act is generally recognized that

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Speaker 8: there is an exception to prosecommatatus and that the president

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Speaker 8: is allowed to deploy federal troops in a law enforcement capacity,

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Speaker 8: but only because there is deemed to be a situation

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Speaker 8: that is so serious that fact there's a full blown

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Speaker 8: insurrection and there was no way to gain control over

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Speaker 8: the region or that part of the country without having

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Speaker 8: federal troops engaged in law enforcement activities.

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Speaker 3: The testimony of one of the witnesses exposed the internal

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Speaker 3: tensions over the deployment. Longtime military leader, Major General Scott Sherman,

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Speaker 3: who commanded the Guard troops in La testified he'd never

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Speaker 3: heard the word rebellion used to describe the situation in

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Speaker 3: the city, and also that he had expressed resistance when

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Speaker 3: immigration officials initially asked for military support.

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Speaker 8: So his testimony was important for a couple of reasons.

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Speaker 8: The first reason is that he testified that he expressed

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Speaker 8: reservations and stronger than that, that he voiced opposition to

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Speaker 8: this operation, and that he was rebuked by a senior

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Speaker 8: Customs and Border Patrol official who questioned his loyalty to

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Speaker 8: the nation, which is very surprising. It's very important that

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Speaker 8: the military are able to express their concerns about the

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Speaker 8: boundaries of the operations that they're being asked to undertake,

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Speaker 8: and normally that would be given an awful lot of

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Speaker 8: difference when you have a senior military leader who was saying,

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Speaker 8: this is not an operation that we should be undertaking.

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Speaker 8: It's not appropriate for the military. You would expect an

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Speaker 8: administration to be sensitive and respectful of that. But it

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Speaker 8: also suggests that there was a sort of pecking order

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Speaker 8: and that was a concern about this operation to begin with,

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Speaker 8: that Customs and Border Patrol were sort of calling the

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Speaker 8: shot and that the military was going to be placed

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Speaker 8: in a subordinate position to Customs and Border patrol. That's

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Speaker 8: problematic from the standpoint of passecomatatas, since the military is

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Speaker 8: not supposed to be subordinate to civilian law enforcement agents

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Speaker 8: because it sort of turns them into law enforcement agents.

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Speaker 8: So that's one reason this is problematic. Another reason his

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Speaker 8: testimony was important is that he talked about what troops

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Speaker 8: were told they were allowed to do and what they

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Speaker 8: were not allowed to do. So though the administration has

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Speaker 8: been very insistent that the orders to troops did not

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Speaker 8: violate Pulsicoma tatis, his testimony suggested that they were allowed

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Speaker 8: to turn military force to civilians if civilians were impeding

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Speaker 8: federal operations such as ICE operations. Now, that might be

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Speaker 8: what you would expect if they're there in their protective capacity,

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Speaker 8: but it shows how tricky it is to have troops

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Speaker 8: out there and to expect that they're not going to

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Speaker 8: be involved in law enforcement activity, because it's very hard

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Speaker 8: to draw the boundary there. If they're in a protective capacity,

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Speaker 8: they could very well end up having to engage in

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Speaker 8: law enforcement activities. And typically our troops are not trained

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Speaker 8: for that. They don't know how to conduct arrests. They

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Speaker 8: don't necessarily know how to intersect with civilians who were

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Speaker 8: engaged in criminal activities. They don't know how to preserve

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Speaker 8: a crime scene. They're not necessarily trained in that. And

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Speaker 8: so though our National Guard troops are excellent at what

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Speaker 8: they do, crime control is not their beat. And this

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Speaker 8: is presumably one of the reasons why General Sherman was

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Speaker 8: concerned about this operation.

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Speaker 3: If all the troops were doing was guarding the ice agents,

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Speaker 3: would that still be a problem under possecoma tatis.

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Speaker 8: Well, in theory no, but as soon as you're guarding personnel,

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Speaker 8: you could very easily stray into activity that case passcomatatas.

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Speaker 8: So what if there's an attack on a federal officer

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Speaker 8: and there's no one around but National Guard troops to

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Speaker 8: engage in the detention or make that arrest. This is

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Speaker 8: what happened in one incident involving a veteran who was

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Speaker 8: trying to enter the Dureau of Veterans' Affairs, and the

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Speaker 8: Marines detained him and he was detained for two hours. Roughly.

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Speaker 8: It was really a mistake, but because there were no

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Speaker 8: LAPD present at the time, they viewed it necessary to

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Speaker 8: hold him and detain him until law enforcement officers could

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Speaker 8: show up. The question is whether or not there was

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Speaker 8: a violation of posse commatadas just in the detention itself.

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Speaker 3: Trump has made threats against other cities.

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Speaker 2: That's going to serve as a beacon for New York, Chicago,

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Speaker 2: Los Angeles and other places. All over the country. This

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Speaker 2: whole our whole country is going to be so different

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Speaker 2: and so great.

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Speaker 8: If President Trump tries to, for example, take over the

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Speaker 8: New York Police or the Chicago Police there, he will

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Speaker 8: not have the home rule advantage that he has in DC,

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Speaker 8: and he will not find himself in a very good

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Speaker 8: legal posture there. He really doesn't have any basis and

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Speaker 8: the control over the police is strictly reserved to the

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Speaker 8: state under the Tenth Amendment. That's core Tenth Amendment doctrine.

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Speaker 8: I think that's something that any federal judge would reject

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Speaker 8: very quickly. Now. As far as federalization of the National

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Speaker 8: Guard in any other states, he will be in a

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Speaker 8: similar posture to California, which is why this California trial

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Speaker 8: is so important. It will teach judges what Judge Briar

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Speaker 8: is going through right now, and the evidence that Judge

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Speaker 8: Briar is fifting through will be extremely instructive for federal

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Speaker 8: judges in other jurisdictions as they inevitably wait posscommatadis issues

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Speaker 8: in potentially the state of New York or the state

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Speaker 8: of Illinois. I think we're going to find a situation

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Speaker 8: replicated in clarity about the boundaries set by possycommatatis and

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Speaker 8: what federal troops are permitted to do and not do

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Speaker 8: will be extremely important in the coming weeks.

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Speaker 3: I'm sure we'll be talking again. Thanks so much, Claire.

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Speaker 3: That's professor Claire Finkelstein at the University of Pennsylvania. Coming

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Speaker 3: up next. A win for the administration as a federal

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Speaker 3: circuit court allows it to block billions of dollars in

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Speaker 3: foreign aid. I'm June Grosso and you're listening to Bloomberg.

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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 3: Attorney General Pam Bondi has frequently chastised federal judges who've

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Speaker 3: held back President Trump's agenda, calling them liberal activists and

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Speaker 3: of control.

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Speaker 9: Judges have used these injunctions to block virtually all of

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Speaker 9: President Trump's policies. To put this in perspective, there are

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Speaker 9: ninety four federal judicial districts. Five of those districts throughout

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Speaker 9: this country held thirty five of the nationwide injunctions. Think

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Speaker 9: about that, ninety four districts and thirty five out of

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Speaker 9: the forty opinions with nationwide injunctions came from five liberal

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Speaker 9: districts in this country.

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Speaker 3: One of those so called liberal districts where nationwide injunctions

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Speaker 3: have been issued is the District of Maryland, and the

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Speaker 3: Justice Department has picked that district to file an unprecedented

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Speaker 3: lawsuit against all the federal judges in the district. It's

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Speaker 3: over a standing order that blocks for two days the

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Speaker 3: deportations of detained immigrants who file habeas petitions. Of course,

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Speaker 3: Maryland is also the district that drew national attention in

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Speaker 3: the case of Kilmar Abrego Garcia, who was wrongfully deported

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Speaker 3: to l Salvador. Joining me is constitutional law expert Harold Krant,

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Speaker 3: a professor at the Chicago Kent College of Law. How

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Speaker 3: this lawsuit is unprecedented? How much is this a ratcheting

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Speaker 3: up of the Trump administration's power struggle with the judiciary.

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Speaker 10: The Department of Justice had options here. They could have

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Speaker 10: easily chosen one of the twelve cases in which the

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Speaker 10: automatic stay had been imposed to file an appeal, and

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Speaker 10: they would have been able to obtain an orderly fashion

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Speaker 10: of pellet review of the propriety of the District of

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Speaker 10: Maryland standing order which imposed the automatic stay in an

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Speaker 10: immigration Abeast context. They chose not to do that. They

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Speaker 10: ratcheted up the tension by filing an unteralbleled lawsuit against

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Speaker 10: all members of the District of Maryland individually as judges,

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Speaker 10: and that sets the framework for a very important separation

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Speaker 10: of powish challenge, namely whether the executive branch can sue

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Speaker 10: judges get information about them depositions because they don't like

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Speaker 10: a standing order. So the procedural posture itself is what

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Speaker 10: is the most troubling aspect of this case, not the

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Speaker 10: only one that's certainly the most troubling.

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Speaker 3: The government says that two day pause in deportations inhibits

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Speaker 3: the president's ability to enforce federal immigration laws, and that

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Speaker 3: the Chief Judge has no authority to issue such a

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Speaker 3: blanket order.

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Speaker 10: And so many courts of appeals, and in the case

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Speaker 10: I think they cited five courts of appeals have automatic

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Speaker 10: stays in certain contexts in order to preserve the jurisdiction

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Speaker 10: of the court. And so the District of Maryland is

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Speaker 10: the site which famously gave rise to the Kilmer Abrago

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Speaker 10: Garcia case, where the government shipped Garcia out of the

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Speaker 10: country surreptitiously while a challenge was going on. And so

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Speaker 10: because they had been burned, and the Department just had

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Speaker 10: interfered with the jurisdiction of the court previously. That's what

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Speaker 10: led to this standing order being promulgated. So, I mean,

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Speaker 10: the Department Justice is right in the sense that an

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Speaker 10: automatic stay does interfere with cases in which the individual

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Speaker 10: has no claim whatsoever not to be deported. But you know,

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Speaker 10: the delay is only for two days, and given what's

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Speaker 10: happened before in terms of the due process violation that

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Speaker 10: the government has committed by transporting Garcia and others away

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Speaker 10: without any kind of chance for hearing, the court followed

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Speaker 10: the lead of other court's appeals, which said, look, just

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Speaker 10: give us two days to see if there's any substance here,

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Speaker 10: and if there's no substance, we'll say, go ahead, shift

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Speaker 10: the person out. So the Department Justice has taken a

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Speaker 10: very unusual stance in this context to again increase the

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Speaker 10: pressure on judges by suing them, which is unparalleled. And

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Speaker 10: the hearing the Trump appointee seems very dubious as to

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Speaker 10: the validity of the Department of Justices challenge and.

439
00:28:01,000 --> 00:28:05,760
Speaker 3: Judge Thomas Cullen normally sits in Roanoke, Virginia, but the

440
00:28:05,800 --> 00:28:09,720
Speaker 3: Fourth Circuit assigned him to hear this case because all

441
00:28:09,760 --> 00:28:13,399
Speaker 3: the federal judges in Maryland were being sued and so

442
00:28:13,680 --> 00:28:18,240
Speaker 3: were conflicted out. So Judge Cullin, a Trump appointee, tell

443
00:28:18,320 --> 00:28:21,000
Speaker 3: the government lawyer, one of the things about me is

444
00:28:21,119 --> 00:28:23,679
Speaker 3: I don't have a very good poker face, and I

445
00:28:23,720 --> 00:28:25,960
Speaker 3: think you've probably picked up on the fact that I

446
00:28:26,040 --> 00:28:29,480
Speaker 3: have some skepticism. He had a lot of skepticism if

447
00:28:29,520 --> 00:28:32,439
Speaker 3: you look at what happened at the hearing. He also

448
00:28:32,640 --> 00:28:37,119
Speaker 3: questioned whether this could lead to other executive branch litigation

449
00:28:37,440 --> 00:28:40,760
Speaker 3: against federal benches all the way up to the Supreme Court.

450
00:28:41,200 --> 00:28:41,400
Speaker 4: Yeah.

451
00:28:41,440 --> 00:28:45,560
Speaker 10: I mean, we don't want the specter of DOJ suing

452
00:28:45,640 --> 00:28:49,479
Speaker 10: judges and having other judges than sitting to judge the

453
00:28:49,600 --> 00:28:56,040
Speaker 10: lawsuit against judges, and that comes with subpoenas, depositions, discovery.

454
00:28:56,400 --> 00:29:00,840
Speaker 10: Not only said unseemly, it was certainly chill independent judging.

455
00:29:00,960 --> 00:29:04,920
Speaker 10: So the very fact of rumging around and the judge's

456
00:29:05,160 --> 00:29:07,960
Speaker 10: files to determine what lay behind in this case, the

457
00:29:08,000 --> 00:29:12,320
Speaker 10: standing order kind of correspondence there was, would inhibit judicial

458
00:29:12,320 --> 00:29:15,960
Speaker 10: freedom and really compromise the independence of the judiciary as

459
00:29:16,000 --> 00:29:17,760
Speaker 10: we know it. So I think the Judge came was

460
00:29:18,360 --> 00:29:21,440
Speaker 10: right on in saying that even if there were some

461
00:29:21,560 --> 00:29:25,080
Speaker 10: kind of issue on the merits here and there's something

462
00:29:25,080 --> 00:29:27,560
Speaker 10: of a case that the Department Justice has, this is

463
00:29:27,600 --> 00:29:30,760
Speaker 10: not the way to challenge it. Take it normally and

464
00:29:31,080 --> 00:29:33,640
Speaker 10: challenge it up to the Four Circuit, and if you

465
00:29:33,720 --> 00:29:38,400
Speaker 10: need to the Supreme Court, don't sue the judges themselves.

466
00:29:38,640 --> 00:29:44,200
Speaker 3: This illustrates the Trump administration's offensive against the federal judiciary.

467
00:29:44,520 --> 00:29:49,760
Speaker 3: There's the inflammatory rhetoric, allegations that the administration has ignored

468
00:29:49,840 --> 00:29:54,280
Speaker 3: court orders, and they filed ethics complaints against two federal

469
00:29:54,400 --> 00:29:57,600
Speaker 3: judges for things that they said in the courtroom. What's

470
00:29:57,640 --> 00:29:59,600
Speaker 3: the administration's strategy.

471
00:30:00,400 --> 00:30:04,640
Speaker 10: Certainly part of the rationale of the Trump administration is

472
00:30:04,680 --> 00:30:10,680
Speaker 10: to receive a softer reception in the courts. So the theory,

473
00:30:10,760 --> 00:30:13,360
Speaker 10: I guess, is that you have a broadside here and

474
00:30:13,400 --> 00:30:16,560
Speaker 10: a broadside there that judges down the road will be

475
00:30:16,640 --> 00:30:20,040
Speaker 10: more receptive to their arguments. But it could backfire. This

476
00:30:20,160 --> 00:30:23,200
Speaker 10: kind of action could scare even judges who would otherwise

477
00:30:23,200 --> 00:30:26,400
Speaker 10: be sympathetic with the Trump administration peak say, if we

478
00:30:26,440 --> 00:30:29,000
Speaker 10: want to have any kind of independent judging left in

479
00:30:29,040 --> 00:30:33,040
Speaker 10: this country, we can't have the executive grant, suing and

480
00:30:33,520 --> 00:30:39,360
Speaker 10: deposing and seeking private correspondence from judges in particular cases.

481
00:30:39,520 --> 00:30:42,280
Speaker 10: So that's the spectru of what we have through this lawsuit.

482
00:30:42,400 --> 00:30:45,920
Speaker 10: And again I don't think the Trumper administration will achieve

483
00:30:45,960 --> 00:30:47,480
Speaker 10: their ends through this means.

484
00:30:47,520 --> 00:30:49,440
Speaker 3: I want to turn out of a significant win for

485
00:30:49,560 --> 00:30:53,480
Speaker 3: President Trump in his efforts to dissolve the US Agency

486
00:30:53,680 --> 00:30:58,440
Speaker 3: for International Development and to withhold funding from other programs.

487
00:30:58,920 --> 00:31:01,440
Speaker 3: The DC Circuit Court sort of Appeals, in a split

488
00:31:01,560 --> 00:31:05,520
Speaker 3: decision this week, rule that the Trump administration can cut

489
00:31:05,640 --> 00:31:10,200
Speaker 3: billions of dollars in foreign assistance funds already approved by

490
00:31:10,320 --> 00:31:14,040
Speaker 3: Congress for this year. How significant is this decision?

491
00:31:14,560 --> 00:31:16,520
Speaker 10: So, I think this is a huge way in on

492
00:31:16,600 --> 00:31:19,680
Speaker 10: several different grounds for the Trump administration. And in this case,

493
00:31:19,760 --> 00:31:22,520
Speaker 10: the District Court had ordered the money to be dispersed

494
00:31:22,520 --> 00:31:26,320
Speaker 10: and said that Congress was clear President has no independent

495
00:31:26,360 --> 00:31:30,480
Speaker 10: poundment authority these acting and violation of the Empowerment Control Act. Therefore,

496
00:31:30,720 --> 00:31:34,240
Speaker 10: the disrect Court judge directed the administration to spend the money,

497
00:31:34,360 --> 00:31:36,840
Speaker 10: and the two to one decision the DC Court of

498
00:31:36,840 --> 00:31:41,000
Speaker 10: Appeals overturned that on two different rationales. The first rationale,

499
00:31:41,040 --> 00:31:43,280
Speaker 10: which I considered to be the broad one, and more

500
00:31:43,400 --> 00:31:47,240
Speaker 10: frightening is that the court said that if you only

501
00:31:47,280 --> 00:31:51,240
Speaker 10: are arguing that the president violates the statute, you don't

502
00:31:51,240 --> 00:31:54,120
Speaker 10: have a cause of action. There is no power for

503
00:31:54,200 --> 00:31:59,040
Speaker 10: anybody who's injured by direct presidential action based upon violation

504
00:31:59,120 --> 00:32:02,000
Speaker 10: of statute that can be brought in the federal courts.

505
00:32:02,280 --> 00:32:06,520
Speaker 10: This is an astounding decision of immense significance because the

506
00:32:06,600 --> 00:32:11,360
Speaker 10: argument is whether the president just stonewalls violates a statute,

507
00:32:11,560 --> 00:32:14,680
Speaker 10: ignores a statute, et cetera, et cetera, that no one

508
00:32:14,720 --> 00:32:18,160
Speaker 10: can sue to challenge that because the president is immune

509
00:32:18,240 --> 00:32:22,480
Speaker 10: from suit. So to me, that is a very consequential,

510
00:32:22,920 --> 00:32:28,040
Speaker 10: incredibly broad understanding of precedent and would be very deleterious

511
00:32:28,080 --> 00:32:33,000
Speaker 10: in terms of establishing constraints on presidential authority. The majority

512
00:32:33,080 --> 00:32:36,239
Speaker 10: also use the second rational that's much more narrow and

513
00:32:36,280 --> 00:32:39,080
Speaker 10: I think has some plausibility to it. There, the Court

514
00:32:39,200 --> 00:32:43,760
Speaker 10: said that Congress, in creating the Empowerment Control Act, established

515
00:32:43,800 --> 00:32:48,360
Speaker 10: the very sensitive procedure by which the Controller General, an

516
00:32:48,400 --> 00:32:52,400
Speaker 10: agent of Congress, can decide to sue the president the

517
00:32:52,600 --> 00:32:57,280
Speaker 10: violation of the directions from Congress. And so the Court

518
00:32:57,400 --> 00:33:01,000
Speaker 10: said that there is an implicit preclusion of review, that

519
00:33:01,120 --> 00:33:05,480
Speaker 10: Congress wanted these kinds of empowerment controversies to be adjudicated

520
00:33:05,560 --> 00:33:09,880
Speaker 10: only by the Controller General after consultation with Congress, not

521
00:33:10,040 --> 00:33:13,440
Speaker 10: by private third parties. I think the issue may be closer,

522
00:33:13,560 --> 00:33:16,560
Speaker 10: but certainly my point is that this would have a

523
00:33:16,640 --> 00:33:20,000
Speaker 10: much more narrow impact upon future cases. In most of

524
00:33:20,040 --> 00:33:22,360
Speaker 10: these other cases we have, the federal employee cases, the

525
00:33:22,440 --> 00:33:28,000
Speaker 10: grant cases, there is no implicit alternative procedure, at least arguably,

526
00:33:28,280 --> 00:33:30,280
Speaker 10: and so there would not be as much of an

527
00:33:30,280 --> 00:33:34,520
Speaker 10: impact upon future litigation. But this first rationale forwarded by

528
00:33:34,520 --> 00:33:38,400
Speaker 10: the Court is astonishing again, and they've said, as shocking

529
00:33:38,440 --> 00:33:41,360
Speaker 10: as there may be, that no one can sue for

530
00:33:41,600 --> 00:33:46,040
Speaker 10: statutory violation by the president, that the president's simply immune

531
00:33:46,040 --> 00:33:48,520
Speaker 10: from that suit because the Administrative Procedure Act doesn't waive

532
00:33:48,600 --> 00:33:51,600
Speaker 10: his his immunity and there's no other cause of action

533
00:33:51,720 --> 00:33:55,840
Speaker 10: available to make sure that the president follows statutes.

534
00:33:56,200 --> 00:34:00,320
Speaker 3: And could this same theory of immunity be applied if

535
00:34:00,360 --> 00:34:02,840
Speaker 3: the president violates other statutes.

536
00:34:03,160 --> 00:34:06,560
Speaker 10: That's one of the basic assumptions of our entire separation

537
00:34:06,640 --> 00:34:10,600
Speaker 10: of powers is that the president must comply with statutes,

538
00:34:10,960 --> 00:34:14,839
Speaker 10: and so this decision would intensive munize the president from

539
00:34:15,120 --> 00:34:18,799
Speaker 10: suits not only about releasing foreign aid as in this case,

540
00:34:18,840 --> 00:34:23,160
Speaker 10: but in so many other contexts as well, discharging employees,

541
00:34:23,760 --> 00:34:26,880
Speaker 10: canceling grants, et cetera, et cetera. If you could sue

542
00:34:26,880 --> 00:34:31,160
Speaker 10: a subordinate executive grant official, that would enable the plaintiffs

543
00:34:31,160 --> 00:34:33,520
Speaker 10: to get into court. But according to the DC Circuit

544
00:34:33,560 --> 00:34:36,720
Speaker 10: in this case, there could be no direct claim against

545
00:34:36,800 --> 00:34:38,719
Speaker 10: the President in this case himself.

546
00:34:39,320 --> 00:34:42,000
Speaker 3: So, as you mentioned, there was a two to one decision,

547
00:34:42,480 --> 00:34:46,279
Speaker 3: with judges appointed by Donald Trump and George H. W.

548
00:34:46,600 --> 00:34:52,279
Speaker 3: Bush in the majority, and of Biden appointee dissenting. If

549
00:34:52,320 --> 00:34:57,320
Speaker 3: the challengers ask the DC Circuit, the entire DC Circuit

550
00:34:57,440 --> 00:35:01,920
Speaker 3: to reconsider the decision, judges appointed by Democrats hold the majority.

551
00:35:01,920 --> 00:35:02,280
Speaker 6: There.

552
00:35:02,480 --> 00:35:05,520
Speaker 3: I mean, it's sad to look at this as democratic

553
00:35:05,560 --> 00:35:09,239
Speaker 3: appointed judges versus Republican appointed judges, but that's the way

554
00:35:09,280 --> 00:35:12,080
Speaker 3: it seems to be breaking down in many of these

555
00:35:12,200 --> 00:35:15,960
Speaker 3: cases at the DC Circuit, including on Friday in a

556
00:35:16,040 --> 00:35:19,600
Speaker 3: case okaying the dismantling of the CFPB.

557
00:35:20,160 --> 00:35:22,359
Speaker 10: Yeah, and in this case, I just find that one

558
00:35:22,400 --> 00:35:26,879
Speaker 10: aspect of the majority's decision so frightening and so destructive

559
00:35:27,000 --> 00:35:30,279
Speaker 10: of our constitutional order. I'm sure that the entire court

560
00:35:30,360 --> 00:35:32,840
Speaker 10: that took up this case would at least narrow the

561
00:35:32,880 --> 00:35:37,120
Speaker 10: scope of the majority's decision. And again going back to

562
00:35:37,520 --> 00:35:40,359
Speaker 10: the case we discussed with respect to the standing order

563
00:35:40,400 --> 00:35:44,200
Speaker 10: of the District of Maryland. They're at least a Trump appointee,

564
00:35:44,440 --> 00:35:47,400
Speaker 10: I think will have the independence of minds seemingly so

565
00:35:47,480 --> 00:35:50,560
Speaker 10: far to say no, the Justice Department has gone too far,

566
00:35:50,840 --> 00:35:54,000
Speaker 10: and I think that's healthy. It's healthy to have sometimes

567
00:35:54,120 --> 00:35:58,279
Speaker 10: Biden judges going against Biden or against democratic sort of positions,

568
00:35:58,600 --> 00:36:01,960
Speaker 10: and publican judges the same. So we'll have to see

569
00:36:02,080 --> 00:36:05,280
Speaker 10: what happens and plays out if the full court takes

570
00:36:05,280 --> 00:36:07,919
Speaker 10: this case as a whole, and that remains to be seen.

571
00:36:08,040 --> 00:36:11,080
Speaker 3: I'll be keeping my eye on the DC's circuit. Thanks Hal.

572
00:36:11,280 --> 00:36:15,000
Speaker 3: That's Professor Harold Krent of the Chicago Kent College of Law.

573
00:36:15,760 --> 00:36:18,080
Speaker 3: And that's it for this edition of the Bloomberg Law Show.

574
00:36:18,400 --> 00:36:20,759
Speaker 3: Remember you can always get the latest legal news on

575
00:36:20,800 --> 00:36:25,080
Speaker 3: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

576
00:36:25,280 --> 00:36:30,319
Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,

577
00:36:30,719 --> 00:36:33,280
Speaker 3: and remember to tune into the Bloomberg Law Show every

578
00:36:33,360 --> 00:36:37,240
Speaker 3: weeknight at ten pm Wall Street Time, I'm June Grosso

579
00:36:37,400 --> 00:36:39,000
Speaker 3: and you're listening to Bloomberg