1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,760 --> 00:00:11,320 Speaker 2: We as a Republican party are going to do everything 3 00:00:11,440 --> 00:00:14,560 Speaker 2: possible that we get rid of mail invalots. We're going 4 00:00:14,600 --> 00:00:17,080 Speaker 2: to start with an executive order that's being written right 5 00:00:17,120 --> 00:00:20,080 Speaker 2: now by the best lawyers of the country to end 6 00:00:20,239 --> 00:00:25,599 Speaker 2: mail in ballots because they're corrupt. And do you know 7 00:00:25,640 --> 00:00:27,720 Speaker 2: that we're the only country in the world. I believe 8 00:00:27,760 --> 00:00:30,200 Speaker 2: I may be wrong, but just about the only country 9 00:00:30,200 --> 00:00:31,160 Speaker 2: in the world that uses it. 10 00:00:31,560 --> 00:00:35,599 Speaker 3: Actually, more than thirty countries have mail in voting, including 11 00:00:35,640 --> 00:00:40,760 Speaker 3: the UK, Canada, and Australia, and voter fraud is extremely rare, 12 00:00:41,000 --> 00:00:44,640 Speaker 3: although President Trump has complained about it for years and 13 00:00:44,720 --> 00:00:49,280 Speaker 3: of course fought losing legal battles over allegations of fraud 14 00:00:49,440 --> 00:00:53,200 Speaker 3: in the twenty twenty election. Still, on Monday, Trump said 15 00:00:53,240 --> 00:00:57,080 Speaker 3: he'll sign an executive order to end mail in voting 16 00:00:57,320 --> 00:01:00,880 Speaker 3: and voting machines, which he claims are all also highly 17 00:01:00,880 --> 00:01:06,560 Speaker 3: inaccurate for validation. He pointed to comments by Russia's authoritarian 18 00:01:06,680 --> 00:01:10,920 Speaker 3: leader Vladimir Putin in an interview on Fox You Know. 19 00:01:11,080 --> 00:01:14,400 Speaker 4: Vladimir Putin said something. One of the most interesting things. 20 00:01:15,080 --> 00:01:19,039 Speaker 4: He said, your election was rigged because you have mail 21 00:01:19,080 --> 00:01:22,880 Speaker 4: in voting. He said, mail in voting every election. He said, 22 00:01:22,920 --> 00:01:26,160 Speaker 4: no country has mail in voting. It's impossible to have 23 00:01:26,240 --> 00:01:28,399 Speaker 4: mail in voting and have honest elections. 24 00:01:28,840 --> 00:01:32,440 Speaker 3: By midweek, the White House seemed to have shifted course, 25 00:01:32,800 --> 00:01:37,120 Speaker 3: with a top aid saying the administration would pursue legislation 26 00:01:37,520 --> 00:01:41,800 Speaker 3: to attain Trump's goals. My guest is constitutional law professor 27 00:01:41,880 --> 00:01:45,760 Speaker 3: Rick Pildis of NYU Law School. Rick, under the Constitution, 28 00:01:46,240 --> 00:01:50,440 Speaker 3: what roles do the president, Congress, and the states play 29 00:01:50,600 --> 00:01:51,440 Speaker 3: in elections? 30 00:01:52,080 --> 00:01:54,720 Speaker 5: So let's start with the president. So the president has 31 00:01:54,760 --> 00:01:58,440 Speaker 5: no power constitutionally to dictate to the states how they 32 00:01:58,440 --> 00:02:03,680 Speaker 5: conduct national liefections. The Constitution gives states the power to 33 00:02:03,720 --> 00:02:06,559 Speaker 5: regulate the way in which our national elections are held, 34 00:02:06,800 --> 00:02:10,600 Speaker 5: and the constitution also gives Congress the power to decide 35 00:02:10,680 --> 00:02:14,040 Speaker 5: to sort of supplant the states in that role. But 36 00:02:14,360 --> 00:02:18,519 Speaker 5: the president has no power constitutionally to dictate how states 37 00:02:18,560 --> 00:02:19,520 Speaker 5: conduct elections. 38 00:02:19,720 --> 00:02:23,800 Speaker 3: Let's say Congress agrees with President Trump, what could Congress 39 00:02:23,919 --> 00:02:26,880 Speaker 3: do to change the way elections are held? 40 00:02:27,200 --> 00:02:29,440 Speaker 5: I think that begins to get us into the more 41 00:02:29,480 --> 00:02:32,880 Speaker 5: significant questions. In a sense, So even if the president 42 00:02:32,919 --> 00:02:36,200 Speaker 5: doesn't have the power to do this. Once he puts 43 00:02:36,200 --> 00:02:39,240 Speaker 5: the marker out there on this by issuing the executive order, 44 00:02:39,440 --> 00:02:41,880 Speaker 5: then the question becomes, you know what's going to happen 45 00:02:41,919 --> 00:02:45,200 Speaker 5: in the States, and what's going to happen in Congress. Congress, 46 00:02:45,200 --> 00:02:49,800 Speaker 5: in theory, does have the power to determine issues like 47 00:02:50,080 --> 00:02:54,240 Speaker 5: the appropriate use of absentee ballots in national elections. Congress 48 00:02:54,240 --> 00:02:57,880 Speaker 5: could require absentee ballots to be provided, It could determine 49 00:02:57,880 --> 00:03:00,680 Speaker 5: the conditions under which they can be used, and I 50 00:03:00,680 --> 00:03:03,440 Speaker 5: think in theory it probably could ban their use. There 51 00:03:03,480 --> 00:03:07,880 Speaker 5: might be some constitutional challenges individual voters would bring, but fundamentally, 52 00:03:07,919 --> 00:03:11,760 Speaker 5: the Supreme Court has recognized extremely broad power in Congress 53 00:03:11,760 --> 00:03:15,720 Speaker 5: to regulate national elections under the Election's clause. Now you 54 00:03:15,760 --> 00:03:19,200 Speaker 5: know whether Congress would actually do this, I'd say fairly 55 00:03:19,240 --> 00:03:23,000 Speaker 5: skeptical about because number one, of course, as long as 56 00:03:23,040 --> 00:03:26,360 Speaker 5: we have the filibuster, the Democrats are going to oppose 57 00:03:26,400 --> 00:03:29,760 Speaker 5: this and it won't get through the Senate. But number two, 58 00:03:29,880 --> 00:03:33,280 Speaker 5: the Republicans have for a very long time been very 59 00:03:33,360 --> 00:03:37,480 Speaker 5: much against nationalizing the election process. There will certainly be 60 00:03:37,480 --> 00:03:40,080 Speaker 5: some Republicans I would imagine who would go along with 61 00:03:40,160 --> 00:03:43,120 Speaker 5: the President but I think there might well be pushed 62 00:03:43,120 --> 00:03:47,480 Speaker 5: back from within the Republican Party on going down this route. 63 00:03:47,480 --> 00:03:51,840 Speaker 5: At the national level, election administrators, including in red states, 64 00:03:52,000 --> 00:03:54,440 Speaker 5: are not going to be happy about a change like 65 00:03:54,480 --> 00:03:57,920 Speaker 5: this because it means the election process will be more 66 00:03:58,160 --> 00:04:01,080 Speaker 5: complicated for them to run because increase the number of 67 00:04:01,080 --> 00:04:04,440 Speaker 5: people who would turn to in person voting. So, in theory, 68 00:04:04,480 --> 00:04:07,240 Speaker 5: Congress could regulate in this area, but I don't know 69 00:04:07,280 --> 00:04:09,640 Speaker 5: what the politics will be about that. I think then 70 00:04:09,760 --> 00:04:13,520 Speaker 5: the question is what will happen in red states, you 71 00:04:13,520 --> 00:04:15,680 Speaker 5: know that are run by legislators and governors who are 72 00:04:15,680 --> 00:04:19,720 Speaker 5: sympathetic to the president's agenda, And will we see significant 73 00:04:19,760 --> 00:04:22,600 Speaker 5: changes going on in red states about the use of 74 00:04:22,640 --> 00:04:23,760 Speaker 5: absentee ballots? 75 00:04:23,960 --> 00:04:27,000 Speaker 3: And let's say Congress does pass a law like that, 76 00:04:27,360 --> 00:04:28,599 Speaker 3: what would a challenge look like? 77 00:04:28,920 --> 00:04:33,039 Speaker 5: So if Congress were to ban absentee ballots altogether, I 78 00:04:33,080 --> 00:04:37,880 Speaker 5: can imagine individual voters who cannot be in the jurisdiction 79 00:04:38,200 --> 00:04:41,840 Speaker 5: on election day or during the early voting process if 80 00:04:41,839 --> 00:04:44,800 Speaker 5: the state has early voting, who say I just can't 81 00:04:44,880 --> 00:04:48,239 Speaker 5: exercise my right to vote at all, in effect, because 82 00:04:48,279 --> 00:04:51,040 Speaker 5: I just for whatever reason, cannot be in the jurisdiction 83 00:04:51,160 --> 00:04:53,960 Speaker 5: during those days. I could imagine they might bring a 84 00:04:54,120 --> 00:04:57,880 Speaker 5: challenge under the federal Constitution and sort of right to 85 00:04:57,960 --> 00:05:02,160 Speaker 5: vote constitutional doctrine. They would argue that this ban would 86 00:05:02,160 --> 00:05:05,520 Speaker 5: impose a severe burden on their voting rights. So I 87 00:05:05,560 --> 00:05:08,280 Speaker 5: suspect that would be the form the challenge would take, 88 00:05:08,320 --> 00:05:10,800 Speaker 5: And I think the voters who would have the strongest 89 00:05:10,800 --> 00:05:13,640 Speaker 5: case would be the voters in that category I just described, 90 00:05:13,720 --> 00:05:16,839 Speaker 5: people who just physically can't be in the jurisdiction during 91 00:05:16,880 --> 00:05:19,200 Speaker 5: any of the days on which voting takes place. I 92 00:05:19,200 --> 00:05:21,800 Speaker 5: don't know whether they would win that constitutional challenge, but 93 00:05:21,920 --> 00:05:23,440 Speaker 5: that's what I would envision. 94 00:05:23,680 --> 00:05:27,440 Speaker 3: Yeah, I mean the military votes by mail for that reason. Also, 95 00:05:28,000 --> 00:05:32,640 Speaker 3: Republicans poured tens of millions of dollars last year into 96 00:05:32,680 --> 00:05:37,120 Speaker 3: convincing their voters that ballots by mail are safe, and 97 00:05:37,160 --> 00:05:40,960 Speaker 3: Trump himself has voted by mail. Now, what about voting machines. 98 00:05:41,080 --> 00:05:44,920 Speaker 3: Trump wants to go from voting machines to paper ballots 99 00:05:45,040 --> 00:05:46,160 Speaker 3: with watermarks. 100 00:05:46,720 --> 00:05:50,640 Speaker 5: Well, I don't understand exactly what he has in mind 101 00:05:50,839 --> 00:05:56,520 Speaker 5: yet about that. So we do overwhelmingly vote on paper 102 00:05:56,560 --> 00:06:00,320 Speaker 5: ballots already. The question then, is how those bad ballots 103 00:06:00,320 --> 00:06:04,320 Speaker 5: are counted, And typically you know, that's where machines come 104 00:06:04,360 --> 00:06:07,440 Speaker 5: into the picture. So if you vote on you know, 105 00:06:07,480 --> 00:06:10,480 Speaker 5: what's called an optical scan machine, you fill in the 106 00:06:10,520 --> 00:06:14,159 Speaker 5: bubbles on your ballot. You then enter the ballot into 107 00:06:14,200 --> 00:06:18,160 Speaker 5: the machine that tabulates the vote. So if he means 108 00:06:18,240 --> 00:06:21,880 Speaker 5: that voting should be done on a paper ballot, most 109 00:06:21,920 --> 00:06:24,680 Speaker 5: of our voting already takes place that way. If he 110 00:06:24,800 --> 00:06:27,760 Speaker 5: means that the vote should be somehow counted by hand 111 00:06:28,320 --> 00:06:32,159 Speaker 5: rather than counted by a machine whose accuracy has been 112 00:06:32,320 --> 00:06:35,280 Speaker 5: you know, validated, and by the way, we also do 113 00:06:35,360 --> 00:06:39,000 Speaker 5: audits after the tabulation to make sure the machines are 114 00:06:39,080 --> 00:06:41,480 Speaker 5: accurately counting the ballots. If he means to get rid 115 00:06:41,520 --> 00:06:44,760 Speaker 5: of machines for counting the ballots, it's very hard to 116 00:06:44,839 --> 00:06:48,120 Speaker 5: conceive of what that would mean and how that could 117 00:06:48,160 --> 00:06:50,919 Speaker 5: possibly be done, because it would mean, you know, hand 118 00:06:51,000 --> 00:06:55,760 Speaker 5: counting millions of ballots, which would introduce huge delays in 119 00:06:55,800 --> 00:06:59,159 Speaker 5: the counting process. And we know counting by hand is 120 00:06:59,200 --> 00:07:02,559 Speaker 5: actually much less accurate than using the machines to count 121 00:07:02,560 --> 00:07:04,880 Speaker 5: the ballots. So it's really unclear to me what he 122 00:07:05,000 --> 00:07:07,880 Speaker 5: even has in mind about voting machines. I guess we 123 00:07:07,960 --> 00:07:11,560 Speaker 5: need to see what the order actually ends up saying what's. 124 00:07:11,520 --> 00:07:14,000 Speaker 3: Really going on here? Is it an attempt to give 125 00:07:14,000 --> 00:07:19,360 Speaker 3: the Republicans an advantage in the midterms because Democrats supposedly 126 00:07:19,800 --> 00:07:23,400 Speaker 3: do better with mail in voting than Republicans. Or is 127 00:07:23,400 --> 00:07:25,239 Speaker 3: it a power grab or something else. 128 00:07:25,720 --> 00:07:28,200 Speaker 5: It's a little hard for me to speculate about, you know, 129 00:07:28,240 --> 00:07:32,000 Speaker 5: what exactly is going on. He's obviously had an issue 130 00:07:32,080 --> 00:07:34,840 Speaker 5: about mail in ballots for quite a while. He made 131 00:07:34,840 --> 00:07:36,480 Speaker 5: a big issue of this in the run up to 132 00:07:36,520 --> 00:07:39,680 Speaker 5: the twenty twenty election. I think the view is that 133 00:07:39,680 --> 00:07:42,800 Speaker 5: that ended up hurting him in the election because many 134 00:07:42,840 --> 00:07:46,680 Speaker 5: Republicans then decided not to vote by absentee ballot, and 135 00:07:46,720 --> 00:07:49,400 Speaker 5: whether those people voted in other ways or not, you know, 136 00:07:49,400 --> 00:07:52,679 Speaker 5: we don't know for sure. I'm sure that this statement 137 00:07:52,680 --> 00:07:57,200 Speaker 5: by him is causing consternation among other elected Republican officials 138 00:07:57,320 --> 00:08:01,280 Speaker 5: who probably think it's not in their interest to abandon 139 00:08:01,400 --> 00:08:05,480 Speaker 5: absentee voting. But you know, for whatever reason, he has 140 00:08:05,560 --> 00:08:08,920 Speaker 5: a being his bondt about this issue, and he lacks 141 00:08:08,920 --> 00:08:11,960 Speaker 5: the power to do anything directly about it. But we'll 142 00:08:11,960 --> 00:08:13,960 Speaker 5: see if Congress ends of doing anything. 143 00:08:14,280 --> 00:08:18,320 Speaker 3: Trump did issue an executive order in March that, among 144 00:08:18,440 --> 00:08:23,120 Speaker 3: other things, would require proof of US citizenship in order 145 00:08:23,160 --> 00:08:27,040 Speaker 3: to vote. A couple of federal judges block that order. 146 00:08:27,480 --> 00:08:30,880 Speaker 3: Does that indicate how other challenges might fare well. 147 00:08:31,000 --> 00:08:35,199 Speaker 5: I think there's little doubt that an executive order that 148 00:08:35,360 --> 00:08:37,640 Speaker 5: purported to tell the states that they could not use 149 00:08:37,640 --> 00:08:41,720 Speaker 5: absentee ballots would be blocked by the federal courts. Again, 150 00:08:41,760 --> 00:08:44,040 Speaker 5: I'm a little hesitant to speculate, you know, too much 151 00:08:44,120 --> 00:08:47,559 Speaker 5: until we see the actual order and how it's designed 152 00:08:47,600 --> 00:08:50,360 Speaker 5: and what powers it asserts. But he doesn't have the 153 00:08:50,440 --> 00:08:53,959 Speaker 5: power to dictate the states that they cannot use absentee 154 00:08:53,960 --> 00:08:57,800 Speaker 5: ballots or can only use them under certain conditions. So 155 00:08:58,080 --> 00:09:00,400 Speaker 5: I don't have much doubt that in order that did 156 00:09:00,440 --> 00:09:03,640 Speaker 5: that would be struck down put on hold by the court. 157 00:09:04,040 --> 00:09:07,360 Speaker 3: Trump is also using his influence to try to win 158 00:09:07,480 --> 00:09:11,640 Speaker 3: the mid terms by getting Texas to change its maps 159 00:09:11,679 --> 00:09:16,480 Speaker 3: to give Republicans five more seats, and California is doing 160 00:09:16,679 --> 00:09:22,720 Speaker 3: retaliatory redistricting to get five more Democratic seats there. On Thursday, 161 00:09:22,760 --> 00:09:27,600 Speaker 3: Governor Gavin Newsom signed legislation for a special election in 162 00:09:27,720 --> 00:09:31,800 Speaker 3: November to approve a redrawn congressional map in that state. 163 00:09:32,200 --> 00:09:34,600 Speaker 6: This was not a press commence. We intended to have. 164 00:09:34,640 --> 00:09:38,600 Speaker 6: This is not an action the legislature intended to advance. 165 00:09:38,720 --> 00:09:42,000 Speaker 6: This is not an election we expected to be holding 166 00:09:42,720 --> 00:09:47,920 Speaker 6: on November fourth, But they shot the first bullet. 167 00:09:48,640 --> 00:09:52,760 Speaker 3: I take it that, though it's very unusual, there's no 168 00:09:53,040 --> 00:09:57,280 Speaker 3: legal impediment to mid decade redistricting. 169 00:09:57,880 --> 00:10:01,400 Speaker 5: We've had very little mid decade redistrict in American history, 170 00:10:01,440 --> 00:10:04,760 Speaker 5: is certainly in modern American history. The last time this 171 00:10:04,880 --> 00:10:06,760 Speaker 5: happened in a way that went to the Supreme Court 172 00:10:06,880 --> 00:10:09,760 Speaker 5: actually was also from Texas in the early two thousands. 173 00:10:09,880 --> 00:10:12,319 Speaker 5: I actually filed an amicust brief in that case urging 174 00:10:12,360 --> 00:10:16,479 Speaker 5: the court to hold the federal Constitution precluded mid decade redistricting. 175 00:10:16,800 --> 00:10:20,080 Speaker 5: The Supreme Court didn't agree with that position. But we're 176 00:10:20,120 --> 00:10:22,800 Speaker 5: in a world in which control of the House rests 177 00:10:22,800 --> 00:10:26,120 Speaker 5: on such a fine margin kind of election after election, 178 00:10:26,640 --> 00:10:28,960 Speaker 5: which is a very important part to understand as a 179 00:10:29,000 --> 00:10:31,559 Speaker 5: backdrop to all of this, And so it leads the 180 00:10:31,600 --> 00:10:35,199 Speaker 5: political parties to fight over every single inch of terrain, 181 00:10:35,760 --> 00:10:39,040 Speaker 5: and so various kinds of you know, norms that have 182 00:10:39,120 --> 00:10:41,320 Speaker 5: been around for a while, you know, are breaking under 183 00:10:41,320 --> 00:10:44,679 Speaker 5: that pressure, which is what's happening with the constraints against 184 00:10:44,760 --> 00:10:49,000 Speaker 5: mid decade redistricting, and the Pandora's box that opens up is, 185 00:10:49,200 --> 00:10:51,400 Speaker 5: you know, if state can do it once, they could 186 00:10:51,440 --> 00:10:54,200 Speaker 5: just adjust their districts every couple of years to try 187 00:10:54,240 --> 00:10:57,240 Speaker 5: to maximize part of advantage throughout the decade, and of 188 00:10:57,240 --> 00:11:01,480 Speaker 5: course it's going to trigger you know, retaliator mid decade redistricting. 189 00:11:01,920 --> 00:11:05,800 Speaker 5: And it's another example of the kind of tactics that 190 00:11:05,840 --> 00:11:08,839 Speaker 5: at the end of the day, really undermined public confidence 191 00:11:09,040 --> 00:11:12,839 Speaker 5: in the legitimacy of the process. Jerrymandering is bad enough 192 00:11:12,880 --> 00:11:15,400 Speaker 5: when it happens once a decade, but if we move 193 00:11:15,480 --> 00:11:19,360 Speaker 5: down a path towards sort of perpetual redistricting for partisan 194 00:11:19,400 --> 00:11:22,880 Speaker 5: advantage seeking, it's all the worse. So none of these 195 00:11:22,880 --> 00:11:25,680 Speaker 5: things really promote the integrity of the process from the 196 00:11:25,720 --> 00:11:27,160 Speaker 5: perspective of voters. 197 00:11:27,559 --> 00:11:32,080 Speaker 3: Perpetual redistricting, that's a scary thought. Thanks so much, Rick. 198 00:11:32,360 --> 00:11:35,840 Speaker 3: That's Professor Rick Pildus of NYU Law School, coming up 199 00:11:35,880 --> 00:11:39,040 Speaker 3: next on The Bloomberg Law Show. There's been a significant 200 00:11:39,160 --> 00:11:43,280 Speaker 3: drop in union elections as the unions play a weight 201 00:11:43,400 --> 00:11:47,439 Speaker 3: and see game warry of organizing and taking risks during 202 00:11:47,440 --> 00:11:51,439 Speaker 3: the Trump administration. I'm June Grosso and you're listening to Bloomberg. 203 00:11:52,720 --> 00:11:56,480 Speaker 3: President Trump made his position on unions pretty clear in 204 00:11:56,520 --> 00:11:59,840 Speaker 3: a conversation with Elon Musk about a year ago. 205 00:12:00,120 --> 00:12:01,240 Speaker 2: I mean, I look at what you do. 206 00:12:01,320 --> 00:12:04,880 Speaker 1: You walk, you want to quit, they go a strike. 207 00:12:04,960 --> 00:12:06,679 Speaker 2: I won't mention the name of the company, but they 208 00:12:06,720 --> 00:12:07,840 Speaker 2: go on strike and use it. 209 00:12:07,840 --> 00:12:08,319 Speaker 7: That's okay. 210 00:12:08,360 --> 00:12:10,839 Speaker 2: You're all gone. You're all gone. So every one of 211 00:12:10,880 --> 00:12:12,439 Speaker 2: you is gone, and you are the greatest. 212 00:12:12,640 --> 00:12:16,120 Speaker 3: Trump was no friend to unions in his first administration, 213 00:12:16,640 --> 00:12:20,400 Speaker 3: and in the past six months he's ended collective bargaining 214 00:12:20,440 --> 00:12:25,200 Speaker 3: for two thirds of federal workers, effectively paralyzed the federal 215 00:12:25,200 --> 00:12:31,000 Speaker 3: agency that decides unfair labor practices and disputes over union elections, 216 00:12:31,400 --> 00:12:34,880 Speaker 3: and rescinded the minimum wage that federal contractors have to 217 00:12:34,880 --> 00:12:38,400 Speaker 3: pay workers, just to name a few anti union actions. 218 00:12:38,960 --> 00:12:41,640 Speaker 3: So then it may not be so surprising that there's 219 00:12:41,679 --> 00:12:45,840 Speaker 3: been a significant drop in union elections and petitions to 220 00:12:45,880 --> 00:12:49,280 Speaker 3: the National Labor Relations Board in the last six months. 221 00:12:49,880 --> 00:12:53,640 Speaker 3: That stands in contrast to the previous three years, where 222 00:12:53,679 --> 00:12:58,240 Speaker 3: there were historic numbers of union elections, representation petitions, and 223 00:12:58,400 --> 00:13:02,319 Speaker 3: unfair labor practice charge just filed each year. My guest 224 00:13:02,400 --> 00:13:05,360 Speaker 3: is labor law expert and Lafasso, a professor at the 225 00:13:05,440 --> 00:13:09,480 Speaker 3: University of Cincinnati Law School. And the average number of 226 00:13:09,640 --> 00:13:14,040 Speaker 3: newly certified unions per month dropped twenty two point three 227 00:13:14,080 --> 00:13:18,760 Speaker 3: percent between January and July of this year, and there's 228 00:13:18,800 --> 00:13:21,800 Speaker 3: been a fifteen point eight percent drop in the number 229 00:13:21,840 --> 00:13:25,880 Speaker 3: of representation petitions filed in that time period. How do 230 00:13:25,920 --> 00:13:27,840 Speaker 3: you count for this significant drop? 231 00:13:28,440 --> 00:13:30,600 Speaker 8: I think you have to look at both sides of 232 00:13:30,600 --> 00:13:35,920 Speaker 8: the equation. First, you had historic increase under Biden, and 233 00:13:36,360 --> 00:13:41,840 Speaker 8: under bait progressive general counsel. The board was relatively progressive, 234 00:13:42,120 --> 00:13:45,760 Speaker 8: but not quite as progressive as General Counsel Jennifer Brusso was. 235 00:13:45,880 --> 00:13:50,000 Speaker 8: So Brusso was aggressively progressive. She looked at the law 236 00:13:50,600 --> 00:13:53,640 Speaker 8: and she interpreted the law in a way that, in 237 00:13:53,679 --> 00:13:57,120 Speaker 8: my view at least was reasonable. But on the progressive side, 238 00:13:57,160 --> 00:13:59,640 Speaker 8: the law can always be interpreted more progressively or more 239 00:13:59,640 --> 00:14:03,160 Speaker 8: conscis servatively more pro union or more pro business, and 240 00:14:03,280 --> 00:14:05,560 Speaker 8: it's not like the law has a single meaning. And 241 00:14:05,720 --> 00:14:08,880 Speaker 8: she was on the very progressive side, and that emboldened 242 00:14:09,040 --> 00:14:14,400 Speaker 8: and encouraged unions to file election petitions and also defile 243 00:14:14,480 --> 00:14:18,000 Speaker 8: unfair labored practice charges even where it might have been 244 00:14:18,080 --> 00:14:22,160 Speaker 8: a more iffy theory of why they were being unfairly treated. 245 00:14:22,440 --> 00:14:25,440 Speaker 8: Iffy because in the past they may not have gotten 246 00:14:25,440 --> 00:14:28,920 Speaker 8: that theory validated for the board. So that's going to 247 00:14:28,960 --> 00:14:32,960 Speaker 8: increase the numbers. Then when Trump came in, they're remembering 248 00:14:33,240 --> 00:14:36,280 Speaker 8: the first Trump board, and the first Trump board as 249 00:14:36,320 --> 00:14:40,720 Speaker 8: progressive as Jennifer Brusso was, it was reactionary. It was 250 00:14:41,040 --> 00:14:44,920 Speaker 8: extremely to the right, much more pro business and even 251 00:14:45,400 --> 00:14:48,000 Speaker 8: in some instances I would say not just pro business 252 00:14:48,000 --> 00:14:51,480 Speaker 8: but anti union more so than any other board ever 253 00:14:51,560 --> 00:14:55,040 Speaker 8: in the history of the National Labor Relations Board. And 254 00:14:55,440 --> 00:14:58,240 Speaker 8: they're remembering this and it was very painful for them. 255 00:14:58,640 --> 00:15:01,240 Speaker 8: So they're in this sort of wait and see pattern, 256 00:15:01,600 --> 00:15:05,720 Speaker 8: anticipating the worst. So I'm at a conference right now 257 00:15:05,800 --> 00:15:08,040 Speaker 8: and I'm listening to people and they don't want to 258 00:15:08,080 --> 00:15:11,040 Speaker 8: file petitions right now because they are really afraid. 259 00:15:11,440 --> 00:15:13,080 Speaker 3: Do you think the new board is going to be 260 00:15:13,120 --> 00:15:16,920 Speaker 3: as conservative as the board in the first Trump administration. 261 00:15:17,560 --> 00:15:20,800 Speaker 8: Yeah, the board doesn't have a quorum. I personally don't 262 00:15:20,840 --> 00:15:24,040 Speaker 8: think that the Trump two board will be as reactionary 263 00:15:24,080 --> 00:15:26,480 Speaker 8: as the Trump one board. I could be wrong. The 264 00:15:26,520 --> 00:15:29,720 Speaker 8: reason I'm saying this, though, is because the general counsel Callan, 265 00:15:29,800 --> 00:15:32,640 Speaker 8: who is a conservative man, so he's going to interpret 266 00:15:32,680 --> 00:15:34,840 Speaker 8: the law in a more conservative fashion, is going to 267 00:15:34,840 --> 00:15:39,680 Speaker 8: be more pro business fashion. However, he's an institutionalist. He's 268 00:15:39,680 --> 00:15:42,040 Speaker 8: been the regional director for one of the regions out 269 00:15:42,080 --> 00:15:44,320 Speaker 8: in the West, I think in California for a long 270 00:15:44,360 --> 00:15:48,000 Speaker 8: time he was a board member. He's loved by everyone. 271 00:15:48,280 --> 00:15:50,680 Speaker 8: He was at the board when I was there, everyone 272 00:15:50,760 --> 00:15:53,520 Speaker 8: loved him. He was just kind, he was easy to 273 00:15:53,680 --> 00:15:56,960 Speaker 8: work with. He doesn't want to destroy the agency. Also, 274 00:15:57,320 --> 00:16:01,600 Speaker 8: people Trump put forward for the board also institutionalists. He 275 00:16:01,680 --> 00:16:04,520 Speaker 8: could have picked people that had union busting careers and 276 00:16:04,560 --> 00:16:08,440 Speaker 8: he doesn't seem to be doing that. So it's possible 277 00:16:08,960 --> 00:16:13,360 Speaker 8: that the fear that's going on is an overreaction. But 278 00:16:13,680 --> 00:16:16,080 Speaker 8: I think at least they're waiting and seeing what this 279 00:16:16,240 --> 00:16:19,640 Speaker 8: board will do. So when you put those two things together, though, 280 00:16:19,960 --> 00:16:23,920 Speaker 8: the sort of record highs and then the remembering of 281 00:16:24,000 --> 00:16:27,680 Speaker 8: what the Trump board did in his first administration, you 282 00:16:27,800 --> 00:16:30,320 Speaker 8: get this huge swing. I don't know if it's going 283 00:16:30,400 --> 00:16:32,080 Speaker 8: to last. It's going to be very interesting to see, 284 00:16:32,160 --> 00:16:33,440 Speaker 8: and I think it's going to depend on what this 285 00:16:33,640 --> 00:16:37,320 Speaker 8: board starts doing and whether it was willing to dismantle precedents. 286 00:16:37,840 --> 00:16:41,880 Speaker 3: Is this reluctance coming from the union leaders or the 287 00:16:41,920 --> 00:16:46,440 Speaker 3: workers who might fear the political climate, especially in light 288 00:16:46,440 --> 00:16:49,760 Speaker 3: of the economy and the labor market. I mean, where's 289 00:16:49,760 --> 00:16:50,680 Speaker 3: it coming from? 290 00:16:50,960 --> 00:16:54,320 Speaker 8: Oh? Both, definitely. So from the worker's point of view, 291 00:16:54,720 --> 00:16:57,680 Speaker 8: they're scared. There are people that are afraid to even 292 00:16:57,760 --> 00:17:02,400 Speaker 8: speak out against the president of retaliation because we saw 293 00:17:02,560 --> 00:17:06,000 Speaker 8: that the president decided to fire a large percentage of 294 00:17:06,040 --> 00:17:08,840 Speaker 8: the federal workforce, which he has direct control over. So 295 00:17:09,040 --> 00:17:12,440 Speaker 8: people are afraid to speak out. Now, whether that's justified 296 00:17:12,520 --> 00:17:15,080 Speaker 8: or not, the historians will tell us that, but people 297 00:17:15,280 --> 00:17:17,520 Speaker 8: certainly are afraid, and so they don't want to stick 298 00:17:17,560 --> 00:17:21,000 Speaker 8: their necks out right now. But union leaders, who are 299 00:17:21,119 --> 00:17:24,840 Speaker 8: thinking about these things and hearing from their constituents are 300 00:17:24,960 --> 00:17:29,000 Speaker 8: also concerned, and they're more in the wait and see pattern, like, well, 301 00:17:29,080 --> 00:17:32,520 Speaker 8: let's see what's going on. But the workers themselves, I think, 302 00:17:32,560 --> 00:17:36,080 Speaker 8: are afraid. And they're also afraid because the economy isn't 303 00:17:36,080 --> 00:17:39,280 Speaker 8: as good. So when you had a much better economy, 304 00:17:39,359 --> 00:17:42,280 Speaker 8: which despite what everyone was saying, we had a pretty 305 00:17:42,280 --> 00:17:45,040 Speaker 8: good economy under Biden, but the economy has been going 306 00:17:45,119 --> 00:17:48,880 Speaker 8: down and down, and the labor market is much tougher. 307 00:17:49,240 --> 00:17:52,359 Speaker 8: Right now, there's no slacks in the labor market. So 308 00:17:52,600 --> 00:17:55,200 Speaker 8: it's hard. If you get fired from a job right now, 309 00:17:55,400 --> 00:17:58,200 Speaker 8: let's say you're unjustly fired because you're a union activist, 310 00:17:58,840 --> 00:18:02,680 Speaker 8: you may not get another job. It's very tough. So 311 00:18:03,400 --> 00:18:07,399 Speaker 8: this makes people afraid to organize. It makes the labor 312 00:18:07,480 --> 00:18:10,680 Speaker 8: organizer's job and the labor union leader's job that much 313 00:18:10,720 --> 00:18:11,680 Speaker 8: more difficult. 314 00:18:11,880 --> 00:18:15,399 Speaker 3: You say, wait and see, but don't the unions already 315 00:18:15,760 --> 00:18:19,840 Speaker 3: know where Trump stands, especially with the executive order that 316 00:18:19,920 --> 00:18:24,239 Speaker 3: he issued ending collective bargaining for two thirds of the 317 00:18:24,240 --> 00:18:29,480 Speaker 3: federal workforce. Even before Trump took office, student athletes dropped 318 00:18:29,600 --> 00:18:34,440 Speaker 3: organizing efforts at Dartmouth College and the University of Southern California. 319 00:18:34,920 --> 00:18:37,720 Speaker 8: Well that was smart of them, because the General Council 320 00:18:37,800 --> 00:18:42,720 Speaker 8: has withdrawn a Brusso's memo, her General Council Memo stating 321 00:18:43,000 --> 00:18:46,520 Speaker 8: that student athletes are actually employees and should have the 322 00:18:46,520 --> 00:18:50,360 Speaker 8: protections of the board. So we do know almost certainly 323 00:18:50,680 --> 00:18:53,280 Speaker 8: what this board would do with that. So on that issue, 324 00:18:53,720 --> 00:18:57,240 Speaker 8: it's pretty clear. But there is sometimes some very easy issues. 325 00:18:57,440 --> 00:19:01,160 Speaker 8: For example, remember the early two thousand when Bush was 326 00:19:01,200 --> 00:19:05,639 Speaker 8: the President Chamber and Wilma Leebman, two people that couldn't 327 00:19:05,640 --> 00:19:09,200 Speaker 8: be further apart. A progressive Leaveman and a conservative chamber 328 00:19:09,320 --> 00:19:12,960 Speaker 8: and very conservative chamber. They've agreed on six hundred cases together. 329 00:19:13,119 --> 00:19:15,600 Speaker 8: Now they were all found voids by the Supreme Court 330 00:19:15,680 --> 00:19:17,920 Speaker 8: because there was only two and they weren't a quorum, 331 00:19:18,160 --> 00:19:20,520 Speaker 8: but not because of what they decided. Those were all 332 00:19:20,560 --> 00:19:24,160 Speaker 8: easy cases. There's plenty of easy cases to go forward. 333 00:19:24,440 --> 00:19:27,320 Speaker 8: What they're waiting and seeing on and I think what 334 00:19:27,400 --> 00:19:30,280 Speaker 8: they are not going to do is we're not going 335 00:19:30,320 --> 00:19:32,879 Speaker 8: to see them pushing the envelope. But I would be 336 00:19:32,920 --> 00:19:35,320 Speaker 8: surprised if Ingian say, Okay, we're going to ask for 337 00:19:35,359 --> 00:19:38,800 Speaker 8: expanded remenedies right now. I wouldn't ask for them because 338 00:19:38,800 --> 00:19:41,760 Speaker 8: I wouldn't want that precedent to go before a court. 339 00:19:41,960 --> 00:19:43,800 Speaker 8: First of all, I wouldn't want to go before the board, 340 00:19:44,119 --> 00:19:45,840 Speaker 8: and then I wouldn't want to go before the court. 341 00:19:46,119 --> 00:19:48,760 Speaker 8: So they're not going to push the student athlete issue 342 00:19:48,840 --> 00:19:51,359 Speaker 8: right now. So if I were student athletes right now, 343 00:19:51,680 --> 00:19:54,400 Speaker 8: I might go for a voluntary recognition, but I wouldn't 344 00:19:54,400 --> 00:19:55,440 Speaker 8: go for anything else. 345 00:19:55,840 --> 00:19:59,360 Speaker 3: And isn't the president in a legal battle to exert 346 00:19:59,400 --> 00:20:03,159 Speaker 3: more control roll over independent agencies like the NLRB. 347 00:20:03,840 --> 00:20:06,760 Speaker 8: The president is trying to control the administrative agencies a 348 00:20:06,800 --> 00:20:09,399 Speaker 8: lot more. And the president who's taking the position that 349 00:20:09,440 --> 00:20:12,720 Speaker 8: he can fire board members and only this pre court 350 00:20:12,760 --> 00:20:15,560 Speaker 8: can tell us if that's true. My guess is, even 351 00:20:15,640 --> 00:20:18,760 Speaker 8: though right now the precedent at the Supreme Court is 352 00:20:19,080 --> 00:20:23,000 Speaker 8: that he can't fire commissioners or board members, that they 353 00:20:23,080 --> 00:20:25,760 Speaker 8: are likely to reverse that obvious divided vote. And I'm 354 00:20:25,800 --> 00:20:30,160 Speaker 8: talking about Humphrey's executor. So if he can fire anyone 355 00:20:30,200 --> 00:20:32,400 Speaker 8: at will, if he doesn't like a decision that comes 356 00:20:32,400 --> 00:20:34,600 Speaker 8: out of the board, then he'll just fire the person. 357 00:20:34,960 --> 00:20:37,359 Speaker 8: So I'm sure that these board members are going to 358 00:20:37,359 --> 00:20:40,400 Speaker 8: be somewhat more beholden to the president than they normally 359 00:20:40,440 --> 00:20:43,240 Speaker 8: were in an independent agency where they really were independent 360 00:20:43,400 --> 00:20:46,119 Speaker 8: of the president. I think that will happen. And let's 361 00:20:46,119 --> 00:20:48,919 Speaker 8: face it, he already fired member Willcox, and I do 362 00:20:49,000 --> 00:20:51,160 Speaker 8: want to remind the audience that she was the first 363 00:20:51,200 --> 00:20:54,960 Speaker 8: black female board member, and so the look is very, 364 00:20:55,080 --> 00:20:58,240 Speaker 8: very bad that he decides to fire the first black 365 00:20:58,320 --> 00:21:01,960 Speaker 8: board member but not the democrat white And again that 366 00:21:02,000 --> 00:21:04,480 Speaker 8: could be a coincidence, I don't know, but it is 367 00:21:04,520 --> 00:21:07,159 Speaker 8: a very bad look and so it does send the 368 00:21:07,200 --> 00:21:11,280 Speaker 8: message definitely, But the president is not going to fire 369 00:21:11,560 --> 00:21:15,159 Speaker 8: a board member because of an obvious, simple case of 370 00:21:15,240 --> 00:21:18,320 Speaker 8: enforcing the law. I think what he would do is 371 00:21:18,359 --> 00:21:21,520 Speaker 8: if it's something that gets the chamber upset, that gets 372 00:21:21,560 --> 00:21:25,920 Speaker 8: Starbucks or Amazon upset, and that doesn't mean Starbucks losing 373 00:21:26,040 --> 00:21:28,679 Speaker 8: a case or an election. I mean, where Starbucks this 374 00:21:28,760 --> 00:21:32,240 Speaker 8: is ridiculous because these are expanded remedies or something like that. 375 00:21:32,480 --> 00:21:36,000 Speaker 8: So yes, I think it's just more nuanced, and I 376 00:21:36,160 --> 00:21:39,000 Speaker 8: at least am taking also a wait and see, and 377 00:21:39,080 --> 00:21:43,280 Speaker 8: I'm optimistic it will not be as bad for unions 378 00:21:43,359 --> 00:21:46,480 Speaker 8: as it was other than trump one administration. Let me 379 00:21:46,480 --> 00:21:48,280 Speaker 8: put this way, I wouldn't bet on what I'm saying. 380 00:21:48,320 --> 00:21:50,359 Speaker 8: I just think it's more likely than not, like forty 381 00:21:50,440 --> 00:21:52,520 Speaker 8: nine to fifty one percent. That's where I'm at. 382 00:21:52,600 --> 00:21:56,800 Speaker 3: Would you say that labor unions are already playing defense. 383 00:21:57,200 --> 00:21:59,800 Speaker 3: They're sort of on the front lines of some of 384 00:21:59,840 --> 00:22:05,240 Speaker 3: the legal fights against Trump's reduction enforced plans and moves 385 00:22:05,280 --> 00:22:09,760 Speaker 3: to exclude two thirds of the workforce from collective bargaining rights, 386 00:22:09,800 --> 00:22:14,720 Speaker 3: and initiatives that shutter agencies and affect universities. 387 00:22:15,400 --> 00:22:20,080 Speaker 8: Absolutely, unions are definitely on the defensive, and they're concerned. 388 00:22:20,680 --> 00:22:24,240 Speaker 8: There's a lot of things means can do, but remember, 389 00:22:24,680 --> 00:22:27,640 Speaker 8: whatever they do for their members, they also can't live 390 00:22:27,720 --> 00:22:31,600 Speaker 8: without members. They need fees because organizing takes money and 391 00:22:32,000 --> 00:22:35,360 Speaker 8: getting benefits for their members takes money. So they are 392 00:22:35,640 --> 00:22:38,359 Speaker 8: on the defensive and they want to survive. And I 393 00:22:38,359 --> 00:22:40,240 Speaker 8: can't get into the mind of every union, but I 394 00:22:40,240 --> 00:22:43,160 Speaker 8: wouldn't be surprised if for them this is an existential threat. 395 00:22:43,480 --> 00:22:46,320 Speaker 8: That's how higher education feels right now. I mean, I'm 396 00:22:46,400 --> 00:22:49,520 Speaker 8: a member of a union at my university, and we 397 00:22:49,600 --> 00:22:52,720 Speaker 8: certainly feel that this is an existential threat. People are 398 00:22:52,960 --> 00:22:57,120 Speaker 8: palpably afraid. And by the way, we're a public institution, 399 00:22:57,480 --> 00:22:59,800 Speaker 8: so what's going on in public institutions is more at 400 00:22:59,800 --> 00:23:01,720 Speaker 8: this date level. But it's the same kind of thing 401 00:23:01,720 --> 00:23:05,080 Speaker 8: that's going on at least in the Red States that 402 00:23:05,200 --> 00:23:09,360 Speaker 8: are part of this idea that unions are not good 403 00:23:09,400 --> 00:23:15,080 Speaker 8: for the economy and that higher education is left wing propaganda. 404 00:23:15,160 --> 00:23:17,720 Speaker 8: And I think a lot of us are afraid to 405 00:23:17,920 --> 00:23:19,400 Speaker 8: speak out. What are we going to do? We want 406 00:23:19,440 --> 00:23:21,880 Speaker 8: to keep our jobs even ten years on the line. 407 00:23:22,119 --> 00:23:24,800 Speaker 8: So it's going on all over the country. 408 00:23:25,119 --> 00:23:28,520 Speaker 3: By laying back now is there a risk to the 409 00:23:28,560 --> 00:23:31,720 Speaker 3: momentum that the unions seem to have picked up in 410 00:23:31,760 --> 00:23:32,840 Speaker 3: the last few years. 411 00:23:33,080 --> 00:23:36,840 Speaker 8: So the concern is, Okay, if we stop organizing, we 412 00:23:36,920 --> 00:23:39,480 Speaker 8: lose our momentum, but if we organize, we might get 413 00:23:39,480 --> 00:23:42,239 Speaker 8: bad results. This is why you're in this paralysis, this 414 00:23:42,359 --> 00:23:45,159 Speaker 8: wait and see, because there's one push to kind of 415 00:23:45,240 --> 00:23:47,800 Speaker 8: keep the momentum up. People want unions more than ever 416 00:23:47,920 --> 00:23:50,520 Speaker 8: in like at least the last seventy five years, So 417 00:23:50,760 --> 00:23:53,680 Speaker 8: they're more popular today than they've been certainly in my lifetime. 418 00:23:53,760 --> 00:23:56,960 Speaker 8: But at the same time, you have an administration that's 419 00:23:57,000 --> 00:24:02,919 Speaker 8: more hostile to unions definitely before FDR. So there is 420 00:24:02,960 --> 00:24:06,239 Speaker 8: a paralysis right now. And you know which way do 421 00:24:06,320 --> 00:24:09,320 Speaker 8: we go? Now? Do you go in this relatively aggressive 422 00:24:09,359 --> 00:24:12,520 Speaker 8: way and continue the momenta or do you stop? Or 423 00:24:12,520 --> 00:24:14,919 Speaker 8: do you do something less aggressive but you can keep 424 00:24:15,000 --> 00:24:17,359 Speaker 8: up the momentum. What is the right choice? And I 425 00:24:17,359 --> 00:24:19,520 Speaker 8: think people don't know what the right choice is right now, 426 00:24:19,600 --> 00:24:20,560 Speaker 8: and that's the problem. 427 00:24:21,080 --> 00:24:24,159 Speaker 3: Thanks so much, Ann. That's Professor An Lafosso of the 428 00:24:24,280 --> 00:24:28,600 Speaker 3: University of Cincinnati Law School coming up next. A thirty 429 00:24:28,600 --> 00:24:32,720 Speaker 3: million dollars pardon scheme fails and how the so called 430 00:24:32,920 --> 00:24:37,680 Speaker 3: Sandwich Guy, became a resistance icon in DC. I'm June 431 00:24:37,680 --> 00:24:41,879 Speaker 3: Grosso and you're listening to Bloomberg. You may have seen 432 00:24:41,920 --> 00:24:46,080 Speaker 3: the viral video of a DC resident throwing his subway 433 00:24:46,280 --> 00:24:50,120 Speaker 3: sandwich at an ice officer after cursing about the federal 434 00:24:50,200 --> 00:24:55,480 Speaker 3: takeover of the nation's capital. DCUs attorney Janine Piro put 435 00:24:55,480 --> 00:24:59,879 Speaker 3: out her own video bragging about charging Sean Charles Dunn, 436 00:25:00,240 --> 00:25:04,680 Speaker 3: a decorated Air Force veteran, with felony assault, for tossing 437 00:25:04,720 --> 00:25:06,040 Speaker 3: the salami sandwich. 438 00:25:06,480 --> 00:25:09,320 Speaker 9: And then he took a subway sandwich about this big 439 00:25:09,600 --> 00:25:12,080 Speaker 9: and took it and threw it at the officer. 440 00:25:12,400 --> 00:25:13,640 Speaker 8: He thought it was funny. 441 00:25:13,920 --> 00:25:16,120 Speaker 9: Well, he doesn't think it's funny today, because we charge 442 00:25:16,160 --> 00:25:19,199 Speaker 9: it with a felony assault on a police officer, and 443 00:25:19,280 --> 00:25:22,959 Speaker 9: we're going to back the police to the hilt. So there, 444 00:25:23,400 --> 00:25:25,879 Speaker 9: stick your subway sandwich somewhere else. 445 00:25:26,840 --> 00:25:30,719 Speaker 3: Well done. Now known as sandwich Guy, has become a 446 00:25:30,760 --> 00:25:34,240 Speaker 3: symbol of the resistance to the heightened presence of federal 447 00:25:34,280 --> 00:25:38,439 Speaker 3: agents and troops in DC. You can see Banksy's style 448 00:25:38,520 --> 00:25:42,080 Speaker 3: posters of him tossing the sub and all kinds of 449 00:25:42,280 --> 00:25:48,440 Speaker 3: free DC sandwich themed flags posters tote bags and T shirts. 450 00:25:49,040 --> 00:25:52,520 Speaker 3: You can also see the video of Dun's rearrest in 451 00:25:52,600 --> 00:25:56,040 Speaker 3: a swat style raid as more than a dozen federal 452 00:25:56,080 --> 00:26:00,760 Speaker 3: agents converged on his apartment building, filed into a narrow corridor, 453 00:26:01,240 --> 00:26:05,480 Speaker 3: dressed in full tactical gear with guns drawn and carrying 454 00:26:05,600 --> 00:26:09,800 Speaker 3: bulletproof shields until Dunn opens the door to his apartment 455 00:26:10,280 --> 00:26:14,640 Speaker 3: and surrenders peacefully. The reason you can see a professionally 456 00:26:14,800 --> 00:26:18,359 Speaker 3: edited multi camera video of his arrest is because the 457 00:26:18,400 --> 00:26:21,879 Speaker 3: White House sent a social media team to record it 458 00:26:22,119 --> 00:26:25,879 Speaker 3: and then posted it online. Joining me is national security 459 00:26:25,920 --> 00:26:29,560 Speaker 3: expert Bradley Moss, a partner Mark Zaid. Brad does this 460 00:26:29,720 --> 00:26:35,560 Speaker 3: videotaping and posting of an arrest violate the suspect's constitutional rights? 461 00:26:35,800 --> 00:26:39,920 Speaker 1: Does this? The Supreme Court about twenty something years ago, 462 00:26:40,560 --> 00:26:45,800 Speaker 1: had addressed the idea of embedding media with law enforcement 463 00:26:46,200 --> 00:26:49,560 Speaker 1: in the context of doing work, and Supreme Court had 464 00:26:49,800 --> 00:26:53,280 Speaker 1: basically overturned the policy, saying it was violative of people's 465 00:26:53,400 --> 00:26:57,120 Speaker 1: First Amendment, Fifth Amendment, and Fourth Amendment protections. After all, 466 00:26:57,200 --> 00:27:00,320 Speaker 1: you are presumed innocit until proven guilty. I mean, there 467 00:27:00,400 --> 00:27:03,600 Speaker 1: was no legitimate basis to have news media embedded with 468 00:27:03,720 --> 00:27:07,800 Speaker 1: law enforcement for that purpose. What we're seeing here with 469 00:27:07,960 --> 00:27:12,480 Speaker 1: these social media influencers embedded with the FBI or whichever 470 00:27:12,520 --> 00:27:16,600 Speaker 1: federal law enforcement agency is conducting these particular raids is 471 00:27:17,160 --> 00:27:20,960 Speaker 1: even greater abuse of the process in the sense that 472 00:27:21,000 --> 00:27:24,639 Speaker 1: it's not even pretending to be about news gathering or 473 00:27:24,680 --> 00:27:29,560 Speaker 1: objective journalism. This is straight up political hackery. These are 474 00:27:29,760 --> 00:27:33,960 Speaker 1: social media influencers. These are media players with a very 475 00:27:34,000 --> 00:27:37,919 Speaker 1: explicit partisan agenda, designed not to gather facts, but to 476 00:27:38,080 --> 00:27:43,320 Speaker 1: push the White House's specific narrative about what is transpiring. 477 00:27:43,560 --> 00:27:46,199 Speaker 1: This entire process, as far as I'm concerned, is at 478 00:27:46,280 --> 00:27:49,560 Speaker 1: least unethical, if not likely also illegal. 479 00:27:49,880 --> 00:27:53,359 Speaker 3: What would be some of the possible legal challenges. 480 00:27:53,320 --> 00:27:56,639 Speaker 1: So you're almost certainly going to see at some point 481 00:27:56,920 --> 00:28:02,000 Speaker 1: various pre trial motions for you know, pretro publicity issues 482 00:28:02,480 --> 00:28:05,520 Speaker 1: tied to the inclusion of these social media influencers being 483 00:28:05,520 --> 00:28:09,200 Speaker 1: embedded and publicizing this. There's going to be various actions 484 00:28:09,240 --> 00:28:13,639 Speaker 1: taken by defense attorneys claiming their clients privacy rights and 485 00:28:13,680 --> 00:28:17,879 Speaker 1: constitutional rights were violated by use of these embedded individuals. 486 00:28:18,320 --> 00:28:21,399 Speaker 1: How that will play out remains to be seen. I 487 00:28:21,440 --> 00:28:25,399 Speaker 1: don't think the cases necessarily are thrown out simply based 488 00:28:25,440 --> 00:28:29,159 Speaker 1: off that, but it is entirely possible it will cause 489 00:28:29,320 --> 00:28:33,160 Speaker 1: some problems with prosecution of these cases. And if that 490 00:28:33,240 --> 00:28:36,840 Speaker 1: does start occurring, if the courts start pushing back by 491 00:28:36,840 --> 00:28:39,640 Speaker 1: way of these pre trial rulings, I think you'll see 492 00:28:39,640 --> 00:28:43,760 Speaker 1: a shift in the policy from most of the agencies 493 00:28:43,800 --> 00:28:45,880 Speaker 1: and from the White House. If for no other reason, 494 00:28:45,880 --> 00:28:48,840 Speaker 1: then it'd be undercutting their ability to do what they 495 00:28:48,920 --> 00:28:52,480 Speaker 1: say they're trying to do, which is to identify arrest 496 00:28:52,840 --> 00:28:54,520 Speaker 1: and convict criminals. 497 00:28:54,840 --> 00:28:57,920 Speaker 3: Could it also become part of the evidence of the 498 00:28:58,000 --> 00:29:03,520 Speaker 3: defense at trial, perhaps demonstrating you know, bad conduct by 499 00:29:03,640 --> 00:29:08,840 Speaker 3: the arresting officers, or that the defendant was being targeted 500 00:29:08,880 --> 00:29:09,560 Speaker 3: in some way. 501 00:29:10,160 --> 00:29:12,920 Speaker 1: Yes, all of it would be discoverable. All of it 502 00:29:12,920 --> 00:29:15,840 Speaker 1: would be potentially exculpatory information that would have to be 503 00:29:15,880 --> 00:29:19,000 Speaker 1: turned over to the criminal defendants and their council. All 504 00:29:19,080 --> 00:29:21,920 Speaker 1: that could be brought up not only from a factual standpoint, 505 00:29:22,000 --> 00:29:25,680 Speaker 1: depending on what the you know, various footage shows, but 506 00:29:25,720 --> 00:29:29,000 Speaker 1: also simply if there's a you know, political or vindictive 507 00:29:29,200 --> 00:29:32,680 Speaker 1: prosecution pre trial motion brought. This would all be information 508 00:29:32,840 --> 00:29:36,360 Speaker 1: that these defendants would be entitled to obtain and to 509 00:29:36,560 --> 00:29:40,120 Speaker 1: use in their own defense, which is why normally we 510 00:29:40,200 --> 00:29:42,800 Speaker 1: don't do this, you know, you especially don't do it 511 00:29:42,840 --> 00:29:47,760 Speaker 1: with these types of individuals following along in the cars, 512 00:29:47,800 --> 00:29:50,960 Speaker 1: because it opposes so many problems for the ultimate actual 513 00:29:51,040 --> 00:29:52,440 Speaker 1: prosecution of the crimes. 514 00:29:53,000 --> 00:29:55,600 Speaker 3: The FBI has allowed the media to do these sort 515 00:29:55,600 --> 00:29:58,360 Speaker 3: of ride alongs. I mean, when I was in local news, 516 00:29:58,400 --> 00:30:01,280 Speaker 3: I did ride alongs with police, but this was a 517 00:30:01,360 --> 00:30:05,520 Speaker 3: multi camera shoot and the editing and the dramatic music 518 00:30:05,920 --> 00:30:07,760 Speaker 3: make it seem more like a movie trailer. 519 00:30:08,240 --> 00:30:10,160 Speaker 1: And there have been TV shows, you know, you think 520 00:30:10,200 --> 00:30:13,680 Speaker 1: of the infamous show Cops that's been around forever. Those 521 00:30:13,720 --> 00:30:16,959 Speaker 1: shows did have some kind of media embedded within it, 522 00:30:17,000 --> 00:30:20,400 Speaker 1: but there were very strict protocols and procedures. There were 523 00:30:20,480 --> 00:30:23,640 Speaker 1: waivers that had to be signed by anybody whose identity 524 00:30:23,760 --> 00:30:27,080 Speaker 1: was shown, anybody whose information was made public, and of 525 00:30:27,080 --> 00:30:30,959 Speaker 1: course that footage always then had to be made available 526 00:30:31,240 --> 00:30:34,560 Speaker 1: to those defendants when they went to trial. And so 527 00:30:34,640 --> 00:30:37,720 Speaker 1: this is why there were always those limitations foot of place, 528 00:30:37,760 --> 00:30:41,240 Speaker 1: because while it makes for great TV, while it looked 529 00:30:41,360 --> 00:30:44,760 Speaker 1: cool on social media with the hype music and the 530 00:30:44,800 --> 00:30:47,480 Speaker 1: you know, the raw rag machismo that the White House 531 00:30:47,560 --> 00:30:50,400 Speaker 1: is doing, that doesn't necessarily mean it's going to be 532 00:30:50,480 --> 00:30:54,160 Speaker 1: helpful when it comes to actual trial. And that's what 533 00:30:54,160 --> 00:30:57,560 Speaker 1: we're waiting to see is does this backfire from a 534 00:30:57,680 --> 00:31:03,080 Speaker 1: legal standpoint by undercutting law enforcement's ability to actually prosecute 535 00:31:03,080 --> 00:31:05,840 Speaker 1: successfully these criminals. 536 00:31:05,560 --> 00:31:09,240 Speaker 3: And talk about overcharging. He's being charged with a felony 537 00:31:09,320 --> 00:31:15,040 Speaker 3: of forcibly assaulting, resisting, or impeding a federal officer. A 538 00:31:15,160 --> 00:31:18,880 Speaker 3: judge released him on his own recognisance, considering the felony 539 00:31:19,000 --> 00:31:23,640 Speaker 3: charge excessive, and what DC jury would convict him of that. 540 00:31:24,440 --> 00:31:27,760 Speaker 1: It'll be interesting to see one if that stuff gets 541 00:31:27,800 --> 00:31:31,480 Speaker 1: reduced in pre trial motions, but two, even if somehow 542 00:31:31,520 --> 00:31:33,920 Speaker 1: even one aspect of this does get to a jury, 543 00:31:34,200 --> 00:31:36,520 Speaker 1: whether or not they can find a jury that would 544 00:31:36,600 --> 00:31:40,000 Speaker 1: convict this guy based off that kind of evidence. It's 545 00:31:40,120 --> 00:31:43,000 Speaker 1: laughable right now to assume that would happen, but it's 546 00:31:43,160 --> 00:31:46,560 Speaker 1: entirely plausible. It's entirely possible that people would simply look 547 00:31:46,600 --> 00:31:49,200 Speaker 1: at it from a strictly legal standpoint and saying, do 548 00:31:49,280 --> 00:31:50,760 Speaker 1: I think this is a ridiculous case? 549 00:31:50,840 --> 00:31:51,040 Speaker 6: Yes? 550 00:31:51,400 --> 00:31:54,480 Speaker 1: Did his conduct meet the scope of the statutory provision? 551 00:31:54,760 --> 00:31:55,000 Speaker 8: Yes? 552 00:31:55,160 --> 00:31:58,360 Speaker 1: Okay, guilty. I don't foresee that whole case going through 553 00:31:58,400 --> 00:32:00,840 Speaker 1: the end with the original charges. This is all a 554 00:32:00,960 --> 00:32:04,320 Speaker 1: media spectacle right now. We're seeing the US attorney Piro 555 00:32:04,440 --> 00:32:08,000 Speaker 1: having problem getting invitements from grand jury. I fully expect 556 00:32:08,040 --> 00:32:09,440 Speaker 1: this to be just another case of that. 557 00:32:09,800 --> 00:32:12,800 Speaker 3: His next court appearance is in September, so we'll see 558 00:32:12,800 --> 00:32:16,080 Speaker 3: what happens. Thanks so much, Brad. That's Brad Moss of 559 00:32:16,200 --> 00:32:20,760 Speaker 3: Mark Zaid. Let's turn now to a multimillion dollar pardon 560 00:32:20,840 --> 00:32:25,840 Speaker 3: scheme that failed. The audacious plan crystallized over a lobster 561 00:32:26,000 --> 00:32:30,120 Speaker 3: dinner in Puerto Rico, where a self styled MAGA connector 562 00:32:30,520 --> 00:32:34,720 Speaker 3: says he and a child actor turned crypto enthusiast hatched 563 00:32:34,760 --> 00:32:39,040 Speaker 3: an idea to secure a presidential pardon for bitcoin booster 564 00:32:39,320 --> 00:32:43,280 Speaker 3: Roger Ver, also known as Bitcoin Jesus, and in the 565 00:32:43,360 --> 00:32:49,160 Speaker 3: process make millions for themselves, specifically thirty million. Joining me 566 00:32:49,240 --> 00:32:53,080 Speaker 3: is Bloomberg Legal reporter Ava Benny Morrison Ava. They only 567 00:32:53,080 --> 00:32:57,680 Speaker 3: had tenuous ties to Ver, why did they decide to 568 00:32:57,760 --> 00:32:58,920 Speaker 3: try to get him a pardon. 569 00:32:59,440 --> 00:33:02,800 Speaker 7: There's been a lot of enthusiasm around the clemency process 570 00:33:02,880 --> 00:33:06,800 Speaker 7: since President Trump took office in January. He has certainly 571 00:33:07,200 --> 00:33:11,080 Speaker 7: approached his clemency powers with more vigor than some of 572 00:33:11,120 --> 00:33:14,400 Speaker 7: his predecessors, and that's instilled a lot of hope in 573 00:33:14,520 --> 00:33:17,320 Speaker 7: people who want to try and get their case in 574 00:33:17,360 --> 00:33:20,320 Speaker 7: front of the White House for relief. So in this situation, 575 00:33:20,840 --> 00:33:24,760 Speaker 7: Roger Ver, who is an early investor in bitcoin and 576 00:33:25,040 --> 00:33:28,280 Speaker 7: he is currently under indictment for tax evation in California, 577 00:33:28,360 --> 00:33:30,400 Speaker 7: he was very vocal about wanting a pardon, and he 578 00:33:30,560 --> 00:33:33,120 Speaker 7: had been on social media and sitting down for interviews 579 00:33:33,160 --> 00:33:37,400 Speaker 7: with conservative commentators talking about his battle with US authorities 580 00:33:37,480 --> 00:33:41,000 Speaker 7: and making a direct appeal in some situations to Trump 581 00:33:41,120 --> 00:33:45,280 Speaker 7: to give him a pardon. Matt Argyll, a businessman from Florida, 582 00:33:45,480 --> 00:33:48,640 Speaker 7: and Brock Pierce, who is also a pretty well known 583 00:33:48,680 --> 00:33:52,280 Speaker 7: figure in the cryptosphere, knew about this and approached him 584 00:33:52,280 --> 00:33:56,240 Speaker 7: and offered to lobby for his cause. So Matt Argall 585 00:33:56,240 --> 00:33:59,040 Speaker 7: in particular was pretty key in a number of these 586 00:33:59,080 --> 00:34:02,440 Speaker 7: conversations that took place earlier this year and offered to 587 00:34:02,480 --> 00:34:07,760 Speaker 7: assemble a group of Washington insiders who could Take's best 588 00:34:07,840 --> 00:34:09,920 Speaker 7: case to the White House and try and get. 589 00:34:09,800 --> 00:34:10,360 Speaker 5: Him a pardon. 590 00:34:11,000 --> 00:34:15,120 Speaker 3: A thirty million dollar fee seems a bit high. 591 00:34:15,160 --> 00:34:18,640 Speaker 7: While a number of these pardon plans have been popping 592 00:34:18,760 --> 00:34:21,040 Speaker 7: up over the past few months, this one stuck out 593 00:34:21,120 --> 00:34:24,040 Speaker 7: because of the fee that was attached to it. The 594 00:34:24,120 --> 00:34:29,239 Speaker 7: conversations were about Roger handing over thirty million dollars to 595 00:34:29,440 --> 00:34:31,920 Speaker 7: these people to try and get him a pardon, which 596 00:34:31,960 --> 00:34:35,720 Speaker 7: is astronomical. You know, I've reported on a number of 597 00:34:35,760 --> 00:34:39,560 Speaker 7: these different proposals and fees flying around to lawyers and 598 00:34:39,600 --> 00:34:42,440 Speaker 7: consultants and lobbyists, but thirty million dollars is certainly the 599 00:34:42,520 --> 00:34:43,560 Speaker 7: highest amount i'd heard. 600 00:34:44,080 --> 00:34:46,160 Speaker 3: What kind of fees do you normally hear about. 601 00:34:46,400 --> 00:34:50,560 Speaker 7: It differs across the board. I have heard that some 602 00:34:50,760 --> 00:34:53,719 Speaker 7: lawyers have been quoting a million dollars as a base 603 00:34:53,840 --> 00:34:57,360 Speaker 7: level to prepare an application and to speak to the 604 00:34:57,440 --> 00:34:59,919 Speaker 7: right people in Washington to try and get their client 605 00:35:00,200 --> 00:35:04,240 Speaker 7: case heard. But then someone suggested there was a finders fee, 606 00:35:04,360 --> 00:35:07,160 Speaker 7: so quoting five thousand dollars to put someone in touch 607 00:35:07,200 --> 00:35:10,960 Speaker 7: with someone else. For other people, lawyers have quoted tens 608 00:35:10,960 --> 00:35:13,480 Speaker 7: of thousands of dollars to put the paperwork together. So 609 00:35:13,640 --> 00:35:17,080 Speaker 7: it really varies. But this is a real evolution of 610 00:35:17,080 --> 00:35:20,960 Speaker 7: this clemency space. I think the clemency space historically has 611 00:35:21,080 --> 00:35:25,319 Speaker 7: largely been populated by pro bono advocates, so lawyers and 612 00:35:25,440 --> 00:35:30,719 Speaker 7: academics offering to lobby for people who have been in 613 00:35:30,800 --> 00:35:35,359 Speaker 7: prison for a very long time or particularly harsh sentences, 614 00:35:35,600 --> 00:35:39,920 Speaker 7: maybe during the cocaine epidemic, but only now we're really 615 00:35:40,480 --> 00:35:43,879 Speaker 7: starting to see these massive fees attached to this kind 616 00:35:43,920 --> 00:35:44,280 Speaker 7: of work. 617 00:35:44,400 --> 00:35:47,200 Speaker 3: So what happened after you got their pitch? So what 618 00:35:47,320 --> 00:35:49,200 Speaker 3: happened after Verra got their pitch? 619 00:35:49,400 --> 00:35:52,400 Speaker 7: So there were a number of conversations held earlier this 620 00:35:52,520 --> 00:35:56,600 Speaker 7: year between Roger Vert and Matt Argyll, Rock Pierce and 621 00:35:56,760 --> 00:35:59,800 Speaker 7: some other characters who are quite well known in conservatives 622 00:36:00,520 --> 00:36:04,200 Speaker 7: and have very good track records at helping people get clemency. 623 00:36:04,680 --> 00:36:09,040 Speaker 7: So those conversations went into what a path to a 624 00:36:09,080 --> 00:36:12,600 Speaker 7: White House pardon might look like, and also reiterated this 625 00:36:12,640 --> 00:36:15,799 Speaker 7: thirty million dollar fee structure again and again. But those 626 00:36:15,800 --> 00:36:18,640 Speaker 7: conversations seem to have fizzled out. In March, I got 627 00:36:18,640 --> 00:36:22,359 Speaker 7: my hands on an email that showed that the had 628 00:36:22,480 --> 00:36:25,920 Speaker 7: just stopped replying to text messages and calls and voice 629 00:36:25,960 --> 00:36:28,360 Speaker 7: notes from some of the people that were involved in 630 00:36:28,400 --> 00:36:30,520 Speaker 7: these pardon conversations. 631 00:36:30,400 --> 00:36:34,120 Speaker 3: And no money actually changed hands. Now you spoke with Oragle, 632 00:36:34,360 --> 00:36:36,440 Speaker 3: what was his explanation for this scheme? 633 00:36:36,760 --> 00:36:40,160 Speaker 7: I found him to be quite upfront and forthcoming about 634 00:36:40,160 --> 00:36:43,800 Speaker 7: his role in these conversations and how it all came together. 635 00:36:44,239 --> 00:36:47,279 Speaker 7: He told me that he had traveled to Washington on 636 00:36:47,320 --> 00:36:49,560 Speaker 7: a number of occasions to kind of lay the groundwork, 637 00:36:49,680 --> 00:36:53,200 Speaker 7: and you know, he introduced a well known Washington lawyer 638 00:36:53,280 --> 00:36:56,759 Speaker 7: to Roger Vert to discuss a potential pardon plan. And 639 00:36:56,800 --> 00:36:59,279 Speaker 7: I asked him about the thirty million dollar fee. The 640 00:36:59,320 --> 00:37:01,600 Speaker 7: way that he and Brock had come up with that 641 00:37:01,640 --> 00:37:05,040 Speaker 7: fee was they estimated Roger Ver was worth ten to 642 00:37:05,080 --> 00:37:08,080 Speaker 7: twenty billion. That's not an amount that we've been able 643 00:37:08,120 --> 00:37:12,160 Speaker 7: to confirm, but in Matt's justification, twenty million dollars seemed 644 00:37:12,280 --> 00:37:14,359 Speaker 7: like a drop in the ocean for someone like that, 645 00:37:14,480 --> 00:37:16,160 Speaker 7: especially when your freedom's on the line. 646 00:37:16,400 --> 00:37:20,279 Speaker 3: Really fascinating story. Eva, thanks so much. That's Bloomberg Legal 647 00:37:20,320 --> 00:37:23,359 Speaker 3: Reporter Eva Benni Morrison, and that's it for this edition 648 00:37:23,400 --> 00:37:26,040 Speaker 3: of The Bloomberg Law Show. Remember you can always get 649 00:37:26,080 --> 00:37:29,200 Speaker 3: the latest legal news on our Bloomberg Law Podcast. You 650 00:37:29,239 --> 00:37:33,320 Speaker 3: can find them on Apple Podcasts, Spotify, and at www 651 00:37:33,480 --> 00:37:37,760 Speaker 3: dot Bloomberg dot com, slash podcast Slash Law, And remember 652 00:37:37,800 --> 00:37:40,759 Speaker 3: to tune into The Bloomberg Law Show every weeknight at 653 00:37:40,760 --> 00:37:44,239 Speaker 3: ten pm Wall Street Time, I'm Julie Grosso and you're 654 00:37:44,360 --> 00:37:45,560 Speaker 3: listening to Bloomberg