Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: We as a Republican party are going to do everything
Speaker 2: possible that we get rid of mail invalots. We're going
Speaker 2: to start with an executive order that's being written right
Speaker 2: now by the best lawyers of the country to end
Speaker 2: mail in ballots because they're corrupt. And do you know
Speaker 2: that we're the only country in the world. I believe
Speaker 2: I may be wrong, but just about the only country
Speaker 2: in the world that uses it.
Speaker 3: Actually, more than thirty countries have mail in voting, including
Speaker 3: the UK, Canada, and Australia, and voter fraud is extremely rare,
Speaker 3: although President Trump has complained about it for years and
Speaker 3: of course fought losing legal battles over allegations of fraud
Speaker 3: in the twenty twenty election. Still, on Monday, Trump said
Speaker 3: he'll sign an executive order to end mail in voting
Speaker 3: and voting machines, which he claims are all also highly
Speaker 3: inaccurate for validation. He pointed to comments by Russia's authoritarian
Speaker 3: leader Vladimir Putin in an interview on Fox You Know.
Speaker 4: Vladimir Putin said something. One of the most interesting things.
Speaker 4: He said, your election was rigged because you have mail
Speaker 4: in voting. He said, mail in voting every election. He said,
Speaker 4: no country has mail in voting. It's impossible to have
Speaker 4: mail in voting and have honest elections.
Speaker 3: By midweek, the White House seemed to have shifted course,
Speaker 3: with a top aid saying the administration would pursue legislation
Speaker 3: to attain Trump's goals. My guest is constitutional law professor
Speaker 3: Rick Pildis of NYU Law School. Rick, under the Constitution,
Speaker 3: what roles do the president, Congress, and the states play
Speaker 3: in elections?
Speaker 5: So let's start with the president. So the president has
Speaker 5: no power constitutionally to dictate to the states how they
Speaker 5: conduct national liefections. The Constitution gives states the power to
Speaker 5: regulate the way in which our national elections are held,
Speaker 5: and the constitution also gives Congress the power to decide
Speaker 5: to sort of supplant the states in that role. But
Speaker 5: the president has no power constitutionally to dictate how states
Speaker 5: conduct elections.
Speaker 3: Let's say Congress agrees with President Trump, what could Congress
Speaker 3: do to change the way elections are held?
Speaker 5: I think that begins to get us into the more
Speaker 5: significant questions. In a sense, So even if the president
Speaker 5: doesn't have the power to do this. Once he puts
Speaker 5: the marker out there on this by issuing the executive order,
Speaker 5: then the question becomes, you know what's going to happen
Speaker 5: in the States, and what's going to happen in Congress. Congress,
Speaker 5: in theory, does have the power to determine issues like
Speaker 5: the appropriate use of absentee ballots in national elections. Congress
Speaker 5: could require absentee ballots to be provided, It could determine
Speaker 5: the conditions under which they can be used, and I
Speaker 5: think in theory it probably could ban their use. There
Speaker 5: might be some constitutional challenges individual voters would bring, but fundamentally,
Speaker 5: the Supreme Court has recognized extremely broad power in Congress
Speaker 5: to regulate national elections under the Election's clause. Now you
Speaker 5: know whether Congress would actually do this, I'd say fairly
Speaker 5: skeptical about because number one, of course, as long as
Speaker 5: we have the filibuster, the Democrats are going to oppose
Speaker 5: this and it won't get through the Senate. But number two,
Speaker 5: the Republicans have for a very long time been very
Speaker 5: much against nationalizing the election process. There will certainly be
Speaker 5: some Republicans I would imagine who would go along with
Speaker 5: the President but I think there might well be pushed
Speaker 5: back from within the Republican Party on going down this route.
Speaker 5: At the national level, election administrators, including in red states,
Speaker 5: are not going to be happy about a change like
Speaker 5: this because it means the election process will be more
Speaker 5: complicated for them to run because increase the number of
Speaker 5: people who would turn to in person voting. So, in theory,
Speaker 5: Congress could regulate in this area, but I don't know
Speaker 5: what the politics will be about that. I think then
Speaker 5: the question is what will happen in red states, you
Speaker 5: know that are run by legislators and governors who are
Speaker 5: sympathetic to the president's agenda, And will we see significant
Speaker 5: changes going on in red states about the use of
Speaker 5: absentee ballots?
Speaker 3: And let's say Congress does pass a law like that,
Speaker 3: what would a challenge look like?
Speaker 5: So if Congress were to ban absentee ballots altogether, I
Speaker 5: can imagine individual voters who cannot be in the jurisdiction
Speaker 5: on election day or during the early voting process if
Speaker 5: the state has early voting, who say I just can't
Speaker 5: exercise my right to vote at all, in effect, because
Speaker 5: I just for whatever reason, cannot be in the jurisdiction
Speaker 5: during those days. I could imagine they might bring a
Speaker 5: challenge under the federal Constitution and sort of right to
Speaker 5: vote constitutional doctrine. They would argue that this ban would
Speaker 5: impose a severe burden on their voting rights. So I
Speaker 5: suspect that would be the form the challenge would take,
Speaker 5: And I think the voters who would have the strongest
Speaker 5: case would be the voters in that category I just described,
Speaker 5: people who just physically can't be in the jurisdiction during
Speaker 5: any of the days on which voting takes place. I
Speaker 5: don't know whether they would win that constitutional challenge, but
Speaker 5: that's what I would envision.
Speaker 3: Yeah, I mean the military votes by mail for that reason. Also,
Speaker 3: Republicans poured tens of millions of dollars last year into
Speaker 3: convincing their voters that ballots by mail are safe, and
Speaker 3: Trump himself has voted by mail. Now, what about voting machines.
Speaker 3: Trump wants to go from voting machines to paper ballots
Speaker 3: with watermarks.
Speaker 5: Well, I don't understand exactly what he has in mind
Speaker 5: yet about that. So we do overwhelmingly vote on paper
Speaker 5: ballots already. The question then, is how those bad ballots
Speaker 5: are counted, And typically you know, that's where machines come
Speaker 5: into the picture. So if you vote on you know,
Speaker 5: what's called an optical scan machine, you fill in the
Speaker 5: bubbles on your ballot. You then enter the ballot into
Speaker 5: the machine that tabulates the vote. So if he means
Speaker 5: that voting should be done on a paper ballot, most
Speaker 5: of our voting already takes place that way. If he
Speaker 5: means that the vote should be somehow counted by hand
Speaker 5: rather than counted by a machine whose accuracy has been
Speaker 5: you know, validated, and by the way, we also do
Speaker 5: audits after the tabulation to make sure the machines are
Speaker 5: accurately counting the ballots. If he means to get rid
Speaker 5: of machines for counting the ballots, it's very hard to
Speaker 5: conceive of what that would mean and how that could
Speaker 5: possibly be done, because it would mean, you know, hand
Speaker 5: counting millions of ballots, which would introduce huge delays in
Speaker 5: the counting process. And we know counting by hand is
Speaker 5: actually much less accurate than using the machines to count
Speaker 5: the ballots. So it's really unclear to me what he
Speaker 5: even has in mind about voting machines. I guess we
Speaker 5: need to see what the order actually ends up saying what's.
Speaker 3: Really going on here? Is it an attempt to give
Speaker 3: the Republicans an advantage in the midterms because Democrats supposedly
Speaker 3: do better with mail in voting than Republicans. Or is
Speaker 3: it a power grab or something else.
Speaker 5: It's a little hard for me to speculate about, you know,
Speaker 5: what exactly is going on. He's obviously had an issue
Speaker 5: about mail in ballots for quite a while. He made
Speaker 5: a big issue of this in the run up to
Speaker 5: the twenty twenty election. I think the view is that
Speaker 5: that ended up hurting him in the election because many
Speaker 5: Republicans then decided not to vote by absentee ballot, and
Speaker 5: whether those people voted in other ways or not, you know,
Speaker 5: we don't know for sure. I'm sure that this statement
Speaker 5: by him is causing consternation among other elected Republican officials
Speaker 5: who probably think it's not in their interest to abandon
Speaker 5: absentee voting. But you know, for whatever reason, he has
Speaker 5: a being his bondt about this issue, and he lacks
Speaker 5: the power to do anything directly about it. But we'll
Speaker 5: see if Congress ends of doing anything.
Speaker 3: Trump did issue an executive order in March that, among
Speaker 3: other things, would require proof of US citizenship in order
Speaker 3: to vote. A couple of federal judges block that order.
Speaker 3: Does that indicate how other challenges might fare well.
Speaker 5: I think there's little doubt that an executive order that
Speaker 5: purported to tell the states that they could not use
Speaker 5: absentee ballots would be blocked by the federal courts. Again,
Speaker 5: I'm a little hesitant to speculate, you know, too much
Speaker 5: until we see the actual order and how it's designed
Speaker 5: and what powers it asserts. But he doesn't have the
Speaker 5: power to dictate the states that they cannot use absentee
Speaker 5: ballots or can only use them under certain conditions. So
Speaker 5: I don't have much doubt that in order that did
Speaker 5: that would be struck down put on hold by the court.
Speaker 3: Trump is also using his influence to try to win
Speaker 3: the mid terms by getting Texas to change its maps
Speaker 3: to give Republicans five more seats, and California is doing
Speaker 3: retaliatory redistricting to get five more Democratic seats there. On Thursday,
Speaker 3: Governor Gavin Newsom signed legislation for a special election in
Speaker 3: November to approve a redrawn congressional map in that state.
Speaker 6: This was not a press commence. We intended to have.
Speaker 6: This is not an action the legislature intended to advance.
Speaker 6: This is not an election we expected to be holding
Speaker 6: on November fourth, But they shot the first bullet.
Speaker 3: I take it that, though it's very unusual, there's no
Speaker 3: legal impediment to mid decade redistricting.
Speaker 5: We've had very little mid decade redistrict in American history,
Speaker 5: is certainly in modern American history. The last time this
Speaker 5: happened in a way that went to the Supreme Court
Speaker 5: actually was also from Texas in the early two thousands.
Speaker 5: I actually filed an amicust brief in that case urging
Speaker 5: the court to hold the federal Constitution precluded mid decade redistricting.
Speaker 5: The Supreme Court didn't agree with that position. But we're
Speaker 5: in a world in which control of the House rests
Speaker 5: on such a fine margin kind of election after election,
Speaker 5: which is a very important part to understand as a
Speaker 5: backdrop to all of this, And so it leads the
Speaker 5: political parties to fight over every single inch of terrain,
Speaker 5: and so various kinds of you know, norms that have
Speaker 5: been around for a while, you know, are breaking under
Speaker 5: that pressure, which is what's happening with the constraints against
Speaker 5: mid decade redistricting, and the Pandora's box that opens up is,
Speaker 5: you know, if state can do it once, they could
Speaker 5: just adjust their districts every couple of years to try
Speaker 5: to maximize part of advantage throughout the decade, and of
Speaker 5: course it's going to trigger you know, retaliator mid decade redistricting.
Speaker 5: And it's another example of the kind of tactics that
Speaker 5: at the end of the day, really undermined public confidence
Speaker 5: in the legitimacy of the process. Jerrymandering is bad enough
Speaker 5: when it happens once a decade, but if we move
Speaker 5: down a path towards sort of perpetual redistricting for partisan
Speaker 5: advantage seeking, it's all the worse. So none of these
Speaker 5: things really promote the integrity of the process from the
Speaker 5: perspective of voters.
Speaker 3: Perpetual redistricting, that's a scary thought. Thanks so much, Rick.
Speaker 3: That's Professor Rick Pildus of NYU Law School, coming up
Speaker 3: next on The Bloomberg Law Show. There's been a significant
Speaker 3: drop in union elections as the unions play a weight
Speaker 3: and see game warry of organizing and taking risks during
Speaker 3: the Trump administration. I'm June Grosso and you're listening to Bloomberg.
Speaker 3: President Trump made his position on unions pretty clear in
Speaker 3: a conversation with Elon Musk about a year ago.
Speaker 2: I mean, I look at what you do.
Speaker 1: You walk, you want to quit, they go a strike.
Speaker 2: I won't mention the name of the company, but they
Speaker 2: go on strike and use it.
Speaker 7: That's okay.
Speaker 2: You're all gone. You're all gone. So every one of
Speaker 2: you is gone, and you are the greatest.
Speaker 3: Trump was no friend to unions in his first administration,
Speaker 3: and in the past six months he's ended collective bargaining
Speaker 3: for two thirds of federal workers, effectively paralyzed the federal
Speaker 3: agency that decides unfair labor practices and disputes over union elections,
Speaker 3: and rescinded the minimum wage that federal contractors have to
Speaker 3: pay workers, just to name a few anti union actions.
Speaker 3: So then it may not be so surprising that there's
Speaker 3: been a significant drop in union elections and petitions to
Speaker 3: the National Labor Relations Board in the last six months.
Speaker 3: That stands in contrast to the previous three years, where
Speaker 3: there were historic numbers of union elections, representation petitions, and
Speaker 3: unfair labor practice charge just filed each year. My guest
Speaker 3: is labor law expert and Lafasso, a professor at the
Speaker 3: University of Cincinnati Law School. And the average number of
Speaker 3: newly certified unions per month dropped twenty two point three
Speaker 3: percent between January and July of this year, and there's
Speaker 3: been a fifteen point eight percent drop in the number
Speaker 3: of representation petitions filed in that time period. How do
Speaker 3: you count for this significant drop?
Speaker 8: I think you have to look at both sides of
Speaker 8: the equation. First, you had historic increase under Biden, and
Speaker 8: under bait progressive general counsel. The board was relatively progressive,
Speaker 8: but not quite as progressive as General Counsel Jennifer Brusso was.
Speaker 8: So Brusso was aggressively progressive. She looked at the law
Speaker 8: and she interpreted the law in a way that, in
Speaker 8: my view at least was reasonable. But on the progressive side,
Speaker 8: the law can always be interpreted more progressively or more
Speaker 8: conscis servatively more pro union or more pro business, and
Speaker 8: it's not like the law has a single meaning. And
Speaker 8: she was on the very progressive side, and that emboldened
Speaker 8: and encouraged unions to file election petitions and also defile
Speaker 8: unfair labored practice charges even where it might have been
Speaker 8: a more iffy theory of why they were being unfairly treated.
Speaker 8: Iffy because in the past they may not have gotten
Speaker 8: that theory validated for the board. So that's going to
Speaker 8: increase the numbers. Then when Trump came in, they're remembering
Speaker 8: the first Trump board, and the first Trump board as
Speaker 8: progressive as Jennifer Brusso was, it was reactionary. It was
Speaker 8: extremely to the right, much more pro business and even
Speaker 8: in some instances I would say not just pro business
Speaker 8: but anti union more so than any other board ever
Speaker 8: in the history of the National Labor Relations Board. And
Speaker 8: they're remembering this and it was very painful for them.
Speaker 8: So they're in this sort of wait and see pattern,
Speaker 8: anticipating the worst. So I'm at a conference right now
Speaker 8: and I'm listening to people and they don't want to
Speaker 8: file petitions right now because they are really afraid.
Speaker 3: Do you think the new board is going to be
Speaker 3: as conservative as the board in the first Trump administration.
Speaker 8: Yeah, the board doesn't have a quorum. I personally don't
Speaker 8: think that the Trump two board will be as reactionary
Speaker 8: as the Trump one board. I could be wrong. The
Speaker 8: reason I'm saying this, though, is because the general counsel Callan,
Speaker 8: who is a conservative man, so he's going to interpret
Speaker 8: the law in a more conservative fashion, is going to
Speaker 8: be more pro business fashion. However, he's an institutionalist. He's
Speaker 8: been the regional director for one of the regions out
Speaker 8: in the West, I think in California for a long
Speaker 8: time he was a board member. He's loved by everyone.
Speaker 8: He was at the board when I was there, everyone
Speaker 8: loved him. He was just kind, he was easy to
Speaker 8: work with. He doesn't want to destroy the agency. Also,
Speaker 8: people Trump put forward for the board also institutionalists. He
Speaker 8: could have picked people that had union busting careers and
Speaker 8: he doesn't seem to be doing that. So it's possible
Speaker 8: that the fear that's going on is an overreaction. But
Speaker 8: I think at least they're waiting and seeing what this
Speaker 8: board will do. So when you put those two things together, though,
Speaker 8: the sort of record highs and then the remembering of
Speaker 8: what the Trump board did in his first administration, you
Speaker 8: get this huge swing. I don't know if it's going
Speaker 8: to last. It's going to be very interesting to see,
Speaker 8: and I think it's going to depend on what this
Speaker 8: board starts doing and whether it was willing to dismantle precedents.
Speaker 3: Is this reluctance coming from the union leaders or the
Speaker 3: workers who might fear the political climate, especially in light
Speaker 3: of the economy and the labor market. I mean, where's
Speaker 3: it coming from?
Speaker 8: Oh? Both, definitely. So from the worker's point of view,
Speaker 8: they're scared. There are people that are afraid to even
Speaker 8: speak out against the president of retaliation because we saw
Speaker 8: that the president decided to fire a large percentage of
Speaker 8: the federal workforce, which he has direct control over. So
Speaker 8: people are afraid to speak out. Now, whether that's justified
Speaker 8: or not, the historians will tell us that, but people
Speaker 8: certainly are afraid, and so they don't want to stick
Speaker 8: their necks out right now. But union leaders, who are
Speaker 8: thinking about these things and hearing from their constituents are
Speaker 8: also concerned, and they're more in the wait and see pattern, like, well,
Speaker 8: let's see what's going on. But the workers themselves, I think,
Speaker 8: are afraid. And they're also afraid because the economy isn't
Speaker 8: as good. So when you had a much better economy,
Speaker 8: which despite what everyone was saying, we had a pretty
Speaker 8: good economy under Biden, but the economy has been going
Speaker 8: down and down, and the labor market is much tougher.
Speaker 8: Right now, there's no slacks in the labor market. So
Speaker 8: it's hard. If you get fired from a job right now,
Speaker 8: let's say you're unjustly fired because you're a union activist,
Speaker 8: you may not get another job. It's very tough. So
Speaker 8: this makes people afraid to organize. It makes the labor
Speaker 8: organizer's job and the labor union leader's job that much
Speaker 8: more difficult.
Speaker 3: You say, wait and see, but don't the unions already
Speaker 3: know where Trump stands, especially with the executive order that
Speaker 3: he issued ending collective bargaining for two thirds of the
Speaker 3: federal workforce. Even before Trump took office, student athletes dropped
Speaker 3: organizing efforts at Dartmouth College and the University of Southern California.
Speaker 8: Well that was smart of them, because the General Council
Speaker 8: has withdrawn a Brusso's memo, her General Council Memo stating
Speaker 8: that student athletes are actually employees and should have the
Speaker 8: protections of the board. So we do know almost certainly
Speaker 8: what this board would do with that. So on that issue,
Speaker 8: it's pretty clear. But there is sometimes some very easy issues.
Speaker 8: For example, remember the early two thousand when Bush was
Speaker 8: the President Chamber and Wilma Leebman, two people that couldn't
Speaker 8: be further apart. A progressive Leaveman and a conservative chamber
Speaker 8: and very conservative chamber. They've agreed on six hundred cases together.
Speaker 8: Now they were all found voids by the Supreme Court
Speaker 8: because there was only two and they weren't a quorum,
Speaker 8: but not because of what they decided. Those were all
Speaker 8: easy cases. There's plenty of easy cases to go forward.
Speaker 8: What they're waiting and seeing on and I think what
Speaker 8: they are not going to do is we're not going
Speaker 8: to see them pushing the envelope. But I would be
Speaker 8: surprised if Ingian say, Okay, we're going to ask for
Speaker 8: expanded remenedies right now. I wouldn't ask for them because
Speaker 8: I wouldn't want that precedent to go before a court.
Speaker 8: First of all, I wouldn't want to go before the board,
Speaker 8: and then I wouldn't want to go before the court.
Speaker 8: So they're not going to push the student athlete issue
Speaker 8: right now. So if I were student athletes right now,
Speaker 8: I might go for a voluntary recognition, but I wouldn't
Speaker 8: go for anything else.
Speaker 3: And isn't the president in a legal battle to exert
Speaker 3: more control roll over independent agencies like the NLRB.
Speaker 8: The president is trying to control the administrative agencies a
Speaker 8: lot more. And the president who's taking the position that
Speaker 8: he can fire board members and only this pre court
Speaker 8: can tell us if that's true. My guess is, even
Speaker 8: though right now the precedent at the Supreme Court is
Speaker 8: that he can't fire commissioners or board members, that they
Speaker 8: are likely to reverse that obvious divided vote. And I'm
Speaker 8: talking about Humphrey's executor. So if he can fire anyone
Speaker 8: at will, if he doesn't like a decision that comes
Speaker 8: out of the board, then he'll just fire the person.
Speaker 8: So I'm sure that these board members are going to
Speaker 8: be somewhat more beholden to the president than they normally
Speaker 8: were in an independent agency where they really were independent
Speaker 8: of the president. I think that will happen. And let's
Speaker 8: face it, he already fired member Willcox, and I do
Speaker 8: want to remind the audience that she was the first
Speaker 8: black female board member, and so the look is very,
Speaker 8: very bad that he decides to fire the first black
Speaker 8: board member but not the democrat white And again that
Speaker 8: could be a coincidence, I don't know, but it is
Speaker 8: a very bad look and so it does send the
Speaker 8: message definitely, But the president is not going to fire
Speaker 8: a board member because of an obvious, simple case of
Speaker 8: enforcing the law. I think what he would do is
Speaker 8: if it's something that gets the chamber upset, that gets
Speaker 8: Starbucks or Amazon upset, and that doesn't mean Starbucks losing
Speaker 8: a case or an election. I mean, where Starbucks this
Speaker 8: is ridiculous because these are expanded remedies or something like that.
Speaker 8: So yes, I think it's just more nuanced, and I
Speaker 8: at least am taking also a wait and see, and
Speaker 8: I'm optimistic it will not be as bad for unions
Speaker 8: as it was other than trump one administration. Let me
Speaker 8: put this way, I wouldn't bet on what I'm saying.
Speaker 8: I just think it's more likely than not, like forty
Speaker 8: nine to fifty one percent. That's where I'm at.
Speaker 3: Would you say that labor unions are already playing defense.
Speaker 3: They're sort of on the front lines of some of
Speaker 3: the legal fights against Trump's reduction enforced plans and moves
Speaker 3: to exclude two thirds of the workforce from collective bargaining rights,
Speaker 3: and initiatives that shutter agencies and affect universities.
Speaker 8: Absolutely, unions are definitely on the defensive, and they're concerned.
Speaker 8: There's a lot of things means can do, but remember,
Speaker 8: whatever they do for their members, they also can't live
Speaker 8: without members. They need fees because organizing takes money and
Speaker 8: getting benefits for their members takes money. So they are
Speaker 8: on the defensive and they want to survive. And I
Speaker 8: can't get into the mind of every union, but I
Speaker 8: wouldn't be surprised if for them this is an existential threat.
Speaker 8: That's how higher education feels right now. I mean, I'm
Speaker 8: a member of a union at my university, and we
Speaker 8: certainly feel that this is an existential threat. People are
Speaker 8: palpably afraid. And by the way, we're a public institution,
Speaker 8: so what's going on in public institutions is more at
Speaker 8: this date level. But it's the same kind of thing
Speaker 8: that's going on at least in the Red States that
Speaker 8: are part of this idea that unions are not good
Speaker 8: for the economy and that higher education is left wing propaganda.
Speaker 8: And I think a lot of us are afraid to
Speaker 8: speak out. What are we going to do? We want
Speaker 8: to keep our jobs even ten years on the line.
Speaker 8: So it's going on all over the country.
Speaker 3: By laying back now is there a risk to the
Speaker 3: momentum that the unions seem to have picked up in
Speaker 3: the last few years.
Speaker 8: So the concern is, Okay, if we stop organizing, we
Speaker 8: lose our momentum, but if we organize, we might get
Speaker 8: bad results. This is why you're in this paralysis, this
Speaker 8: wait and see, because there's one push to kind of
Speaker 8: keep the momentum up. People want unions more than ever
Speaker 8: in like at least the last seventy five years, So
Speaker 8: they're more popular today than they've been certainly in my lifetime.
Speaker 8: But at the same time, you have an administration that's
Speaker 8: more hostile to unions definitely before FDR. So there is
Speaker 8: a paralysis right now. And you know which way do
Speaker 8: we go? Now? Do you go in this relatively aggressive
Speaker 8: way and continue the momenta or do you stop? Or
Speaker 8: do you do something less aggressive but you can keep
Speaker 8: up the momentum. What is the right choice? And I
Speaker 8: think people don't know what the right choice is right now,
Speaker 8: and that's the problem.
Speaker 3: Thanks so much, Ann. That's Professor An Lafosso of the
Speaker 3: University of Cincinnati Law School coming up next. A thirty
Speaker 3: million dollars pardon scheme fails and how the so called
Speaker 3: Sandwich Guy, became a resistance icon in DC. I'm June
Speaker 3: Grosso and you're listening to Bloomberg. You may have seen
Speaker 3: the viral video of a DC resident throwing his subway
Speaker 3: sandwich at an ice officer after cursing about the federal
Speaker 3: takeover of the nation's capital. DCUs attorney Janine Piro put
Speaker 3: out her own video bragging about charging Sean Charles Dunn,
Speaker 3: a decorated Air Force veteran, with felony assault, for tossing
Speaker 3: the salami sandwich.
Speaker 9: And then he took a subway sandwich about this big
Speaker 9: and took it and threw it at the officer.
Speaker 8: He thought it was funny.
Speaker 9: Well, he doesn't think it's funny today, because we charge
Speaker 9: it with a felony assault on a police officer, and
Speaker 9: we're going to back the police to the hilt. So there,
Speaker 9: stick your subway sandwich somewhere else.
Speaker 3: Well done. Now known as sandwich Guy, has become a
Speaker 3: symbol of the resistance to the heightened presence of federal
Speaker 3: agents and troops in DC. You can see Banksy's style
Speaker 3: posters of him tossing the sub and all kinds of
Speaker 3: free DC sandwich themed flags posters tote bags and T shirts.
Speaker 3: You can also see the video of Dun's rearrest in
Speaker 3: a swat style raid as more than a dozen federal
Speaker 3: agents converged on his apartment building, filed into a narrow corridor,
Speaker 3: dressed in full tactical gear with guns drawn and carrying
Speaker 3: bulletproof shields until Dunn opens the door to his apartment
Speaker 3: and surrenders peacefully. The reason you can see a professionally
Speaker 3: edited multi camera video of his arrest is because the
Speaker 3: White House sent a social media team to record it
Speaker 3: and then posted it online. Joining me is national security
Speaker 3: expert Bradley Moss, a partner Mark Zaid. Brad does this
Speaker 3: videotaping and posting of an arrest violate the suspect's constitutional rights?
Speaker 1: Does this? The Supreme Court about twenty something years ago,
Speaker 1: had addressed the idea of embedding media with law enforcement
Speaker 1: in the context of doing work, and Supreme Court had
Speaker 1: basically overturned the policy, saying it was violative of people's
Speaker 1: First Amendment, Fifth Amendment, and Fourth Amendment protections. After all,
Speaker 1: you are presumed innocit until proven guilty. I mean, there
Speaker 1: was no legitimate basis to have news media embedded with
Speaker 1: law enforcement for that purpose. What we're seeing here with
Speaker 1: these social media influencers embedded with the FBI or whichever
Speaker 1: federal law enforcement agency is conducting these particular raids is
Speaker 1: even greater abuse of the process in the sense that
Speaker 1: it's not even pretending to be about news gathering or
Speaker 1: objective journalism. This is straight up political hackery. These are
Speaker 1: social media influencers. These are media players with a very
Speaker 1: explicit partisan agenda, designed not to gather facts, but to
Speaker 1: push the White House's specific narrative about what is transpiring.
Speaker 1: This entire process, as far as I'm concerned, is at
Speaker 1: least unethical, if not likely also illegal.
Speaker 3: What would be some of the possible legal challenges.
Speaker 1: So you're almost certainly going to see at some point
Speaker 1: various pre trial motions for you know, pretro publicity issues
Speaker 1: tied to the inclusion of these social media influencers being
Speaker 1: embedded and publicizing this. There's going to be various actions
Speaker 1: taken by defense attorneys claiming their clients privacy rights and
Speaker 1: constitutional rights were violated by use of these embedded individuals.
Speaker 1: How that will play out remains to be seen. I
Speaker 1: don't think the cases necessarily are thrown out simply based
Speaker 1: off that, but it is entirely possible it will cause
Speaker 1: some problems with prosecution of these cases. And if that
Speaker 1: does start occurring, if the courts start pushing back by
Speaker 1: way of these pre trial rulings, I think you'll see
Speaker 1: a shift in the policy from most of the agencies
Speaker 1: and from the White House. If for no other reason,
Speaker 1: then it'd be undercutting their ability to do what they
Speaker 1: say they're trying to do, which is to identify arrest
Speaker 1: and convict criminals.
Speaker 3: Could it also become part of the evidence of the
Speaker 3: defense at trial, perhaps demonstrating you know, bad conduct by
Speaker 3: the arresting officers, or that the defendant was being targeted
Speaker 3: in some way.
Speaker 1: Yes, all of it would be discoverable. All of it
Speaker 1: would be potentially exculpatory information that would have to be
Speaker 1: turned over to the criminal defendants and their council. All
Speaker 1: that could be brought up not only from a factual standpoint,
Speaker 1: depending on what the you know, various footage shows, but
Speaker 1: also simply if there's a you know, political or vindictive
Speaker 1: prosecution pre trial motion brought. This would all be information
Speaker 1: that these defendants would be entitled to obtain and to
Speaker 1: use in their own defense, which is why normally we
Speaker 1: don't do this, you know, you especially don't do it
Speaker 1: with these types of individuals following along in the cars,
Speaker 1: because it opposes so many problems for the ultimate actual
Speaker 1: prosecution of the crimes.
Speaker 3: The FBI has allowed the media to do these sort
Speaker 3: of ride alongs. I mean, when I was in local news,
Speaker 3: I did ride alongs with police, but this was a
Speaker 3: multi camera shoot and the editing and the dramatic music
Speaker 3: make it seem more like a movie trailer.
Speaker 1: And there have been TV shows, you know, you think
Speaker 1: of the infamous show Cops that's been around forever. Those
Speaker 1: shows did have some kind of media embedded within it,
Speaker 1: but there were very strict protocols and procedures. There were
Speaker 1: waivers that had to be signed by anybody whose identity
Speaker 1: was shown, anybody whose information was made public, and of
Speaker 1: course that footage always then had to be made available
Speaker 1: to those defendants when they went to trial. And so
Speaker 1: this is why there were always those limitations foot of place,
Speaker 1: because while it makes for great TV, while it looked
Speaker 1: cool on social media with the hype music and the
Speaker 1: you know, the raw rag machismo that the White House
Speaker 1: is doing, that doesn't necessarily mean it's going to be
Speaker 1: helpful when it comes to actual trial. And that's what
Speaker 1: we're waiting to see is does this backfire from a
Speaker 1: legal standpoint by undercutting law enforcement's ability to actually prosecute
Speaker 1: successfully these criminals.
Speaker 3: And talk about overcharging. He's being charged with a felony
Speaker 3: of forcibly assaulting, resisting, or impeding a federal officer. A
Speaker 3: judge released him on his own recognisance, considering the felony
Speaker 3: charge excessive, and what DC jury would convict him of that.
Speaker 1: It'll be interesting to see one if that stuff gets
Speaker 1: reduced in pre trial motions, but two, even if somehow
Speaker 1: even one aspect of this does get to a jury,
Speaker 1: whether or not they can find a jury that would
Speaker 1: convict this guy based off that kind of evidence. It's
Speaker 1: laughable right now to assume that would happen, but it's
Speaker 1: entirely plausible. It's entirely possible that people would simply look
Speaker 1: at it from a strictly legal standpoint and saying, do
Speaker 1: I think this is a ridiculous case?
Speaker 6: Yes?
Speaker 1: Did his conduct meet the scope of the statutory provision?
Speaker 8: Yes?
Speaker 1: Okay, guilty. I don't foresee that whole case going through
Speaker 1: the end with the original charges. This is all a
Speaker 1: media spectacle right now. We're seeing the US attorney Piro
Speaker 1: having problem getting invitements from grand jury. I fully expect
Speaker 1: this to be just another case of that.
Speaker 3: His next court appearance is in September, so we'll see
Speaker 3: what happens. Thanks so much, Brad. That's Brad Moss of
Speaker 3: Mark Zaid. Let's turn now to a multimillion dollar pardon
Speaker 3: scheme that failed. The audacious plan crystallized over a lobster
Speaker 3: dinner in Puerto Rico, where a self styled MAGA connector
Speaker 3: says he and a child actor turned crypto enthusiast hatched
Speaker 3: an idea to secure a presidential pardon for bitcoin booster
Speaker 3: Roger Ver, also known as Bitcoin Jesus, and in the
Speaker 3: process make millions for themselves, specifically thirty million. Joining me
Speaker 3: is Bloomberg Legal reporter Ava Benny Morrison Ava. They only
Speaker 3: had tenuous ties to Ver, why did they decide to
Speaker 3: try to get him a pardon.
Speaker 7: There's been a lot of enthusiasm around the clemency process
Speaker 7: since President Trump took office in January. He has certainly
Speaker 7: approached his clemency powers with more vigor than some of
Speaker 7: his predecessors, and that's instilled a lot of hope in
Speaker 7: people who want to try and get their case in
Speaker 7: front of the White House for relief. So in this situation,
Speaker 7: Roger Ver, who is an early investor in bitcoin and
Speaker 7: he is currently under indictment for tax evation in California,
Speaker 7: he was very vocal about wanting a pardon, and he
Speaker 7: had been on social media and sitting down for interviews
Speaker 7: with conservative commentators talking about his battle with US authorities
Speaker 7: and making a direct appeal in some situations to Trump
Speaker 7: to give him a pardon. Matt Argyll, a businessman from Florida,
Speaker 7: and Brock Pierce, who is also a pretty well known
Speaker 7: figure in the cryptosphere, knew about this and approached him
Speaker 7: and offered to lobby for his cause. So Matt Argall
Speaker 7: in particular was pretty key in a number of these
Speaker 7: conversations that took place earlier this year and offered to
Speaker 7: assemble a group of Washington insiders who could Take's best
Speaker 7: case to the White House and try and get.
Speaker 5: Him a pardon.
Speaker 3: A thirty million dollar fee seems a bit high.
Speaker 7: While a number of these pardon plans have been popping
Speaker 7: up over the past few months, this one stuck out
Speaker 7: because of the fee that was attached to it. The
Speaker 7: conversations were about Roger handing over thirty million dollars to
Speaker 7: these people to try and get him a pardon, which
Speaker 7: is astronomical. You know, I've reported on a number of
Speaker 7: these different proposals and fees flying around to lawyers and
Speaker 7: consultants and lobbyists, but thirty million dollars is certainly the
Speaker 7: highest amount i'd heard.
Speaker 3: What kind of fees do you normally hear about.
Speaker 7: It differs across the board. I have heard that some
Speaker 7: lawyers have been quoting a million dollars as a base
Speaker 7: level to prepare an application and to speak to the
Speaker 7: right people in Washington to try and get their client
Speaker 7: case heard. But then someone suggested there was a finders fee,
Speaker 7: so quoting five thousand dollars to put someone in touch
Speaker 7: with someone else. For other people, lawyers have quoted tens
Speaker 7: of thousands of dollars to put the paperwork together. So
Speaker 7: it really varies. But this is a real evolution of
Speaker 7: this clemency space. I think the clemency space historically has
Speaker 7: largely been populated by pro bono advocates, so lawyers and
Speaker 7: academics offering to lobby for people who have been in
Speaker 7: prison for a very long time or particularly harsh sentences,
Speaker 7: maybe during the cocaine epidemic, but only now we're really
Speaker 7: starting to see these massive fees attached to this kind
Speaker 7: of work.
Speaker 3: So what happened after you got their pitch? So what
Speaker 3: happened after Verra got their pitch?
Speaker 7: So there were a number of conversations held earlier this
Speaker 7: year between Roger Vert and Matt Argyll, Rock Pierce and
Speaker 7: some other characters who are quite well known in conservatives
Speaker 7: and have very good track records at helping people get clemency.
Speaker 7: So those conversations went into what a path to a
Speaker 7: White House pardon might look like, and also reiterated this
Speaker 7: thirty million dollar fee structure again and again. But those
Speaker 7: conversations seem to have fizzled out. In March, I got
Speaker 7: my hands on an email that showed that the had
Speaker 7: just stopped replying to text messages and calls and voice
Speaker 7: notes from some of the people that were involved in
Speaker 7: these pardon conversations.
Speaker 3: And no money actually changed hands. Now you spoke with Oragle,
Speaker 3: what was his explanation for this scheme?
Speaker 7: I found him to be quite upfront and forthcoming about
Speaker 7: his role in these conversations and how it all came together.
Speaker 7: He told me that he had traveled to Washington on
Speaker 7: a number of occasions to kind of lay the groundwork,
Speaker 7: and you know, he introduced a well known Washington lawyer
Speaker 7: to Roger Vert to discuss a potential pardon plan. And
Speaker 7: I asked him about the thirty million dollar fee. The
Speaker 7: way that he and Brock had come up with that
Speaker 7: fee was they estimated Roger Ver was worth ten to
Speaker 7: twenty billion. That's not an amount that we've been able
Speaker 7: to confirm, but in Matt's justification, twenty million dollars seemed
Speaker 7: like a drop in the ocean for someone like that,
Speaker 7: especially when your freedom's on the line.
Speaker 3: Really fascinating story. Eva, thanks so much. That's Bloomberg Legal
Speaker 3: Reporter Eva Benni Morrison, and that's it for this edition
Speaker 3: of The Bloomberg Law Show. Remember you can always get
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