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

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Speaker 2: We're in the business of complying with federal court decisions,

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Speaker 2: and when they told us that we needed to draw

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Speaker 2: a second majority black district, that's what we did.

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Speaker 3: That's how Louisiana Solicitor General Ben Aguinyaga summed up his

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Speaker 3: state's position in the challenge to its congressional map at

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Speaker 3: the Supreme Court. It's a case that involves the interplay

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Speaker 3: between race and politics in drawing political boundaries, and the

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Speaker 3: oral argument signaled a deep divide over the use of

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Speaker 3: race in redistricting. At issue is the map drawn by

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Speaker 3: Republicans to simultaneously create a new majority black district as

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Speaker 3: required by a court order and protect incumbent Republicans, including

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Speaker 3: House Speaker Mike Johnson, and the justices seemed divided over

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Speaker 3: the question of whether race was the predominant factor driving

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Speaker 3: the new map. Chief Justice John Roberts called the new

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Speaker 3: district a snake that runs from one end of the

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Speaker 3: state to the other.

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Speaker 2: And you think the drawing of this district was not

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Speaker 2: predominantly based on race. I think that it runs from

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Speaker 2: one side of the state angling up to the other

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Speaker 2: picking up popular black populations as it goes along.

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Speaker 3: But the three liberal justices suggested the district shape was

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Speaker 3: a product of politics, something the Court has previously said

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Speaker 3: is a permissible factor. Here's Justice Katanji Brown Jackson.

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Speaker 4: Is the reason why we're looking at a snake like

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Speaker 4: map rather than the compact map is because of political considerations.

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Speaker 2: Politics is the only reason that the state shows that

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Speaker 2: map over the compact maps.

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Speaker 3: Joining me is elections law expert Richard Brefalt, a professor

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Speaker 3: at Columbia Law School. Rich explained the issue before the justices.

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Speaker 1: This is a very strange and unusual case. In order

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Speaker 1: to discuss the issue, you actually have to go back

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Speaker 1: to a prior case. And so a couple of years ago,

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Speaker 1: lawsuit was brought in Louisiana by black voters claiming that

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Speaker 1: the congressional map in Louisiana discriminated against black voters because

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Speaker 1: they were underrepresented, that it had a discriminatory effect. Louisiana

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Speaker 1: is something like one third black. The state has six

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Speaker 1: congressional districts, but only one of them had a black majority.

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Speaker 1: The plaintiffs said it was relatively easy to create a

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Speaker 1: compact district that followed traditional districting patterns in part of

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Speaker 1: the state that would create a second black majority district.

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Speaker 1: They went to court and they won. They won a

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Speaker 1: preliminary injunction. It was a five day trial, lots of exhibits,

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Speaker 1: lots of witnesses. They wanted a district court, and that

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Speaker 1: was subsequently affirmed by the Fifth Secret Court of Appeals,

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Speaker 1: which is itself a pretty conservative court. The question happens

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Speaker 1: what to do next, how to redraw the map. The

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Speaker 1: plaintiffs had a map that they liked which would have

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Speaker 1: created that second black majority district, but the usual rules

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Speaker 1: to allow the legislature to crack at it and to

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Speaker 1: see if they can do it in time. Otherwise a

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Speaker 1: court will create a map. So this went to the

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Speaker 1: Louisiana legislature and the governor said, we need to do

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Speaker 1: a map. We would have liked to fight this case more,

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Speaker 1: but we've already lost twice in the district court, in

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Speaker 1: the Court if Appeals. We need to write our own

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Speaker 1: map rather than having a court impostmon on us. When

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Speaker 1: the legislatures sat down to draw a map, though, they

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Speaker 1: had a problem because it's a Republican majority legislature, Republican

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Speaker 1: governor Publican delegation and several of the Republican members of Congress,

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Speaker 1: and Louisiana are very powerful, including the Speaker of the House,

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Speaker 1: the majority leader, and somebody else they really liked, and

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Speaker 1: so they decided the legislature in Louisiana that they would

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Speaker 1: sacrifice one Republican district, but not the district that made

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Speaker 1: sense in terms of the plaintiff's original lawsuit seeking a

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Speaker 1: black majority district. They kind of cobbled together a new

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Speaker 1: district that stretched across the state and got rid of

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Speaker 1: a different white Republican congressman in order to preserve the

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Speaker 1: districts of the Speaker, the majority leader, and a member

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Speaker 1: of Congress who they favored. So this news district is

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Speaker 1: a black majority district that comes out of this lawsuit. Now,

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Speaker 1: some white plaintiffs have sued claiming that this district is

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Speaker 1: unconstitutional because it's unconstitutionally race based, that is a racial gerrymander,

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Speaker 1: that the decision to draw this district was primarily based

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Speaker 1: on race, and the Supreme Court has for some time

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Speaker 1: said that that's unconstitutional. The state is defending it, as

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Speaker 1: are the original plaintiffs, the black voters, on the grounds

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Speaker 1: that no it's not racially predominant. It's really politically predominant.

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Speaker 1: The reason this district has this odd shape is not

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Speaker 1: really because of race, but because the legislature wanted to

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Speaker 1: basically protect Republican incumbents, and a different lower court than

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Speaker 1: the one that heard the original case said, no, this

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Speaker 1: is racial predominance. The only reason this district exists is

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Speaker 1: to create a black majority district. And that's the argument

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Speaker 1: before the Supreme Court, and it's a kind of an

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Speaker 1: odd one. Supreme Court has said in the past that

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Speaker 1: if something is drawn primarily to the basis of race

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Speaker 1: and there's no other justification for it, then it may

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Speaker 1: be constitutional the ncal protection clause. But if it's done

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Speaker 1: primarily for party, that's parties in germymandering, and you can

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Speaker 1: challenge that. And the question of whether something is based

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Speaker 1: on race or on party has really been before the

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Speaker 1: Court several times. But that's kind of what they have

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Speaker 1: to decide here. Is this district primarily based on partisanship

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Speaker 1: because that's why the legislature drew it the way they

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Speaker 1: did it, Or is it based on race because they

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Speaker 1: wouldn't have been drawing a new district at all but

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Speaker 1: for the earlier judgment that Louisiana needed a second black

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Speaker 1: majority district.

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Speaker 3: What use of race in drawing maps is permissible?

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Speaker 1: You can use it in the remedial sense. I mean,

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Speaker 1: obviously you couldn't remedy Voting Rights Act violations unless you

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Speaker 1: took race into account in drawing the remedy. But the

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Speaker 1: question is sort of when does race too much? That's

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Speaker 1: that's where the Court has settled out over the less

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Speaker 1: several decades. You can't ignore race, and sometimes you have

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Speaker 1: to take race into account. But if you give race

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Speaker 1: too much attention they use the notion of predominance, then

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Speaker 1: unless it's just a by something else like the Voting

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Speaker 1: Rights Act, then it violates ecal protection clause.

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Speaker 3: There's a tension between the Court's precedent in those two areas.

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Speaker 1: In a sense, I mean, the Court has said you

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Speaker 1: can use race, you just can't use it too much.

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Speaker 1: The justification for using race is to remedy another violation,

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Speaker 1: like a Voting Rights Act violation. If a court concludes

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Speaker 1: that the state's distresting pattern discriminates the based on race

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Speaker 1: or has a racially disparate impact, which is what happened

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Speaker 1: in this case, then redistricting is based on some attention

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Speaker 1: to race. The concern in the plaintiff's claim. In this case,

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Speaker 1: the white plaintiffs are the district that they true kind

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Speaker 1: of stretches across the state, and what it does is

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Speaker 1: it picks up pockets of black population in different parts

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Speaker 1: of the state to create a black majority district, and

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Speaker 1: that makes it look like a racial gerrymander. The state's defense,

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Speaker 1: as well as the defense by the original voting rights plaintiffs,

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Speaker 1: is well, the reason that stretches across the state is

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Speaker 1: really for partisan purposes, because we didn't want to put

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Speaker 1: it in the area that the black plaintiffs originally wanted

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Speaker 1: because that would have gotten rid of an incumbent that

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Speaker 1: we like. So we did it this way to get

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Speaker 1: rid of an incumbent we didn't care about so much.

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Speaker 1: And the voting rights plaintiffs also point out that much

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Speaker 1: of the district does include much of the district that

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Speaker 1: they had originally proposed, but it is true it is

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Speaker 1: the kind of district that does stretch across the state

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Speaker 1: in a way that has often drawn criticism.

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Speaker 3: Did you hear a divide between the conservative justices and

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Speaker 3: the liberal justices on the use of race in this case.

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Speaker 1: Well, I think the conservative justices, who I think were yes,

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Speaker 1: they are troubled by it. I think they were slightly

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Speaker 1: frustrated by the fact that the state, to the Louisiana

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Speaker 1: Conservative Republican lad state, is defending the map, and the

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Speaker 1: state basically kept making the point the reason we did

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Speaker 1: this is because we had a judgment against us, and

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Speaker 1: I think some of the conservatives maybe kind of wondered,

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Speaker 1: you know, maybe you should have challenged that, do you

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Speaker 1: agree with that judgment against you? And of course the

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Speaker 1: state's position is no, we don't agree with the judgment

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Speaker 1: against us, but we lost twice and we didn't want

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Speaker 1: the courts to impose a map on us. So I

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Speaker 1: think the Conservatives were somewhat frustrated in this case because

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Speaker 1: they're not directly reviewing the original lower court case that

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Speaker 1: said Louisiana violated the Voting Rights Act. They never took

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Speaker 1: that case. What they're reviewing is the state's remedy, in which,

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Speaker 1: although it's clear that race plays an important role in

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Speaker 1: their redoing the map altogether, I think the states argument

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Speaker 1: was that this particular configuration reflects our political judgment that

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Speaker 1: if we had to sacrifice one white Republican congressman. We

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Speaker 1: chose Congressman X and not Congresswoman Y.

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Speaker 3: There's been a lot of talk lately about the standoff

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Speaker 3: between the Trump administration and the courts and the question

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Speaker 3: of whether the Trump administration is actually following complying with

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Speaker 3: court orders. Did you see subtle references to that during

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Speaker 3: the oral arguments? You had the Louisiana Solicitor General saying right,

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Speaker 3: we're in the business of complying with federal court decisions,

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Speaker 3: and Justice Jackson clarifying with him later that the court

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Speaker 3: order was the reason why Louisiana drew up the map,

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Speaker 3: and it didn't matter whether the order was right or wrong.

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Speaker 4: There's no dispute that the court's order was the reason

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Speaker 4: that Louisiana did this.

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Speaker 2: Did the new map right? Mister Grime can correct me

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Speaker 2: for wrong, but I don't think so, Your honor.

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Speaker 4: And the question is whether or not the fact that

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Speaker 4: you had a court order was good enough reason for

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Speaker 4: you to do it. Is that what you understand the

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Speaker 4: basic question.

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Speaker 2: To be that's correct, not just one order but two

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Speaker 2: layers of orders.

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Speaker 4: Yes, Your Honor, and I guess I'm still a little

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Speaker 4: confused as to why it matters whether the court order

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Speaker 4: was right or not. You were still being compelled by

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Speaker 4: the court to do what you did in this case.

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Speaker 2: Correct, that's correct, Justice Jackson.

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Speaker 1: That was my impression as well that the Slicter General

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Speaker 1: was being very good about saying, we follow court orders.

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Speaker 1: We lost once, we took an appeal, and then we

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Speaker 1: follow the court orders. And some of the justices were

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Speaker 1: pressing him, well, what if it was completely wrong? You know,

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Speaker 1: would you follow it if it was completely wrong, and

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Speaker 1: he was saying, you know, we're not going to get

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Speaker 1: in the judgment of deciding whether it's completely wrong. We

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Speaker 1: didn't like it. We defended our position, we thought we

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Speaker 1: were right, we took an appeal, we thought we right

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Speaker 1: an appeal, we lost the appeal, and I think our

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Speaker 1: solution was, instead of keeping fighting, we want to be

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Speaker 1: able to control our own map.

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Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 3: this conversation with Columbia Law School professor Richard Breflt. We'll

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Speaker 3: take a look at how the justices might rule. I'm

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Speaker 3: June Grosso. When you're listening to Bloomberg, the Supreme Court

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Speaker 3: justices displayed a deep divide over the use of race

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Speaker 3: and redistricting in a case involving Louisiana's congressional map that

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Speaker 3: created a second majority black voting district. At issue is

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Speaker 3: the new district drawn by Republicans, which runs a jagged

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Speaker 3: course over two hundred and fifty miles from Shreveport to

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Speaker 3: Baton Rouge. Louisiana Solicitor General Ben Aguinyaga said the state

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Speaker 3: was simply abiding by a court decision and was entitled

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Speaker 3: to flexibility in doing so as it tried to ward

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Speaker 3: off the prospect of a court imposed map. His arguments

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Speaker 3: seemed to resonate with much of the Court, including Justice

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Speaker 3: Amy Coney Barrett.

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Speaker 5: I mean, is it also because of the position that

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Speaker 5: it puts the state in here? I mean, it's not

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Speaker 5: just a matter of your obedience to the federal court order,

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Speaker 5: which I appreciate. You know you would be obedient to

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Speaker 5: the federal court order. But it's also that if you

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Speaker 5: had continued to litigate the Robinson, if you had continued

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Speaker 5: to litigate in Robinson, you risked having the court imposed map.

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Speaker 5: And so it's really litigation risk that's part of the

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Speaker 5: calculus here.

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Speaker 3: I've been talking to Professor Richard Rfald of Columbia Law School, Rich,

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Speaker 3: do you have any inkling for what the Court might

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Speaker 3: do here?

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Speaker 1: Well, first off, never predict the Supreme Court, but I

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Speaker 1: think there seemed to be enough understanding of this by

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Speaker 1: at least some of the justices that you might say

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Speaker 1: that justice is in the middle, like Cavanaugh and Barrett,

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Speaker 1: of the tight squeeze that the state was in, and

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Speaker 1: the idea that the state should have some space, some

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Speaker 1: discretion to accommodate a court and also to accommodate its

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Speaker 1: own political preferences. I mean, of course a Gelito and

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Speaker 1: Thomas were clearly very unhappy with this map. Robert said

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Speaker 1: very little as far as I could tell, and I

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Speaker 1: think maybe I'm overreading it, and you never know with them,

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Speaker 1: but I think there was some sympathy I think I

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Speaker 1: saw in Barrett and Cavanaugh for the situation that the

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Speaker 1: state was in. You have the impression from the very

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Speaker 1: conservative justices and even from some of the justices in

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Speaker 1: the middle, that they may be looking to rethink the

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Speaker 1: Voting Rights Act and rethink how much attention race should

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Speaker 1: be given in districting. But my impression is at least

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Speaker 1: for some of the justices may be realizing that this

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Speaker 1: is not the vehicle for that because given the state's

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Speaker 1: defenses so heavily based on partisan considerations, which I think

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Speaker 1: they were pretty good at showing were real and not pretend.

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Speaker 3: Just tell us a little bit about how the Supreme

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Speaker 3: Court has sort of been chipping away at the power

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Speaker 3: of the Voting Rights Act.

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Speaker 1: Well, I mean candidly. The one case that's most relevant

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Speaker 1: is the case that they didn't the Alabama redistrict in

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Speaker 1: case Milligan, which was decided two years ago, and this

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Speaker 1: case follows immediately on it, whereby a five to four vote,

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Speaker 1: they actually upheld a lower court judgment that the Alabama

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Speaker 1: congressional district being planned had a racially disparate impact and

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Speaker 1: that it denied fair representation to black voters in Alabama

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Speaker 1: and required the creation of a second black majority district

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Speaker 1: in Alabama. It was that case that I think the

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Speaker 1: lower courts relied on in the earlier version the first

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Speaker 1: round of this case to find that Louisiana was in

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Speaker 1: violation of the Voting Right Sect and maybe why the

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Speaker 1: US Supreme Court didn't take the Louisiana cases. They had

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Speaker 1: just decided the Alabama case that was a five to

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Speaker 1: four case and It was a bit of a surprise

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Speaker 1: because they previously issued a stay against the lower court

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Speaker 1: order in that case, so that he allowed the old

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Speaker 1: map to be used one more election. So I think,

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Speaker 1: you know it's in other areas. The Court has certainly

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Speaker 1: cut back. They have made it now almost impossible for

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Speaker 1: plaintiffs to bring voting rightsack claims, challenging various mechanisms like

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Speaker 1: voter ID and issues that make it harder for people

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Speaker 1: with a claim. Is that certain you know, voter registration

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Speaker 1: and voter ID rules that just spread impact on black

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Speaker 1: or other minority voters that to court in the case

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Speaker 1: called Bernovich some years ago threw that out. Now more

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Speaker 1: than ten years ago, they got rid of Section five,

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Speaker 1: which was the preclearance requirement, which was probably the most

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Speaker 1: importan short and piece of the Voting Rights Act, requiring

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Speaker 1: certain states which had a very bad track record of

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Speaker 1: racial discrimination to get their voting law changes preclued by

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Speaker 1: the Department of Justice. Now about ten years ago, and

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Speaker 1: they've been sending signals at least a number of justices

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Speaker 1: that they are troubled by the reader which the Voting

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Speaker 1: Rights Act is being used to challenge voting laws, voting

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Speaker 1: rules and things like districting plans. But right now, the

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Speaker 1: most recent case, that Alabama case, is one where they

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Speaker 1: actually are continuing to enforce it. Some people are seeing

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Speaker 1: this as another challenge. I think if the Court is

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Speaker 1: going to start cutting back on the role of Section

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Speaker 1: two of the Voting Rights Act in challenging districting plans,

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Speaker 1: I'll go out on a limb and say this is

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Speaker 1: probably not the case, but you could imagine it happening

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Speaker 1: in the not too distant future.

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Speaker 3: I mean, you were surprised by that Alabama case. I

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Speaker 3: was stunned, and I'm wondering if it's an exception rather

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Speaker 3: than the rule, because it sort of stood out right.

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Speaker 1: But this case is an immediate follow on, and it's

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Speaker 1: not even this case. It's the case that this case

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Speaker 1: builds on. The thing is this case is not a

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Speaker 1: direct review of that case. In some ways, it is

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Speaker 1: arguably an indirect review of that case. But the Louisiana

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Speaker 1: case basically saying that Louisiana needs to create a second

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Speaker 1: black majority district was very, very similar to the Alabama case.

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Speaker 1: So it would be a real stretch, I think, to

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Speaker 1: say that the district is racially predominant when the state

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Speaker 1: was acting because of a court order, and the factors

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Speaker 1: that led to this particular district design were clearly political,

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Speaker 1: or at least to some degree political. I mean, there

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Speaker 1: was an interesting bit of a dialogue between Justice Cavanon

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Speaker 1: one of the advocates about, you know, how do you

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Speaker 1: decide whether something is racially predominant or politically predominant? Is

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Speaker 1: it fifty to fifty? Is a sixty forty is a

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Speaker 1: seventy thirty? And this Lister General for Louisiana saying we

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Speaker 1: think this is about seventy percent political, and that if

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Speaker 1: it's in the sixty eighty percent political aught to be

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Speaker 1: seen as politically predominant and not racially predominant. There was

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Speaker 1: an interesting effort how do they decide?

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Speaker 3: Let's listen to part of that exchange.

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Speaker 6: So the rule I think you one is political considerations

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Speaker 6: are fine to take into account and doing the map

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Speaker 6: the second map in fifties kind of floor on that.

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Speaker 2: I think. So, I mean, this court has never spelled

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Speaker 2: out what substantially addresses means as a numerical matter, and

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Speaker 2: to my mind, if I'm between sixteen and eighty percent,

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Speaker 2: I think that's substantial. But obviously a judgment call for.

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Speaker 1: This court, and it struck me that the Social General

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Speaker 1: Louisiana did a very good job of basically saying, all

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Speaker 1: we're doing is trying to abide by a court order

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Speaker 1: in a way that satisfies our internal political needs.

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Speaker 3: In light of that, would their decision have any impact

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Speaker 3: on future cases.

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Speaker 1: Since it's not a direct review of that Louisiana case,

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Speaker 1: I don't know. I mean, I think in some ways

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Speaker 1: it ratifies the idea that it's consistent with the earlier

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Speaker 1: the Routsho case, which is that partisan jury maner is

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Speaker 1: just fine. It follows on that. I mean, in some

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Speaker 1: ways this is an odd partisan jury manner because it

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Speaker 1: wasn't Republican on democratic, Republican on Republican one way or

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Speaker 1: the other. A republican district was going to go. But

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Speaker 1: so you could maybe instead of saying partisan jury manner,

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Speaker 1: you're called political gerrymandering. But this is clearly a case

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Speaker 1: where political forces were very important and leading to in

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Speaker 1: somewhat oddly shaped district. I mean, the trick in the

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Speaker 1: case is presumably if the plaintiffs have come forward with

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Speaker 1: this district, they may very well have lost, because this

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Speaker 1: is not the kind of compact district that respects political

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Speaker 1: subdivision or you know, local community lines that the court likes,

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Speaker 1: but the plaintiffs didn't come forward with this district. The

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Speaker 1: oddity of this case is the plaintiffs were able to

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Speaker 1: show the district court in the first case that you

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Speaker 1: could create a very straight, very compact district that respected

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Speaker 1: community lines and subdivision lines better than the state's original

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Speaker 1: plan and create that as a black majority district. That

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Speaker 1: persuaded the district court. But then when the state went

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Speaker 1: and okay to do the remedy, they came up with

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Speaker 1: a completely different district. Now that's not the plaintiff's fault.

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Speaker 1: The plaintiffs are still defending what they did because they say, well,

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Speaker 1: we still get a lot in this It's still seventy

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Speaker 1: percent of our original district is in this district, but

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Speaker 1: you know, it's not the one that the plaintiffs had

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Speaker 1: asked for.

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Speaker 3: And will the court's decision here have any effect on

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Speaker 3: the congressional map in the midterms.

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Speaker 1: Well, I think this district is already in place, so

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Speaker 1: in some ways, the Democrats picked up one seat in

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Speaker 1: Louisiana because I think this map was used in twenty

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Speaker 1: twenty four so if it's reversed, then there's a likely

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Speaker 1: Republican pickup of one in Louisiana depends. But so I

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Speaker 1: think it's already had a one seat partisan effect, as

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Speaker 1: the Alabama redistricting did.

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Speaker 3: So the federal government. Where did the Trump administration stand

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Speaker 3: on this?

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Speaker 1: They remove themselves from it. Your Biden administration was defending

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Speaker 1: the map. The Trump administration, I think, in the end,

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Speaker 1: didn't take a position.

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Speaker 3: I have to say this is a very confusing, perhaps

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Speaker 3: because of the complex procedural history, perhaps because the state

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Speaker 3: seems to be in an odd position.

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Speaker 1: This is a very odd case, and so I think

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Speaker 1: this is one that may not have a lot of law.

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Speaker 1: I mean, well, if the lower court is reversed and

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Speaker 1: the state's map is sustained, because what happened in this

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Speaker 1: case is the lower court in the second set of

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Speaker 1: litigation said no, this map is an unconstitutional racial jerry manner.

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Speaker 1: If the lower court is reversed, then I don't think

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Speaker 1: there'll be much a significance. The lower court is sustained,

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Speaker 1: then I think it's going to be very weird, because

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Speaker 1: then it means that at anytime racist the factor at

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Speaker 1: all becomes a problem, and so it's again almost impossible

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Speaker 1: to read the Supreme Corporate but at least based on

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Speaker 1: the way the questioning went by, at least by Barrett

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Speaker 1: and maybe Kavanaugh, they seem to sort of realize that

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Speaker 1: the state was between a rock and a hard place

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Speaker 1: and they might be inclined to just leave it alone.

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Speaker 3: And the Solicitor General was really strong and pointed out

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Speaker 3: over and over again that Louisiana was complying with the

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Speaker 3: court order.

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Speaker 1: You know, if the state had just created this district

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Speaker 1: to create a black majority district, they would be Shawvy

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Speaker 1: Rain and it would be thrown out. But you know,

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Speaker 1: they did it because a court forced them to create

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Speaker 1: a district, not just the Department of Justice, which was

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Speaker 1: going on in shawl which was because then it was

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Speaker 1: a preclearance, but a court said you have to create

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Speaker 1: a district, but we're going to let you decide where

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Speaker 1: it is. And it's it's so hard to say that

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Speaker 1: this was more race than party or more race than politics.

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Speaker 1: They should say politics, and the court has said politics

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Speaker 1: can be a factor, and they threw out the challenges

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Speaker 1: to parties and jerrymandering.

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Speaker 3: So as in so many other cases, it seems like

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Speaker 3: the decision will depend on the justice is in the middle.

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Speaker 3: Thanks so much, rich that's Professor Richard Rfault of Columbia

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Speaker 3: Law School. The Trump administration is escalating the legal battle

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Speaker 3: over the deportation of alleged Venezuelan gang members. The government

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Speaker 3: is refusing to hand over flight data requested by federal

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Speaker 3: Judge James Boseberg, now citing state secrets and national secure risks.

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Speaker 3: At the same time, a three judge appellate panel is

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Speaker 3: weighing whether to continue blocking Trump's invocation of the Alien

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Speaker 3: Enemies Act to fly the reputed gang members to a

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Speaker 3: Salvadorian prison. Joining me Is Bloomberg legal reporter David Voriakis.

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Speaker 3: For ten days, Judge Bosburg has been trying to get

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Speaker 3: this information about the two flights, and now the Trump

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Speaker 3: administration is refusing to hand it over because of national

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Speaker 3: security reasons state secrets.

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Speaker 7: The Justice Department says that by handing over the information

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Speaker 7: that Judge Bosburg is seeking on these two flights to

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Speaker 7: Venezuela in March fifteenth, that that would compromise national security

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Speaker 7: and foreign policy, and in a filing late Monday night,

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Speaker 7: they said essentially that they are exercising the state secrets privilege,

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Speaker 7: and they would not give the information to Judge Bosburg

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Speaker 7: even under seal or in his chambers.

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Speaker 3: Judge Boseburg was formerly the presiding judge of the National

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Speaker 3: Security Surveillance Court, so he's been there before.

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Speaker 7: He has a lot of experience in handling national security secrets,

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Speaker 7: and he knows what he's doing. So he actually in

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Speaker 7: an earlier filing said, are you going to invoke the

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Speaker 7: state's secrets privilege? And if so, police state the reason why,

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00:23:24,040 --> 00:23:26,560
Speaker 7: which is essentially what the government did last night.

439
00:23:27,240 --> 00:23:30,240
Speaker 3: Just to be clear, these are flights that have taken

440
00:23:30,280 --> 00:23:34,280
Speaker 3: off and landed, and there has been reporting by a

441
00:23:34,320 --> 00:23:38,880
Speaker 3: couple of news organizations tracking down what times they actually

442
00:23:38,960 --> 00:23:40,800
Speaker 3: took off and landed, right, But.

443
00:23:40,800 --> 00:23:45,040
Speaker 7: The judge actually wants the government to state it to

444
00:23:45,280 --> 00:23:49,000
Speaker 7: him directly. When did the flights leave, where did they

445
00:23:49,119 --> 00:23:53,120
Speaker 7: leave from, where did they land, how many people were aboard?

446
00:23:53,600 --> 00:23:57,560
Speaker 7: Seems like pretty basic information. But the government's position that

447
00:23:57,960 --> 00:24:01,840
Speaker 7: is that if they were to disclae that, even under

448
00:24:01,920 --> 00:24:06,719
Speaker 7: seal to the judge, that it would reveal secrets that would,

449
00:24:07,040 --> 00:24:13,320
Speaker 7: as they say, directly compromise the safety of American officers, contractors, aliens,

450
00:24:13,320 --> 00:24:15,959
Speaker 7: and the American public on the one hand, and on

451
00:24:16,000 --> 00:24:19,879
Speaker 7: the other that it would reveal non public, sensitive and

452
00:24:20,000 --> 00:24:23,200
Speaker 7: high stakes negotiations with foreign governments.

453
00:24:23,359 --> 00:24:27,200
Speaker 3: It would also reveal whether or not they disobeyed his order.

454
00:24:27,320 --> 00:24:29,640
Speaker 3: I mean, that's what he's looking for here. When did

455
00:24:29,640 --> 00:24:32,600
Speaker 3: they leave? Was it after I gave the oral order?

456
00:24:33,000 --> 00:24:34,440
Speaker 3: Was it after I gave the written order?

457
00:24:35,040 --> 00:24:40,040
Speaker 7: Correct? Just to be clear. On Saturday afternoon of March fifteenth,

458
00:24:40,119 --> 00:24:45,360
Speaker 7: he had a hearing in which he directed the government

459
00:24:45,560 --> 00:24:48,399
Speaker 7: to make sure that any planes that were in the

460
00:24:48,480 --> 00:24:52,520
Speaker 7: air had to turn around and return to the United States.

461
00:24:52,960 --> 00:24:57,320
Speaker 7: He did that orally, and maybe a half hour later

462
00:24:57,880 --> 00:25:02,359
Speaker 7: he issued a written order that did not include that directive.

463
00:25:02,520 --> 00:25:05,280
Speaker 7: And the government's taken the position while it wasn't in

464
00:25:05,320 --> 00:25:08,439
Speaker 7: the written order, So we don't need to obey that,

465
00:25:08,920 --> 00:25:11,960
Speaker 7: and we would only follow what's in the written order,

466
00:25:12,080 --> 00:25:13,359
Speaker 7: not your oral order.

467
00:25:13,880 --> 00:25:17,399
Speaker 3: He has said that he wants the Venezuelan plaintiffs to

468
00:25:17,520 --> 00:25:19,200
Speaker 3: be able to have due process.

469
00:25:19,440 --> 00:25:22,639
Speaker 7: Correct. I don't think that he believes he has jurisdiction

470
00:25:22,880 --> 00:25:26,439
Speaker 7: over the people who already have been flown to El Salvador.

471
00:25:26,920 --> 00:25:30,280
Speaker 7: But there's something like two hundred and fifty other people

472
00:25:30,680 --> 00:25:36,119
Speaker 7: who are potentially subject to the Trump proclamation that says

473
00:25:36,160 --> 00:25:40,560
Speaker 7: that if they're members of this Venezuelan gang, that they

474
00:25:40,560 --> 00:25:44,920
Speaker 7: are subject to immediate deportation under the Alien Enemies Act

475
00:25:44,960 --> 00:25:46,000
Speaker 7: of seventeen.

476
00:25:45,640 --> 00:25:48,880
Speaker 3: Ninety eight, and no one has yet ruled. No court

477
00:25:48,920 --> 00:25:53,840
Speaker 3: has yet ruled on whether Trump's invoking the Alien Enemies Act,

478
00:25:53,880 --> 00:25:56,720
Speaker 3: which has only been used three times always in wartime.

479
00:25:57,200 --> 00:26:00,320
Speaker 3: No court has actually ruled on whether that is legal

480
00:26:00,400 --> 00:26:00,639
Speaker 3: or not.

481
00:26:01,160 --> 00:26:03,760
Speaker 7: They have not ruled on the merits of the objection

482
00:26:03,920 --> 00:26:07,640
Speaker 7: to the use of the Alien Enemies Act in this context,

483
00:26:08,160 --> 00:26:11,399
Speaker 7: being that the United States has not declared war against

484
00:26:11,400 --> 00:26:15,480
Speaker 7: another nation, which is how it had been previously used

485
00:26:15,480 --> 00:26:17,000
Speaker 7: in US history.

486
00:26:17,280 --> 00:26:21,119
Speaker 3: So now let's turn to the next level of court,

487
00:26:21,200 --> 00:26:23,880
Speaker 3: which is the DC Appellate Court. There was an oral

488
00:26:24,000 --> 00:26:27,280
Speaker 3: argument there yesterday in this same case.

489
00:26:27,680 --> 00:26:31,840
Speaker 7: Well, the basics of the argument were, did Judge Bosburg

490
00:26:32,040 --> 00:26:37,880
Speaker 7: properly exercise his authority in putting a pause on this

491
00:26:38,359 --> 00:26:43,119
Speaker 7: order to deport these alleged Venezuelan gang members. There was

492
00:26:43,280 --> 00:26:48,399
Speaker 7: a Trump appointed judge who had serious problems with what

493
00:26:48,520 --> 00:26:52,280
Speaker 7: Judge Bosburg had done and believed that the case should

494
00:26:52,359 --> 00:26:57,000
Speaker 7: be moved to Texas so that individuals could litigate their

495
00:26:57,000 --> 00:27:00,160
Speaker 7: own case through what's known as a habeas corpus petition,

496
00:27:00,520 --> 00:27:04,920
Speaker 7: and there was a Democratic appointed judge who felt that

497
00:27:05,320 --> 00:27:09,560
Speaker 7: the government's position was quite deficient. There's a third judge

498
00:27:09,560 --> 00:27:12,520
Speaker 7: who did not express an opinion, and so it's a

499
00:27:12,560 --> 00:27:17,159
Speaker 7: three judge panel. It's hard to know at this moment

500
00:27:17,359 --> 00:27:20,640
Speaker 7: just how it will go, but it seems pretty clear

501
00:27:20,680 --> 00:27:23,040
Speaker 7: that this case is headed for the Supreme Court.

502
00:27:23,320 --> 00:27:27,200
Speaker 3: And so one of the judges, the Democratic appointee, Patricia Millett,

503
00:27:27,600 --> 00:27:30,919
Speaker 3: said that Nazis got better treatment under the Alien Enemies

504
00:27:30,920 --> 00:27:33,960
Speaker 3: Act or in World War Two than these Venezuelans because

505
00:27:33,960 --> 00:27:36,960
Speaker 3: they were deported without any due process right.

506
00:27:37,040 --> 00:27:41,159
Speaker 7: There was a procedure for deporting Nazis at that point.

507
00:27:41,200 --> 00:27:44,200
Speaker 7: There were panels that were set up in this case.

508
00:27:44,760 --> 00:27:50,520
Speaker 7: The Trump proclamation was publicly announced maybe an hour or

509
00:27:50,520 --> 00:27:53,840
Speaker 7: two before the planes took off. That's what it appears

510
00:27:53,840 --> 00:27:58,000
Speaker 7: from the available public evidence, and so they had no

511
00:27:58,200 --> 00:28:02,040
Speaker 7: real chance to challenge it. The litigation that we're talking

512
00:28:02,080 --> 00:28:07,480
Speaker 7: about arose because the ACLU and another group filed preemptively

513
00:28:07,600 --> 00:28:12,040
Speaker 7: because they had heard that Trump might invoke the Alien

514
00:28:12,160 --> 00:28:16,239
Speaker 7: Enemies Act and they wanted to foreclose the possibility that

515
00:28:16,240 --> 00:28:20,040
Speaker 7: it would be used against five plaintiffs, and in fact,

516
00:28:20,480 --> 00:28:26,080
Speaker 7: Judge Bosberg granted a temporary restraining order with respect to

517
00:28:26,160 --> 00:28:31,480
Speaker 7: those five plaintiffs, and then he granted class action certification

518
00:28:32,280 --> 00:28:36,800
Speaker 7: for everyone else who might be affected by that order.

519
00:28:37,160 --> 00:28:40,000
Speaker 3: All right, So let's turn down to a totally different topic,

520
00:28:40,280 --> 00:28:44,840
Speaker 3: the trial of Bob Menendez's wife. Is it basically the

521
00:28:44,880 --> 00:28:48,320
Speaker 3: same case, same witnesses, same evidence.

522
00:28:48,920 --> 00:28:54,240
Speaker 7: Nadine Menendez went on trial yesterday with opening statements in

523
00:28:54,400 --> 00:28:57,920
Speaker 7: federal court in New York. It's essentially the same case

524
00:28:57,960 --> 00:29:00,760
Speaker 7: that led to the conviction of her husband, the New

525
00:29:00,840 --> 00:29:03,480
Speaker 7: Jersey Democrat who used to be the powerful chairman of

526
00:29:03,560 --> 00:29:07,600
Speaker 7: the Senate Foreign Relations Committee. The case that the prosecutors

527
00:29:07,680 --> 00:29:11,520
Speaker 7: laid out in the roadmap for the jury was that

528
00:29:11,840 --> 00:29:16,120
Speaker 7: she acted as a go between between her husband and

529
00:29:16,560 --> 00:29:20,320
Speaker 7: three corrupt businessmen that were seeking favors as well as

530
00:29:20,360 --> 00:29:24,200
Speaker 7: the Egyptian government, and that in a raid on the

531
00:29:24,240 --> 00:29:27,280
Speaker 7: house that the couple shared in Englewood Cliffs, New Jersey,

532
00:29:27,840 --> 00:29:34,200
Speaker 7: the FBI found thirteen gold bars, a black Mercedes Benz convertible,

533
00:29:34,440 --> 00:29:37,800
Speaker 7: and more than four hundred thousand dollars in cash. Nearly

534
00:29:37,840 --> 00:29:38,680
Speaker 7: five hundred.

535
00:29:38,480 --> 00:29:41,920
Speaker 3: Thousand so Is the defense going to be that she

536
00:29:42,440 --> 00:29:46,520
Speaker 3: didn't know or intend to violate the laws?

537
00:29:46,880 --> 00:29:53,440
Speaker 7: Her defense attorney's opening statement was that essentially, she did

538
00:29:53,520 --> 00:29:57,440
Speaker 7: not have the knowledge and intent of the crimes that's

539
00:29:57,560 --> 00:30:02,479
Speaker 7: necessary to convict her of all the counts against her,

540
00:30:02,480 --> 00:30:07,960
Speaker 7: which includes bribery, conspiracy, fraud, extortion, and obstruction of justice.

541
00:30:08,160 --> 00:30:10,840
Speaker 3: So her husband blamed her. Is she going to blame

542
00:30:10,880 --> 00:30:11,480
Speaker 3: her husband.

543
00:30:11,760 --> 00:30:16,040
Speaker 7: That's not clear yet. But her husband essentially said at

544
00:30:16,080 --> 00:30:19,360
Speaker 7: trial that she received a lot of cash and gold

545
00:30:19,400 --> 00:30:23,920
Speaker 7: bars without his knowledge from these businessmen who she had

546
00:30:24,000 --> 00:30:26,800
Speaker 7: known a lot longer than he had, and so they

547
00:30:26,840 --> 00:30:31,120
Speaker 7: had a prior relationship and Bob was unaware of that

548
00:30:31,840 --> 00:30:35,400
Speaker 7: and became aware of that as time went on. And

549
00:30:35,600 --> 00:30:40,240
Speaker 7: Bob Menendez also argued that he was unaware of the

550
00:30:40,320 --> 00:30:45,000
Speaker 7: extent of her financial problems, which complicated her life and

551
00:30:45,600 --> 00:30:51,520
Speaker 7: led her to need a new Mercedes Benz and other considerations.

552
00:30:52,080 --> 00:30:57,760
Speaker 3: So Joseribe, who testified against Menandez, is going to testify

553
00:30:58,080 --> 00:30:58,680
Speaker 3: against her.

554
00:30:59,000 --> 00:31:03,440
Speaker 7: Uribe is going to testify. He is going to say,

555
00:31:03,480 --> 00:31:08,600
Speaker 7: I would expect that he gave Nadine Menendez fifteen thousand

556
00:31:08,680 --> 00:31:10,959
Speaker 7: dollars in cash in the parking lot of a New

557
00:31:11,040 --> 00:31:14,719
Speaker 7: Jersey restaurant so that she could buy a Mercedes Benz

558
00:31:14,920 --> 00:31:19,600
Speaker 7: and that he made monthly payments on the car for

559
00:31:19,760 --> 00:31:26,200
Speaker 7: something like three years. In exchange. The Senator made a

560
00:31:26,280 --> 00:31:30,080
Speaker 7: call and had a meeting with the Attorney General of

561
00:31:30,160 --> 00:31:34,040
Speaker 7: New Jersey at the time, trying to suggest that the

562
00:31:34,080 --> 00:31:38,280
Speaker 7: New Jersey Attorney General should drop the criminal investigation of

563
00:31:38,360 --> 00:31:40,400
Speaker 7: two people who were close to Uribe.

564
00:31:40,840 --> 00:31:42,920
Speaker 3: So just because he was convicted, it doesn't mean that

565
00:31:42,960 --> 00:31:43,800
Speaker 3: she'll be convicted.

566
00:31:44,160 --> 00:31:48,200
Speaker 7: Right, It's a conspiracy case, and now several of the

567
00:31:48,240 --> 00:31:51,840
Speaker 7: conspirators have been convicted three a trial and won by

568
00:31:51,880 --> 00:31:55,360
Speaker 7: guilty plea, But that doesn't necessarily mean that she's guilty.

569
00:31:55,480 --> 00:31:58,320
Speaker 7: The government's theory is that she was critical to the

570
00:31:58,360 --> 00:32:03,840
Speaker 7: conspiracy because she made key introductions between her first boyfriend

571
00:32:03,880 --> 00:32:09,720
Speaker 7: now husband, Bob Menendez, and the three people who bribed her,

572
00:32:10,240 --> 00:32:14,160
Speaker 7: and that she actually received the bribes.

573
00:32:14,600 --> 00:32:18,200
Speaker 3: Now, Bob Menendez at this point is angling for a

574
00:32:18,240 --> 00:32:19,760
Speaker 3: pardon from Trump.

575
00:32:20,080 --> 00:32:24,240
Speaker 7: We have reported that he is pursuing a pardon. He's

576
00:32:24,480 --> 00:32:29,400
Speaker 7: been a Democrat his entire career and has been quite

577
00:32:29,440 --> 00:32:33,280
Speaker 7: critical of Trump through much of his career. He has

578
00:32:33,440 --> 00:32:38,280
Speaker 7: started to echo some of Trump's language in his statements

579
00:32:38,440 --> 00:32:42,560
Speaker 7: about how he was the victim of a witch hunt

580
00:32:42,600 --> 00:32:47,800
Speaker 7: and prosecutors who went out of their way to persecute

581
00:32:47,920 --> 00:32:49,680
Speaker 7: him without good cause.

582
00:32:49,920 --> 00:32:52,600
Speaker 3: At this point, he's blaming the government for putting her

583
00:32:52,680 --> 00:32:56,840
Speaker 3: on trial when she's recovering from cancer.

584
00:32:57,360 --> 00:33:02,320
Speaker 7: She has had and is fighting breast cancer, and she

585
00:33:03,120 --> 00:33:07,560
Speaker 7: just recently had breast reconstructive surgery. She felt that the

586
00:33:07,640 --> 00:33:11,800
Speaker 7: trial should have been delayed, and the judge, Judge Styne

587
00:33:12,120 --> 00:33:15,400
Speaker 7: in the Southern Distric of New York, decided to go

588
00:33:15,480 --> 00:33:19,080
Speaker 7: ahead with the trial. After separating her from the other

589
00:33:19,120 --> 00:33:23,360
Speaker 7: defendants who went on trial with Bob Menendez and granting

590
00:33:23,400 --> 00:33:26,760
Speaker 7: her another delay, he finally said enough is enough for

591
00:33:26,880 --> 00:33:27,600
Speaker 7: going to trial.

592
00:33:27,840 --> 00:33:29,560
Speaker 3: How long is the trial expected to last.

593
00:33:29,720 --> 00:33:32,440
Speaker 7: I believe it's supposed to last eight to nine weeks,

594
00:33:32,440 --> 00:33:35,520
Speaker 7: so it's going to be a marathon. And the prosecutors

595
00:33:35,960 --> 00:33:39,360
Speaker 7: have promised that they'll try to streamline the case. In

596
00:33:39,400 --> 00:33:42,760
Speaker 7: the first trial, there were three different sets of attorneys

597
00:33:42,840 --> 00:33:45,800
Speaker 7: that could cross examine witnesses, and here there's only one.

598
00:33:45,880 --> 00:33:49,440
Speaker 7: So you would think through that alone, it should cut

599
00:33:49,480 --> 00:33:52,560
Speaker 7: back on a good amount of time that the jury

600
00:33:52,600 --> 00:33:53,840
Speaker 7: will spend in the courtroom.

601
00:33:54,120 --> 00:33:56,479
Speaker 3: I know you'll be following it. Thanks so much, David.

602
00:33:56,920 --> 00:34:00,520
Speaker 3: That's Bloomberg Legal reporter David Voriakis. That's it for this

603
00:34:00,640 --> 00:34:03,360
Speaker 3: edition of The Bloomberg Law Show. Remember you can always

604
00:34:03,400 --> 00:34:06,360
Speaker 3: get the latest legal news on our Bloomberg Law podcasts.

605
00:34:06,600 --> 00:34:09,640
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

606
00:34:09,800 --> 00:34:14,840
Speaker 3: www dot Bloomberg dot com, slash podcast Slash Law, and

607
00:34:14,880 --> 00:34:17,960
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

608
00:34:18,040 --> 00:34:21,480
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and

609
00:34:21,560 --> 00:34:23,040
Speaker 3: you're listening to Bloomberg