Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: We're in the business of complying with federal court decisions,
Speaker 2: and when they told us that we needed to draw
Speaker 2: a second majority black district, that's what we did.
Speaker 3: That's how Louisiana Solicitor General Ben Aguinyaga summed up his
Speaker 3: state's position in the challenge to its congressional map at
Speaker 3: the Supreme Court. It's a case that involves the interplay
Speaker 3: between race and politics in drawing political boundaries, and the
Speaker 3: oral argument signaled a deep divide over the use of
Speaker 3: race in redistricting. At issue is the map drawn by
Speaker 3: Republicans to simultaneously create a new majority black district as
Speaker 3: required by a court order and protect incumbent Republicans, including
Speaker 3: House Speaker Mike Johnson, and the justices seemed divided over
Speaker 3: the question of whether race was the predominant factor driving
Speaker 3: the new map. Chief Justice John Roberts called the new
Speaker 3: district a snake that runs from one end of the
Speaker 3: state to the other.
Speaker 2: And you think the drawing of this district was not
Speaker 2: predominantly based on race. I think that it runs from
Speaker 2: one side of the state angling up to the other
Speaker 2: picking up popular black populations as it goes along.
Speaker 3: But the three liberal justices suggested the district shape was
Speaker 3: a product of politics, something the Court has previously said
Speaker 3: is a permissible factor. Here's Justice Katanji Brown Jackson.
Speaker 4: Is the reason why we're looking at a snake like
Speaker 4: map rather than the compact map is because of political considerations.
Speaker 2: Politics is the only reason that the state shows that
Speaker 2: map over the compact maps.
Speaker 3: Joining me is elections law expert Richard Brefalt, a professor
Speaker 3: at Columbia Law School. Rich explained the issue before the justices.
Speaker 1: This is a very strange and unusual case. In order
Speaker 1: to discuss the issue, you actually have to go back
Speaker 1: to a prior case. And so a couple of years ago,
Speaker 1: lawsuit was brought in Louisiana by black voters claiming that
Speaker 1: the congressional map in Louisiana discriminated against black voters because
Speaker 1: they were underrepresented, that it had a discriminatory effect. Louisiana
Speaker 1: is something like one third black. The state has six
Speaker 1: congressional districts, but only one of them had a black majority.
Speaker 1: The plaintiffs said it was relatively easy to create a
Speaker 1: compact district that followed traditional districting patterns in part of
Speaker 1: the state that would create a second black majority district.
Speaker 1: They went to court and they won. They won a
Speaker 1: preliminary injunction. It was a five day trial, lots of exhibits,
Speaker 1: lots of witnesses. They wanted a district court, and that
Speaker 1: was subsequently affirmed by the Fifth Secret Court of Appeals,
Speaker 1: which is itself a pretty conservative court. The question happens
Speaker 1: what to do next, how to redraw the map. The
Speaker 1: plaintiffs had a map that they liked which would have
Speaker 1: created that second black majority district, but the usual rules
Speaker 1: to allow the legislature to crack at it and to
Speaker 1: see if they can do it in time. Otherwise a
Speaker 1: court will create a map. So this went to the
Speaker 1: Louisiana legislature and the governor said, we need to do
Speaker 1: a map. We would have liked to fight this case more,
Speaker 1: but we've already lost twice in the district court, in
Speaker 1: the Court if Appeals. We need to write our own
Speaker 1: map rather than having a court impostmon on us. When
Speaker 1: the legislatures sat down to draw a map, though, they
Speaker 1: had a problem because it's a Republican majority legislature, Republican
Speaker 1: governor Publican delegation and several of the Republican members of Congress,
Speaker 1: and Louisiana are very powerful, including the Speaker of the House,
Speaker 1: the majority leader, and somebody else they really liked, and
Speaker 1: so they decided the legislature in Louisiana that they would
Speaker 1: sacrifice one Republican district, but not the district that made
Speaker 1: sense in terms of the plaintiff's original lawsuit seeking a
Speaker 1: black majority district. They kind of cobbled together a new
Speaker 1: district that stretched across the state and got rid of
Speaker 1: a different white Republican congressman in order to preserve the
Speaker 1: districts of the Speaker, the majority leader, and a member
Speaker 1: of Congress who they favored. So this news district is
Speaker 1: a black majority district that comes out of this lawsuit. Now,
Speaker 1: some white plaintiffs have sued claiming that this district is
Speaker 1: unconstitutional because it's unconstitutionally race based, that is a racial gerrymander,
Speaker 1: that the decision to draw this district was primarily based
Speaker 1: on race, and the Supreme Court has for some time
Speaker 1: said that that's unconstitutional. The state is defending it, as
Speaker 1: are the original plaintiffs, the black voters, on the grounds
Speaker 1: that no it's not racially predominant. It's really politically predominant.
Speaker 1: The reason this district has this odd shape is not
Speaker 1: really because of race, but because the legislature wanted to
Speaker 1: basically protect Republican incumbents, and a different lower court than
Speaker 1: the one that heard the original case said, no, this
Speaker 1: is racial predominance. The only reason this district exists is
Speaker 1: to create a black majority district. And that's the argument
Speaker 1: before the Supreme Court, and it's a kind of an
Speaker 1: odd one. Supreme Court has said in the past that
Speaker 1: if something is drawn primarily to the basis of race
Speaker 1: and there's no other justification for it, then it may
Speaker 1: be constitutional the ncal protection clause. But if it's done
Speaker 1: primarily for party, that's parties in germymandering, and you can
Speaker 1: challenge that. And the question of whether something is based
Speaker 1: on race or on party has really been before the
Speaker 1: Court several times. But that's kind of what they have
Speaker 1: to decide here. Is this district primarily based on partisanship
Speaker 1: because that's why the legislature drew it the way they
Speaker 1: did it, Or is it based on race because they
Speaker 1: wouldn't have been drawing a new district at all but
Speaker 1: for the earlier judgment that Louisiana needed a second black
Speaker 1: majority district.
Speaker 3: What use of race in drawing maps is permissible?
Speaker 1: You can use it in the remedial sense. I mean,
Speaker 1: obviously you couldn't remedy Voting Rights Act violations unless you
Speaker 1: took race into account in drawing the remedy. But the
Speaker 1: question is sort of when does race too much? That's
Speaker 1: that's where the Court has settled out over the less
Speaker 1: several decades. You can't ignore race, and sometimes you have
Speaker 1: to take race into account. But if you give race
Speaker 1: too much attention they use the notion of predominance, then
Speaker 1: unless it's just a by something else like the Voting
Speaker 1: Rights Act, then it violates ecal protection clause.
Speaker 3: There's a tension between the Court's precedent in those two areas.
Speaker 1: In a sense, I mean, the Court has said you
Speaker 1: can use race, you just can't use it too much.
Speaker 1: The justification for using race is to remedy another violation,
Speaker 1: like a Voting Rights Act violation. If a court concludes
Speaker 1: that the state's distresting pattern discriminates the based on race
Speaker 1: or has a racially disparate impact, which is what happened
Speaker 1: in this case, then redistricting is based on some attention
Speaker 1: to race. The concern in the plaintiff's claim. In this case,
Speaker 1: the white plaintiffs are the district that they true kind
Speaker 1: of stretches across the state, and what it does is
Speaker 1: it picks up pockets of black population in different parts
Speaker 1: of the state to create a black majority district, and
Speaker 1: that makes it look like a racial gerrymander. The state's defense,
Speaker 1: as well as the defense by the original voting rights plaintiffs,
Speaker 1: is well, the reason that stretches across the state is
Speaker 1: really for partisan purposes, because we didn't want to put
Speaker 1: it in the area that the black plaintiffs originally wanted
Speaker 1: because that would have gotten rid of an incumbent that
Speaker 1: we like. So we did it this way to get
Speaker 1: rid of an incumbent we didn't care about so much.
Speaker 1: And the voting rights plaintiffs also point out that much
Speaker 1: of the district does include much of the district that
Speaker 1: they had originally proposed, but it is true it is
Speaker 1: the kind of district that does stretch across the state
Speaker 1: in a way that has often drawn criticism.
Speaker 3: Did you hear a divide between the conservative justices and
Speaker 3: the liberal justices on the use of race in this case.
Speaker 1: Well, I think the conservative justices, who I think were yes,
Speaker 1: they are troubled by it. I think they were slightly
Speaker 1: frustrated by the fact that the state, to the Louisiana
Speaker 1: Conservative Republican lad state, is defending the map, and the
Speaker 1: state basically kept making the point the reason we did
Speaker 1: this is because we had a judgment against us, and
Speaker 1: I think some of the conservatives maybe kind of wondered,
Speaker 1: you know, maybe you should have challenged that, do you
Speaker 1: agree with that judgment against you? And of course the
Speaker 1: state's position is no, we don't agree with the judgment
Speaker 1: against us, but we lost twice and we didn't want
Speaker 1: the courts to impose a map on us. So I
Speaker 1: think the Conservatives were somewhat frustrated in this case because
Speaker 1: they're not directly reviewing the original lower court case that
Speaker 1: said Louisiana violated the Voting Rights Act. They never took
Speaker 1: that case. What they're reviewing is the state's remedy, in which,
Speaker 1: although it's clear that race plays an important role in
Speaker 1: their redoing the map altogether, I think the states argument
Speaker 1: was that this particular configuration reflects our political judgment that
Speaker 1: if we had to sacrifice one white Republican congressman. We
Speaker 1: chose Congressman X and not Congresswoman Y.
Speaker 3: There's been a lot of talk lately about the standoff
Speaker 3: between the Trump administration and the courts and the question
Speaker 3: of whether the Trump administration is actually following complying with
Speaker 3: court orders. Did you see subtle references to that during
Speaker 3: the oral arguments? You had the Louisiana Solicitor General saying right,
Speaker 3: we're in the business of complying with federal court decisions,
Speaker 3: and Justice Jackson clarifying with him later that the court
Speaker 3: order was the reason why Louisiana drew up the map,
Speaker 3: and it didn't matter whether the order was right or wrong.
Speaker 4: There's no dispute that the court's order was the reason
Speaker 4: that Louisiana did this.
Speaker 2: Did the new map right? Mister Grime can correct me
Speaker 2: for wrong, but I don't think so, Your honor.
Speaker 4: And the question is whether or not the fact that
Speaker 4: you had a court order was good enough reason for
Speaker 4: you to do it. Is that what you understand the
Speaker 4: basic question.
Speaker 2: To be that's correct, not just one order but two
Speaker 2: layers of orders.
Speaker 4: Yes, Your Honor, and I guess I'm still a little
Speaker 4: confused as to why it matters whether the court order
Speaker 4: was right or not. You were still being compelled by
Speaker 4: the court to do what you did in this case.
Speaker 2: Correct, that's correct, Justice Jackson.
Speaker 1: That was my impression as well that the Slicter General
Speaker 1: was being very good about saying, we follow court orders.
Speaker 1: We lost once, we took an appeal, and then we
Speaker 1: follow the court orders. And some of the justices were
Speaker 1: pressing him, well, what if it was completely wrong? You know,
Speaker 1: would you follow it if it was completely wrong, and
Speaker 1: he was saying, you know, we're not going to get
Speaker 1: in the judgment of deciding whether it's completely wrong. We
Speaker 1: didn't like it. We defended our position, we thought we
Speaker 1: were right, we took an appeal, we thought we right
Speaker 1: an appeal, we lost the appeal, and I think our
Speaker 1: solution was, instead of keeping fighting, we want to be
Speaker 1: able to control our own map.
Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 3: this conversation with Columbia Law School professor Richard Breflt. We'll
Speaker 3: take a look at how the justices might rule. I'm
Speaker 3: June Grosso. When you're listening to Bloomberg, the Supreme Court
Speaker 3: justices displayed a deep divide over the use of race
Speaker 3: and redistricting in a case involving Louisiana's congressional map that
Speaker 3: created a second majority black voting district. At issue is
Speaker 3: the new district drawn by Republicans, which runs a jagged
Speaker 3: course over two hundred and fifty miles from Shreveport to
Speaker 3: Baton Rouge. Louisiana Solicitor General Ben Aguinyaga said the state
Speaker 3: was simply abiding by a court decision and was entitled
Speaker 3: to flexibility in doing so as it tried to ward
Speaker 3: off the prospect of a court imposed map. His arguments
Speaker 3: seemed to resonate with much of the Court, including Justice
Speaker 3: Amy Coney Barrett.
Speaker 5: I mean, is it also because of the position that
Speaker 5: it puts the state in here? I mean, it's not
Speaker 5: just a matter of your obedience to the federal court order,
Speaker 5: which I appreciate. You know you would be obedient to
Speaker 5: the federal court order. But it's also that if you
Speaker 5: had continued to litigate the Robinson, if you had continued
Speaker 5: to litigate in Robinson, you risked having the court imposed map.
Speaker 5: And so it's really litigation risk that's part of the
Speaker 5: calculus here.
Speaker 3: I've been talking to Professor Richard Rfald of Columbia Law School, Rich,
Speaker 3: do you have any inkling for what the Court might
Speaker 3: do here?
Speaker 1: Well, first off, never predict the Supreme Court, but I
Speaker 1: think there seemed to be enough understanding of this by
Speaker 1: at least some of the justices that you might say
Speaker 1: that justice is in the middle, like Cavanaugh and Barrett,
Speaker 1: of the tight squeeze that the state was in, and
Speaker 1: the idea that the state should have some space, some
Speaker 1: discretion to accommodate a court and also to accommodate its
Speaker 1: own political preferences. I mean, of course a Gelito and
Speaker 1: Thomas were clearly very unhappy with this map. Robert said
Speaker 1: very little as far as I could tell, and I
Speaker 1: think maybe I'm overreading it, and you never know with them,
Speaker 1: but I think there was some sympathy I think I
Speaker 1: saw in Barrett and Cavanaugh for the situation that the
Speaker 1: state was in. You have the impression from the very
Speaker 1: conservative justices and even from some of the justices in
Speaker 1: the middle, that they may be looking to rethink the
Speaker 1: Voting Rights Act and rethink how much attention race should
Speaker 1: be given in districting. But my impression is at least
Speaker 1: for some of the justices may be realizing that this
Speaker 1: is not the vehicle for that because given the state's
Speaker 1: defenses so heavily based on partisan considerations, which I think
Speaker 1: they were pretty good at showing were real and not pretend.
Speaker 3: Just tell us a little bit about how the Supreme
Speaker 3: Court has sort of been chipping away at the power
Speaker 3: of the Voting Rights Act.
Speaker 1: Well, I mean candidly. The one case that's most relevant
Speaker 1: is the case that they didn't the Alabama redistrict in
Speaker 1: case Milligan, which was decided two years ago, and this
Speaker 1: case follows immediately on it, whereby a five to four vote,
Speaker 1: they actually upheld a lower court judgment that the Alabama
Speaker 1: congressional district being planned had a racially disparate impact and
Speaker 1: that it denied fair representation to black voters in Alabama
Speaker 1: and required the creation of a second black majority district
Speaker 1: in Alabama. It was that case that I think the
Speaker 1: lower courts relied on in the earlier version the first
Speaker 1: round of this case to find that Louisiana was in
Speaker 1: violation of the Voting Right Sect and maybe why the
Speaker 1: US Supreme Court didn't take the Louisiana cases. They had
Speaker 1: just decided the Alabama case that was a five to
Speaker 1: four case and It was a bit of a surprise
Speaker 1: because they previously issued a stay against the lower court
Speaker 1: order in that case, so that he allowed the old
Speaker 1: map to be used one more election. So I think,
Speaker 1: you know it's in other areas. The Court has certainly
Speaker 1: cut back. They have made it now almost impossible for
Speaker 1: plaintiffs to bring voting rightsack claims, challenging various mechanisms like
Speaker 1: voter ID and issues that make it harder for people
Speaker 1: with a claim. Is that certain you know, voter registration
Speaker 1: and voter ID rules that just spread impact on black
Speaker 1: or other minority voters that to court in the case
Speaker 1: called Bernovich some years ago threw that out. Now more
Speaker 1: than ten years ago, they got rid of Section five,
Speaker 1: which was the preclearance requirement, which was probably the most
Speaker 1: importan short and piece of the Voting Rights Act, requiring
Speaker 1: certain states which had a very bad track record of
Speaker 1: racial discrimination to get their voting law changes preclued by
Speaker 1: the Department of Justice. Now about ten years ago, and
Speaker 1: they've been sending signals at least a number of justices
Speaker 1: that they are troubled by the reader which the Voting
Speaker 1: Rights Act is being used to challenge voting laws, voting
Speaker 1: rules and things like districting plans. But right now, the
Speaker 1: most recent case, that Alabama case, is one where they
Speaker 1: actually are continuing to enforce it. Some people are seeing
Speaker 1: this as another challenge. I think if the Court is
Speaker 1: going to start cutting back on the role of Section
Speaker 1: two of the Voting Rights Act in challenging districting plans,
Speaker 1: I'll go out on a limb and say this is
Speaker 1: probably not the case, but you could imagine it happening
Speaker 1: in the not too distant future.
Speaker 3: I mean, you were surprised by that Alabama case. I
Speaker 3: was stunned, and I'm wondering if it's an exception rather
Speaker 3: than the rule, because it sort of stood out right.
Speaker 1: But this case is an immediate follow on, and it's
Speaker 1: not even this case. It's the case that this case
Speaker 1: builds on. The thing is this case is not a
Speaker 1: direct review of that case. In some ways, it is
Speaker 1: arguably an indirect review of that case. But the Louisiana
Speaker 1: case basically saying that Louisiana needs to create a second
Speaker 1: black majority district was very, very similar to the Alabama case.
Speaker 1: So it would be a real stretch, I think, to
Speaker 1: say that the district is racially predominant when the state
Speaker 1: was acting because of a court order, and the factors
Speaker 1: that led to this particular district design were clearly political,
Speaker 1: or at least to some degree political. I mean, there
Speaker 1: was an interesting bit of a dialogue between Justice Cavanon
Speaker 1: one of the advocates about, you know, how do you
Speaker 1: decide whether something is racially predominant or politically predominant? Is
Speaker 1: it fifty to fifty? Is a sixty forty is a
Speaker 1: seventy thirty? And this Lister General for Louisiana saying we
Speaker 1: think this is about seventy percent political, and that if
Speaker 1: it's in the sixty eighty percent political aught to be
Speaker 1: seen as politically predominant and not racially predominant. There was
Speaker 1: an interesting effort how do they decide?
Speaker 3: Let's listen to part of that exchange.
Speaker 6: So the rule I think you one is political considerations
Speaker 6: are fine to take into account and doing the map
Speaker 6: the second map in fifties kind of floor on that.
Speaker 2: I think. So, I mean, this court has never spelled
Speaker 2: out what substantially addresses means as a numerical matter, and
Speaker 2: to my mind, if I'm between sixteen and eighty percent,
Speaker 2: I think that's substantial. But obviously a judgment call for.
Speaker 1: This court, and it struck me that the Social General
Speaker 1: Louisiana did a very good job of basically saying, all
Speaker 1: we're doing is trying to abide by a court order
Speaker 1: in a way that satisfies our internal political needs.
Speaker 3: In light of that, would their decision have any impact
Speaker 3: on future cases.
Speaker 1: Since it's not a direct review of that Louisiana case,
Speaker 1: I don't know. I mean, I think in some ways
Speaker 1: it ratifies the idea that it's consistent with the earlier
Speaker 1: the Routsho case, which is that partisan jury maner is
Speaker 1: just fine. It follows on that. I mean, in some
Speaker 1: ways this is an odd partisan jury manner because it
Speaker 1: wasn't Republican on democratic, Republican on Republican one way or
Speaker 1: the other. A republican district was going to go. But
Speaker 1: so you could maybe instead of saying partisan jury manner,
Speaker 1: you're called political gerrymandering. But this is clearly a case
Speaker 1: where political forces were very important and leading to in
Speaker 1: somewhat oddly shaped district. I mean, the trick in the
Speaker 1: case is presumably if the plaintiffs have come forward with
Speaker 1: this district, they may very well have lost, because this
Speaker 1: is not the kind of compact district that respects political
Speaker 1: subdivision or you know, local community lines that the court likes,
Speaker 1: but the plaintiffs didn't come forward with this district. The
Speaker 1: oddity of this case is the plaintiffs were able to
Speaker 1: show the district court in the first case that you
Speaker 1: could create a very straight, very compact district that respected
Speaker 1: community lines and subdivision lines better than the state's original
Speaker 1: plan and create that as a black majority district. That
Speaker 1: persuaded the district court. But then when the state went
Speaker 1: and okay to do the remedy, they came up with
Speaker 1: a completely different district. Now that's not the plaintiff's fault.
Speaker 1: The plaintiffs are still defending what they did because they say, well,
Speaker 1: we still get a lot in this It's still seventy
Speaker 1: percent of our original district is in this district, but
Speaker 1: you know, it's not the one that the plaintiffs had
Speaker 1: asked for.
Speaker 3: And will the court's decision here have any effect on
Speaker 3: the congressional map in the midterms.
Speaker 1: Well, I think this district is already in place, so
Speaker 1: in some ways, the Democrats picked up one seat in
Speaker 1: Louisiana because I think this map was used in twenty
Speaker 1: twenty four so if it's reversed, then there's a likely
Speaker 1: Republican pickup of one in Louisiana depends. But so I
Speaker 1: think it's already had a one seat partisan effect, as
Speaker 1: the Alabama redistricting did.
Speaker 3: So the federal government. Where did the Trump administration stand
Speaker 3: on this?
Speaker 1: They remove themselves from it. Your Biden administration was defending
Speaker 1: the map. The Trump administration, I think, in the end,
Speaker 1: didn't take a position.
Speaker 3: I have to say this is a very confusing, perhaps
Speaker 3: because of the complex procedural history, perhaps because the state
Speaker 3: seems to be in an odd position.
Speaker 1: This is a very odd case, and so I think
Speaker 1: this is one that may not have a lot of law.
Speaker 1: I mean, well, if the lower court is reversed and
Speaker 1: the state's map is sustained, because what happened in this
Speaker 1: case is the lower court in the second set of
Speaker 1: litigation said no, this map is an unconstitutional racial jerry manner.
Speaker 1: If the lower court is reversed, then I don't think
Speaker 1: there'll be much a significance. The lower court is sustained,
Speaker 1: then I think it's going to be very weird, because
Speaker 1: then it means that at anytime racist the factor at
Speaker 1: all becomes a problem, and so it's again almost impossible
Speaker 1: to read the Supreme Corporate but at least based on
Speaker 1: the way the questioning went by, at least by Barrett
Speaker 1: and maybe Kavanaugh, they seem to sort of realize that
Speaker 1: the state was between a rock and a hard place
Speaker 1: and they might be inclined to just leave it alone.
Speaker 3: And the Solicitor General was really strong and pointed out
Speaker 3: over and over again that Louisiana was complying with the
Speaker 3: court order.
Speaker 1: You know, if the state had just created this district
Speaker 1: to create a black majority district, they would be Shawvy
Speaker 1: Rain and it would be thrown out. But you know,
Speaker 1: they did it because a court forced them to create
Speaker 1: a district, not just the Department of Justice, which was
Speaker 1: going on in shawl which was because then it was
Speaker 1: a preclearance, but a court said you have to create
Speaker 1: a district, but we're going to let you decide where
Speaker 1: it is. And it's it's so hard to say that
Speaker 1: this was more race than party or more race than politics.
Speaker 1: They should say politics, and the court has said politics
Speaker 1: can be a factor, and they threw out the challenges
Speaker 1: to parties and jerrymandering.
Speaker 3: So as in so many other cases, it seems like
Speaker 3: the decision will depend on the justice is in the middle.
Speaker 3: Thanks so much, rich that's Professor Richard Rfault of Columbia
Speaker 3: Law School. The Trump administration is escalating the legal battle
Speaker 3: over the deportation of alleged Venezuelan gang members. The government
Speaker 3: is refusing to hand over flight data requested by federal
Speaker 3: Judge James Boseberg, now citing state secrets and national secure risks.
Speaker 3: At the same time, a three judge appellate panel is
Speaker 3: weighing whether to continue blocking Trump's invocation of the Alien
Speaker 3: Enemies Act to fly the reputed gang members to a
Speaker 3: Salvadorian prison. Joining me Is Bloomberg legal reporter David Voriakis.
Speaker 3: For ten days, Judge Bosburg has been trying to get
Speaker 3: this information about the two flights, and now the Trump
Speaker 3: administration is refusing to hand it over because of national
Speaker 3: security reasons state secrets.
Speaker 7: The Justice Department says that by handing over the information
Speaker 7: that Judge Bosburg is seeking on these two flights to
Speaker 7: Venezuela in March fifteenth, that that would compromise national security
Speaker 7: and foreign policy, and in a filing late Monday night,
Speaker 7: they said essentially that they are exercising the state secrets privilege,
Speaker 7: and they would not give the information to Judge Bosburg
Speaker 7: even under seal or in his chambers.
Speaker 3: Judge Boseburg was formerly the presiding judge of the National
Speaker 3: Security Surveillance Court, so he's been there before.
Speaker 7: He has a lot of experience in handling national security secrets,
Speaker 7: and he knows what he's doing. So he actually in
Speaker 7: an earlier filing said, are you going to invoke the
Speaker 7: state's secrets privilege? And if so, police state the reason why,
Speaker 7: which is essentially what the government did last night.
Speaker 3: Just to be clear, these are flights that have taken
Speaker 3: off and landed, and there has been reporting by a
Speaker 3: couple of news organizations tracking down what times they actually
Speaker 3: took off and landed, right, But.
Speaker 7: The judge actually wants the government to state it to
Speaker 7: him directly. When did the flights leave, where did they
Speaker 7: leave from, where did they land, how many people were aboard?
Speaker 7: Seems like pretty basic information. But the government's position that
Speaker 7: is that if they were to disclae that, even under
Speaker 7: seal to the judge, that it would reveal secrets that would,
Speaker 7: as they say, directly compromise the safety of American officers, contractors, aliens,
Speaker 7: and the American public on the one hand, and on
Speaker 7: the other that it would reveal non public, sensitive and
Speaker 7: high stakes negotiations with foreign governments.
Speaker 3: It would also reveal whether or not they disobeyed his order.
Speaker 3: I mean, that's what he's looking for here. When did
Speaker 3: they leave? Was it after I gave the oral order?
Speaker 3: Was it after I gave the written order?
Speaker 7: Correct? Just to be clear. On Saturday afternoon of March fifteenth,
Speaker 7: he had a hearing in which he directed the government
Speaker 7: to make sure that any planes that were in the
Speaker 7: air had to turn around and return to the United States.
Speaker 7: He did that orally, and maybe a half hour later
Speaker 7: he issued a written order that did not include that directive.
Speaker 7: And the government's taken the position while it wasn't in
Speaker 7: the written order, So we don't need to obey that,
Speaker 7: and we would only follow what's in the written order,
Speaker 7: not your oral order.
Speaker 3: He has said that he wants the Venezuelan plaintiffs to
Speaker 3: be able to have due process.
Speaker 7: Correct. I don't think that he believes he has jurisdiction
Speaker 7: over the people who already have been flown to El Salvador.
Speaker 7: But there's something like two hundred and fifty other people
Speaker 7: who are potentially subject to the Trump proclamation that says
Speaker 7: that if they're members of this Venezuelan gang, that they
Speaker 7: are subject to immediate deportation under the Alien Enemies Act
Speaker 7: of seventeen.
Speaker 3: Ninety eight, and no one has yet ruled. No court
Speaker 3: has yet ruled on whether Trump's invoking the Alien Enemies Act,
Speaker 3: which has only been used three times always in wartime.
Speaker 3: No court has actually ruled on whether that is legal
Speaker 3: or not.
Speaker 7: They have not ruled on the merits of the objection
Speaker 7: to the use of the Alien Enemies Act in this context,
Speaker 7: being that the United States has not declared war against
Speaker 7: another nation, which is how it had been previously used
Speaker 7: in US history.
Speaker 3: So now let's turn to the next level of court,
Speaker 3: which is the DC Appellate Court. There was an oral
Speaker 3: argument there yesterday in this same case.
Speaker 7: Well, the basics of the argument were, did Judge Bosburg
Speaker 7: properly exercise his authority in putting a pause on this
Speaker 7: order to deport these alleged Venezuelan gang members. There was
Speaker 7: a Trump appointed judge who had serious problems with what
Speaker 7: Judge Bosburg had done and believed that the case should
Speaker 7: be moved to Texas so that individuals could litigate their
Speaker 7: own case through what's known as a habeas corpus petition,
Speaker 7: and there was a Democratic appointed judge who felt that
Speaker 7: the government's position was quite deficient. There's a third judge
Speaker 7: who did not express an opinion, and so it's a
Speaker 7: three judge panel. It's hard to know at this moment
Speaker 7: just how it will go, but it seems pretty clear
Speaker 7: that this case is headed for the Supreme Court.
Speaker 3: And so one of the judges, the Democratic appointee, Patricia Millett,
Speaker 3: said that Nazis got better treatment under the Alien Enemies
Speaker 3: Act or in World War Two than these Venezuelans because
Speaker 3: they were deported without any due process right.
Speaker 7: There was a procedure for deporting Nazis at that point.
Speaker 7: There were panels that were set up in this case.
Speaker 7: The Trump proclamation was publicly announced maybe an hour or
Speaker 7: two before the planes took off. That's what it appears
Speaker 7: from the available public evidence, and so they had no
Speaker 7: real chance to challenge it. The litigation that we're talking
Speaker 7: about arose because the ACLU and another group filed preemptively
Speaker 7: because they had heard that Trump might invoke the Alien
Speaker 7: Enemies Act and they wanted to foreclose the possibility that
Speaker 7: it would be used against five plaintiffs, and in fact,
Speaker 7: Judge Bosberg granted a temporary restraining order with respect to
Speaker 7: those five plaintiffs, and then he granted class action certification
Speaker 7: for everyone else who might be affected by that order.
Speaker 3: All right, So let's turn down to a totally different topic,
Speaker 3: the trial of Bob Menendez's wife. Is it basically the
Speaker 3: same case, same witnesses, same evidence.
Speaker 7: Nadine Menendez went on trial yesterday with opening statements in
Speaker 7: federal court in New York. It's essentially the same case
Speaker 7: that led to the conviction of her husband, the New
Speaker 7: Jersey Democrat who used to be the powerful chairman of
Speaker 7: the Senate Foreign Relations Committee. The case that the prosecutors
Speaker 7: laid out in the roadmap for the jury was that
Speaker 7: she acted as a go between between her husband and
Speaker 7: three corrupt businessmen that were seeking favors as well as
Speaker 7: the Egyptian government, and that in a raid on the
Speaker 7: house that the couple shared in Englewood Cliffs, New Jersey,
Speaker 7: the FBI found thirteen gold bars, a black Mercedes Benz convertible,
Speaker 7: and more than four hundred thousand dollars in cash. Nearly
Speaker 7: five hundred.
Speaker 3: Thousand so Is the defense going to be that she
Speaker 3: didn't know or intend to violate the laws?
Speaker 7: Her defense attorney's opening statement was that essentially, she did
Speaker 7: not have the knowledge and intent of the crimes that's
Speaker 7: necessary to convict her of all the counts against her,
Speaker 7: which includes bribery, conspiracy, fraud, extortion, and obstruction of justice.
Speaker 3: So her husband blamed her. Is she going to blame
Speaker 3: her husband.
Speaker 7: That's not clear yet. But her husband essentially said at
Speaker 7: trial that she received a lot of cash and gold
Speaker 7: bars without his knowledge from these businessmen who she had
Speaker 7: known a lot longer than he had, and so they
Speaker 7: had a prior relationship and Bob was unaware of that
Speaker 7: and became aware of that as time went on. And
Speaker 7: Bob Menendez also argued that he was unaware of the
Speaker 7: extent of her financial problems, which complicated her life and
Speaker 7: led her to need a new Mercedes Benz and other considerations.
Speaker 3: So Joseribe, who testified against Menandez, is going to testify
Speaker 3: against her.
Speaker 7: Uribe is going to testify. He is going to say,
Speaker 7: I would expect that he gave Nadine Menendez fifteen thousand
Speaker 7: dollars in cash in the parking lot of a New
Speaker 7: Jersey restaurant so that she could buy a Mercedes Benz
Speaker 7: and that he made monthly payments on the car for
Speaker 7: something like three years. In exchange. The Senator made a
Speaker 7: call and had a meeting with the Attorney General of
Speaker 7: New Jersey at the time, trying to suggest that the
Speaker 7: New Jersey Attorney General should drop the criminal investigation of
Speaker 7: two people who were close to Uribe.
Speaker 3: So just because he was convicted, it doesn't mean that
Speaker 3: she'll be convicted.
Speaker 7: Right, It's a conspiracy case, and now several of the
Speaker 7: conspirators have been convicted three a trial and won by
Speaker 7: guilty plea, But that doesn't necessarily mean that she's guilty.
Speaker 7: The government's theory is that she was critical to the
Speaker 7: conspiracy because she made key introductions between her first boyfriend
Speaker 7: now husband, Bob Menendez, and the three people who bribed her,
Speaker 7: and that she actually received the bribes.
Speaker 3: Now, Bob Menendez at this point is angling for a
Speaker 3: pardon from Trump.
Speaker 7: We have reported that he is pursuing a pardon. He's
Speaker 7: been a Democrat his entire career and has been quite
Speaker 7: critical of Trump through much of his career. He has
Speaker 7: started to echo some of Trump's language in his statements
Speaker 7: about how he was the victim of a witch hunt
Speaker 7: and prosecutors who went out of their way to persecute
Speaker 7: him without good cause.
Speaker 3: At this point, he's blaming the government for putting her
Speaker 3: on trial when she's recovering from cancer.
Speaker 7: She has had and is fighting breast cancer, and she
Speaker 7: just recently had breast reconstructive surgery. She felt that the
Speaker 7: trial should have been delayed, and the judge, Judge Styne
Speaker 7: in the Southern Distric of New York, decided to go
Speaker 7: ahead with the trial. After separating her from the other
Speaker 7: defendants who went on trial with Bob Menendez and granting
Speaker 7: her another delay, he finally said enough is enough for
Speaker 7: going to trial.
Speaker 3: How long is the trial expected to last.
Speaker 7: I believe it's supposed to last eight to nine weeks,
Speaker 7: so it's going to be a marathon. And the prosecutors
Speaker 7: have promised that they'll try to streamline the case. In
Speaker 7: the first trial, there were three different sets of attorneys
Speaker 7: that could cross examine witnesses, and here there's only one.
Speaker 7: So you would think through that alone, it should cut
Speaker 7: back on a good amount of time that the jury
Speaker 7: will spend in the courtroom.
Speaker 3: I know you'll be following it. Thanks so much, David.
Speaker 3: That's Bloomberg Legal reporter David Voriakis. That's it for this
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
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