Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: A big win for the Trump administration, the Supreme Court
Speaker 2: sided with President Trump over his plan to use the
Speaker 2: Postal Service to impose new restrictions on mail in voting,
Speaker 2: at least for now. The court six conservatives put on
Speaker 2: hold one of two Boston Federal Court rulings that have
Speaker 2: blocked key parts of Trump's executive order from being fully
Speaker 2: implemented ahead of the November midterms. The three liberals dissented,
Speaker 2: joining me is Bloomberg Supreme Court reporter Greg Storr, So, Greg,
Speaker 2: it's only a ten page decision, tell us about it.
Speaker 3: So it's a temporary decision. And it goes back to
Speaker 3: this executive order that Donald Trump issued about five months ago.
Speaker 3: And this is a challenge to that executive order, and
Speaker 3: it's important to keep that in mind. The Supreme Court
Speaker 3: said that executive order, which among other things, directs the
Speaker 3: Postal Service to restrict who can get mail ballots. The
Speaker 3: Supreme Court said that executive order in and of itself
Speaker 3: doesn't harm anybody. It doesn't harm the states that suit
Speaker 3: to challenge it. But the Supreme Court said, when the
Speaker 3: government actually issues some rules to implement this, then we'll
Speaker 3: be happy to reconsider and then maybe the States will
Speaker 3: be harmed and they can win their challenge. Well, the
Speaker 3: Postal Service has now issued a final rule that would
Speaker 3: restrict who can get mail ballots. The States are challenging
Speaker 3: that at a lower court, so this whole thing may
Speaker 3: get back up to the Supreme Court very very quickly.
Speaker 2: They issued this decision on Monday, but on Friday we
Speaker 2: had the Postal Service proposing the rules that this decision's about.
Speaker 3: So that is a final rule that will be formally
Speaker 3: published on Wednesday. There is lower court litigation about whether
Speaker 3: that is legal. The States are going to be able
Speaker 3: to argue in that case that that rule does harm
Speaker 3: them and they should be able to pursue. And then,
Speaker 3: more importantly, they say that rule is well beyond the
Speaker 3: authority of the federal government, well beyond the the authority
Speaker 3: of the Postal Service. If the district court agrees with
Speaker 3: that argument that it's beyond the power of the President,
Speaker 3: beyond the power of the Postal Service, then we could
Speaker 3: get a new injunction blocking the rules, and that could
Speaker 3: very quickly get back up to the Supreme Court again.
Speaker 2: So should we look at this decision as a placeholder.
Speaker 3: It is a placeholder, which doesn't mean that it's not
Speaker 3: at least a bit of a good sign for Donald Trump.
Speaker 3: So they accepted some arguments he made. For example, the
Speaker 3: administration argued that the federal government would be irreparably harmed
Speaker 3: if the Court blocked this executive order, and the Supreme
Speaker 3: Court agreed with that argument. Doesn't mean to say that
Speaker 3: he had authority to do it, but it does mean
Speaker 3: that one key component to how the Supreme Court assesses
Speaker 3: an emergency application, what's going to be the relative harm
Speaker 3: on each depending on how we rule on that point.
Speaker 3: Seemingly six justices in the majority agreed with Donald Trump
Speaker 3: that he would be hurt if the Court blocked this rule.
Speaker 2: So the opinion says, this doesn't mean that any measures
Speaker 2: that the government takes will necessarily be lawful. Quote. On
Speaker 2: that score, time will tell.
Speaker 1: Well.
Speaker 2: Some states are sending out ballots within a couple of weeks,
Speaker 2: so what's the time the conservatives are.
Speaker 3: Waiting for the timing of This is a real wild
Speaker 3: card and potentially could be a real problem. So back
Speaker 3: when the administration filed this application at the Supreme Court
Speaker 3: back in late July, they said we need to implement
Speaker 3: this executive order by early to mid August. We're obviously
Speaker 3: past that point, and you know, just now the government's
Speaker 3: going to be able to think about actually implementing that order.
Speaker 3: The Supreme Court sat on this thing for almost three weeks.
Speaker 3: It was full briefed, and the Supreme Court didn't act
Speaker 3: on it. Not at all clear why the Supreme Court
Speaker 3: waited so long. I mean, they clearly had opinions to write,
Speaker 3: but by waiting so long, they did sort of create
Speaker 3: this potential collision coming along where states do need to
Speaker 3: send out their ballots. The Postal Service rule would require
Speaker 3: them to put a special barcode on the ballots and
Speaker 3: the envelopes to designate that these are going to eligible voters.
Speaker 3: And that all takes time, and we're getting darn near
Speaker 3: the point where both the Postal Service and the states
Speaker 3: are running out of time to do this in an
Speaker 3: orderly fashion before November.
Speaker 2: It sounds like this decision is a recipe for confusion
Speaker 2: and chaos in the midterms. Thanks so much, Greg. That's
Speaker 2: Bloomberg Supreme Court reporter Greg Store. It's called the roadless rule,
Speaker 2: and for the last twenty five years, it's prevented the
Speaker 2: building of roads and commercial logging on fifty eight million
Speaker 2: acres of unspoiled national forests. But now the Trump administration
Speaker 2: is proposing to repeal the rule in full, a move
Speaker 2: that will bring litigation from environmental groups like Earth Justice,
Speaker 2: which has been successfully defending the rule in court for decades.
Speaker 2: Joining me is environmental law expert Pat Parento, a professor
Speaker 2: at the Vermont Law and Graduate School. Pat explain what
Speaker 2: the roadless Rule is and what it's accomplished over the
Speaker 2: last twenty five years.
Speaker 4: So this is a rule that was adopted under the
Speaker 4: National Forest Management Act in the Clinton administration, right at
Speaker 4: the very end of the Clinton administration in January two
Speaker 4: thousand and one. It covers thirty percent of the national forests.
Speaker 4: That represents over fifty eight million acres of literally unspoiled wilderness.
Speaker 4: This has been hailed as one of the greatest conservation moves,
Speaker 4: probably outside of what Teddy Roosevelt did in the early
Speaker 4: part of this last century. And it is the stronghold
Speaker 4: for hundreds, literally hundreds of endangered and threatened species. And
Speaker 4: you think about the big carnivores, the wolves and bears
Speaker 4: and pumas and cougars, even jaguars. You know, we do
Speaker 4: have some jaguars right at the very southern border and
Speaker 4: they're in the Coronado National Force, So incredibly valuable for
Speaker 4: watershed protection. Twenty five million Americans get their water supply
Speaker 4: coming off of these watersheds that don't have to be
Speaker 4: gone through enormous treatment, expensive treatment, and so forth. So
Speaker 4: very important to Native Americans, not only in the Lower
Speaker 4: forty eight, but in Alaska on the Tongas National Forest,
Speaker 4: one of the large intact boreal forests that we have,
Speaker 4: and so forth, so incredibly valuable natural resources. The rationale
Speaker 4: for repealing this rule is to fight fires. And one
Speaker 4: thing we know for sure when you build roads, you're
Speaker 4: going to get fires. Ninety percent of fires are ignited
Speaker 4: by humans, people throwing their cigarette butts out of the car,
Speaker 4: not putting out their campfires, et cetera. So you know,
Speaker 4: if you want wildfires, then build more roads, because that's
Speaker 4: what you're going to get. So there's lots of other
Speaker 4: problems with what's being proposed. You know, there are three
Speaker 4: hundred and sixty eight thousand roads already in national forests.
Speaker 4: Most of them are unsafe they're deteriorating, they're prone to landslides, erosion,
Speaker 4: and sedimentation, et cetera.
Speaker 1: So you know, one of the reasons for the roadless.
Speaker 4: Rule was to stop spending money on new roads when
Speaker 4: we can't even take care of the road we already have.
Speaker 1: So there you go.
Speaker 2: Is the real reason behind this from the Trump administration,
Speaker 2: for the executive order, et cetera, is the real reason
Speaker 2: that they want more timber.
Speaker 4: Yeah, he issued an executive order one of of course
Speaker 4: many early in his term, in which he said, we
Speaker 4: need to increase timber production on the national forests. All
Speaker 4: these environmental laws and endangered species protections, et cetera are
Speaker 4: costing us, you know, loss of revenue and having to
Speaker 4: rely on can you believe it, Canada for our timber products,
Speaker 4: which and we hate Canada apparently.
Speaker 1: Yeah.
Speaker 4: So you know, it's all about mining and timber production
Speaker 4: and so forth. And the answer is the reason that
Speaker 4: these areas haven't been timbered and have been roaded is
Speaker 4: because they are incredibly remote and expensive as hell, and
Speaker 4: the timber values outside of maybe the Tongas National Force,
Speaker 4: which you know, admittedly has incredibly valuable timber, but in
Speaker 4: the lower forty eight. The timber revenues probably won't offset
Speaker 4: the economic costs of building these roads, and also the
Speaker 4: impact on local communities that depend on access to these
Speaker 4: pristine areas, namely ecotourism. There are studies that show that
Speaker 4: loss of revenue will outweigh whatever expected revenue you get
Speaker 4: from timber sales.
Speaker 2: So the USDA said, and the statement that across the country,
Speaker 2: we've watched preventable conditions, overgrown stands, insect outbreaks, and disease
Speaker 2: turn healthy landscapes into tinderboxes. And it said its repeal
Speaker 2: will allow individual forest managers to make decisions tailored to
Speaker 2: the land they're overseeing, without mandating road building or timber production.
Speaker 4: So here comes the inconvenient truth. The roadless rule all
Speaker 4: allows access to thin the forests, to conduct prescribe burns,
Speaker 4: to take whatever measures the Forest Service people on the
Speaker 4: ground think are necessary to prevent and control wildfires. The
Speaker 4: rule does not do what the Trump administration says it does.
Speaker 1: Doesn't.
Speaker 4: You can look at it, you can read it. Those
Speaker 4: exceptions are there. Pest control, same thing. You build roads.
Speaker 4: Guess what's going to happen. You bring cars and trucks
Speaker 4: and logging vehicles into those areas. They'll spread invasive species
Speaker 4: and pests all over the place. That's what the data shows.
Speaker 4: So no, the rule itself allows what's necessary. It doesn't
Speaker 4: allow industrial scale logging, which is what the administration wants,
Speaker 4: but it does allow sensible fire control measures.
Speaker 2: Revoking this rule is the greatest threat, you know, destroying
Speaker 2: the beautiful forests or is it the habitat and endangered species?
Speaker 2: I mean, what's the greatest threat?
Speaker 1: You know?
Speaker 4: I think the water supply situation is the one to
Speaker 4: really focus on. And if you're thinking about all the
Speaker 4: forest lands in the Western United States, is water a.
Speaker 1: Problem out there right now? It sure is. So this
Speaker 1: is really the hidden cost of what's being.
Speaker 4: Proposed, because again, when you have intact watersheds right that
Speaker 4: are fully functional ecologically, that means your water supply is
Speaker 4: more reliable.
Speaker 1: What are trees? After all? They are enormous straws.
Speaker 4: They take up water, they release water, They are part
Speaker 4: of the hydrologic system of the Western United States. So
Speaker 4: you want to road these areas, log these areas, spread
Speaker 4: herbicides and pesticides and firefighting chemicals all over the place
Speaker 4: into these areas that don't need it. Right now, and
Speaker 4: you are going to really impact water supply. So you know,
Speaker 4: the impetus for the rule primarily was not water supply
Speaker 4: and water protection when it was started. I mean, that
Speaker 4: was part of it, but it wasn't the central part
Speaker 4: of it. Now the administration is talking about, well, conditions
Speaker 4: have changed on the western landscape. Well, hell, yes, they've changed.
Speaker 4: Climate change is driving these catastrophic wildfires and water loss,
Speaker 4: interruption of snowpack.
Speaker 1: And all the rest.
Speaker 4: So you know, at a time when we desperately need
Speaker 4: functioning ecosystems, they want to tear them apart.
Speaker 2: This rule goes to public comment for thirty days, but
Speaker 2: does the Trump administration ever follow the public comments.
Speaker 1: No, it's all for show.
Speaker 4: And by the way, the original rule, the public comment
Speaker 4: period was sixty days, twice what this one is, and
Speaker 4: there were over four hundred public meetings. And by the way,
Speaker 4: I argued the roadless rule in the Ninth Circuit.
Speaker 1: So the reason I get.
Speaker 4: Kind of worked up about these issues is because it's personal,
Speaker 4: you know. So Anyway, when we were doing the research
Speaker 4: on the argument in the ninth Circuit back in two thousand.
Speaker 1: And two, we found out all these facts.
Speaker 4: So there was an enormous amount of public outreach in
Speaker 4: participation before that rule was finally adopted. This one is
Speaker 4: being ramrodded through the process, and I predict the courts
Speaker 4: are going to see that, and you know, the administration
Speaker 4: is going to have a very hard time justifying what
Speaker 4: they're doing. You know, we've had decades of litigation. About
Speaker 4: a dozen lawsuits have been brought against the roadless Rule.
Speaker 4: The first one is the one I argued back in
Speaker 4: two thousand and two, but since then there've been countless
Speaker 4: as all of these issues have been thrashed out in
Speaker 4: the courts.
Speaker 1: And guess what, no court has ever permanently.
Speaker 4: Enjoined the roadless Rule. It has survived multiple attacks. I
Speaker 4: think it's going to survive this one too.
Speaker 2: Yeah. Earth Justice, Drew Caputo, vice president of Litigation, said,
Speaker 2: Earth Justice has successfully defended the roadless Rule in court
Speaker 2: for decades. Nothing will stop us from taking up that
Speaker 2: fight again. And I as we say, it'll end up
Speaker 2: in court because they'll try to push this through.
Speaker 4: You know, when the Forest Service put out it's what
Speaker 4: they call the notice of intent to prepare an environmental
Speaker 4: impact statement.
Speaker 1: This was within the last year.
Speaker 4: They've got almost a million comments just on that, and
Speaker 4: the Force Service said this in the draft impact statements
Speaker 4: that they've now issued, they acknowledged ninety nine percent of
Speaker 4: the comments oppose repealing the rule. That tells you the
Speaker 4: battles to come are going to be ferocious. These places
Speaker 4: have you know, very very loyal, intense supporters, and you
Speaker 4: know this will not stand according to the people that
Speaker 4: love and care about these places.
Speaker 2: But the governors of Montana, Utah, and Wyoming praised the
Speaker 2: repeal of the rule.
Speaker 4: Yeah, right, well those are Maga Republicans, So okay, I'm
Speaker 4: not surprised by that. I would like to know what
Speaker 4: the people of Montana feel in terms of what their
Speaker 4: support for public lands and these areas are.
Speaker 1: So it'll be divided.
Speaker 4: I understand that there is you know, high emotions on
Speaker 4: both sides of this kind of an issue.
Speaker 1: Right There are people that want the control.
Speaker 4: Over these lands, you know, people who want to exploit them,
Speaker 4: but you know also people that just don't like the
Speaker 4: federal government period. So you know, those are ideological cultural arguments.
Speaker 4: I'm just addressing the legal aspects of the case, and
Speaker 4: the rule is on absolutely solid legal ground, and the
Speaker 4: proposal to repeal it is not on solid legal ground.
Speaker 2: Are they moving faster in the second administration? Are they
Speaker 2: better prepared this time around?
Speaker 4: I think they're showing what I would call facile sophistication. Okay,
Speaker 4: I mean, so the USDA, which oversees the Forest Service,
Speaker 4: is articulating this policy decision, as the president has the
Speaker 4: power to change policies regarding management of national forests. That
Speaker 4: is true, and they're trying to say this is just
Speaker 4: returning control to the local Forest Service officials, right So
Speaker 4: on the surface it sounds awful rational, But here's the thing.
Speaker 4: What they're not saying is what has the rule really
Speaker 4: done to make forest management more difficult?
Speaker 1: They don't make a strong case, in my view, for that.
Speaker 4: There are six hundred district rangers, so this idea of
Speaker 4: returning control to those people, that's what they're talking about,
Speaker 4: these Forest Service district rangers, right, Well, that means there
Speaker 4: are going to be six hundred different decision makers, and
Speaker 4: that just means you're going to have more conflict, more controversy,
Speaker 4: more litigation because you're dispersing the decision making authority across
Speaker 4: a huge landscape, and each one of these individual rangers
Speaker 4: is going to be trying to figure out what am
Speaker 4: I supposed to be doing without national guidance. Without any
Speaker 4: national guidance, I'm supposed to figure out whether to put
Speaker 4: a road.
Speaker 1: In here or not.
Speaker 4: So I don't think the rationale that this is just
Speaker 4: you know, returning control where it belongs, is going to
Speaker 4: pass muster.
Speaker 1: It's going to lead to more chaos, more conflicts.
Speaker 2: During his first administration, how much did he make in
Speaker 2: ways into you know, opening up the national forests.
Speaker 1: Not at all.
Speaker 4: I mean, this was not a major impetus of his
Speaker 4: first administration. I mean, there are lots of things that
Speaker 4: this is all goes back to the Project twenty twenty
Speaker 4: five textbook or rule book. And so he's paying heed
Speaker 4: to the Western constituents that he has. And there are
Speaker 4: obviously a lot of very strong Republican states and districts
Speaker 4: in the West, and they've had a long term fractious
Speaker 4: relationship with government. You know, federal agencies that manage public lands,
Speaker 4: you know, they like the idea of having public lands.
Speaker 4: They just want to be able to exploit them more
Speaker 4: than the Forest Service has been allowing like this rule.
Speaker 4: So you know that's what he's playing to now. It's
Speaker 4: a shrinking base, but it's still strong enough that it
Speaker 4: controls his policy making.
Speaker 2: The Trump administration has taken many steps to reshape and
Speaker 2: shrink the scope of federal environmental protection. Each of those
Speaker 2: steps has been met with a flood of legal challenges
Speaker 2: from companies, environmental groups, and state officials. So far this summer,
Speaker 2: the Trump administration has been losing more than it's been
Speaker 2: winning in court. Over the past three months, federal courts
Speaker 2: nationwide have delivered rulings in several cases centered on attempts
Speaker 2: by the EPA to terminate billions of dollars in climate
Speaker 2: grants and roll back Biden era air policies, and in
Speaker 2: more than half of those cases, the judges have decided
Speaker 2: against the agency. Some of those lawsuits remain unresolved, and
Speaker 2: the EPA is looking to appeal some of the cases
Speaker 2: at lost. According to an EPA spokesperson, the Trump EPA
Speaker 2: is committed to following the law, and courts have affirmed
Speaker 2: our rules and actions in a variety of contexts. These
Speaker 2: wins rarely get the same attention in the media as
Speaker 2: short term losses. I've been talking to environmental law professor
Speaker 2: Pat Parento of the Vermont Law and Graduate School pat
Speaker 2: Do you see any pattern in these losses by the EPA.
Speaker 4: You know, the cases that have succeeded have all dealt
Speaker 4: with whether or not there's any merit to what the
Speaker 4: administration is doing in freezing and canceling funding. And by
Speaker 4: the way, a lot of these funds have actually been
Speaker 4: deposited in banks, and so they issued orders against the
Speaker 4: banks dispersing the money they're under contract. You would think
Speaker 4: that an administration would honor, you know, the contracts that
Speaker 4: the government has entered into. Maybe they wouldn't enter into
Speaker 4: any more of those kinds of contracts. But having done so,
Speaker 4: what kind of trust does that build in government decision making.
Speaker 4: The cases that have lost, by the way, have lost
Speaker 4: on jurisdictional grounds. In other words, the judges have said,
Speaker 4: these kinds of cases don't.
Speaker 1: Belong in my court.
Speaker 4: They belong in what's called the Court of Federal Claims,
Speaker 4: because they should be brought under what's called the Tucker Act, right,
Speaker 4: which does vest this particular court of claims with exclusive
Speaker 4: jurisdiction when you're trying to recover money from the federal government.
Speaker 4: So there is this thorny court sort of jurisdictional question
Speaker 4: of where do these cases belong, But that doesn't mean
Speaker 4: that the claims that the government has unlawfully breached these
Speaker 4: contracts in these agreements, that doesn't mean that they're wrong.
Speaker 4: It just means you should be going to a different
Speaker 4: court to lay your case right. And then of course
Speaker 4: there's Congress coming into the picture and saying, in some instances, yeah,
Speaker 4: we agree that what the Biden administration did with these
Speaker 4: grant programs is wrong, and we're going.
Speaker 1: To repeal them going forward.
Speaker 4: But that's a prospective kind of change.
Speaker 1: So there you are.
Speaker 2: I mean, did the Biden administration follow the rules they did?
Speaker 4: As far as I know it, Nobody, you know, the
Speaker 4: Trump administration is not saying, or if they are, I
Speaker 4: don't think they've got a court to agree that what
Speaker 4: the Biden administration did was illegal. They're just simply saying,
Speaker 4: we don't agree with it, and we don't want this
Speaker 4: money being spent on renewables and environmental justice and climate justice.
Speaker 4: We don't want that kind of DEI woke kind of
Speaker 4: expenditures being made, and so we're going to stop them.
Speaker 4: And as usual, they're going to say, if the courts
Speaker 4: try to stop us, we'll just keep appealing until we
Speaker 4: run out of the appeals that we can have.
Speaker 2: So in these instances, instead of you know, proposing a
Speaker 2: new rule and going through a noticing comment and all that,
Speaker 2: they just try to find a different way. How long
Speaker 2: does it take for the government, the federal government to
Speaker 2: put a rule in usually like how much time are
Speaker 2: we talking about that they're trying to.
Speaker 4: Say it can easily be a year, Oh key, if
Speaker 4: you really follow all the steps that are required a
Speaker 4: year or more on a big rule, it could be
Speaker 4: multiple years, right for these kinds of decisions, though, you know,
Speaker 4: you could you could probably do this in six months,
Speaker 4: but you would have to allow comment. You know, there's
Speaker 4: a lot of different steps. There's a Regulatory Flexibility Act
Speaker 4: that requires an economic analysis when you propose a rule,
Speaker 4: and you'd have to notice it in the Federal Register
Speaker 4: and allow comments. So yeah, I mean there are steps
Speaker 4: that you know, this administration doesn't want to take. But
Speaker 4: if they wanted to do a lot of the things
Speaker 4: they're doing, if they follow the process, cross the t's
Speaker 4: and dot the iss they could probably do a lot more,
Speaker 4: not as fast as they want to, and maybe not
Speaker 4: as much, you know, given the fact that they're already
Speaker 4: two years in to their term. Almost they wouldn't be
Speaker 4: able to accomplish as much, perhaps, but you know that's
Speaker 4: the law.
Speaker 1: Now.
Speaker 2: The EPA has had more success in court with smaller
Speaker 2: deregulatory moves and going back to the roadless rule for
Speaker 2: a moment, and the Trump administration's attempt to open up
Speaker 2: the forest to roads and commercial logging, et cetera. Are
Speaker 2: they moving faster in the second administration? Are they better
Speaker 2: prepared this time around?
Speaker 4: I think they're showing what I would call facile sophistication. Okay,
Speaker 4: I mean, so the USDA, which oversees the Forest Service,
Speaker 4: is articulating this policy decision, as the president has the
Speaker 4: power to change policies regarding management.
Speaker 1: Of national forests. That is true, And they're.
Speaker 4: Trying to say this is just returning control to the
Speaker 4: local Forest Service officials, right, So on the surface it
Speaker 4: sounds awful rational. But here's the thing. What they're not
Speaker 4: saying is what has the rule really done to make
Speaker 4: forest management more difficult?
Speaker 1: They don't make.
Speaker 4: A strong case in my view for that. There are
Speaker 4: six hundred district rangers. So this idea, idea of returning
Speaker 4: control to those people, that's what they're talking about these
Speaker 4: Forests Service district rangers right, well, that means there are
Speaker 4: going to be six hundred different decision makers, and that
Speaker 4: just means you're going to have more conflict, more controversy,
Speaker 4: more litigation because you're dispersing the decision making authority across
Speaker 4: a huge landscape, and each one of these individual rangers
Speaker 4: is going to be trying to figure out what am
Speaker 4: I supposed to be doing without national guidance. Without any
Speaker 4: national guidance, I'm supposed to figure out whether to put
Speaker 4: a road in here or not. So I don't think
Speaker 4: the rationale that this is just you know, returning control
Speaker 4: where it belongs, is going to pass muster. It's going
Speaker 4: to lead to more chaos, more conflicts.
Speaker 2: During his first administration, how much did he make in
Speaker 2: ways into you know, opening up the national forests.
Speaker 1: Not at all.
Speaker 4: I mean this was not a major impetus of his
Speaker 4: first administration. I mean there are lots of things that
Speaker 4: this is all goes back to the Project twenty twenty
Speaker 4: five textbook or rule book. And so he's paying heed
Speaker 4: to the western constituents that he has, and they're obviously
Speaker 4: a lot of very strong Republican states and districts in
Speaker 4: the West, and they've had a long term fractious relationship
Speaker 4: with government. You know, federal agencies that manage public lands.
Speaker 4: You know that they like the idea of having public lands.
Speaker 4: They just want to be able to exploit them more
Speaker 4: than the Forest Service has been allowing like this rule.
Speaker 1: So you know that's what he's playing to.
Speaker 5: Now.
Speaker 4: It's a shrinking base, but it's it's still strong enough
Speaker 4: that it controls his policy making.
Speaker 2: Thanks so much, Pat, as always, that's Professor Pat Parento
Speaker 2: of the Vermont Law and Graduate School. It was a
Speaker 2: year ago that a DC resident became a symbol of
Speaker 2: the resistance to the hundreds of National Guard troops and
Speaker 2: federal law enforcement agents on the streets of the city.
Speaker 2: A video of Sean Charles Dunn tossing a subway sandwich
Speaker 2: at an ice officer went viral, and then there were
Speaker 2: the banksy style posters of him tossing the sub along
Speaker 2: with free DC sandwich themed flags, t shirts, and tote bags.
Speaker 2: While DCUs attorney Jeanine Piro decided to put out her
Speaker 2: own video bragging about charging done a decorated Air Force
Speaker 2: veteran with a felony for tossing the sandwich.
Speaker 6: And then he took a subway sandwich about this big
Speaker 6: and took it and threw it at the officer.
Speaker 1: He thought it was funny.
Speaker 6: Well, he doesn't think it's funny today because we charged
Speaker 6: it with a felony assault on a police officer, and
Speaker 6: we're going to back the police to the hilt. So there,
Speaker 6: stick your subway sandwich somewhere else.
Speaker 2: But those charges didn't stick. A grand jury refused to
Speaker 2: return a felony indictment, and at trial a jury acquitted
Speaker 2: done of even a misdemeanor charge. But the case has
Speaker 2: had a lasting effect on him. He lost his job
Speaker 2: and had to leave DC because of threats to him
Speaker 2: and his family. His case is in an aberration. In
Speaker 2: the weeks that followed, federal prosecutors in DC flooded the
Speaker 2: US District Court with twenty seven cases charging people with
Speaker 2: assaults on federal officers, only to ultimately dismiss the vast
Speaker 2: majority of them. Joining me is Keith Alexander, editor at
Speaker 2: Lodge at Bloomberg Law. Keith explained what happened to the
Speaker 2: charges against Dunn.
Speaker 5: Prosecutors initially charged Sean Carlls Dunn with fell in the
Speaker 5: assault on an officer when he threw his thirty sandwich
Speaker 5: from subway restaurant at a customs patrol officer. No surprise
Speaker 5: really that a grand jury refused to indict him on
Speaker 5: such a felony. So that caused the prosecutors to lower
Speaker 5: the charge to a misdemeanor, and they went the trial
Speaker 5: and after three days of testimony and actually a day
Speaker 5: and a half of the liberations, a jury found Sean
Speaker 5: Dunn not guilty of assault. I did speak to some
Speaker 5: jurors on that trial. They told me that while they
Speaker 5: did find that Dun did hit the officer with the sandwich,
Speaker 5: it did not rise to the level of the assault
Speaker 5: that was needed for a misdemeanor charge. And matter of fact,
Speaker 5: one juror said, this whole case was a bunch of baloneys.
Speaker 2: And Keith, you spoke to Dunn and he's not been
Speaker 2: having an easy time of it even though he was acquitted.
Speaker 5: It was a first interview that mister Dune has given
Speaker 5: since he went through all of this, and he's been
Speaker 5: pretty much in hiding since he was acquitted. Mister Dunn
Speaker 5: did lose his job as a paralegal. He worked for
Speaker 5: the Justice Department right after the arrest, and so I
Speaker 5: was thinking, well, you were acquitted, life is probably good
Speaker 5: for you. You lost your job, but you can find
Speaker 5: another one. Well that wasn't the case. Mister Dunne said
Speaker 5: that both he and his family received numerous threats. He
Speaker 5: has relocated outside of the Washington, DC area and out
Speaker 5: of fear, he refused to say where he is now.
Speaker 5: He is considering following a lawsuit against both the federal
Speaker 5: government and Washington d C because d C refused to
Speaker 5: pay him unemployment. So he has now struggling trying to
Speaker 5: find a new world, if you will, in this post
Speaker 5: acquittal life.
Speaker 2: He's starting all over again. Basically, he lost.
Speaker 5: His pension after working for the federal government for over
Speaker 5: eleven years. He was in Washington, d C. For about
Speaker 5: four years. Yes, he is starting all over again.
Speaker 2: This was one of twenty seven cases that federal prosecutors
Speaker 2: in DC brought charging people with assaults on federal officers,
Speaker 2: which can carry years in prison. You looked into this,
Speaker 2: tell us what happened to those cases.
Speaker 5: Well, actually what happened was federal prosecutors actually brought a
Speaker 5: total of twenty seven cases between August and as of
Speaker 5: a few weeks ago of people who were charged with
Speaker 5: assaulting federal officers. Twenty three of those twenty seven cases
Speaker 5: were filed literally within two or three months of each other.
Speaker 5: So between August, September and October, the courthouse was flooded
Speaker 5: with all of these assault on federal officer charges for
Speaker 5: about two or three months. What happened during this time
Speaker 5: defense attorneys pushed back. Defense attorneys basically said that although
Speaker 5: President Trump ordered members of the National Guard to come
Speaker 5: into the streets of Washington, DC to reduce crime, assault
Speaker 5: on a National Guard officer is not an assault on
Speaker 5: a federal officer because National Guards members are not federal officers. Also,
Speaker 5: assault on a DC police officer, despite the fact that
Speaker 5: this was part of a federal church, is not a
Speaker 5: federal offense. And so for two or three months you
Speaker 5: had defense attorneys and judges trying to figure out, why
Speaker 5: are these cases in federal court? These are not federal
Speaker 5: assault cases. And as you point out June, these federal cases,
Speaker 5: if convicted, these individuals would have faced years in prison.
Speaker 5: And so what happened after a few months, the prosecutors
Speaker 5: began dismissing these cases as a matter of fact, they
Speaker 5: dismissed eighteen of the twenty seven cases. Now the defendent
Speaker 5: penders are trying to get some of those cases expunged,
Speaker 5: trying to get people to have the cases totally erased
Speaker 5: from their record, and for whatever reason at the time,
Speaker 5: the prosecutors refused.
Speaker 1: To do that.
Speaker 5: Well, we soon learned why the prosecutors dismissed the federal
Speaker 5: charges and they lowered downgrade the charges to miss demeanors
Speaker 5: in a DC Superior court a lower court. So a
Speaker 5: lot of those cases that were dismissed, those eighteen cases
Speaker 5: are now active cases in DC Superior Court.
Speaker 2: As you wrote, a magistrate judge criticized the US Attorney's
Speaker 2: office during a September hearing for filing and dismissing so
Speaker 2: many cases in the federal courthouse because they were clogging
Speaker 2: up the court. Is that what he was concerned about,
Speaker 2: or more about the rights of the people involved.
Speaker 5: Actually, it was both. Josh Charbo said that it was
Speaker 5: becoming evident that the prosecutors were just following these cases
Speaker 5: without knowing d C law. So I spoke to one
Speaker 5: of the defense attorneys. That's that's what she said, that
Speaker 5: you had all these new prosecutors who came in to
Speaker 5: the US Attorney's office because there was a high turnover
Speaker 5: of prosecutors veteran prosecutors who left the office, and these
Speaker 5: new prosecutors did not know DC law, did not no
Speaker 5: federal law, and they were just following these cases. And
Speaker 5: the judge was like, these cases are not going to stick.
Speaker 5: You don't have enough evidence. And as I said earlier,
Speaker 5: the led victims are not federal officers, so these are
Speaker 5: not federal assault charges. You're clogging up my courtouse. And
Speaker 5: so between the judge saying that and the defense attorneys
Speaker 5: pushing back saying the individuals who were, unlesslie assaulted were
Speaker 5: not federal officers. Now, let's talk about some of these assaults, Jude,
Speaker 5: if we can. When I went through these cases, majority
Speaker 5: of these cases were headbutts, spitting, kicking, grabbing chest bumps
Speaker 5: during the course of an arrest, where I'm sure your
Speaker 5: listeners know when people are being arrested, there's this push
Speaker 5: and take, and if someone pulls away and as they're
Speaker 5: pulling away their elbow hits the officer, they were being
Speaker 5: charged with federal assault on an officer. That was the
Speaker 5: majority of these cases that were ultimately dismissed.
Speaker 2: On August twenty second, thirty two year old Crystal Rios
Speaker 2: Esquavelle wanted to see a new bird exhibit at the
Speaker 2: National Zoo and went in through the wrong door. Tell
Speaker 2: us what happened to.
Speaker 5: Her, so mits Rios has you know, she's in her thirties.
Speaker 5: She has suffered from anxiety and traumas to have been
Speaker 5: treated since she was fifteen sixteen years of age, and
Speaker 5: she went to the National Zoos on a nice August
Speaker 5: day and inadvertently went into a door that had employees only.
Speaker 5: She said she did not see the employee only sign.
Speaker 5: She heard a buzzer go off. As soon as the
Speaker 5: buzzer went off, she immediately exited and as she was
Speaker 5: exiting the door, officers came and then she found herself
Speaker 5: surrounded not by one or two, but three officers, and
Speaker 5: one of the officers lunged at her and tried to
Speaker 5: grab it. She said, please don't touch me because I
Speaker 5: am dealing with anxiety, and they did not take into it,
Speaker 5: and they grabbed her. She spat on one of the
Speaker 5: officers and then she hit one of the officers. She
Speaker 5: was then charged with assault on a federal officer. Now again,
Speaker 5: these are DC officers, and she should not have been
Speaker 5: charged with a federal offense involving DC officers. That case
Speaker 5: was initially charged in federal court. For about a week,
Speaker 5: Miss Reel sat in DC jail, mainly because the paperwork
Speaker 5: pretty much got lost. Her attorney had to file and
Speaker 5: emergency request with the judge, and at the end of
Speaker 5: the following she put the word help HGLP all in
Speaker 5: the capital letters and exclamation points, the words helped me
Speaker 5: get my clients out of jail who's been sitting there
Speaker 5: for four or five days on a charge of spitting
Speaker 5: on an officer. The case was ultimately dismissed and then
Speaker 5: it was rebrought as a misdemeanor in superior courts and
Speaker 5: she was able to enter in a divergence program, which
Speaker 5: a lot of these misdemeanter cases ultimately go to a
Speaker 5: diversion program, meaning if the defendant does X, Y, and Z,
Speaker 5: prosecutors will agree to dismiss all charges. Miss Reels went
Speaker 5: through a mental illness program where she got new medication therapy.
Speaker 5: She finished the program with flying colors. Prosecutors agreed to
Speaker 5: then dismiss the charge and Keith.
Speaker 2: I understand that some federal prosecutors in DC are starting
Speaker 2: to push back.
Speaker 5: These federal prosecutors have a license in Washington, DC to
Speaker 5: practice law. There is an outfit in DC that actually
Speaker 5: investigates both the fifth attorneys and prosecutors for unethical behavior
Speaker 5: i e. Bringing cases or hiding evidence or things of
Speaker 5: that nature that consider unethical, and if they are found
Speaker 5: to be unethical, these individuals could lose their bar license.
Speaker 5: New York Mayor Giuliani went through this, and so what
Speaker 5: we're founding is that these prosecutors who are on the
Speaker 5: front lines investigating these cases because their bosses are telling
Speaker 5: them to do so and file these charges, are now
Speaker 5: pushing back and saying, you won't lose your license. I
Speaker 5: work too hard to get my bar license here. If
Speaker 5: I bring these cases, I either Reflecting Pool in other cases,
Speaker 5: I could lose my bar license. And so I think
Speaker 5: we're now seeing some of these federal prosecutors who are
Speaker 5: pushing back and saying they are not going to push
Speaker 5: forward some of these cases. And we might have seen
Speaker 5: that with Reflecting Pool.
Speaker 2: Thanks so much for joining me, Keith. Great story. That's
Speaker 2: Keith Alexander, Editor at Large at Bloomberg Law. And that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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