Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 1: I just know that on a day like today, that
Speaker 1: redemption is possible.
Speaker 2: Thirty five years after they were sentenced to life in
Speaker 2: prison without the possibility of parole for the cold blooded
Speaker 2: murders of their parents, a remarkable turn for Eric and
Speaker 2: Lyle Menendez. They now have a chance of getting out
Speaker 2: of prison. Family members have supported the brothers throughout the years,
Speaker 2: and they were in court yesterday at the re sentencing
Speaker 2: hearing to testify that not only were Eric and Lyle rehabilitated,
Speaker 2: but they helped other prisoners, including by starting support groups.
Speaker 3: Ultimately, we are here today with this result because of
Speaker 3: Eric and Lyle, because they had They chose to live
Speaker 3: their lives with clarity and a purpose of service that
Speaker 3: the judge was impressed by.
Speaker 4: This is something my grandmother, Joan, has fought for her
Speaker 4: for thirty five years. I really wish she was here today,
Speaker 4: but I'm really excited to give her the news.
Speaker 2: LA District Attorney Nathan Hoffman had attempted to block the
Speaker 2: resentencying at every turn, arguing repeatedly that Eric and Lyle
Speaker 2: had not admitted to lies told during their trial about
Speaker 2: why they killed their parents, nor have they taken complete
Speaker 2: responsibility for their crimes.
Speaker 5: Whether it's some Menenda's brothers or anyone who basically engaged
Speaker 5: in a horrific, brutal killing of their parents, shotgunning their
Speaker 5: parents over thirteen times when they were adults eighteen and
Speaker 5: twenty one years old, I would have concern whether it's
Speaker 5: the Menenda's brothers or anyone it fits that profile.
Speaker 2: Both Eric and Lyle addressed the court and took responsibility
Speaker 2: for the murders of their parents and the lies they
Speaker 2: told in court. Eric said, I have profound sorrow for
Speaker 2: the tragedy I created. I took the lives of my
Speaker 2: mom and dad. My actions were criminal, cruel, and cowardly.
Speaker 2: Lyle said, I killed my parents. I offer no excuse
Speaker 2: and I don't blame my parents. Judge Michael Jessic resentenced
Speaker 2: the brothers, reducing their sentences from life in prison without
Speaker 2: parole to fifty years to life, making them immediately eligible
Speaker 2: for parole. But there's still a long road ahead that
Speaker 2: goes through the parole board and the governor. Joining me
Speaker 2: is Dave Ahrenberg, former Palm Beach County State Attorney and
Speaker 2: managing partner of Dave Arenberg Law. Dave, let's talk about
Speaker 2: what this resentencing hearing was and what it wasn't. It
Speaker 2: wasn't about re litigating the murders, but it was about
Speaker 2: whether the brothers have been rehabilitated.
Speaker 1: The hearing was surely for the judge, that is, whether
Speaker 1: or not the Menendez brothers can be resentenced, and he
Speaker 1: heard testimony from family members and decided that in the
Speaker 1: interest of justice, that Menanda's brothers would be resentenced under
Speaker 1: the rules of the time, which permitted someone who committed
Speaker 1: such a horrific offense who's under the age of twenty
Speaker 1: six to be eligible for parole. The thing is, at
Speaker 1: the time they were sentenced to life in prison without parole,
Speaker 1: but now they're changing it to with pearol, and now
Speaker 1: the Menendez brothers can go before the parole board to
Speaker 1: let him out early.
Speaker 2: Nathan Hoffman, the LA District attorney, opposed to resentencing and
Speaker 2: attempted to block it in every way he could. Why
Speaker 2: was he so opposed to it?
Speaker 1: He ran on a law and ordered platform and he
Speaker 1: got elected to be tougher on crime as opposed to
Speaker 1: the predecessor Gassone, who was seen as one of those
Speaker 1: Soros reform prosecute. So this is in line with Takman's
Speaker 1: brand to be tough on crime, and he represented what
Speaker 1: I considered like this press the silent majority, not the
Speaker 1: celebrities who came out and masked to support the Menendez brothers,
Speaker 1: but people who said, I remember this horrific crime and
Speaker 1: they were sentenced a life in prison. To get life
Speaker 1: in prison, and that didn't mean thirty five years in prison.
Speaker 2: The testimony was from family members of the Menendez brothers
Speaker 2: and it was about how they have rehabilitated themselves in prison.
Speaker 1: The family members were the biggest supporters of an early release.
Speaker 1: Now all the family members but seemingly one who passed away,
Speaker 1: wanted them out early. But the district attorney does not
Speaker 1: represent the victim, does not represent the family members. They
Speaker 1: represent the people. That's why it's usually the people versus
Speaker 1: Menendez or the state versus Menendez. And in this case,
Speaker 1: the decision of the district attorney was that it is
Speaker 1: in the interest of the people of California that the
Speaker 1: Menenda's brothers stay behind bars.
Speaker 2: So they were model prisoners. Apparently, Lyle had absolutely no
Speaker 2: you know, write ups for violence in the years they
Speaker 2: were in prison. Apparently Eric had won. That was twenty
Speaker 2: five years ago, So there really was no evidence that
Speaker 2: they hadn't reformed themselves, was there.
Speaker 1: Well, there was a report that showed that they did
Speaker 1: have contraband inside the prison, which was cell phone and
Speaker 1: potential drugs. That's part of a report, and whether or
Speaker 1: not that means they have not been reformed. Well, when
Speaker 1: it comes to violence, they clearly did not commit anything
Speaker 1: like that in prison. They were different people behind bars,
Speaker 1: they helped others. But yet there are a lot of
Speaker 1: people who find God behind bars and they help others,
Speaker 1: and they don't get released early from a life sentence.
Speaker 1: So it seems that the celebrity in this case, the
Speaker 1: power of celebrity made a real difference.
Speaker 2: I wonder if this would have happened if you hadn't
Speaker 2: had that Netflix documentary that sort of introduced a whole
Speaker 2: new generation of people to the Menendez brothers in a
Speaker 2: sympathetic way.
Speaker 1: I agree the power of streaming, the power of celebrity.
Speaker 1: I think the Menendez brothers became a cause celeb and
Speaker 1: as a result, they got some benefits from it. They
Speaker 1: got all this worldwide attention they had the best lawyers
Speaker 1: possible for them, and they were able to convince the
Speaker 1: district attorney to side with them to get a resentencing.
Speaker 1: And then that district attorney lost the election, but the
Speaker 1: judge went ahead with it anyways, And now it's up
Speaker 1: to the pro board and the governor, and I think
Speaker 1: they will be let out early. I don't think there
Speaker 1: are any risk of reoffending any violent crime. I think
Speaker 1: they did get reform behind prison walls. But on the
Speaker 1: other hand, how many other people in their situation get
Speaker 1: this benefit, get sentence to life in prison and they
Speaker 1: get out early because they were good prisoners. Not many.
Speaker 1: But this case was treated differently because of the celebrity involved,
Speaker 1: because of the notoriety, and that's the issue I have.
Speaker 1: I just don't think they were treated like everyone else.
Speaker 2: But in their second trial, the judge limited the testimony
Speaker 2: about the allegations of abuse, and it's possible the jury
Speaker 2: would have come out with a verdict of manslaughter instead
Speaker 2: of murder if the abuse allegations had gotten a full hearing.
Speaker 1: Well, that was a judge's determination at the time, and
Speaker 1: the crimes were not overturned on appeal. I mean the
Speaker 1: proper venue. If you think that the judge made a
Speaker 1: bad decision is to appeal it. But the appellate courts
Speaker 1: did not agree, thought that they got a fair trial.
Speaker 1: And as far as being led out, the real reason
Speaker 1: why they're being led out, apparently, at least according to
Speaker 1: the previous DA, was because of their good behavior behind bars.
Speaker 1: But there are a lot of people behind bars who
Speaker 1: act with good behavior and they don't get let out early.
Speaker 1: The difference here to me is the celebrity aspect of
Speaker 1: it that doesn't exist in other cases.
Speaker 2: The DA Hawkman had complained over and over that they
Speaker 2: hadn't taken responsibility for the crimes, but both brothers made
Speaker 2: these remarkable statements accepting full responsibility for the murders. Lyle
Speaker 2: said that all the choices he made were his own,
Speaker 2: including quote the choice to reload, return to the den,
Speaker 2: and run up to my mother and shoot her in
Speaker 2: the head. And he apologized for making a mockery of
Speaker 2: the criminal legal system by lying. Does that seem like
Speaker 2: the kind of apology that the LADA was looking for.
Speaker 1: It does, and that's something that I thought has been underreported.
Speaker 1: I'm glad you brought it up to gen because Hawkman
Speaker 1: had asked for a real apology, said enough of this abuse,
Speaker 1: excuse take responsibility for your actions. Stop saying that you
Speaker 1: had to kill your parents because they would have killed
Speaker 1: you first. That was a lie all along. And I
Speaker 1: do believe with their statements that they went a long
Speaker 1: way towards meeting Kachman's request, and that's why I think
Speaker 1: that they will be released earlier. I do think that
Speaker 1: this was as close to a full fledged apology acknowledgment
Speaker 1: of guilt that we have ever seen from them. It
Speaker 1: was something different than before, and I think that's going
Speaker 1: to lead to their early release.
Speaker 2: The judge called the crime shocking. He said he was
Speaker 2: also shocked by the number of corrections officials who wrote
Speaker 2: letters on behalf of the brothers, and that seemed to
Speaker 2: be an important part of his decision.
Speaker 1: It was something that corrections officials and family members all
Speaker 1: sided with them, and I do think the celebrity part
Speaker 1: of it has something to do with it. The Netflix
Speaker 1: shows the movement behind them. Yeah, I think that did
Speaker 1: persuade people. But I do think also there's really little
Speaker 1: doubt that they are different people today than they were
Speaker 1: back there. They were real spoiled, selfish kids. Who acted
Speaker 1: in a brutal, horrific way. I mean the fact that
Speaker 1: the mother who did not engage in sexual abuse but
Speaker 1: may have helped cover it up. But she was crawling
Speaker 1: away after being shot by a shotgun, and then the
Speaker 1: brothers went outside to reload to continue to come in
Speaker 1: and shoot her ten times, including in the face. There
Speaker 1: was so much blood on the scene that the cops
Speaker 1: thought this was a mafia hit, and yet they lied
Speaker 1: about everything. They went on a spending spree. Only after
Speaker 1: spending seven hundred thousand dollars in quick turn did they
Speaker 1: attract the attention of law enforcement and then were eventually arrested.
Speaker 1: But they got away with it for a while. They
Speaker 1: got what they wanted, and I thought they deserved their sentence.
Speaker 1: But you know, they are reformed, and if the system
Speaker 1: lets them out early, I don't think they will reoffend.
Speaker 2: Coming up next on the Boomberg Law Show, I'll continue
Speaker 2: this conversation with Dave Arenberg. We'll talk about the three
Speaker 2: paths to freedom the Menendez brothers have right now, and
Speaker 2: an update on their racketeering and sex trafficking trial of
Speaker 2: Seawan Combe's I'm June Grosso and you're listening to Bloomberg,
Speaker 2: Eric and Lyle Menendez have been given their first chance
Speaker 2: at freedom in decades. A Los Angeles judge reduced the
Speaker 2: brother's sentences from life in prison without parole to fifty
Speaker 2: years to life, making them immediately eligible for parole. But
Speaker 2: there's a long road ahead. The brothers now have three
Speaker 2: potential paths to freedom, through the Parole Board, which could
Speaker 2: grant them parole, through the governor, who could grant them
Speaker 2: executive clemency, and through a petition for habeas corpus, where
Speaker 2: a judge could grant them a new trial. I've been
Speaker 2: talking to former Palm Beach County State Attorney Dave Ahrenberg. Dave,
Speaker 2: their clemency hearing is already set for June thirteenth, and
Speaker 2: as part of the clemency hearing, the Parole Board already
Speaker 2: conducted an evaluation to determine what dangers the brothers may
Speaker 2: pose if released. It's called a comprehensive risk assessment. Here's
Speaker 2: what la DA Nathan Hoffman said about the findings.
Speaker 6: We have this additional new information coming in from the
Speaker 6: border Parole senior psychologists that have assessed that risk as
Speaker 6: a moderate risk, not a high risk. Not a low risk,
Speaker 6: but a moderate risk.
Speaker 2: So what do you think is the best path for
Speaker 2: them to get released.
Speaker 1: I was actually surprised when I saw that moderate risk.
Speaker 1: I don't think they will REAFFCD. I mean, there's so
Speaker 1: many eyeballs on these guys. They're going to go on
Speaker 1: the speaking circuit, they're gonna go through reality shows. I mean,
Speaker 1: I think it's unfair because they're going to be treated
Speaker 1: in a way that others are not. They're going to
Speaker 1: get super celebrity and make a lot of money off this,
Speaker 1: and no one should profit off their infamy. But I
Speaker 1: do think that the two tracks will lead to their
Speaker 1: early release, whether it's the Governor Newsom track of the
Speaker 1: clements see board and then signed by the governor or
Speaker 1: the parole board, which is what the judge just sanctioned.
Speaker 1: So either way, I think they're headed towards the release.
Speaker 2: And if the parole board does deny parole, it has
Speaker 2: to do so for a period of three, five, seven,
Speaker 2: ten or fifteen years, so it could deny parole and
Speaker 2: then say, well, come back in three years.
Speaker 1: I would think that would be probably the best case
Speaker 1: scenario for those who want Meananda's brothers to stay behind bars.
Speaker 1: I do not envision them remaining behind bars that much longer,
Speaker 1: so three years may be the outer limit.
Speaker 2: They also filed the habeas corpus petition seeking a new trial.
Speaker 2: Is that still in play?
Speaker 1: That was always the most unlikely thing to happen. Of
Speaker 1: the three of the three choices, three real choices. They
Speaker 1: had the resentate thing, they had the clemency, and then
Speaker 1: they had the habeasts. But the Habeasts was sort of
Speaker 1: a dead end. The other two, though, bore fruit, and
Speaker 1: I think that that's going to lead to their early release.
Speaker 1: But you know, I just wonder had there not been
Speaker 1: Netflix documentaries, would they be in this situation, had Kim
Speaker 1: Kardashian others not taken up their cause, would they be
Speaker 1: in this situation? They committed a horrific, brutal murder and
Speaker 1: lied about it for years, and now they're ready to
Speaker 1: be released after thirty five years of serving a life sent.
Speaker 2: I mean, new evidence had emerged. Did that play any
Speaker 2: part in this resentencing hearing?
Speaker 1: I think it did, because the judge took everything into account.
Speaker 1: It was more than the good behavior. It was the
Speaker 1: fact that there was evidence that the sexual abuse from
Speaker 1: Jose did occur, not conclusive evidence, but we had a
Speaker 1: letter that one of the Menanda's brothers wrote to a
Speaker 1: cousin that mentioned it. There was also the Menudo boy
Speaker 1: band member who said that Jose engaged in sexual abuse
Speaker 1: with him. So yeah, there is evidence, and that's why
Speaker 1: it could be a manslaughter case instead of a murder
Speaker 1: case as it applies to Jose. And I'm okay if
Speaker 1: they want to let him out early for the murder
Speaker 1: of Jose because of this new evidence, because it been
Speaker 1: good prisoners. The problem I had is the murder of
Speaker 1: them mother Kitty, who did not engage in sexual abuse,
Speaker 1: and they said, well, she enabled them, But here are
Speaker 1: their parents sitting watching TV with their backs turn eating
Speaker 1: ice cream, getting blown away with shotguns by these boys
Speaker 1: who meticulously planned this brutal murder, and then they went
Speaker 1: on a shopping spree after covering it all up. And
Speaker 1: the way they murdered Kitty was so horrific and so
Speaker 1: cold calculated and cruel that I don't think that's a
Speaker 1: manslaughter case. I think that's a murder conviction and should
Speaker 1: stay as a murder conviction. But as I said before,
Speaker 1: this case was really never treated the same as other
Speaker 1: cases from the beginning.
Speaker 2: We'll see what happens with the clemency hearing in about
Speaker 2: a month. Let's turn for a moment to the Sean
Speaker 2: Diddy Combe's trial. It's day three of Combe's trial. He's
Speaker 2: charged with racketeering, conspiracy, sex trafficking, and transportation to engage
Speaker 2: in prostitution. His former girlfriend, Cassie Venture, is on the
Speaker 2: stand for the second day, talking about her decade long
Speaker 2: relationship with Colmbs that she says was plagued by jealousy, violence,
Speaker 2: and humiliating sex. The prosecution seems to have a wealth
Speaker 2: of evidence of violence of violent acts. Is that enough
Speaker 2: in this case?
Speaker 1: Well, it's not enough just for there to be violent.
Speaker 1: There needs to be more, and I think they have more.
Speaker 1: They've got more because they have more than one witness
Speaker 1: who's going to testify to These freak coughs and the
Speaker 1: freak COFs are in themselves not necessarily illegal, but it
Speaker 1: is illegal when it involves involuntary sexual conduct, when it
Speaker 1: involves alleged human trafficking, when it involves a racketeering an
Speaker 1: ongoing criminal enterprise to service ditty and committing various crimes
Speaker 1: along the way, like arson and obstruction of justice, witness intimidation,
Speaker 1: and all these other types of crimes that fit under
Speaker 1: the racketeering ruber. So, you know, standing alone, maybe there
Speaker 1: are not all times that would have been prosecuted. The
Speaker 1: defense is that this is the domestic violence case, this
Speaker 1: is not a racketeering case, this is not a human
Speaker 1: trafficking case. But taken all together, it does look like
Speaker 1: they have enough evidence to sustain the conviction. And Cassie
Speaker 1: taking the stand yesterday and today has been devastating for
Speaker 1: the defense because she is the one who connects all
Speaker 1: the dots in this case, and she's been a very
Speaker 1: compelling witness, not to mention she's also eight months pregnant,
Speaker 1: so she's a very sympathetic witness as well.
Speaker 2: During the opening statements, the defense attorney claimed that Combe's
Speaker 2: accusers were motivated by money, and she said that Cassie
Speaker 2: Ventura demanded thirty million dollars when she sued him. Quote,
Speaker 2: I want you to ask yourself, how many millions of
Speaker 2: reasons does this witness have to lie? So we can
Speaker 2: assume that that's going to be part of the cross
Speaker 2: examination and why she didn't report it to police and
Speaker 2: instead file the civil suit. Against him.
Speaker 1: She set this all emotion by suing him. It's something
Speaker 1: that takes a lot of courage to be able to
Speaker 1: file something. And it wasn't a money grab when you
Speaker 1: have the other party selling it within a day like essentially,
Speaker 1: they keep her quiet. So if he wants to bring
Speaker 1: up that this is a civil case of money grabbed,
Speaker 1: it's a look bad for him to say, yeah, I
Speaker 1: settled with it a day. That's something you don't do
Speaker 1: unless you know you've done it. So it cuts both ways. Yes,
Speaker 1: you can say why didn't you report this to the
Speaker 1: police and why did you just sue? Well, okay, but
Speaker 1: look what happened. She sued and then the police got involved,
Speaker 1: and so that led to the criminal charges. It's because
Speaker 1: of Cassie that this whole trial is even a current.
Speaker 1: And then he also lied about the fiscal violence all
Speaker 1: of a sudden, he admitted to it only after that
Speaker 1: horrific video came out. That video is very telling. They
Speaker 1: played it already in front of the jury and the
Speaker 1: jury must be appalled by it because that's the only
Speaker 1: thing is it ever admitted to, it seems, is the
Speaker 1: physical violence on that day at that moment, because that
Speaker 1: was the act that was caught on video.
Speaker 2: I read that Diddy was offered a plea deal and
Speaker 2: turned it down. I don't know what he was offered,
Speaker 2: but it does seem like this defense is going to
Speaker 2: be an uphill battled to say the least. So what's
Speaker 2: the defense going to look like?
Speaker 1: The defense is consent, and consent is a legitimate defense
Speaker 1: when you're dealing with adults who allegedly are victims of
Speaker 1: human trafficking. If there were miners consent, it's not a defense.
Speaker 1: But to get a human trafficking conviction, you need force,
Speaker 1: fraud or coercion. Well that's where that video comes into play.
Speaker 1: The force that was used. Her claims a physical violence
Speaker 1: are buttressed by that video. So if they can prove force,
Speaker 1: fraud a coorsion, then all you need is one victim
Speaker 1: and he goes down. But they're trying to show a
Speaker 1: pattern of activity to get that racketeering conviction. And then
Speaker 1: there's the other charges of the man acts by relations,
Speaker 1: which is when you take individuals across state lines or
Speaker 1: purposes of the prostitution. So I think the prosecution has
Speaker 1: enough to win a conviction and to keep Ditty behind
Speaker 1: bars for the rest of his life. The defense is
Speaker 1: going to try their best to poke holes in the
Speaker 1: victims stories and to show that this was a consensual
Speaker 1: activity of these freak coughs. But I don't know. I mean,
Speaker 1: yesterday's and today's testimony, we're going to continue to hurt
Speaker 1: the defense because Cassy comes across as very credible and
Speaker 1: the stuff she's saying is so salacious that it has
Speaker 1: to move the jury.
Speaker 2: So did he took videos of these so called freak
Speaker 2: offs and today they showed the jury stills of them.
Speaker 2: Do you think that just seeing these graphic images will
Speaker 2: impact the jury's view of him.
Speaker 1: There's a rule of evidence that says that the evidence
Speaker 1: is not going to be admitted if it's more prejudicial
Speaker 1: than it is probative, if it's just used for salaciousness,
Speaker 1: if it's just used to inflame the jury. But here
Speaker 1: it's part of the charge, so it is relevant, and
Speaker 1: it is very salacious, and it will have an effect
Speaker 1: on the jury. How do you not when you hear
Speaker 1: things that I can't even repeat on this program, it
Speaker 1: would be believed. You can imagine how the jury feels
Speaker 1: that this was real life. So that's why I think
Speaker 1: that it will come back to haunt Diddy. Now, what's
Speaker 1: ironic is that our culture now, our society, is that
Speaker 1: if he gets acquitted, he'll go back to making records
Speaker 1: and being the super celebrity he is, when in any
Speaker 1: other time you would think that just these allegations, just
Speaker 1: this kind of testimony, would destroy someone's reputation in the
Speaker 1: court of public opinion. But nowadays it seems like even
Speaker 1: being infamous can get them paid.
Speaker 2: I don't know, Dave, Even if he's acquitted, I'm not
Speaker 2: sure he could make a comeback, but he certainly has
Speaker 2: the huge hurdle of a jury verdict ahead of him. First,
Speaker 2: thanks so much for being on the show, Dave. That's
Speaker 2: Dave Ehrenberg, former Palm Beach County state attorney. Coming up
Speaker 2: next on The Bloomberg Last Show, we'll look at whether
Speaker 2: the US Trade Court might block Trump's Liberation Day global tariffs.
Speaker 2: I'm June Grossel. When you're listening to Bloomberg. President Trump's
Speaker 2: global tariffs are facing a key test in US Trade Court.
Speaker 2: A group of small businesses is urging the court to
Speaker 2: block the tariffs, arguing that Trump invoked a bogus national
Speaker 2: emergency to justify them. The businesses claim that Trump's use
Speaker 2: of the International Emergency Economic Powers Act or IEPA is
Speaker 2: an unprecedented and unlawful expansion of presidential authority that would
Speaker 2: allow him to impose tariffs without meaningful judicial review. The
Speaker 2: Trump administration is arguing that the president's emergency declaration is justified,
Speaker 2: saying the cumulative effects of annual trade deficits are a
Speaker 2: threat to the US economy and supply chain, and further
Speaker 2: that the courts don't have the authority to review Trump's
Speaker 2: interpretation of what an extraordinary threat is. The fight could
Speaker 2: impact trillions of dollars in global trade, and comes amid
Speaker 2: a wave of legal challenges to Trump's executive orders, which
Speaker 2: are testing the limits of presidential power on everything from
Speaker 2: federal spending to restrictions on birthright citizenship. Joining me is
Speaker 2: Bloomberg Intelligence litigation analyst Holly From. First of all, this
Speaker 2: is a little known federal court. Tell us about this court.
Speaker 7: So it's the International Trade Court in downtown Manhattan, and
Speaker 7: it handles to speaks arising from terroriffts. So any law
Speaker 7: that provides for a terriff presumably goes to that court.
Speaker 7: Although there is some dispute about whether these lawsuits are
Speaker 7: jurisdiction is whether the International Trade Court has jurisdiction over these.
Speaker 2: Cases the Trump administration. Eric Hamilton was the lawyer, and
Speaker 2: he claimed that the question here is a political question
Speaker 2: and that the Court doesn't have the right to decide it.
Speaker 7: That's right. So he's saying that because there's no standard
Speaker 7: about how the court can determine whether there's an emergency
Speaker 7: that meets the International Emergency Economic Powers Act standards, which
Speaker 7: is AEPA. Because there's no standards, there's no discoverable standard,
Speaker 7: that it's a nonussible question. So only the political branches,
Speaker 7: Congress and the President have power to decide whether this
Speaker 7: emergency is trade doesn't sit meet that emergency provision in AEPA.
Speaker 2: How did the judges react to that that they don't
Speaker 2: have the power to decide this.
Speaker 7: I think they pretty much disagreed with that. I think
Speaker 7: that's pretty clear. You know, they said that there is
Speaker 7: this provision that says, you know that a declaration of
Speaker 7: emergency is not reviewable. But because they put these two
Speaker 7: magic words in the statue, which is there has been
Speaker 7: declaration of emergency that presents an quote unusual an extraordinary
Speaker 7: threat to national security or the economy. Because Congress put
Speaker 7: those words in the statute, it was meant for the
Speaker 7: judiciary to interpret that. Why else would they put those
Speaker 7: words in the statue. And what the government argued was that, well,
Speaker 7: that's for the presidents are determined. That's a limit on
Speaker 7: the president his self discretion to determine that this emergency
Speaker 7: falls within that meaning unusual and extraordinary threat. But it's
Speaker 7: not for the court to decide that.
Speaker 2: So let's talk about IPA, the International Emergency Economic Powers Act,
Speaker 2: and the arguments over those words unusual and extraordinary threat
Speaker 2: tell us what the plaintiffs are claiming here.
Speaker 7: So they're saying that the trade deficit is a persistent problem.
Speaker 7: It definitely doesn't arise to the level of an emergency
Speaker 7: of that nature. It's been, you know, in insistence for decades.
Speaker 7: In fact, this is not the largest trade deficit we've
Speaker 7: ever seen. And so while the plaintiffs sort of had
Speaker 7: a difficult time explaining to the court what standard they
Speaker 7: would use to determine whether this is an emergency that
Speaker 7: meets this threat, he said, this is so outside the
Speaker 7: definition of those words that it cannot be possible that
Speaker 7: this trade deficit falls within that definition. So the court
Speaker 7: doesn't even need to set a standard. It could just
Speaker 7: say this is so wildly outside the definition it doesn't
Speaker 7: meet AIPA.
Speaker 2: And the Trump administration's attorney, what was the response, Well, he.
Speaker 7: Was pressed on this also and he says to political question,
Speaker 7: the court shouldn't even review it. But when pressed further,
Speaker 7: and when the Court said, assume that we think that
Speaker 7: we have the power to decide this, he said, well,
Speaker 7: look at the ordinary definitions of unusual extraordinary re for
Speaker 7: them to dictionary definition. And he also said in prior cases,
Speaker 7: the courts have of how those decorations.
Speaker 2: Yeah, and so I mean, could you tell which way
Speaker 2: the judges were leaning on that?
Speaker 7: So I think it's hard to say. It's very hard
Speaker 7: to say, but I think the court is skeptical. We've
Speaker 7: come out and said we think that these will eventually
Speaker 7: be upheld, but I think the court is skeptical. And
Speaker 7: the court even said judges Sani even said one of
Speaker 7: the judges of the three member panel said, what if
Speaker 7: there's a shortage of peanut butter? Is that a national
Speaker 7: emergency because it's unusual extraordinary? So could the president just
Speaker 7: declare an emergency? They're like what is the limit? And
Speaker 7: I think they're skeptical because if they bought the government's argument,
Speaker 7: there would be no limit on the president's authority and
Speaker 7: when he could declare a national emergency and what terrorists
Speaker 7: he compose. And that's where what the plaintiffs are arguing, like,
Speaker 7: you know, this is the quintessential unlimited exercise of power.
Speaker 2: I mean, did the court discuss Congress and that tariffs
Speaker 2: are you know, within Congress's purview?
Speaker 7: They did, They said, this is you know, Congress's domain.
Speaker 7: You know, the Constitution very clearly says Congress has the
Speaker 7: power to regulate foreign commerce. Congress has the power to
Speaker 7: impose tariffs, and there are two separate provisions and they're
Speaker 7: both with you know, the domain of But the government
Speaker 7: is saying, well, that's true, but they can delegate that
Speaker 7: power to the president and they have here and they
Speaker 7: have before in terms of other statutes that nobody's quibbling about.
Speaker 7: So Section two thirty two, which allows the president to
Speaker 7: impose terrors if imports threat national security, that was delegated
Speaker 7: to the president. So even though Constitution says yes, this
Speaker 7: is the power that Congress has, they can in certain
Speaker 7: circumstances delegate that power to the president, and.
Speaker 2: How have they done that in this case?
Speaker 7: So with what the government is arguing is that with
Speaker 7: the International Emergency Economic Powers Act, they gave the Presidence
Speaker 7: the authority to regulate imports, which includes imposing terrorists. If
Speaker 7: the President declares the national emergency that it imposes an
Speaker 7: unusual extraordinary threat to national security or the economy.
Speaker 2: Usually, if you're asking for an injunction, the planets have
Speaker 2: to show irreparable harm. Did they discuss whether they would
Speaker 2: suffer irreparable harm?
Speaker 7: They didn't even get into that. So that's why there's
Speaker 7: this thinking that the court is going to rule on
Speaker 7: the summary judgment each because there's a and in summary
Speaker 7: judgment motion too. So for some re judgment you just
Speaker 7: have to win. In the merits, you don't have to
Speaker 7: show a reparable harm. So there's this thinking that they're
Speaker 7: just going to rule in summary judgment motion one way
Speaker 7: or the other.
Speaker 2: President Nixon used a similar emergency law to issue tariffs
Speaker 2: during a currency devaluation crisis in the early seventies. Tell
Speaker 2: us about that case and is it precedent here?
Speaker 3: So?
Speaker 7: Yes, that is by president. What happened there was President
Speaker 7: Nixon imposed a ten percent tariff on all dutyabul goods
Speaker 7: to address a balance of payments deficit in nineteen seventy one.
Speaker 7: And so there was a court case that arose out
Speaker 7: of that, and the appellate court at the time, which
Speaker 7: is the predecessor to the Federal Circuit, which the International
Speaker 7: Trade Court that's hearing this dispute is bound by the
Speaker 7: predecessor court, found that under a predecessor statute that mirrors
Speaker 7: the language in AIPA, the president had power to impose
Speaker 7: those tariffs, that ten percent tariff on all dutiable goods.
Speaker 7: And so that's case the court was talking about, and
Speaker 7: Dave and said, you know, to the point if that's
Speaker 7: identical language, the court there found that the president had
Speaker 7: power to impose terror when the statute said you can
Speaker 7: regulate imports. So they're bound by that. But the court,
Speaker 7: even you know, is suggesting that there's many distinctions with
Speaker 7: that case in terms of you know, what's happening now.
Speaker 2: So you gave this a sixty percent chance that the
Speaker 2: tariffs will be upheld, explain you know what you base
Speaker 2: that on?
Speaker 7: Sixties percent is more likely than than not, but it's
Speaker 7: very very close. And the reason we think that it
Speaker 7: will be upheld is because, you know, because there is
Speaker 7: this US sheet of precedent which says that very clearly
Speaker 7: that the president has power to regulate imports and that
Speaker 7: includes tariff. And then the court is going to have
Speaker 7: to get into whether there's trede deficit, is an emergency
Speaker 7: and though they seemed inclined to review whether it's an
Speaker 7: unusual extordinary threat, we think ultimately, if this goes up
Speaker 7: to the Supreme Court, the Supreme Court will hold that
Speaker 7: the president has the power to impose these tariffs and
Speaker 7: that the court shouldn't be tucking guesting the president when
Speaker 7: it comes to declaring emergencies.
Speaker 2: The plane Offs asked the court to rule on an
Speaker 2: expedited basis. Are they going to rule on an expedited basis?
Speaker 7: I think that they're going to rule relatively quickly. So
Speaker 7: this is a case that it's suscepting almost everyone and
Speaker 7: it has national import, So I think they're going to rule.
Speaker 2: I've been two q There are other cases over the tariffs,
Speaker 2: including a case by Democratic Attorneys General. Is that going
Speaker 2: to go to the Trade Court as well?
Speaker 7: Yes, so they filed that in the Trade Court. There
Speaker 7: is another case that California filed outside of the Trade Court,
Speaker 7: which is in a federal court in California, because they're
Speaker 7: contesting the International Trade Court's jurisdiction. But most of these
Speaker 7: have been filed in the Trade Court and there are
Speaker 7: pending motions to transfer all the cases outside to the
Speaker 7: same court to the Trade Court.
Speaker 2: Thanks so much, Holly. That's Bloomberg Intelligence Litigation Analyst Holly
Speaker 2: from and that's it for this edition of The Bloomberg
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