WEBVTT - Senator Menendez Convicted & Youth Climate Suits 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.400 --> 0:00:13.200 This case has always been about shocking levels of corruption, 0:00:14.160 --> 0:00:17.000 hundreds of thousands of dollars in bribes in the form 0:00:17.040 --> 0:00:21.880 of cash, gold bars, a Mercedes Benz. This wasn't politics 0:00:21.920 --> 0:00:24.840 as usual, this was politics for profit. And now that 0:00:24.880 --> 0:00:28.280 a jury has convicted Bob Menendez, his years of selling 0:00:28.280 --> 0:00:30.520 his office of the highest bidder have finally come to 0:00:30.560 --> 0:00:30.920 an end. 0:00:31.200 --> 0:00:35.840 Manhattan US Attorney Damian Williams basically summed up the prosecution's 0:00:35.920 --> 0:00:39.479 case against Senator Bob Menendez after a jury found the 0:00:39.560 --> 0:00:44.360 once powerful New Jersey Democrat guilty of bribery, extortion, and 0:00:44.479 --> 0:00:47.720 acting as a foreign agent of Egypt, convicting him on 0:00:47.840 --> 0:00:52.000 all sixteen counts after a two month trial where prosecutors 0:00:52.040 --> 0:00:56.040 said he put his power up for sale. Menendez continues 0:00:56.080 --> 0:00:59.600 to maintain his innocence and says he expects to succeed 0:00:59.720 --> 0:01:01.400 on a I. 0:01:01.400 --> 0:01:04.959 Have never violated my public oath. I have never been 0:01:05.000 --> 0:01:08.440 anything but a patriot of my country and for my country. 0:01:08.520 --> 0:01:12.200 I have never ever been a foreign agent. And the 0:01:12.240 --> 0:01:16.119 decision righted by the jury today would put at risk 0:01:16.680 --> 0:01:19.319 every member of the United States Senate in terms of 0:01:19.360 --> 0:01:22.120 what they think a foreign agent would be. 0:01:22.120 --> 0:01:25.640 Joining me is Bloomberg Legal reporter David Voriakiz, who covered 0:01:25.680 --> 0:01:28.720 the trial. David tell us about the prosecution's case. 0:01:29.360 --> 0:01:34.720 Senator Bob Menendez was accused in a sweeping corruption case 0:01:35.040 --> 0:01:41.080 of bribery, extortion, acting as an agent of Egypt, and 0:01:41.160 --> 0:01:46.800 obstruction of justice. The case centered around some explosive evidence 0:01:46.840 --> 0:01:50.080 that the FBI sees two years ago at his home 0:01:50.160 --> 0:01:55.040 in suburban New Jersey, and that was thirteen gold bars, 0:01:55.080 --> 0:01:58.880 nearly five hundred thousand dollars in cash, and a black 0:01:58.920 --> 0:02:03.760 Mercedes Benz convertible that prosecutors said was the product of 0:02:03.800 --> 0:02:09.239 a bribe scheme that Menendez and his wife, Nadine received 0:02:09.440 --> 0:02:11.520 over the previous five years. 0:02:12.240 --> 0:02:15.520 The prosecution had a lot of different kinds of evidence 0:02:15.840 --> 0:02:19.000 against him. You mentioned the gold bars and the five 0:02:19.080 --> 0:02:24.160 hundred thousand dollars in cash stashed around his house in closets, boots, jackets, 0:02:24.160 --> 0:02:28.600 a safe, etc. An undercover FBI videotape, a witness who 0:02:28.600 --> 0:02:32.680 flipped and testified against him. What was the strongest evidence 0:02:32.960 --> 0:02:33.720 against him? 0:02:34.160 --> 0:02:37.280 I think the strongest evidence would have to be the 0:02:37.720 --> 0:02:41.400 cash in the gold bars, both of which prosecutors presented 0:02:41.560 --> 0:02:45.320 in court so that the jurors could see what they 0:02:45.320 --> 0:02:49.600 are talking about. There was also three different summary charts 0:02:49.639 --> 0:02:56.320 that included thousands of lines of texts, emails, calls, meetings. 0:02:56.760 --> 0:03:01.960 They had very meticulous and detailed chronogies, because this was 0:03:02.200 --> 0:03:08.960 a subtle and discreete set of interlocking schemes that really 0:03:09.000 --> 0:03:14.360 could only be understood in their totality, in which jurors 0:03:14.400 --> 0:03:19.359 saw the timeline of a number of interactions and how 0:03:19.400 --> 0:03:22.840 they fit together. And so it took time to spell 0:03:22.880 --> 0:03:26.959 that out and for the picture to come into focus, 0:03:27.040 --> 0:03:29.760 and that picture, by the end of the trial, the 0:03:29.840 --> 0:03:35.000 prosecutor said, was an overwhelming case against Menendez and the 0:03:35.000 --> 0:03:41.600 two businessmen tried with him, Will Hannah and Fred Davies David, Was. 0:03:41.560 --> 0:03:46.760 There any specific evidence of him saying I'll do this 0:03:46.880 --> 0:03:49.760 for you if you give me that you know, quid 0:03:49.800 --> 0:03:50.360 pro quo. 0:03:50.920 --> 0:03:54.320 There wasn't a great deal of quid pro quo evidence 0:03:54.360 --> 0:03:57.960 that prosecutors put forward, but I would say there was 0:03:58.160 --> 0:04:04.000 no specific mission, say on tape or to another witness, 0:04:04.240 --> 0:04:08.840 in which Menendez said, yes, I know I'm committing the 0:04:08.920 --> 0:04:14.840 crime of bribery. Essentially, prosecutors built their case through inference 0:04:14.960 --> 0:04:20.040 in which they showed that right after Menendez, say, met 0:04:20.080 --> 0:04:23.560 with the Attorney General of New Jersey on behalf of 0:04:23.600 --> 0:04:28.159 a businessman, he then called that businessman, who then texted 0:04:28.680 --> 0:04:32.320 someone else who said, I finally found peace. It's that 0:04:32.520 --> 0:04:37.840 sort of stringing together of a collection of different discrete 0:04:38.080 --> 0:04:43.480 pieces of evidence that lead to the clear inference that 0:04:43.800 --> 0:04:48.480 Menendez was engaged in bribery schemes with his wife, Nadine. 0:04:49.400 --> 0:04:53.240 Menendez blamed his wife, and he had the benefit of 0:04:53.360 --> 0:04:57.240 being tried separately. She's going to be tried later, so 0:04:57.320 --> 0:05:01.039 there wasn't an uncomfortable situation of point to the co 0:05:01.120 --> 0:05:05.800 defendant and wife who's sitting next to you as the culprit. 0:05:06.520 --> 0:05:10.240 How much evidence was there against his wife. 0:05:10.839 --> 0:05:14.440 There was a lot of evidence pointing to Nadine as 0:05:14.720 --> 0:05:20.400 a crucial go between who connected Menendez with the businessmen 0:05:20.839 --> 0:05:24.200 who were on trial with him and with other people 0:05:24.760 --> 0:05:28.560 less directly involved in the case. She also set up 0:05:28.600 --> 0:05:34.680 meetings with Egyptian military people and intelligence officials, and according 0:05:34.680 --> 0:05:39.680 to the government, collected gold bars and cash from Fred Davies, 0:05:39.839 --> 0:05:43.960 one of the co defendants, and also had a crucial 0:05:44.600 --> 0:05:48.320 connection and relationship with Will Hannah, who was the other 0:05:48.440 --> 0:05:52.279 co defendant, and prosecutors said they were like brother and sister. 0:05:52.400 --> 0:05:55.640 They were very close. And some of the most damning 0:05:55.680 --> 0:06:00.520 evidence involved the Mercedes Benz that another business this man, 0:06:00.600 --> 0:06:04.359 Jose Euribe, gave to her, essentially by handing her a 0:06:04.440 --> 0:06:09.400 fifteen thousand dollars cash down payment in a diner parking 0:06:09.440 --> 0:06:13.279 lot in New Jersey and then making monthly payments on 0:06:13.360 --> 0:06:16.039 the car for two and a half years. There was 0:06:16.080 --> 0:06:21.440 also evidence that will Hanna, the other defendant in this case, 0:06:22.120 --> 0:06:25.640 gave her a no show job in which he paid 0:06:25.760 --> 0:06:29.360 her ten thousand dollars a month for three months, and 0:06:29.440 --> 0:06:33.360 he paid off her mortgage on her home in New 0:06:33.440 --> 0:06:37.120 Jersey when she was in a great deal of financial distress. 0:06:37.680 --> 0:06:38.200 You have to. 0:06:38.160 --> 0:06:43.160 Tell the story about the bill that prosecutors used to 0:06:43.240 --> 0:06:48.599 show that Menendez was the one in charge, not his wife. 0:06:48.880 --> 0:06:52.800 There was a crucial meeting behind the Menendez house in 0:06:53.480 --> 0:06:57.920 September of twenty nineteen at ten o'clock at night, in 0:06:57.960 --> 0:07:03.600 which Jose Uibe, the operating businessman who pleaded guilty, said 0:07:03.600 --> 0:07:07.080 that he came over and spoke to Bob Menendez on 0:07:07.160 --> 0:07:11.400 the patio behind their house. And this was the night before, 0:07:11.480 --> 0:07:14.240 Menendez was going to meet with the Attorney General of 0:07:14.280 --> 0:07:19.440 New Jersey and make the case that state prosecutors should 0:07:19.520 --> 0:07:24.800 drop their criminal investigation of someone who was close to Eurebe. 0:07:25.280 --> 0:07:32.400 Jurors heard Eurebe talk about Menendez summoning his wife, Nadine 0:07:32.440 --> 0:07:36.880 with a bell, and that she came out from inside 0:07:36.920 --> 0:07:39.960 the house and delivered a piece of paper where Eurebe 0:07:40.160 --> 0:07:42.680 wrote down the names of the people that he was 0:07:42.720 --> 0:07:46.559 interested in. The bell became sort of a symbol of 0:07:46.840 --> 0:07:53.280 whether Menendez really controlled Nadine or not, because the Menendez 0:07:53.360 --> 0:07:57.440 defense was that Nadine was engaging in a lot of 0:07:57.520 --> 0:08:01.960 corrupt acts behind Menendez's belt. At the prosecutors tried to 0:08:02.000 --> 0:08:06.560 puncture that defense and say that he knew everything that 0:08:06.680 --> 0:08:10.520 Nadine was doing in that at certain times, as in 0:08:10.560 --> 0:08:13.160 the bell incident, she was sort of under his thumb. 0:08:14.080 --> 0:08:17.160 Menendez is now the first member of Congress to be 0:08:17.280 --> 0:08:21.520 convicted of being a public official acting as a foreign agent. 0:08:22.640 --> 0:08:27.080 Was there any evidence that he compromised the national interests 0:08:27.120 --> 0:08:28.680 of the United States? 0:08:29.160 --> 0:08:33.840 There was an incident in which Menendez threw his wife 0:08:33.920 --> 0:08:38.120 and then will Hannah passed along the number of people 0:08:38.240 --> 0:08:42.199 working at the US Embassy in Cairo. Prosecutor said that 0:08:42.400 --> 0:08:46.480 was sensitive information at the time and could have compromised 0:08:46.520 --> 0:08:50.160 the people who work there and exposed them to potential 0:08:50.440 --> 0:08:54.720 terrorist attacks. The defense said that that information had already 0:08:54.760 --> 0:09:00.560 been made public in a government report years earlier, Butters 0:09:00.600 --> 0:09:04.360 countered by saying that that was old information and the 0:09:04.480 --> 0:09:08.800 current information was not public. So while they didn't actually 0:09:08.960 --> 0:09:13.959 charge him with doing harm to US security interests, they 0:09:13.960 --> 0:09:18.480 certainly suggested that that was a possibility. By Menendez passing 0:09:18.480 --> 0:09:21.800 along how many people worked at the US Embassy in Cairo. 0:09:22.400 --> 0:09:25.720 After the Verick, Menendez said the decision would put every 0:09:25.800 --> 0:09:29.120 member of the Senate at risk in terms of what 0:09:29.160 --> 0:09:31.400 it means to be a foreign agent. Do you know 0:09:31.440 --> 0:09:32.240 what he meant by that. 0:09:32.679 --> 0:09:36.880 Yes. Their argument was during the trial that he was 0:09:36.960 --> 0:09:40.600 not engaged in being a foreign agent, that he didn't 0:09:40.640 --> 0:09:44.400 have Egypt's interests at heart, that in fact, he only 0:09:44.480 --> 0:09:47.920 had the United States interest in heart, and that as 0:09:48.160 --> 0:09:52.160 chairman of the Senate Foreign Relations Committee, he was engaged 0:09:52.200 --> 0:09:56.439 in diplomacy, not corruption, so that all of his interactions 0:09:56.920 --> 0:10:02.640 with Egyptian military and intelligence officials were acts of diplomacy 0:10:02.920 --> 0:10:06.839 and him exercising his power as chairman of that Foreign 0:10:06.920 --> 0:10:11.080 Relations Committee. So I think what he's saying is that 0:10:11.520 --> 0:10:15.480 if you find that what I did was corrupt and 0:10:16.000 --> 0:10:18.559 acting as an agent of a foreign country, then it's 0:10:18.600 --> 0:10:20.440 going to be the case for a bunch of other 0:10:20.559 --> 0:10:22.360 senators as well. 0:10:22.360 --> 0:10:24.920 He didn't take the stand. So what was his defense 0:10:25.320 --> 0:10:29.000 against the gold bars and the cash and the Mercedes. 0:10:29.320 --> 0:10:33.400 Well, the general defense strategy was to attack the witnesses 0:10:33.880 --> 0:10:37.679 through cross examination, and his lawyers were quite effective at that. 0:10:38.240 --> 0:10:40.920 I'm sure they knew that he wasn't going to testify, 0:10:41.040 --> 0:10:45.280 so they put their case on primarily through the prosecution witnesses, 0:10:45.280 --> 0:10:48.079 although they did call a half dozen witnesses. At the end, 0:10:48.720 --> 0:10:52.560 he had a number of defenses, but as you say, 0:10:52.640 --> 0:10:55.120 he had to come up with a story for the 0:10:55.160 --> 0:10:58.600 cash and the gold bars. As far as the cash went, 0:10:58.760 --> 0:11:03.040 he said that he had withdrawn cash in the amount 0:11:03.240 --> 0:11:07.559 of four hundred dollars regularly, say, every two or three weeks, 0:11:08.040 --> 0:11:12.120 for decades, and that would account for all the cash 0:11:12.200 --> 0:11:15.800 that was lying around his house that FBI agents received. 0:11:16.440 --> 0:11:22.079 The gold bars, he said, were gifts to Nadine Arslanian, 0:11:22.160 --> 0:11:26.400 then his girlfriend and later his wife from her wealthy family. 0:11:26.480 --> 0:11:31.360 In Lebanon, and the prosecutors countered that by saying that 0:11:31.920 --> 0:11:35.880 the larger gold bars that they seized bore the serial 0:11:36.000 --> 0:11:41.000 numbers that matched a list in the possession of Fred Davies, 0:11:41.200 --> 0:11:45.320 a prominent developer in Edgwater, New Jersey, who was known 0:11:45.360 --> 0:11:47.920 for his generosity and for collecting gold. 0:11:48.360 --> 0:11:53.400 In twenty seventeen, Menandez was tried on unrelated federal bribery 0:11:53.400 --> 0:11:56.960 and corruption charges that ended in a mistrial. Did the 0:11:57.000 --> 0:12:01.600 evidence here show that that mistrials cparently didn't deter him? 0:12:01.960 --> 0:12:04.600 These schemes allegedly took place soon after. 0:12:05.080 --> 0:12:09.199 Yes, that trial ended in the fall of twenty seventeen, 0:12:09.400 --> 0:12:13.760 and the evidence showed that the bribery plot in this 0:12:13.880 --> 0:12:17.840 case for which he was convicted began in early twenty eighteen. 0:12:18.160 --> 0:12:23.000 Of course, this was handled by the federal prosecutors in Manhattan, 0:12:23.200 --> 0:12:27.000 the Southern District of New York, presumably because they felt 0:12:27.440 --> 0:12:30.480 there would be a conflict for the prosecutors in New Jersey. 0:12:31.440 --> 0:12:34.440 So now he is going to be sentenced on October 0:12:34.559 --> 0:12:38.240 twenty ninth. He faces decades in prison on paper, What 0:12:38.320 --> 0:12:40.760 do you think a likely sentence might be. 0:12:41.559 --> 0:12:45.440 On the most serious charges he faces twenty years in prison. 0:12:45.559 --> 0:12:48.199 It's very rare in a white collar case like this 0:12:48.880 --> 0:12:52.720 for a first time non violent offender with a long 0:12:52.840 --> 0:12:56.600 career of public service to get anything like that kind 0:12:56.640 --> 0:12:59.560 of time. It's hard to know. I mean, we just 0:12:59.840 --> 0:13:03.240 have the conviction today, so if I had to guess, 0:13:03.360 --> 0:13:05.680 I would say maybe several years. 0:13:06.160 --> 0:13:09.240 Thanks so much, David for your reporting all during the trial. 0:13:09.640 --> 0:13:13.800 That's Bloomberg Legal reporter David Voriakis. Coming up next, the 0:13:14.040 --> 0:13:17.800 likely demise of the National Youth Climate Case. I'm June 0:13:17.800 --> 0:13:22.400 Grosso and you're listening to Bloomberg. It's one of the 0:13:22.400 --> 0:13:27.280 most closely watched climate change cases in recent years, kids 0:13:27.360 --> 0:13:31.240 taking on the federal government to secure their futures. Twenty 0:13:31.280 --> 0:13:34.720 one young people sued the federal government in twenty fifteen, 0:13:35.160 --> 0:13:39.679 asserting that the government violated their constitutional rights by allowing 0:13:39.800 --> 0:13:44.400 decades worth of greenhouse gas emissions to spew into the atmosphere. 0:13:44.640 --> 0:13:49.240 There were twists and turns as three presidential administrations fought 0:13:49.280 --> 0:13:54.640 to delay or dismiss this landmark constitutional climate case. And now, 0:13:54.760 --> 0:13:58.800 after nine years of litigation that never addressed the merits 0:13:58.840 --> 0:14:01.920 of their claims, it appears the case is as good 0:14:02.000 --> 0:14:05.960 as over with no viable path for the young plaintiffs 0:14:05.960 --> 0:14:09.240 to pursue. Joining me is an expert in environmental law. 0:14:09.360 --> 0:14:13.160 Pat Parento a professor at the Vermont Law and Graduate School. 0:14:13.640 --> 0:14:17.680 The Juliana case was filed way back in twenty fifteen. 0:14:17.760 --> 0:14:22.800 It has spanned three presidential administrations. Tell us the basics 0:14:22.840 --> 0:14:26.440 of it before we go into this tangled legal history. 0:14:27.200 --> 0:14:30.600 Yeah, so this case was brought to try to establish 0:14:30.640 --> 0:14:37.000 a constitutional right under the federal US Constitution, under Article fourteen, 0:14:37.280 --> 0:14:40.880 sort of fundamental right to a stable climate, or, as 0:14:40.960 --> 0:14:44.840 Judge Aiken, who was the District court judge and Juliana said, 0:14:45.200 --> 0:14:50.800 a climate system capable of supporting human life on Earth. Now, 0:14:51.080 --> 0:14:53.400 some of us might like to think there should be 0:14:53.680 --> 0:14:56.640 such a constitutional right, but the case was brought to 0:14:56.680 --> 0:15:01.240 try to establish that in federal court. Almost a decade 0:15:01.400 --> 0:15:04.080 run in the federal courts, which now seems to have 0:15:04.160 --> 0:15:06.520 come to an end, although we can talk a little 0:15:06.560 --> 0:15:07.720 bit about what comes next. 0:15:08.120 --> 0:15:12.200 And there were two different panels of the Ninth Circuit 0:15:12.600 --> 0:15:14.120 that heard this case. 0:15:14.760 --> 0:15:18.840 Yeah, it does have a tortured procedural history. So the 0:15:18.880 --> 0:15:22.880 original complaint really shot for the moon. It asked for 0:15:23.000 --> 0:15:27.720 a plan to reduce carbon emissions basically down to zero 0:15:28.280 --> 0:15:33.000 or net zero by a date certain, with milestones all 0:15:33.040 --> 0:15:36.200 along the way, for example, phasing out carbon from the 0:15:36.240 --> 0:15:39.240 electricity sector by twenty thirty and so forth. A very 0:15:39.560 --> 0:15:44.960 very aggressive demand that federal courts order the federal government, 0:15:45.000 --> 0:15:48.160 both the President and the Congress, the entire federal government 0:15:48.320 --> 0:15:51.120 ordered them to come up with a plan to achieve 0:15:52.000 --> 0:15:55.720 net zero carbon emissions for the US economy. Very aggressive. 0:15:56.120 --> 0:15:59.960 That complaint went to the first Panel of the Ninth Circuit, 0:16:00.440 --> 0:16:04.240 and by a two to one decision, that panel decided 0:16:04.600 --> 0:16:10.920 that kind of broad, comprehensive relief was not available under 0:16:10.960 --> 0:16:14.680 our jurisprudence in the United States anyway, and so they 0:16:14.720 --> 0:16:19.120 dismissed the case on standing. They agreed that these youth 0:16:19.240 --> 0:16:23.560 plaintiffs had shown injury. Some of the injuries were physical. 0:16:23.880 --> 0:16:28.000 One of the kids had asthma, and we know climate 0:16:28.080 --> 0:16:32.320 change by heating up the air we breathe triggers asthma attacks. 0:16:32.440 --> 0:16:34.720 Another one of the youth planeffs said they were in 0:16:34.760 --> 0:16:37.560 a multi generation ranching family and they were watching their 0:16:37.640 --> 0:16:40.160 ranch dry up. And so right down the list, the 0:16:40.200 --> 0:16:45.000 court said, yes, these individual young people have shown particularized 0:16:45.120 --> 0:16:49.800 injury which is the first step establishing standing, and this 0:16:49.920 --> 0:16:54.400 was a really important finding. The court agreed that the 0:16:54.480 --> 0:16:57.960 actions of the federal government, not just in action, but 0:16:58.080 --> 0:17:03.240 the actions going back far administrations Democrat and Republican, had 0:17:03.280 --> 0:17:07.760 been making the situation worse by continuing to promote and 0:17:07.840 --> 0:17:11.720 develop fossil fuels, et cetera. And so therefore the plaintiffs 0:17:11.760 --> 0:17:16.720 had shown that their injury were being caused or contributed 0:17:16.760 --> 0:17:20.200 to by the actions that the federal government was persisting 0:17:20.320 --> 0:17:24.520 in taking. So that was two steps towards proving standing. 0:17:24.920 --> 0:17:27.320 It was the third step that tripped them up is 0:17:27.359 --> 0:17:31.760 what we call redressibility, which means, assuming this injury, assuming 0:17:31.800 --> 0:17:34.080 the actions of the government are making the injury worse, 0:17:34.320 --> 0:17:37.120 what can the courts do about it? And that's where 0:17:37.160 --> 0:17:39.760 the first panel of the Ninth Circuit said they tripped 0:17:39.800 --> 0:17:44.080 their hands. We simply don't have the authority under our 0:17:44.119 --> 0:17:48.240 constitutional system of government. That's the matter for the legislature 0:17:48.480 --> 0:17:51.240 and the executive branch to work out. The courts can't 0:17:51.240 --> 0:17:54.280 simply order it. So that was the first decision. Following 0:17:54.320 --> 0:17:58.639 that decision, attorneys representing the Youth Planets went back to 0:17:58.760 --> 0:18:04.320 Judge Aiken and emotion to amend this complaint to only 0:18:04.640 --> 0:18:10.480 seek declaratory relief. So no injunction, no comprehensive plan, just 0:18:10.600 --> 0:18:14.119 tell us do we have a constitutional right to a 0:18:14.160 --> 0:18:17.399 safe climate or not? And if not, of course why not. 0:18:17.680 --> 0:18:21.080 So Judge Aiken agreed they should be able to amend 0:18:21.080 --> 0:18:25.320 the complaint. She based her decision on the fact that 0:18:25.680 --> 0:18:30.440 the original Ninth Circuit decision did not say dismiss the 0:18:30.560 --> 0:18:35.960 case with prejudice. They didn't use that magic language dismissal 0:18:36.359 --> 0:18:40.640 with prejudice, So Aiken said, in the absence of directing 0:18:40.640 --> 0:18:43.199 me to dismiss it with prejudice, I think I have 0:18:43.359 --> 0:18:47.080 the discretion to allow the amendment. And since all they're 0:18:47.080 --> 0:18:51.399 seeking now is a declaratory judgment, that basically cures what 0:18:51.520 --> 0:18:54.480 she saw at least as the defect in the original 0:18:54.520 --> 0:18:56.960 complaint that the first panel of the Ninth Circuit said 0:18:57.119 --> 0:18:57.600 was fatal. 0:18:58.119 --> 0:19:01.000 That first panel of the Ninth Circuit was comprised of 0:19:01.080 --> 0:19:06.359 three judges appointed by President Obama. The second panel was 0:19:06.400 --> 0:19:07.320 a different story. 0:19:07.840 --> 0:19:11.320 So now we come to the second Ninth Circuit decision 0:19:11.520 --> 0:19:14.520 just recently within the last year, in which now we're 0:19:14.520 --> 0:19:18.679 talking about free Trump appointees to the Ninth Circuit that 0:19:18.920 --> 0:19:24.159 comprises the second panel, and they excoriated Judge Aiken. They 0:19:24.240 --> 0:19:30.040 said it was basically arbitrary, almost outrageous, perhaps for her 0:19:30.160 --> 0:19:34.600 to not read the original decision of the panel the 0:19:34.640 --> 0:19:37.560 first panel as a requirement that the whole case be 0:19:37.680 --> 0:19:40.879 thrown out, lock stock and barrel. So that's what the 0:19:40.920 --> 0:19:44.200 second panel said, and that was a three zero decision. 0:19:45.040 --> 0:19:47.639 And then we come to the very last gasp, which 0:19:47.800 --> 0:19:52.000 is after this second second Ninth Circuit panel throws the 0:19:52.040 --> 0:19:56.879 case out, the youth plaintiff lawyers asked for the full 0:19:56.960 --> 0:19:59.800 Ninth Circuit to review the case. And what we call 0:20:01.240 --> 0:20:04.040 where you have actually not the full Night cert because 0:20:04.040 --> 0:20:06.040 there are over thirty judges on this full Ninth Circuit, 0:20:06.040 --> 0:20:08.879 but it would be a much larger panel, typically twelve 0:20:09.000 --> 0:20:12.280 or thirteen thirteen I think judges sit on that kind 0:20:12.280 --> 0:20:15.280 of a panel. But it takes at least one judge 0:20:15.400 --> 0:20:19.680 of the Ninth Circuit to request a vote on whether 0:20:19.720 --> 0:20:22.680 to take the case up before an un banc panel, 0:20:22.960 --> 0:20:25.680 and they didn't even get one vote. So that's where 0:20:25.680 --> 0:20:29.920 we are today. The case has been dismissed. There's no 0:20:30.080 --> 0:20:34.080 further appeal to the Ninth Circuit. The only remaining avenue 0:20:34.119 --> 0:20:37.440 for appeal would be to file a petition for cirshararii 0:20:37.680 --> 0:20:42.960 or review to the US Supreme Court, something that terrifies 0:20:43.080 --> 0:20:43.760 a lot of us. 0:20:43.840 --> 0:20:46.280 I mean, it's been at the Supreme Court twice on 0:20:46.440 --> 0:20:47.719 procedural issues. 0:20:47.720 --> 0:20:50.919 I think it went up twice on what's called a 0:20:51.040 --> 0:20:55.520 rid of mandamus, which is an extraordinary remedy. The Supreme 0:20:55.520 --> 0:20:59.320 Court never granted the petition for mandamus, but they in 0:20:59.440 --> 0:21:03.200 two different and particularly the last one written by Chief 0:21:03.400 --> 0:21:07.160 Justice Roberts, they made it crystal clear that this case 0:21:07.160 --> 0:21:11.159 should be dismissed. Roberts basically was speaking directly to Judge Aiken, 0:21:11.480 --> 0:21:14.000 and he was saying to her, you need to take 0:21:14.040 --> 0:21:17.280 another look at whether this case should be certified for 0:21:17.400 --> 0:21:20.280 reviews by the Ninth Circuit. And the Ninth Circuit should 0:21:20.320 --> 0:21:24.320 look very hard at whether a case of this magnitude 0:21:24.359 --> 0:21:28.120 and scope belongs in federal court. So not too subtle 0:21:28.560 --> 0:21:31.280 message to the lower courts, get rid of it. 0:21:31.720 --> 0:21:34.960 I guess the Ninth Circuit heard that message. The young 0:21:35.000 --> 0:21:39.240 plaintiffs asked for a rehearing before a full panel of 0:21:39.280 --> 0:21:42.320 the Ninth Circuit that would be eleven judges, but no 0:21:42.520 --> 0:21:46.440 judges requested to vote on whether to open the dismissed 0:21:46.480 --> 0:21:50.800 case once more and deny their request last week. It 0:21:50.880 --> 0:21:53.960 appears the only thing the plaintiffs could do now is 0:21:54.280 --> 0:21:57.520 file a cert petition with the Supreme Court. But is 0:21:57.560 --> 0:22:00.919 that wise to do with this Supreme Court? Or is 0:22:00.920 --> 0:22:03.440 it better just to end the case where it is right? 0:22:03.520 --> 0:22:05.480 There's no way the Supreme Court is going to take 0:22:05.520 --> 0:22:08.000 this case for any other reason than than to do 0:22:08.080 --> 0:22:11.840 further damage two cases being brought to try to seek 0:22:11.960 --> 0:22:15.679 remedies for climate They could even revisit the Massachusetts versus 0:22:15.680 --> 0:22:18.879 CPA case, which turned on a five to four vote 0:22:19.160 --> 0:22:22.199 on whether there was standing to challenge EPA's failure to 0:22:22.240 --> 0:22:26.200 regulate greenhouse gas emissions, and the majority in that case 0:22:26.240 --> 0:22:29.000 are now gone basically, so it's a totally different court. 0:22:29.040 --> 0:22:31.840 So the only reason this Supreme Court would take the 0:22:31.920 --> 0:22:36.439 case would be perhaps to review Massachusetts versus CPA and 0:22:36.600 --> 0:22:41.080 almost certainly issue a decision that would slam the courthouse 0:22:41.119 --> 0:22:45.600 doors shut once and for all on plaintiffs seeking remedies 0:22:45.640 --> 0:22:47.080 for climate change. 0:22:47.800 --> 0:22:53.160 Every administration, the Obama administration, the Trump administration, the Biden administration, 0:22:53.359 --> 0:22:58.520 some which we consider friendly to environmental causes. Has been aggressive, 0:22:58.720 --> 0:23:02.840 so aggressive in preventing this case from going to trial. 0:23:03.720 --> 0:23:06.320 Why yeah, I've said from the beginning, why not have 0:23:06.400 --> 0:23:09.200 the trial? My goodness, if they hadn't fought so hard 0:23:09.240 --> 0:23:11.439 all the way back to Obama, they could have had 0:23:11.480 --> 0:23:14.639 a trial over with. And Judge Aakin was not saying 0:23:14.720 --> 0:23:16.800 she was going to find in favor of the Planets. 0:23:16.800 --> 0:23:21.520 She was saying, you take litigation one step at a time. 0:23:22.080 --> 0:23:25.800 The first question is their standing. The second question is 0:23:25.800 --> 0:23:28.680 is their liability. And what she was saying is We'll 0:23:28.720 --> 0:23:31.320 have a trial and I'll make a decision based on 0:23:31.400 --> 0:23:34.760 the trial. So at a minimum, I thought, why not 0:23:35.000 --> 0:23:37.000 let them have a trial? You know, the Department of 0:23:37.119 --> 0:23:40.640 Justice is hired and paid for by us, the taxpayers, 0:23:40.920 --> 0:23:44.520 to defend the government in court. That's why we have courts. 0:23:44.960 --> 0:23:47.560 Courts are supposed to say what the law is, so 0:23:47.720 --> 0:23:49.840 do it so. I mean, this all could have been 0:23:49.880 --> 0:23:52.600 avoided in my view if they just had the trial 0:23:53.160 --> 0:23:57.520 long before now. Either Judge Aiken would have ruled against 0:23:57.600 --> 0:24:01.080 the planeffs in one form or another, or the case 0:24:01.119 --> 0:24:03.560 could have gone up on appeal on the basis of 0:24:03.600 --> 0:24:07.679 a trial record, including all the evidence in support of 0:24:07.680 --> 0:24:11.000 what the youth plans were arguing and in support of 0:24:11.040 --> 0:24:14.800 what the government was doing to make the climate crisis worse. 0:24:15.280 --> 0:24:18.879 And wouldn't that have served some public purpose to have 0:24:18.920 --> 0:24:22.119 a record like that based on a trial tested by 0:24:22.200 --> 0:24:24.840 the evidence. I think the answer to that is yes, 0:24:24.880 --> 0:24:27.840 it would have benefited from that, even if an end 0:24:27.920 --> 0:24:32.280 result was probably going to be no determination of a 0:24:32.359 --> 0:24:36.159 constitutional right. I think that's fair to say, even with 0:24:36.280 --> 0:24:39.679 the Supreme Court we had before the Trump appointees, but 0:24:39.880 --> 0:24:43.360 certainly now there's no chance that this court would ever 0:24:43.480 --> 0:24:48.960 recognize such a constitutional right. Hell, they're busy revoking constitutional 0:24:49.040 --> 0:24:51.960 rights like Row versus Wade. So we weren't going to 0:24:52.040 --> 0:24:54.719 get a favorable decision out of this Supreme Court no 0:24:54.760 --> 0:24:58.280 matter what. But at least having a trial for no 0:24:58.560 --> 0:25:01.760 less than at least historical purposes would have made the 0:25:01.800 --> 0:25:05.280 case what the dangers were, what we're doing to these 0:25:05.320 --> 0:25:08.560 young people, and what we're not doing that could avoid 0:25:08.600 --> 0:25:10.080 some of the worst consequences. 0:25:10.760 --> 0:25:15.000 So pat is the Juliana case, Dad, Then. 0:25:14.680 --> 0:25:17.080 I think it's dead. I think it's time to move on. 0:25:17.240 --> 0:25:20.120 I know my dear friends at our Children's Trust are 0:25:20.320 --> 0:25:23.280 very reluctant, and I understand why to give up on it. 0:25:23.400 --> 0:25:25.679 But they've got other avenues, and perhaps we should be 0:25:25.720 --> 0:25:28.199 talking about some of those. This isn't the end of 0:25:28.240 --> 0:25:32.680 the story on young plaintiffs asserting constitutional rights. I think 0:25:32.680 --> 0:25:35.040 it is the end of the road doing so in 0:25:35.080 --> 0:25:36.120 federal court. 0:25:36.400 --> 0:25:38.680 Coming up next on the Bloomberg Lawn Show, I'll continue 0:25:38.680 --> 0:25:42.800 this conversation with Professor Pat Parento and we'll discuss some 0:25:42.880 --> 0:25:47.320 of the successes in climate change cases brought by young plaintiffs. 0:25:47.920 --> 0:25:52.520 I'm June Grosso and this is Bloomberg. The historic climate 0:25:52.600 --> 0:25:56.240 case of Juliana versus the United States appears to be 0:25:56.320 --> 0:25:59.800 at an end after nine years of litigation that never 0:25:59.800 --> 0:26:03.439 address the merits of the case, the claims by twenty 0:26:03.440 --> 0:26:07.760 one young people that the government violated their constitutional rights 0:26:08.000 --> 0:26:11.920