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

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Speaker 2: You might remember back in September of twenty twenty two,

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Speaker 2: when President Donald Trump insisted he had declassified the boxes

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Speaker 2: of documents he took with him tomorrow Lago by thinking

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Speaker 2: about it.

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Speaker 3: If you're the president of the United States, you can

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Speaker 3: declassify just by saying it's de classified, even by thinking

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Speaker 3: about it, because you're sending it to mar A Lago

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Speaker 3: or to wherever you're sending it, and there doesn't have

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Speaker 3: to be a process. There can be a process, but

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Speaker 3: there doesn't have to be You're the president. You make

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Speaker 3: that decision, so when you send it, it's the classificate

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Speaker 3: I declassified everything.

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Speaker 2: Lawyers for the National Archive spent more than a year

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Speaker 2: trying to retrieve the documents that included records Trump was

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Speaker 2: supposed to turn over to NARA in accordance with the

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Speaker 2: Presidential Records Act, for example, a letter to Trump from

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Speaker 2: North Korean leader Kim Jong un and a letter President

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Speaker 2: Obama left for Trump. But now the Department of Justice's

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Speaker 2: Office of Legal Counsel has written an opinion saying that

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Speaker 2: Trump doesn't have to comply with the nearly fifty year

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Speaker 2: old law governing the handover of presidential records to the

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Speaker 2: National Archives, basically saying that Trump can keep them. Well,

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Speaker 2: the American Historical Association and American Oversight say there's no

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Speaker 2: legal basis for that OLC opinion, and they're suing to

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Speaker 2: get a court to declare that the Presidential Records Act

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Speaker 2: is constitutional and to block Trump from using the OLC

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Speaker 2: opinion to keep the records. My guest is Alison Dreisen,

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Speaker 2: general counsel for the American Historical Association. Allison tell us

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Speaker 2: about the Presidential Records Act and why it's important.

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Speaker 4: Sure, as a representative of the American Historical Association, I'm

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Speaker 4: going to give a little history first. The first act

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Speaker 4: that really dealt with this was something called the Presidential

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Speaker 4: Recordings and Materials Preservation Act, and that was passed by

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Speaker 4: Congress after Watergate, when President Nixon sort of threatened to

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Speaker 4: take all of his records with him while the Special

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Speaker 4: Prosecutor was in fact still investigating issues that had arisen

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Speaker 4: during his administration. So Congress passed the Act reference requiring

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Speaker 4: Nixon to turn over all of his documents and recordings

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Speaker 4: to the Administrator of General Services, and of course he

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Speaker 4: immediately turned around and sued. The case went up to

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Speaker 4: the Supreme Court, and the Supreme Court seven to two

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Speaker 4: said the law was constitutional. It was not an unconstitutional

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Speaker 4: infringement on the rights of the executive and upheld the

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Speaker 4: Act and required Nixon to comply with it, which he

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Speaker 4: did so four years later in nineteen seventy eight. Congress

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Speaker 4: then passed a subsequent act, Presidential Records Act, which was

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Speaker 4: to apply to all presidents, not just Nixon, and essentially

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Speaker 4: require the same things, although instead of records having to

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Speaker 4: be delivered to the General Services Administration, they went to NARA,

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Speaker 4: the National Archives and Records Administration, which, and this is relevant,

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Speaker 4: is actually part of the executive branch. So these are

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Speaker 4: not giving records to Congress or anybody else. It stays

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Speaker 4: within the executive branch. And then there are regulations on how,

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Speaker 4: if at all, they get released.

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Speaker 2: So tell us why your group and American Oversight are suing.

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Speaker 4: So on April first, I guess there could be some

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Speaker 4: interpretation that this was an April Fool's joke, but I

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Speaker 4: think it actually wasn't. The Office of Legal Counsel came

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Speaker 4: out with an opinion that stated that the Presidential Records

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Speaker 4: Act is unconstitutional. Now, I am not a litigator, but

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Speaker 4: I do not believe that the Justice Department gets to

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Speaker 4: determine what is constitutional and what is not. They didn't

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Speaker 4: challenge this in any court. They just said it's not constitutional.

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Speaker 4: And therefore the Trump administration and the relevant parts of

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Speaker 4: the Trump administration which are covered by the Presidential Records

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Speaker 4: Act no longer need to comply with it. And that

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Speaker 4: includes things like the National Security Council and other parts

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Speaker 4: of the Executive Branch that would otherwise be covered. Not

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Speaker 4: only do they not need to comply, but that Narraw

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Speaker 4: has no obligation to keep the records that's currently holding secure.

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Speaker 2: I read that the White House Council asked the OLC

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Speaker 2: for an opinion on the constitutionality of the Presidential Records Act.

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Speaker 2: Do you have any knowledge about why they decide at

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Speaker 2: this point to ask for this? I mean, we know

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Speaker 2: that in his first term, President Trump was known to

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Speaker 2: rip up documents and aids pasted them back together, and

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Speaker 2: of course he took boxes and boxes of documents with

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Speaker 2: him tomorrow lago. But do we know why they might

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Speaker 2: be asking for this OLC opinion?

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Speaker 4: Now, No, that would be pure speculation on my part.

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Speaker 4: What they said at some point was that the Council's

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Speaker 4: office was being overwhelmed with questions about compliance with the Act,

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Speaker 4: so they decided to determine you don't have to comply,

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Speaker 4: and therefore we don't have to answer the questions.

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Speaker 2: According to your lawsuit, the memo doesn't rely on any

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Speaker 2: judicial decisions or precedent.

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Speaker 4: That is a fifty page memo. So there were an opinion,

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Speaker 4: so there was something cited in it. Most of the

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Speaker 4: ones that I saw were basically articles or you know,

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Speaker 4: theoretical speculative articles that wouldn't describe why there would be

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Speaker 4: a problem with it, and in terms of the Supreme

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Speaker 4: Court case that you would think would be presidential. The

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Speaker 4: bottom line was they said, oh, it was just wrong.

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Speaker 2: That Supreme Court case is basically the only case on

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Speaker 2: the Presidential Records Actor. Are there others?

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Speaker 4: So over forty five years, essentially it has been adhere

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Speaker 4: to and has never been challenged.

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Speaker 2: Do you consider that this follows the broad push the

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Speaker 2: Trump administration has been making to concentrate power in the

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Speaker 2: executive branch.

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Speaker 4: Well, that's kind of an interesting question, because, as I said,

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Speaker 4: what this act requires is that the records be turned

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Speaker 4: over to NARRA. Narra is in fact part of the

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Speaker 4: executive branch. And therefore, although there were things in the

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Speaker 4: opinion that seemed to imply that this was somehow going

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Speaker 4: to give Congress the right to have access to these

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Speaker 4: records that they would otherwise not have the right to,

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Speaker 4: that's actually not what the statute requires. If Congress wants them,

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Speaker 4: they have to go through the same request procedure that

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Speaker 4: any member of the public would need. So it may

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Speaker 4: have been, in somebody's mind an attempt to add power

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Speaker 4: to the executive branch, but in fact that was unnecessary because,

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Speaker 4: as I said, it's the executive branch that controls the

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Speaker 4: records in the first place.

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Speaker 2: Is there any enforcement mechanism for the Presidential Records.

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Speaker 4: Act, Well, you can sue for violation the way you know.

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Speaker 4: It was done down in Florida unsuccessfully after the first

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Speaker 4: Trump administration, and that is why we filed for a

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Speaker 4: preliminary injunction.

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Speaker 2: Tell us what the basis for the preliminary injunction is.

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Speaker 4: So, what the AHA and the American Oversight are concerned

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Speaker 4: about is not only that this would give the president

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Speaker 4: the right to destroy records his own records, right, But

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Speaker 4: it also says that Narraw does not have to abide

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Speaker 4: by the restrictions of the Presidential Records Act for those records.

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Speaker 4: It is holding of other presidential administrations. So you know,

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Speaker 4: they could selectively go through and destroy some records from

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Speaker 4: the Obama administration to make it look like they had

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Speaker 4: considered the wrong thing. You know, whatever, if you control

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Speaker 4: the records, you control the history, and this gives them

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Speaker 4: essentially unfettered power to do that. Obviously, this is the

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Speaker 4: kind of situation. Once you've ripped up a document, it's gone,

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Speaker 4: Once you've erased the tape, by and large, it's gone.

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Speaker 4: So it's, to me, not being a litigator, sort of

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Speaker 4: the perfect instance where a preliminary injunction would be absolutely appropriate. Now, interestingly,

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Speaker 4: our attorneys approached the Department of Justice and said, can

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Speaker 4: we agree? Can we stipulate that the administration will not

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Speaker 4: destroy any records until this is adjudicated? And they refuse

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Speaker 4: to agree to that, which is why we thought a

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Speaker 4: preliminary injunction was kind of the way to go.

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Speaker 2: What might be the ripple effects if this OLC opinion

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Speaker 2: is upheld?

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Speaker 4: Well, I mean, again, I represent the American Historical Association.

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Speaker 4: Our members use the records for research, for reviewing historical

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Speaker 4: events and trying to understand how we came up to

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Speaker 4: be in the position that we were for those events.

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Speaker 4: One of the rationales for the act, frankly, was as well,

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Speaker 4: that you want future presidents right to be able to

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Speaker 4: go back and look at the history of decisions, to

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Speaker 4: understand why we have relations with other countries based on

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Speaker 4: things and you know, the national security interests, whatever, you

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Speaker 4: want them to be able to have a full record

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Speaker 4: and to understand how we got to where we are,

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Speaker 4: not just for the public or for historians, but for

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Speaker 4: use in the governing of the country. If that stuff

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Speaker 4: is not available, if those records are destroyed or selectively destroyed,

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Speaker 4: then our relations with other countries and our relations with

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Speaker 4: people in this country are going to be skewed by

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Speaker 4: the elimination of information fact information that's important to have

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Speaker 4: when we deal with them in the future.

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Speaker 2: This sort of reminds me of the Trump administration's attempt

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Speaker 2: to rewrite history by, for example, taking down mentions of

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Speaker 2: slavery in Philadelphia, and I know your group is suing

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Speaker 2: over that as well. Thanks so much for joining me today. Allison,

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Speaker 2: We'll be sure to keep track of what happens with

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Speaker 2: your requests for a preliminary injunction. That's Alison Dreis, in

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Speaker 2: General counsel of the American Historical Association. Former Homeland Security

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Speaker 2: Secretary Christy Nome will not face a contempt of court hearing,

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Speaker 2: at least not right now. In a two to one decision,

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Speaker 2: a DC federal appeals court blocked a judge from holding

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Speaker 2: a hearing into whether Noman others from the Trump administration

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Speaker 2: we're in contempt of court for deporting two planeloads of

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Speaker 2: alleged Venezuelan gang members to a prison in l Salvador.

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Speaker 2: Joining me is Bloomberg Legal reporter Eric Larson. Eric, the

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Speaker 2: start of this goes back more than a year. Tell

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Speaker 2: us about it.

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Speaker 1: Yeah, so this was over a year ago. Now it

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Speaker 1: feels like ancient history almost. But this was shortly after

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Speaker 1: Trump took office. He declared hundreds of Venezuelan immigrants to

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Speaker 1: be members of the Trende Arragua violent gang and used

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Speaker 1: an obscure law called the Alien Enemies Act to unilaterally

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Speaker 1: remove them without you know, the typical due process. Just

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Speaker 1: load them on these these planes. A couple of planes

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Speaker 1: and sent them to El Salvador, to that notorious prison

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Speaker 1: there under an agreement between El Salvador and the US.

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Speaker 1: But obviously with all of these people being rounded up

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Speaker 1: and put on these planes, the legal cases were brought

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Speaker 1: and this judge Boseburg, issued an order when the planes

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Speaker 1: were kind of in the air, saying, you know, that

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Speaker 1: they needed to be brought back in not so many words,

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Speaker 1: but they didn't. They had the planes went ahead and

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Speaker 1: landed in Alsavador and took them there, and so there

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Speaker 1: was a question about whether or not the governments had

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Speaker 1: violated the court order, and that's kind of what this

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Speaker 1: particular fight is all about.

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Speaker 2: Well, you mentioned it was more than a year ago.

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Speaker 2: Why has it been so difficult for Boseburg to you know,

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Speaker 2: to find this out, to hold contempt hearing.

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Speaker 1: There was a lot of other stuff going on in

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Speaker 1: the cases, you know, about the people who were impacted.

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Speaker 1: So I think that the contempt argument was kind of

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Speaker 1: like a side issue. But there was a question about

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Speaker 1: whether Christinoum then the head of DHS, had been in

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Speaker 1: contempt and others as well by refusing to turn those

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Speaker 1: planes around. And so the judge eventually wanted to hold hearings.

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Speaker 1: I think he had originally planned them to take place

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Speaker 1: in December or so, but the appeals Court issued an

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Speaker 1: administrative stay that sort of paused those hearings from taking

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Speaker 1: place while they issued this decision. And that's, of course

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Speaker 1: the decision that we just got, blocking those hearings from

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Speaker 1: going forward.

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Speaker 2: So it was a two to one decision to Trump

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Speaker 2: appointees and the majority and a Biden appointee in dissent.

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Speaker 2: Explain why the majority ruled against Boseburg.

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Speaker 1: So they sided with the government's argument that a mere

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Speaker 1: federal judge does not have the authority to demand testimony

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Speaker 1: from members of the executive branch. So, as with so

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Speaker 1: many other legal disputes that we've seen involving the Trump administration,

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Speaker 1: it's about the power of the executive in a lot

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Speaker 1: of ways. They said that the judge abused his discretion,

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Speaker 1: that basically, when he found out the names of the

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Speaker 1: people who were involved in this decision, that that was

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Speaker 1: the information he needed and he didn't have any valid

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Speaker 1: reason to be holding hearings on this because it wasn't

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Speaker 1: just going to be Christy Gnome who would have to testify.

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Speaker 1: There were others as well, including a whistleblower who presumably

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Speaker 1: was going to have some pretty negative things to say

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Speaker 1: about this decision that was made in the whole process.

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Speaker 1: So completely different version of events came from the dissenting judge,

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Speaker 1: and she basically said that, I mean, these are very

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Speaker 1: long decisions trying to boil. And there was also a

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Speaker 1: concurring opinion, so or there were three opinions altogether, but

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Speaker 1: the dissenting opinion basically said that the majority was kneecapping

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Speaker 1: an investigation into whether the government was in contempt of court,

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Speaker 1: and sort of was almost circular in nature, saying you

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Speaker 1: can't investigate because they didn't do anything wrong, but you can't,

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Speaker 1: you know, investig because they didn't do anything wrong. So

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Speaker 1: it was basically the judge was saying that the majority

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Speaker 1: was kneecapping the investigation and holding that the government simply

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Speaker 1: couldn't be held in contempt, couldn't be prosecuted.

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Speaker 2: And Judge Boseburg, I mean, his name surfaces over and

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Speaker 2: over again because he's been the subject of comments by

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Speaker 2: President Trump that he should be impeach. I mean, he's

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Speaker 2: been on the forefront of a lot of these decisions.

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Speaker 1: Right, he definitely was a judge that was on Trump's

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Speaker 1: radar fairly early on. He's a very no nonsense, you

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Speaker 1: know judge, and issued some pretty strong opinions saying that

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Speaker 1: President Trump or his administration were exceeding their authority, violating

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Speaker 1: the law. You know, he wasn't really mincing words very often,

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Speaker 1: and Trump did not did not like that. But of

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Speaker 1: course Judge Boseburg is still kicking.

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Speaker 2: So and also I have to say that Judge Justin Walker,

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Speaker 2: who wrote the concurring opinion, had nice things to say

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Speaker 2: about Judge Boseburg in the concurring opinion. And it's not over, Eric.

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Speaker 2: The ACLU says they're going to ask for hearing on

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Speaker 2: Bank before the full circuit.

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Speaker 1: So, and we should also point out that the Alien

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Speaker 1: Enemies Act, ultimately it was determined by multiple courts that

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Speaker 1: that law had been completely misused by President Trump in

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Speaker 1: the Venezuela episode and in other courts around the country.

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Speaker 1: Multiple judges from different parties that there simply it's a

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Speaker 1: wartime law. We're not at war, and therefore you can

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Speaker 1: still deport people. You can still round people up and

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Speaker 1: seek to deport them under the immigration laws, but you

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Speaker 1: simply can't do it without any process via this particular law.

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Speaker 2: Let's turn now to Trump's debanking suit against JP Morgan,

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Speaker 2: Chase and CEO Jamie Diamond. Before we talk about the

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Speaker 2: court moves, remind us what the case is about.

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Speaker 1: So this is lawsuit is part of President Trump's case

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Speaker 1: against debanking is the term. He claims that financial institutions,

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Speaker 1: including JP Morgan and another bank he is sued by

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Speaker 1: his company, Capital I, debanked them because of their conservative

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Speaker 1: political views, because of Trump's conservative political views, that they

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Speaker 1: looked at politics and decided we don't want anything to

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Speaker 1: do with you, and that JP Morgan, in JP Morgan's case,

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Speaker 1: closed his personal accounts and in Capitol One's case, closed

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Speaker 1: hundreds of business accounts. This happened in early twenty twenty one,

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Speaker 1: so it wasn't too long after the January sixth attack

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Speaker 1: on the US Capitol by a mob of Trump's supporters,

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Speaker 1: so there were other things going on around the time

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Speaker 1: these decisions were made. That banks have not said publicly

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Speaker 1: why they closed the accounts. Trump is alleging it's because

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Speaker 1: of his conservative political views and that that is illegal

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Speaker 1: under various laws.

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Speaker 2: And why specifically is he suing Jamie Diamond instead of

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Speaker 2: just suing the bank.

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Speaker 1: Well, it depends who you ask. One of the claims

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Speaker 1: in the complaint is that Trump was improperly added to

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Speaker 1: an industry blacklist in quotation marks, saying don't ever do

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Speaker 1: business with this guy because he's bad news. And allegedly

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Speaker 1: Diamond is the one who personally had Trump added to

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Speaker 1: that list. So that is why Diamond has wound up

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Speaker 1: in this complaint. JP Morgan has said that mister Diamond

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Speaker 1: should be dismissed from the complaint because he has nothing,

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Speaker 1: you know, to do with this. And they actually claim

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Speaker 1: that Trump added Diamond specifically as a way to, through

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Speaker 1: a technicality, make it a state Florida case because there's

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Speaker 1: a Florida law of a consumer law that Trump argues

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Speaker 1: allows them to sue in the court as long as

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Speaker 1: they name Diamond.

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Speaker 2: So the issue right now is where the case will

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Speaker 2: be tried.

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Speaker 1: Right Yeah. So it started out as a case filed

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Speaker 1: by Trump's personal lawyer in Miami Dade County. JP Morgan

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Speaker 1: removed it automatically just by sort of asking moved it

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Speaker 1: to federal court, saying this is a federal issue, and

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Speaker 1: now President Trump is trying to both move it back

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Speaker 1: to state court or block it from being moved to

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Speaker 1: New York, which is where JP Morgan ultimately wants it.

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Speaker 1: So right now it's a question of whether or not

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Speaker 1: the case will be moved to Miami Dade County, in

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Speaker 1: which case they attempt by JP Morgan to move it

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Speaker 1: to New York will be moot, or whether or not

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Speaker 1: will move to Manhattan.

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Speaker 2: Right here, if Diamond is dismissed from the suit, then

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Speaker 2: the suit will go forward, likely in Manhattan.

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Speaker 1: Right that's the bank's contention. Yeah, they say that he

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Speaker 1: was fraudulently added is sort of like the legal term.

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Speaker 1: So by the way, they've clearly signaled what their motion

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Speaker 1: to dismiss is going to look like when that's filed.

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Speaker 1: They're saying that all of their customer agreements that Jabie

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Speaker 1: Morgan Chase explicitly say that any legal dispute of any

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Speaker 1: kind stemming from our customer agreement must be handled in

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Speaker 1: New York courts. And also it says that they can

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Speaker 1: close accounts for any reason they want. Period.

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Speaker 2: It sounds like boilerplate language, So what are the choices

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Speaker 2: of courts to hear this?

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Speaker 1: Right now, the judge is just weighing whether or not

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Speaker 1: to return the case to state court in Florida or

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Speaker 1: alternatively keep it in federal court in Florida or alternatively

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Speaker 1: transferred to federal court in Manhattan.

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Speaker 2: So suing in Florida near mar A Lago. But several

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Speaker 2: of his suits haven't even gotten close to trial, including

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Speaker 2: recently the one against the Wall Street Journal.

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Speaker 1: Yes, a federal judge in Miami dismissed Trump's lawsuit his

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Speaker 1: defamation lawsuit against the Wall Street Journal. I believe it

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Speaker 1: was for ten billion dollars over a story they wrote

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Speaker 1: saying that Trump had drawn a Lewde birthday note for

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Speaker 1: Jeffrey Epstein years ago for his fiftieth birthday, one of

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Speaker 1: many prominent people who were supposedly asked to send him notes.

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Speaker 1: Trump denies that, says it's a fake note, it wasn't his,

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Speaker 1: and he sued, said it was false, and the judge

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Speaker 1: said no, because you know, there's a high bar for

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Speaker 1: a public figure like Trump to allege a defamation. They

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Speaker 1: have to show something called actual malice, to show that

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Speaker 1: the publisher knew or recklessly disregarded the potential that it

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Speaker 1: was false. So you have to have some sort of

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Speaker 1: facts in your complaint to suggest that that malice exist,

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Speaker 1: and the judge said there were none, and so the

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Speaker 1: case was dismissed. But there is a little twist here,

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Speaker 1: and that is that Trump is going to get to

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Speaker 1: refile that case by April twenty seventh, I believe is

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Speaker 1: the deadline. The judge gave him pretty quick deadline. And

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Speaker 1: now Trump is asking for discovery into the Wall Street

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Speaker 1: Journal to help beef up his case.

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Speaker 2: And another federal judge in Miami dismissed the Trump organization

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Speaker 2: suit against Capital One as deficient and lacking in detail.

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Speaker 2: That also can be refiled. Thanks so much for joining me, Eric,

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Speaker 2: That's Bloomberg Legal reporter Eric Larson, and that's it for

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Speaker 2: this edition of the Bloomberg Law Show. Remember you can

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Speaker 2: always get the latest legal news on our Bloomberg Law podcast.

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Speaker 2: You can find them on Apple Podcasts, Spotify, and at

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Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, And

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Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

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