Weekend Law: Bolton Indicted, Voting Rights & Reagan Judges | Bloomberg Law
Summary
Investment Theme: The podcast primarily discusses the legal and political implications of John Bolton's indictment, focusing on the potential misuse of the Espionage Act as a political weapon.
Market Insights: The discussion highlights the complexities and challenges of legal proceedings involving classified information and the potential impact on public perception and political dynamics.
Company Discussions: Although not directly related to companies, the podcast touches on the broader implications for government officials and their ability to publish works based on their experiences.
Opportunities: The podcast suggests potential legal defenses for Bolton, including challenging the classification of information and arguing selective prosecution.
Key Takeaways: The conversation underscores the contentious nature of using legal frameworks like the Espionage Act in politically charged cases and the broader implications for the rule of law and government transparency.
Transcript
This is Bloomberg Law with June Graasso from Bloomberg Radio. Three weeks and three perceived political enemies of President Donald Trump indicted. Former Trump administration national security adviser John Bolton was charged on Thursday with 18 counts of retention and transmission of national defense information. The outspoken critic of President Trump is accused of sharing with his wife and daughter more than a thousand pages of notes about his day-to-day activities as national security adviser, including classified information. Trump, who's repeatedly called for Bolton to face criminal charges, had a rather muted reaction to the indictment. >> I didn't know that. You tell me for the first time, but I think he's, you know, bad person. Uh, I think he's a uh bad guy. Yeah, he's a bad guy. It's too bad, but it's the way it goes against. >> That's the way it goes, right? >> Bolton pleaded not guilty to the charges on Friday and said he's the latest target in the weaponization of the Justice Department to charge people Trump deems to be his enemies. My guest is national security attorney Mark Zade. So Mark is the heart of this indictment the diary entries he made when he was national security adviser. >> I think there's two things that this indictment really throws out there that is significant. One, there is no indication that any one of these charges pertains to any marked classified documents. You know, folks may remember that it was indicated that there were documents that were retrieved from his home that were still marked as classified. Yet none of that shows up in the indictment. And then the second thing is that no count in this indictment actually deals with information that was published in Bolton's book, The Room Where It Happened. And that's really key because it was the contents of the book that Judge Lambert, a federal district judge, had identified as actually having contained classified information. So this indictment, 18 counts in all, looks to solely be limited to this diary that John Bolton maintained that he would send daily to his wife and daughter. >> Is it problematic for Bolton that according to the indictment, some of the notes indicated that he was getting the information in a secured environment. For example, one began with, "While in the situation room, I learned that." And another, "The intel briefer said, >> I have represented other national security adviserss and secretaries of defense and dozens of other federal employees who have written books, who have come out of the intelligence community, the military, law enforcement. I will say every single one of them always comes to me and says,"I wrote this book to make sure it had no classified information in it." They always think that and they always want that. But the reality is when you're not the one making the decisions any longer, it's the government that makes that decision. And the government can really very broadly interpret information to constitute something that is classified. Literally anything that deals with foreign relations, if it mentions a foreign country, could be classified by a classifier in the US government. I have been warning for a long time, long before Trump, but now especially concerning because of Trump, that the Espionage Act could be exploited and used as a weapon against individuals because of how easy it is to charge someone who had previously access to classified information with its mishandling. So, I'm not surprised that this is where the administration is going. And it will be some time before we find out whether or not this information was really classified or more appropriately properly classified. >> So then one of his challenges you think will be a challenge to the classifications. >> Very few espionage act cases go to trial and there's a reason for that because the defenses are usually very limited in nature. Every attempt for the most part that has gone to try and challenge the classification determination generally fails. So it is usually through pre-trial motions, particularly through what we call sea, the classified information procedures act, where you gray the government in the sense of, well, I need this information to be publicized for my defense. And if the government's not willing to do that, then they have to dismiss the indictment. John Bolton, of course, will have similar motions as we'll see in the James Comey case and the Leticia James case of selective and vindictive prosecution. Both of those motions are always incredibly difficult as well. But if any case was poised for potential success, it would be this type of weaponized case. But John Bolton will have trouble with this indictment. It has nothing to do with the specifics of his case, of which I know nothing about. It has to do with just how Espionage Act cases generally go, which is to often times end up in a plea. >> Is there another case that seems similar to you, perhaps the General Petraeus case? >> I do think the Petraeus case is very similar for folks who don't go that far back. General Petraeus, a former director of the Central Intelligence Agency, was writing a book and he had a ghost writer who happened to be his mistress as well. And he was sharing classified information with her. Now, she at least had a security clearance unlike John Bolton's wife and daughter, but it doesn't really matter because she wasn't authorized to receive the information. And as in both cases, there's no indication of any dissemination of that information beyond the people who it was disseminated to originally. Obviously, there might have been a hack by Iranian government officials, but I don't know of any evidence that actually they they did anything with the information presumably because perhaps there wasn't anything that really made any valuable contribution to disseminate it. But General Petraeus, although this was a decade ago and it was very different times, he only got 2 years probation and $100,000 fine. You know, I would take that as a win in this type of case, easy. But we're not going to get there until a whole number of pre-trial motions will be brought by Bolton's legal team. >> I'm curious as to what you think about the government putting in the indictment. some of Bolton's commentary on, for example, Hillary Clinton and the email server or Secretary Hegset and Signal. >> The government included all these quotes from Bolton to demonstrate that he as is well known because he's been around forever. I first met him in 1992 when I was in law school. He's had so many senior level positions at the highest levels of classified access as well. He knows what is classified and how to protect it etc. But this is what I see all the time. No matter what level, they always think that they are not revealing classified information. And he may be 100% correct. Maybe at some point we'll find out. But it it was a sort of in-your-face attempt or PR effort by the government to throw his own quotes at him. It might not make any difference and likely doesn't as a matter of law, but perhaps if he got to a jury, this might have some impact on them of, hey, you should have known better. But the reality is, you know, most of these cases are very factually different. I mean, you can come up with some analogies, but there's still going to be some facts that distinguish one case from the other. Finally, do you think that there'll be a plea deal in the case or it will actually go to trial? He's the third perceived Trump enemy who's been indicted. But do you see his case as very different from the cases against former FBI Director James Comey and New York Attorney General Leticia James? The Bolton indictment has more meat on its bones than the Comey and James indictments. And that has to do with who brought it for one thing. Lindseay Halligan, the appointed US attorney in the Eastern District of Virginia who has zero criminal experience. She's an insurance lawyer and not even a very experienced insurance lawyer. And she did the case herself with no experience and apparently no help. And career professionals refused to sign on. We're not seeing that in the Bolton case. There are career national security attorneys who have signed on to this case. It is a much more detailed indictment, 26 pages in length, and there's a lot in there because they've brought these cases many, many times. There aren't a ton of Espionage Act cases when it really comes down to it because those are reserved for cases where the government knows they can generally win. But this is a very similar on paper case that we see very often. Although I will say the nature of it is very very concerning. And I'm not even talking about the vindictiveness. I'm talking about what really is on trial in this indictment. And that is the pre-ublication review process in some ways. How do senior officials or anyone in the government who had access to classified information, how do they write a book? Because I will say what John Bolton is alleged to have done is done every single day by government officials both Democrat and Republican. And if you're going to go down that path one time, then you're going to have to go down that path a lot more times if you want to keep any type of consistency. And that will involve and include Trump administration officials who are in office right now who I guarantee you will do the same thing. Bolton's attorney, Abby Lel, who also represents Leticia James, said that the underlying facts in the case were investigated and resolved years ago and also that keeping diaries is not a crime. >> I will say first out front, Abby Low is also my attorney representing me and a colleague and a friend and he's right and he's a little bit not necessarily right. For one thing, sure, everyone can keep a diary. It has to do with whether or not there is classified or more precisely national defense information in it. That you can't do. And I don't judge whether that's what happened cuz I don't know. But Abby is absolutely right that the timing of this is incredibly suspect. This was all known years ago. Now, I suppose the government will say, "Well, we didn't know about the diary." But they knew about the book. And the diary is what comprised the book. even though surprisingly none of the information published in the book is at issue here and I find that incredibly intriguing. So the notion of what Bolton did to write his book, the Trump administration knew that four or five years ago and could have found out that same information. They went to court in an almost unprecedented civil action to try and enjoin the book, meaning to make sure it wasn't published, which they failed in doing because the standard to enjoin a book dates back to the Watergate time in the Pentagon Papers case where the Supreme Court did not allow the government to block the publication of the Pentagon Papers, which was the secret war history of the Vietnam War and the US involvement. No one has tried to enjoin a book since because the standard is so high. And I was very surprised the Trump administration tried to do that because of how easy it was that they were going to lose. But where they could have succeeded had they wanted to was to go after John Bolton criminally back then. And they had far more evidence just what existed at the time because you had a federal district judge say outright that there was classified information in the manuscript in the book and they chose not to do it. So to do it now, 5 years later, and on the heels of a rant multiple times by the president of the United States that he wants to go after his enemies calls into question the integrity of this indictment and that will be a factor in pre-trial motion. >> Do you think that there'll be a plea deal in the case or it will actually go to trial or third choice, will it be dismissed before trial? There are some very good motions that will happen pre-trial that could definitely impact the structure of this prosecution. Once the parties start to get into discovery, particularly Bolton starts to get information from the government. You know, we'll start to have a better picture of whether a selective or vindictive prosecution effort or motion could work. Beyond that, we've got two very stubborn parties here. both John Bolton and President Trump and Pam Bondi as the attorney general. I doubt we will see a plea discussion anytime soon, but down the line it could totally happen, especially if one or both parties believe they're going to have egg on their face and that in order to avoid that is going to require some sort of plea deal. I think at the end of the day, the Trump administration could care less if John Bolton is convicted or acquitted. It's far more about putting him, Leticia James, James Comey, and others who are forthcoming through the ringer the way he feels he was pulled through as well. So, at the end of the day, it probably won't matter. He just wants them to suffer along the way. >> So, apparently a tough road ahead for Bolton. Thanks so much, Mark. That's national security attorney Mark Zade. Coming up next, will the Supreme Court gut the Voting Rights Act, I'm June Grao, and you're listening to Bloomberg. [Music] >> This is Bloomberg Law with June Graasso from Bloomberg Radio. The Voting Rights Act is a landmark civil rights law that for more than half a century has been a guardrail against gerrymandered congressional maps that discriminate on the basis of race. In a complicated case involving a challenge to a black majority district in Louisiana, one thing seemed clear after 2 and 1/2 hours of oral arguments. The six conservative justices are ready to limit or potentially eliminate the most important remaining provision of the Voting Rights Act. Justice Brett Kavanaaugh questioned whether the law was warranted 60 years later. Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades, uh, in some cases, but that they should not be uh, indefinite and should, uh, have a end point. And what exactly do you think the end point should be or how would we know for the intentional use of race to create districts? But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens if a court has actually found a specific current proved discrimination by the state. >> What these section two suits do is they ask about current conditions and they ask whether those current conditions show vote dilution which is violative of section two. So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? and when the state fails um with respect to those issues when those conditions obtain now. >> However, some conservative justices like Neil Gorsuch suggested that any use of race in redistricting even to correct a state's discriminatory dilution of minority votes is unconstitutional. I'm asking, is it acceptable under section two, as as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? >> How quickly the court hands down its decision could determine whether or not states have enough time to redraw maps before the midterms. Joining me is elections law expert Richard Bralt, a professor at Columbia Law School. Rich, tell us about the impact of this decision if the justices decide, as expected, to limit or even eliminate section two of the Voting Rights Act. >> It's not clear they're going to do away with section two, though they will clearly change how they interpret it. I think that it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't result of litigation, but were done either defensively as way of foring litigation or because the local legislators thought it was the right thing to do. Whether those can now be attacked as reflecting an excessive attention to race. We don't know what the court's going to say and we don't know how far this will go in terms of unraveling pre-existing districtricting practices. But certainly whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well. >> Explain the central issue in the case. >> It's very hard to explain what the issue is. It's a very complicated case. I mean, the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana where the plaintiffs argued under section two of the voting rights act that a minority in this case, black voter representation was illegally reduced, that the state is approximately a third black, but only one out of the six congressional districts had a majority minority population. And the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second majority minority district and that the state's failure to do so under the totality of the circumstances including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation. The state went ahead and did that but they did it in such a way that by taking certain partisan factors into account they created a very strange looking district that kind of goes across much of the state. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons and drawing on older Supreme Court president. They argue that that's unconstitutional. The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race even in the significant way when it's being used as a remedy for prior racial discrimination. Really, the issue here is when is it okay to use race in drawing districts? In some sense, this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest or it could be turned out to what can the Voting Rights Act permissibly require? How is the court going to interpret the Voting Rights Act? There are a lot of questions all sort of tied up in a knot in this case and it could come out in many different ways. One thing that seems pretty clear is that the original plaintiffs, the black voters who sued for change are likely to lose. But on what theory, it could be any from a relatively narrow theory to an extremely broad theory. And >> now the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less. >> I think I would phrase it in terms of how big a change do they want to make in the law and when could race be used. And I do think that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances. And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, section two of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race and drawing a remedial district. And so I think what you saw, let's call them the more moderate conservatives, uh, Justice Barrett, maybe Justice Kavanaaugh, maybe the Chief Justice looking for ways of squaring this case with that Alabama case known as Milligan, or explaining why this case could come out differently and maybe explaining how this case fits with the older president, Jingles, and are they going to overturn Jingles? Are they going to see this as a clarification of jingles, which would be a way of changing it without flat out changing it? So, my guess is less likely that you're going to see a majority striking down the voting rights act, but you're going to definitely see a new interpretation of how it applies and what it requires, at least based on the oral argument. And it's always tricky to rely on the oral argument, but you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old. >> And what were the best arguments that the liberal justices made? Not that they'll have any persuasive effect on their conservative colleagues. >> The liberal justices, I think, primarily basically relying heavily on star decisis. that is we've decided this before including two years ago that this case is on all fours with the Alabama case. So that's one. Two, another version of star decisis is there is a doctrine that says that court opinions interpreting statutes get super strong starry decisis have super strong presidential effect because whereas court decisions interpreting the constitution really can't be overturned except through an extraordinary process of constitutional amendment. Court decisions interpreting a statute, congress can always overturn them and congress has not tampered with the voting rights act since 1982. Third argument, and it didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, Kavanaaugh wrote a concurrence. He echoed some of the language Justice Okconor had used many years earlier and dealing with affirmative action and saying there's got to be some time limit for this that it's not clear how much longer you can keep taking effects into account in remedies. And much of the argument of the lawyer for the NAACP and the liberal justices is, well, actually, there is a built-in time limit in section two. Plaintiffs have to show that there is current racial block voting, that there is a current desperate impact. And so therefore, it's not something that goes on forever. Plaintiffs can't make that showing. They lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases. So bottom line, Rich, a lot of legal experts are predicting that the court is going to just gut the Voting Rights Act, but you don't think that the justices will go that far? >> No, I think they're going to make it much less effective. I don't think there's a majority. Based on the questions, it seemed to me that it's more likely that they will reinterpret the Jingles case and/or the section of the Voting Rights Act in a way that places a much higher burden on plaintiffs to prove something that would entitle them to redrawing lines in order to enhance minority representation. I think that may have the effect of making sure there'd be even fewer Voting Rights Act victories than there are now, but based on the kinds of questioning, it seemed to me that they're more likely to make the Voting Rights Act much less effective than to throw it out altogether. >> Where do you think the Chief Justice stands? because he did write the majority opinion in the Shelby County case that got rid of section 4 of the Voting Rights Act. >> A classic Roberts move would be to effectively change everything without literally overturning it. You might see Thomas Alo and Gorsuch wanting to do more possibly Kavanaaugh, but my sense of Roberts and Barrett anyway is they want to change as little formally as little as possible while making a big enough change to get rid of these kind of cases. >> What do you think the timing looks like here? Do you think the court might try to rush this through to get around the Purcell principle, which is that courts shouldn't change election rules right before an election? I >> mean, that's a good question. Uh, and I don't know. I mean, one concern is if they come down soon, there may be a lot of lawsuits challenging current plans that were done either as a result of litigation or as a way of foralling litigation that create either majority minority districts or what are called opportunity districts, districts without a black or Latino majority, but are designed in a way to make it easier for minority voters to elect the candidates of choice. So, right, if there's a decision between now and the spring, it's quite possible we'll see yet more re-redistricting. If it's much later than that, I think it would be very hard for it to show up in the 26 election, but it would surely show up in the 28 election. I mean, it's now been argued twice. They set it up on the calendar early in the term. It's conceivable that there'll be an early decision, but it's really very hard to tell. And it may be that they need some time to figure out a theory that commands support or it could very well be that there's, you know, multiple opinions. This is a very hard case. >> So hard that they argued it once before in the last term and didn't come to a decision. So we'll see what they decide after this reargument and how fast they decide it. Thanks so much, Rich. That's Professor Richard Brafalt of Columbia Law School. Coming up next on the Bloomberg Law Show, federal trial judges appointed by President Ronald Reagan are all in their 80s with decades of experience on the bench and they're emerging as vocal critics of President Trump and his administration. I'm June Graasso and you're listening to Bloomberg. It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. >> In February, Judge John Kunau was the first to rule against President Trump's executive order denying automatic citizenship to children born in the United States. The judge called it blatantly unconstitutional and he was blunt in both his criticism of the president and his own determination to protect the rule of law. >> There are moments in the world's history when people look back and ask where were the lawyers, where were the judges. In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. Kunau is just one of the judges appointed by President Ronald Reagan who've become vocal critics of the president and his administration's efforts to circumvent court orders or challenge the rule of law. Most federal judges are more guarded in pushing for compliance with their orders. But the Reagan appointees, all in their 80s with decades of experience on the bench, are institutionalists who won't stand for parties trying to subvert court orders and have no problem dealing out some harsh criticism, even to the president. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline, in general, how have Reagan appointees viewed Trump in this administration? and speaking generally because I'm sure not every Reagan appointee feels this way, but some of them really have sort of blanched at the way that the Trump administration has been approaching the law and then also been approaching the courts in general. You know, the arguments that they make in court. We've had judges sort of bristle at how they've approached birthright citizenship. We've had judges detail times where they feel like the administration isn't complying with their court orders or at least not doing so in a really wholesome way that they feel, you know, recognizes the power of the courts. And so, it's just been interesting to watch these judges who are in Seattle, they're in Boston, we have one in DC, there's also one in the Fourth Circuit, which covers Virginia. And, you know, they've been pretty vocal in talking about how they feel about the administration. Like Judge William Young, the 85year-old wrote a scathing 161page opinion, which was stunning in so many ways, finding that the Trump administration's policy of deporting pro Palestinian students blatantly violated the First Amendment. And he wrote, "The Constitution, our civil laws, regulations, mores, customs practices, courtesies, all of it. The president simply ignores it all when he takes it into his head to act. >> Definitely. He really went through all the different ways that he feels about the president within that opinion. And you know, it was really just such a striking opinion, not just because of what he said about Trump, but the way that he wrote it. And it really felt like he was trying to speak to the public there and almost give them a sort of civics lesson, saying, you know, this is the way that the courts function and this is the way they have historically functioned. And what I'm facing today in my courtroom is not proper actions by the administration. And I haven't decided what I'm going to do yet. But whatever I do do here will be fully done with all of that in mind. >> Republicans seem to have a special reverence for President Reagan. In fact, Trump has a portrait of Reagan hanging in the Oval Office. What kind of people did Reagan appoint to the bench? You know, Reagan also went with young conservatives the way that Trump did. And that's why we have so many Reagan appointees who are still active judges. These were folks who were getting appointed in their 30s and their early 40s. They've been sitting on the bench anywhere from 36, 37 years to nearly 40 years some of them. And you know, they've spent a lot of time on the court and seen administration to administration seeing all of these changes. you know, Judge Lambert in DC, for one, he's talked about how he was arguing on behalf of the Reagan administration in court before he got a federal judgeship. So, these are folks that, you know, Reagan administration officials were familiar with, knew of them, and, you know, sort of had the conservative credentials that they wanted to put onto the court. Now, of course, some of them are in blue states. That means that they had blue slips that were signed by Democratic senators in order for them to get the seats. But overall, Reagan really had an opportunity to shape the courts in a really conservative way, just as Trump did during his first term and will to the extent that's possible during his second. >> But conservative ideology has evolved in the nearly 40 years since Reagan left office. And also, the current administration doesn't always seem to be interested in conservative ideology, but rather gathering more power for the president and the executive branch. >> Yeah, I think that's right. And it's just very interesting to watch the divide that we see on some of these courts where we'll even have instances where Reagan appointees and Trump appointees are split over an issue and they won't be lined up and ruling the same way. And you would think, oh, you know, a conservative is a conservative. But really, we're dealing with shades of conservatism here. And the way I've started to be thinking about it is a little more, okay, is a Trump appointee maybe even further to the right than a Reagan appointee necessarily is. And that's not the case for all courts. I cover the Fifth Circuit a lot, and I think the Reagan appointees on that court are quite in line with the Trump appointees there. But in others, that's not so much the case. They're much more traditionalist conservatives. They really think about, you know, the the Buckley era of conservatism and what that all means for them. >> Well, it's more about the rule of law, I think, for some of the Reagan appointees, the older judges. And you talked to a former Reagan appointed judge in Miami, Thomas Scott, who said they're institutionalists. They're going to come down very hard. You're playing games with the court and it's not going to be successful. And I think we've seen that. >> Yeah. And it's also important to recognize again these folks have been on the courts for decades. They realize that their power comes from people complying with their rulings. So there's a little bit of self-preservation there, right? In terms of them wanting to say, "Hey, I still have influence here, but I only have this influence if you actually go along with what I'm doing here." And there's that, but there's also this respect for the rule of law. They've seen it play out again for years and years on their time at the bench and they've seen what happens when it's not respected. They've seen what happens in other countries when it's not respected. You know, Judge Coffer, one of the judges in Seattle, he brought up Eastern European governments and saying, you know, he had spent time there and watched what happened when the rule of law disappeared and what it meant for people to be returning to those democratic institutions. So they're bringing a lot of perspective here, not just domestically, but globally. >> The courts in the Northeast seem to be the center of a lot of the cases involving challenges to executive power. Is there a reason for that? >> Yeah. So just like during the Biden administration, we saw so many lawsuits filed in Texas, it seems like Boston and other courts that are within the First Circuit are becoming the same draw for liberal litigators. And that's really because there's a number of Democratic appointees there that make up the majority of those courts. So when you're going to a circuit and you're saying, "Hey, I want to get the best case law possible for my client. Where do I want to file this lawsuit?" You're probably going to want to try and file it somewhere like Boston. You could go, you know, to Rhode Island has had a lot of cases as well. And they've even had a Trump appointee in Rhode Island ruling against the Trump administration. Maryland is another place where a lot of plaintiffs are suing the Trump administration. So much so that the administration filed an unheard of lawsuit against all 15 federal judges in Maryland. That case was thrown out by the federal judge in West Virginia who was assigned the case, a Trump appointee, by the way. I thought it was interesting that retired judge John Tinder, who was on the seventh circuit, said that the Reagan appointees long tenures on the bench might make them less patient and more likely to call something for what it is rather than beat around the bush, right? I think we all know from personal experience when we, you know, sit down with folks who've been doing jobs for a long time, they know how the job is done. They have no problem telling people how they think the job should be done. And you know that very well could be what's happening here as well. >> But some legal scholars have said there could be a backlash to these kinds of blunt statements from judges. >> And we've already seen that play out. You know, when I reached out for comment for reaction from the White House to Judge Young's 161page ruling that you referenced earlier, you know, a White House official shared with me a list of cases in which Judge Young had been reversed or had been chided by the Supreme Court. And that stood out to me and them saying, "Hey, you know, this guy, he's not a perfect judge." To which I say, you know, which judge is perfect? I cover them for a living. And I think it's hard to say that any judge is perfect. They're all human like the rest of us. So it was interesting to see that level of push back from the White House on that. And you know, I think it'll only continue as we see rulings come out. we may start seeing things pop up from folks nomination hearings. Um some rehashing of that nomination process that so many people say has become too politicized and too toxic and that should be forgotten the second that they become judges on the bench. But is that really possible? Can we really separate out the two? I don't know. Since Trump came into office this second time, there's been this sort of phenomenon of fewer federal judges retiring, particularly those on appellet courts, and there's a lot of speculation as to why. So, the Reagan appointees are all in their 80s. They've been on the bench for decades. Have any of them said it's time for me to retire or I'm not going to retire because >> none of these judges have come out publicly and said anything. Some of them are already on senior status. For example, Judge Young is a senior judge. Judge Coffer is a senior judge. That means that they hear fewer cases. Um, Judge Lambert is also a senior judge, but he's quite active. He hears cases in DC and in Texas, which is where he grew up. So, he keeps himself very busy. that just because you're a senior judge doesn't mean that you work any less. I spoke to Judge Young maybe 2 years ago for a totally unrelated story. And he sort of made a comment to me about how he's going to keep going for as long as he can. And that's something I've had in the back of my mind here as we do this reporting. >> And it's amazing that they're in their 80s and they're handling these really complicated cases, high-profile cases where the parties don't always comply with court orders. I mean, it's not easy being a federal judge, but it's great to have that experience on the bench. Thanks so much, Jacqueline. That's Bloomberg Law reporter Jacqueline Thompson. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 PM Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]
Weekend Law: Bolton Indicted, Voting Rights & Reagan Judges | Bloomberg Law
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This is Bloomberg Law with June Graasso from Bloomberg Radio. Three weeks and three perceived political enemies of President Donald Trump indicted. Former Trump administration national security adviser John Bolton was charged on Thursday with 18 counts of retention and transmission of national defense information. The outspoken critic of President Trump is accused of sharing with his wife and daughter more than a thousand pages of notes about his day-to-day activities as national security adviser, including classified information. Trump, who's repeatedly called for Bolton to face criminal charges, had a rather muted reaction to the indictment. >> I didn't know that. You tell me for the first time, but I think he's, you know, bad person. Uh, I think he's a uh bad guy. Yeah, he's a bad guy. It's too bad, but it's the way it goes against. >> That's the way it goes, right? >> Bolton pleaded not guilty to the charges on Friday and said he's the latest target in the weaponization of the Justice Department to charge people Trump deems to be his enemies. My guest is national security attorney Mark Zade. So Mark is the heart of this indictment the diary entries he made when he was national security adviser. >> I think there's two things that this indictment really throws out there that is significant. One, there is no indication that any one of these charges pertains to any marked classified documents. You know, folks may remember that it was indicated that there were documents that were retrieved from his home that were still marked as classified. Yet none of that shows up in the indictment. And then the second thing is that no count in this indictment actually deals with information that was published in Bolton's book, The Room Where It Happened. And that's really key because it was the contents of the book that Judge Lambert, a federal district judge, had identified as actually having contained classified information. So this indictment, 18 counts in all, looks to solely be limited to this diary that John Bolton maintained that he would send daily to his wife and daughter. >> Is it problematic for Bolton that according to the indictment, some of the notes indicated that he was getting the information in a secured environment. For example, one began with, "While in the situation room, I learned that." And another, "The intel briefer said, >> I have represented other national security adviserss and secretaries of defense and dozens of other federal employees who have written books, who have come out of the intelligence community, the military, law enforcement. I will say every single one of them always comes to me and says,"I wrote this book to make sure it had no classified information in it." They always think that and they always want that. But the reality is when you're not the one making the decisions any longer, it's the government that makes that decision. And the government can really very broadly interpret information to constitute something that is classified. Literally anything that deals with foreign relations, if it mentions a foreign country, could be classified by a classifier in the US government. I have been warning for a long time, long before Trump, but now especially concerning because of Trump, that the Espionage Act could be exploited and used as a weapon against individuals because of how easy it is to charge someone who had previously access to classified information with its mishandling. So, I'm not surprised that this is where the administration is going. And it will be some time before we find out whether or not this information was really classified or more appropriately properly classified. >> So then one of his challenges you think will be a challenge to the classifications. >> Very few espionage act cases go to trial and there's a reason for that because the defenses are usually very limited in nature. Every attempt for the most part that has gone to try and challenge the classification determination generally fails. So it is usually through pre-trial motions, particularly through what we call sea, the classified information procedures act, where you gray the government in the sense of, well, I need this information to be publicized for my defense. And if the government's not willing to do that, then they have to dismiss the indictment. John Bolton, of course, will have similar motions as we'll see in the James Comey case and the Leticia James case of selective and vindictive prosecution. Both of those motions are always incredibly difficult as well. But if any case was poised for potential success, it would be this type of weaponized case. But John Bolton will have trouble with this indictment. It has nothing to do with the specifics of his case, of which I know nothing about. It has to do with just how Espionage Act cases generally go, which is to often times end up in a plea. >> Is there another case that seems similar to you, perhaps the General Petraeus case? >> I do think the Petraeus case is very similar for folks who don't go that far back. General Petraeus, a former director of the Central Intelligence Agency, was writing a book and he had a ghost writer who happened to be his mistress as well. And he was sharing classified information with her. Now, she at least had a security clearance unlike John Bolton's wife and daughter, but it doesn't really matter because she wasn't authorized to receive the information. And as in both cases, there's no indication of any dissemination of that information beyond the people who it was disseminated to originally. Obviously, there might have been a hack by Iranian government officials, but I don't know of any evidence that actually they they did anything with the information presumably because perhaps there wasn't anything that really made any valuable contribution to disseminate it. But General Petraeus, although this was a decade ago and it was very different times, he only got 2 years probation and $100,000 fine. You know, I would take that as a win in this type of case, easy. But we're not going to get there until a whole number of pre-trial motions will be brought by Bolton's legal team. >> I'm curious as to what you think about the government putting in the indictment. some of Bolton's commentary on, for example, Hillary Clinton and the email server or Secretary Hegset and Signal. >> The government included all these quotes from Bolton to demonstrate that he as is well known because he's been around forever. I first met him in 1992 when I was in law school. He's had so many senior level positions at the highest levels of classified access as well. He knows what is classified and how to protect it etc. But this is what I see all the time. No matter what level, they always think that they are not revealing classified information. And he may be 100% correct. Maybe at some point we'll find out. But it it was a sort of in-your-face attempt or PR effort by the government to throw his own quotes at him. It might not make any difference and likely doesn't as a matter of law, but perhaps if he got to a jury, this might have some impact on them of, hey, you should have known better. But the reality is, you know, most of these cases are very factually different. I mean, you can come up with some analogies, but there's still going to be some facts that distinguish one case from the other. Finally, do you think that there'll be a plea deal in the case or it will actually go to trial? He's the third perceived Trump enemy who's been indicted. But do you see his case as very different from the cases against former FBI Director James Comey and New York Attorney General Leticia James? The Bolton indictment has more meat on its bones than the Comey and James indictments. And that has to do with who brought it for one thing. Lindseay Halligan, the appointed US attorney in the Eastern District of Virginia who has zero criminal experience. She's an insurance lawyer and not even a very experienced insurance lawyer. And she did the case herself with no experience and apparently no help. And career professionals refused to sign on. We're not seeing that in the Bolton case. There are career national security attorneys who have signed on to this case. It is a much more detailed indictment, 26 pages in length, and there's a lot in there because they've brought these cases many, many times. There aren't a ton of Espionage Act cases when it really comes down to it because those are reserved for cases where the government knows they can generally win. But this is a very similar on paper case that we see very often. Although I will say the nature of it is very very concerning. And I'm not even talking about the vindictiveness. I'm talking about what really is on trial in this indictment. And that is the pre-ublication review process in some ways. How do senior officials or anyone in the government who had access to classified information, how do they write a book? Because I will say what John Bolton is alleged to have done is done every single day by government officials both Democrat and Republican. And if you're going to go down that path one time, then you're going to have to go down that path a lot more times if you want to keep any type of consistency. And that will involve and include Trump administration officials who are in office right now who I guarantee you will do the same thing. Bolton's attorney, Abby Lel, who also represents Leticia James, said that the underlying facts in the case were investigated and resolved years ago and also that keeping diaries is not a crime. >> I will say first out front, Abby Low is also my attorney representing me and a colleague and a friend and he's right and he's a little bit not necessarily right. For one thing, sure, everyone can keep a diary. It has to do with whether or not there is classified or more precisely national defense information in it. That you can't do. And I don't judge whether that's what happened cuz I don't know. But Abby is absolutely right that the timing of this is incredibly suspect. This was all known years ago. Now, I suppose the government will say, "Well, we didn't know about the diary." But they knew about the book. And the diary is what comprised the book. even though surprisingly none of the information published in the book is at issue here and I find that incredibly intriguing. So the notion of what Bolton did to write his book, the Trump administration knew that four or five years ago and could have found out that same information. They went to court in an almost unprecedented civil action to try and enjoin the book, meaning to make sure it wasn't published, which they failed in doing because the standard to enjoin a book dates back to the Watergate time in the Pentagon Papers case where the Supreme Court did not allow the government to block the publication of the Pentagon Papers, which was the secret war history of the Vietnam War and the US involvement. No one has tried to enjoin a book since because the standard is so high. And I was very surprised the Trump administration tried to do that because of how easy it was that they were going to lose. But where they could have succeeded had they wanted to was to go after John Bolton criminally back then. And they had far more evidence just what existed at the time because you had a federal district judge say outright that there was classified information in the manuscript in the book and they chose not to do it. So to do it now, 5 years later, and on the heels of a rant multiple times by the president of the United States that he wants to go after his enemies calls into question the integrity of this indictment and that will be a factor in pre-trial motion. >> Do you think that there'll be a plea deal in the case or it will actually go to trial or third choice, will it be dismissed before trial? There are some very good motions that will happen pre-trial that could definitely impact the structure of this prosecution. Once the parties start to get into discovery, particularly Bolton starts to get information from the government. You know, we'll start to have a better picture of whether a selective or vindictive prosecution effort or motion could work. Beyond that, we've got two very stubborn parties here. both John Bolton and President Trump and Pam Bondi as the attorney general. I doubt we will see a plea discussion anytime soon, but down the line it could totally happen, especially if one or both parties believe they're going to have egg on their face and that in order to avoid that is going to require some sort of plea deal. I think at the end of the day, the Trump administration could care less if John Bolton is convicted or acquitted. It's far more about putting him, Leticia James, James Comey, and others who are forthcoming through the ringer the way he feels he was pulled through as well. So, at the end of the day, it probably won't matter. He just wants them to suffer along the way. >> So, apparently a tough road ahead for Bolton. Thanks so much, Mark. That's national security attorney Mark Zade. Coming up next, will the Supreme Court gut the Voting Rights Act, I'm June Grao, and you're listening to Bloomberg. [Music] >> This is Bloomberg Law with June Graasso from Bloomberg Radio. The Voting Rights Act is a landmark civil rights law that for more than half a century has been a guardrail against gerrymandered congressional maps that discriminate on the basis of race. In a complicated case involving a challenge to a black majority district in Louisiana, one thing seemed clear after 2 and 1/2 hours of oral arguments. The six conservative justices are ready to limit or potentially eliminate the most important remaining provision of the Voting Rights Act. Justice Brett Kavanaaugh questioned whether the law was warranted 60 years later. Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades, uh, in some cases, but that they should not be uh, indefinite and should, uh, have a end point. And what exactly do you think the end point should be or how would we know for the intentional use of race to create districts? But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens if a court has actually found a specific current proved discrimination by the state. >> What these section two suits do is they ask about current conditions and they ask whether those current conditions show vote dilution which is violative of section two. So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? and when the state fails um with respect to those issues when those conditions obtain now. >> However, some conservative justices like Neil Gorsuch suggested that any use of race in redistricting even to correct a state's discriminatory dilution of minority votes is unconstitutional. I'm asking, is it acceptable under section two, as as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? >> How quickly the court hands down its decision could determine whether or not states have enough time to redraw maps before the midterms. Joining me is elections law expert Richard Bralt, a professor at Columbia Law School. Rich, tell us about the impact of this decision if the justices decide, as expected, to limit or even eliminate section two of the Voting Rights Act. >> It's not clear they're going to do away with section two, though they will clearly change how they interpret it. I think that it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't result of litigation, but were done either defensively as way of foring litigation or because the local legislators thought it was the right thing to do. Whether those can now be attacked as reflecting an excessive attention to race. We don't know what the court's going to say and we don't know how far this will go in terms of unraveling pre-existing districtricting practices. But certainly whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well. >> Explain the central issue in the case. >> It's very hard to explain what the issue is. It's a very complicated case. I mean, the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana where the plaintiffs argued under section two of the voting rights act that a minority in this case, black voter representation was illegally reduced, that the state is approximately a third black, but only one out of the six congressional districts had a majority minority population. And the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second majority minority district and that the state's failure to do so under the totality of the circumstances including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation. The state went ahead and did that but they did it in such a way that by taking certain partisan factors into account they created a very strange looking district that kind of goes across much of the state. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons and drawing on older Supreme Court president. They argue that that's unconstitutional. The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race even in the significant way when it's being used as a remedy for prior racial discrimination. Really, the issue here is when is it okay to use race in drawing districts? In some sense, this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest or it could be turned out to what can the Voting Rights Act permissibly require? How is the court going to interpret the Voting Rights Act? There are a lot of questions all sort of tied up in a knot in this case and it could come out in many different ways. One thing that seems pretty clear is that the original plaintiffs, the black voters who sued for change are likely to lose. But on what theory, it could be any from a relatively narrow theory to an extremely broad theory. And >> now the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less. >> I think I would phrase it in terms of how big a change do they want to make in the law and when could race be used. And I do think that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances. And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, section two of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race and drawing a remedial district. And so I think what you saw, let's call them the more moderate conservatives, uh, Justice Barrett, maybe Justice Kavanaaugh, maybe the Chief Justice looking for ways of squaring this case with that Alabama case known as Milligan, or explaining why this case could come out differently and maybe explaining how this case fits with the older president, Jingles, and are they going to overturn Jingles? Are they going to see this as a clarification of jingles, which would be a way of changing it without flat out changing it? So, my guess is less likely that you're going to see a majority striking down the voting rights act, but you're going to definitely see a new interpretation of how it applies and what it requires, at least based on the oral argument. And it's always tricky to rely on the oral argument, but you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old. >> And what were the best arguments that the liberal justices made? Not that they'll have any persuasive effect on their conservative colleagues. >> The liberal justices, I think, primarily basically relying heavily on star decisis. that is we've decided this before including two years ago that this case is on all fours with the Alabama case. So that's one. Two, another version of star decisis is there is a doctrine that says that court opinions interpreting statutes get super strong starry decisis have super strong presidential effect because whereas court decisions interpreting the constitution really can't be overturned except through an extraordinary process of constitutional amendment. Court decisions interpreting a statute, congress can always overturn them and congress has not tampered with the voting rights act since 1982. Third argument, and it didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, Kavanaaugh wrote a concurrence. He echoed some of the language Justice Okconor had used many years earlier and dealing with affirmative action and saying there's got to be some time limit for this that it's not clear how much longer you can keep taking effects into account in remedies. And much of the argument of the lawyer for the NAACP and the liberal justices is, well, actually, there is a built-in time limit in section two. Plaintiffs have to show that there is current racial block voting, that there is a current desperate impact. And so therefore, it's not something that goes on forever. Plaintiffs can't make that showing. They lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases. So bottom line, Rich, a lot of legal experts are predicting that the court is going to just gut the Voting Rights Act, but you don't think that the justices will go that far? >> No, I think they're going to make it much less effective. I don't think there's a majority. Based on the questions, it seemed to me that it's more likely that they will reinterpret the Jingles case and/or the section of the Voting Rights Act in a way that places a much higher burden on plaintiffs to prove something that would entitle them to redrawing lines in order to enhance minority representation. I think that may have the effect of making sure there'd be even fewer Voting Rights Act victories than there are now, but based on the kinds of questioning, it seemed to me that they're more likely to make the Voting Rights Act much less effective than to throw it out altogether. >> Where do you think the Chief Justice stands? because he did write the majority opinion in the Shelby County case that got rid of section 4 of the Voting Rights Act. >> A classic Roberts move would be to effectively change everything without literally overturning it. You might see Thomas Alo and Gorsuch wanting to do more possibly Kavanaaugh, but my sense of Roberts and Barrett anyway is they want to change as little formally as little as possible while making a big enough change to get rid of these kind of cases. >> What do you think the timing looks like here? Do you think the court might try to rush this through to get around the Purcell principle, which is that courts shouldn't change election rules right before an election? I >> mean, that's a good question. Uh, and I don't know. I mean, one concern is if they come down soon, there may be a lot of lawsuits challenging current plans that were done either as a result of litigation or as a way of foralling litigation that create either majority minority districts or what are called opportunity districts, districts without a black or Latino majority, but are designed in a way to make it easier for minority voters to elect the candidates of choice. So, right, if there's a decision between now and the spring, it's quite possible we'll see yet more re-redistricting. If it's much later than that, I think it would be very hard for it to show up in the 26 election, but it would surely show up in the 28 election. I mean, it's now been argued twice. They set it up on the calendar early in the term. It's conceivable that there'll be an early decision, but it's really very hard to tell. And it may be that they need some time to figure out a theory that commands support or it could very well be that there's, you know, multiple opinions. This is a very hard case. >> So hard that they argued it once before in the last term and didn't come to a decision. So we'll see what they decide after this reargument and how fast they decide it. Thanks so much, Rich. That's Professor Richard Brafalt of Columbia Law School. Coming up next on the Bloomberg Law Show, federal trial judges appointed by President Ronald Reagan are all in their 80s with decades of experience on the bench and they're emerging as vocal critics of President Trump and his administration. I'm June Graasso and you're listening to Bloomberg. It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. >> In February, Judge John Kunau was the first to rule against President Trump's executive order denying automatic citizenship to children born in the United States. The judge called it blatantly unconstitutional and he was blunt in both his criticism of the president and his own determination to protect the rule of law. >> There are moments in the world's history when people look back and ask where were the lawyers, where were the judges. In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. Kunau is just one of the judges appointed by President Ronald Reagan who've become vocal critics of the president and his administration's efforts to circumvent court orders or challenge the rule of law. Most federal judges are more guarded in pushing for compliance with their orders. But the Reagan appointees, all in their 80s with decades of experience on the bench, are institutionalists who won't stand for parties trying to subvert court orders and have no problem dealing out some harsh criticism, even to the president. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline, in general, how have Reagan appointees viewed Trump in this administration? and speaking generally because I'm sure not every Reagan appointee feels this way, but some of them really have sort of blanched at the way that the Trump administration has been approaching the law and then also been approaching the courts in general. You know, the arguments that they make in court. We've had judges sort of bristle at how they've approached birthright citizenship. We've had judges detail times where they feel like the administration isn't complying with their court orders or at least not doing so in a really wholesome way that they feel, you know, recognizes the power of the courts. And so, it's just been interesting to watch these judges who are in Seattle, they're in Boston, we have one in DC, there's also one in the Fourth Circuit, which covers Virginia. And, you know, they've been pretty vocal in talking about how they feel about the administration. Like Judge William Young, the 85year-old wrote a scathing 161page opinion, which was stunning in so many ways, finding that the Trump administration's policy of deporting pro Palestinian students blatantly violated the First Amendment. And he wrote, "The Constitution, our civil laws, regulations, mores, customs practices, courtesies, all of it. The president simply ignores it all when he takes it into his head to act. >> Definitely. He really went through all the different ways that he feels about the president within that opinion. And you know, it was really just such a striking opinion, not just because of what he said about Trump, but the way that he wrote it. And it really felt like he was trying to speak to the public there and almost give them a sort of civics lesson, saying, you know, this is the way that the courts function and this is the way they have historically functioned. And what I'm facing today in my courtroom is not proper actions by the administration. And I haven't decided what I'm going to do yet. But whatever I do do here will be fully done with all of that in mind. >> Republicans seem to have a special reverence for President Reagan. In fact, Trump has a portrait of Reagan hanging in the Oval Office. What kind of people did Reagan appoint to the bench? You know, Reagan also went with young conservatives the way that Trump did. And that's why we have so many Reagan appointees who are still active judges. These were folks who were getting appointed in their 30s and their early 40s. They've been sitting on the bench anywhere from 36, 37 years to nearly 40 years some of them. And you know, they've spent a lot of time on the court and seen administration to administration seeing all of these changes. you know, Judge Lambert in DC, for one, he's talked about how he was arguing on behalf of the Reagan administration in court before he got a federal judgeship. So, these are folks that, you know, Reagan administration officials were familiar with, knew of them, and, you know, sort of had the conservative credentials that they wanted to put onto the court. Now, of course, some of them are in blue states. That means that they had blue slips that were signed by Democratic senators in order for them to get the seats. But overall, Reagan really had an opportunity to shape the courts in a really conservative way, just as Trump did during his first term and will to the extent that's possible during his second. >> But conservative ideology has evolved in the nearly 40 years since Reagan left office. And also, the current administration doesn't always seem to be interested in conservative ideology, but rather gathering more power for the president and the executive branch. >> Yeah, I think that's right. And it's just very interesting to watch the divide that we see on some of these courts where we'll even have instances where Reagan appointees and Trump appointees are split over an issue and they won't be lined up and ruling the same way. And you would think, oh, you know, a conservative is a conservative. But really, we're dealing with shades of conservatism here. And the way I've started to be thinking about it is a little more, okay, is a Trump appointee maybe even further to the right than a Reagan appointee necessarily is. And that's not the case for all courts. I cover the Fifth Circuit a lot, and I think the Reagan appointees on that court are quite in line with the Trump appointees there. But in others, that's not so much the case. They're much more traditionalist conservatives. They really think about, you know, the the Buckley era of conservatism and what that all means for them. >> Well, it's more about the rule of law, I think, for some of the Reagan appointees, the older judges. And you talked to a former Reagan appointed judge in Miami, Thomas Scott, who said they're institutionalists. They're going to come down very hard. You're playing games with the court and it's not going to be successful. And I think we've seen that. >> Yeah. And it's also important to recognize again these folks have been on the courts for decades. They realize that their power comes from people complying with their rulings. So there's a little bit of self-preservation there, right? In terms of them wanting to say, "Hey, I still have influence here, but I only have this influence if you actually go along with what I'm doing here." And there's that, but there's also this respect for the rule of law. They've seen it play out again for years and years on their time at the bench and they've seen what happens when it's not respected. They've seen what happens in other countries when it's not respected. You know, Judge Coffer, one of the judges in Seattle, he brought up Eastern European governments and saying, you know, he had spent time there and watched what happened when the rule of law disappeared and what it meant for people to be returning to those democratic institutions. So they're bringing a lot of perspective here, not just domestically, but globally. >> The courts in the Northeast seem to be the center of a lot of the cases involving challenges to executive power. Is there a reason for that? >> Yeah. So just like during the Biden administration, we saw so many lawsuits filed in Texas, it seems like Boston and other courts that are within the First Circuit are becoming the same draw for liberal litigators. And that's really because there's a number of Democratic appointees there that make up the majority of those courts. So when you're going to a circuit and you're saying, "Hey, I want to get the best case law possible for my client. Where do I want to file this lawsuit?" You're probably going to want to try and file it somewhere like Boston. You could go, you know, to Rhode Island has had a lot of cases as well. And they've even had a Trump appointee in Rhode Island ruling against the Trump administration. Maryland is another place where a lot of plaintiffs are suing the Trump administration. So much so that the administration filed an unheard of lawsuit against all 15 federal judges in Maryland. That case was thrown out by the federal judge in West Virginia who was assigned the case, a Trump appointee, by the way. I thought it was interesting that retired judge John Tinder, who was on the seventh circuit, said that the Reagan appointees long tenures on the bench might make them less patient and more likely to call something for what it is rather than beat around the bush, right? I think we all know from personal experience when we, you know, sit down with folks who've been doing jobs for a long time, they know how the job is done. They have no problem telling people how they think the job should be done. And you know that very well could be what's happening here as well. >> But some legal scholars have said there could be a backlash to these kinds of blunt statements from judges. >> And we've already seen that play out. You know, when I reached out for comment for reaction from the White House to Judge Young's 161page ruling that you referenced earlier, you know, a White House official shared with me a list of cases in which Judge Young had been reversed or had been chided by the Supreme Court. And that stood out to me and them saying, "Hey, you know, this guy, he's not a perfect judge." To which I say, you know, which judge is perfect? I cover them for a living. And I think it's hard to say that any judge is perfect. They're all human like the rest of us. So it was interesting to see that level of push back from the White House on that. And you know, I think it'll only continue as we see rulings come out. we may start seeing things pop up from folks nomination hearings. Um some rehashing of that nomination process that so many people say has become too politicized and too toxic and that should be forgotten the second that they become judges on the bench. But is that really possible? Can we really separate out the two? I don't know. Since Trump came into office this second time, there's been this sort of phenomenon of fewer federal judges retiring, particularly those on appellet courts, and there's a lot of speculation as to why. So, the Reagan appointees are all in their 80s. They've been on the bench for decades. Have any of them said it's time for me to retire or I'm not going to retire because >> none of these judges have come out publicly and said anything. Some of them are already on senior status. For example, Judge Young is a senior judge. Judge Coffer is a senior judge. That means that they hear fewer cases. Um, Judge Lambert is also a senior judge, but he's quite active. He hears cases in DC and in Texas, which is where he grew up. So, he keeps himself very busy. that just because you're a senior judge doesn't mean that you work any less. I spoke to Judge Young maybe 2 years ago for a totally unrelated story. And he sort of made a comment to me about how he's going to keep going for as long as he can. And that's something I've had in the back of my mind here as we do this reporting. >> And it's amazing that they're in their 80s and they're handling these really complicated cases, high-profile cases where the parties don't always comply with court orders. I mean, it's not easy being a federal judge, but it's great to have that experience on the bench. Thanks so much, Jacqueline. That's Bloomberg Law reporter Jacqueline Thompson. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 PM Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]