# Sen. Mark Kelly Censured & 92-Year-Old Judge in Maduro Case

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 7 Jan 2026, 29 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/2cde7eed-c3cf-49f0-b4e1-b3ca018b25e3/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge and lawyer in the US Air Force, discusses the Defense Secretary's unprecedented censure of US Senator Mark Kelly. Then Bloomberg Law reporter Mike Vilensky discusses the 92-year-old judge, Manhattan US District Judge Alvin Hellerstein, who will be overseeing the Nicolas Maduro prosecution. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:08] Speaker 2: In mid November, Democratic Senator Mark Kelly, a retired Navy captain,
[0:14] Speaker 2: and five other Democrats, all who served in the military
[0:17] Speaker 2: or intelligence services, released a video online in which they
[0:22] Speaker 2: reminded US troops they can disobey illegal orders right now.
[0:28] Speaker 3: The threats to our constitution aren't just coming from abroad,
[0:31] Speaker 3: but from right here at home.
[0:32] Speaker 4: Our laws are clear.
[0:33] Speaker 3: You can refuse illegal orders. You can refuse illegal orders.
[0:38] Speaker 3: You must refuse illegal orders.
[0:40] Speaker 2: No one has to carry out orders that violate the
[0:43] Speaker 2: law or our constitution. The video garnered millions of views
[0:48] Speaker 2: and President Trump's anger on social media. He called the
[0:52] Speaker 2: lawmakers traders who should be arrested and put to death,
[0:56] Speaker 2: and the administration is not giving up on the issue.
[1:00] Speaker 2: Defense Secretary Pete Hegseth has issued a formal letter of
[1:04] Speaker 2: censure against Kelly, with plans to cut his military rank
[1:09] Speaker 2: and dock his pension. Kelly, who served more than twenty
[1:12] Speaker 2: five years in the Navy, including thirty nine combat missions,
[1:17] Speaker 2: said quote, I'll fight this with everything I've got. And
[1:20] Speaker 2: Monday night on Comedy Central's The Daily Show, the senator
[1:25] Speaker 2: said the fight was not just about him.
[1:28] Speaker 3: They're trying to intimidate all of us. Of course, don't
[1:32] Speaker 3: say something they don't like, and especially for members of
[1:34] Speaker 3: the military, retired members right like me, keep your mouth
[1:37] Speaker 3: shut or they're coming after you. They're going to take
[1:39] Speaker 3: away your pension. So this is much bigger than they
[1:43] Speaker 3: don't make.
[1:43] Speaker 2: My guest is Joshua Castenberg, a professor at the University
[1:47] Speaker 2: of New Mexico Law School. He was both a judge
[1:50] Speaker 2: and a prosecutor in the US Air Force. Josh in
[1:54] Speaker 2: the censure letter, heg Seth said that Kelly had directly
[1:58] Speaker 2: attacked the legitimacy of Millie Tarry leadership and the lawfulness
[2:02] Speaker 2: of their orders, but that didn't appear to be what
[2:06] Speaker 2: was said in that video. Did you find anything objectionable
[2:10] Speaker 2: in the video?
[2:11] Speaker 1: No, I mean, first of all, with a certain degree
[2:15] Speaker 1: I would say of political and legal savvy, everything that
[2:20] Speaker 1: was said within the video is legally correct. Military personnel
[2:25] Speaker 1: have a duty not to follow unlawful orders. This is
[2:30] Speaker 1: fundamentally different than explaining one's idea of what an unlawful
[2:35] Speaker 1: order is or what a lawful order is. They put
[2:38] Speaker 1: it out there as what some have characterized as rage bait.
[2:43] Speaker 1: That's not my characterization, but some have, including in the Senate.
[2:48] Speaker 1: So Mark Kelly, as a retiree is subject to recall
[2:55] Speaker 1: and court martial and the like. The UCMJ, the Uniform
[3:00] Speaker 1: of Military Justice, the governing law of the military, does
[3:04] Speaker 1: have a controversial jurisdiction over retirees, and it came into
[3:08] Speaker 1: being in eighteen sixty one during an emergency session of Congress.
[3:13] Speaker 1: It is very very rare that someone has brought back
[3:16] Speaker 1: on active duty and court martialed or discipline, and usually
[3:20] Speaker 1: only for things that occurred while they were on active
[3:24] Speaker 1: duty or things that directly affect the military, like some
[3:27] Speaker 1: retired marine selling cocaine on base to active duty marine.
[3:31] Speaker 1: So you see it like that. So this was a
[3:33] Speaker 1: highly unusual step to begin with. But what made it
[3:36] Speaker 1: more unusual is that Senator Kelly did nothing wrong, and
[3:40] Speaker 1: he's a sitting United States senator and correct me if
[3:43] Speaker 1: I'm wrong. But we have three independent branches of government,
[3:46] Speaker 1: and the reason our government was structured in the way
[3:48] Speaker 1: it was was to prevent a tyranny from occurring, such
[3:52] Speaker 1: as happened in England when Oliver Cromwell ruled Parliament with
[3:56] Speaker 1: the Army back in the seventeen hundreds, and so this
[3:59] Speaker 1: sure is a step towards that. No funny enough, the
[4:03] Speaker 1: initial threat was to actually do a court martial, and
[4:05] Speaker 1: I think the DoD Secretary of Defense Hegseth backed off
[4:10] Speaker 1: on that because the US District Court would step in
[4:14] Speaker 1: and say, no, this is unconstitutional. So then they picked
[4:18] Speaker 1: an administrative route. And what is a letter of censure? Well,
[4:23] Speaker 1: for someone who's on actual active duty, this could be
[4:26] Speaker 1: career ending. But since Captain Mark Kelly, Navy captain, which
[4:31] Speaker 1: is the equivalent of a colonel, is retired. The letter
[4:34] Speaker 1: of censure at this point, without more, is nothing more
[4:38] Speaker 1: than your third grade teacher telling you she or he's
[4:40] Speaker 1: unhappy with you that day.
[4:42] Speaker 2: Heigseth said that this is part of the process, the
[4:47] Speaker 2: letter of censure. So what happens next is Hegseth the
[4:50] Speaker 2: one to decide what the next step is? Is there
[4:54] Speaker 2: an investigation?
[4:56] Speaker 1: So what could happen? And some media pundits and Secretary
[5:02] Speaker 1: of Defense Hegseth himself has said this is that they
[5:07] Speaker 1: may pursue what's known as an officer grade reduction. What's
[5:11] Speaker 1: problematic about that is that officers cannot be reduced in
[5:15] Speaker 1: grade by a court martial. However, the Secretary of the
[5:20] Speaker 1: Navy or the Secretary of Defense can always do an
[5:23] Speaker 1: officer grade determination if it is determined that someone should
[5:27] Speaker 1: not have been promoted based on criminal or other types
[5:33] Speaker 1: of deleterious activity while on active duty or reserve or
[5:38] Speaker 1: guard duty that had the promotion board known of, they
[5:41] Speaker 1: wouldn't have gotten promoted. So for example, someone cheating on
[5:45] Speaker 1: an exam if it's discovered years later, someone who'd been
[5:48] Speaker 1: court martialed, someone who committed conduct on becoming an officer,
[5:52] Speaker 1: like fraternizing with junior enlisted members, things like that. You know,
[5:57] Speaker 1: I've represented a major who was once to captain because
[6:02] Speaker 1: it came to light that he was engaged in sexual
[6:05] Speaker 1: conduct and activity with two enlisted women under his direct
[6:09] Speaker 1: command earlier, which is a UCUMJ violation. But generally those
[6:14] Speaker 1: officer grade reductions are thought of as things that occurred
[6:17] Speaker 1: on active duty. And Senator Mark Kelly is not on
[6:21] Speaker 1: active duty. He's a retiree, so that could create a
[6:24] Speaker 1: legal issue, but you'd have to get through the hurdle
[6:27] Speaker 1: of one what he said was technically correct, and so
[6:32] Speaker 1: there's a first Amendment and a truth defense built into that,
[6:35] Speaker 1: and he could still fight the reduction in US district
[6:38] Speaker 1: court or in the Court of Claims. And two, you know,
[6:42] Speaker 1: you really have to go back to the separation of powers.
[6:45] Speaker 1: What authority does the Secretary of Defense really have over
[6:49] Speaker 1: a sitting United States Senator? And the answer to that
[6:53] Speaker 1: is not much, and it would be unprecedented to try
[6:56] Speaker 1: to do something. My sense of what happened is a
[6:59] Speaker 1: few attorneys that the administration has actually listened to have
[7:03] Speaker 1: told him you won't survive a court martial. Here's the
[7:07] Speaker 1: things we think you could get away with, and it's
[7:09] Speaker 1: the letter of censure and probably nothing more.
[7:12] Speaker 2: There's also the Speech and Debate Clause for members of Congress.
[7:16] Speaker 1: Yeah, so I've done an investigation into that. The Speech
[7:19] Speaker 1: and Debate Clause protects individuals who are elected to Congress
[7:25] Speaker 1: or the Senate for what they say and do on
[7:28] Speaker 1: the floor of the Senate or the House and within
[7:31] Speaker 1: the official business of the House or Senate, meaning you know,
[7:34] Speaker 1: committee work and investigations and the like. But the speech
[7:39] Speaker 1: and Debate Clause has not been held to extend as
[7:43] Speaker 1: far as what Senator Kelly and the others have done.
[7:48] Speaker 1: I suppose you could make an argument that because they're
[7:52] Speaker 1: speaking on a matter of public concern in their official
[7:56] Speaker 1: capacity elected capacities as members of the Article one branch
[8:01] Speaker 1: of the government, maybe it extends that far. But I
[8:03] Speaker 1: actually think that's the weakest of the arguments that have
[8:06] Speaker 1: been raised.
[8:08] Speaker 2: Is this move by HEG sith precedent setting. I couldn't
[8:12] Speaker 2: find anything similar when I did some research.
[8:16] Speaker 1: There has been a long, long history of retired generals
[8:21] Speaker 1: and admirals and other senior individuals you know who've spoken
[8:24] Speaker 1: on public matters. During the height of the Vietnam War,
[8:28] Speaker 1: decorated and heroic generals like General James Gavin, Marine Corps
[8:33] Speaker 1: General David Shupe spoke out against the Vietnam conflict and
[8:38] Speaker 1: outright accused Lyndon Johnson and Richard Nixon of Lyne, even
[8:41] Speaker 1: David Hackett, who Nixon wanted to go after, but John
[8:45] Speaker 1: Dean as attorney, told him, you can't do that. There
[8:48] Speaker 1: have been hundreds of veterans who served in the House,
[8:52] Speaker 1: in the Senate, and in the Article three branch of government,
[8:55] Speaker 1: you know, the federal judiciary, and as governors, many of
[8:58] Speaker 1: whom have criticized the press and other matters, and yet
[9:02] Speaker 1: no no one's ever tried. No Secretary of Defense or
[9:06] Speaker 1: service secretary has ever done this move. It's been on precedented.
[9:10] Speaker 1: They've made the front page of the New York Times
[9:13] Speaker 1: or CBS Evening News and the like, and you know,
[9:17] Speaker 1: I think about it, and I think, Gee, if Richard
[9:19] Speaker 1: Nixon did nothing to David Hackett, a retired decorated colonel
[9:24] Speaker 1: who got his start his career in World War Two
[9:26] Speaker 1: and ended it in the Vietnam conflict, then that's kind
[9:30] Speaker 1: of a barometer of where we should be. But this
[9:33] Speaker 1: administration has crossed well over that threshold.
[9:37] Speaker 2: All six of the lawmakers who appeared in that video
[9:40] Speaker 2: served in the military or the intelligence branches. Why did
[9:43] Speaker 2: they pick on Kelly in particular.
[9:46] Speaker 1: Because Kelly's the only one who's subject of the uniform
[9:49] Speaker 1: coulde of military justice. The others served in the military,
[9:52] Speaker 1: but they're not collecting a retirement, they didn't go the
[9:54] Speaker 1: full twenty years, or they served in intelligence operations but
[9:58] Speaker 1: not in the military. Well, actually, the administration has attempted
[10:02] Speaker 1: to silence them. When FBI Director Cash Ptel said, well,
[10:05] Speaker 1: we're going to investigate them for sedition. Really, I think
[10:08] Speaker 1: that that is not even close to a definition of sedition.
[10:13] Speaker 1: I think if I were in the Pentagon as a
[10:16] Speaker 1: judge advocate and someone asked me to give a legal
[10:20] Speaker 1: review on this, my legal review would read something like this.
[10:25] Speaker 1: I cannot in good conscience draft a letter of censure
[10:30] Speaker 1: to a sitting United States Senator under these conditions, because
[10:35] Speaker 1: the framers of our constitution, the whole construct of our
[10:38] Speaker 1: Republican form of government is premised on the principle that
[10:42] Speaker 1: we will have no dictatorship like Oliver Cromwell. And the
[10:47] Speaker 1: idea that we can use the military to silence a
[10:50] Speaker 1: city United States senator that we find disagreeable is so
[10:55] Speaker 1: anathetical to the constitutional values which we have in the
[10:59] Speaker 1: military that I would ask you to find someone else
[11:02] Speaker 1: to do it in my place.
[11:04] Speaker 2: Well, let's see what happens here. Hegseth said that Kelly
[11:07] Speaker 2: has thirty days to submit a response, and the process
[11:11] Speaker 2: to downgrade his retirement rank will be completed within forty
[11:16] Speaker 2: five days. Coming up next on the Bloomberg Law Show,
[11:20] Speaker 2: thousands of federal agents have been deployed to Minneapolis, Minnesota.
[11:25] Speaker 2: Why there are no National Guard troops among them? I'm
[11:29] Speaker 2: June Grosso. When you're listening to Bloomberg. Thousands of federal
[11:34] Speaker 2: agents have been deployed to Minneapolis, Minnesota, the latest Democratic
[11:39] Speaker 2: city targeted by the Trump administration for mass deportations, following
[11:45] Speaker 2: operations in Chicago, Los Angeles, and Portland. However, unlike those cities,
[11:51] Speaker 2: the administration is not deploying National Guard troops under the
[11:56] Speaker 2: guise of high crime rates and the need to protect
[11:59] Speaker 2: federal off officials involved in immigration enforcement. In fact, President
[12:04] Speaker 2: Trump is backing off, at least for now, on his
[12:07] Speaker 2: push to deploy the National Guard, pulling troops out of
[12:11] Speaker 2: those three cities. This after legal roadblocks, including one from
[12:15] Speaker 2: the Supreme Court, a rare setback for Trump at the
[12:19] Speaker 2: High Court, but he warned that quote, we will come
[12:23] Speaker 2: back if crime begins to soar again. I've been talking
[12:26] Speaker 2: to Professor Joshua Castenberg of the University of New Mexico
[12:30] Speaker 2: Law School. Josh do you think the administration saw that
[12:34] Speaker 2: the legal deck was sort of stacked against them?
[12:38] Speaker 1: You know, I think they read the tea leaves, and
[12:41] Speaker 1: the tea leaves were the last Supreme Court decision not
[12:47] Speaker 1: to immediately overturn or put in abands the temporary restraining
[12:53] Speaker 1: order in regard to Chicago that the Seventh Circuit came
[12:57] Speaker 1: up with, and you know, Alito and Thomas dissented, but
[13:04] Speaker 1: you did have this decision that was issued that at
[13:08] Speaker 1: least tepidly included Cavanaugh because he had a concurrence, but
[13:13] Speaker 1: it also had Barrett in it and Chief Justice John
[13:16] Speaker 1: Roberts as well. And so I think they read the
[13:18] Speaker 1: tea leaves and pulled out the military and the hopes
[13:21] Speaker 1: that mootness, which is a fundamental principle of constitutional law,
[13:26] Speaker 1: will prevent any further review. At this time, that six.
[13:30] Speaker 2: To three decision was really one of the first times
[13:34] Speaker 2: in this second Trump administration that the Supreme Court has
[13:38] Speaker 2: stopped Trump on the emergency docket.
[13:41] Speaker 1: Yeah, I think there's the tariff issue coming up, and
[13:44] Speaker 1: that may be a pullback too, but that's a fundamentally
[13:48] Speaker 1: different issue. It's purely economic and where the power to
[13:52] Speaker 1: regulate the economy foreign economy rests.
[13:55] Speaker 2: As far as sending in troops, Trump said, we'll come back,
[14:00] Speaker 2: perhaps in a much different and stronger form. When crime
[14:03] Speaker 2: begins to soar again.
[14:05] Speaker 1: Well, you know, it's always the threat. And I can
[14:11] Speaker 1: tell you that in talking to people who have served
[14:15] Speaker 1: in the military as well as others. The concern is
[14:18] Speaker 1: they'll be you know, there'll be a city with the
[14:21] Speaker 1: tends to vote Democrat with a higher crime rate than
[14:25] Speaker 1: the norm, and the operation will occur shortly before the
[14:30] Speaker 1: midterm elections. And if you think about cities in purple
[14:34] Speaker 1: states where voting might make a difference, could that happen
[14:38] Speaker 1: in a place like Detroit or certainly Minneapolis now particularly Yeah,
[14:43] Speaker 1: because the fiasco of Governor waltz up there may actually
[14:49] Speaker 1: give the Republicans a shot at doing well in the midterms.
[14:53] Speaker 1: And so I could see some people in the White
[14:57] Speaker 1: House thinking this is where we're going to send troops next.
[15:02] Speaker 2: Also, Trump rather recently once again seemed to be toying
[15:06] Speaker 2: with the idea of invoking the Insurrection Act.
[15:11] Speaker 1: Well, the court did leave that open, you know, I
[15:14] Speaker 1: mean the White House, And this is something every listener
[15:17] Speaker 1: should understand. The White House argued there was an inherent
[15:22] Speaker 1: presidential authority to do what he did, but they didn't
[15:25] Speaker 1: cite to any direct language in the Constitution or any statutes.
[15:29] Speaker 1: There is the Insurrection Act statute, and the Insurrection Act
[15:33] Speaker 1: makes it very clear that if the laws of the
[15:36] Speaker 1: land are unenforceable, and that the Civil government cannot enforce
[15:41] Speaker 1: the law. The president can use the military as a
[15:45] Speaker 1: police force in those cities. Now, to me, that's a
[15:49] Speaker 1: very high bar. But I could see others making the
[15:54] Speaker 1: argument of, well, no, you know, there's a backlog of
[15:57] Speaker 1: cases and the local police don't have enough people to
[16:00] Speaker 1: do their job, even though they are doing their job.
[16:03] Speaker 1: And I could see that occurring too.
[16:06] Speaker 2: So, I mean, what do you think the broad principle
[16:09] Speaker 2: of the Supreme Court's decision stands for?
[16:12] Speaker 1: Well, I think the Supreme Court's decisions broad principle is
[16:15] Speaker 1: you don't have unfettered power, mister Trump, and you've got
[16:18] Speaker 1: to have more you know, you've got to have more
[16:20] Speaker 1: fact on your side, and you have to have a
[16:22] Speaker 1: statute that is open for you to do it. And
[16:24] Speaker 1: the insurrect Act is such a statute that.
[16:28] Speaker 2: Of course would start another round of litigation. I'm sure.
[16:32] Speaker 2: Always a pleasure to have you on, josh Thanks so much.
[16:35] Speaker 2: That's professor Joshua Castenberg of the University of New Mexico
[16:39] Speaker 2: Law School, coming up next on the Bloomberg Law Show.
[16:42] Speaker 2: The judge overseeing the Nicholas Maduro prosecution is a ninety
[16:47] Speaker 2: two year old native New Yorker who's willing to take
[16:50] Speaker 2: unpopular stances, is unafraid to challenge lawyers, and has managed
[16:55] Speaker 2: to win praise from President Trump despite crossing him on issues.
[17:01] Speaker 2: I'm June Grosso and you're listening to Bloomberg. Ousted Venezuelan
[17:08] Speaker 2: president Nicholas Maduro was defiant in his first court appearance
[17:12] Speaker 2: on federal drug trafficking charges on Monday, Attempting to tell
[17:17] Speaker 2: the story of his capture by US forces in a
[17:20] Speaker 2: stunning raid, Maduro said, quote, I am here kidnapped since
[17:25] Speaker 2: January third, Saturday. I was captured at my home in Caracas.
[17:30] Speaker 2: But before he could go further, the judge cut him off, saying,
[17:34] Speaker 2: at this point in time, I only want to know
[17:37] Speaker 2: one thing. Are you Nicholas Maduro Morros? And with that,
[17:42] Speaker 2: Manhattan Federal Judge Alvin Hellerstein showed Muduro who was in
[17:46] Speaker 2: charge in his courtroom at ninety two years old. With
[17:50] Speaker 2: thirty eight years on the bench, Judge Hellerstein has shown
[17:54] Speaker 2: an independent streak and no fear of taking unpopular positions.
[18:00] Speaker 2: Mean is Bloomberg Law report of Mike Velenski, who's written
[18:03] Speaker 2: a profile on Judge Hellerstein. Mike tell US a little
[18:06] Speaker 2: about the background of this Clinton appointee.
[18:10] Speaker 4: So Judge Alvin K. Hellerstein, he's a District Court judge
[18:15] Speaker 4: in Manhattan in the US History Court for the Southern
[18:18] Speaker 4: District of New York. He's a character there. I mean,
[18:21] Speaker 4: he's ninety two years old, he's been on the bench
[18:23] Speaker 4: about three decades. Kind of gives you the impression, you know,
[18:28] Speaker 4: he's seen it all, he's heard it all. He's one
[18:30] Speaker 4: of those judges. And in fact, he's had a pretty
[18:33] Speaker 4: incredible career as far as interesting cases, going back to
[18:38] Speaker 4: allowing the KKK to march to New York City in
[18:41] Speaker 4: the nineties, through several high profile cases involving the financial sector.
[18:47] Speaker 4: He oversaw the Charlie Javis trial, he oversaw the Bill
[18:50] Speaker 4: Wang trial, and recently has even before being handed the
[18:54] Speaker 4: Maduro case, has gotten a bunch of politically sensitive cases
[18:57] Speaker 4: involving the President Trump to.
[19:00] Speaker 2: Talk about some of those cases because he ruled against
[19:03] Speaker 2: the Trump administration in one case, and then he ruled
[19:06] Speaker 2: against Trump personally in another.
[19:10] Speaker 4: The case against the administration, which also directly involved Venezuela,
[19:15] Speaker 4: was an early effort by the administration to quickly deport
[19:19] Speaker 4: alleged Venezuelan gang members under a very old statute called
[19:24] Speaker 4: the Alien Enemies Act that the Trump administration kind of
[19:28] Speaker 4: dusted off to create these sped up deportations, and Judge
[19:35] Speaker 4: Hellerstein stopped it effectively. He issued an injunction saying that
[19:41] Speaker 4: due process was needed, they needed notice, they needed a hearing,
[19:44] Speaker 4: and that the administration was trying to kind of circumvent
[19:47] Speaker 4: the legal rules of due process.
[19:50] Speaker 2: I didn't realize that Judge Hellerstein was involved in the
[19:54] Speaker 2: Trump hush money case and in fact is still involved
[19:57] Speaker 2: in it. Tell us what happened to Yeah.
[20:00] Speaker 4: So that case is before him now. So twice the
[20:04] Speaker 4: president tried to get that case into federal court. It
[20:07] Speaker 4: was tried in Manhattan State Court by District Attorney Alvin Bragg.
[20:11] Speaker 4: But Trump has repeatedly said, you know, and his legal
[20:15] Speaker 4: team has said it belongs in federal court. It involves
[20:18] Speaker 4: issues of presidential duties, and twice Judge Hellerstein said, no,
[20:24] Speaker 4: it doesn't, and in quite blunt terms, said, you know,
[20:27] Speaker 4: paying an adult film star has nothing to do with
[20:29] Speaker 4: your role as president. This is a state case. This
[20:32] Speaker 4: belongs in state court. Interestingly, he was essentially overturned by
[20:37] Speaker 4: the US Court of Appeals for the Second Circuit recently
[20:40] Speaker 4: which said they're not taking a position on whether the
[20:42] Speaker 4: case belongs in state or federal court, but that Judge
[20:45] Speaker 4: Hellerstein didn't adequately probe whether the US Supreme Court decision
[20:51] Speaker 4: on this topic means that this case should potentially be
[20:55] Speaker 4: in federal court. So he has the case again now
[20:58] Speaker 4: with Trump and his legal team trying to get it
[21:00] Speaker 4: into federal courten Hill again rule on whether or not
[21:03] Speaker 4: it should be.
[21:04] Speaker 2: And unusual for President Trump, who often criticizes the judges
[21:10] Speaker 2: he's in front of or the administration is in front of.
[21:12] Speaker 2: He said, quote, the judge is very respected. We'll see
[21:16] Speaker 2: how we do. We're going to go through a slog
[21:19] Speaker 2: of a trial.
[21:20] Speaker 4: He's one of the few judges that come to mind
[21:23] Speaker 4: that Trump has actually said kind things about, at least
[21:26] Speaker 4: on Air Force One on Sunday. But you know it's
[21:29] Speaker 4: early days, so we will see how how that relationship
[21:33] Speaker 4: plays out.
[21:33] Speaker 2: You know, Trump mentioned a slog of a trial, and
[21:36] Speaker 2: this is going to be a long trial. So as
[21:38] Speaker 2: a senior judge, Judge Hellerstein could have refused the trial.
[21:43] Speaker 4: Yes, and he still can voluntarily give up the case
[21:48] Speaker 4: if he doesn't want it under what I understand to
[21:51] Speaker 4: be the rules of the Southern District. But he has
[21:54] Speaker 4: the case because he was already overseeing a case involving
[21:58] Speaker 4: one of Maduro's co defendants. He's already plied guilty a
[22:02] Speaker 4: former Venezuelan intelligence chief who is in the US and
[22:06] Speaker 4: pled guilty. So that was a mature of code defendant,
[22:08] Speaker 4: and from my understanding, that's how heller Scene ended up
[22:11] Speaker 4: with this case. He could voluntarily give it up, but
[22:13] Speaker 4: he's given no indications that he wishes to, And given
[22:16] Speaker 4: his history of presiding over high profile cases, it doesn't
[22:20] Speaker 4: seem like he's a judge who would be at all
[22:22] Speaker 4: intimidated by that part of it.
[22:24] Speaker 2: So it's unusual to have a ninety two year old
[22:27] Speaker 2: judge frankly does his age show in the courtroom.
[22:30] Speaker 4: Not really, No, I mean, so he seems sharp, he
[22:33] Speaker 4: seems alert. He's still from what I've seen of him
[22:37] Speaker 4: and from what I've heard mother lawyers, he's still a
[22:39] Speaker 4: sharp legal mind. Where it my show is just a
[22:43] Speaker 4: little bit of like crankiness, you know, as one lawyer.
[22:47] Speaker 4: But and as I've observed, like he'll tell a lawyer
[22:50] Speaker 4: you're being boring. You know, if a lawyer objects beyond
[22:55] Speaker 4: just you know, sustaining or over ruling, he'll say there's
[22:58] Speaker 4: nothing objectionable here. He can kind of snap. And if
[23:02] Speaker 4: you associate that kind of contankerous quality with age, perhaps
[23:05] Speaker 4: he has that. But one of the lawyers said to me,
[23:08] Speaker 4: you know, Judge Soup been on the bench that long
[23:10] Speaker 4: at some point get like that because they've they've seen
[23:13] Speaker 4: heard everything. But this is a case that even Judge
[23:16] Speaker 4: Hellerstein at ninety two has never seen or heard before,
[23:19] Speaker 4: so he will be engaged.
[23:22] Speaker 2: Yeah, I think the crankiness may be more about having
[23:25] Speaker 2: been on the bench so long that you've seen and
[23:27] Speaker 2: heard just about everything from lawyers after almost four decades,
[23:32] Speaker 2: and you have a unique view of what's going on
[23:34] Speaker 2: in the courtroom. So Judge Hellerstein said to lawyers in
[23:38] Speaker 2: the Archa Ghost trial, the jury looks like it's bored
[23:42] Speaker 2: to tears. I think you should stick to what's important.
[23:45] Speaker 4: Please.
[23:46] Speaker 2: That actually sounds like good advice because judges are very
[23:49] Speaker 2: attuned to jurors.
[23:51] Speaker 4: Yeah, he gave lawyers in that trial several tips, even
[23:55] Speaker 4: like kind of telling them how he would suggest say,
[23:58] Speaker 4: phrase questions things like that. So he has the kind
[24:01] Speaker 4: of paternal quality towards towards the younger lawyers sometimes and
[24:05] Speaker 4: maybe it can come off kurt or sharp at moments,
[24:09] Speaker 4: but he does appear to actually kind of be giving guidance,
[24:12] Speaker 4: you know, as a kind of legal sage at his age.
[24:16] Speaker 4: He does appear to be giving advice to the lawyers
[24:18] Speaker 4: at times.
[24:19] Speaker 2: You talk to the New York County Lawyers Association President
[24:22] Speaker 2: Richard Swanson, who said he's a real believer in due process.
[24:26] Speaker 2: He's not going to be swayed by politics. If anything,
[24:28] Speaker 2: Maduro should be glad he has a fair judge.
[24:32] Speaker 4: Yeah, A lot of the lawyers I spoke with, especially
[24:34] Speaker 4: lawyers and positions of leadership, feel like Judge Hellerstein will
[24:38] Speaker 4: kind of set a positive model in terms of giving
[24:42] Speaker 4: a fair shape to someone in a US court and
[24:46] Speaker 4: where it's politically, you know, so sensitive but the world
[24:50] Speaker 4: is watching. But all the lawyers I spoke with felt
[24:53] Speaker 4: like Judge Hellerstein is the right judge for that role
[24:57] Speaker 4: and that he wouldn't be impacted by by the politics
[25:01] Speaker 4: or the public profile of this case.
[25:04] Speaker 2: Maduro seemed to be defiant and trying to take control
[25:08] Speaker 2: a little bit of the courtroom, and Judge Hellerstein, when
[25:12] Speaker 2: he said I'm the president, said well, we'll get to that.
[25:14] Speaker 2: He seemed to try to keep him a check. So
[25:17] Speaker 2: does he run a tight courtroom.
[25:19] Speaker 4: Yeah, he is known to run a tight courtroom. He
[25:21] Speaker 4: likes to keep things moving. I think yesterday he really
[25:25] Speaker 4: wanted to make sure that they got done only what
[25:28] Speaker 4: they needed to get done and no more is my
[25:31] Speaker 4: sense from what I've seen of that. Also, I did
[25:33] Speaker 4: speak with a sketch artist who was in the courtroom
[25:36] Speaker 4: who has done this for many years, and she was
[25:39] Speaker 4: telling me, you know, even having sketched Trump himself in court,
[25:43] Speaker 4: John Gotti, all these big players, there was still really
[25:47] Speaker 4: this sense of like history in the courtroom, and that
[25:51] Speaker 4: Maduro walked in not so much like a defendant but
[25:54] Speaker 4: like a leader of a state, and that he really
[25:58] Speaker 4: had a certain presence. And I think that Judge Hellerstein
[26:02] Speaker 4: probably wanted to make sure that this still runs the
[26:05] Speaker 4: way Cortin is supposed to. This isn't a geopolitical meeting, right,
[26:09] Speaker 4: It's a criminal case.
[26:11] Speaker 2: Maduro and his wife are potentially facing life sentences. Here
[26:16] Speaker 2: is Judge Hellerstein known for being tough at sentencing or
[26:20] Speaker 2: more lenient.
[26:21] Speaker 4: I would say somewhere down the middle. There are a
[26:23] Speaker 4: couple of cases. Charlie Javis case, so the government had
[26:26] Speaker 4: asked for twelve years, and he gave her seven, and
[26:30] Speaker 4: even told her at sentencing he said something to the
[26:32] Speaker 4: effect of like, you've done a bad thing, but you're
[26:34] Speaker 4: a good person. So he does have this seemingly empathetic
[26:38] Speaker 4: side that comes out at Sendancing sometimes.
[26:41] Speaker 2: Tell us about some of the cases earlier in his
[26:44] Speaker 2: career that helped him build his reputation as a judge.
[26:48] Speaker 4: There were a couple of cases from kind of early
[26:50] Speaker 4: in his tenure that jumped out to me. One this
[26:53] Speaker 4: case involving the KKK, where he was actually overturned. He
[26:56] Speaker 4: ruled that they could march wearing their masks, and this
[26:59] Speaker 4: was believe that Giuliani era. This was the nineties, very
[27:02] Speaker 4: controversial case. They were ultimately from what I read and recalled,
[27:07] Speaker 4: they were allowed to ultimately mark without mass. But it
[27:10] Speaker 4: just sort of showed, and I spoke to the a
[27:12] Speaker 4: CLU lawyer who represented them, it kind of showed a
[27:15] Speaker 4: willingness to uphold the rights of even the most unpopular groups.
[27:21] Speaker 4: That could kind of give you a sense of who
[27:23] Speaker 4: he is as a judge. There was also a couple
[27:26] Speaker 4: of nine to eleven cases that he oversaw. One he
[27:30] Speaker 4: rejected a very large settlement for rescue workers, even though
[27:34] Speaker 4: the rescue workers at Ground zero had agreed to the settlement.
[27:37] Speaker 4: He said they deserved more and made everyone go back
[27:40] Speaker 4: to the drawing board, and that was kind of controversial
[27:42] Speaker 4: at the time. And another case said he didn't have
[27:46] Speaker 4: the power to force the city to give human remains
[27:50] Speaker 4: back to nine to eleven families, which was a big
[27:53] Speaker 4: disappointment to them, but he really tried to explain that
[27:56] Speaker 4: exceeds the limits of his powers. So I guess what
[27:59] Speaker 4: I took from all those This is a judge who
[28:02] Speaker 4: is firm in his convictions, whether you agree with him
[28:05] Speaker 4: or not, and is going to rule the way he
[28:07] Speaker 4: really believes is right.
[28:09] Speaker 2: And that's just what you want from a judge. And
[28:12] Speaker 2: the Maduro case is going to be so complicated, at
[28:16] Speaker 2: least in the initial stages of the motion practice, so
[28:20] Speaker 2: you need a judge who's sharp and also one who's
[28:23] Speaker 2: not afraid to make unpopular rulings. Thanks so much, Mike.
[28:27] Speaker 2: That's Bloomberg Law reporter Mike Vilenski, And that's it for
[28:31] Speaker 2: this edition of The Bloomberg Law Show. Remember you can
[28:34] Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
[28:37] Speaker 2: You can find them on Apple Podcasts, Spotify, and at
[28:41] Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And
[28:46] Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
[28:49] Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
[28:52] Speaker 2: you're listening to Bloomberg

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