# Trump May Pardon You, But The Bank May Not

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 23 Oct 2025, 33 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/29557477-8642-4b22-99e3-b37f017b8d4a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Tom Schoenberg, Bloomberg senior reporter, discusses why it’s one thing to be pardoned by the president, it’s another thing to be cleared by the bank. Then Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge in the US Air Force, discusses the various legal opinions on President Trump sending troops into Democratic-run cities. 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: On the first day of his second term, President Donald
[0:12] Speaker 2: Trump granted full pardons or commutations to the more than
[0:16] Speaker 2: fifteen hundred people convicted or charged in the January sixth
[0:21] Speaker 2: riots at the US Capitol four years ago.
[0:24] Speaker 1: So this is.
[0:25] Speaker 2: January sixth, and these are the hostages, approximately fifteen hundred
[0:31] Speaker 2: for a pardon, Yes, full pardon. That was just the
[0:35] Speaker 2: beginning of what has been something of a pardoning spree
[0:38] Speaker 2: for Trump. Today was the convicted founder of the crypto
[0:42] Speaker 2: exchange Binance Chaopeng Jao. Last week it was convicted former
[0:47] Speaker 2: Republican Congressman George Santos. But it's one thing to be
[0:52] Speaker 2: cleared by the president. It's another to be cleared by
[0:55] Speaker 2: the banks. And some of the people pardoned during Trump's
[0:59] Speaker 2: first term found that out when they were debanked. Joining
[1:04] Speaker 2: me is Bloomberg Senior reporter Tom Schoenberg. Tom. Republican fundraiser
[1:09] Speaker 2: Elliot Brody, who was convicted for violating a lobbying law,
[1:14] Speaker 2: and former CFO of social media company x Ma mood Raised,
[1:19] Speaker 2: a BANKI who was convicted of making false statements, were
[1:23] Speaker 2: both pardoned at the end of Trump's first term, but
[1:28] Speaker 2: explain how those White House reprieves only go so far.
[1:33] Speaker 3: So both, you know, mister Broydy and mister Banky kind
[1:36] Speaker 3: of recently within the you know, last year or so
[1:39] Speaker 3: sought banking services. Both had applied, you know, for credit
[1:44] Speaker 3: Brody from American Express, Bonki from JP Morgan and were
[1:49] Speaker 3: denied and as they pushed for explanation as to why,
[1:55] Speaker 3: in both instances, were told that it was due to
[1:58] Speaker 3: a criminal record that they had had, you know, that
[2:01] Speaker 3: was tied to the pardon that they received from President
[2:05] Speaker 3: Trump in his first term. With bank it had also
[2:08] Speaker 3: meant he had applied for a credit card with Bank
[2:11] Speaker 3: of America and a five twenty nine account that involved
[2:16] Speaker 3: a fidelity and the same situation he was denied accounts
[2:19] Speaker 3: or denied access to credit.
[2:21] Speaker 2: Is there really a term debanked?
[2:24] Speaker 4: There is now there?
[2:26] Speaker 3: I mean, it's a good question because when I was
[2:29] Speaker 3: interviewing people for the article, including Liz Oyer, who is
[2:33] Speaker 3: former parton attorney at the Justice Department.
[2:36] Speaker 4: She asked, well, what is to banking?
[2:38] Speaker 3: Because you know, until recently it was it wasn't really
[2:41] Speaker 3: a term, but it is now and is also used
[2:43] Speaker 3: in both these lawsuits that were brought by mister Brody
[2:47] Speaker 3: and mister Banking.
[2:49] Speaker 2: Is a pardon meant to erase the legal conviction on
[2:51] Speaker 2: your record? Or is it meant to wipe the slate clean?
[2:57] Speaker 3: Really, in terms of how it's been interpreted, it really
[2:59] Speaker 3: is race. Is that legal stain of the conviction?
[3:01] Speaker 4: Right?
[3:02] Speaker 3: And I think in terms of financial services, what these
[3:05] Speaker 3: cases are sort of raising to an extent is does
[3:09] Speaker 3: that necessarily override these risk assessments of private lender that
[3:13] Speaker 3: are required under law to prevent against money laundering and
[3:17] Speaker 3: to know their customer, which usually is a look back
[3:20] Speaker 3: on their history, both financial but also criminal history.
[3:23] Speaker 2: When you get a pardon, is your criminal record expunged
[3:27] Speaker 2: or is there sort of a big red stamp on it,
[3:30] Speaker 2: you know, pardon.
[3:31] Speaker 3: So if you go to the criminal dockets, you would
[3:34] Speaker 3: see their note at the case was dismissed or you
[3:38] Speaker 3: would see that pardon in there in some fashion. So
[3:41] Speaker 3: for mister Broydy, he had pleaded guilty to account of
[3:45] Speaker 3: conspiring to violate the Foreign Agent's Registration Act in October
[3:50] Speaker 3: twenty twenty, but he would yet to be sentenced to
[3:54] Speaker 3: when President Trump pardoned him. So what you see in
[3:57] Speaker 3: his record, is you see that his attorneys moved to
[4:01] Speaker 3: dismiss the case because of that, which then happens, So
[4:03] Speaker 3: it's logged there. In terms of mister a Banky, you know,
[4:07] Speaker 3: he was convicted way back in twenty ten of multiple
[4:11] Speaker 3: crimes tied to Iranian sanctions, and on appeal two of
[4:17] Speaker 3: those counts were thrown out, so he had one sort
[4:19] Speaker 3: of remaining conviction when he was pardoned for false statements
[4:23] Speaker 3: to investigators. So in terms of banking, when you pull
[4:27] Speaker 3: up sort of say the press release from the Manhattan
[4:30] Speaker 3: US Attorney's office, at the top you will see an update.
[4:35] Speaker 4: On there in red.
[4:36] Speaker 3: So the press release stays laying out, you know, extensively
[4:40] Speaker 3: what he was convicted of by a jury, but at
[4:44] Speaker 3: the top in red it says, you know, update and
[4:46] Speaker 3: it notes both the appellate and then it says, you know,
[4:50] Speaker 3: he received a presidential.
[4:51] Speaker 4: Pardon for the fourth conviction.
[4:53] Speaker 3: So the record remains, and you can also pull up
[4:55] Speaker 3: those cases and you can look at transcripts and see,
[4:58] Speaker 3: you know, in the case of mister Broydy, what he
[5:00] Speaker 3: said to the judge at the time when he was
[5:02] Speaker 3: pleading guilty.
[5:03] Speaker 2: Who is representing Boydie and Banky.
[5:07] Speaker 4: Yeah.
[5:07] Speaker 3: So they're represented by a firm called Share Jaffy. It's
[5:11] Speaker 3: a boutique firm here in Washington, d C. They've really
[5:14] Speaker 3: done a lot of work on sort of political conservative causes.
[5:17] Speaker 3: They've brought cases on behalf of America First Legal, which
[5:22] Speaker 3: is an advocacy group that was co founded by current
[5:25] Speaker 3: White House Deputy Chief of Staff Stephen Miller. They've also
[5:29] Speaker 3: did a lot on behalf of Elon Musk some years
[5:32] Speaker 3: ago when he said he would have legal representation for
[5:35] Speaker 3: people that it may have been penalized for what they've
[5:39] Speaker 3: said on his social media network Twitter and then x
[5:43] Speaker 3: and so they famously kind of represented a Disney actress
[5:46] Speaker 3: who had lost her job because some postings online. Those
[5:49] Speaker 3: are just a flavor of some of the cases that
[5:52] Speaker 3: they've they've brought.
[5:53] Speaker 2: Some maga people think that conservatives are being debanked for
[5:58] Speaker 2: their political belief and you're right that it's become an
[6:02] Speaker 2: obsession with some including President Trump.
[6:05] Speaker 3: Yes, I mean President Trump or and the Trump Organization
[6:08] Speaker 3: has sued Capital One Financial Core making accusations that they
[6:13] Speaker 3: had improperly kind of closed hundreds of accounts that the
[6:18] Speaker 3: Trump organization had and Capital ones denied any sort of
[6:21] Speaker 3: wrongdoing here. They moved to have the case dismissed. You know,
[6:26] Speaker 3: that's in front of a judge right now, and you know,
[6:29] Speaker 3: the argument on their end is that they had the
[6:31] Speaker 3: right to cancel accounts based on sort of the contracts
[6:34] Speaker 3: that they had for those accounts. You know, it's been
[6:36] Speaker 3: a personal issue for the president. Additionally, in August, he
[6:41] Speaker 3: issued an executive order directly at this issue, called Guaranteeing
[6:45] Speaker 3: Fair Banking for All Americans, in which he sort of
[6:49] Speaker 3: calls out the quote unquote de banking of you know,
[6:53] Speaker 3: specifically conservatives and others for you know, whether political or
[6:57] Speaker 3: religious reasons, and orders financial regulators to remove some of
[7:04] Speaker 3: the standards they had in reviewing accounts at institutions, as
[7:10] Speaker 3: well as kind of looking back and see whether any
[7:12] Speaker 3: people's accounts had been closed due to whether political, religious reasons,
[7:19] Speaker 3: or some other sort of unfair determination.
[7:22] Speaker 4: So that's ongoing right now.
[7:24] Speaker 2: I mean, is there any evidence that banks are targeting
[7:30] Speaker 2: specifically targeting conservatives because of their political views.
[7:35] Speaker 3: After January sixth, there were a lot of sort of
[7:38] Speaker 3: stories coming out. You know, there was a lot of
[7:41] Speaker 3: concern that people were losing their accounts in some way.
[7:44] Speaker 3: I mean, banks have a lot of leeway in terms
[7:48] Speaker 3: of deciding whether to close an account. They kind of
[7:52] Speaker 3: used this term reputational risk. That's kind of a catch
[7:56] Speaker 3: all when sort of making those determinations, and then also
[7:59] Speaker 3: includes sort of looking at you know, news media accounts
[8:03] Speaker 3: involving people. It's one thing they look at. And so
[8:06] Speaker 3: I've seen it on sort of both ends. I mean,
[8:08] Speaker 3: I think on the Democratic side, Elizabeth Warren and others
[8:12] Speaker 3: have also been very vocal about claiming that certain Americans
[8:17] Speaker 3: were losing their banking, specifically Muslim Americans, you know, So
[8:21] Speaker 3: it has been on both sides of the political aisle.
[8:25] Speaker 2: Since the executive order, have banks been making changes.
[8:30] Speaker 3: Some got out ahead of that, you know, JP Morgan,
[8:32] Speaker 3: you know, beginning even after the election last year, had
[8:36] Speaker 3: started making changes, you know, both in public materials and
[8:39] Speaker 3: then in their own policies, specifically noting that that it
[8:43] Speaker 3: would not you know, base decision making on accounts on
[8:46] Speaker 3: religious or political views. So you're seeing it there. You're
[8:50] Speaker 3: even seeing it in terms of these cases. Mister Bonkey.
[8:53] Speaker 3: You know, one of the things that happened after he
[8:56] Speaker 3: brought his case over not receiving credit from JP Moore.
[9:00] Speaker 3: Is it happened that he had two accounts at another
[9:04] Speaker 3: institution called First Republic Bank, which in twenty twenty three
[9:09] Speaker 3: had collapsed and was taken over by JP Morgan, and
[9:12] Speaker 3: that included two of his accounts. So initially they had
[9:16] Speaker 3: moved to close those two accounts, with one of their
[9:19] Speaker 3: anti money laundering executives selling the court due to his
[9:23] Speaker 3: earlier conviction. Once this lawsuit was sort of underway and
[9:28] Speaker 3: he moved for a temporary restraining order to stop them
[9:32] Speaker 3: from closing those accounts. JP Morgan kind of reversed itself
[9:36] Speaker 3: and they made the decision. They told us that they
[9:40] Speaker 3: looked at, you know, that appeal that he was successful
[9:43] Speaker 3: on with some of the criminal accounts.
[9:45] Speaker 4: They also looked at it had.
[9:46] Speaker 3: Been fifteen years to them that this time had gone
[9:50] Speaker 3: by without any other sort of criminal allegation against him,
[9:53] Speaker 3: and so they're going to keep those accounts open. So
[9:56] Speaker 3: you're so also seeing it here at this level in
[9:58] Speaker 3: the litigation.
[10:00] Speaker 2: Did Broidy ever get an American Express card?
[10:04] Speaker 3: Unclear at the moment, but in terms of his matter,
[10:07] Speaker 3: you know, his company, Broady Capital, an investment firm, and
[10:11] Speaker 3: the company had an American Express card. You know, it
[10:14] Speaker 3: was under his operations manager's name. He wanted one for
[10:17] Speaker 3: himself and that's what sort of sparked all this when
[10:20] Speaker 3: they denied him. And you know, at the moment, this
[10:23] Speaker 3: is still in litigation. In fact, there's a you know,
[10:25] Speaker 3: a hearing this week in the matter. And on American
[10:28] Speaker 3: Express's end, they are telling me the judge that they
[10:31] Speaker 3: need to dismiss his case because these card member agreements
[10:34] Speaker 3: account agreements usually require that dispute to be handled and arbitration, and.
[10:39] Speaker 2: From the bank's point of view, explain why they might
[10:42] Speaker 2: not want to extend credit to someone who was convicted
[10:45] Speaker 2: of a crime, especially financial crimes.
[10:49] Speaker 4: Right.
[10:49] Speaker 3: Well, so it's really a liability issue for the banks
[10:52] Speaker 3: that they're making these assessments. They have to comply under
[10:55] Speaker 3: the law. You know that the people who they're giving
[10:58] Speaker 3: access to the US financial system too are not going
[11:01] Speaker 3: to be using it for illicit purposes.
[11:03] Speaker 4: So you have a twofold one.
[11:05] Speaker 3: If someone's a fraudster, the bank itself could later be
[11:08] Speaker 3: sued by victims claiming that they didn't do enough. They
[11:10] Speaker 3: can also be penalized for the government for not abiding
[11:13] Speaker 3: by all the rules and regulations to ensure that we have,
[11:17] Speaker 3: you know, a safe banking system. So if somebody has
[11:20] Speaker 3: some type of financial crime on the record, that's going
[11:23] Speaker 3: to be looked at very closely by the bank. You know,
[11:25] Speaker 3: in terms of how aggressive they are in this space.
[11:30] Speaker 3: Talking to a number of defense lawyers, a lot of
[11:33] Speaker 3: times people lose their banking even at the first sign
[11:37] Speaker 3: of an investigation, let alone a conviction. So you know,
[11:40] Speaker 3: it's quite common for a bank to receive a subpoena
[11:44] Speaker 3: even for records of somebody you know, related to a case,
[11:48] Speaker 3: and immediately cut off an account. So someone might learn
[11:52] Speaker 3: their under investigation just by losing access to their banking.
[11:55] Speaker 3: It's kind of a large wave in terms of you know,
[11:58] Speaker 3: investigation and losing banking.
[12:00] Speaker 2: It's really been a fascinating conversation. Thanks so much, Tom.
[12:03] Speaker 2: That's Tom Schoenberg, Bloomberg Senior Reporter. The Trump administration got
[12:08] Speaker 2: some serious pushback from a panel of Ninth Circuit Appellate
[12:12] Speaker 2: judges during oral arguments over the administration's deployment of thousands
[12:17] Speaker 2: of California National Guard troops to Los Angeles. In June.
[12:22] Speaker 2: San Francisco Federal Judge Charles Bryer had ruled in September
[12:27] Speaker 2: that Trump's deployment violated the Posse Comma Tatis Act, a
[12:31] Speaker 2: nineteenth century law that bars using the military for civilian
[12:36] Speaker 2: law enforcement. The Trump administration appealed, and Judge Eric Miller
[12:41] Speaker 2: was one of the appellate judges who sounded skeptical that
[12:45] Speaker 2: the protests were violent riots that created an exception to
[12:50] Speaker 2: Possecomma tatis. He questioned the Justice Department's attorney, Eric MacArthur
[12:56] Speaker 2: about the extent of the protests.
[13:00] Speaker 4: Why is.
[13:02] Speaker 5: A couple of hundred people engaging in disorderly conduct and
[13:07] Speaker 5: throwing things that of building over the course of two
[13:10] Speaker 5: days of comparable severity to an invasion or a rebellion. Well,
[13:17] Speaker 5: because violence is being used to thwart enforcement of federal law.
[13:21] Speaker 5: And I don't know, but violence is used to thwart
[13:23] Speaker 5: enforcement to federal law all the time. Well, right, I mean,
[13:26] Speaker 5: like the FBI goes to arrest somebody and he shoots
[13:31] Speaker 5: at them or tries to run away, and that happens
[13:34] Speaker 5: every day.
[13:35] Speaker 2: On the same day the oral arguments took place Wednesday,
[13:39] Speaker 2: the full Ninth Circuit declined to reyear on bank, meaning
[13:44] Speaker 2: the full court another decision allowing Trump's federalization of the
[13:49] Speaker 2: California National Guard. If it sounds confusing, that's because it is.
[13:54] Speaker 2: And here to help us sort it out is Joshua Castenberg,
[13:58] Speaker 2: a professor at the University of New Mexico Law School
[14:01] Speaker 2: and a former judge in the US Air Force. Josh
[14:05] Speaker 2: let's start with the oral arguments over the posse Cooma
[14:09] Speaker 2: toaddis Act. One of the things that Trump administration argued
[14:14] Speaker 2: was that the president has unreviewable power when it comes
[14:18] Speaker 2: to deploying the National Guard.
[14:21] Speaker 1: One of the things that the administration is arguing is
[14:25] Speaker 1: that if you go back to the beginning of the
[14:27] Speaker 1: country and you look at this case called Martin versus Mott,
[14:31] Speaker 1: which the Supreme Court rolled on in eighteen twenty seven,
[14:36] Speaker 1: coming out of the War of eighteen twelve, it just
[14:39] Speaker 1: took a while for that issue to percolate up to
[14:41] Speaker 1: the court that the president's authority to declare something an
[14:47] Speaker 1: emergency is non reviewable by the courts. That's what the
[14:51] Speaker 1: administration's position is, California's position, New York's position, the Illinois
[14:56] Speaker 1: position is that's not true that the president commander in
[15:00] Speaker 1: chief and the commander in chief's orders to his or
[15:05] Speaker 1: her troops may be non reviewable by the courts, but
[15:09] Speaker 1: the actual declaration of an emergency or the use of
[15:14] Speaker 1: those troops is clearly reviewable by the courts. So those
[15:18] Speaker 1: are two different things, and that's central to what the
[15:22] Speaker 1: Ninth Circuit is trying to rule on right now.
[15:25] Speaker 2: And so did it seem like the judges were skeptical
[15:30] Speaker 2: about the government's argument that they couldn't review it.
[15:33] Speaker 1: Well, I believe they are. I mean, when you say government,
[15:37] Speaker 1: there are several governments fighting each other in the court.
[15:40] Speaker 2: Let's say the Trump administration.
[15:42] Speaker 1: Yeah, I think the judges are skeptical about that. To me,
[15:46] Speaker 1: it goes back to the Youngstown sheet and Tube versus
[15:49] Speaker 1: Sawyer decision in the last days of the Harry Truman administration,
[15:54] Speaker 1: when Truman tried to make a similar argument. And the
[15:57] Speaker 1: thing is, you know, I go back to one of
[15:59] Speaker 1: the things that William O. Douglas mentioned his concurrence in
[16:03] Speaker 1: that plurality, which is, if a president is free to
[16:07] Speaker 1: declare anything as an emergency so to bridge the basic
[16:12] Speaker 1: rights of the people, then all will have in the
[16:16] Speaker 1: future is government by emergency. That it'll just be the
[16:20] Speaker 1: idea of a president. The laws in the way the
[16:23] Speaker 1: peacetime laws are in the way. So to avoid dealing
[16:28] Speaker 1: with the courts, I'm just going to declare things are
[16:30] Speaker 1: an emergency. And I think the Ninth Circuit is skeptical
[16:34] Speaker 1: of that argument, as they should be, because you know,
[16:38] Speaker 1: the courts and the country as a whole have already
[16:41] Speaker 1: been warned that that argument is a non starter when
[16:45] Speaker 1: it comes to domestic issues.
[16:48] Speaker 2: Another issue was whether the Trump had violated the Posse
[16:52] Speaker 2: Commatatis Act. So the White House had framed the protest
[16:55] Speaker 2: as violent riots, but Judge Eric Miller Trump pointde asked
[17:01] Speaker 2: why a few hundred people engaging in disorderly conduct over
[17:05] Speaker 2: two days was comparable to an invasion or a rebellion,
[17:10] Speaker 2: and he pushed the Trump administration lawyer on that.
[17:14] Speaker 1: Yeah, you know, as he should be skeptical. I mean
[17:18] Speaker 1: a riot, an insurrection, a rebellion, none of them have
[17:23] Speaker 1: you know, really true tight legal definitions. I look at
[17:28] Speaker 1: a rebellion, and I look at South Carolina militia firing
[17:31] Speaker 1: on Fort Sumter in eighteen sixty one, and that's clear
[17:34] Speaker 1: that that's a rebellion. Politicians have called things rebellions before
[17:40] Speaker 1: that are far short of a rebellion or an insurrection
[17:43] Speaker 1: and World War One, there was a group of farmers
[17:46] Speaker 1: in Oklahoma who thought they could march on Washington, d C.
[17:49] Speaker 1: To prevent the draft from occurring. They called it the
[17:52] Speaker 1: green Corn Rebellion. It's really just about a thousand farmers.
[17:55] Speaker 1: It wasn't a rebellion at all, and most of them
[17:57] Speaker 1: didn't make it out of state. So a rebellion or
[18:01] Speaker 1: an insurrection is something that either threatens to topple the
[18:05] Speaker 1: government or completely prevents the government from fulfilling its functions,
[18:10] Speaker 1: whether that's a federal or a state government. And that's
[18:13] Speaker 1: not at play here. You do have people breaking the law,
[18:16] Speaker 1: you also have the majority of people simply exercising their
[18:19] Speaker 1: constitutional rights of freedom of speech and freedom of assembly.
[18:23] Speaker 1: And if a president can call that a rebellion, an insurrection,
[18:27] Speaker 1: or an uncontrollable riot, we'll never hear the end of that.
[18:31] Speaker 1: That will be used to crush dissent. So I think
[18:35] Speaker 1: where the Trump appointee the judges coming down on, and
[18:38] Speaker 1: it's something I think we should all take to heart,
[18:41] Speaker 1: is this is not a case about whether or not
[18:45] Speaker 1: the president can use law enforcement. This is a case
[18:49] Speaker 1: about whether the president can use the military as law enforcement,
[18:54] Speaker 1: and that's what the Possecomma Tatis Law was drafted to
[18:57] Speaker 1: prevent in eighteen seventy seven. The Posse Cooma Tatis Act
[19:03] Speaker 1: comes into being partly as Southern demands to end reconstruction,
[19:10] Speaker 1: Southern demands to prohibit the use of the army to
[19:13] Speaker 1: enforce civil rights. Kind of as a sordid beginning, but
[19:17] Speaker 1: also it was a reflection on what the framers of
[19:19] Speaker 1: the Constitution feared, which was a standing army being used
[19:23] Speaker 1: to police the people, to course how they vote and
[19:27] Speaker 1: who would remain in office, and who remains in power
[19:31] Speaker 1: and the like. Until Donald Trump, the only president that
[19:37] Speaker 1: acted in a manner that I would say was heavy
[19:41] Speaker 1: handed was Grover Cleveland. And Grover Cleveland though at least
[19:45] Speaker 1: he had a US District Court injunction on his side.
[19:49] Speaker 1: During the Pullman strikes, you know, in the Midwest in
[19:53] Speaker 1: eighteen ninety five, there was a wide scale labor strike.
[19:58] Speaker 1: There were anarchists were a part of that strike, though
[20:02] Speaker 1: most of them are simply following Eugene Debs, who later
[20:05] Speaker 1: ran for president. But the strikers were preventing the mail
[20:09] Speaker 1: from going on trains, and so that's what Grover Cleveland
[20:13] Speaker 1: and his Attorney General, Richard Olney, latched onto when using
[20:16] Speaker 1: the army to suppress the strike, but again they had
[20:20] Speaker 1: gone to the courts first and gotten permission. Here you
[20:24] Speaker 1: have the president acting as though the courts don't matter,
[20:27] Speaker 1: as though the courts are not a coequal branch of government,
[20:31] Speaker 1: and he can use the military for anything he wants
[20:34] Speaker 1: and it's non reviewable. And I think that's where the
[20:38] Speaker 1: skepticism comes in from the Trump appointing. But there's one
[20:41] Speaker 1: other thing I'd point out. No one is opposing the
[20:44] Speaker 1: president enlarging the FBI. No one's opposing the president enlarging
[20:49] Speaker 1: ICE or any other federal police force. But the fundamental
[20:53] Speaker 1: difference between the FBI or ICE or any other federal
[20:57] Speaker 1: police force on the one side and the military on
[21:00] Speaker 1: the other is that the President of the United States
[21:03] Speaker 1: is not the commander in chief of the FBI. He's
[21:06] Speaker 1: still the chief executive. And the FBI is much more
[21:10] Speaker 1: free to question a president's orders and to say the
[21:14] Speaker 1: heck with this and walk off their job then the military.
[21:18] Speaker 1: And when a soldier, sailor airman, or marine gets an
[21:21] Speaker 1: order from the President, that soldier, sailor, airman, and marine
[21:27] Speaker 1: operates under a separate legal system, the Uniform Code of
[21:30] Speaker 1: Military Justice, and it is the only legal system in
[21:34] Speaker 1: the United States which places a burden of proof on
[21:38] Speaker 1: the defendant to prove that a presidential order is unlawful,
[21:43] Speaker 1: rather than the government having to prove that the order
[21:46] Speaker 1: is lawful. So the presumption of everyone in Uniform is
[21:50] Speaker 1: the President orders me to do this, I have no
[21:53] Speaker 1: choice but to do. If I don't, I may end
[21:55] Speaker 1: up with a dishonorable discharge and a long sentence in
[21:59] Speaker 1: a military prison. And I think that smart judges understand
[22:04] Speaker 1: that distinction, and that's why the Posse Comma Tatis Act
[22:07] Speaker 1: is so important, as well as the framers of the
[22:11] Speaker 1: Constitution and their division of power and checks and balances
[22:15] Speaker 1: and the fear of standing armies.
[22:18] Speaker 2: I mean, there are so many seemingly conflicting opinions out
[22:22] Speaker 2: there on Trump's sending troops in so On Wednesday, the
[22:27] Speaker 2: full Ninth Circuit declined to hear Newsome versus Trump on
[22:33] Speaker 2: bank meaning by a full court bench, and so that
[22:37] Speaker 2: basically uphosed the ruling that permits Trump to maintain federal
[22:41] Speaker 2: authority over California National Guard troops that were deployed in
[22:46] Speaker 2: Los Angeles during the protest. At the same time, you
[22:50] Speaker 2: had these oral arguments also at the Ninth Circuit over
[22:54] Speaker 2: whether Trump's deployment of the troops to LA violated the
[22:58] Speaker 2: Posse Commatatis Act. Though that seems to be on its
[23:02] Speaker 2: face a conflict. Explain why it isn't.
[23:06] Speaker 1: That's a great question. So this is what's going on.
[23:10] Speaker 1: No member of the bench, on the one hand, want
[23:13] Speaker 1: to prevent the president from having the authority to federalize
[23:18] Speaker 1: the Guard. There would be no desire, for example, if
[23:22] Speaker 1: China were to invade an ally or Russia were to
[23:27] Speaker 1: invade an ally, that the Court should be called to
[23:30] Speaker 1: intervene on a presidential call up. No one wants to
[23:34] Speaker 1: spend time in the courts if there's a real, no kidding,
[23:39] Speaker 1: real national emergency where the President would have to call
[23:42] Speaker 1: up the Guard, say a massive earthquake or typhoon disrupts
[23:46] Speaker 1: and disables the Eastern Seaboard or California. So there's a
[23:50] Speaker 1: reluctance to intervene in the president calling up the Guard.
[23:55] Speaker 1: But it's what the president does when the Guard is
[23:58] Speaker 1: called into federal service or using active duty forces, particularly
[24:03] Speaker 1: the army, which that's what the posse Cooma Tatis Act
[24:06] Speaker 1: covers this doesn't cover the Marine Corps. There's a fundamental
[24:10] Speaker 1: difference between that what the president does with the military
[24:14] Speaker 1: versus calling up And I think that's what part of
[24:16] Speaker 1: the confusion is with these myriad of cases. The other
[24:20] Speaker 1: has to do with whether or not a temporary restraining
[24:24] Speaker 1: order should stay in effect or not. And just keep
[24:28] Speaker 1: in mind that a president or any party may lose
[24:32] Speaker 1: on a temporary restraining order but then win later on
[24:35] Speaker 1: on the substantive issue or vice versa, And so you
[24:39] Speaker 1: get all these sort of convoluted, you know, decisions. What
[24:42] Speaker 1: is the standard, what is the question being raised under
[24:45] Speaker 1: the standard? And to the general public, who isn't trained
[24:49] Speaker 1: in the law, it looks like the court is sea
[24:52] Speaker 1: sawing between various things and making no sense. But that
[24:56] Speaker 1: that's really not what's going on. It's that there are
[24:59] Speaker 1: these nuances questions.
[25:01] Speaker 2: Coming up next. But what about the conflicting opinions from
[25:04] Speaker 2: the Ninth and Seventh Circuits, one allowing Trump to send
[25:08] Speaker 2: troops into Portland, Oregon, the other barring Trump from sending
[25:13] Speaker 2: troops to Chicago, Illinois. You're listening to Bloomberg. President Trump's
[25:19] Speaker 2: push to send the military into democratic run cities despite
[25:24] Speaker 2: fearce opposition from state and local leaders has unleashed a
[25:28] Speaker 2: whirlwin of lawsuits and overlapping court rulings. Some just seem
[25:34] Speaker 2: to be contradictory, others are contradictory. I've been talking to
[25:38] Speaker 2: Professor Joshua Castenberg at the University of New Mexico Law School.
[25:43] Speaker 2: Even for those of us who know, does it seem
[25:46] Speaker 2: like courts are coming down with different decisions Because you
[25:49] Speaker 2: had the Seventh Circuit saying that no, you can't send
[25:53] Speaker 2: troops into Chicago, Illinois, and then you had the Ninth
[25:57] Speaker 2: Circuit panel with two Trump appointees saying you can send
[26:01] Speaker 2: them into Portland. You know, the facts were slightly different,
[26:04] Speaker 2: but not that different.
[26:05] Speaker 1: You know. It's actually what you say is a great point.
[26:09] Speaker 1: Two different federal circuits ruling differently on similar issues is
[26:16] Speaker 1: not unheard of, and generally that's what gets a case
[26:19] Speaker 1: into the Supreme Court circuit splits. I'm not a big
[26:23] Speaker 1: fan on you know, this is an Obama judge, This
[26:27] Speaker 1: is a Trump judge versus a Biden or a Bush judge.
[26:31] Speaker 1: Although I will say there's a couple of judges that
[26:33] Speaker 1: Donald Trump appointed that to me are clearly partisan towards him.
[26:38] Speaker 1: But those judges are not in the Seventh or ninth
[26:41] Speaker 1: Circuit that I'm thinking about, so they're not really playing
[26:44] Speaker 1: a role in this at all. What strikes me is
[26:49] Speaker 1: the question of how much difference should a president have
[26:53] Speaker 1: on military affairs is key to this. There has been
[26:58] Speaker 1: an unfor in my opinion, an unfortunate doctrine called the
[27:01] Speaker 1: military deference doctrine. You don't find it stated clearly by
[27:05] Speaker 1: the Supreme Court anywhere, but it exists that goes back
[27:10] Speaker 1: to the turn of the last century, at least to
[27:13] Speaker 1: the Spanish American War, if not World War One, where
[27:17] Speaker 1: the courts give the president greater deference in military matters
[27:22] Speaker 1: than they do on anything else. And there are judges
[27:26] Speaker 1: who don't like the defference doctrine, and there are judges
[27:29] Speaker 1: who seem to just acquiesce to the defference doctrine. And
[27:32] Speaker 1: I think that's where some of this difference is.
[27:35] Speaker 2: The Illinois case is before the Supreme Court. Yeah, and
[27:40] Speaker 2: does it seem likely on a temporary basis that they'll
[27:43] Speaker 2: allow Trump to send troops in.
[27:47] Speaker 1: I can't predict what the court will do. I could
[27:50] Speaker 1: only tell you what I would hope the Court would do.
[27:52] Speaker 1: But I can't predict what the Court will do. They
[27:55] Speaker 1: couldn't guess everything President Trump will do that. They can't
[28:00] Speaker 1: guess that. But they sure as heck could have seen
[28:03] Speaker 1: this coming when they issued Trump versus United States, because
[28:07] Speaker 1: now you have a president who can test the boundaries
[28:10] Speaker 1: in a way that no other president did in peacetime
[28:14] Speaker 1: before him, and thinking, what's the worst that can happen?
[28:17] Speaker 1: It's an official presidential act.
[28:20] Speaker 2: I think most of us are still questioning that case
[28:23] Speaker 2: and how it came out that way and the Chief
[28:26] Speaker 2: Justice's opinion.
[28:27] Speaker 1: Yeah, well, as a legal historian, you know, and there
[28:30] Speaker 1: can be differences of opinion what I would say about this,
[28:33] Speaker 1: just like Fitzgerald versus Nixon in nineteen eighty and just
[28:39] Speaker 1: like you know, Deshaney versus you know, which is the
[28:43] Speaker 1: judicial immunity case. None of that is required by the Constitution.
[28:47] Speaker 1: What they basically did was shield the judicial branch and
[28:51] Speaker 1: the executive branch from having to deal with the normal
[28:55] Speaker 1: day to day operations of the law that you and
[28:58] Speaker 1: I and everyone else have to deal with. And I
[29:01] Speaker 1: go back to Byron White's dissent on the Fitzgerald case.
[29:07] Speaker 1: To me, Nixon versus Fitzgerald and Trump versus United States,
[29:12] Speaker 1: are the majority showed a disregard and a distrust of
[29:16] Speaker 1: the very rule of law that in their speeches every
[29:19] Speaker 1: day they encourage us to embrace. I try to be
[29:23] Speaker 1: soft tongued and objective when we talk about these things.
[29:27] Speaker 1: It was very difficult to be, because if there's one
[29:30] Speaker 1: thing that the far right and the far left and
[29:33] Speaker 1: everybody in between should agree on and embrace in the law,
[29:38] Speaker 1: it's that John Adams and Thomas Jefferson, Alexander Hamilton, all
[29:43] Speaker 1: these so called bright men who created the Constitution, and
[29:47] Speaker 1: those we don't know of who voted to ratify it
[29:49] Speaker 1: did so with the understanding that military authority would only
[29:56] Speaker 1: exist on the borders of this country, that it would
[30:00] Speaker 1: never be used in the manner that it's being used now,
[30:04] Speaker 1: and that we would never have another Oliver Cromwell come
[30:07] Speaker 1: onto our shores, and we would stop it before it began.
[30:11] Speaker 2: Josh, I understand that one of the law review articles
[30:15] Speaker 2: you've written was quoted from extensively by the dissenting judge
[30:21] Speaker 2: in the Ninth Circuit's opinion turning down an on Bank
[30:25] Speaker 2: review of the decision allowing President Trump's federalization of the
[30:31] Speaker 2: California National Guard. So tell us a little about it.
[30:34] Speaker 1: So there's been a lot of discussion about this decision
[30:38] Speaker 1: from the Supreme Court called Martin versus Mott, and it's
[30:42] Speaker 1: from eighteen twenty seven. And what the government has increasingly
[30:45] Speaker 1: used it to argue from is this idea that the
[30:49] Speaker 1: president's decisions on national security are immune from judicial review.
[30:56] Speaker 1: And the problem with Martin versus Mott is that it's
[30:59] Speaker 1: legal history doesn't say that at all. It just focused
[31:03] Speaker 1: on what the relationship is between a National guardsman. But
[31:08] Speaker 1: those days they called it a militia troupe and the president.
[31:14] Speaker 1: It has nothing to do with presidential authority at all
[31:18] Speaker 1: over the people of this country or over the laws.
[31:20] Speaker 1: And I point that out that when Martin versus Mott
[31:24] Speaker 1: was decided, the judicial oversight of the military was quite robust.
[31:30] Speaker 1: I mean, it went through the New York state court system.
[31:32] Speaker 1: You can't challenge military orders in state courts anymore. That
[31:37] Speaker 1: ended after the Civil War. And so Martin versus Mott
[31:41] Speaker 1: does not carry with it any of the strength that
[31:44] Speaker 1: the Trump administration believes that it does. And my article
[31:49] Speaker 1: was published in the Louisiana State University Law Review back
[31:52] Speaker 1: in twenty twenty one. I wasn't thinking of this issue
[31:56] Speaker 1: at all when I published it. I was thinking of
[31:59] Speaker 1: something else when I publish the legal history article on it.
[32:03] Speaker 1: But I'm happy that it's sings some use now.
[32:06] Speaker 2: Well, congratulations on getting cited in a ninth Circuit decision,
[32:11] Speaker 2: and thanks for the discussion today. That's Professor Joshua Castenberg
[32:15] Speaker 2: of the University of New Mexico Law School. And that's
[32:19] Speaker 2: it for this edition of The Bloomberg Law Show. Remember
[32:21] Speaker 2: you can always get the latest legal news on our
[32:24] Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[32:28] Speaker 2: and at www dot Bloomberg dot com, slash podcast slash Law,
[32:33] Speaker 2: and remember to tune into The Bloomberg Law Show every
[32:36] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,
[32:40] Speaker 2: and you're listening to Bloomberg

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