# What's Next After Firing of Pam Bondi & Mail-In Ballots

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 7 Apr 2026, 34 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/1be2a2fa-195f-4e91-a3ed-b4250032531c/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the firing of Pam Bondi as Attorney General. Elections law professor Richard Briffault of Columbia Law School, discusses the legal challenges to Trump’s executive order limiting mail-in ballots. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: After just fourteen months, Pam Bondi, a loyal Trump ally,
[0:13] Speaker 2: is out as Attorney General after failing to deliver criminal
[0:17] Speaker 2: cases against President Trump's political enemies. Bondy oversaw the unprecedented
[0:23] Speaker 2: transformation of the Justice Department into an arm of the
[0:27] Speaker 2: White House and tried to pursue cases against Democrats and
[0:31] Speaker 2: the President's perceived political enemies. But Wilher's successor fare any better,
[0:37] Speaker 2: facing the same factual and legal hurdles and a skeptical
[0:41] Speaker 2: court system. My guest is constitutional law professor Harold Krentt
[0:45] Speaker 2: of the Chicago Kent College of Law. He'll tell us
[0:48] Speaker 2: how the Justice Department became an arm of the White
[0:52] Speaker 2: House under Bondie, something we've never seen before.
[0:55] Speaker 3: Obviously, the ties between the actions on the ground for
[0:59] Speaker 3: the Department Justice and the President become closer and closer.
[1:02] Speaker 3: Obviously that's been a priority of the president to try
[1:04] Speaker 3: to take everything in his own image and make sure
[1:06] Speaker 3: that he can direct even very minor issues, but in
[1:09] Speaker 3: this case very important prosecutorial issues. And the Bondi's reign
[1:13] Speaker 3: is probably most notable because of the revenge that Trump
[1:19] Speaker 3: overtly tried to take against his enemies via the Department
[1:23] Speaker 3: of Justice.
[1:24] Speaker 2: So apparently one of the reasons that she was fired
[1:28] Speaker 2: is that Trump wasn't satisfied with her prosecution of his
[1:33] Speaker 2: political enemies. But she did try. It seemed like the
[1:35] Speaker 2: legal system stood in her way.
[1:38] Speaker 3: Yeah, I mean the irony is she did his bidding
[1:41] Speaker 3: and she tried to you know, politicize, weaponize the Department Justice,
[1:44] Speaker 3: whichever word you know works with the James Comy prosecution,
[1:49] Speaker 3: with the prosecution of John Bolton, Letitia James. She's just
[1:53] Speaker 3: trying to follow President Trump's orders of trying to get
[1:58] Speaker 3: back at his enemies, and it didn't work. It wasn't
[2:01] Speaker 3: her fault, probably not. It just wasn't there. And so
[2:05] Speaker 3: the fact that she's being canned because she couldn't do
[2:09] Speaker 3: the impossible is really a partial triumph of the justice
[2:13] Speaker 3: system in the United States, but also an irony as well.
[2:16] Speaker 2: She did appoint Lindsay Halligan as a US attorney and
[2:20] Speaker 2: a judge throughout the prosecutions against Komi and James, because
[2:25] Speaker 2: Halligan was illegally appointed. But I don't know if Halligan
[2:29] Speaker 2: was Bondi's choice or Trump's choice.
[2:31] Speaker 3: So if you think about what's gone wrong, there's the
[2:34] Speaker 3: weaponization of the Department of Justice to go against Trump's enemies.
[2:38] Speaker 3: Also the chaos that was sown because of these inter appointments,
[2:43] Speaker 3: and probably the fault doesn't lie with her. It probably
[2:45] Speaker 3: lies with the president or the President's closer circle. But
[2:47] Speaker 3: we have the Lindsay Halligan, the Elina Haba, about five
[2:51] Speaker 3: other prossecutorial offices major proscutory office United States. They are
[2:54] Speaker 3: just in chaos because the President wasn't able to appoint
[2:58] Speaker 3: somebody who could be confirmed by the Senate. And then
[3:01] Speaker 3: the Shenanigan's with trying to get these interim US attorneys
[3:05] Speaker 3: in place, had just bounced back in his face. And
[3:08] Speaker 3: maybe he blames that on her, though again it wouldn't
[3:10] Speaker 3: be fair.
[3:11] Speaker 2: Hundreds of career employees left the Department during Bondie's tenure.
[3:17] Speaker 2: She also shut down units investigating public corruption and curtailed
[3:23] Speaker 2: investigations into corporate and environmental crime. How different is the
[3:28] Speaker 2: Department now compared to before she took over.
[3:32] Speaker 3: Well, those such as me who's served in the Department
[3:34] Speaker 3: of Justice just wonder if after Trump will there be
[3:38] Speaker 3: respect built up for the Department of Justice, because what
[3:41] Speaker 3: we've seen is the fact that so many people have
[3:43] Speaker 3: left so much knowledge, so much experience, that the president's
[3:46] Speaker 3: having a hard time getting his agenda accepted by judges.
[3:49] Speaker 3: And that's because people who are there, the attorneys who
[3:52] Speaker 3: are there, are no longer as respected, and so there
[3:54] Speaker 3: has been a blowback from judges just both with an
[3:57] Speaker 3: aptitude and lack of credibility, which is under his ability
[4:00] Speaker 3: to get convictions. I mean the Jerome Powell is a
[4:03] Speaker 3: great example of how he tried to get subpoenas and
[4:06] Speaker 3: tried to move because of crossover runs against the Fed,
[4:09] Speaker 3: and the judge said, what are you doing? Where's the evidence?
[4:13] Speaker 3: And the attorneys couldn't even point to anything to show
[4:16] Speaker 3: why there is a need for the subpoenas against Powell.
[4:19] Speaker 3: So it's a good example again of the blowback because
[4:22] Speaker 3: of the lack of competence and care taken by the
[4:25] Speaker 3: Department of Justice and building these cases.
[4:27] Speaker 2: Temporarily, he's installed his former personal defense lawyer, Todd Blanche.
[4:32] Speaker 2: Todd Blanch has been Deputy Attorney General. So do you
[4:36] Speaker 2: expect to see any changes under.
[4:38] Speaker 3: His don't And I'm not sure what the president can
[4:40] Speaker 3: accomplish with this switch because the problem I don't think
[4:43] Speaker 3: lies with Pam Bondi except for maybe one exception we'll
[4:45] Speaker 3: get to. But the problem is just the fact that
[4:48] Speaker 3: there's not a lot of evidence, not a lot of
[4:50] Speaker 3: experienced attorneys, and so his mission to get the courts
[4:55] Speaker 3: to agree with what he wants to do is not succeeding.
[4:57] Speaker 3: And I don't think it's going to succeed under Todd Blanche either.
[5:00] Speaker 2: And Todd Blanche, I know some former federal judges have
[5:03] Speaker 2: expressed displeasure. Shall we say that Blanche came out at
[5:08] Speaker 2: a Federalist Society function and said the Justice Department is
[5:12] Speaker 2: at war with the judiciary and rogue judges. That's not
[5:17] Speaker 2: the kind of statement you expect to hear from a
[5:19] Speaker 2: deputy Attorney general.
[5:21] Speaker 3: He's been very confrontational, more confrontational in fact than Pam
[5:24] Speaker 3: Bondi with respect to judges. And I don't think that
[5:27] Speaker 3: is going to end up with judges rolling over. I
[5:30] Speaker 3: think we're going to see judges continually to reject much
[5:33] Speaker 3: of the mission of this administration. I want to just
[5:36] Speaker 3: mention I'm sure you will too. The one exception is
[5:39] Speaker 3: Pambondi did not handle the Epstein files well. And obviously
[5:44] Speaker 3: she was in a terrible situation, and there's all sorts
[5:46] Speaker 3: of conflicting evidence and difficulties in dealing with the Epstein files.
[5:50] Speaker 3: But she did make it worse. And she's going to
[5:52] Speaker 3: testify before Congress, and I'm very curious about whether she's
[5:55] Speaker 3: going to take the Fifth Amendment and testify or not.
[5:59] Speaker 3: But she did worse in the present situation. She did
[6:01] Speaker 3: not protect the president with respect to the Epstein files.
[6:04] Speaker 2: Is there any difference with her no longer being the
[6:07] Speaker 2: attorney general, like should Trump have waited until after that deposition?
[6:11] Speaker 3: I don't think there'll be a material difference. I could
[6:14] Speaker 3: be wrong, but I think most of the issues could
[6:17] Speaker 3: be a privilege issue in terms of protecting what the
[6:19] Speaker 3: President told her. It could be still a privilege issue
[6:22] Speaker 3: of not trying to undermine ongoing criminal investigations. And there's
[6:25] Speaker 3: obviously a privilege against self incrimination in case that comes up.
[6:29] Speaker 3: So I don't think she'll be in material different position.
[6:33] Speaker 3: But I know Congress wants at her and they want
[6:35] Speaker 3: her testimony.
[6:36] Speaker 1: Then.
[6:37] Speaker 3: The most basic thing was she said she saw a
[6:38] Speaker 3: client list right of Jeffrey Epstein, and then it disappeared. Well,
[6:42] Speaker 3: what is she going to say about that? And that
[6:44] Speaker 3: may not be subject to privilege. And that's why Congress
[6:48] Speaker 3: has been so adamant that she testify and why she's
[6:50] Speaker 3: in a very dicey situation should she turn up.
[6:53] Speaker 2: Might some of the problem be the way she expressed
[6:57] Speaker 2: herself and frame the issue. Will Todd Blanche have a
[7:02] Speaker 2: different approach, maybe a softer approach.
[7:05] Speaker 3: I'm not sure that Blanch is going to do a
[7:07] Speaker 3: softer approach, you now, I think Blanche has been pretty
[7:09] Speaker 3: hard edged so far and his dealings with the judiciary,
[7:12] Speaker 3: I'd be surprised if that changed. I mean, yes, I
[7:14] Speaker 3: think her judgment with the Epstein files is the one
[7:16] Speaker 3: area that one can really point to where she did
[7:19] Speaker 3: not protect the president. But I think Blanche will have
[7:22] Speaker 3: even more difficulty if trying to get at Jerome Powell,
[7:24] Speaker 3: trying to get at John Bolton, trying to get hit
[7:27] Speaker 3: Comy at James and so many others, and you know,
[7:31] Speaker 3: the chaos in the US Attorney's offices because of the
[7:33] Speaker 3: apployments isn't her fault. I don't think she was a
[7:36] Speaker 3: mastermind of that, you know, I think that came from
[7:38] Speaker 3: somewhere else. So I'm not sure that Blanch can improve
[7:40] Speaker 3: on that either.
[7:41] Speaker 2: Yeah, he said on Fox News Thursday. To the extent
[7:44] Speaker 2: the Epstein files was a part of the past year
[7:47] Speaker 2: of this Justice Department, it should not be a part
[7:49] Speaker 2: of anything going forward. That's not going to work.
[7:52] Speaker 3: No, And again, Blanche may have a different strategy and
[7:55] Speaker 3: he won't be sort of subpoinied by Congress the way
[7:59] Speaker 3: Pambondi is, because he hasn't sort of perjured himself or
[8:03] Speaker 3: made some very difficult to understand claims about the EPSTCEN files.
[8:07] Speaker 3: But I'm not sure what the right strategy is. Again,
[8:09] Speaker 3: I think if you stepped back, the president has put
[8:11] Speaker 3: the Atturngycal in such a difficult position, both with respect
[8:15] Speaker 3: to the Epstein files, but also with respect to many
[8:18] Speaker 3: of these prosecutions that I think almost anyone is doomed
[8:21] Speaker 3: to failure unless they can sort of talk the president down,
[8:24] Speaker 3: and we haven't seen evidence that many people can talk
[8:26] Speaker 3: the president down.
[8:27] Speaker 2: Also, Todd Blanche was responsible for interviewing Glainne Maxwell, and
[8:34] Speaker 2: then suddenly the next day she gets sent to a
[8:38] Speaker 2: prison camp. Convicted child offenders are not supposed to be
[8:42] Speaker 2: allowed in those kind of camps. So the fix was
[8:44] Speaker 2: in somewhere there.
[8:45] Speaker 3: Yeah, many people were expecting even to pardon, and we
[8:47] Speaker 3: haven't seen that. But obviously she's in better quarters than
[8:51] Speaker 3: she was before. And what kind of cooperation he was
[8:55] Speaker 3: able to obtain, what kind of information was able to obtain,
[8:59] Speaker 3: has not been revealed. But he's obviously has some built
[9:03] Speaker 3: up relationship and maybe the President just wants to rely
[9:06] Speaker 3: upon that relationship to protect him at least with respect
[9:10] Speaker 3: to the Epstein files.
[9:11] Speaker 2: And Blanch can only serve for one hundred and twenty.
[9:13] Speaker 3: Days, we're expecting that either perhaps Blantch can be appointed
[9:17] Speaker 3: during that time period, perhaps somebody else will be appointed.
[9:20] Speaker 3: I'm not certainly not privy to those kinds of discussions,
[9:23] Speaker 3: but he is knowledgeable about the Department Justice, he's certainly
[9:26] Speaker 3: knowledgeable about the president. So I think it's a wise
[9:28] Speaker 3: choice for the President in terms of at least as
[9:30] Speaker 3: an interim attorney general. But what follows is really critical.
[9:33] Speaker 2: And so the prediction market is betting on who'll be
[9:36] Speaker 2: the next attorney general, and Lee Zelden, who's currently the
[9:40] Speaker 2: EPA chief, is the front runner. Betters are placing a
[9:44] Speaker 2: forty seven percent probability on him being the next attorney general.
[9:48] Speaker 2: There Again, he's carried out Trump's mission at the EPA,
[9:53] Speaker 2: so why would he be any different as attorney general.
[9:56] Speaker 2: Anyone who gets appointed is going to be subject to
[9:58] Speaker 2: the same present residential demands.
[10:01] Speaker 3: It is not a job that I would cherish at
[10:03] Speaker 3: this moment because it's an impossible job. And again, I
[10:06] Speaker 3: think Pam Bondi did her best to help the president,
[10:09] Speaker 3: with the exception of the Epstein fowles. I think she did.
[10:12] Speaker 3: She was a loyal soldier. But it's an impossible job.
[10:15] Speaker 3: And unless somebody can sort of talk down the president
[10:18] Speaker 3: and limit his desire to go after enemies and weaponize
[10:22] Speaker 3: the Department of Justice, I think the succeeding attorney generals
[10:25] Speaker 3: that have just as difficult of a time as Pam Bondi.
[10:27] Speaker 2: Did New York Attorney General Letitia James, where the attempts
[10:31] Speaker 2: by Bondi to prosecute her failed, So apparently they're still
[10:34] Speaker 2: trying with a different angle. But at what point does
[10:38] Speaker 2: it become a slam dunk case of malicious prosecution?
[10:42] Speaker 1: Right?
[10:42] Speaker 3: And the same thing is true with James Comey and
[10:45] Speaker 3: with others. And I think again, the courts are just
[10:48] Speaker 3: tired of it, and I think that they've seen these
[10:51] Speaker 3: thinly papered up prosecutions and they're insulted and insulted by
[10:56] Speaker 3: the competence of the orneys. They're insulted by the preparation
[10:58] Speaker 3: for the cases, They're insulted by the theories of the prosecutions.
[11:01] Speaker 3: And I hate to say it, but just wasting taxpayer money.
[11:04] Speaker 3: And I'm not sure what Trump thinks he will gain
[11:07] Speaker 3: by this, because you're just losing respect and the ability
[11:09] Speaker 3: of courts in cases that probably he should care more
[11:12] Speaker 3: about than they may turn against him in those as well.
[11:14] Speaker 2: Hell, I've been wondering if you see any strategy in
[11:18] Speaker 2: the way President Trump is dealing with the Supreme Court.
[11:22] Speaker 2: After he lost the tariff decision, he was brutally critical
[11:26] Speaker 2: of the justices who voted against him, and the night
[11:29] Speaker 2: before the birthright citizenship arguments, he criticized judges and justices
[11:35] Speaker 2: in a post on social media. He then attended half
[11:39] Speaker 2: of the oral arguments and afterwards posted about how stupid
[11:43] Speaker 2: birthright citizenship is. This all seems counterproductive to me now.
[11:48] Speaker 3: I think at the beginning his factiousness with the Supreme
[11:52] Speaker 3: Court did serve a purpose, and there is a theory
[11:56] Speaker 3: that might be sort of borne out by the evidence
[11:59] Speaker 3: that he to make the court very weary of a confrontation,
[12:04] Speaker 3: and because of his assertiveness and dismissiveness of the court,
[12:08] Speaker 3: they didn't want to challenge him. And I think that
[12:11] Speaker 3: led to particularly use of the shadow dockets, so there
[12:13] Speaker 3: was not a written opinion.
[12:15] Speaker 1: It led to.
[12:16] Speaker 3: All of these cases where they really voted in favor
[12:19] Speaker 3: of the chump administration. But then with the tariff's case
[12:22] Speaker 3: and all the gloves coming off and belittling the court
[12:26] Speaker 3: and making fun of them, you know, even the conservative
[12:29] Speaker 3: justices that I think have been deeply insulted to the core,
[12:32] Speaker 3: and I think that's basically just increased their resolve to
[12:37] Speaker 3: vote against the president in the birthright decisionship case and
[12:40] Speaker 3: others coming down the lane. So again, it's not good strategy.
[12:43] Speaker 3: It's just trump Ism.
[12:45] Speaker 2: And there's a study in Just Security that revealed it
[12:47] Speaker 2: more than two hundred and ten cases since the start
[12:50] Speaker 2: of twenty twenty five where the courts have issued strong
[12:53] Speaker 2: rulings against the administration's conduct.
[12:56] Speaker 3: Yeah, the lower court judges have been firmly aligned, many
[13:00] Speaker 3: Republican judges joining Democratic judges in saying this is lawless.
[13:04] Speaker 3: You have to follow the law. We have a rule
[13:06] Speaker 3: of law in this country. It's been cherished, it's part
[13:09] Speaker 3: of our tradition, as part of our future. If we
[13:11] Speaker 3: hope and that the administration is just going over the line.
[13:15] Speaker 3: And I don't think his effort to push judges from
[13:18] Speaker 3: that has succeeded. Maybe again, maybe he did a little
[13:21] Speaker 3: bit at the beginning, but I think it's only going
[13:23] Speaker 3: to get worse. And I think he is basically, you know,
[13:26] Speaker 3: undercut his own position to such an extent, you know,
[13:29] Speaker 3: bit off his nose. Despite the face, one could say
[13:31] Speaker 3: that he's going to face more and more losses in
[13:34] Speaker 3: the courts. It's not going to be a happy situation.
[13:37] Speaker 2: Is anyone talking yet about a preemptive pardon for Pam Bondy?
[13:42] Speaker 3: You know, she stepped down, She's been involved in all
[13:44] Speaker 3: these controversial issues, particularly perhaps lying to Congress with respect
[13:48] Speaker 3: to the Epstein investigation, And so just as Biden considered
[13:54] Speaker 3: preemptive pardons, she might want to solicit a farewell president
[13:58] Speaker 3: from the President in the shape of a barden, just
[14:01] Speaker 3: as she can go on with her life and not
[14:02] Speaker 3: worry about possible criminal charges.
[14:04] Speaker 2: What seemed a little off to me is that Christy Nome,
[14:08] Speaker 2: who was fired after two US citizens were killed by
[14:12] Speaker 2: DHSS agents under her watch, she was given another position,
[14:17] Speaker 2: but Pam Bondy, who was so loyal to Trump, was
[14:21] Speaker 2: not given another position.
[14:23] Speaker 3: Well, it's also an interesting signal that loyalty may not
[14:28] Speaker 3: be enough in terms of surviving the Trump administration. The
[14:31] Speaker 3: other thing I would mention I've been fascinated about this
[14:33] Speaker 3: last couple of days is the leaks that are coming
[14:36] Speaker 3: out from the Trump administration. I think there must be
[14:39] Speaker 3: a lot of officials, a lot of the rank and
[14:41] Speaker 3: file are no longer worried about repercussions, and they seem
[14:46] Speaker 3: very willing to go to the press and to spill
[14:48] Speaker 3: out all this information, obviously even before the discharge happened, etc.
[14:53] Speaker 3: So there's signs then that the cracks at the administration
[14:56] Speaker 3: because it's not rewarding loyalty, so it's not attaining loyalty
[15:00] Speaker 3: from the troops.
[15:01] Speaker 2: There's also been a lot of speculation about who in
[15:03] Speaker 2: the cabinet might be next to be fired. Thanks so
[15:08] Speaker 2: much for joining me today, Hall. That's Professor Harold Krent
[15:11] Speaker 2: of the Chicago Kent College of law. So far, there
[15:14] Speaker 2: are four legal challenges to President Trump's executive order on
[15:18] Speaker 2: mail in voting. Democratic led States, Democratic congressional leaders, the
[15:24] Speaker 2: League of Women Voters, and civil rights groups are all
[15:27] Speaker 2: suing to block the administration from prohibiting mail in voting
[15:32] Speaker 2: for anyone not on a pre approved list of citizens
[15:36] Speaker 2: to be compiled by the Department of Homeland Security. For years,
[15:40] Speaker 2: Trump has claimed, without evidence, that there's widespread fraud, including
[15:45] Speaker 2: non citizen voting, in US elections. This executive order is
[15:49] Speaker 2: his latest effort to alter elections since his defeat by
[15:53] Speaker 2: Joe Biden in the twenty twenty presidential election. Joining me
[15:57] Speaker 2: is an expert in elections law, Richard broff Fault, a
[16:00] Speaker 2: professor at Columbia Law School. Rich start by explaining this
[16:05] Speaker 2: executive order.
[16:06] Speaker 1: Trump's executive voider requires two lists. One is that the
[16:11] Speaker 1: Apartment of Homeland Security, in cooperation with the Social Security
[16:15] Speaker 1: Administration and other governmental athletes, will come up with a
[16:20] Speaker 1: kind of a state by state voting list, a state
[16:23] Speaker 1: specific citizenship list of people eligible to vote, and they're
[16:28] Speaker 1: supposed to transmit that to the states by sixty days
[16:32] Speaker 1: before the next federal election. The states I skipped a step.
[16:37] Speaker 1: The states are then supposed to tell by sixty days
[16:40] Speaker 1: before the election the Postal Service which of their voters
[16:43] Speaker 1: are expecting to use absent to your mail in ballots. Then,
[16:47] Speaker 1: also the Postal Service is supposed to create a list
[16:52] Speaker 1: of people whose mail in ballots will be accepted and
[16:57] Speaker 1: transmitted by the Postal Service. The service well in the meantime,
[17:01] Speaker 1: will have developed by a rule that basically says that
[17:04] Speaker 1: only those voters who are on the federal voting eligible
[17:09] Speaker 1: list will have their mail in ballots actually transmitted by
[17:12] Speaker 1: the Postal Service. There's other stuff about also developing a
[17:16] Speaker 1: unique identification QR codes on each ballot, which I think
[17:19] Speaker 1: many states have already started to do. But the key
[17:22] Speaker 1: idea is that there will be a federal voting eligible
[17:25] Speaker 1: list create with the federal governments as of the states,
[17:28] Speaker 1: and then the states will send a list to the
[17:31] Speaker 1: Postal Service, and the Postal Service will only carry absent
[17:35] Speaker 1: to your mail in ballots that the Postal Service concludes
[17:39] Speaker 1: are eligible based on the Department of Homeland Securities citizenship list.
[17:45] Speaker 2: So we're supposed to trust that the Department of Homeland
[17:48] Speaker 2: Security and conjunction with the Post Office, has given US
[17:51] Speaker 2: a list that's accurate. It sounds like there would be
[17:54] Speaker 2: you know, just forget the legalities. It sounds like there
[17:56] Speaker 2: would be a ton of problems with this.
[17:58] Speaker 1: Yes, I mean basically allwned Security has only really gotten
[18:01] Speaker 1: into this fairly recently. They're relying on the Social Security Administration.
[18:05] Speaker 1: Social Security Administration itself says that it kind of requires
[18:09] Speaker 1: people to self certify whether they're citizens. Day don't check citizenship,
[18:12] Speaker 1: and apparently they don't really have any records on citizens
[18:15] Speaker 1: before about nineteen eighty one. They only began to check
[18:18] Speaker 1: citizenship in the nineteen eighties, and they really only look
[18:22] Speaker 1: into citizenship for people who are actually claiming Social Security
[18:25] Speaker 1: dhs it's citizenship records were mostly based on people becoming
[18:30] Speaker 1: citizens through naturalization or other processes. There may be other
[18:35] Speaker 1: federal databases that have this information, but the idea is
[18:38] Speaker 1: that they're going to draw from all the relevant federal
[18:41] Speaker 1: databases to come up with a state citizenship list, which
[18:45] Speaker 1: they will then transmit to the states by sixty days
[18:49] Speaker 1: before the next federal election. The states are not mandated
[18:52] Speaker 1: to use this. Actually, it doesn't actually require the states
[18:56] Speaker 1: to use this list, but the assumption of the states
[18:58] Speaker 1: will either wail or will be done by it. It
[19:01] Speaker 1: kicks in more when the states send their absentee voter
[19:04] Speaker 1: list to the Postal Service, which will have supposed to
[19:07] Speaker 1: have developed a rule that says they will only handle
[19:11] Speaker 1: absentee ballots for voters who are on the federal list.
[19:16] Speaker 1: That's where the federalist has fight.
[19:18] Speaker 2: So there are several lawsuits. There's one by more than
[19:22] Speaker 2: twenty Democratic led states, There's another by top Senate and
[19:26] Speaker 2: House Democratic leaders, one by a coalition of voting rights groups,
[19:32] Speaker 2: and another by civil rights groups. So the basic contention
[19:37] Speaker 2: is that Trump doesn't have the authority. The President doesn't
[19:40] Speaker 2: have the authority to make these changes by executive order.
[19:46] Speaker 1: Absolutely right. I mean, I guess the president probably has
[19:49] Speaker 1: the authority to acquire the DHS to develop a list,
[19:52] Speaker 1: but he has no authority to acquire the states to
[19:55] Speaker 1: use it. Interestingly, it doesn't actually say they have to
[19:58] Speaker 1: use it, although there's law of talk about prioritizing the
[20:02] Speaker 1: Attorney general to go after voter fraud, which they can
[20:07] Speaker 1: do anyway, and there's also talk about maybe cutting off
[20:11] Speaker 1: funding for states that don't use the list, although again
[20:14] Speaker 1: it doesn't say that, and it doesn't actually say funding
[20:17] Speaker 1: relating to elections, so it can be anything which itself
[20:20] Speaker 1: would be unconstitutional. The bite is in the directive to
[20:24] Speaker 1: the Postal Service. He has no power to give directives
[20:27] Speaker 1: to the Postal Service. The Postal Service is an independent
[20:30] Speaker 1: corporation with its own board of governors. I mean President
[20:34] Speaker 1: has some role in this, you know, in making nominations
[20:36] Speaker 1: for the board of governors, but he cannot direct them
[20:39] Speaker 1: and he cannot remove them. And they are subject to
[20:43] Speaker 1: federal statutes basically requiring universal carriage of mail, with specified
[20:47] Speaker 1: exceptions for mail that can be exhipted. The mail involved
[20:50] Speaker 1: in crimes, for example, this is not one of them.
[20:53] Speaker 1: So you can't mandate the Postal Service to do this.
[20:57] Speaker 1: The Postal Service, in any event, would have to go
[20:59] Speaker 1: through a rulemaking process which would certainly take some time
[21:03] Speaker 1: and as hard to believe, would be finished before this election.
[21:07] Speaker 1: And it seems extremely unlikely, almost certainly illegal, that the
[21:12] Speaker 1: Postal Service could refuse to carry mail that's not otherwise
[21:18] Speaker 1: barred from the males by federal statute. Because they get
[21:21] Speaker 1: back to the beginning of all of this, the President
[21:24] Speaker 1: has no power to regulate elections period. The Constitution gives
[21:29] Speaker 1: power to regulate elections to the states, and then also
[21:33] Speaker 1: says that Congress can regulate the phrase's time, place, or
[21:37] Speaker 1: manner of federal elections. And so if Congress were to
[21:42] Speaker 1: pass a statute like this, it might work. There would
[21:45] Speaker 1: be issues, but at least conceptually, Congress has the power
[21:49] Speaker 1: to regulate the procedures for federal elections and to regulate
[21:53] Speaker 1: mail in voting in federal elections, although even Congress can't
[21:57] Speaker 1: decide who's eligible to vote in federal lass and then
[22:01] Speaker 1: it's really the states. Congress can regulate time, place, and manner.
[22:05] Speaker 2: Do we face a problem perhaps because the head of
[22:07] Speaker 2: the Postal Service right is a Trump appointee.
[22:12] Speaker 1: I mean, it's possible, but they still would have to
[22:14] Speaker 1: go through a rule making. Even the Executive Order says
[22:17] Speaker 1: that that they have to go through a rule making.
[22:20] Speaker 1: It's hard to imagine a rule making getting done in
[22:22] Speaker 1: less than six months. That would be a fast rule making.
[22:25] Speaker 1: They have to write a rule, they have to put
[22:27] Speaker 1: it out for notice and comment, they have to respond
[22:30] Speaker 1: to the comments, and now itself would take some time.
[22:33] Speaker 1: And then there is the problem that the Executive Order
[22:36] Speaker 1: is asking the Postal Service to refuse to deliver mail
[22:40] Speaker 1: in a way that such refusal is not authorized by
[22:43] Speaker 1: any federal law. So they can't adopt rules that decline
[22:48] Speaker 1: to carry mail other than for the kinds of reasons
[22:51] Speaker 1: that are in federal law. And until Congress acts, this
[22:55] Speaker 1: isn't one of them.
[22:56] Speaker 2: Okay, stay with me, Rich coming up next on the
[22:58] Speaker 2: Bloomberg Law showptinue this conversation with Columbia Law School professor
[23:03] Speaker 2: Richard Brofault. How likely are the groups suing the Trump
[23:06] Speaker 2: administration to get temporary relief. I'm June Grosso, and this
[23:11] Speaker 2: is Bloomberg. More than twenty Democratic led states, as well
[23:17] Speaker 2: as top Democrats in the House and Senate, a coalition
[23:21] Speaker 2: of voting rights groups and civil rights groups, have filed
[23:25] Speaker 2: lawsuits to block President Trump's latest executive order restricting mail
[23:30] Speaker 2: in voting. The suits argue that the US Constitution empowers
[23:34] Speaker 2: states and Congress, not the President, to determine who's eligible
[23:39] Speaker 2: to vote by mail. I've been talking to Professor Richard
[23:42] Speaker 2: Brofault of Columbia Law School, an expert in elections law. Rich,
[23:46] Speaker 2: since the law seems so clear here that the president
[23:49] Speaker 2: doesn't have the power to outlaw mail in voting by
[23:53] Speaker 2: executive order. Do you think it's likely that that one
[23:57] Speaker 2: judge or more than one judge would issue preliminary injunction
[24:01] Speaker 2: stopping this executive order from going through.
[24:05] Speaker 1: Yeah, I mean, part of the funny thing is it's
[24:07] Speaker 1: not quite clear what this order requires. It's not clear
[24:10] Speaker 1: to me that court would barred DHS, Barber Homeland Security
[24:14] Speaker 1: from trying to develop this list. It certainly would get
[24:18] Speaker 1: an injunction barring any federal action requiring the states to
[24:22] Speaker 1: use this list, although the executive word it doesn't literally
[24:26] Speaker 1: require that. It really comes in kind of through the
[24:29] Speaker 1: side doors of well, we might cut off your funds.
[24:33] Speaker 1: So that's something I think that could be barred. This
[24:35] Speaker 1: might be a basis for prosecutions that could be barred.
[24:38] Speaker 1: And this has got to feed into the to the
[24:41] Speaker 1: postal services regulation on what nail and ballots they would carry.
[24:45] Speaker 1: Now again that I can imagine that kind of directive
[24:48] Speaker 1: to the postal service being barred, except you could argue
[24:51] Speaker 1: President doesn't have the power to direct the postal service.
[24:54] Speaker 1: So I would think that if this actually had any bite,
[24:57] Speaker 1: it could be blocked. Oddly enough, one of the argument
[25:00] Speaker 1: against an injunction might be this doesn't actually do very much. Nonetheless,
[25:04] Speaker 1: did the extent that it has any kind of inter
[25:07] Speaker 1: rorum effect, And surely it does, And there are other
[25:10] Speaker 1: things in it. There are requirements. For example, I was
[25:13] Speaker 1: reading for record keeping all poll books, records of absentee
[25:18] Speaker 1: ballots where kids of people signing in to vote, everything
[25:21] Speaker 1: relating to federal elections. It says local governments have to
[25:25] Speaker 1: keep them for five years. Existing federal loss is only
[25:28] Speaker 1: twenty two months, in other words, from one election day
[25:32] Speaker 1: until just before the next one. And the assumption that
[25:35] Speaker 1: in fact states and especially local governments have limited storage
[25:38] Speaker 1: capacity and they kind of need to clear it out
[25:40] Speaker 1: to go ready for the next election. Well, this would
[25:43] Speaker 1: extend that, and I was reading this would be incredibly
[25:45] Speaker 1: brutensome on state and especially local elections offices, which is
[25:50] Speaker 1: really where most of elections are regulated. Many of them
[25:53] Speaker 1: in say rural counties, don't have the capacity. So you
[25:56] Speaker 1: can imagine that some of that all the stuff that
[26:00] Speaker 1: hiring the states to send their list of absentee voters
[26:03] Speaker 1: and nail in voters sixty days before the election. In
[26:06] Speaker 1: many states, you can request an absently ballot up to
[26:09] Speaker 1: ten days before an election. So that's the kind of
[26:11] Speaker 1: thing that again, having this out there could very well
[26:15] Speaker 1: intimidate some state officials, many local officials, and of course
[26:19] Speaker 1: many voters who fear that they're out of compliance if
[26:23] Speaker 1: they applied late. I think, more than anything in this
[26:26] Speaker 1: I think has been the kind of a hallmark of
[26:28] Speaker 1: this administration. It just creates chaos and confusion, and that
[26:34] Speaker 1: just makes it hard for everybody. It makes it hard
[26:37] Speaker 1: for administrators, it makes it hard for voters, and it may,
[26:40] Speaker 1: you know, whether intended or not, discourage people from voting
[26:44] Speaker 1: or just confusion itself is discouraging. And so I do
[26:48] Speaker 1: think that's part of what's going on here.
[26:50] Speaker 2: So the Supreme Court heard oral arguments already challenging whether
[26:54] Speaker 2: a state can continue to count mail in ballots that
[26:58] Speaker 2: were postmarked by election day received afterward. Do you think
[27:02] Speaker 2: that Trump administration might try to appeal this on an
[27:04] Speaker 2: emergency basis to the Supreme Court.
[27:07] Speaker 1: I think they might try. I mean, again, it's hard
[27:09] Speaker 1: to say what the emergency is. At least the argument
[27:11] Speaker 1: in that case is called the Watson case. There is
[27:14] Speaker 1: a federal statute on the books. There is a federal
[27:16] Speaker 1: statute that says there shall be a single election day,
[27:19] Speaker 1: and it is whatever it is November seventh or way
[27:21] Speaker 1: it varies some year to year. That at least was
[27:24] Speaker 1: the legal hook for that lawsuit, is that election day
[27:29] Speaker 1: means that that's the day that all the ballots have
[27:31] Speaker 1: to be in. You could argue about that, but there
[27:34] Speaker 1: is a federal congressional statute that's the basis for the claim. Here.
[27:39] Speaker 1: There's nothing. There's just a kind of an assertion that
[27:42] Speaker 1: the president's responsible for election integrity. And we have all
[27:45] Speaker 1: these laws designed to punish election fraud, which is true,
[27:48] Speaker 1: but none of them come remotely clear to requiring anything
[27:51] Speaker 1: like this. So now I think that would be a
[27:54] Speaker 1: hard sell. And indeed, the President's earlier Executive Winter on
[27:58] Speaker 1: Elections from last year, I think that's been enjoined all
[28:02] Speaker 1: over the country and they've never taken it up separate before.
[28:04] Speaker 2: And I just want to note that President Trump again
[28:07] Speaker 2: voted by mail in a Florida special election in March,
[28:12] Speaker 2: so you know, it's just a continuation of his complaints
[28:17] Speaker 2: about mail in voting. So I'll ask you again which
[28:21] Speaker 2: I've asked you so many times before, to tell us
[28:24] Speaker 2: whether there's any proof that there is fraud in mail
[28:27] Speaker 2: in voting.
[28:28] Speaker 1: Again, I don't want to say there's no proof, because
[28:30] Speaker 1: with millions of votes being cast all the time, there's
[28:33] Speaker 1: a bound to be some. There is certainly no proof
[28:35] Speaker 1: of any significant or more than minuscule amounts of fraud
[28:40] Speaker 1: in connection with elections. There are so many security mechanisms
[28:45] Speaker 1: when people register to vote in the first place, when
[28:47] Speaker 1: they request ballots, and the ballots are sent to them,
[28:50] Speaker 1: and the ballots are sent back when they're open, and
[28:52] Speaker 1: they're counted again. Never say there's no fraud, but to
[28:55] Speaker 1: the extent that there's been any proven fraud is next enough.
[29:00] Speaker 1: And especially in the last ten years, as all the
[29:04] Speaker 1: accusations of fraud have mounted, there have been many more
[29:07] Speaker 1: hunts and searches for fraud, particularly in so called red
[29:11] Speaker 1: states where there are Republican attorneys general Republican secretaries of
[29:15] Speaker 1: state who made a big deal out of this and
[29:17] Speaker 1: have done massive searches, and they will come up with one, two, three, four,
[29:21] Speaker 1: or five people, not always mail, and sometimes they're in
[29:24] Speaker 1: person voting. Most commonly it's people who think they're eligible
[29:27] Speaker 1: to voting, or not think they're citizens but they're only
[29:30] Speaker 1: have green cards, or people who are convicted of felony
[29:33] Speaker 1: and think that because they've served their time, that's over with.
[29:36] Speaker 1: But in fact the ban may be lifetime. And sometimes
[29:39] Speaker 1: it's been mistakes made by local election officials that say, yeah,
[29:42] Speaker 1: you're fine, when you know the local election officials mistaken
[29:47] Speaker 1: This coming election in November, you know, one hundred million
[29:52] Speaker 1: ballots on hundred and fifty million ballots will be cast
[29:54] Speaker 1: in multiple elections. I mean typically when people are voting,
[29:57] Speaker 1: they're voting, we vote for dozens of offices, federal, state,
[30:02] Speaker 1: and local. They will be improper votes any want to
[30:05] Speaker 1: call them fraud necessarily because sometimes the person voting doesn't
[30:09] Speaker 1: realize that he or she is ineligible, and they're not
[30:11] Speaker 1: intending a fraud, but they are ineligible. So there may
[30:15] Speaker 1: indeed be ineligible voters, but kind of a very minor level.
[30:20] Speaker 2: And rich. What are some Republican states trying to do
[30:24] Speaker 2: as far as requiring proof of citizenship?
[30:28] Speaker 1: These issues are about what proof do you need to
[30:32] Speaker 1: bring either when you register for the first time or
[30:36] Speaker 1: when you come to the polls to vote, and then
[30:39] Speaker 1: what counts as good proof because in fact, you know,
[30:41] Speaker 1: in other countries people are required to carry around government
[30:44] Speaker 1: issued IDs. We don't have that. We do have driver's licenses,
[30:48] Speaker 1: but in some states they don't have to be a citizen.
[30:50] Speaker 1: And indeed, the so called real ID which is now
[30:52] Speaker 1: required for flying that doesn't require PROOFDN citizens should be either.
[30:57] Speaker 1: I think some states have sort of re confirmed with
[31:01] Speaker 1: new laws that you have to be a citizen to
[31:03] Speaker 1: vote and may require some proofs. But the question is
[31:08] Speaker 1: always there's two or three stages. What do you need
[31:11] Speaker 1: to do when you register? What do you need to do?
[31:13] Speaker 1: We neither when you request an absentee valot or send it.
[31:16] Speaker 1: In some states proposals already have to have a photocopy
[31:19] Speaker 1: of your passport. Passport is proof of citizenship. A photocopy
[31:22] Speaker 1: of your passport when you make your request and or
[31:25] Speaker 1: when you send in the ballot, and then of course
[31:28] Speaker 1: what you need to do when you actually come to vote.
[31:30] Speaker 1: Until recently, the battle was over just proof of ID,
[31:35] Speaker 1: but now increasingly people are trying to have proof of
[31:37] Speaker 1: citizenship and that just gets hard. You know, people don't
[31:40] Speaker 1: carry this information around with them. People have often said, well,
[31:44] Speaker 1: you know what's frong with having proof of ID? You
[31:45] Speaker 1: need proof ID to fly. You don't need proof of
[31:48] Speaker 1: citizenship to fly, at least flying domestically. So that's really
[31:52] Speaker 1: where really all the fighting is. No one denies that
[31:55] Speaker 1: you need to be a citizen to vote in federal elections,
[31:58] Speaker 1: and I think in every state election, the question is
[32:01] Speaker 1: what proof has to be provided on election day? On
[32:06] Speaker 1: how serious is this issue that we're basically going to
[32:09] Speaker 1: make people bring their passports given that a big chunk
[32:11] Speaker 1: of the country doesn't have a passport, or we're going
[32:14] Speaker 1: to bring and make people bring their driver's license given
[32:16] Speaker 1: that a lot of people don't have driver's license, and
[32:18] Speaker 1: even the driver's license isn't necessarily proof. I mean, I
[32:22] Speaker 1: think people are getting very excited about this, but in fact,
[32:25] Speaker 1: we don't have the bureaucracy and the documentation requirements of
[32:30] Speaker 1: proof of citizens at least we have not had that traditionally.
[32:33] Speaker 1: Until now, this has been a good thing.
[32:35] Speaker 2: And I understand that some of this would just be
[32:37] Speaker 2: logistically impossible.
[32:40] Speaker 1: It would be impossible for the states to use the
[32:43] Speaker 1: citizenship list if they don't get it until the day
[32:47] Speaker 1: they have to turn in their absentee voter list to
[32:49] Speaker 1: the postal service. And there's a lot in this thing that,
[32:52] Speaker 1: regardless of what it attempts to do, that literally doesn't
[32:55] Speaker 1: work in addition to you, I mean, it is both
[32:57] Speaker 1: unconstitutional in many ways, but in many ways it literally
[33:02] Speaker 1: won't work because of the way the deadlines actually don't
[33:05] Speaker 1: interface properly, and it ignores the fact. For example, for
[33:08] Speaker 1: federal elections, we have primaries all the time. I mean,
[33:11] Speaker 1: at least up until September, there seem to be primaries
[33:14] Speaker 1: every couple of weeks. And these are for federal offices,
[33:17] Speaker 1: so the same rule is supposed to apply for those two.
[33:20] Speaker 1: You'd be setting out that citizenship list all the time.
[33:24] Speaker 2: You have to wonder how much research was done before
[33:26] Speaker 2: this executive order was written. Thanks so much, rich for
[33:30] Speaker 2: joining me on the show. That's Professor Richard Brflt of
[33:33] Speaker 2: Columbia Law School, and that's it for this edition of
[33:36] Speaker 2: The Bloomberg Law Show. Remember you can always get the
[33:39] Speaker 2: latest legal news on our Bloomberg Law Podcast. You can
[33:42] Speaker 2: find them on Apple Podcasts, Spotify, and at www dot
[33:46] Speaker 2: Bloomberg dot com, slash podcast Slash Law, And remember to
[33:50] Speaker 2: tune into The Bloomberg Law Show every weeknight at ten
[33:53] Speaker 2: pm Wall Street Time. I'm Junie Grosso and you're listening
[33:57] Speaker 2: to Bloomberg

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