# Trump Can Withhold Billions in Foreign Aid & Trial Lawyers' Warning

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 30 Sep 2025, 34 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/f65c4e72-bba5-4152-bc0c-b36800284104/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Suzanne Goldberg, a professor at Columbia Law School, discusses the Supreme Court’s conservatives allowing the Trump administration to withhold $4 billion in congressionally approved foreign aid. Richard Deane, Jr., the president of the American College of Trial Lawyers and a former US Attorney for the Northern District of Georgia, discusses the organization’s warning that Trump’s demands to prosecute his political enemies, are an attack on the rule of law. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law, with June grosseol from Bloomberg Radio.
[0:08] Speaker 2: The Trump administration has made deep reductions in foreign aid
[0:12] Speaker 2: one of its hallmark policies. In fact, early in his
[0:16] Speaker 2: second administration, Trump announced to hold on tens of billions
[0:20] Speaker 2: of dollars in foreign aid, and a few months later,
[0:24] Speaker 2: administration officials dismantled the US Agency for International Development, which
[0:30] Speaker 2: administered the funds. Nonprofits and international aid groups sued in
[0:36] Speaker 2: February over an estimated thirty billion dollars that Congress had
[0:40] Speaker 2: approved for programs spanning several years, arguing that the executive
[0:45] Speaker 2: branch can't unilaterally refuse to spend money appropriated by Congress
[0:50] Speaker 2: and that the cuts could have devastating effects in certain
[0:54] Speaker 2: areas of the world. Secretary of State Marco Rubio disputed
[0:59] Speaker 2: the effects last week, as we shut down AID because
[1:02] Speaker 2: it was a dysfunctional organization.
[1:03] Speaker 1: We moved in under the State Department Number two.
[1:05] Speaker 2: We are going to do more foreign aid than any
[1:07] Speaker 2: country in the world, than any country in the world,
[1:10] Speaker 2: And on Friday, the Supreme Court's conservatives, in an unsigned order,
[1:15] Speaker 2: ruled that the Trump administration could withhold four billion dollars
[1:19] Speaker 2: in congressionally approve foreign assistance funding poised to expire at
[1:24] Speaker 2: the end of the month. It lifted a lower court
[1:27] Speaker 2: order that would have required the administration to commit to
[1:30] Speaker 2: spending the money. My guest is constitutional law expert Suzanne Goldberg,
[1:36] Speaker 2: a professor at Columbia Law School. Russell Vopt, the White
[1:39] Speaker 2: House Budget director, said this decision was a major victory.
[1:44] Speaker 2: How important do you think this decision is.
[1:47] Speaker 3: I agree that the decision is significant and important, but
[1:53] Speaker 3: with completely disagree that this is a victory for the
[1:57] Speaker 3: American people. This decision puts even more at risk the
[2:02] Speaker 3: separation of powers by allowing the executive branche and the
[2:06] Speaker 3: President to refuse to spend money that Congress has authorized.
[2:11] Speaker 3: Congress has legislated against these kinds of efforts, and the
[2:15] Speaker 3: Court has simply allowed the executive branch to override the
[2:19] Speaker 3: will of Congress. Here temporarily, it's a provisional ruling, but
[2:23] Speaker 3: it's still a serious incursion on the separation of powers.
[2:26] Speaker 2: This was on the emergency docket and unsigned order. The
[2:30] Speaker 2: Court's conservatives in the majority, so it was a six
[2:33] Speaker 2: to three decision. There was a very little explanation from
[2:37] Speaker 2: the majority, but explain what they did say.
[2:41] Speaker 3: The Majority was faced with the question whether the Impowerment
[2:47] Speaker 3: Control Actus by Congress would prohibit organizations from doing the
[2:54] Speaker 3: government when the government executive branch the Trump administration refused
[2:58] Speaker 3: to provide foreign aid funding Congress had authorized to be provided.
[3:03] Speaker 3: And this is a new issue. No lower court has
[3:06] Speaker 3: rolled on the question, and the Majority, in barely a
[3:10] Speaker 3: sentence said the administration had made a sufficient showing that
[3:15] Speaker 3: this Impoundment Act barred the private organization's lawsuit. As Justice
[3:21] Speaker 3: Kagan points out in her dissent, that isn't what the
[3:24] Speaker 3: Act appears to say, it is not what the act
[3:28] Speaker 3: history would suggest, and everything is really to the contrary.
[3:32] Speaker 3: So the one sentence sort of shrug off of the
[3:36] Speaker 3: plaintiff's argument here is perplexing and really troubling. Chief Justice
[3:41] Speaker 3: Roberts emphasizes that this is a provisional ruling, meaning it's
[3:45] Speaker 3: not the final word on whether the executive branch can
[3:49] Speaker 3: refuse to spend money authorized by Congress. But for the
[3:53] Speaker 3: purpose of this four billion dollars in funds, it is
[3:55] Speaker 3: the final ruling because the funds will expire at the
[3:59] Speaker 3: end of the federal budgy jitary cycle. The Court in
[4:02] Speaker 3: its handful of sentences did not take on any of
[4:06] Speaker 3: the very serious issues that the case present.
[4:08] Speaker 2: The administration argued that being forced to spend the money
[4:11] Speaker 2: now would hurt its ability to carry out foreign affairs.
[4:16] Speaker 2: And in a lot of these cases where there's a
[4:19] Speaker 2: challenge to Trump administration actions, they seem to be raising
[4:24] Speaker 2: either foreign affairs or national security. Does the Supreme Court
[4:29] Speaker 2: just simply bow whenever the administration says national security or
[4:33] Speaker 2: foreign affairs.
[4:35] Speaker 3: No, the Supreme Court, up until recently, does not simply
[4:40] Speaker 3: bow when the administration refers to national security or its
[4:45] Speaker 3: authority and foreign affairs. Of course, the executive branch has
[4:48] Speaker 3: significant discretion in both areas and how it bends foreign
[4:53] Speaker 3: assistance in determining national security priorities. But we still have
[4:57] Speaker 3: a constitution, and the constitution requires the Court, when it
[5:02] Speaker 3: receives a challenge to administration actions, to review what the
[5:06] Speaker 3: executive branch is doing. In this case, which had to
[5:10] Speaker 3: do with a long standing, really foundational practice of the
[5:16] Speaker 3: way US government functions, which is that Congress authorizes funds.
[5:20] Speaker 3: The administration actions in saying we're not going to spend
[5:25] Speaker 3: your funds are startling, right. We haven't seen anything at
[5:28] Speaker 3: this level since Richard Nixon was the president, and Richard Nixon,
[5:33] Speaker 3: though he tried not to spend many funds that Congress
[5:37] Speaker 3: had authorized, ultimately pulled back and recognized that he was
[5:42] Speaker 3: standing in the way or really tried to disrupt the
[5:45] Speaker 3: balance of powers as between Congress and the executive branch.
[5:49] Speaker 3: But Congress, after Nixon tried to refuse to spend authorized funds,
[5:54] Speaker 3: passed a law specifically to say the president can't do that,
[5:59] Speaker 3: and if the President objects to how Congress is authorized
[6:03] Speaker 3: fund the President can voice those objections directly to Congress,
[6:06] Speaker 3: and Congress will consider those objections. There's not a special
[6:10] Speaker 3: national security or foreign affairs rule that gets the executive
[6:16] Speaker 3: branch out of having the legality of its actions reviewed.
[6:20] Speaker 2: Trump used what's called a pocket recision.
[6:23] Speaker 3: Here.
[6:24] Speaker 2: Can you tell us about that?
[6:26] Speaker 3: Yeah, so the president has, you know, at the outset
[6:30] Speaker 3: of his administration, President Trump issued in order saying all
[6:36] Speaker 3: foreign assistants would be paused while his administration reviewed whether
[6:42] Speaker 3: the spending was consistent with his priorities. Ultimately, after a
[6:48] Speaker 3: long pause, the administration did spend some of the money,
[6:53] Speaker 3: but it was held this four billion dollars in funding
[6:56] Speaker 3: authorized by Congress instead, essentially, we're not spending that, and
[7:00] Speaker 3: that is the nature of the so called pocket recisions.
[7:03] Speaker 3: But the Impowerment Act actually requires the President to submit
[7:09] Speaker 3: his position to Congress, which can review and make adjustments
[7:14] Speaker 3: if it so chooses. And that's not what happens here.
[7:18] Speaker 2: I mean, would anyone expect that this particular Congress would
[7:22] Speaker 2: go against what the president wants?
[7:26] Speaker 3: So, you know, in ordinary times, Congress zealously safeguards its authority,
[7:34] Speaker 3: and when it believes the President is encroaching on that authority,
[7:39] Speaker 3: contravening the separation of powers that our Constitution sets out,
[7:43] Speaker 3: Congress acts. Indeed, that kind of action is what led
[7:48] Speaker 3: to the Impoundment Act, passed by Congress many years ago,
[7:52] Speaker 3: to say, President, you cannot simply decide not to spend
[7:56] Speaker 3: money that we, the representatives of the people, have offerorized
[8:00] Speaker 3: for you to spend. Congress, since President Trump has taken office,
[8:05] Speaker 3: has not protected its authority and instead has seeded its authority,
[8:10] Speaker 3: leaving the Supreme Court to be the safeguard of this
[8:14] Speaker 3: separation of powers that under which Congress authorizes spending of
[8:20] Speaker 3: the American people's funds. Of course, consistent with the president's priorities,
[8:24] Speaker 3: but also consistent with the views of Congress. President Trump
[8:28] Speaker 3: has advanced a view that his branch, the executive branch,
[8:32] Speaker 3: should be able to override both the Congress and the
[8:37] Speaker 3: wishes of Congress and the Supreme Court, and in some
[8:41] Speaker 3: sense make the president more powerful than any other branch
[8:45] Speaker 3: of government. And unfortunately Congress seems to be agreeing to that.
[8:49] Speaker 3: The Court, in this provisional ruling, has let him pursue
[8:54] Speaker 3: that path as well, which is why the ruling is
[8:57] Speaker 3: so troubling.
[8:58] Speaker 2: There was this very very short majority explanation will call it,
[9:03] Speaker 2: and then a longer descent explain what Justice Kagan said
[9:07] Speaker 2: in descent.
[9:09] Speaker 3: Justice Kagan makes several points in her descent. First, she
[9:13] Speaker 3: says this case was not appropriate for an emergency ruling.
[9:20] Speaker 3: We have a high standard, she says, the court is
[9:23] Speaker 3: a high standard for deciding to grant emergency relief and
[9:28] Speaker 3: this case doesn't meet that standard. And then moving on,
[9:33] Speaker 3: she says, the court one sentence notation really that the
[9:40] Speaker 3: government is likely to win its argument on the marriage.
[9:45] Speaker 3: There's no basis for that. The law makes clear that
[9:48] Speaker 3: that's not correct. The history of the law makes clear
[9:52] Speaker 3: that that's not correct. And you know to sort of
[9:55] Speaker 3: boil it down. Her opinion says, to the majority, what
[9:58] Speaker 3: are you doing is into appropriate? This is not an emergency.
[10:02] Speaker 3: If you give the president the authority to withhold this
[10:06] Speaker 3: money that Congress has authorized, it's the end of the case.
[10:10] Speaker 3: The effect is to prevent the funds from ever reaching
[10:12] Speaker 3: their intended recipients, not just now, but for all time,
[10:16] Speaker 3: because the funds will expire. And she says the government
[10:21] Speaker 3: is completely utterly incorrect in its argument that the president
[10:25] Speaker 3: should be able to withhold these funds. The law passed
[10:29] Speaker 3: by Congress that says the president cannot impound, meaning hold
[10:34] Speaker 3: back funds authorized by Congress, doesn't have anything to say
[10:38] Speaker 3: about whether these organizations can file a lawsuit challenging the
[10:43] Speaker 3: governments withholding of those funds. Of course they can, and
[10:46] Speaker 3: the law, even when we look at its history, was
[10:49] Speaker 3: passed at a time that makes clear that organizations that
[10:53] Speaker 3: are anticipating these funds can file a lawsuit against the
[10:56] Speaker 3: government seeking the distribution of those funds. So she expresses
[11:01] Speaker 3: quite a lot of concern about the destabilizing effect that
[11:06] Speaker 3: the majority's ruling, even provisionally, will have.
[11:09] Speaker 2: Coming up next, I'll continue this conversation with Professor Suzanne Goldberg,
[11:14] Speaker 2: will take a look at the emergency docket and where
[11:17] Speaker 2: the Supreme Court has come down on most Trump administration requests.
[11:22] Speaker 2: You're listening to Bloomberg. The Supreme Court is allowing the
[11:27] Speaker 2: Trump administration to withhold four billion dollars in congressionally approved
[11:32] Speaker 2: foreign assistance that's poised to expire at the end of
[11:35] Speaker 2: the month. The conservative justices lifted a lower court order
[11:40] Speaker 2: that would have required the administration to commit to spending
[11:43] Speaker 2: the money that was over the descents from the court's
[11:47] Speaker 2: three liberals. The unsigned order on Friday boasters President Trump's
[11:52] Speaker 2: effort to claw back funds that Congress approved. The money
[11:56] Speaker 2: is set to expire after the fiscal year ends on
[12:00] Speaker 2: September thirtieth, if the State Department and what's left of
[12:04] Speaker 2: the US Agency for International Development don't commit to spending it.
[12:09] Speaker 2: I've been talking to Columbia Law School professor Suzanne Goldberg.
[12:14] Speaker 2: This latest ruling by the Supreme Court follows a pattern
[12:19] Speaker 2: of lower courts holding back the Trump administration's actions, appellate
[12:24] Speaker 2: courts affirming that, and then the Supreme Court on the
[12:28] Speaker 2: emergency docket, coming in and reversing and allowing the administration
[12:34] Speaker 2: to go forward with its actions. We saw this with
[12:38] Speaker 2: allowing Trump to cancel nearly eight hundred million dollars in
[12:42] Speaker 2: National Institute of Health grants and up to sixty five
[12:46] Speaker 2: million dollars in teacher training grants, Allowing Trump to ban
[12:50] Speaker 2: transgender soldiers from the military, to carry out mass layoffs
[12:55] Speaker 2: of federal employees, to remove the heads of independent aid agencies,
[13:00] Speaker 2: and on and on. Why are the Conservative justices giving
[13:04] Speaker 2: this stamp of temporary approval but still approval to Trump's
[13:10] Speaker 2: actions on the emergency docket where there isn't full briefing
[13:15] Speaker 2: and we don't know what the explanation is most of
[13:18] Speaker 2: the time for their decisions.
[13:20] Speaker 3: This is utterly unprecedented to have the Supreme Court clear
[13:26] Speaker 3: a path for a presidential administration to, in essence, do
[13:31] Speaker 3: whatever would like, whether it's refused to spend money authorized
[13:35] Speaker 3: by Congress, or to pull a set of accomplished service
[13:39] Speaker 3: members out of military service, or to pull grant funding
[13:46] Speaker 3: from a range of institutions without going through well established,
[13:51] Speaker 3: long standing procedures, and not only to allow the executive
[13:56] Speaker 3: branch to pursue all of these aims. Been writing broughshawd
[14:01] Speaker 3: on well established law but to do that on the
[14:05] Speaker 3: so called emergency docket, which means that the Court has
[14:09] Speaker 3: not had a full hearing of the case and is
[14:12] Speaker 3: not issuing a full opinion after the benefit of argument. Indeed,
[14:17] Speaker 3: this case is a good example where in a handful
[14:20] Speaker 3: of senses, the Court allows the President to say, I'm
[14:24] Speaker 3: not spending money that's been authorized by Congress, even though
[14:28] Speaker 3: there is a law that says I have to spend
[14:30] Speaker 3: this money, and even though there is another set of
[14:34] Speaker 3: laws that says, if I'm not going to spend this money,
[14:36] Speaker 3: I have to go through a certain procedure which has
[14:39] Speaker 3: not been followed. So it's quite startling and should be
[14:44] Speaker 3: deeply disturbing to anyone, whatever ones use, who holds value
[14:51] Speaker 3: in the rule of law and in the Supreme Court
[14:55] Speaker 3: serving as a protector of the Constitution and doing that
[14:58] Speaker 3: not only by responding appropriately and promptly to serious national issues,
[15:04] Speaker 3: but also by explaining its reasoning. We just don't see
[15:07] Speaker 3: that here, and that is very very concerning. In fact,
[15:12] Speaker 3: Justice Kagan makes this point clear right saying that this case,
[15:17] Speaker 3: this application for a stay, was heard on a short use,
[15:21] Speaker 3: less than three weeks, scant briefing, no oral argument, no
[15:25] Speaker 3: opportunity to deliberate in conference, and she points out that
[15:29] Speaker 3: on the regular docket of the Supreme Court cases a
[15:34] Speaker 3: far less import with far more process and reflection. So
[15:38] Speaker 3: there are real reasons to be concerned about the use
[15:43] Speaker 3: of the emergency docket to allow this administration, or really
[15:49] Speaker 3: any administration, to step away from to ride roughshod over
[15:55] Speaker 3: longstanding laws that restrict the administration's authority. That should be
[16:01] Speaker 3: deeply troubling to all of us.
[16:03] Speaker 2: This is a test of presidential power. Why does the
[16:06] Speaker 2: Supreme Court want to give another branch of government so
[16:11] Speaker 2: much power? You would think that they would, you know,
[16:13] Speaker 2: at least guard their own power. Why give it to
[16:16] Speaker 2: another branch of government? It sort of seems counterintuitive to me.
[16:20] Speaker 3: I think it's the right question. I think it is
[16:23] Speaker 3: appropriate to ask why Congress and the Court seem to
[16:30] Speaker 3: be seeding power or authority to the executive branch. The
[16:38] Speaker 3: American system is designed, the premise, or the foundational premise,
[16:44] Speaker 3: is that each branch checks the other. They're mutually checking.
[16:48] Speaker 3: We talk about separation of powers, but part of what
[16:51] Speaker 3: we mean by that is that each serves as a
[16:54] Speaker 3: check on the other. And when that mutual checking stops
[17:01] Speaker 3: the foundation that holds up our system is at risk
[17:05] Speaker 3: of collapse. Why is the Supreme Court feeding so much
[17:10] Speaker 3: authority and also giving what seems in many cases to
[17:15] Speaker 3: be unfettered discretion to the executive branch. You know, there
[17:19] Speaker 3: are many theories out there. There are political theories, there
[17:22] Speaker 3: are sort of jurisprudential theories. But one true line I
[17:27] Speaker 3: think we can see is that at least some of
[17:31] Speaker 3: the justices in the majority of these opinions believe the
[17:36] Speaker 3: executive branch does have more authority, right, that there's this
[17:39] Speaker 3: idea of the unitary executive that really should drive the
[17:44] Speaker 3: country and its works, but the president as a unique
[17:48] Speaker 3: level of authority and basically shouldn't be impeded in exercising
[17:52] Speaker 3: that authority. The concern is, of course, you know, that
[17:56] Speaker 3: was a monarchy, right, and that's what the America system
[18:00] Speaker 3: moved away from, where there was one figure who had,
[18:04] Speaker 3: you know, essentially unfettered authority to the extent the other
[18:08] Speaker 3: branches are ceding authority to the one figure in the
[18:11] Speaker 3: name of the unitary executive theory. The risk is that
[18:16] Speaker 3: we get closer and closer to a return to a
[18:22] Speaker 3: kind of monarchy that at least at the time of
[18:25] Speaker 3: the revolution Americans had rejected.
[18:28] Speaker 2: And most of these Supreme Court decisions are being carried
[18:31] Speaker 2: out by the six conservative Republican appointed justices.
[18:37] Speaker 3: I think when we have judges who you know, district
[18:43] Speaker 3: court and appellate judges who have been appointed by all
[18:46] Speaker 3: sorts of presidents, you know, generally in many cases coming
[18:52] Speaker 3: to the same position that the administration's actions are unlawful,
[18:59] Speaker 3: one has to wonder at the five or more often
[19:03] Speaker 3: six members of the court who disagree repeatedly in every case.
[19:09] Speaker 3: You know, we would be linking reality if we were
[19:12] Speaker 3: to say something is wrong with all of the district
[19:16] Speaker 3: courts and all of the circuit courts that are saying
[19:20] Speaker 3: no to certain presidential actions, and yet five or six
[19:26] Speaker 3: justice majority on the Supreme Court continues to say yes
[19:30] Speaker 3: to the president, go ahead and disregard the law. I
[19:33] Speaker 3: think that that is another that is something that should give.
[19:36] Speaker 2: All of us pause. Well, the regular term starts next Monday.
[19:39] Speaker 2: We will see if there's any difference in the way
[19:42] Speaker 2: the Supreme Court handles the Trump cases on the regular
[19:46] Speaker 2: docket as opposed to the emergency docket. Thanks so much
[19:50] Speaker 2: for joining me today, Suzanne that's professor Suzanne Goldberg of
[19:54] Speaker 2: Columbia Law School. With the indictment of former FBI Director
[19:58] Speaker 2: James Comy, Resident Donald Trump advanced his push for legal
[20:03] Speaker 2: action against his perceived political enemies. The indictment appeared to
[20:07] Speaker 2: be a break from legal norms at the Justice Department,
[20:11] Speaker 2: secured by a new acting US attorney, an insurance lawyer
[20:16] Speaker 2: with no previous experience as a prosecutor, replacing the career
[20:21] Speaker 2: prosecutor who didn't think there was enough evidence to take
[20:24] Speaker 2: the case to a grand jury. It's heightening concerns about
[20:28] Speaker 2: the Justice Department's independence. But on Friday, Attorney General Pam
[20:33] Speaker 2: Bondi doubled down on the threats of prosecutions of Trump's
[20:38] Speaker 2: enemies on Fox News.
[20:40] Speaker 1: Whether you're a former FBI director, whether you're a former
[20:43] Speaker 1: head of an intel community, whether you are a current
[20:47] Speaker 1: state or local elected official, whether you're a billionaire funding
[20:51] Speaker 1: organizations to try to keep Donald Trump out of office,
[20:54] Speaker 1: everything is on the table. We will investigate you, and
[20:58] Speaker 1: we will end the web organization.
[21:00] Speaker 2: The American College of Trial Lawyers is warning that Trump's
[21:04] Speaker 2: demands to prosecute his political opponents are a blatant attack
[21:09] Speaker 2: on the rule of law and a road due process.
[21:12] Speaker 2: Joining me is the actl's president, Richard Dean Junior. He's
[21:17] Speaker 2: a former US attorney who served under both Presidents Bill
[21:21] Speaker 2: Clinton and George W. Bush. Were you surprised that the
[21:26] Speaker 2: Justice Department brought charges against James Comey after being urged
[21:31] Speaker 2: by the President.
[21:32] Speaker 4: It's difficult to say, because once I'd seen the announcement
[21:36] Speaker 4: from the President, like most other citizens, I suppose I
[21:40] Speaker 4: just paid attention to see what came next. To say
[21:43] Speaker 4: that I was surprised, I can't say. What I can
[21:46] Speaker 4: say is it was a very unusual process because the
[21:51] Speaker 4: news media was reporting that it appeared that the career
[21:57] Speaker 4: prosecutors in the office were of the view that the
[22:00] Speaker 4: case was not sufficient to be prosecuted. So when the
[22:03] Speaker 4: President's announcement was made, it really caught the attention of
[22:08] Speaker 4: many lawyers, especially because it seems so out of the ordinary.
[22:12] Speaker 2: Prosecutors are supposed to make decisions based on the evidence
[22:16] Speaker 2: and present cases to the grand jury only when they
[22:21] Speaker 2: believe they can prove the case at trial. If prosecutors
[22:25] Speaker 2: don't follow that, are they risking their bar licenses?
[22:30] Speaker 4: Well, I guess they could if there were to be
[22:34] Speaker 4: complaint raised, or if their bar itself were to initiate
[22:38] Speaker 4: an inquiry, that would be a legitimate concern because if
[22:41] Speaker 4: you're ethically, as a prosecutor, required to believe that you
[22:45] Speaker 4: have a credible factual basis to go forward with a case,
[22:50] Speaker 4: and as a matter of ethics, no lawyer should file
[22:53] Speaker 4: a pleading in court that they don't believe has a
[22:57] Speaker 4: factual basis then has factual support.
[23:00] Speaker 2: Is it rare for prosecutors, though, to face charges in
[23:04] Speaker 2: that circumstance.
[23:05] Speaker 4: I think it's somewhat rare that charges like that get
[23:08] Speaker 4: are allegations like that get filed because the Justice Department
[23:12] Speaker 4: has had historically a very strong reputation for ethical conduct,
[23:19] Speaker 4: and I think as a result of that, they have
[23:22] Speaker 4: what's known in the law as a presumption of regularity
[23:26] Speaker 4: that when the courts look at the Justice Department's operations,
[23:30] Speaker 4: they based on their history, the courts presume that they've
[23:35] Speaker 4: conducted themselves ethically and appropriately according to their history. That's
[23:40] Speaker 4: why there have been probably so very few of those
[23:43] Speaker 4: kinds of allegations or charges raised against the department.
[23:47] Speaker 2: Rick, tell us about the concerns of your.
[23:50] Speaker 4: Members, What has concerned us that whenever you're focusing proscatorial
[23:56] Speaker 4: attention and proscytorial authority on individuals rather than on conduct
[24:02] Speaker 4: and the possibility that persons have committed whatever the conduct
[24:06] Speaker 4: might be. That's problematic because prosecutors have such wide ranging
[24:11] Speaker 4: authority and wide ranging power, frankly to investigate cases. The
[24:18] Speaker 4: history has always been that prosecutorial authorities should be focused
[24:23] Speaker 4: on cases that should be brought and not focused on
[24:27] Speaker 4: people who should be prosecuted. Well, let me go back
[24:30] Speaker 4: to talking about one of our frankly more important Attorneys
[24:36] Speaker 4: general that has ever served in that office, and that
[24:38] Speaker 4: was Attorney General Jackson, who many many years ago, while
[24:42] Speaker 4: he was speaking to lawyers in the Justice Department, pointed
[24:47] Speaker 4: out the great authority that they had, the great discretion
[24:50] Speaker 4: that they had, and the ability they had to really
[24:53] Speaker 4: rehabit among an individual's life, and he pointed out that
[24:58] Speaker 4: they should use that as the to focus on cases
[25:02] Speaker 4: that should be brought rather than focusing on people that
[25:06] Speaker 4: should be and his words gotten. So I think that's
[25:10] Speaker 4: the distincsion that I'm talking about.
[25:12] Speaker 2: Speaking about the Attorney general. And you know, usually in
[25:16] Speaker 2: the past you usually didn't hear from US attorneys general
[25:20] Speaker 2: unless they were announcing, for example, charges being brought in
[25:24] Speaker 2: a huge case. But Attorney General Pam Bondi has been
[25:28] Speaker 2: making a lot of statements about prosecutions to come, and
[25:33] Speaker 2: she doubled down after the Coomy indictment. She said, whether
[25:37] Speaker 2: you're a former FBI director, whether you're a former head
[25:40] Speaker 2: of an intel community, whether you are a current state
[25:43] Speaker 2: or local elected official, whether you're a billionaire funding organizations
[25:48] Speaker 2: to try to keep Donald Trump out of office, everything
[25:52] Speaker 2: is on the table. Is that statement concerning well the.
[25:57] Speaker 4: Attorney General is going into the media making statements. You're
[26:01] Speaker 4: right to say that. Historically you don't see that very often.
[26:06] Speaker 4: The point of it that really matters, though, is again
[26:11] Speaker 4: the focus being on due process and the fact that
[26:15] Speaker 4: everybody is presumed to be innocent, and that these charges
[26:20] Speaker 4: and the prospect of charges should be brought only after
[26:23] Speaker 4: a full and fair investigation, and there shouldn't be announcements
[26:28] Speaker 4: and pronouncements in advance of all of that, that these
[26:32] Speaker 4: people are somehow guilty of a charge. That's violating principles
[26:36] Speaker 4: of due process. It violates the notion that people are
[26:40] Speaker 4: presumed to be innocent until proven otherwise, and proven beyond
[26:45] Speaker 4: a reasonable doubt and that their cases have to be
[26:49] Speaker 4: heard and evaluated by twelve ordinary citizens. And so until
[26:54] Speaker 4: all of that process takes place, these people are protected
[26:58] Speaker 4: by the Constitution. They have rights under the Constitution, and
[27:03] Speaker 4: courts of law are required to protect those rights. And frankly,
[27:07] Speaker 4: the Attorney General has taken an oath to protect those
[27:10] Speaker 4: rights as well, even as she's initiating a prosecution.
[27:15] Speaker 2: The reactions of several Republican lawmakers were, well, if he's innocent,
[27:21] Speaker 2: a jury will decide that. You know, he'll have a
[27:23] Speaker 2: chance to go to trial, and a jury will make
[27:25] Speaker 2: the ultimate decision. But that ignores what a defendant has
[27:30] Speaker 2: to go through and you know, the reputational damage and
[27:35] Speaker 2: the money spent on attorney's fees and all the rest,
[27:39] Speaker 2: the anxiety of going to trial.
[27:42] Speaker 4: Well, it could, and I think that's part of the
[27:44] Speaker 4: concerns that you would have in evaluating whether or not
[27:47] Speaker 4: these pronouncements, and frankly, the cases themselves have the appropriate
[27:52] Speaker 4: level of factual support. That's why ethically the Department of
[27:58] Speaker 4: Justice has always required that they're prosecutors have in fact
[28:02] Speaker 4: a sufficient factual basis so that they individually believe that
[28:07] Speaker 4: they are able to sustain a conviction, so that when
[28:10] Speaker 4: they bring a case, you could lose. And everybody understands
[28:14] Speaker 4: that you might try a case and a jury might
[28:16] Speaker 4: see it differently, but the individual prosecutors, as an ethical matter,
[28:21] Speaker 4: should have facts and evidence that convinces them that the
[28:25] Speaker 4: case should be brought.
[28:28] Speaker 2: The Washington Post is reporting that prosecutors pursuing the case
[28:32] Speaker 2: against John Bolton are being pushed by senior Justice Department
[28:36] Speaker 2: officials to get an indictment quickly. Could rushing a case
[28:41] Speaker 2: like that compromise the prosecution and perhaps what happens at trial.
[28:47] Speaker 4: Well, again not knowing the specifics of the Bolton investigation,
[28:51] Speaker 4: which frankly we should not know, because the investigation itself
[28:54] Speaker 4: should largely be a secret process if it's done through
[28:58] Speaker 4: the grand jury. The thing about potential cases such as
[29:02] Speaker 4: that is that they can be complicated, and the factual
[29:06] Speaker 4: basis to support them can be complicated. So prosecutors need
[29:11] Speaker 4: to take their time and be sufficient in their investigation
[29:14] Speaker 4: or thorough in their investigation, sufficient for them to have
[29:18] Speaker 4: the evidence in place that they're satisfied they can prove
[29:22] Speaker 4: the case beyond a reasonable doubt. That's what our constitution
[29:26] Speaker 4: requires that's what due process of law requires. And again,
[29:31] Speaker 4: every prosecutor, frankly every lawyer has taken an oath to
[29:35] Speaker 4: support and defend the Constitution of the United States, and
[29:40] Speaker 4: that includes the notion of due process of law and
[29:44] Speaker 4: that people are innocent until proven guilty. The importance of
[29:48] Speaker 4: an independent judiciary becomes all the more important in cases
[29:53] Speaker 4: like this because the public will certainly be paying attention
[29:57] Speaker 4: and will want to see how the judicial process addresses
[30:00] Speaker 4: these cases, and so they will be looking to see
[30:03] Speaker 4: whether or not there are facts to support the case,
[30:06] Speaker 4: whether or not the case was properly initiated, and all
[30:10] Speaker 4: of the things that you're pointing out, where the court
[30:13] Speaker 4: will have to decide those issues.
[30:16] Speaker 2: Supreme Court held last year that presidents are largely free
[30:21] Speaker 2: from criminal liability for official actions they take. Does that
[30:26] Speaker 2: play any role in what's happening right now with Trump
[30:31] Speaker 2: calling for these prosecutions.
[30:35] Speaker 4: I don't think so. I think what the Supreme Court
[30:37] Speaker 4: was speaking to is a notion that a president can't
[30:41] Speaker 4: be criminally held accountable for various actions that they may
[30:46] Speaker 4: have taken as president. So the notion of saying that
[30:50] Speaker 4: a defendant is quote guilty as hell is likely not
[30:54] Speaker 4: criminal conduct. As we've pointed out, we believe it's inappropriate conduct,
[30:59] Speaker 4: but the Supreme Court's decision probably doesn't extend to that
[31:04] Speaker 4: kind of conduct by the president.
[31:07] Speaker 2: Is it a justification that administration officials are saying, we're
[31:13] Speaker 2: not weaponizing the Justice Department, we're responding to the weaponization
[31:18] Speaker 2: of the Justice Department against Trump.
[31:21] Speaker 4: I guess the point that I'll make is perhaps the
[31:23] Speaker 4: one that I tried to make earlier, and I go
[31:25] Speaker 4: back to Justice Jackson. You know, I've got the quote
[31:29] Speaker 4: that he shared with all of the lawyers in the
[31:31] Speaker 4: Justice Department in the Great Hall there at the Justice
[31:34] Speaker 4: Department that he was leading as Attorney General. In quoting him,
[31:38] Speaker 4: he said, the greatest danger of abuse of prosecuting power
[31:43] Speaker 4: comes from the pressure to go after somebody rather than
[31:46] Speaker 4: to go after a crime. And I think that's the
[31:50] Speaker 4: point here that everybody understands. I think that no one
[31:55] Speaker 4: is above the law, and if you've committed a crime,
[31:58] Speaker 4: people understand that you can be held accountable for that,
[32:02] Speaker 4: but they expect the process to be fair and that
[32:06] Speaker 4: the charge is to be brought on the basis of
[32:09] Speaker 4: sufficient facts and not just because there's political opposition. To
[32:14] Speaker 4: whoever that person might be.
[32:17] Speaker 2: And the American College of Trial Lawyers is a non
[32:20] Speaker 2: partisan organization.
[32:21] Speaker 4: The American College of Trial Lawyers, we represent trial lawyers
[32:27] Speaker 4: across the US and Canada, and our membership is composed
[32:31] Speaker 4: of some five thousand plus lawyers from all political perspectives,
[32:35] Speaker 4: So we don't speak out about the politics of any
[32:38] Speaker 4: of these matters. What we try to speak to is
[32:41] Speaker 4: the legal process, calling for an independent judiciary, calling for
[32:47] Speaker 4: honoring and respecting the rule of law, and calling for
[32:52] Speaker 4: people to simply respect the fact of the access to justice,
[32:57] Speaker 4: and for jury determinations that everybody has the right to
[33:01] Speaker 4: have their case if there is a case brought to
[33:04] Speaker 4: be decided in a quarter law.
[33:07] Speaker 2: Thanks so much for joining me, Rick, That's Richard Dean,
[33:09] Speaker 2: Junior President of the American College of Trial Lawyers. And
[33:14] Speaker 2: that's it for this edition of The Bloomberg Law Show.
[33:16] Speaker 2: Remember you can always get the latest legal news on
[33:19] Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[33:23] Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
[33:29] Speaker 2: And remember to tune into The Bloomberg Law Show every
[33:31] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[33:35] Speaker 2: and you're listening to Bloomberg

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