This is bloombird law with June Brusso from bloombird radio. If you're the president of the United States, you can declass if I just by saying stick class even by
thinking about it. Despite what former President Donald Trump said on Fox News this week, it's clear that not even a president can declassify documents just by saying it, certainly not by thinking it, and the Eleventh Circuit Court of Appeals definitively shot down most of trump's other arguments about the classified documents seized by the FBI from Maral Lago. My guest is national security expert Bradley Moss, a partner
Mark Z Brad. Let's start with the basic question. What would trump have to have done to declassify a document? So this is this is a bit of a philosophical question at some part. In theory, up to the moment Joe Biden took the oath of office, Donald Trump could at any time have literally just stated that document in front of me that says we plan to attack Iran, I'm declassifying it and the document would be considered, quote unquote, declassified. But there are two problems here. One all the case
law from the trump era. said that that declassification doesn't take effect as a subsequent follow up bureacratic steps. Specifically, it has to be notification to the agency that provided it, the documents have to be the marked, etcetera, etcetera. More importantly, for purposes of a criminal inquiry here, even if he declassified the document, the markings are still there and until the markings have been properly removed, the document has to be treated by any individual who sees it as if
it is still classified. That's where Donald Trump's problem comes into play here. That's why the search warrant didn't ask for classified records. It asked for documents with classification marketing, because that becomes became the problem that if he took them without having proper early had them de marked, there still have to be treated as if they're classified. Trump many times, including this week on Fox, said he declassified
these documents. There can be a process, but that doesn't have to be you know, the president, you make that decision. So when you send it it's the Classif we I declassified everything. But his lawyers have never made that claim in court or in court papers, have they? No, they have come right up to the line, but they've never actually come out and said he be classified these documents, and the reason they haven't done that is twofold one.
That would require a sworn after dated from Donald Trump and or various staffers who were around who can attest to what happened. No one wants to put their name
on that and potentially subject themselves the perjury charges. But too even if they did, all it does is address the idea that there were vague, you know, broad verbal orders, none of we are gonna most likely have anything to do specific to these particular one hundred documents and none of which has anything to do ultimately with the three criminal statutes in play that were the subject of the search.
Warm they don't care if the documents were declassified. The markings are still there, they're still have to be treated as valid unless they were demarked, and it doesn't change the obstruction issue. That's the problem. That's why they're dancing around this. What I don't understand through all this is even if he had declassified these documents, it doesn't change
the fact that they don't belong to him. Correct. So the only way he could theoretically have any possessory interest in these documents is if he had designated them under the Presidential Records Act as personal records and had done
so prior to leaving office. There is zero evidence that's been produced that he ever did any such thing and if he had, he was supposed to have notified the archivists of the United States, and the artivists could have taken action under the Presidential Records Act to challenge that, because personal records are supposed to be non official, you know, not relevant to the ordinary business of government. These were top secret documents relating to foreign intelligence. That's not supposed
to be a personal record, that's official government records. That would then the only circumstance in which he could theoretically have had any type of right to those documents. There's no indication you did any of that. If the judge did say to the government, you have to prove these are classified documents, would that be difficult for the government
to do? NOPE, all they would have to do, besides literally showing the judge the documents with the markings on them, they would submit a declaration from a relevant security official saying I've reviewed the documents, I've cross checked against where those documents came from and the relevant security classification guides. They remain classified, the markings remain valid. There is no declassification order I've found anywhere. U S District Judge Raymond
Deary said it's a matter of need to know. In other words, is he even going to be able to look at these documents explain that? Sure so, and this is very common for those of us who deal with classified information in civil litigation. This is a common problem under the existing case law and I'm not saying I agree with it. I'm saying this is what the case law says that my name is on a bunch of
the cases that lost. But under the case law the government, the executive branch, makes the ultimate decision on whether or not a person has the relevant, quote unquote, need to know the information. So it's not just that you have the requisite clearance, because I have the clearance, my boss is a clearance. We get told we don't have the need to know all the time. If the government decides that you don't have a need to know this particular information,
they can still refuse to provide you the access. So what trump's team is trying to do here? They're saying you see these records. We're challenging it as a civil matter. We want access to the documents to review it and decide how we're going to present our evidence that these were not classified. Of the markets aren't valid. The government saying Burns on you. You brought this action, present your evidence.
You have no need to know in terms of seeing these particular documents with classification marketing, that's not our job to give it to you. It's not in our view, it's not in the interest of national security to provide you with that access. In every single case that has ever come up about this in a civil action has set over and over again the executive branch alone makes
that decision. Judge Jalen cannon had barred the Justice Department from using some one hundred documents with classification markings, but on Wednesday a three judge panel of the Eleventh Circuit, including two judges appointed by trump, intervened and said the Justice Department can use those documents. Why did they intervene? This was the eleventh circuit bringing everyone back to reality on what the case law actually says and how this
is actually supposed to work. Namely this was a civil litigant. Mr Trump who is now a private citizen, suing to try to regain access to, in control over, records that had been seized from him by the FBI. Pursue it to a search warrant and in the particular context of
this appealed it concerned one documents with classification markets. At no point in the lower court litigation had he ever provided any evidence that the documents were not classified, that he had declassified him or that the markings were not valid.
The burden was on him, and all of the case law that applies in this context, most of which has been dealt with in the context of either bring information or First Amendment Litigation for manuscripts the former employees, always makes clear that the burden to gain access to documentation that the government still thinks it is classified, that burden is going to be on the plaintiff to disprove essentially that the classification is valid, and Mr Trump had never
done anything to create a genuine issue of material dispute on that front. That's why the circuit intervened. Did you see a rebuke to trump here? The panel said quote. For our part, we cannot discern why the plaintiff would have an individual interest in or need for any of the documents with classification markings. I thought it as more of a very polite and professional rebute to judge cannon
more so than to Mr Trump. Mr Trump is trying to put forth whatever arguments he can, which is why he civil Litigan does in this context, trying to create a material controversy in order to try to delay in gain access to the records. The judge, Judge Cannon, should have known better, and that's what the Eleventh Circuit, I think, was really focusing on. It was more of a response of what were you thinking here? There's no possible basis in law for him to have a possessory interest in
these documents. They also called trump's declassification argument a red herring. Explained that, sure so, the search warrant in the criminal provisions that are an issue do not rise and fall on whether or not the documents were declassified. It's certainly relevant in the context of the espionage espionage act claim, because there's only one case in which the government has ever pursued that type of charge for unclassified information relating
to the national defense. But ultimately, as a matter of law, it doesn't matter if the documents were declassified, they were still contained information relating to the national defense. That's the espionage act charge and he obstructed the efforts by the FBI and Nara to recover them. The document and the search warrant only concerned documents with classification markings. It didn't hinge on the documents classified. Regular general impression of what's
going on here. So what the trump team has tried to do here essentially is to drag out or delay this entire process. They're trying to throw, you know, a wrench into the criminal inquiry, to slow it all down, to drag out at whatever point Donald Trump may possibly, hypothetically,
theoretically be indicted. The hope for them is that if they can slow down that part of the process and keep that delayed as long as possible, that even if there ultimately is an indictment, it will come late enough in the process that there won't be a trial before November and that either Donald trump or someone favorable to him will win the presidency and shut it all down. That's all this is. If this gets the trial and this gets to a jury verdict, it is almost certain,
in my view, that donal trump will lose. That's why he's doing everything with the special master, with these various emotions. He's just trying to muck up the process. Thanks, Prad. That's Brad Moss of Mark said. Yeshiva University has decided to temporarily suspend all undergraduate club activities after the U S Supreme Court refused to step into a legal fight
over recognition of a campus lgbt q student group. In an unsigned opinion, the Supreme Court said the New York School has other avenues for repeal it can pursue before the justices have to get involved. But in a descent joined by three other conservatives, Justice Samuel Alito predicted the university will ultimately prevail on the question of whether it's religious rights are being violated by having to recognize the Y you pride alliance joining me as Professor Richard Garnett
of Notre Dame law school. So Rick, start by telling us about the supreme courts five to four decision. And it's a ruling not on the merits of the disagreement that yeshiva has with the regulators here. It was. It was about whether or not a New York state trial courts decision should be stayed. That is kind of put on hold in order for Yeshiva to be able to take its constitutional and other arguments to a higher court.
So what the Supreme Court did is not say, you know, who's right about this disagreement with respect to the application of New York's law or what the First Amendment means. It just said that we're not going to block this lower state court. We're gonna tell yeshiva instead to pursue its available procedures in the New York system and then once they're done with the New York system, they can
come back to us. I saw a lot of commentators say how unusual it was for the Supreme Court to basically, you know, lay out a roadmap for what yeshiva has to do. Did you find it unusual? It is unusual,
not not unprecedented, but unusual. I mean it was pretty clear that only the dissenters, but you know, the court itself was pretty explicit about what they thought was still open and pretty explicit that they were ready and willing to look at the case again once the proper procedures have been followed, or what they think the proper procedures are. So I guess it's pretty reasonable to think that the the justices were signaling their views about the ultimate merits
of the dispute. But you know it is pretty standard for the Supreme Court to sit back and let State Court proceedings work out in a chord with state law and state process before coming in. So the descent written by Justice Samuel Alito, at least four of us are likely to vote to grant Sir Sharrari if Shashiva's first amendment arguments are rejected on appeal and yeshiva would likely win if its case came before us. Isn't he deciding
the case before it's even been argued? Well, you only need four justices to grant sert you know, and there were four justices on the descent there. So those four don't decide anything. They're just communicating that. You know, given our understanding of the case at present, if yeshiva asks us to take this case, we're going to vote to take it and you know for that to take it.
But it was interesting that extra bit where justice leader does pretty clearly suggest to the parties below that he thinks it wouldn't just be the four on yeshiva side, and I think he's probably right about that. I mean I suspect that it wouldn't even be just five or even six, but that if the case were to actually get to the Supreme Court, that Yeshiva would win. But for, you know, whatever reasons, I'm not I'm not privy to them.
Obviously a majority of the justices wanted to have this thing sort of play out more slowly and to play out fully in the State Court system before the Supreme Court comes in on the ultimate merits questions. Why do you think that it's such a clear cut case on the merits so that the doctrine that the supreme courts settled on in recent years is that a law that is not generally applicable but that burden's religion is subject to what's called strict scrutiny, and that's a very demanding standard.
And it seems pretty clear that the New York anti discrimination regulation that's being applied here has lots of exceptions.
There's all kinds of civic groups and clubs and other organizations that are not subject to this particular anti discrimination norm but yeshiva is, and so yeshiva is going to be able to say the application of this law is a burden on our religious freedom rights and because it's a burden that's being imposed by a law that's not general, then that burden has to be evaluated under this very demanding standard and generally speaking, when strict scrutiny is applied
to a law, the law loses. And I think it'd be again more than just bob or even six justices who would think that that was true. Because if New York is willing to allow various other nonprofits to have internal rules that reflect their their values and their missions on, I think the court is going to say that they
can't deny that to yeshiva. There's also a state law issue about whether yeshiva is even covered by this law, because the question is whether or not accounts as a religious institution, and the State Trial Court has said that yeshiva wasn't, and obviously yeshiva thinks that it is a religious institution. The Supreme Court wouldn't get involved probably in resolving with the State Court question, but that's going to be something to put the appellate courts in the state
hash out. So the Lower Court judge ruled that yeshiva was incorporated as an educational institution, not a religious one. So so as a secular institution, it's bound by New York state human rights laws. If the Appellate Court affirms that as an interpretation of New York law, will the Supreme Court accept that? Yeah, because so if the appellate court in New York were to agree that that yeshiva is covered, then you sort of pivot to the First
Amendment question. So in a sense the case has two layers. Right, UM, under New York law, should this anti discrimination rule even be applied to yeshiva? And the second question is, if the New York law does apply, well, does the First
Amendment permit that application? And I think the question that Justice Alito and his colleagues, I think we're signaling their views on, was that latter constitutional question, that that even if the New York law does apply Um, under current free exercise doctrine, current First Amendment Doctrine Um, that application would probably be uh invalidated. So I'm wondering if the university has sort of tried to tread this line between welcoming lgbt Q students but refusing to recognize this club
on religious grounds. Does that cut against yeshiva in any sense? Well, in order to get protection for religious freedom rights courts will ask whether the belief in question is sincere. So in some cases not, not very often, but in some cases a court might say that a party's inconsistent practices suggest that its objections are not really since here. I don't think that would happen here. You know, religious institutions are allowed to decide for themselves, Um, what their religious
commitments are and Um Yeshiva's position could well be. Look, we have no we have no religious problem with welcoming people. The problem, the concern that we have is with officially recognizing a group, because that might be Um, that might count as kind of an institutional endorsement of the group's particular positions, which they might think Um, is different from simply, you know, welcoming people to come if they so chose. And of court is not gonna and we wouldn't want
courts to do this. I don't think of court is not going to get into the question whether, you know, are yeshiva's religious liberty, religious positions it makes sense to us. Do they seem consistent to us to be line up with what you know, how we think their religion should
be interpreted? Courts aren't going to get into that. So the school's taking this rather aggressive step of just suspending all the groups at school, while it follows the roadmap left by the Supreme Court, and a lawyer for the students, the gay students, said the university's action was divisive and shameful rather than accept one lgbt q peer support group on campus. It's a throwback to fifty years ago when the city of Jackson, Mississippi, closed all public swimming pools
rather than comply with court orders to desegregate. Well, I guess we can talk about Um, who's being more aggressive. That's a pretty aggressive rhetorical stance to take with respect
to ESCHIVA's actions. But but yeah, I mean they clearly decided that Um, and this, I suppose, confirms the sincerity of their position that Um, they genuinely do think that Um official recognition of this group, which again they believe is different from welcoming particular students, that official recognition would
constitute an endorsement that's inconsistent with their religious character. and Um, you know they they're not going to violate court orders, but the way to Um be in compliance with that order is to not have groups officially recognized. Groups operating
at all. I'm sure that's not the university's preference and Um, you know, once the litigation plays out, I suppose they can go back, you know, whether it's analogous to the kind of discrimination that the lawyer mentioned with respect to disaggregation. I guess people would disagree with that. I'm inclined to say that yeshiva would have a very different take on that. Does this Dispute Mirror the kinds of, you know, legal disputes we've seen that pit religious beliefs against local or
state anti discrimination law? Yeah, sure, we were. When we're seeing, as you know, we're seeing more of these. You can think of the masterpiece cake shop decision, or there's a free speech decision that the Supreme Court has this year called three or three creative another wedding vendor case. Um, the fault in case from two years ago having to do with foster care certification in Philadelphia. This, this is
the this is the arena in our current time. It wasn't always true where some of the more high profile classes between government regulations on the one hand and religious liberty interests on the other are are being seen. Now, you know, there's a there is a danger. I think that we focus on these classes more than many, many religious liberty cases that are out there that don't involve
antidiscrimination law at all. But these are the ones that do seem to be the highest profile right now because it's it's just a fact that there is kind of a cultural or social or, I guess, the religious Um divide the country on some of these questions and they're they're going to continue. Yes, you know, all those cases you mentioned show why it's pretty clear which way the Supreme Court is going to rule on this, if it gets to the Supreme Court. Yes, I think that's true.
And yet these cases are not contrary to with some people think. They're not always sort of liberals versus conservatives and so on. I mean, I think there has been an interest in trying to find kind of compromise positions where anti discrimination norms can be closely enforced in public contexts and certainly by government agencies and so on, while still giving religious institutions space to act in accord with
their own religious beliefs. And you know, whether we're able to find, in kind of a consistent across the board way, those sort of compromised I guess that does remain, but I suspect that the justices will actually have a consensus on this one. Thanks Rick. That's Richard Gardner of Notre Dame law school. The Justice Department is laying out policy changes to crack down on corporate crime. It's centers on allowing more companies to voluntarily report misconduct and cooperate on
remedial actions to avoid pleading guilty. Joining me is Chris Strom, Bloomberg legal reporter covering the Justice Department. So tell us about this new push by the Justice Department, where it comes from and how long it's been in the making. Well, the deputy attorney general, Lisa Monico, had made corporate enforcement
a priority when she first came into her position. She has been in out of government and for a while she was working in the private sector and she knew what government priorities were, she understood what private sector concerns were, and so she came in and made an announcement that she was going to take a review of the department's Corporate Enforcement Priority these and Um she formed an advisory group and over to that, over the last year they've
been looking at what it is that the department could do. Um, that would have more teeth in terms of getting companies to address misconduct but also be sensitive to a company concern.
And so she has now announced that the department is implementing new policies and the primary push of the new policy will allow companies to avoid prosecution or having to plead guilty for misconduct as long as they come forward early and fully disclosed the misconduct that they've discovered to d o j and work with d o j to remediate the problem. So basically, they want companies to turn themselves in when they find there some wrongdoing. That's right.
They want companies to police themselves. D O J for a while has focused on ending out that companies were committing crimes or participating in wrongdoing and going to them with more of a hammer and a prosecution approach, and what the department is trying to do now is encourage companies to police themselves and then work with the department so it doesn't have to be such an adversarial relationship.
Now there's a lot of questions, a lot of concerns about how this is going to work in practice and will companies really be willing to come forward and disclose information and will the department really gives them leniency depending on what they admit to being misconduct. In your story you say they're going to shift the focus to prosecuting executives. In other words, no longer those you know. You'd hear the company pleads guilty to such and such. It's going
to the individuals. Now the Justice Department is definitely interested in prosecuting individuals, whether their executives or company employees, who have committed wrongdoing, rather than trying to reach some kind of an agreement with a company and punish the company overall with some kind of a fine, because that can be seen as just being a slap on the wrist when you look at the amount of a fine compared to how much a company is worth, what kind of
revenue and profits they have. And so the department wants to focus on holding individuals accountable more than just doing a broad prosecution of a company. And so the department also wants to get away from having to punish shareholders and people who didn't have anything to do with the misconduct and identify those who, in particular, will sponsible for the misconduct. So Monica. Monica described it as a combination
of carrots and sticks. What are the carrots? So the carrots that the department is willing to offer is to allow companies to avoid pleading guilty, allow companies to avoid prosecution in exchange for coming forward and working with the department on a more cooperative basis. This assumes that the companies are investigating themselves, you know, during the average work
day or or work week. I mean to find the misconduct within the company before d o j does correct what the department wants companies to do is to come up with monitoring and compliance programs on their own and to consistently monitor whether there's any misconduct taking place and to be able to catch it on their own and
then come forward and disclose it too regulators. The department is willing to work with companies in order to help them develop a compliance program if that's what they want to do, but a lot of what the department is asking right now is for companies to police themselves. Chris, don't big companies now have compliance programs? Yes, there are
many companies that have compliance programs. The department is arguing that some of these compliance programs are out of date or they sound good on paper but they're not really being used in practice, and so what will happen is that a company will be able to talk about all the compliance and in good business practices that they have and if there's a problem that is discovered, then they can point to that and say that they shouldn't suffer
any penalties because they have these compliance programs. What Lisa Monica and the Justice Department are saying is that they need to be able to review the compliance program when making decisions about whether companies are going to be able to avoid pleading guilty or avoid prosecution, and they want to see a demonstrated commitment by companies over time that these companies are actually taking their compliance programs very seriously.
And one thing in particular that the department wants to see is that companies clawback compensation or remove financial incentives for executives or employees who are found to have committed misconduct. And so if a company can show that over time they were taking action internally against individuals who had been in breach of certain practices, that will go a long way towards convincing the Justice Department that they've been actively
trying to monitor compliance and enforce best business practices. And the department will a that into consideration. Have you talked to any corporate compliance officers to find out what their take is on this? Yes, we've reached out to corporate compliance officers. We've heard from them. In the process of the department putting together these new policies, there are a lot of concerns about exactly how this is going to work. The Department still needs to finalize some of its rules.
Part of what the department is saying right now is that it is going to be coming forward with additional guidelines and additional rules for different components of the department.
And so there's the overarching goal that the department has articulated, but then there's the issue of where the rubber meets the road for these companies and there are things that the companies want to see the department put forward in a more concrete fashion, especially with regard to the issue of compensation and are there certain thresholds that companies should be looking at when they are clawing back compensations? Are there certain monetary thresholds that the department is going to
want to see companies meet? And B O J hasn't defined uh those kind of issues yet. It sounds like. This is a program that's going to take many years to get, you know, ingrained in corporations workings and also in the Justice Department, and by that time you may have a new justice department with new priorities. That's correct. This could be a situation where you find some companies, some corporate executives to simply wait out the Biden Justice
Department to see what comes next. Certainly if, Um, you know, if President Biden is reelected or another Democrat comes in, you could see a lot of continuity between you know, democratic administration. That would then, you know, go against any companies that are trying to wait, wait this kind of
a policy out. But UH, the department is making clear that there will be near term benefits for companies if they have good compliance programs and they show that that they're implementing them on a regular basis, and so they're trying to give companies incentives. This is always a, you know, it's a chicken and egg kind of conundrum that the department faces, where they always want to get companies to
do better, and this is one way. This is this is the way that the Biden Justice Department has decided to approach the issue and yes, we will see if it works and if it can laughs over the long term. Marshall Miller, principal associate deputy attorney general, has amplified on these remarks this week and it said companies should find ways to reward employees for engaging in ethical behavior, not just for pushing profits higher. It's part of the same push.
The Department still has to define more of what they want companies to do and how this is going to work in practice. And Marshall Miller, who is the principal associate deputy attorney general, spoke to a conference of business executives and said that it's not just about taking away compensation and financial incentives from people who are doing wrongdoing. It also matters if you reward people who are doing
the right thing. And so what Mr Miller has made clear is that the department is also going to be looking at when companies reward employees and executives with additional compensation,
additional financial incentives to do the right thing. So this is another example of something that you know, is not fully defined in terms of how the department is going to a approach these issues, so much as the department is going to continue to explain as it goes what the standards are that should be met and to that end, there are also department components that have not even defined certain policies that will govern non prosecution agreements with companies,
and part of Lisa Monico's directive is for the components all across the department to write down these rules, and so it's going to take a little bit more time for individual components to come up with their own rules and those will be subject to review as well. So I found this very interesting. Miller warrant companies to have active policies to prevent employees from using personal mobile devices to circumvent corporate accountability. What does he want them to do?
This stop people from using their iphones, ipads of computers at work. Yeah, this is a really fascinating aspect of where the department finds itself right now. We live in a world with ubiquitous technology and so people working at companies are going to have their corporate issue devices and
they're going to have their personal devices. What Mr Miller is saying is that companies should be aware that when executives and employees are using their own personal devices, they might be doing things that are outside of the corporate compliance programs, outside of the corporate rules, they might be doing things that are actually violating some of the rules
and Um procedures for a company. and Mr Miller is indicating that companies can be held responsible for activities that employees take on their own using their own personal devices, and it puts companies in a really difficult position because they need to figure out how to juggle not just compliance with their corporate issue devices and technology, but also making sure that they have some, you know, some rules and some compliance procedures in place for employees when they're
using their own personal devices. Thanks, Chris. That's Bloomberg legal reporter Chris Strom, and that's it for this edition of the Bloomberg Law show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on apple podcasts, spotify and at www dot bloomberg dot com, slash podcast, slash law, and remember to tune into the Bloomberg law show every week night at ten B M Wall Street time. I'm June Grosso and you're listening to Bloomberg