This is Bloomberg Law with June Grossel from Bloomberg Radio.
There's something centers to going on here. There's something bigger than just the FBI confiscating the records that.
They took, and Fulton County Chairman Rob Pitts says the county wants the twenty twenty election files that the FBI sees last week back. They're asking a federal court to order the FBI to return the seven hundred boxes of ballots, voter rolls, and other election records, calling the county the poster child for further federal action on elections elsewhere in the country.
This is I think probably the first step in whatever they're going to do in order to depress voter participation, voter registration, making whatever changes they think are necessary to help their case in twenty twenty six, but more importantly in twenty twenty eight.
As President Trump is doubling down on his calls to nationalize elections.
I wouldn't see elections be honest, and if a state can't run an election, I think the people behind me should do something about it.
Of Course, the Constitution gives the authority to administer elections to the states. My guest is Barbara McQuaid, a professor at the University of Michigan Law School and a former US attorney. Barbara, why do you think the FBI sees those hundreds of boxes of ballots and voter rolls and other election records from the twenty twenty presidential election.
It's unknown, of course, but we have some hints.
I mean, one is they got a search for it, which means a magistrate judge found probable cause to believe that evidence of a crime would be found there. And we know from the public filing that what they obtained were ballots, tabulation tapes, and voter roles. Now, twenty twenty is six years ago, and so it would seem that anything that occurred during that year would be time barred by the five year statute of limitations. But of course that's not something that a magistrate judge had taken into
consideration at that stage. Perhaps there's some allegation of an ongoing conspiracy that could keep that allegation fresh.
I don't know.
But also you can't ignore the simultaneous civil request that Trump's doj has been making to try to get voter rolls from a number of states, including Georgia. They have failed in states where decisions have been made, like California and Oregon, where judges have said no.
The federal government is not entitled to this stuff.
So are they simply using criminal process to get that which they could not obtain otherwise. But the fact that a magistrate found probable cause suggests.
That there is more information there than we currently know.
The prosecutor who sought the warrant was not the US attorney in Atlanta, but the Saint Louis US Attorney, Thomas Albus. So he's been appointed to oversee this. I don't know if they're calling it election integrity, what they're calling it.
Yeah, it's really unusual, but not illegal.
I mean, so much of what the Trump administration does is technically lawful, but either unusual or you know, discretion you'd rather see someone not exercise. I suppose ordinarily you would expect the US Attorney from the Northern District of Georgia to oversee any search conducted within his jurisdiction. That's the way it's done in ninety nine point nine percent
of the cases. The Attorney General does, however, have the authority to appoint a special attorney to investigate any matters that she chooses, and we've seen this done over the years. For example, Pat Fitzgerald, who was the US attorney in Chicago at the time, handled the Scooter Libby case. I think that was effort to just sort of get it out of Washington so that it wouldn't have the stench of politics. I know that Anne Tompkins out of North
Carolina handled the prosecution of General Petraeus. For example, John Durham, before he was the special counsel looking at the origins of the Russia investigation, actually investigated CIA torture.
At one time, So it's not unprecedented.
It's often in sort of politically charged cases where the Attorney General may appoint somebody outside of Washington who's a US attorney or it doesn't have to be to handle maybe sensitive cases. And I think it's especially true if the case might transcend the boundaries of.
A particular judicial district.
So maybe this case is going to include not just Georgia, but some other states, so that might make some sense. I worry a little bit about I don't know Thomas Albis, but I do know that.
He comes from Missouri.
He has been the top deputy to former attorney general in Missouri named Eric Schmidt. Eric Schmidt joined in the lawsuit with Texas Attorney General Ken Paxton when they tried to file a direct lawsuit to the Supreme Court to challenge the outcome of election results in several states during the twenty twenty election. So he's got sort of the association with election deniers that causes me some concern.
In your latest column for Bloomberg, you compared it to the appointment of Lindsay Halligan as US Attorney for the Eastern District of Virginia. She's the Trump loyalist with no prosecutorial experience who was put in place to get indictments against James Comey and Letitia James, indictments which were later dismissed. Is she still hanging in there?
She finally resigned yep, and went on her way.
Yeah.
You know, this is not quite as irregular as that that was clearly legally invalid.
Courts found that threw it out. This is legally.
Valid, but it does have sort of the appearance at least the whiff of You remember, her predecessor was a guy named Eric Siebert, who said I'm not going to indict Jim Comey and Letitia James, and he got fired for it. And in twenty twenty, there was a different US attorney Trump appointed in the Northern District of Georgia by the name of b. J.
Pack and he resigned.
In December of twenty twenty when Trump started asking Brad Raffensberger, the Secretary of State there, to find me eleven seven hundred and eighty votes. So you wonder if it isn't the case that these US attorneys who've got backgrounds as federal prosecutors. As the current US attorney there in Northern Georgia, does I think his name is Hertzberger? You know, he's
a career a USA. But Trump's not going to make the same mistake twice, right, He's going to make sure he's got somebody he can trust that Pam Bondy has handpicked to handle this very sensitive operation as opposed to the person.
Who would ordinarily assign this case too.
So that's all I meant by Lindsay Halligan. You know, the Trump appointed US attorney not willing to play ball, and so let's bring in the specialist from outside who will do Trump's bidding. Kind of has the whiff of that though, you know, certainly the appointment itself appears to be legal.
And actually the special Agent in charge of the Atlanta Field Office resigned from his post about a week before the agent served the war and there was no public explanation.
Yeah, that's another, you know, red flag, I suppose, And I don't know whether he resigned or was fired, and I don't know why he left. I know cash PTTEL has been firing agents who had anything to do with either the Trump investigations or the January sixth investigations, which itself is improper.
There's no allegation that engaged in enimous conduct. They just don't like the cases that they worked on.
I don't know why. But again, that would be another safeguard there. The Special Agent in charge of the FBI runs the FBI office in Atlanta. That office was tasked with conducting this search, and so the special Agent in charge would be someone who'd be in a position to push back and say, no, we're not going to do this.
I don't think it's lawful.
I don't think it's an appropriate use of our power, or at least let's talk about this and the fact that he was either fired or resigned again. Is just one more red flag and another irregularity among many.
Fulton County is suing to get the records back, but they say they won't be able to verify that they've received everything back because one, typically they're given copies of the records, but this time they weren't given copies. And two, there was no chain of custody inventory taken at the time the records were seized.
Oh what a mess. I didn't know that.
So, you know, the chaos of the Trump administration never ceases to amaze me. I mean, of course, ordinarily, when the FBI conducts a search, there is a whole protocol for how that's done. They get training at Quantico for how to do this. There is an agent who leads the search, and then there are other agents assigned to the search. They assign various agents, at least two to every.
Room that gets searched.
When there are computers involved, they track what it is they're taking or whether they're just copying it, and documenting that carefully is critically important, number one, so that everybody knows what was taken, so the rightful owner of the property kind of requested back. But also if you're going
to use this at evidence at trial. You have to authenticate it and show that chain of custody so that the jury knows this isn't something that you just manufactured once you got back to the FBI office, that you can have a witness testify. I am the one who showed up at the Fulton County Election office on such and such day.
I took this document into.
My hands, or I copied it from a computer or whatever it was. I put my initials on it. I put it in an evidence bag. I labeled the drive whatever it is, so that that chain of custody can be retrieved at trial. It makes me wonder whether they're obtaining this evidence not so much for any future criminal case, but for some other purpose.
I don't know what that purpose would be.
It seems to be in line with the Justice Department suing twenty four states to try to get not only names and addresses, but voter birth dates and drivers license information and partial social Security numbers. And I've been wondering what they need or want all this information for.
Yeah, there's been some speculation. You know, I don't think we know.
I don't think the Trump administration has said so, but some of the speculation is one to undermine public confidence in the twenty twenty City midterms.
Two to identify.
People who are not valid voters. You know, they're dead or they're non citizens. Fine, I mean people shouldn't be voting if they are not eligible to vote. But also to obtain private data to conduct influence campaigns. We know in twenty sixteen Steve Bannon found at Cambridge Analytica and started doing some of this analytical work. You know, in the same way Netflix will suggest to you a show you might like, and they're pretty good, right.
They are based.
On what you've watched before, what you've liked before. They can suggest things or you know, when you are on Google and other things, the ads that pop up are based on some of your prior searches. In the same way, what Steve Bannon's group researched and learned is that if they can learn certain information about you, then they can
send you targeted ads that can have nudging effects. So, for example, if that we know that this person is a gun owner and cares deeply about gun rights, we can send them targeted ads all about how a particular candidate supports gun rates or their opponent wants to take away your guns. If a person cares deeply about immigration issues, they can send you targeted ads on that topic. So it can be a real treasure trove to have all of this information for election purposes. And voter information has
always been safeguarded and considered a voter's private information. And I don't know that that's information that we want to be sharing with political campaigns.
I think the answer from most of us is that we don't want that to be shared. We'll talk more about that coming up. And also Democrats are sounding the alarm that Tulsey Gabbard, the Director of National Intelligence, was at this FBI raid. Democratic Senator Mark Warner, the vice chair of the Senate Intel Committee, says Gabbard has no place in this investigation.
To see her skulking around in a baseball cap the picture that was posted. You never thought you could make this stuff up.
That's coming up next. I'm June Grosso and you're listening to Bloomberg. Is the recent FBI raid of a Georgia county election office a precursor to battles ahead as the Trump administration steps up efforts to obtain sensitive voter information from states. Fulton County is suing to get the FBI to return the seven hundred boxes of ballots, voter rolls, and other election records, with County Chairman Rob Pitts questioning why the records were taken.
We were given no notice whatsoever. They showed up and took the seven hundred boxes that they wanted. So what they're doing with them now, we don't know. Typically we're given copies. We don't even have copies of what they took. So it's a problem. What are they doing with Where are they? Who hasn't?
Lots of questions and not many answers, and Democrats in Congress are questioning why Tulci Gabbert, the Director of National Intelligence, was at the Fulton County search last week. Senator Mark Warner raised concerns about her presence because the search was a law enforcement action.
What the heck is she doing on the FBI serving a domestic warranty? If this doesn't concern the heck out of every American, it sures, how should.
Gabert also facilitated a phone call between those FBI agents and President Trump after the search warrant was executed, and Warner is calling on her to testify in person before the Senate Intelligence Committee.
To see her skulking around in a baseball cap the picture that was posted. You never thought you could make this stuff up.
I've been talking to Barbara McQuay, a professor at the University of Michigan Law School. Barbara adding to the oddity of the search was the appearance of the Director of National intelligen Gents, Tulsa Gabbard, who later said that President Trump directed her to be at the search and then afterwards President Trump spoke to the agents on the phone on speak of.
All of this highly irregular and bizarre.
So there are two reasons it's bizarre to me that Tulsi Gabbard was there. Number One, a person at her level, the Director of National Intelligence, like just should have better things to do, right, They have trained agents for this work. You would not expect the Attorney General to be there. You would not expect the head of the FBI to be there. Right, These are this is in the trenches kind of work that agents are trained to do and
do every day. So the idea that she's there, and she's there like you know, in a ball cap and everything, like what is she rolling up her sleeves and grabbing evidence.
I don't think so.
So just bizarre that she's physically present at the scene, first of all. Second of all, this really feels like something way beyond her remit. Her job is to court nate intelligence collection among the eighteen intelligence agencies in the federal government, and then to report to the President about the results of those findings, to answer any questions he may have to advise him about threats to the national security.
These are threats coming from foreign.
Actors, So that suggests that there is some foreign nexus to this search.
I can't imagine what that would be. It kind of goes back to some of those conspiracy theories. Remember when Sidney Powell was saying things like dominion falsely, I'll add dominion voting machines were programmed by Hugo Chavez in Venezuela, like what. And then remember there was some tie to Italy that caused William Barr to actually travel there with John Durham when they were investigating the origins of the Russian investigation. They never found anything there.
The Inspector General never found anything relating to these things. It seems like it was all just wild, crazy stuff that was manufactured. But here we are again with some suggestion that there's some foreign nexus to all of this. I don't know what it is, but if there's not any foreign nexus, highly improper for Tulsa Gabbert to be there. But if she's there, it does raise this specter of is there some foreign nexus to this?
And I just can't imagine where this is going. But brace yourself, June.
Well, what I was going to say is, you know, people might say, well, let them investigate. If there's nothing there, then no harm, no foul, But you don't know if there could be you know, manufactured crimes or as you said, the risks of undermining the midterm elections. I mean, there's so much that could happen. You know, it's unsettling, to say the least.
It really is.
And I think one of the great harms of this administration is because of some of the acts they've engaged in, you know, just like misleading us about what happened on the ground in Minneapolis with these shooting when we can see with our.
Own eyes that is not what they say.
I think that some courts have said they've lost the presumption of regularity that our federal government has always enjoyed that we trust that when they say they're going to do something, that's what they're doing, and that we have to sort of, you know, trust and wait and see what happens. But I think the track record of this administration has made us all very skeptical, and I worry that that kind of skepticism will continue even after this administration ends.
Thanks so much, Barbara, it's always a pleasure having you on. That's Professor Barbara McQuaid of the University of Michigan Law School. Arguments at the Ninth Circuit Court of Appeals could determine whether state legislatures can bring lawsuits over the objections of
the state's governor and attorney general. The Ninth Circuit held oral arguments in a case where Republican lawmakers in Arizona sidestep the Democratic state governor and attorney general in challenging the Footsteps National Monument created by former President Joe Biden
on federal land in twenty twenty three. The monument designation will help preserve fifteen hundred square miles and turned a decades long vision for Native American tribes and environmentalists into a reality, but Republican lawmakers and the uranium mining industry that operates in the area had opposed the designation. The appeals court will decide whether state lawmakers have standing to challenge the White House's use of the Antiquities Act to
create national monuments. My guest is an expert in environmental law, Dave Owen, a professor at the University of California College of Law in San Francisco. There were oral arguments in this case before the Ninth Circuit on Tuesday. Tell us about the underlying case.
The underlying lawsuit is about the designation by President Biden of the Ancient Footsteps National Monument in Arizona, and the plaintiffs are claiming that this designation was unlawful because basically it's too broad.
To get the side straight, it's the Republican controlled Arizona legislature that filed the lawsuit challenging the monument, but the state's governor, a Democrat, and the state's Attorney general, another Democrat, opposed the lawsuit.
Yes, that's exactly right. There's a group of plaintiffs, including the state legislature and the state itself, as represented by the Attorney General's office, has intervened on the side of the defendants on the side of the federal government.
President Trump has not been supportive of national monuments, shall we put it that way? So is it a surprise that the Trump administration is lining up here with the democratic governor and attorney general.
I would say at this stage of the litigation, it is not surprising. At this stage of the litigation, the question at issue is whether the plaintiffs have standing to suit, and the federal government almost always is arguing for more restrictive standing for lawsuits against the federal government, and so it has an institutional interest that cuts across administrations at limiting its own ability to be sued. And since that's all that's at stake right now, no, I think it
makes sense. It's not surprising that the federal government is aligned.
A federal judge dismissed the lawsuit. Why did he or she dismiss it?
So the reason is a legal doctrine called standing just means that the plaintiffs have to have a direct personal stake in the lawsuit. They have to be threatened with some sort of injury, and it has to be both plausible and not too speculative, and then the court has to be able to fix the problem by ordering the defendants to do something differently. And so what the court said is that the legislature does not have standing because it is not authorized to claim injury on behalf of
the state. Instead, it can only sue to defend some sort of injury to its ability to function as a legislature, and there's no such injury here. And then the other plaintiffs, who are local governments and private entities, the court said that their claims of injury were very speculative and therefore did not provide a basis for the lawsuit to go forward.
During the oral arguments before the Ninth Circuit, the Deputy Solicitor General said, the Attorney General represents the state here in federal court, not the legislature, not the treasurer. I mean that seems like a basic concept to me. It's the attorney General who represents the state, it is, basically.
I mean, I think that's why the legislature lost on that ground the first time through, That's why it will lose again on those grounds on appl You know, it's hard to predict the outcomes of cases sometimes, but I don't think this particular issue, the outcome is at all difficult to predict.
So what did the legislature argue at the Ninth Circuit to try to show the head standing.
Well, the first thing to note is that the legislature's argument for standing was hardly mentioned by the plaintiff's attorneys or the oral argument yesterday, which I think is a pretty strong tell that the plaintiff's attorney knows that this is not a winning argument. Instead, the planiff's attorneys chose to focus on claims of injury by local governments that think their ability to get revenue related to uranium mining by other third parties will be limited if the monument
designation stands. But the legislature's argument in the past has been that the fact that this monument is designated means the legislature is going to have to worry about some other related legislate and kind of keep track of this issue, and therefore that's going to affect its ability to function
as a legislature. And of course, you know, you can make that argument about anything the federal government does in a state, and that's I think partly why that argument didn't go anywhere with the court.
This is all about uranium in the future.
Yeah, the basic argument the local governments. I mean, I think part of this is just ideological. The federal government comes in and takes lands in a rural area. They're all federal lands, So this is not the federal government grabbing lands from anybody else, but it is taking lands in a rural and conservative area with an economy that has traditionally been fund somewhat focused on resource extraction and saying these lands aren't going to be available for resource
extraction anymore, and so that gets people upset. So that's the general reaction. It has a lot to do with just general hostility to the federal government. But the more specific argument was that the promising mineral that exists on these lands is you're uranium, and maybe uranium prices will rise and demand will increase, and then mining companies will come in and that will lead to indirectly to revenue for the local government, and the loss of that revenue therefore is their claimed injury.
Along those lines, Judge Michelle Friedland, a Barack Obama appointee, said, how does anyone know whether it would make sense to open up new uranium minds six years from now? Explain what the judge was getting at there?
The basic theory of the plaintiff's have of standing is grounded in the idea that a law that changes market conditions to somebody's detriment can be challenging, and that the person who is detrimentally hurt by that law can have standing to challenge it. In other words, that you don't you don't necessarily need to say the governmental whoever else the defendant was, directly took money out of my pocketbook.
You can say this regular is going to change market conditions in a way that hurts me, and therefore I have the ability to sue, and stated generically the way I've just stated it, that's an argument nobody would disagree with, at least that it's valid. Sometimes the question in this case is whether it's just too speculative for this particular action to be changing market conditions in a way that
would actually impact the plaintiffs. If you start getting a very long chain of causation with a lot of very uncertain links, then at some point the courts will say this is just speculation, and really this case is not
about arms to your market. Position is about you just don't like what the government did, and you just have generic hostility to it, and so here again, what Friedland is getting that with that question is are we dealing with a situation here where the harm that you are claiming, which is harm to your local government finance, is based on the assumption that someday in the future uranium mining is going to pick up again and do so in
ways that bring revenue to you. Are you just completely speculating there?
Did it seem to you like all three judges were skeptical about the plaintiffs having standing.
You, I wouldn't say all three count she seemed less skeptical, Although if I'm an attorney trying to read the tea leaves of oral argument, which is always a dangerous thing to do, I did not hear her tip her hand either way. She was asking the questions one might ask if you're trying to throw softballs, or if you are trying to see if there's anything to the plaintiff's argument.
You know, if you're basically saying, I don't think you have anything here, but I'm going to ask you the most empathetic questions I can, just to see if you could come up with something compelling. So it's hard to know what the motivation behind those questions was but she did not seem as thoroughly skeptical as the other two judges did.
But you think that the legislature is going to lose here.
I think if the plaintiffs win on this appeal, which is just about allowing the case to go forward, it would be based on injuries to the local governments in the area. I do not think anybody even seemed interested in the legislature's claims to have standing.
If the legislature loses and this goes to the Supreme Court, Chief Justice Roberts has said he's skeptical about the use of the Antiquities Act. So do the plaintiffs have an advantage at the Supreme Court?
So let's separate it out into if this particular decision that's an issue right now, if there's an appeal on that, and then the broader question of if the case continues forward and goes to the merits, whether there might be a Supreme Court problem. So, first off, I don't think the United States Supreme Court is going to be at all interested in the legislature's theory of standing here. I think it's going to look at that and say, no, states get to define who speaks for them in court.
We're not going to mess with that. I also think in general, the Supreme Court is going to be somewhat skeptical of the plaintiffs general theory of standing, just because of the speculative nature of it. And even if the Supreme Court might sympathize with the merits of the plaintiffs' claims here, I don't think you are going to have five justices or four on the Court who are interested in expanding standing for potentially speculative harms and taking up
a case just for that basis. So I think probably this case gets dismissed on standing grounds, and a certain petition, if one is filed, is not accepted. I think that is the most likely outcome. But your other question was, well, what about you know, maybe it's not this monument, Maybe it's another monument. The Court has shown some or Chief Justice Roberts, but I don't think it's just him, has shown hints of interest in claims that monument designations are
overly brought. Now it's hard to know what to make of those because broad monument designations have been with us as a nation for over a century. This is not a new practice. It's been around for a very very long time. Most of those broad monuments in hindsight or designations that people have been very glad about. At least a majority of the American public has been very very glad about, and a majority of the states in which
they are located have been glad about. And so you know, there's a bunch of reasons why the Supreme Court might think this is not an issue that's really important enough to be worth our time or that we feel strongly enough, But it's hard to know, and it's all speculation.
There.
Recent Democratic presidents, I'm thinking former presidents Biden, Obama, and Clinton have expanded national monuments. Why is it that the Republican seemed to be not in favor of national monuments generally and the Democrats seemed to be in favor well.
Correction there by geographic area. The largest national monument designation ever a huge margin, was from George W. Bush Oh and it was the Hawaiian Islands Northwest Hawaiian Islands National Monument. So it's an incredibly remote area, but it's enormous. And so it's not always the case that monument designations are a democratic presidential thing. And there was some controversy that was not like an easy nobody cares. You know, I can win without making any mean, there were fishing interests
that were upset about that designation. But you are right with the general Trent that designating monuments is much more a thing that democratic presidents do, and I think the reasons are fairly straightforward. The people who oppose these designations are typically people in very rural parts of the West, and then extractive industries that are not voting for Democrats or contributing money to Democrats no matter what. So the people who are offended by these actions, there's no political
loss on the Democratic side, and they're widely popular. I mean, even like Utah is kind of a funny example. Utah aggressively markets its national monuments in its tourism materials well. At the same time, the Utah political establishment is like
almost duty bound to complain about them constantly. And so I think the more interesting question, honestly on the political side is why the Republicans are so opposed When monuments tend to be popular, they tend to be good for business development, and I think the basic reason is that there's sort of a core and entrenched part of the Republican Party that cares very deeply about these issues, and it sees them as symbolically important to broader questions about
the role of the federal government in the world West, and it really demands that the Republican political establishment get upset, at least in the West, get upset about monuments. You know, I would guess that a lot of those representatives and senators, if you gave them truth serum, would say, yeah, actually, these designations have been great for our state key constituencies that hate them. And so I've got to oppose.
Can a later president alter a national monument that a prior president has put in place?
And there's two schools of thought on that question. One school of thought is that because the governing statutes speak very specifically about designating monuments and say absolutely nothing about shrinking them, that that silence implies that there is not an ability for a later president to reduce a monument. On the other side, people have argued that the power to designate inherently also conveys the power to reduce. I
think that second argument is a little strange. I mean, usually we don't convey broad sweeping powers presidents through statutory silences. But that's the argument that others have made, and that question has not been tested by the Supreme Court. That would most likely be the case that eventually might come up to the Supreme Court. It'll either be a designation case where the question is was this designation too broad in the first place? Or it will be a monument
shrinking case. But because we've had for your flip flops, designation shrinking cases haven't yet been around long enough to make it to the Supreme Court.
I always find the subject of national monuments so interesting, So thanks so much for joining me today. That's Professor Dave Owen of the UC College of the Law, San Francisco. 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 bloom com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg