This is Bloomberg Law with June Grossel from Bloomberg Radio.
As I said all along, this case should have never been brought and I did nothing wrong. I'm not happy that our city can finally close the book on this and focus solely on the future of our great city.
New York City Mayor Eric Adams is free and clear. A federal judge has dismissed the corruption case against him, putting a permanent end to the case and the extraordinary series of events that caused discord within the Justice Department. Judge Dale Hoose said he wasn't commenting on the merits of the case against Adams, but that courts can't force prosecutors to move forward on a case. It was a
mixed decision for the Justice Department. It got the dismissal of the charges it requested, but the judge dismissed them with prejudice, meaning they can't be brought again. And the judge slam the Justice Department many times in his opinion quote everything here smacks of a bargain dismissal of the indictment in exchange for immigration policy concessions. My guest is former federal prosecutor Robert Mintz, a partner Maccarter and English.
So the judge had basically no choice but to drop this case, but he didn't do it in the way the Justice Department had wanted him to.
Heeding the advice of the Court appointed Council Paul Clement, the former Solicitor General, the judge decided to dismiss the case with prejudice, as opposed to without prejudice, as had been originally requested by the Department of Justice, because the judge found that dismissing the case without prejudice would essentially leave Mayor Adams under the specter of reindictment at essentially any time and for any reason, and by doing that,
it would create the unavoidable perception that the Mayor's freedom depended on his ability to carry out the immigration and forcing priorities of the administration, and that he might be more beholding to the demands of the federal government than to the wishes of his own constituents.
The judge slammed the reasons the government gave for dropping the charges, calling it unprecedented and breathtaking in its sweep.
So this was a.
Quite extraordinary seventy eight page opinion that the judge issued here on what was a relatively straightforward motion to dismiss the criminal case. But this case was really not like any other that any judge had dealt with before. Given the reasons that the Department of Justice had given for the dismissal, what the judge did here was to go through them one by one and basically refute the reasons
that the government gave for the dismissal. The government, for example, first argued that the prosecution had been painted by appearance of impropriety. The judge found that that was unsupported by any objective evidence, and really stood up for this Southern District US Attorney's office here by making a finding in this opinion that the prosecutors who worked on the case
followed all appropriate Justice Department guidelines. He even went so far as to say there is no evidence zero that they had any improper motives, and so in that respect he did not agree with that basis for the dismissal.
He also took issue with the dog's assertion that the case, which had been brought nine months before the twenty twenty five New York City mayoral primary election, was somehow amounting to election interference He said that that lacked any support in Justice Department guidelines or past practice, and that the timing of the case, he said, was entirely consistent with
prior public corruption prosecution. And then finally, he turned into what was clearly the most controversial basis for the dismissal of this criminal and day, which was that the indictment itself was interfering with the mayor's ability to assist with
immigration enforcement. In other words, the Department of Justice was arguing that, by virtue of the mayor's position as the mayor of New York, someone who the administration was looking to gain assistance and carrying out their immigration enforcement priorities, that this criminal case was interfering with that ability. The
judge said that that was simply not true. He noted that after the DOJ had made the decision to seek dismissal of the case, the mayor announced that he would permit immigration and Customs enforcement to operate on Rikers Island, a decision that he said appears to be contrary to New York law. And so essentially what the court found here was the record did not show that this case
impaired the mayor's ability in his immigration enforcement efforts. Quite the contrary, The judge said, it showed that after the DOJ decided to seek dismissal of the case, took at least one new immigration related action consistent with the preferences of the new administration. And then the judge wrote something that I think was the most scathing comment in this
entire opinion. The judge wrote, everything here smacks of a bargain dismissal of the indictment in exchange for immigration policy concessions.
I mean, basically, he admitted that he had no choice but to drop the case. I guess unless he would want to appoint a special prosecutor to prosecute it going forward. That seems unwieldy.
So, you know, having made all these findings, where the judge really challenged the basis for the DOJ's request to dismiss this case, he characterized the Department of Justice's positions as both unprecedented and breasttaking. He said, the DOJ site no examples, and the court is unable to find any where the government had dismissed charges against an elected official because doing so would enable that elected official to facilitate
federal policy goals. He said that the dog's position that was argued by the acting Deputy Attorney General Ema beauvet in seeking the dismissal of this case would essentially amount to a quote virtually unreviewable, close quote license to dismiss charges on this basis. He said that it would basically imply that public officials may receive special dispensation if they are compliant with the incumbent administration's policy priorities. And he found that very troubling, very troubling.
But that's what happened. I mean, Eric Adams is getting off scott free from these charges, never has to face them again because he's the mayor of New York who agreed to cooperate with the Trump administration. That's what this case is about.
And I think what we see here is that the judge agreed with many of the submissions to the court Friend of the Court briefs as they're called, where a different outside party had urged the judge to deny this motion altogether, to not grant the government's motion to dismiss the law case on the basis that the reasons offered
by the government were improper and unprecedented. But ultimately the judge decided that his hands were essentially tie here, and while he did sympathize with those who suggested that the case should go forward, he ultimately decided that the court has no ability to move a case forward where prosecutors
simply refuse to continue to bring the case. He noted that there are examples where an individual prosecutor who might be seeking to dismiss the case for improper reasons could be replaced and somebody else then steps in to prosecute the case, but he noted that in this case, where it was the Department of Justice itself that was seeking
the dismissal, he really had no choice. He noted that the court cannot force the Department's Justice to prosecute a defendant, and that the court's role in a criminal case is to preside over the matter, not to decide whether the
defendant should be prosecuted. The court also addressed an issue that had been braced by some of the outside parties who urged that he not dismissed the case, to say that a special prosecutor, an independent prosecutor outside of the Department of Justice, could be appointed to prosecute this case, but he found no basis to do that. Outside of
the limited context of criminal contempt. So essentially, although the judge did not agree with the bases that the Department's Justice was arguing in dismissal his case, he found that he had no choice but to dismiss the case, but he wanted to do it with prejudice so that it would at least avoid the appearance that the government was hanging this case over Mayor Adam's head in order to enforce his continued cooperation with their immigration policy, and.
Perhaps because Mayor Adams and his defense attorney often interpret the different decisions in this case as proving his innocence. The judge said he wasn't making any decision about whether Adams is innocent or guilty.
That's absolutely right, and the Court went to great lengths to make very clear that this was not a decision on the merit. The court said it was not deciding whether the Mayor was innocent or guilty. Obviously, Mayor Adams, like any other criminal defendant, is presumed innocent until proven guilty.
But the Court wanted to make clear that the Department of Justice's decision to abandon this case will mean that that question is never answered, and that the Court is in no way pining on the strength of the criminal case or the wisdom of bringing it or dismissing it.
I've been reading that this recognizes the president's power to determine the fate of prosecutions. But is there anything really new here in that regard except there was a fight not to drop the charges. But the executive branch has always had the ability to drop charges, right.
I mean, that's really an excellent point here, because to many people this looks as if this is some new power that the executive is wielding here that they've never had before, that the Department of Justice can now dismiss the criminal case for virtually any reason at all. But the reality is that has always been the case. We've just never seen the Department of Justice go on the records and state that the basis for dismissing a case is to allow an elected official to carry out a
policy priority for the administration. But the reality is that courts cannot force prosecutors to continue to prostitute cases. The role, as the judge said here, of the court is simply to hear those cases and to rule over the trial, but not to make decisions about which cases to bring and which cases to.
Dismiss and Judge Hoe's ruling was basically in line with the recommendations of the court appointed legal expert Paul Clement.
Yes, so what happened in this case is to cause both the defense and the government were aligned in their position that the case should be dismissed. The judge wanted somebody to put on the record the arguments either for or against the dismissal, and so he sought out the court of pointed assistance of Paul Clement, who had been the US Solicitor General and who was a well regarded conservative lawyer, to take a look at this issue and
to advise the Court on what to do here. And ultimately Paul Clement recommended to the Court that the case be dismissed with prejudice to avoid that appearance that the government continued to hold the sword of Damocles, so to speak over the mayor if he did not carry out the administration's policy objectives. But at the same time, Paul Clement noted that all roads here lead to dismissal with prejudice, and that was really the only option for the court under these circumstances.
So for once we can really say case closed. Thanks so much, Bob. That's Robert Mints of maccarter and English coming up next on the Bloomberg Law Show. The most expensive judicial race in history and what it tells us I'm June Gross when you're listening to Bloomberg.
All right, Wisconsin, we did it.
It's the most expensive judicial race in our history. And in Wisconsin, Democratic backed judge Susan Crawford defeated a challenger endorsed by President Trump and billionaire Elon Musk in the state Supreme Court election. The win cements a liberal majority on the state's top court for at least three more years, and Crawford touted her victory as a win against powerful interests.
Wisconsin's stood up and said loudly that justice does not have a price. Our courts are not for sale.
Musk and groups he backed had spent more than twenty one million dollars in an effort to defeat Crawford. He even traveled to Wisconsin two days before the election to personally hand over one million dollar checks to two voters. Crawford defeated Republican backed Brad Schimmel in a race that broke record. It's for spending was the highest turnout Wisconsin Supreme Court election ever and became a proxy fight for the nation's political battles and voters feelings about the new administration.
Joining me is elections law expert Richard Brefaldt, a professor at Columbia Law School. This Wisconsin Supreme Court race is officially non part is in, but it seemed nothing but part is in from early on.
Well, even a non partisan simply means that there's no partisan line on the ballot. Obviously, parties are free to make endorsements of candidates and even to designate that this is the party's preferred candidates. In effect, nominate candidates just that the party line doesn't appear on the ballot. This is pretty common in many non partisan elections. What nonpartisans means is simply there's no partisan affiliation on the ballot.
There's nothing that could stop parties from nominating candidates from making endorsements. Indeed, they have that constitutional right.
This is officially the most money spent for judicial election, right over one hundred million dollars. Why is this race so important to both Democrats and Republicans.
Well, I think it was important in two ways. One is the more the narrow Wisconsin on significance, which is not to be too light about it. The Wisconsin Supreme Court, which is a right now a narrow four to three majority of liberals versus conservatives, which was established two years ago when a liberal judge won and thereby flipping the control of the court from four to three conservatives. They have a number of important issues in front of One
of them is abortion. With the Dabbs decision, tw one hundred and seventy year old Wisconsin law banning abortions could potentially come back on the books, so the status of abortion in Wisconsin is up for grabs. There are some issues dealing with the recognition of public employ unions, and there's potentially a lawsuit challenging the districting of Wisconsin's congressional
delegation as a gerrymanderin violation of the state constitution. Wisconsin is a pre evenly divided state, but the congressional delegation is six Republicans the two Democrats. So all these things meant that the stakes were pretty high in Wisconsin. And then of course you throw in the fact that this was really the first you could call it the first by election, the first significant statewide by election since Trump's election, and it became very quickly on a kind of a
little early referendum on Trump and especially on Musk. Since Musk threw himself into this election very personally, very dramatically, himself committing tens of millions of dollars and personally campaigning for the Republican candidate. It became very much a referendum on trumpet especially on Musk's role I think in the Trump administration. And so it really became a focus of
nationwide spending. Money coming from all over the country, I should say, rather, and supporters coming from all over the country. And Trump also made an endorsement, and some prominent Democrats came and campaigned for the Democratic judge.
Yeah, I mean, I think more people know about this race because of Musk's involvement than anything else. He's the same playbook that he used in twenty twenty four, you know, the pouring of millions of dollars bought paid canvassers, broadcast ads, and he gave away a handful of checks in the amount of one million dollars to voters who signed a petition circulated by his super Political Action Committee. They tried to fight that the Democrats, but the state Supreme Court didn't take the case.
Is that legal, Well, what he has figured it out is you can sidestep the state laws that prohibit paying people for voting, which most states have laws something like that. It would be illegal to pay somebody to vote or pay somebody because they voted. So what he did both in the presidential election last year in Pennsylvania and here is to sidestep that and say I'm paying you to sign a petition. I think in both cases, or at least in this one, was a petition opposing activist judges.
I think it was originally offering small amounts for that, and they're offering very big amounts for people who would become, in his words, spokesman for his campaign against activist judges. So I think the two people received a million dollar checks were selected as spokesman. And although initially he said you're not eligible for this, you're not eligible for some other things he was giving away unless you could show that you voted, was a way of given an incentive
to people to vote early. When it was pointed out that that was probably illegal, immediately dropped the voting requirement and says it's open to everybody, or raping opatol registered voters. All you've got to do is sign a petition. And by moving away from voting to signing a petition, he was able to sidestep the prohibition on vote buying now established as a technique. And I think here or arthurs will get away with that.
I mean, voter turnout was over fifty two percent, and the record in twenty twenty three was forty percent. So I don't know if it was driven by Musk or driven by the fact that the tilt of the state Supreme Court was dependent on this election.
Or the two together. I mean, I think must clearly. I mean, I think Musk went into sort of I love the Republican vote, and at the same time and so doing, he also drove up the Democratic vote. I think it just shows what, you know, what a polarizing figure he is. He probably increased the vote on both sides if we look.
At this as an indicator of how Trump is doing or the reaction to Musk. Yet, in Florida, Republicans safely held onto their seats, winning about fifty seven percent of the votes in both districts, although it's down from the two thirds that the Republican candidates won in the last elections. Does that show that these elections really aren't sort of a referendum on the Trump administration so far?
It's hard to say. I mean, I think, right, it's glasses half empty, glasses half full. Republicans won both of those seats, but those were heavily Republican seats, and I think not only did Trump win those districts by like over seventy percent, but the Republicans they replaced Matt Gates and the current National Security devisor also I think won
like seventy percent of the vote. And so I mean it's true, going from you know, fifty six to fifty seven percent, which I think is what the two Republicans got, that's a pretty big victory. It's like it is a fourteen to fifteen point margin, but it was thirty points in prior. So these are districts that would be almost
impossible for Democrats to take. They did better. So I think, you know, in the latest round of there are a couple of special elections for state legislature in Pennsylvania and Iowa, and Democrats have done better than they were doing before.
Is it?
And off with as it tell us. It's hard to say. I think in some ways the biggest takeaway, the biggest Democratic victory was the one in Wisconsin, and that was about Musk. And it may be telling us that whereas Trump still I think is numbers are still just above water.
The DOGE part may not be that popular. Trump was, you know, elected on a bunch of issues involving immigration and inflation, and you know those may be popular, but you know, the widespread kind of unreasoned, extensive cuts, you know, firing large numbers of federal employees, slashing agents, that may
not be that popular. And you know, this may be a way in some ways of giving a split verdict and saying, you know, we still want Republicans in charge the people of voters, and floyerd to say, but we don't want Musk in charge. And that's what the voters in Wisconsin said.
Political has reported that Trump told his inner circle that Musk will leave soon.
He's gone back and forth on that. I mean in theory, and in theory, Musk is what called a special government employee in SGE, which basically is a term use for people who are from the private sector who come into government and work for no more than one hundred and thirty days as a result of which they are subject to some restrictions that apply to government employees but not to all of them, so they can maintain their outside jobs,
among other things. And the assumption that Musk is working full time around the clock, as he says, one hundred and thirty days, will you know, expire some time in May. Now, there's not much enforcement that would happen if he kept remaining in his current position, but that does suggest that
that might provide a hook for reducing his role. There's also nothing to prevent them from reappointing him as an SG Again, I mean, it would require somebody to enforce this, and it's not clear that anybody in the government is interested in enforcing that rule. But that is the rule.
A lot of rules are not being followed, so we will see what happens. Thanks so much, rich that's Professor Richard Rafault of Columbia Law School. I'm June Grosso. When you're listening to Bloomberg. The Supreme Court appeared divided today in oral arguments over whether state should be able to cut off medicaid funding to plan parenthood. The arguments come amid a wider push from abortion opponents to defund the
nation's largest abortion provider. The court is considering a legal question that could have wider effects, whether Medicaid patients can continue to sue over the right to choose their own qualified provider. Joining me is an expert in reproductive rights, Marry Ziegler, a professor at UC Davis Law School. The case is not technically about abortion, but it involves Planned Parenthood, the nation's biggest abortion provider, and it's drawing a lot
of attention, even demonstrations outside the courthouse. I mean, what's the issue that's strong people?
Well, I think that people understand that this case could have a major impact on Planned Parenthood and on certainly access to abortion and access to other reproductive health services. So, even though this is not a case about abortion, it will have impacts on abortion and on reproductive healthcare. And that's because South Carolina is trying to basically keep Planned Parenthood out of its Medicaid program, and that would have downstream consequences for Planned Parenthood and for patients.
The South Carolina governor cut off Medicaid funding for Planned Parenthood because it provides abortion services, saying it was like taxpayer funding for abortion. The issue, though, is a technical question about statutory interpretation.
That's correct, right. So the issue in the case is about the Medicaid Statute, a particular part of it called the choice of provider provision, which says that Medicaid beneficiaries have a right to choose their own medical provider. So the court is considering whether that language actually gives patients a right to go to federal court when they're denied that choice of provider, or whether Congress wasn't clear enough about that right existing in the federal law.
And so tell me what the basic argument of planned parenthood and what the argument of South Carolina is.
Well.
South Carolina has said, essentially that the words that Congress used were not right, conferring enough right. They didn't use the magic word like right or privilege or entitlement, and Plan Karnhood is arguing that Congress shouldn't have to do that, and that under the court's precedence, Congress was plenty clear enough that there was in fact a right in federal court.
So the question really is about how clear Congress was number one, and number two, how clear Congress needs to be in this context and more generally when doing rights conferral.
So it seemed that the three liberal justices at least suggested that Congress had clearly established an obligation on the States to allow patients to see any qualified provider and to go to court to vindicate that. Justice Kagan said that blocking them from suing would be a real change. This is kind of changing the rules mid stream, Isn't it Tell me what she means by that?
Well, I think what Justice Kagan was saying was that for a long time, most of the circuit courts had assumed that a right to sue existed as far as the choice of provider provision was concerned, and that this would be essentially telling those beneficiaries that's no longer the case, telling Congress that the rules for creating a right to sue are different, right, which would have potential impacts not just in the medicaid context, not just in the abortion context,
but well beyond it. And so Justice Kagan was essentially saying what had always been good enough or clear enough before should be good enough or clear enough now.
The sort of justice in the middle, the Chief Justice John Roberts and just Amy Cony Barrett did ask some questions that seemed to express concerns that people on Medicaid wouldn't have any real way to challenge a state's decision to nix their preferred healthcare provider.
Yeah, I think that's exactly right. I think that South Carolina had emphasized that they were sort of administrative procedures by which someone could challenge a denial of provider. But both the Chief Justice Justice Spirit didn't seem entirely convinced that that would give beneficiaries a remedy. And then you know,
the question is, well, so what. But I think both the Chief Justice and Justice Spirit recognized the Congress clearly wanted to give beneficiaries a right to choose their own provider. That's unambiguous in the statute. And if you have a right with no way to enforce it, then aren't you kind of subverting congresses intent? I think that's what the Chief Justice and Justice Spirit were asking.
Where do you think the more conservative justices were?
Well, I think you saw the more conservative justices essentially saying, you know, clearly there's a disagreement within the circuit courts about this, and that just means that we the court haven't been clear enough so we need to provide a new test, a narrower test, right to make a parent what Congress needs to say, And they were willing, I think, in that process to potentially make it much harder to bring private rights of action, you know, in a bunch of settings, not just in this one.
So I mean, do you think that there are five votes in favor of Planned Parenthood and the right to sue?
There might be. I mean, I think there's definitely possibility that Justice Barrett and Chief Justice Roberts will go that way.
There were some interesting moments where Justice Barrett also telegraphed that there were other questions that might keep Planned Parenthood from receiving Medicaid anyway, In particular, the question of whether Planned Parenthood is a qualified provider right this case was about whether you have a right to sue if you're right to pick a qualified provider willing to participate in
the medicaid program is denied. But that doesn't answer the question about whether South Carolina can just declare that Planned Parenthood isn't a qualified Medicaid provider, And Justice spirit suggested that she, you know, hadn't necessarily made up her mind on that point. The kind of whether qualified question, So we may see more litigation anyway.
Could they decide not to decide or to send back for different questions.
Yeah, I mean, I think this case is about the narrow issue of whether or not this language of the choice of provider provision creates a right to sue in federal court or not. But there could be separate litigation about whether planned parenthood is qualified. This case does not involve that question, but another one could.
So.
Isn't there a twenty twenty three ruling involving the rights of nursing home residents where the Supreme Court said that laws like Medicaid give individuals the right to sue.
Yeah.
Yeah, So there was a twenty twenty three ruling from the Supreme Court that you know, laid out a framework for determining when you have a right to sue. It was about a different part of the Medicaid statute, but it was about a right to sue under a part of the Medicaid statute. So I think again, some of the justices were simply saying, well, we've already answered this question.
We were clear enough. We don't need to rewrite the test in narrow rights to sue, even further or create an even higher bar for Congress to clear when it wants to suggest that there is in fact a right to sue, and some of the justices, like Justice Kavanaugh, at various points said the fact that this case exists, the fact that their disagreements within the circuit courts, suggests that the Court should tweak that twenty twenty three rulings further.
There seems to be a real divide in the views of the people who heard the oral arguments about which side the justices were leaning in.
Yeah, I didn't get a clear reading on it either. I think that if you're trying to place bets, if people are that not in accord on what the justices are doing, it's safe to assume that we don't know what the justices are doing, so that there's more uncertainty going in in terms of whether this decision goes the way of planned parenthood or not. I mean, I think ultimately, whatever happens, the effort to defund planned parenthood is going
to continue. The other thing that's probably worth emphasizing is that's in part because keeping planned parenthood out of some states medicaid programs will have the least significant impact on Planned Parenthood's political and advocacy work. It will have the most impact on the ability of affiliates in states like
South Carolina to provide non abortion services. So that's really what's on the line here, and there will likely be ongoing efforts to defund that kind of work regardless of what Supreme Court does here.
Three states, right, Texas, Arkansas, Missouri already block Planned Parenthood from seeing Medicaid patients.
That's correct, and we would expect to see more follow suit if the Supreme Court gives the green light.
Have there been suits over that those three states?
Yeah, I mean there have been lots of suits over time about this choice of provider provision. There have been efforts to keep Planned Parenthood out of the Medicaid program, going back at least to the two thousand oughts in twenty tens, all of them kicked off by Lilah Rose and her now famous viral videos that were heavily edited and shot at Planned Parenthood. So we've seen litigation of
this kind often on now for decades. And what was notable, of course, is the Supreme Court even took this case, right, I mean, there had not been four votes on the Court to take the case about the Medicaid choice of provider provision. To date, even though there has been fighting in the lower courts about it for some time.
Trump in his first term tried to strip funding from Planned parenthood. What's he doing in this second term.
So far, Well, we've seen different sort of ways the Trump administration is attacking this kind of funding. So obviously, just a day ago, the Trump administration announced it was withholding tens of millions of dollars from Planned parenthood clinics under the Title ten program. At the moment, the notification said the funding was being temporarily withheld on the basis of quote possible violations unquote of federal civil rights laws.
In particular, there were references to DEI programming and subsitization of open borders, nothing particularly about a work or contraception, and no sense in which these grants will necessarily be permanent. But of course, in the last Trump administration there was subsequently rule making on Title ten that led to essentially not allowing Title ten recipients to refer patients for abortion or discuss it as an option, and those rules were
later scrapped by the Biden administration. We could see more rulemaking like that from Trump in the future. But rulemaking is you know, obviously more time consuming and a slower process than what we're already seeing, which is this temporary pause.
Finally, can you sum up what the ramifications of a ruling against Planned parenthood would be.
It would not be an end to Planned Parenthood as a kind of major political player, because Planned parenthod's bylaws ensure that a lot of the money it takes in from private donations and foundations, which often tends to take in more money in the face of adverse rulings like this,
goes to Planned Parents' advocacy work. So the impact of being kicked out of Medicaid programs in some Red states and probably a growing number of Red states, would fall most heavily on local affiliates that rely on those Medicaid reimbursements and on donations to them, specifically often from local donors, so they would take the hit financially, and that would have likely an adverse impact on patients in communities that already have a lack of access to primary healthcare and
certainly to obstetric and gynecological care. Though it would be less of a blow to Planned parent as a political actor and more of a blow to patients in underserved communities.
Always a pleasure, Mary, Thanks so much. That's Professor Mary Ziegler. I've used law school. 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 podcasts. 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 weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg