Proposals to Ban Naturalized Judges & NFL's Hail Mary Pass

0:00Get the news you need in just 15 minutes. Start your day with Bloomberg Daybreak, the podcast with a global view on the stories that matter. I'm Nathan Hager. And I'm Karen Moscow. Join us each morning for curated stories on current events, politics, business and foreign relations. Plus one conversation on the day's biggest developments all in just 15 minutes. Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify or anywhere you listen. This is Bloomberg Law with June Grosso from Bloomberg Radio. A group of retired federal judges is speaking out against the latest attack on U.S.

0:44citizens who weren't born in this country. Republican Representative Pete Stauber of Minnesota has introduced legislation that requires all federal judges to be born in this country. And Representative Nancy Mace of South Carolina has introduced joint resolutions proposing a constitutional amendment to require not only judges, but also senators, representatives, and other federal officers to be natural-born U.S. citizens. Keep Our Republic's Article III Coalition, a group of retired federal judges appointed by presidents from both parties, says the proposals are contrary to the nation's constitutional tradition and that judges should be evaluated by their integrity, judgment, and fidelity to the law, not by their place of birth.

1:37Joining me is a member of the Article III Coalition, Judge Jeremy Fogel, formerly of the District Court for the Northern District of California. Judge Fogel, what do you think is the genesis of these proposals, especially the proposal for a constitutional amendment by Representative Mace? There were two decisions in cases having to do with immigration that were made by judges who were naturalized citizens. And she and various other people criticized those decisions because they were adverse to immigration policies they supported. And in the course of criticizing the decisions, they pointed out that the judges were not native-born citizens.

2:20One is Judge Sukkinen in Illinois and then Judge Talwani in Massachusetts. And the statement was, well, what do you expect? They weren't born here. They don't understand. And that's why they're ruling against these immigration policies that we support. So that was what happened. And I think the reaction on the part of our group was, you know, you can criticize decisions all you want. That's people's constitutional rights. free speech entirely appropriate, but to attack individual judges because of where they were born and what their heritage is, is really pretty, it's really out of bounds. And it happened right around the 4th of July, you know, so we have the celebration of our independence and 250 years of independence and the Constitution, which we're going to be celebrating in September.

3:12And I think it just kind of provoked a real strong reaction on our retired judges group. We just wanted to say something. You know, it's not that we have any fear that this resolution or the other one are actually going to get passed by Congress. But it was just something that was so fundamentally offensive about the statement. And so that was what prompted it. And, you know, the way our coalition works, we sometimes will just circulate statements to judges and they can join or not. This was one where we said we want to speak on behalf of the entire coalition, all 58 judges, and we just want to give everyone an opportunity to weigh in and suggest edits or to object or whatever the case may be.

3:54And I think since we've been organized and working together, which has been about a year and a half, that this may have been the easiest group statement to get signatures for. There was a real sense that this was just not okay and it was important that we speak up as retired judges about it. And I think it's also a way of supporting the judges involved. It's not expressing agreement or disagreement with their decisions, but just they don't deserve to be attacked on that basis. And, you know, when we did a little research, it's interesting that you look at the judges, the Article 3 judges who have served since the founding of the republic and were naturalized citizens.

4:32It's a pretty impressive list, and it has no relationship to political ideology. Some of the most prominent ones have been notably conservative. Some of the other ones have been prominent, have been notably liberal. And so there's no orientation that attaches to being a naturalized citizen. It's just we've had a lot of very distinguished tourists that have been. Do you think they're looking at the fact that, you know, the Constitution says the president has to be born here and they're saying, well, let's make that judges and every member of Congress, too? That actually cuts both ways, because when the founders wrote the Constitution, they certainly were thinking about that.

5:11And in 1787, they could have very easily said, well, you know, we want all of our elected and prominent officials to be native-born. And they didn't. They just said that they wanted the president to be. And we did not include judges. They did not include members of Congress. And, you know, it's not like it wasn't on their minds. And they made a decision. So I think we've lived with it for 250 years. And, you know, it's almost a cliche to say this is, you know, this is a nation of immigrants that's been built by immigrants and naturalized citizens have contributed immensely to the country in just a multitude of ways.

5:44And so I think seizing on that is probably not a good idea, because the history is that the founders had that qualification in mind and chose not to include the judiciary and members of Congress. So, you know, I don't think that these proposals are going anywhere. I just think the fact that they were even floated was something that, especially given that we're celebrating the 250th anniversary of the Declaration, you know, it's good to remember what our principles are as a country. And this one, the idea that this is a country which welcomes immigration, and this has nothing to do with controversies about legal immigration or illegal immigration or what immigration policy ought to be.

6:22We've always had people coming to our country and looking for ways to make lives here. And, you know, we have robust debates about what our laws ought to be and how easy or how hard that ought to be. But I don't think anybody can really argue that immigrants have really helped to build our country and still do. And every judge, every Article III judge has to be a citizen of the United States. That's a requirement. And nobody's questioning that. But if people go through the process to become citizens, and anybody who's been through the naturalization process knows that it's actually pretty rigorous.

6:56And you have to know more about the Constitution than people who were born here. Otherwise, you don't you don't get naturalized as a citizen. And so just to say that people with that background should not be judges, it's just something that needed to be called out. I think that was the sense of our group. So I'm wondering if it's part and parcel of what we've seen from the Trump administration, you know, with the attack on birthright citizenship and also the instruction to Justice Department lawyers to maximally pursue denaturalization proceedings. I mean, before this administration, stripping citizenship has been rare.

7:38On average, there were only 11 denaturalization cases each year from 1990 to 2017. I think you could certainly say, you know, I'm not in a position to speculate what they're thinking, but it's in line with that in the sense that, you know, I think for a long time being a naturalized citizen was a pretty respected status. And I mean, I think it still is among most people. And so the idea that you would in any way kind of try to diminish that is something new and different. And I think including judges in that is definitely new and different. I mean, I've never seen that. And as I said, I mean, there are judges on, when you go back and actually do the research as to who's in that group, I mean, there were people who were really quite supportive of the president and his policies in the administration.

8:29I mean, they have been pretty vocal in that respect, but, you know, that group includes naturalized citizens. So I think the idea that you're going to weaken that status or make it more contingent, that is certainly something that some people in the administration have been talking about. And, you know, I think you could certainly say that this is part and parcel with that. Please stay with me, Judge Fogle. Coming up next, the top lawyer at the Department of Homeland Security is publicly calling out four federal judges in a list. This is Bloomberg. As markets move and headlines break, what matters most is context.

9:03A Bloomberg subscription gives you unmatched reporting, sharp analysis, and powerful tools that help you connect the dots. Visit Bloomberg.com slash podcast offer to learn more. Last week, Justices Elena Kagan and Amy Coney Barrett testified before Congress about the increasing threats to the judiciary. Justice Kagan explained how politicians calling out judges by name and trying to intimidate them crosses a line and is dangerous. These statements are really unhelpful. They're dangerous in terms of individual justices' security, and they're not appropriate in the way to treat a coordinated branch of government.

9:50I think that Chief Justice had a year-end statement last year where he talked about this issue, and he talked about criticism is fair game. I mean, go for it. Life in the big city is that you're subject to all kinds of criticism. But intimidation is a different thing entirely. And when political figures of any stripe are trying to intimidate judges and justices to do things that they like rather than the things that they don't, that's where we really have crossed the line. Judges are facing increasing threats, with the U.S. Marshals Service tracking 564 threats against federal judges last year.

10:37But instead of toning down the rhetoric against judges, today, the top lawyer in the Department of Homeland Security, James Percival, called out four federal judges by name in posts on social media, which he described as a new series entitled, quote, Worst of the Worst, District Judge Edition. Apparently, the judges made the list because they ruled against the Trump administration's immigration agenda. For example, two of the judges ruled to temporarily preserve deportation protections for certain immigrants from Burma and Somalia while litigation continued. Another judge was in charge of the Justice Department's bungled deportation proceedings for Kilma Abrega Garcia.

11:25I've been talking to retired federal judge Jeremy Fogel. Judge Fogel, your Article 3 coalition has spoken out about the increasing threats to federal judges' safety. And last week, Justices Amy Coney Barrett and Elena Kagan were testifying before Congress about the increasing threats to justices and judges as well. Yet today we have the general counsel of the Department of Homeland Security putting out a list of four judges. He calls the worst of the worst. So doing exactly what the justices said was dangerous. That's exactly the kind of thing that we're trying to be vigilant about. I don't think anybody's really said it better than the chief justice.

12:15I mean, he's now spoken about it three or four times, and it's very unusual for him to make public statements like that. He's felt it necessary to speak out about threat. And among the statements that he's made, he's talked about it's inappropriate to engage in these kinds of attacks, to call like that, to threaten judges with impeachment or removal, that it's somehow appropriate to go after them because they've ruled against the administration in the ways that they have. The sitting judges are very limited in what they could say because of ethical standards. I think retired judges are in a unique position to say, look, we have sat in that chair.

12:49We understand what the job is. We understand what our responsibilities are in terms of following the law and doing the right things to the best of our ability. And we have a system which allows for thorough review. People make decisions that you don't like. I mean, that's why we have appellate courts. That's why we have very robust appellate review. And to make these kinds of personal characterizations and putting people on hit lists or enemies lists or impeachment lists, again, that's just not the way our system ever has been intended to work. So I don't think that's constructive. And I think that's really been one of our goals, try to educate the public to the extent that we can, that, you know, you don't like a judge's rulings.

13:32You can speak out about that. You can write op-eds. You can make public speeches. You can talk to your neighbors. You can do all the things that the First Amendment entitles you to do, but you can't threaten people. And I think Justice Barrett and Justice Kagan were very eloquent about that. And they both faced it. Justice Barrett's family has been threatened, and Justice Kagan has faced threats. And I think the effect of that on the morale of judges, the ability of judges to do their jobs without undue pressure, undue stress, it's a hard enough job as it is, you know, just trying to get the law right and trying to get the cases right.

14:08and manage the workload that you have. And then when you get people coming after you or coming after your family, that really, really ratchets it up. And this is an area I do a lot of work in, in helping judges deal with stress and be resilient. And it's just ratcheted up so much in the last few years. A job that was already difficult has become much more difficult because of security issues and personal threats. And I think that's why the chief has spoken out. And I give them full credit for that. He hasn't been quiet about it. And I think that's very important. Well, thanks so much for joining me today.

14:44I appreciate your time. That's Judge Jeremy Fogel, formerly of the Northern District of California. The Bloomberg This Weekend podcast, news, politics and the lighter side of Bloomberg. The cutthroat competition to get a gig on a cruise ship. They get to enjoy all the amenities and a one week contract can pay like thousands of dollars for them. I know this is a good gig. Yes. Like you're booked through six months and you could pay your bills for like a year and a half. And you may get norovirus. You can't. Keep going. You're going to get. The Bloomberg This Weekend podcast. Subscribe today on Apple, Spotify, or wherever you listen.

15:21Back in October of 2021, John Gruden resigned in the middle of a$400 million 10-year contract as coach of the Las Vegas Raiders. after the leak of emails where Gruden used racist and homophobic language. He apologized in particular for the racist term he used to describe NFL Union Chief DeMaurice Smith. All I can say is I'm not a racist. I can't tell you how sick I am. I apologize again to DeSmith. But I feel good about who I am and what I've done my entire life. And I apologize for the insensitive remarks. I had no racial intentions with those remarks at all. The next month, Gruden filed a$150 million lawsuit against the NFL and Commissioner Roger Goodell, claiming that in a malicious and orchestrated campaign, the league leaked the damaging emails to ruin his reputation and force his resignation.

16:28Goodell and the league denied the allegations and have been vigorously fighting the case since, including failed efforts to force the suit into private arbitration and to stall discovery, both of which went all the way up to the Nevada Supreme Court before they were denied. Now the NFL is trying to get the lawsuit dismissed under Nevada's anti-slap statute. Joining me is First Amendment expert Jeff Lewis. Jeff, start by telling us a little about Gruden's lawsuit. Well, Coach Gruden used to be the coach of the Las Vegas Raiders, and he was forced to resign after some unflattering emails were released that he had sent when he was actually a broadcaster for ESPN.

17:10And the gist of his lawsuit is that he says these emails were obtained by the NFL and released for the purpose of torpedoing John Gruden's career. And so he sued the NFL for lost income and lost opportunities. So the NFL has spent years trying to have this lawsuit dismissed or forced into private arbitration. Last summer, the Nevada Supreme Court upheld a lower court ruling that allowed the case to move forward in court rather than being handled through private arbitration. How important is that, that it's not going to be an arbitration? You know, that's a great point. You know, in football, when you want to keep offense off the field, you run out the clock.

17:52And that's what the NFL has been doing in terms of trying to force this case into an arbitration where the commissioner of the NFL runs the arbitration. So the Nevada Supreme Court said, no, that's not going to happen. So now this case is going to be heard in a court with discovery open to the public, not confidential, trial set for early 2027. And the fact that discovery can be conducted and that this trial is going to be in open and not in a secret arbitration suggests to me that maybe this case, when it gets close to trial, will settle because both of these parties have big incentives not to have this aired out in public.

18:28So the NFL is trying to get the lawsuit dismissed under Nevada's anti-SLAP statute. Tell us about the anti-SLAP statutes. Sure. Before I talk to you about anti-slap, let me tell you what a slap is. A slap is a strategic lawsuit against public participation where a big company or large corporation is trying to stifle the First Amendment rights of a little guy, the David versus Goliath battle. And what an anti-slap law says is rather than waiting five years and spending half a million dollars on attorney's fees, a defendant in a slap suit, a case involving First Amendment rights, can very quickly cut the line, have their case looked at in the first six months.

19:10And if it's a frivolous case, have it thrown out and have all their attorney's fees paid for. That's what an anti-slap usually does. What makes this case super unusual is the NFL, first of all, is not the David in the David and Goliath scenario. the NFL is using the anti-slap law halfway through the case years after it was filed to try to get the case kicked out and preliminarily the trial court has said no this this is not a good use of anti-slap law it's too late and your arguments aren't good and so we're going to let discovery and the trial date continue and the NFL has signaled it's going to appeal that ruling and wants to stay all discovery pending that appeal and so far the trial court has said no we're going to continue with discovery.

19:52So Nevada's anti-slap law protects, quote, a person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern. How is the NFL arguing that this case fits within that definition? Through some creative lawyering. Look, the First Amendment does protect the right of folks to communicate with the press about issues of public importance. You and I are talking about an issue of public importance right now. And so the NFL's creative lawyering is, look, when they supplied emails to a reporter or to a newspaper or the Wall Street Journal, they were communicating with the press and exercising First Amendment rights for an important news story.

20:38The contrary argument that Gruden has advocated is, look, this wasn't First Amendment activity. You leaked it. It was quiet. It wasn't in furtherance of some First Amendment right. You were just trying to do a hit piece on John Gruden. Do they know who leaked the emails? No, that's why discovery is so important in this case. And that's why NFL is trying to fight discovery and use appeals and delay tactics. And that's why John Gruden is pushing for discovery. It's the pressure point by which this case will eventually settle. Because if they don't know who leaked it, how can they claim that the person engaged in good faith communication?

21:17That's exactly right. And the good faith here, it's the NFL's burden to show their good faith. And they can't just generically say, well, someone leaked it and they must have had good faith. They have to have an actual living, breathing person to sign a declaration or testify in court saying, here's why I leaked it. And I don't know, June, but I'm going to guess that the person who leaked this from the NFL, either didn't say anything to the press when they were leaking it or didn't say anything flattering to John Gruden when they were leaking it to the press. Either scenario, it's going to be a hard, hard burden for the NFL to show its good faith.

21:53So they want to get rid of the suit before discovery begins. When discovery begins, they'll be able to find out who leaked the emails, right? Absolutely. Now, you know, they can't go after the reporters because of shield laws. So John Gruden can't subpoena reporters, but they can serve discovery on the NFL asking for emails and text messages of its key personnel to find out who had access to these emails during its investigation of the Washington football team. And after you narrow it down to that group, who had contact with the Wall Street Journal? We'll find out. The NFL was also at the Nevada Supreme Court about discovery in the lawsuit.

22:33Is it unusual to be going to the Supreme Court of a state so often when we haven't even gotten to the merits yet? Yeah, there's been a lot of interlocutory appeals in this case. It's very unusual. But when you have the resources of the NFL and you want to run out the clock, it's not surprising they've advanced every appeal they can. Gruden is going to seek testimony from league executives, prominent team owners, and Goodell himself, Commissioner Goodell himself. Will they likely get access to all those people in discovery or will it be a fight? Well, they'll likely get access to all the emails and text messages from those key people.

23:11Whether they get live testimony is another question. And I don't think they can start at the commissioner level. They'll have to start at lower level employees of the NFL and see what John Gruden can get from those witnesses. And if they don't get anywhere, then yeah, they can ask the court to order the commissioner himself to show up for a deposition. So is this anti-slap motion a Hail Mary pass by the NFL? It is a Hail Mary in the sense that it is so late. Most courts like these anti-slap motions heard within the first 60, 90, 120 days, not two years in. And so it's procedurally improper. Substantively, I have to say it has merit in the sense that the NFL has a colorable argument that this is a First Amendment case, that speaking to the press is an exercise of First Amendment activity.

23:57But I do think John Gruden has enough of a case that he can squeak by the anti-slap analysis. Even if the anti-slap motion were timely, this case is going to escape an anti-slap motion to dismiss. Why is the NFL trying so hard to delay, delay, delay? Because they don't want their commissioner forced to sit for a deposition. And because John Gruden, in addition to unearthing his emails, will seek to unearth other embarrassing emails and communications by either other coaches or other high-level executives of the NFL. And all of that dirty laundry will come out in a public proceeding without the benefit of the confidentiality of an arbitration.

24:33And so that's a pressure point to use against the NFL to try to get them to write a big check. Yeah, I was going to say they're delaying the inevitable unless there is a settlement. Right. You know, most cases don't go to trial. Most cases settle. The question is, how much pressure can John Gruden assert against the NFL to force a higher and higher settlement check? because this is not a case that either party wants to try in public. What does this case tell you about the need for anti-slap laws? This case kind of highlights why every state needs an anti-slap law. You know, not all states have an anti-slap law.

25:08And the anti-slap law is what gives the First Amendment its teeth. If you're in a state that doesn't have an anti-slap law and you get sued for something, you have to wait five years to litigate a case, spend maybe half a million dollars in attorney's fees. And if you're in a state with an anti-slap law, you can cut the line, Have a judge look at your case early. Have a judge determine whether or not this is a frivolous case and dismiss it or not and save you that five years of litigation. And Nevada and California have anti-slap laws, but only about half the states do. And there has been some talk for some time about passing a federal anti-slap law so that it's more uniform across the states, so that people who legitimately need the protection of the First Amendment can assert it in the first few months of a case, not like the NFL did here two years in.

25:54I'm curious, the NFL has, we say, limitless money to spend on lawyers. How is Gruden matching up with it? Most plainups in his position will either pay their lawyers on a contingency basis or a hybrid basis. And most plainups lawyers who take on a case against a high profile defendant like this know that they're going to have years of litigation and lots of procedural obstacles placed in their way, lots of appeals. So I imagine whichever lawyers Gruden hired, those lawyers knew they were going to be in for a very long fight. There's lots of technical defenses that could be raised here. And even if John Gurdon were to go to trial and win, there will be appeals after the fact.

26:33One of the interesting things about this case is, you know, most cases like this involving emails, it's a claim of either defamation or false light, meaning the email suggests something false or that puts the person who wrote the emails in a negative light. Here, these emails are in John Gurdon's own words. He wrote them. And he's in the unique position of having to say, yeah, I wrote some awful things. I wrote those things. I said those things. But the NFL should not have released them in a targeted fashion. And the NFL has the interesting culture war argument. The NFL has the argument suggesting they're trying to clean up their culture, combat homophobia and misogyny.

27:13and releasing these emails was just part of its campaign to clean up its image, whether or not discovery bears either of those arguments out is something to be seen. And we'll see if this really does go to trial next May. Thanks so much, Jeff. That's First Amendment expert Jeff Lewis. 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.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time.