Weekend Law: Bolton Indicted, Voting Rights & Reagan Judges

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1:25Sapphire Reserve for Business offers 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, airport lounge access, and more. Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A. Member FDIC. This is Bloomberg Law with June Grosso from Bloomberg Radio. Three weeks and three perceived political enemies of President Donald Trump indicted.

2:08Former Trump administration National Security Advisor John Bolton was charged on Thursday with 18 counts of retention and transmission of national defense information. The outspoken critic of President Trump is accused of sharing with his wife and daughter more than a thousand pages of notes about his day-to-day activities as National Security Advisor, including classified information. Trump, whose repeatedly call for Bolton to face criminal charges, had a rather muted reaction to the indictment. I didn't know that, you told me for the first time, but I think he's, you know, a bad person. I think he's a bad guy, yeah, he's a bad guy.

2:53He's too bad, but that's the way it goes. That's the way it goes, right? Bolton pleaded not guilty to the charges on Friday and said he's the latest target in the weaponization of the Justice Department to charge people Trump deems to be his enemies. My guest is National Security Attorney Mark Zaid. So, Mark, is the heart of this indictment the diary entries he made when he was National Security Advisor? I think there's two things that this indictment really throws out there that is significant. One, there is no indication that any one of these charges pertains to any marked classified document.

3:33You know, folks may remember that it was indicated that there were documents that were retrieved from his home that were still marked as classified, yet none of that shows up in the indictment. And then the second thing is that no count in this indictment actually deals with information that was published in Bolton's book, The Room Where It Happened. And that's really key because it was the contents of the book that Judge Lambert, the federal district judge, had identified as actually having contained classified information. So this indictment, 18 counts in all, looks to solely be limited to this diary that John Bolton maintained that he would send daily to his wife and daughter.

4:20Is it problematic for Bolton that, according to the indictment, some of the notes indicated that he was getting the information in a secured environment? For example, one began with, while in the situation room, I learned that. And another, the intel briefer said, I have represented other national security advisors and secretaries of defense and dozens of other federal employees who have written books, who have come out of the intelligence community, the military, law enforcement, I will say every single one of them always comes to me and says, I wrote this book to make sure it had no classified information in it.

5:03They always think that and they always want that. But the reality is when you're not the one making the decisions any longer, it's the government that makes that decision. And the government can really very broadly interpret information to constitute something that is classified. Literally anything that deals with foreign relations, if it mentions a foreign country, could be classified by a classifier in the U.S. government. I have been warning for a long time, long before Trump, but now especially concerning because of Trump, that the Espionage Act could be exploited and used as a weapon against individuals because of how easy it is to charge someone who had previously accessed the classified information with its mishandling.

5:52So I'm not surprised that this is where the administration is going. And it will be some time before we find out whether or not this information was really classified or more appropriately, properly classified. So then one of his challenges you think will be a challenge to the classifications? Very few espionage act cases go to trial. And there's a reason for that because the defenses are usually very limited in nature. Every attempt, for the most part, that has gone to try and challenge the classification determination generally fails. So it is usually through pretrial motions, particularly through what we call SEPA, the Classified Information Procedures Act, where you graymail the government in the sense of, well, I need this information to be publicized for my defense.

6:44And if the government's not willing to do that, then they have to dismiss the indictment. John Bolton, of course, will have similar motions as we'll see in the James Comey case and the Letitia James case of selective and vindictive prosecution. Both of those motions are always incredibly difficult as well. But if any case was poised for potential success, it would be this type of weaponized case. But John Bolton will have trouble with this indictment. It has nothing to do with the specifics of his case, of which I know nothing about. It has to do with just how Espionage Act cases generally go, which is to oftentimes end up in a plea.

7:29Is there another case that seems similar to you, perhaps the General Petraeus case? I do think the Petraeus case is very similar. For folks who don't go that far back, General Petraeus, the former director of the Central Intelligence Agency, was writing a book. And he had a ghostwriter who happened to be his mistress as well. And he was sharing classified information with her. Now, she at least had a security clearance, unlike John Bolton's wife and daughter. But it doesn't really matter because she wasn't authorized to receive the information. And as in both cases, there's no indication of any dissemination of that information beyond the people who it was disseminated to originally.

8:16Obviously, there might have been a hack by Iranian government officials, but I don't know of any evidence that actually they did anything with the information, presumably because perhaps there wasn't anything that really made any valuable contribution to disseminate it. But General Petraeus, although this was a decade ago when it was very different times, he only got two years probation and a$100 ,000 fine. You know, I would take that as a win in this type of case easy. But we're not going to get there until a whole number of pretrial motions will be brought by Bolton's legal team. I'm curious as to what you think about the government putting in the indictment.

8:57some of Bolton's commentary on, for example, Hillary Clinton and the email server, or Secretary Hegseth and Signal? The government included all these quotes from Bolton to demonstrate that he, as is well known because he's been around forever, I first met him in 1992 when I was in law school, he's had so many senior level positions at the highest levels of classified access as well. He knows what is classified and how to protect it, etc. But this is what I see all the time. No matter what level, they always think that they are not revealing classified information. And he may be 100 % correct. Maybe at some point we'll find out.

9:45But it was a sort of in-your-face attempt or PR effort by the government to throw his own quotes at him. It might not make any difference, and likely doesn't as a matter of law, but perhaps if he got to a jury, this might have some impact on them of, hey, you should have known better. But the reality is, you know, most of these cases are very factually different. I mean, you can come up with some analogies, but there's still going to be some facts that distinguish one case from the other. Finally, do you think that there'll be a plea deal in the case or it will actually go to trial? He's the third perceived Trump enemy who's been indicted.

10:31But do you see his case as very different from the cases against former FBI Director James Comey and New York Attorney General Letitia James. The Bolton indictment has more meat on its bones than the Comey and James indictments. And that has to do with who brought it, for one thing. Lindsay Halligan, the appointed U.S. attorney in the Eastern District of Virginia, who has zero criminal experience. She's an insurance lawyer and not even a very experienced insurance lawyer. And she did the case herself with no experience and apparently no help and career professionals refuse to sign on. We're not seeing that in the Bolton case.

11:13There are career national security attorneys who have signed on to this case. It is a much more detailed indictment, 26 pages in length. And there's a lot in there because they've brought these cases many, many times. There aren't a ton of Espionage Act cases when it really comes down to it, because those are reserved for cases where the government knows they can generally win. But this is a very similar on paper case that we see very often, although I will say the nature of it is very, very concerning. And I'm not even talking about the vindictiveness. I'm talking about what really is on trial in this indictment.

11:54And that is the pre-publication review process in some ways. How do senior officials or anyone in the government who had access to classified information, how do they write a book? Because I will say what John Bolton is alleged to have done is done every single day by government officials, both Democrat and Republican. And if you're going to go down that path one time, then you're going to have to go down that path a lot more times if you want to keep any type of consistency. And that will involve and include Trump administration officials who are in office right now, who I guarantee you will do the same thing.

12:35Bolton's attorney, Abby Lowell, who also represents Letitia James, said that the underlying facts in the case were investigated and resolved years ago, and also that keeping diaries is not a crime. I will say first, out front, Abby Lowell is also my attorney. She's representing me and a colleague and a friend. And he's right, and he's a little bit not necessarily right. For one thing, sure, everyone can keep a diary. It has to do with whether or not there is classified or more precisely national defense information in it. That you can't do. And I don't judge whether that's what happened because I don't know.

13:15But Abby is absolutely right that the timing of this is incredibly suspect. This was all known years ago. Now, I suppose the government will say, well, we didn't know about the diary. But they knew about the book, and the diary is what comprised the book, even though, surprisingly, none of the information published in the book is at issue here. And I find that incredibly intriguing. So the notion of what Bolton did to write his book, the Trump administration knew that four or five years ago and could have found out that same information. They went to court in an almost unprecedented civil action to try and enjoin the book, meaning to make sure it wasn't published, which they failed in doing because the standard to enjoin a book dates back to the Watergate time in the Pentagon Papers case, where the Supreme Court did not allow the government to block the publication of the Pentagon Papers, which was the secret war history of the Vietnam War and the U.S.

14:22involvement. No one has tried to enjoin a book since because the standard is so high. And I was very surprised the Trump administration tried to do that because of how easy it was that they were going to lose. But where they could have succeeded had they wanted to was to go after John Bolton criminally back then. And they had far more evidence just what existed at the time, because you had a federal district judge say outright that there was classified information in the manuscript, in the book, and they chose not to do it. So to do it now, five years later, and on the heels of a rant multiple times by the president of the United States that he wants to go after his enemies, calls into question the integrity of this indictment.

15:14And that will be a factor in pretrial motion. Do you think that there'll be a plea deal in the case or it will actually go to trial? Or, third choice, will it be dismissed before trial? There are some very good motions that will happen pre-trial that could definitely impact the structure of this prosecution. Once the parties start to get into discovery, particularly Bolton, starts to get information from the government, we'll start to have a better picture of whether a selective or vindictive prosecution effort or motion could work. Beyond that, we've got two very stubborn parties here, both John Bolton and President Trump and Pam Bondi as the attorney general.

15:59I doubt we will see a plea discussion anytime soon. But down the line, it could totally happen, especially if one or both parties believe they're going to have an egg on their face and that in order to avoid that is going to require some sort of plea deal. I think at the end of the day, the Trump administration could care less if John Bolton is convicted or acquitted. It's far more about putting him, Letitia James, James Comey and others who are forthcoming through the ringer the way he feels he was pulled through as well. So at the end of the day, it probably won't matter. He just wants them to suffer along the way.

16:45So apparently a tough road ahead for Bolton. Thanks so much, Mark. That's National Security Attorney Mark Zaid. Coming up next, will the Supreme Court gut the Voting Rights Act? I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On Public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English, like if the VIX hits 25, buy a put option on the S &P 500.

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19:47This is Bloomberg Law with June Grosso from Bloomberg Radio. The Voting Rights Act is a landmark civil rights law that for more than half a century has been a guardrail against gerrymandered congressional maps that discriminate on the basis of race. In a complicated case involving a challenge to a black majority district in Louisiana, one thing seemed clear after two and a half hours of oral arguments. The six conservative justices are ready to limit or potentially eliminate the most important remaining provision of the Voting Rights Act. Justice Brett Kavanaugh questioned whether the law was warranted 60 years later.

20:29Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have an endpoint. And what exactly do you think the endpoint should be or how would we know for the intentional use of race to create districts? But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens if a court has actually found a specific current proved discrimination by the state. What these section two suits do is they ask about current conditions and they ask whether those current conditions show vote dilution, which is violative of Section 2.

21:22So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? And when the state fails with respect to those issues, when those conditions obtain now... However, some conservative justices, like Neil Gorsuch, suggested that any use of race in redistricting even to correct a state's discriminatory dilution of minority votes is unconstitutional. I'm asking, is it acceptable under Section 2, as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? How quickly the court hands down its decision could determine whether or not states have enough time to redraw maps before the midterms.

22:15Joining me is elections law expert Richard Brafalt, a professor at Columbia Law School. Rich, tell us about the impact of this decision if the justices decide, as expected, to limit or even eliminate Section 2 of the Voting Rights Act. It's not clear they're going to do away with Section 2, although they will clearly change how they interpret it. I think it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't a result of litigation, but were done either defensively as a way of forestalling litigation or because the local legislatures thought it was the right thing to do, whether those can now be attacked as reflecting an excessive attention to race.

23:13We don't know what the court's going to say, and we don't know how far this will go in terms of unraveling pre-existing districting practices. But certainly, whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well. Explain the central issue in the case. It's very hard to explain what the issue is. It's a very complicated case. I mean, the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana where the plaintiffs argued under Section 2 of the Voting Rights Act that a minority, in this case, black voter representation, was illegally reduced, that the state is approximately a third black, but only one out of the six congressional districts had a majority minority population.

24:03and the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second majority minority district and that the state's failure to do so under the totality of the circumstances, including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation. The state went ahead and did that, but they did it in such a way that by taking certain partisan factors into account, they created a very strange looking district that kind of goes across much of the state. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons and drawing on older Supreme Court president, they argue that that's unconstitutional.

24:43The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race, even in the significant way, when it's being used as a remedy for prior racial discrimination. Really, the issue here is when is it okay to use race in join districts. In some sense, this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest, or it could be turned out to what can the Voting Rights Act permissively require? How is the court going to interpret the Voting Rights Act? There are a lot of questions all sort of tied up in a knot in this case, and it could come out in many different ways.

25:20One thing that seems pretty clear is that the original plaintiffs, the Black voters who sued for change are likely to lose. But on what theory, it could be any from a relatively narrow theory to an extremely broad theory. Now, the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less? I think I would phrase it in terms of how big a change do they want to make in the law. And when could race be used? And I do think that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances.

26:00And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, Section 2 of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago, when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race in drawing a remedial district. And so I think what you saw, what's called on the more moderate conservatives, Justice Barrett, maybe Justice Kavanaugh, maybe the Chief Justice looking for ways of squaring this case with that Alabama case known as Milligan, are explaining why this case could come out differently and maybe explaining how this case fits with the older precedent, Jingles.

26:52And are they going to overturn Jingles? Are they going to say this as a clarification of Jingles, which would be a way of changing it without flat out changing it? So my guess is less likely that you're going to see a majority striking down the Voting Rights Act, but you're going to definitely see a new interpretation of how it applies and what it requires, at least based on the oral argument. And it's always tricky to rely on the oral argument. But you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old.

27:29And what were the best arguments that the liberal justices made, not that they'll have any persuasive effect on their conservative colleagues? The liberal justices, I think, primarily basically rely heavily on stare decisis. That is, we've decided this before, including two years ago, that this case is on all fours with the Alabama case. So that's one. Two, another version of stare decisis is there is a doctrine that says that court opinions interpreting statutes get super strong stare decisis, have super strong precedential effect, because whereas court decisions interpreting the Constitution really can't be overturned, except through an extraordinary process of constitutional amendment, court decisions interpreting a statute, Congress can always overturn them.

28:16And Congress has not tampered with the Voting Rights Act since 1982. Third argument, and it didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, Kavanaugh wrote a concurrence. He echoed some of the language Justice O 'Connor had used many years earlier in dealing with affirmative action and saying, there's got to be some time limit for this. that it's not clear how much longer you can keep taking effects into account in remedies. And much of the argument of the lawyer for the NAACP and the liberal justices is, well, actually, there is a built-in time limit in Section 2.

28:49Plaintiffs have to show that there is current racial block voting, that there is a current disparate impact. And so, therefore, it's not something that goes on forever. Plaintiffs can't make that showing. They lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases. So bottom line, Rich, a lot of legal experts are predicting that the court is going to just gut the Voting Rights Act. But you don't think that the justices will go that far? No, I think they're going to make it much less effective. I don't think there's a majority. Based on the questions, it seemed to me that it's more likely that they will reinterpret the Jingles case and or the Section of the Voting Rights Act in a way that places a much higher burden on plaintiffs to prove something that would entitle them to redrawing lines in order to enhance minority representation.