This is [music] Bloomberg Law with June

Graasso from Bloomberg Radio.

A group of retired federal judges is

speaking out against the latest attack

on US citizens who weren't born in this

country. Republican Representative Pete

Stalber 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 US citizens. Keep our

Republic's article 3 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. Joining me is a

member of the Article 3 Coalition, Judge

Jeremy Fogle, formerly of the District

Court for the Northern District of

California. Judge Fogle, 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 nativeorn citizens. One

is Judge Sukinan in Illinois and then

Judge Talwani in um in Massachusetts

and the statement was well what do you

expect they weren't born here they don't

understand I mean that's why they're

ruling against these immigration

policies that we support. So that was

the 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 right. It's free speech

and it's 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. And I think it

just kind of provoked a a real strong

reaction among 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 there was just something

that was so fundamentally offensive

about the statements. And and so that

was what prompted it. And you know the

way our coalition works, we sometimes

will just circulate statements to judges

and 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

and suggest edits or to object or

whatever the case may be. And I 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, you

know, was important that we speak up as

retired judges about it. Uh, 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 the you look at the

judges the article three judges who have

served since the founding of the

republic and who were naturalized

citizens. It's a pretty impressive list

and it 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 not

noticeably liberal. So there's no

orientation that attaches to being a

naturalized citizen. It's just just

we've had a lot of very distinguished

jurors 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 were

thinking about that in the in 1787. They

could have very easily said, "Well, you

know, we want all of our elected and

prominent officials to be nativeorn."

And they didn't. They just they just

said 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

mind and they made a decision. So, I

think we've lived with it for 250 years.

And, you know, it's it's almost cliche

to say this is, you know, this is a

nation of immigrants. It's been built by

immigrants and naturalized citizens have

contributed immensely to the country in

just a multitude of ways. And 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

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 this one, the idea

that this is a country which welcomes

immigration. This has nothing to do with

controversies about legal immigration or

illegal immigration or what immigration

policy ought to be. It's we'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 and still do. And

every judge, every article 3 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 and anybody who's been through the

naturalization process knows that it's

it's actually pretty pretty rigorous and

you have to know more about the

constitution than than people who were

born here otherwise you don't you don't

get naturalized as a citizen. And so to

to say that people with 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

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

dennaturalization proceedings.

I mean, before this administration,

stripping citizenship has been rare. On

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 what they're thinking, but it's in

line with that in the sense that, you

know, I think for a long time being

being a naturalized citizen was a pretty

respected status. And I mean, it's I

think it still is among most most

people. And so the idea that you would

in any way kind of try to diminish that

is something new and different. And and

I think including judges in that is

definitely new and different. I mean,

I've never I've never seen that. And as

I said, I mean, there there are judges

on when you go back and actually do the

research as to who's who's in that

group. I mean, there were people who are

really quite supportive of the president

and and his policies and the

administration. I mean, they have been

pretty vocal in that respect. But, you

know, that 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 uh 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.

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 are are really

unhelpful. they're dangerous um in terms

of individual justice's security and um

and they're they're not appropriate in

the way to treat a coordinated branch of

government. I think the chief justice

had a yearend statement last year where

he talked about this issue and he talked

about like criticism is fair game. I

mean go for it. You know life in the big

city is that you're subject to all kinds

of criticism. Um but intimidation is a

different thing entirely. And when

political figures of any stripe are

trying to intimidate judges and justices

to uh do things that they like rather

than uh the things that they don't. Um

that that's where we really have crossed

the line.

Judges are facing increasing threats

with the US Marshall Service tracking

564 threats against federal judges last

year. But instead of toning down the

rhetoric against judges today, the top

lawyer in the Department of Homeland

Security, James Perl, 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 Kilmer

Arbrego Garcia. I've been talking to

retired federal judge Jeremy Fogle.

Judge Fogle, 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 v vigilant about. I

don't think anybody's really said it

better than than the chief justice. I

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 threats. And among the statements

that he's made, he's talked about it's

inappropriate to engage in these kinds

of attacks to to call like that to

threaten judges with impeachment or

removal that it's somehow appropriate to

go go after them because they 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 cannons. I think

retired judges are in a unique position

to say, "Look, we we have sat in that

chair. We understand what the job is. We

understand what our responsibilities are

in terms of following the law and and

doing the right thing is 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 appellet courts.

That's why we have very robust appellet

review and to to make these kinds of uh

personal uh characterizations and and

you know putting people on hit list or

enemies list or impeachment list 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 you can speak out about

that. You can you can write opeds. 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 um eloquent

about that. And they and they've both

faced it. Susper's family has been

threatened and Justice Kagan has faced

threats and 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.

And 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 and

manage the workload that you have. And

then when you when you get, you know,

people coming after you or coming after

your family, that really really ratchets

it up. And um this is an area I do a lot

of work in in helping judges deal with

stress and and be resilient and and it's

just ratcheted up so much in the last

few years, you know, that a job that was

already difficult has become much more

difficult because of of security issues

and personal threat. And I think that's

why the chief has spoken out and I give

them full credit for that. He's he

hasn't been quiet about it and and I

think that's very important.

>> Well, thanks so much for joining me

today. I appreciate your time. That's

Judge Jeremy Fogle, formerly of the

Northern District of California.

Back 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 Daurice Smith.

>> All I can say is I'm not a racist. I

don't u I can't uh tell you how sick I

am. I apologize again to the to D.

Smith. Um but I feel good about who I am

and what I've done my entire life. And u

I apologize for the insensitive remarks.

I had uh no u you know I I I had no

racial uh 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. Goodell 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. And 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. And 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 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 inopen 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.

>> So 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 5 years and

spending half a million dollars on

attorney's fees, a defendant in a

slapsuit, a case involving First

Amendment rights, can very quickly cut

the line, have their case looked at in

the first 6 months, and if it's a

frivolous case, have it thrown out and

have all their attorneys 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 the 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's

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 we're

going to continue with discovery." So

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. The

contrary argument that Gruden has um

advocated is look, this wasn't First

Amendment activity. You leaked it. It

was quiet. Wasn't in furtherance of some

First Amendment right. You were just

trying to do a hit piece on John Gordon.

>> 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 Groden 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?

>> That'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 uh 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 [clears throat] the NFL

to show its good faith.

>> So, 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

know you 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. Is

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

interlocatory 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 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. Whether 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 uh

anti-slap motions heard within the first

60, 90, 120 days, not 2 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 uh this is a

First Amendment case, that speaking to

the press is an exercise of First

Amendment activity. But 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 unear other embarrassing emails

and communications by either other

coaches or other highle 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. And

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's 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 uh check? because,

you know, 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.

And 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 5 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 state 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.

>> You know, I'm curious. The NFL has we

say limitless money to spend on lawyers.

How is Gruden matching up with it? Most

uh planups in his position will either

pay their lawyers on a contingency basis

or a hybrid basis. And most plaintiffs

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

Guden 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 Girden were to go to trial

and win, there will be appeals after the

fact. One of the interesting things

about this case is, you know, most cases

like this involving emails, it's it's a

claim of either defamation or false

light, meaning the emails suggest

something false or that puts the person

who wrote the emails in a negative

light. Here, these emails are in John

Girden'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, and 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

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

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And remember to tune in to the Bloomberg

Law Show every week night [music] at

1000 p.m. Wall Street time. I'm June

Graasso and you're listening to

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