• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss the legality of vaccine mandates and the CDC’s new eviction moratorium. They also break down whether double jeopardy protections preclude the new charges the Manhattan DA has brought against Ken Kurson, Jared Kushner’s close friend and a Trump pardon recipient, who stands accused of cyberstalking his ex-wife.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

VACCINE MANDATES

U.S. Constitution Article I, Section 8, Clause 1 – Spending Power

Tenth Amendment to the U.S. Constitution

Fourteenth Amendment to the U.S. Constitution

42 U.S. Code §264 – Regulations to control communicable diseases

Public Health Service Act, 1944

Alabama SB 267, 2/24/21

Roman Catholic Diocese of Brooklyn v. Cuomo, U.S. Supreme Court, opinion, 2020

Zucht v. King, U.S. Supreme Court, opinion, 1922

Jacobson v. Massachusetts, U.S. Supreme Court, opinion, 1905

Klaassen v. Indiana University, U.S. District Court Northern District of Indiana, opinion, 7/18/21

Memorandum for all Department of Defense Employees, Sec. of Defense, 8/9/21

“Police Powers,” Cornell Legal Information Institute

“FDA Approves First COVID-19 Vaccine,” FDA, 8/23/21

“No vaccination? Americans back tough rules and mask mandates to protect the common good,” USA Today, 8/22/21

“Barrett leaves Indiana University’s vaccine mandate in place,” SCOTUSblog, 8/12/21

“Current constitutional issues related to vaccine mandates,” National Constitution Center, 8/6/21

“Expect State and Federal Employee Vaccine Mandates to Stand,” National Review, 7/26/21

EVICTION MORATORIUM

42 U.S. Code §264 – Regulations to control communicable diseases

42 CFR §70.2 – Measures in the event of inadequate local control

Alabama Association of Realtors v. Department of Health and Human Services, U.S. Supreme Court, on application to vacate stay, 6/29/21

“Temporary Halt in Residential Evictions in Communities With Substantial or High Levels of Community Transmission of Covid-19 to Prevent the Further Spread of Covid-19,” CDC order, 8/3/21

“Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” CDC order, 9/4/2020

“Real estate agents ask justices to freeze administration’s new version of eviction moratorium,” SCOTUSblog, 8/20/21

“The New Eviction Moratorium Didn’t Result From a Screw-Up,” Lawfare, 8/18/21

KEN KURSON

Fifth Amendment to the U.S. Constitution

NY Penal Law §156.10 – Computer trespass

NY Penal Law §250.05 – Eavesdroppin

NY Criminal Procedure Law §40.20 – Previous prosecution;  when a bar to second prosecution

The People of the State of NY v. Kenneth Kurson, Criminal Court of the City of NY, criminal complaint, 8/18/21

The People of the State of New York v. Paul Manafort, NY Supreme Court Appellate Division First Department, opinion, 10/22/20

“Double Jeopardy,” Cornell Legal Information Institute

“Separate Sovereigns Doctrine,” Cornell Legal Information Institute

“Presidential Pardonee Ken Kurson Charged with Cybercrime Felonies,” Manhattan DA Vance press release, 8/18/21

“Statement from the Press Secretary Regarding Executive Grants of Clemency,” Trump Admin., 1/20/21

“Individual Charged with Cyberstalking Three Victims,” U.S. Attorney EDNY press release, 8/23/20

“Kushner Friend Who Was Pardoned by Trump Is Charged With Spying on Wife,” NYT, 8/18/21

Preet Bharara:

From CAFE and the Box Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce? Welcome back.

Joyce Vance:

Thank you. It’s good to be back. I was out of town for a whole week.

Preet Bharara:

And how was that?

Joyce Vance:

It was sad. We were dropping our youngest kid off at college. My husband would say it was a very joyous event. For me, it was very sad, but it was really interesting to be in Colorado after being in Alabama for a year and a half.

Preet Bharara:

Yeah, I dropped off one on Saturday. I drop off another one tomorrow and it’s mixed emotions to say the least.

Joyce Vance:

I was gratified that this one was … at least claimed he was homesick and has called a couple times.

Preet Bharara:

Already?

Joyce Vance:

Since we got back. I don’t know if he’s just playing to mom or if he really is, but he made me feel truly good.

Preet Bharara:

Does he need money?

Joyce Vance:

No, he hasn’t asked for money yet.

Preet Bharara:

That’s the next thing.

Joyce Vance:

Well that makes him a rare Vance child.

Preet Bharara:

Send money. Should we talk about some news, Joyce?

Joyce Vance:

We should talk about news. There’s a lot of it. I feel like I say that every week.

Preet Bharara:

Because the news keeps happening, whether you go to Colorado or not. I thought I’d frame the first issue this way, let’s talk about freedom.

Preet Bharara:

You see all these people running around protesting either the mask mandates in certain places, whether they’re imposed by the government or imposed by the local 7/11, or whatever the case may be, and also what is going to be, I think, a slew of vaccine mandates. By mandate we generally mean people are not going to come to your home and hold you down and vaccinate you, but it’s a condition of employment or a condition of participating in some public event. Like I’ve said many times, I couldn’t go to the Springsteen show on Broadway without showing proof of vaccination.

Preet Bharara:

One reason that’s going to increase a lot is yesterday, Monday, August 23rd, we finally got full approval for at least the Pfizer vaccine. And just to set it up further, then throw it to you Joyce, some people have been making the argument, “Well, how can we possibly be required to get vaccinated when all these vaccines are still under the emergency use authorization?” That argument has been taken away from a lot of people and that argument is actually one of the ones that’s been put forward in various lawsuits trying to resist the vaccine mandate.

Preet Bharara:

So I thought we’d take a step back, you and me, a couple lawyers, and talk about what freedom really means and maybe go back to the Constitution. Shall we?

Joyce Vance:

The Constitution in all of this, when my personal liberty not to vaccinate so I can infect other people is at stake?

Preet Bharara:

Do you have that liberty?

Joyce Vance:

This is such a perversion of constitutional privileges and I’m glad you wanted to talk about this this week because this is an issue we see come up in a lot of places. It also comes up in religious freedom. How far does my religious freedom extend versus your other constitutional rights? But here we see it in this very stark context because what we’re talking about is whether I have the ability to infect other people with a deadly disease.

Preet Bharara:

With the power of the government, and we’ll have to draw a distinction between the state governments and the federal government, to engage in some policy making on this. The old phrase that I probably heard the first time in law school, but maybe it was college, is the liberty of your fist is constrained by the proximity of my chin. So fine, you want to shadow box, that’s fine, but I’m near you and your arm can reach my face, then it’s not freedom to be able to move your fist however you want to move your fist. I know that’s a crude analogy to this, but let’s go back to the tenth amendment of the Constitution, which doesn’t get a lot of attention. It says, what? “The power is not delegated to the United States by the Constitution, nor prohibited by it to the states our reserve to the states respectably, or to the people.”

Preet Bharara:

Now, what does that mean? It seems very broad and vague, but one of the things it means as you learn in law school and I think is relevant now, is that states have something called a police power, which is something that allows states to provide for the general welfare of the people as it relates to public health, public morals, public safety, that kind of thing. Now, it doesn’t mean the state can do anything in favor of public health or public safety, but it can do a lot of things and there have been cases all the way up to the Supreme Court specifically on this narrow question of whether a state in the union can require a vaccine. Should we talk about those?

Joyce Vance:

We should because the case law is, as you say, well established. It’s a Supreme Court precedent. It’s been in place for over 100 years. It’s a case called Jacobson versus Massachusetts. It seems quite clear and quite applicable to the situation that we’re in. A Massachusetts law permitted cities to require residents to be vaccinated against Smallpox, a very deadly disease. Mister Jacobson refused to comply with the requirement of the law and he was fined. He was fined five dollars, essentially a criminal penalty.

Preet Bharara:

That’s a lot of money in 1905.

Joyce Vance:

It was. Different era and this notion, when you think about it in the context of the argument people today are making about having their liberty denied, what if, say, a city set out to fine them because they refused to get vaccinated? There would be public uproar. We can talk about that in a second, but the law itself is pretty clear. The issue in Jacobson is whether the mandatory vaccination law violated Jacobson’s 14th amendment rights to life and liberty. The court clearly held that it did not, that it was a legitimate exercise of police power to mandate a vaccination.

Joyce Vance:

To cut to the chase, the law here says that if state governments, or units of government, want to impose vaccine mandates they can.

Preet Bharara:

Reading directly from this 1905 case, Jacobson v Massachusetts, this is just important. For folks who are having arguments with their friends and neighbors and family members, just tell them this. “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times and in all circumstances holy freed from restraint.” It goes on to say, “It is within the police power of a state to enact a compulsory vaccination law.”

Preet Bharara:

That court held that the statute in question that imposed a fine for not taking a Smallpox vaccination was not invalid because it didn’t violate any rights of any person under the 14th amendment. Can it get anymore clearer than that with respect to this narrow question?

Joyce Vance:

The interesting thing is this is an old case, so I’m sure that we’ll hear, “Well, that’s an old case and it was Smallpox.” But analytically, and the language that you read from the case, I don’t think that there’s any question that the vaccine mandates can be imposed.

Preet Bharara:

There’s another case. So it’s not like there’s just one, Zucht v King in 1922. The majority opinion written by Justice Brandeis that referred back to Jacobson and basically says the same thing.

Joyce Vance:

Right, it calls it settled law. I think that I keep saying this over and over, but it’s so rare that a proposition is so firmly established that it can’t really be controverted. This is the case here, though, and the principle in Zucht, when you combine it with Jacobson, and we should say that Zucht is a San Antonio, Texas case that involved excluding students from public and private school if they weren’t vaccinated, again, against Smallpox and the challenger in the case argued that it violated her 14th amendment rights. That again is an echo of Jacobson.

Joyce Vance:

Justice Brandeis wrote, “Long before this suit was instituted,” and he was writing in 1922, “Jacobson versus Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccinations.” Of course, that’s the vaccines that we all get for our kids and that we all ourselves got before we go to school. It’s never been controversial until suddenly now it is.

Preet Bharara:

Did you get Smallpox, Joyce?

Joyce Vance:

No, I didn’t get the disease because I was vaccinated against Smallpox.

Preet Bharara:

Yes, and I don’t remember, as a child we all got vaccinated, and I don’t remember there being an uproar. People keep forgetting that you have a number of kids, I have a number of kids, they wouldn’t be permitted in public school without not just vaccination, but proof of vaccination. That’s been true for a long time.

Preet Bharara:

So, this vaccination with respect to Covid has been highly politicized for various reasons. We should be clear, there are three different groups that can take action we should talk about. The law is not the same with respect to all of them. What we’ve been talking about so far with respect to these two Supreme Court cases is what states can do. There’s also the question of what the federal government can do, what Joe Biden, the current President can do, and then there’s third of the question of what private institutions can do, stores, shops, theaters, stadiums.

Preet Bharara:

With respect to what the federal government can do, in the same way that there’s not complete freedom on the part of individuals, so we can have an orderly safe society, does not complete ability of the federal government to engage in some of these things. So, if Joe Biden said tomorrow, Joyce, I’m going to pretend this is a law exam. If Joe Biden said tomorrow, “Everyone in the country must be vaccinated or be deprived of some privilege,” or use an executive order, is that constitutional?

Joyce Vance:

He can arguably do that, but he would undoubtedly have problems if he did. There is some possible sort of rationales for this, theoretically possible under something called the Public Health Service Act where the CDC could take action for public health purposes, but whether or not it would be effective is questionable. There would be a lot of public resistance and a lot of possible issues.

Joyce Vance:

What there’s better authority for the federal government to do would be to use the Constitution Spending Clause and provide incentives for states to enact mandates. So, can federal government do it? I suppose that question has never been determined with finality, like Jacobson determines the state issue. Nonetheless, it doesn’t look like the best strategy for the federal government to take right now.

Preet Bharara:

Again, even with the federal government, there are multiple constituencies. There’s the general public over which, as you say, there would be legal issues and problems and fights and complications in imposing a vaccine mandate, but the federal government also has employees. They include the military, they include the Department of Justice, and various other employees, and with respect to them, not an issue to impose a vaccine mandate. With respect to the military in particular, for purposes of military readiness, I think it’s very clear that as a legal matter the military can impose such a mandate. Agreed?

Joyce Vance:

Yeah, particularly now with the full approval for at least one of the vaccines. The military’s ability to require this vaccine becomes very clear. They routinely require an entire cocktail of shots for military recruits. That’s not something that’s particularly disputable, and although there have been some holdouts in the military, that has for the most part been a result of the temporary approval for the vaccine, the emergency use of the vaccine.

Joyce Vance:

For federal employees, and we should add that for federal contractors as well, the vaccine will be required. That will cut a pretty broad swath of people, particularly in areas that have been under vaccinated, but Preet, I saw some polling yesterday that I think is interesting to consider in this context. It’s the USA Today Ipsos Poll. It says that while 72% of the country favors mask mandates, 61% would require vaccines as long as they came with medical and religious exemptions. That suggests to me that we may be at a point in this country where it’s now increasingly possible to impose vaccine mandates, if not a nationwide one, then these vaccines for large segments for instance of the federal workforce, without the sort of opposition that had surfaced early on to vaccination.

Preet Bharara:

Yeah, I think that’s right. You can see, as a matter of common sense, for the military, why you would want to be able to impose such a mandate. Right now we have a very fraught and dangerous, hasty airlift out of Kabul. You have teams of American service people who are trying to get folks out of there on choppers and planes. Last thing you need is for someone in a tight-knit group, a crew of an airplane, to suddenly test positive for Coronavirus and not have the most protection possible. Thereby grounding one or more airplanes. It’s common sense. It’s legally allowable and I think all of the hubaloo is a little silly.

Preet Bharara:

We should also just make clear, Joyce, that there are limitations to this police power, also. It’s not like in any circumstance the state can do anything it wants even in the context that we’re talking about. There’s a case called Roman Catholic Diocese of Brooklyn v. Cuomo.

Joyce Vance:

In that case, the Supreme Court ruled late last year that New York’s severe Coronavirus restrictions, on attendance at religious services, violated the first amendment’s free exercise clause. So coming at it from a different direction and objecting to restrictions on public gatherings, in essence because of the first amendment violation.

Joyce Vance:

It’s interesting to note that this came up in an Indiana University case where a judge who was a Trump appointee was asked to consider whether or not the university was able to mandate vaccinations for students. There is this sort of analogy that was made to the religion situations in that case. The argument here involved whether or not the university, and of course as a public university, an arm of government, had the authority to require vaccines of students or whether they had some sort of a bodily integrity interest that could trump the university’s ability to impose that.

Joyce Vance:

In the Indiana case, Judge Leichty, when he’s engaging in this analysis, looks at the Cuomo case that you just talked about, Preet, and talks about how in that case there could be some restrictions, but he distinguishes Cuomo from Jacobson, our old friend. The early case that says that vaccination mandates are okay and talks about the need to have a higher sort of level of scrutiny when you’re burdening religious practices than when you’re looking at school situations.

Joyce Vance:

In deciding Cuomo, the court doesn’t overrule Jacobson. And so Judge Leichty reasoned that the two precedents can coexist, that you can have both Cuomo, which protects religious exercise and Jacobson, which requires vaccines, and the impact of that duality is that when you get to the Indiana case where Indiana’s public university is vaccinating its students before they can return to school, the judge says that’s okay in the educational setting.

Preet Bharara:

Yeah, in that case went up to at least one member of the United States Supreme Court who has the authority to listen to emergency requests from the seventh circuit where she served, Justice Amy Coney Barrett. What did she do? She turned down an opportunity to take it up with the court. Not only that, more significantly she did it without comment and without seeking a response from the state or the university. Does that indicate to you that she thinks that these arguments are meritless?

Joyce Vance:

That signals that she thinks that it’s a very clear ruling. She didn’t even need to hear the government defend its position before she dismissed the case, in essence, ruling in their favor and permitting Jacobson to stand. That’s a strong signal to public universities that vaccine mandates will survive judicial scrutiny.

Preet Bharara:

So long as, giving the Cuomo case, so long as a particular mandate, mask or vaccine, or other public health mandate, does not unduly effect and burden religious freedom, which is an important right in the Constitution as well. Sometimes when you have rights that come up against each other and are in conflict. You have to come up with some other reasonable resolution, but this question that everyone’s arguing about in lots of places, can states impose vaccination mandates? Can schools do it? I think that’s very settled.

Preet Bharara:

Now, I guess the last question, which we can treat pretty quickly is whether or not private companies, private entities, can require proof of vaccination before entry, and whether employers can do it as they’ve been doing it. One answer to that question is, the mandates are coming fast and furious. That would indicate that all the general councils at all these places have done some analysis and don’t think they’re in some danger. There are some political issue with some of these places and it has been suggested by some, including a guest I had on Stay Tuned, that the companies that are imposing vaccine mandates have at least so far tended to be companies where their constituencies are already sort of favorable to the vaccine. So they’re not going out so much on a limb and it may be more tough with some companies rather than other companies. But it is clearly the case given the companies are not state actors, that they have full discretion to mandate these conditions.

Joyce Vance:

I think that that’s true as long as there’s not a contradictory state law. For instance, in Alabama there’s a law that prohibits the use of vaccine passports. It also proports to prohibit either schools or private businesses, any business or individual who provides services or sells goods in Alabama from requiring proof of vaccination status to take advantage of those services. I think it would be interesting to see a test case on whether that sort of law was permissible and could override the businesses interest. We have not seen that challenged so far.

Preet Bharara:

It’s a strange bedfellow situation because the people who are arguing that businesses shouldn’t be able to impose these kinds of restrictions tend to be from the political side of the spectrum that have always said, “Businesses should be able to do whatever they want. They shouldn’t be required to pay a certain minimum wage. They shouldn’t have other kinds of restrictions. We have too much government. We have too much regulation of business.”

Preet Bharara:

Here, rather than allow businesses to decide what’s better for their customers and their workplaces and their employees, they want government to decide. Interesting, right?

Joyce Vance:

It’s revealing.

Preet Bharara:

Okay, that’s our discussion about freedom. We have more to say on freedom because there had been some other controversies with respect to measures taken by government with respect to the Coronavirus, ways to mitigate financial pain and financial harm to folks. Lots of people have been in a financial quandary over the last 15, 17 months, and it’s hard to pay rent for some folks. The normal relationship between a tenant and a landlord is if you don’t pay your rent you can get evicted. There have been enactments of eviction moratoriums, that’s caused a firestorm also, also issues that have gone all the way up to the highest level in the courts. What can a state do? What can a state not do? What can the federal government do or not do? Kind of interesting questions that are swirling around.

Joyce Vance:

Let’s lay out a little bit of history. It’s recent history, but it’s important, I think, on this issue. The CDC first takes this really unprecedented action in September of 2020 of issuing a temporary national moratorium on most evictions for non-payment of rent. They do it in part because they’re concerned about people being able to social distance and comply with stay at home orders at that point in time. It expires, states institute eviction moderator in March and April, but they let over half of them expire in the following months, and the results are absolutely catastrophic. The statics show that in states where there’s not a moratorium on evictions, rates of infections and deaths both increased dramatically, putting people of color who are more than twice as likely to be renters at a disproportionate risk.

Joyce Vance:

That’s the context in which the federal government institutes a national moratorium, and it gets extended a couple of times.

Preet Bharara:

Can we pause on that for a moment, Joyce?

Joyce Vance:

Yeah.

Preet Bharara:

All right, I want to make sure people didn’t miss something very, very important that you said. That original thing that you mentioned happened, as you said, in September of 2020. Who was the President then?

Joyce Vance:

That would be President Trump.

Preet Bharara:

And the CDC was under his command, so to speak at that point, right?

Joyce Vance:

It’s important to say, right? That there was not a challenge at that point in time.

Preet Bharara:

Right, so just as we’re having this debate, because everything becomes politicized. Why is Biden doing this? We’ll get to some of the things that Biden has said about the legality of the moratorium. Remember that this is not something that was foisted on the public by Joe Biden. Originally it was under Donald Trump and I think that clarifies some things potentially when we get to the meat of it.

Joyce Vance:

I think that’s right. It’s fair to say that as this gets extended a lawsuit is ultimately filed by the Alabama and Georgia Realtors Association, but they are representing a sort of a realtors group nationwide. Making the argument that 50% of renters, not renters, but rentors, the people are who renting property, are sort of mom and pop operations and that they are struggling as well.

Joyce Vance:

The argument at this point, and this is something that I find to be a little bit perplexing Preet, I wonder if you’ve thought about this. It really seems to shift from this notion that an eviction moratorium is necessary as a public health sort of a measure, to it’s necessary to protect financially people who are struggling during the pandemic. It seems to me that the argument for moratorium should be based on both of those.

Joyce Vance:

Here’s the issue in the moratorium case. It turns on whether a 1944 public health law that grants the Department of Health and Human Services powers to prevent the spread of a communicable disease across state lines would give the CDC the authority to block evictions. What’s at stake here is the issue of whether or not the CDC exceeded its statutory mandate when it put the nationwide moratorium in place.

Preet Bharara:

I think the heart of the issue is, which is not a crazy issue, is as the CDC, which is a public health agency, has the authority to do all sorts of things in the name of public health. You can imagine other examples where, I think all reasonable people would agree, “Well, that’s not really a public health measure.” For example, if the CDC decided based on that law, well when people have more money in their pockets because they all have a minimum wage that’s guaranteed they’re more likely to get insurance and they’re more likely to get primary care, et cetera.

Preet Bharara:

The CDC is now mandating that the minimum wage must be paid to every employee in the country, I think people would say, although people might like that and might like that policy outcome, that is exceeding the authority of the CDC. This is not that, but that’s the kind of question that’s being asked here.

Joyce Vance:

But in any event, in June 29th we have this sort of a situation where the Supreme Court gets to sink its teeth into this case and it finds that the moratorium is not constitutional, but it says, “Well, it’s going to expire at the end of July. So we’ll let it stay in place for that month.” That seems to be somewhat unprecedented, Preet. It’s unconstitutional, but it can hangout for the next month?

Preet Bharara:

We talked about this over the last couple of weeks a couple of times. It’s fascinating to me and it’s another example of a scenario that we’ve seen before, and that is the Supreme Court makes a decision. The deciding vote here is Justice Kavanaugh who says pretty plainly that “The CDC exceeded its authority for various reasons and you can’t do this. You can’t extend the eviction moratorium, but, but because it’s only a few weeks away, we’re not going to end it suddenly and abruptly today, which is not a legal argument, really. It’s sort of pragmatic, maybe even a mildly political stance to take and it strikes me as somewhat analogous of something you and I were talking about some weeks ago where the Supreme Court made a pretty strong decision with respect to DACA, the dreamers, and their paths to citizenship. Basically said, “Going forward you can’t do this.” However, the applications that have already been granted were not going to undo that because of their alliance. It just strikes me as two examples of where conservative members of the court want to put a stop to something, but not too dramatically because of, perhaps, I don’t know if this is true, but perhaps the uproar that would be created. What do you think about that?

Joyce Vance:

I think that’s right. I think these decisions are grounded in political expediency, and look, don’t get me wrong. I like both of those decisions, but what they suggest to me is perhaps there are different legal arguments that should be made in these cases, or perhaps in the specific case of the CDC’s moratorium, the right approach would have been to go to Congress, to go back to Congress, and to ask them to pass laws that made it more explicitly within the CDC’s Bailiwick to go ahead and create this sort of a moratorium in a pandemic situation. Call me crazy, but the laws are supposed to create the basis for this sort of action.

Preet Bharara:

What you said a moment ago is important. Who is making the decision? Which agency has what authority? Is the basis public safety and public health, or is it economic hardship? And the CDC is generally not in the business of making decisions and imposing restrictions and doing all sorts of things, as they would say in restrain of trade, based on economic situations. And so, I think that’s important and is one of the basis for why the court found that the CDC exceeded its statutory authority under a particular law.

Preet Bharara:

Another interesting thing going on now as the fight continues that I want to get your opinion on, and people may have seen this. It is not crazy by the way that the courts are saying the CDC exceeded its authority. We may not like it. We may want eviction moratoria and we may think it’s a good thing, it’s a good policy. One way to do that is to have Congress pass a law as opposed to having this come from the executive branch.

Preet Bharara:

Joe Biden said something interesting in all of this when asked the question about the constitutionality that such a moratorium, he said … Literally he said in front of press …

Joe Biden:

I sought out constitutional scholars and determined what is the best possibility that would come from executive action from the CDC’s judgment. What could they do that is most likely to pass muster?

Preet Bharara:

But then he said and conceded, pretty extraordinary fashion …

Joe Biden:

The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.

Preet Bharara:

Was that an example of Biden being super candid or was it a stupid legal tactic? Because as we’ve seen in the last couple of days, those words are actually in a brief by some of these litigants saying, “Look, even the President of the United States concedes that this is probably not constitutional.” What do you make of that acknowledgment?

Joyce Vance:

Yeah, it’s possible that it was both very candid and also not very wise. My instinctive reaction was, “Wow, this is really amazing. We have a President who can actually talk with constitutional scholars and process what they’re saying.”

Preet Bharara:

And then not follow what the advice is.

Joyce Vance:

Yeah, and of course that’s the problem. What’s at loggerheads here is that there is a clear need for the moratorium and the question is how do you get there legally? Our former colleague, or I guess I should say not necessarily our colleague, but the White House Council when we were US attorneys, Neil Eggleston said that the only safe path to settle the issue would have been for Congress to amend the statute to provide clear authority. That’s obviously the best path if you’re a constitutional scholar here.

Preet Bharara:

That’s an Obama White House Counsel.

Joyce Vance:

That’s an Obama guy.

Preet Bharara:

That’s not Ted Cruz. That’s not Josh Hawley. There is a real constitutional and legal concern here that can’t be dismissed, and then the question that arises, and a lot of conservatives are attacking Biden and his administration on you claim to be rule of law, rule of law, and now you’re doing something that your own leader concedes may be constitutional, what’s the propriety of that? I think it’s not an unfair question.

Joyce Vance:

I agree. I think it is a fair question and there were a lot of different approaches that they could and should have taken. The approach that they took here when they put the moratorium back in place, of course it expires and Biden makes that statement, and then a couple of days later he walks it back. What they do is they put into place a narrower moratorium and they try to say that it’s based on data about where emergency rates of infection are the most compelling. It covers about 90% of the country and the question is whether that will be a sufficient legal basis for them to survive in court. I’m not sure that their survivability is very good. What do you think?

Preet Bharara:

Yeah, I don’t think so either. We should also make clear Joe Biden and the administration are not saying that they want to do this just because they have bravado and they think they can do whatever they want. There’s a motive for it, which I think comes from a good place and which is to get as much relief as possible into the hands of renters before they’re shut down by a court ruling. I’m just repeating myself again, it’s really stunning for that to be said out loud.

Preet Bharara:

There’s a question that arises, we can get more philosophical about this. If you’re the governor of a state or the president of a country or a legislature, federal or state, and the mass of constitutional scholarship and precedence from the Supreme Court would suggest that the bill that you’re trying to pass or the order that you’re trying to enact is not likely to pass constitutional muster. Is it ethical to try to pass such a bill or issue such an order in any event in case after case with respect to abortion, for example? There are clear cases, and we’ve talked about this you and I, where bills are introduced and then they’re challenged, and they’re introduced knowing that the precedents including Roe, render them unconstitutional, but hope springs eternal, that the makeup of the court will change or maybe they’ll get lucky or they want to make a political statement or they want to get the other side of the aisle to have to take a nasty vote and they do that anyway.

Preet Bharara:

If we’re considering whether or not it’s appropriate for Biden to do in this case, the question is are there other cases also when it’s completely inappropriate? It happens all the time. Statues and orders that are believed to be unconstitutional or be deemed to be unconstitutional get passed all the time, no?

Joyce Vance:

Sure. That’s absolutely true in both states and the federal governments. I think it looks a little bit different if you’re a lawyer challenging one of these cases or challenging one of these laws, and you have a certain amount of ethical obligation in court. I’m thinking about it from our point of view as prosecutors, as DOJ employees, when we are either supporting or challenging these sorts of cases in court. Perhaps that obligation looks a little bit different than it does to folks in private practice or in the legislature, or am I being too generous?

Preet Bharara:

Yeah, I think that’s fair. I think that’s fair. There’s another distinction I have in my head, and maybe it’s a silly distinction and I’ve been thinking about it for a few days. Suppose you were in good faith a legislator and you have a view that the bill that you’ve drafted is constitutional the way that you understand the constitution, whether you are on the left or on the right. But have a different view as to whether or not the court in your circuit or in your state will agree with you. You have a fundamental good faith disagreement with the outlook of the relevant courts. So, is there a difference between a legislator thinking this is bill is or is not constitutional, versus whether or not the court will find it to be so, and that there’s a variance between … Again, I’m assuming good faith for the sake of this hypothetical. If there is a variant between your own good faith view of the law and what the court in your state or your jurisdiction might think, then is it okay and ethical to go ahead with that?

Joyce Vance:

It’s a very subtle question, especially because you’re assuming good faith, but as long as that’s the assumption I think this is in many cases how the law has advanced. It’s comparable to what happens in criminal cases, for instance, where defense lawyers challenge processes that they believe are unconstitutional. Can you use the death penalty for a juvenile? Can you put a juvenile in prison for life without the possibility of parole? The law says one thing and people who believe that that law isn’t constitutional push.

Joyce Vance:

In that sense, what you’re talking about, I think is consistent with good practices. I suppose the problem is what happens when people aren’t acting in good faith, and how do you really make that determination? That’s an awfully squishy line between folks who really believe that the constitution, for instance, shouldn’t permit abortion to take place and folks who just believe that now they have a majority on the Supreme Court. This is the time to go ahead.

Preet Bharara:

We were assuming…in a law school seminar for a moment, Joyce.

Joyce Vance:

Yeah, I know.

Preet Bharara:

I was not talking about real life because this is something that I’ve been thinking about a lot lately, the level of good faith versus bad faith that exists.

Joyce Vance:

That goes back to your point about Biden, I think, just beautifully, and illustrates whether or not we are constrained by taking actions, whether we’re the President or a state legislature, that we believe comply with the Constitution. And what do we do when we think policy should be different? Do we find new arguments that comply with the Constitution or do we just go on straight forward trying to see what we can get out of a court? That later approach is not a very attractive rule of law strategy.

Joyce Vance:

I think shifting from that sort of highbrow legal context for this conversation, one last piece of information that’s important to share with our listeners is that along with this issue has come the push out of renters assistance that’s being handled at the state level. Anyone who’s struggling in this situation can go to the CFPB website, the Consumer Financial Protection Bureau of a government agency that was created under the auspices of now Senator Elizabeth Warren, but they have extensive information by state and by county on their website that permits people who are struggling to go and find renter’s assistance. Perhaps an elegant solution to this problem would be for the federal government and state governments to do more push out on that assistance. It has been poorly rolled out and implementation has been difficult, a little bit of education here could go a long way to protect both public safety and people’s financial interests.

Preet Bharara:

Why don’t we end the week talking about a new criminal case out of the Manhattan DA’s Office? It involves a gentleman by the name of Ken Kurson who was very friendly with Jared Kushner because was … Ken was the Editor in Chief of the Observer periodical here in New York, of which Jared Kushner was the publisher. Ken Kurson is doing his job at the Observer and then he gets nominated in 2018 by the Trump administration for a seat on the Board of the National Endowment for the Humanities. As you know, Joyce, when you get nominated for something it requires Senate confirmation. The FBI does a background check and sometimes the background check turns up something that disqualifies that person from office. Sometimes it turns up evidence of a federal crime. That’s what happened in Mister Kurson’s case.

Preet Bharara:

In the fall of last year, the Eastern District of New York, US Attorney’s Office, brought charges against Kurson for cyber stalking, for harassing multiple people that’s kind of ugly and [inaudible] relating to the collapse of his marriage among other things. It turns out Kurson put spyware on his wife’s computer, sent all sorts of emails that were harassing other people. He blamed a particular doctor for ruining his marriage, and everything else. That case went away on January 20th of this year when he was included in a list of pardons, full pardon by Donald Trump.

Preet Bharara:

Now, the Manhattan DA Cy Vance who has a number of cases that he’s overseeing, basically said, “We will not accept presidential pardons as get out of jail free cards for the well-connected in New York,” which is an interesting statement to make when you bring a criminal case. Fair play or not?

Joyce Vance:

Well, I like the way you phrase it. “Cy Vance has a number of cases that he’s overseeing.” It is fair play, but before we get to that let me ask, do you know Ken Kurson?

Preet Bharara:

I do. His paper, and like other papers in New York, cover my office. I went to an editorial board meeting with him. He was always very nice to me. I think I met him maybe three or four times. Led me in a discussion once at a business breakfast, so did not realize he’d engaged in criminal contact when I had my interactions with him. Beyond that I don’t know him particularly well, but yeah, I’d met him a number of times.

Joyce Vance:

It’s an interesting issue here, the legitimacy of this prosecution turns largely on whether there’s some sort of a double jeopardy impact. Kurson was indited in the federal system, he received a pardon, now he’s being charged by the state system. I know you recall, of course, that we’ve seen this play out before with Paul Manafort who is tried and convicted in the federal system, who is pardoned, and then when Cy Vance turns around and indites him, the ruling is he can’t go forward because of double jeopardy. It’s important to note that New York is very different in this regard from most states because typically the rule for double jeopardy says that there’s no double jeopardy if you’re charged by two different sovereigns. That means the United States is one sovereign, and in my case, the state of Alabama would be a separate sovereign. If there had been jurisdiction to charge and prosecute Manafort in Alabama, that could have happened without problem, but because in New York there’s this unusual and specific statute that constrains the state’s ability to prosecute after a failed, or in this case a pardoned, federal prosecution. There was an issue in Manafort, but that doesn’t really exist for Kurson, does it?

Preet Bharara:

It doesn’t because unlike Manafort, not only was he not convicted, he hadn’t even gone to trial. Generally speaking, the double jeopardy law applies when the process has gone along far enough that a jury has been impaneled and is now going to begin considering the case or there’s been a conviction, a guilty plea or by jury verdict. None of those happened here. So, he was charged, the case was proceeding, but we hadn’t gotten anywhere near finality, and therefore I think there’s no bar to him being charged by the Manhattan District Attorney’s Office, which signals something.

Preet Bharara:

There’s another case where an associate of the President was pardoned, given a full pardon, the only one in his case that involved four defendants, Steve Bannon for this weird, wacky fraud that we’ve talked about before. Soliciting money from people around the country to help build the wall that Donald Trump was unable to build to the tune of a million dollars, maybe pocketed by some of the alleged fraudsters. Uniquely Steve Bannon was pardoned by the President of the United States at the time. We have public reporting and maybe it’s even been confirmed by the DA’s Office, I can’t recall, that they have requested documents and done their own investigation with respect to the Steve Bannon alleged fraud. He also, just like Ken Kurson, had not been convicted, had not plead guilty, no jury had been impaneled. What does it look like for him?

Joyce Vance:

I guess there are at least two options here. One, this is the test case that sets up whether or not Bannon can be prosecuted, but prosecutors don’t usually bring a prosecution just to engage in a test case. So, it seems likely that there’s more to that here and the prosecution happens because they’re really affronted by Kurson’s conduct. In my office we discussed this a little bit beforehand. I think you were the same. We typically didn’t get involved in these sort of spousal wiretap cases. Historically these involved wiretaps on phone. Now of course they’ve shifted into internet sort of intrusions, and I think the issue here is that Kurson didn’t just listen in. He put this spy catcher software on that permitted him to keystroke his then wife’s computer. He got her passwords. He looked at her accounts and then he took the communications that he got and he sent them to her employer, in this case it was a camp and he sent it on to the director of the camp, communications between his wife and her friend. That goes beyond to just listening in and that really is the sort of cyber stalking that’s worthy of prosecution.

Preet Bharara:

Yeah, the other sort of weird element to this is the position of the ex-wife. From my reading of the charge, the surveillance, the unlawful surveillance occurred even after the marriage was over, but with respect to the ex-wife’s view of this, in the pardon document the Trump administration pointed out that Mister Kurson’s ex-wife had written a letter to the prosecutors in the eastern district. She’s reportedly one of the victims of this crime, but she didn’t want the criminal charges to proceed. She “repeatedly asked for the FBI to drop it.” She said she “hired a lawyer to protect me from being forced into yet another round of questioning.” Then she said in the letter to prosecutors, which is unusual, “My disgust with this arrest and the subsequent articles is bottomless.”

Preet Bharara:

As you and I know, sometimes victims have various reasons. In particular, this is not a domestic violence case, but in domestic violence cases the recanting of a victim does not always necessarily carry the day because there are reasons for that, but it’s not nothing. It’s something the prosecutors consider because potentially this person’s going to be a witness and would be a hostile witness and it just makes it a little bit more difficult to prove the case. What do you think of the complicating nature of the ex-wife’s position?

Joyce Vance:

I’m less impressed by here that I might be in a case where I needed her testimony, because most of the proof here comes in the form of the use of the spyware, Kurson’s repeated contact with the manufacturer of the spyware, where he’s acknowledging that he’s doing it and asking them for help to make sure that she really can’t see it. There’s really good evidence there. In a case like this, and I guess you can call me skeptical if you want to, but there’s obviously a financial motivation for her to not want to see him prosecuted. I’m not suggesting, by the way, that she’s engaging in any sort of bad behavior, but I often fear that women in this situation are being pressured and told that if they don’t engage in this sort of explanatory conduct or ask for forgiveness or ask for an absence of prosecution, that they’re told that they’ll be forced to financially suffer. In this case, I’m not very impressed by the letter that she wrote asking for the pardon.

Preet Bharara:

Well Joyce, so we’re concluding this recording late morning of Tuesday, August 24th. We’ll have a lot to talk about next week. Among them, one of Rudy Giuliani’s associates charged in the Southern District of New York, Igor Fruman, is reportedly pleading guilty tomorrow, Wednesday, August 25th, not clear at the time of this recording whether it’s a straight plea or a cooperation agreement with a plea, which might tell us something about Rudy Giuliani’s fate, but we’ll be back next week to talk about that.

Joyce Vance:

It should be an interesting discussion. Among other details, Fruman was responsible for some heavy contributions that helped, now Governor DeSantis in Florida win his race, about $50,000 that he put into that campaign. So, I’m waiting with baited breath to see if he’s cooperating or not.

Preet Bharara:

Don’t forget to send us your questions to letters@cafe.com.

Joyce Vance:

We look forward to answering them.

Preet Bharara:

That’s it for this week. Café Insider is presented by Café Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The Executive Producer is Tamara Sepper. The Senior Producer is Adam Waller. The Technical Director David Tatasciore and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Matt Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.