1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:11,360 --> 00:00:14,360 Speaker 1: I think you should. It's not often that the President 3 00:00:14,400 --> 00:00:17,360 Speaker 1: of the United States calls for the resignation of a 4 00:00:17,440 --> 00:00:20,520 Speaker 1: governor in his own party, but President Biden is just 5 00:00:20,680 --> 00:00:23,319 Speaker 1: one of those calling for the resignation of New York 6 00:00:23,320 --> 00:00:27,320 Speaker 1: Governor Andrew Cuomo after a New York Attorney General's report 7 00:00:27,440 --> 00:00:32,400 Speaker 1: corroborated eleven claims of sexual harassment by Cuomo. The one 8 00:00:32,479 --> 00:00:37,640 Speaker 1: time Democratic star denies the allegations. I want you to 9 00:00:37,760 --> 00:00:43,600 Speaker 1: know directly from me that I never touched anyone inappropriately 10 00:00:44,159 --> 00:00:48,440 Speaker 1: or made inappropriate sexual advances, joining me as former federal 11 00:00:48,479 --> 00:00:54,000 Speaker 1: prosecutor Elie Honig generally, What did the report find and 12 00:00:54,040 --> 00:00:58,280 Speaker 1: how convincing was it? So? The report basically found that 13 00:00:58,560 --> 00:01:02,160 Speaker 1: Governor Cuomo has engage in a month long pattern of 14 00:01:02,280 --> 00:01:06,360 Speaker 1: conduct of sexually harassing and arguably sexually assaulting in at 15 00:01:06,400 --> 00:01:10,120 Speaker 1: least one incident various women, including many of whom worked 16 00:01:10,160 --> 00:01:13,120 Speaker 1: for him or worked for the state. How convincing is it? 17 00:01:13,360 --> 00:01:15,440 Speaker 1: I found the evidence to be quite convincing when you 18 00:01:15,480 --> 00:01:17,600 Speaker 1: put it all together, starting with the fact that you 19 00:01:17,600 --> 00:01:20,959 Speaker 1: have eleven different complainants. I mean think about what a 20 00:01:21,080 --> 00:01:25,200 Speaker 1: massive conspiracy would take for all eleven and these complainants 21 00:01:25,240 --> 00:01:27,680 Speaker 1: to be sort of making things up or making up 22 00:01:27,720 --> 00:01:30,560 Speaker 1: the important details around what happened. And if you look 23 00:01:30,560 --> 00:01:32,320 Speaker 1: at the report you know it was written by June 24 00:01:32,360 --> 00:01:35,000 Speaker 1: Kim and another investigator. June was a colleague of mine 25 00:01:35,000 --> 00:01:37,280 Speaker 1: at the SDN. Why I should say, but it really 26 00:01:37,360 --> 00:01:41,000 Speaker 1: reads like a prosecution memo. And that's not to suggest 27 00:01:41,040 --> 00:01:44,280 Speaker 1: there's necessarily a criminal element to this. There's arguably one 28 00:01:44,280 --> 00:01:47,640 Speaker 1: piece that could be criminal, but the methodical approach that 29 00:01:47,680 --> 00:01:50,640 Speaker 1: he takes to weaving the evidence together and to showing 30 00:01:50,720 --> 00:01:55,040 Speaker 1: how this isn't just sort of claims unsubstantiated by anything else. 31 00:01:55,200 --> 00:01:59,840 Speaker 1: The testimony given by the eleven women largely corroborates each other, 32 00:02:00,120 --> 00:02:04,520 Speaker 1: and there's all sorts of other documents, texts, emails that 33 00:02:04,640 --> 00:02:07,080 Speaker 1: support it. So to me, it puts forth a fairly 34 00:02:07,080 --> 00:02:11,200 Speaker 1: compelling case. When the Attorney General said that Cuomo broke 35 00:02:11,320 --> 00:02:15,080 Speaker 1: federal and state laws, which laws was she referring to? 36 00:02:15,960 --> 00:02:19,160 Speaker 1: That was a bit of imprecise phrasing that I think 37 00:02:19,240 --> 00:02:23,240 Speaker 1: was not ideal because people here, this person broke the law, 38 00:02:23,400 --> 00:02:25,359 Speaker 1: and the first thing they think of his prison right 39 00:02:25,680 --> 00:02:27,919 Speaker 1: you broke the law, you go to jail. What Attorney 40 00:02:27,919 --> 00:02:30,880 Speaker 1: General James was saying there was that there could be 41 00:02:30,960 --> 00:02:34,640 Speaker 1: both civil and criminal laws. Now, the one piece of 42 00:02:34,639 --> 00:02:36,400 Speaker 1: the case that could be criminal, it looks like our 43 00:02:36,480 --> 00:02:40,240 Speaker 1: most criminal is the allegation that the governor reached up 44 00:02:40,240 --> 00:02:43,640 Speaker 1: the blouse and cut the breast of one state employee. 45 00:02:43,680 --> 00:02:46,639 Speaker 1: If that's proven, if you had that on videotape, for example, 46 00:02:47,040 --> 00:02:49,560 Speaker 1: then that could be a New York state crime for 47 00:02:49,560 --> 00:02:51,919 Speaker 1: forceable touching. The rest of it, though, and what it 48 00:02:52,000 --> 00:02:54,639 Speaker 1: seems like the a G was referring to could be 49 00:02:54,720 --> 00:02:58,000 Speaker 1: something that people could sue under for violation of civil laws. 50 00:02:58,000 --> 00:03:01,760 Speaker 1: So we're talking about money damages, for example, for sexual harassment, 51 00:03:02,080 --> 00:03:06,000 Speaker 1: for retaliation for hospital work environment. So I think the 52 00:03:06,080 --> 00:03:08,120 Speaker 1: AG should have been a little more precise in her 53 00:03:08,160 --> 00:03:10,520 Speaker 1: wording there. I don't know if she was intentionally imprecise, 54 00:03:10,800 --> 00:03:13,880 Speaker 1: but the vast majority of this report, while outlines conduct 55 00:03:13,919 --> 00:03:17,720 Speaker 1: that's disgraceful and disgusting, only a very small portion of 56 00:03:17,760 --> 00:03:21,200 Speaker 1: it appears to be potentially criminal. Talking about that potential 57 00:03:21,240 --> 00:03:26,600 Speaker 1: criminal case, district attorneys in Albany, Manhattan, and Westchester say 58 00:03:26,639 --> 00:03:31,720 Speaker 1: they're investigating the alleged sexual misconduct by Governor Cuomo. The 59 00:03:31,760 --> 00:03:36,680 Speaker 1: district attorney in Albany told NBC the allegations early on 60 00:03:36,800 --> 00:03:41,320 Speaker 1: certainly lad myself and other prosecutors with concurrent jurisdiction to 61 00:03:41,360 --> 00:03:45,040 Speaker 1: believe that criminal activity had in fact taken place. But 62 00:03:45,120 --> 00:03:48,520 Speaker 1: we will conduct our own independent investigation, he said, a 63 00:03:48,560 --> 00:03:53,240 Speaker 1: formal complaint is necessary. But they've made overtures, the investigators 64 00:03:53,240 --> 00:03:56,680 Speaker 1: to several women and tried to make contact with them, 65 00:03:56,800 --> 00:04:00,720 Speaker 1: and he said that hasn't happened. So how usual is 66 00:04:00,800 --> 00:04:04,640 Speaker 1: it for a d A to start an investigation without 67 00:04:04,640 --> 00:04:09,440 Speaker 1: a criminal complaint? Das and other prosecutors can start investigations 68 00:04:09,480 --> 00:04:12,240 Speaker 1: based on whatever they want. Sometimes you'll have a complaint 69 00:04:12,240 --> 00:04:15,520 Speaker 1: from a citizen, with some narrow exceptions. Sometimes the police 70 00:04:15,560 --> 00:04:18,400 Speaker 1: will bring you something. Sometimes you'll develop something through an 71 00:04:18,400 --> 00:04:21,320 Speaker 1: informant or through cooperating witness. But this all is not 72 00:04:21,400 --> 00:04:24,080 Speaker 1: as formal as people sometimes make it out right, there's 73 00:04:24,080 --> 00:04:26,680 Speaker 1: a big thing of Hereby refer this case to the 74 00:04:26,720 --> 00:04:30,719 Speaker 1: district attorney, anyone can refer anything to any prosecutor. In 75 00:04:31,000 --> 00:04:34,600 Speaker 1: both prosecutors offices where I work, we had incoming referrals 76 00:04:34,640 --> 00:04:37,960 Speaker 1: and complaints all day long from sources credible and not 77 00:04:38,200 --> 00:04:41,800 Speaker 1: political and not official and not the prosecutor can open 78 00:04:41,839 --> 00:04:45,080 Speaker 1: an investigation generally speaking of whatever he or she sees 79 00:04:45,240 --> 00:04:48,479 Speaker 1: as legitimate and well founded. And a lot of this 80 00:04:48,600 --> 00:04:52,359 Speaker 1: standing on ceremony is just sort of excuse making or 81 00:04:52,440 --> 00:04:56,080 Speaker 1: over formalizing. Nobody needs to say I hereby refer I 82 00:04:56,200 --> 00:04:59,080 Speaker 1: hereby make a formal complaint that d A can investigate 83 00:04:59,120 --> 00:05:02,000 Speaker 1: whatever they think is well founded. If proven, this would 84 00:05:02,000 --> 00:05:07,560 Speaker 1: constitute misdemeanor sexual assault. I assume how often does something 85 00:05:07,600 --> 00:05:13,159 Speaker 1: like misdemeanor sexual assault in the workplace get criminally charged? Well, 86 00:05:13,240 --> 00:05:15,480 Speaker 1: I can't answer that because we don't know that denominated 87 00:05:15,600 --> 00:05:18,840 Speaker 1: right that you know, Unfortunately, sexual assault is one of 88 00:05:18,880 --> 00:05:22,800 Speaker 1: the most underreported crimes. There's a long history of data 89 00:05:22,839 --> 00:05:25,560 Speaker 1: on that, so it's impossible to know how often this 90 00:05:25,640 --> 00:05:28,880 Speaker 1: happens and doesn't get reported. It's also, frankly not possible 91 00:05:28,920 --> 00:05:32,039 Speaker 1: to know how often it gets reported and then not prosecuted. 92 00:05:32,440 --> 00:05:36,719 Speaker 1: I will tell you that sexual assault is traditionally under reported, 93 00:05:36,800 --> 00:05:39,960 Speaker 1: under prosecuted, and you know, off the top of my head, 94 00:05:40,560 --> 00:05:44,280 Speaker 1: I can't think of many, if any workplace cases. That's 95 00:05:44,279 --> 00:05:46,479 Speaker 1: not to say they shouldn't be charged, though, but there's 96 00:05:46,480 --> 00:05:49,840 Speaker 1: a lot of pressures and factors coming to bear that 97 00:05:49,880 --> 00:05:52,320 Speaker 1: make it difficult on victims really to come forward. It's 98 00:05:52,320 --> 00:05:53,920 Speaker 1: not fair to victims and it's something that I think 99 00:05:53,960 --> 00:05:57,120 Speaker 1: prosecutors need to be aware of. It seems like there's 100 00:05:57,120 --> 00:06:02,760 Speaker 1: a lot of pressure to charge Almo criminally, but it 101 00:06:02,839 --> 00:06:06,719 Speaker 1: may not go anywhere. In fact. Well, again focusing on 102 00:06:06,800 --> 00:06:10,279 Speaker 1: the one victim identified in the report as executive assistant 103 00:06:10,360 --> 00:06:12,359 Speaker 1: number one, she has her account. She was willing to 104 00:06:12,360 --> 00:06:13,920 Speaker 1: come forward and speak to the to the A G. 105 00:06:14,080 --> 00:06:17,680 Speaker 1: S Office investigators. And so if I'm the d A 106 00:06:17,800 --> 00:06:20,040 Speaker 1: investigating in this case, that's my first phone call, I 107 00:06:20,040 --> 00:06:22,240 Speaker 1: would want to speak to that executive assistant. I think 108 00:06:22,240 --> 00:06:24,599 Speaker 1: it's worth noting if you look at the report, the 109 00:06:24,680 --> 00:06:28,600 Speaker 1: AGS investigators, including June Kim, who was a longtime federal prosecutor, 110 00:06:29,000 --> 00:06:33,120 Speaker 1: concluded that she was credible and well supported, and they 111 00:06:33,160 --> 00:06:37,560 Speaker 1: rejected Governor Cuomo's denial of that incident as being not 112 00:06:37,720 --> 00:06:40,760 Speaker 1: credible and not believable. So that's at least the view 113 00:06:40,880 --> 00:06:43,960 Speaker 1: that June Kim and the investigators came to. But of 114 00:06:44,000 --> 00:06:45,520 Speaker 1: course the all of any DA will have to do 115 00:06:45,640 --> 00:06:48,320 Speaker 1: its own investigation and come to its own conclusion. And 116 00:06:48,560 --> 00:06:53,920 Speaker 1: what's your reaction to Cuomo's response his denials. It was 117 00:06:54,400 --> 00:06:58,240 Speaker 1: not compelling, it was incomplete, There was quite a bit 118 00:06:58,279 --> 00:07:01,359 Speaker 1: of distraction. And look, denialism, I mean we say that 119 00:07:01,400 --> 00:07:03,720 Speaker 1: in a negative phrase, and it is. But I mean 120 00:07:03,880 --> 00:07:08,200 Speaker 1: everyone's entitled to deny things. Everyone's entitled to deny allegations. 121 00:07:08,240 --> 00:07:11,400 Speaker 1: But here's the problem. First of all, he makes a 122 00:07:11,480 --> 00:07:14,960 Speaker 1: categorical statement. He says, at no time did I engage 123 00:07:15,000 --> 00:07:19,480 Speaker 1: involuntary touching. I never involuntarily touched anybody. That's just impossible 124 00:07:19,480 --> 00:07:21,480 Speaker 1: to swear with the report. And it's not as if 125 00:07:21,520 --> 00:07:23,280 Speaker 1: it's the word of one person versus the word of 126 00:07:23,320 --> 00:07:25,360 Speaker 1: another person. Is the word of quite a few people 127 00:07:25,480 --> 00:07:28,320 Speaker 1: against the word of one person. All the stuff where 128 00:07:28,320 --> 00:07:31,440 Speaker 1: the governor showed photos of himself hugging and kissing and 129 00:07:31,480 --> 00:07:34,520 Speaker 1: sort of caressing other people in public, I found to 130 00:07:34,520 --> 00:07:37,480 Speaker 1: be a bit manipulative and unconvincing. I mean, first of all, 131 00:07:37,800 --> 00:07:40,480 Speaker 1: you know, the way you would hug somebody family member, 132 00:07:40,560 --> 00:07:43,400 Speaker 1: you know, that's not really comparable to this, And I 133 00:07:43,400 --> 00:07:46,120 Speaker 1: think it's sort of trivializes the nature of the complaints 134 00:07:46,160 --> 00:07:49,800 Speaker 1: made against him. Let's talk about the possibility of civil cases. 135 00:07:50,160 --> 00:07:54,840 Speaker 1: What kinds of charges do you see if civil cases 136 00:07:54,880 --> 00:07:58,400 Speaker 1: were brought. Yeah, so any of these eleven women, all 137 00:07:58,400 --> 00:08:02,040 Speaker 1: of them none, some um has the option to bile 138 00:08:02,080 --> 00:08:04,760 Speaker 1: a civil lawsuit which would seek money damages that the 139 00:08:04,760 --> 00:08:08,800 Speaker 1: claims would be sexual harassment, the claim could be workplace retaliation, 140 00:08:09,160 --> 00:08:12,040 Speaker 1: the claims could be hostile work environment. Um. You know, 141 00:08:12,120 --> 00:08:14,520 Speaker 1: you have to prove your case in the civil case 142 00:08:14,560 --> 00:08:17,600 Speaker 1: by by preponderance, meaning by fifty point one percent, which 143 00:08:17,640 --> 00:08:20,800 Speaker 1: is a much lower bar than in the criminal context. 144 00:08:21,120 --> 00:08:24,400 Speaker 1: And you have to prove damages that you are monetarily damaged. 145 00:08:24,400 --> 00:08:27,679 Speaker 1: But but emotional distress and that kind of thing do 146 00:08:27,680 --> 00:08:31,280 Speaker 1: do count. They do suffice. So we will see. And 147 00:08:31,320 --> 00:08:33,760 Speaker 1: people could, by the way, file suit against Andrew Cuomo 148 00:08:33,960 --> 00:08:36,920 Speaker 1: as an individual. They could file suit against the State 149 00:08:36,960 --> 00:08:38,959 Speaker 1: of New York if he was acting in his official 150 00:08:39,000 --> 00:08:40,880 Speaker 1: capacity and if there were you know, one of the 151 00:08:40,880 --> 00:08:43,720 Speaker 1: interesting things about this report is there's other state of 152 00:08:43,880 --> 00:08:47,640 Speaker 1: state employees around the governor who helped him with cover 153 00:08:47,760 --> 00:08:51,600 Speaker 1: ups and retaliatory measures. So that's how civil lawsuits could 154 00:08:51,600 --> 00:08:55,720 Speaker 1: play out. Now there is pressure for Cuomo to resign 155 00:08:55,880 --> 00:09:00,520 Speaker 1: from the president on down the political spectrum. If he doesn't, 156 00:09:00,520 --> 00:09:04,040 Speaker 1: the State Assembly has the power to impeach him. How 157 00:09:04,080 --> 00:09:07,199 Speaker 1: would impeachment work on the state level. Yes, so New 158 00:09:07,280 --> 00:09:10,720 Speaker 1: York state impeachment is actually similar to, but a bit 159 00:09:10,760 --> 00:09:13,960 Speaker 1: different from, the federal impeachment that we all, unfortunately have 160 00:09:14,080 --> 00:09:16,800 Speaker 1: become all too familiar with because it's happened twice in 161 00:09:16,840 --> 00:09:19,880 Speaker 1: the last year and change thanks to Donald Trump. So 162 00:09:20,280 --> 00:09:22,760 Speaker 1: the impeachment at the state level starts in the state Assembly, 163 00:09:22,800 --> 00:09:24,880 Speaker 1: which is like the U. S House of Representatives, but 164 00:09:24,920 --> 00:09:27,760 Speaker 1: only in New York State. That requires a simple majority 165 00:09:27,840 --> 00:09:29,959 Speaker 1: vote like in the US House, but a couple of 166 00:09:30,120 --> 00:09:33,200 Speaker 1: big differences. One, the New York state requirement does not 167 00:09:33,320 --> 00:09:37,040 Speaker 1: require high crimes and misdemeanor unlike in the federal process, 168 00:09:37,320 --> 00:09:40,959 Speaker 1: the New York state impeachment provisions don't specify what types 169 00:09:41,000 --> 00:09:43,719 Speaker 1: of offenses, so it's much broader. The other thing is, 170 00:09:43,760 --> 00:09:47,360 Speaker 1: if he is impeached before he's tried, Governor Cuomo will 171 00:09:47,400 --> 00:09:51,600 Speaker 1: formally lose power. He's out temporarily at least as governor, 172 00:09:51,840 --> 00:09:54,720 Speaker 1: and the Lieutenant governor becomes the acting governor. That's of 173 00:09:54,720 --> 00:09:58,200 Speaker 1: course different than in our system. Then the governor is 174 00:09:58,240 --> 00:10:01,240 Speaker 1: to be tried in just the New York State Senate, 175 00:10:01,280 --> 00:10:04,640 Speaker 1: but a sort of unusual body comprised of the state 176 00:10:04,720 --> 00:10:08,480 Speaker 1: Senate plus the seven judges on New York's highest court, 177 00:10:08,559 --> 00:10:11,880 Speaker 1: the Court of Appeals. That body together tries the case, 178 00:10:11,920 --> 00:10:14,360 Speaker 1: and then it takes two thirds of that body in 179 00:10:14,480 --> 00:10:16,880 Speaker 1: order to convict and disqualify him. But it would be 180 00:10:16,920 --> 00:10:20,360 Speaker 1: an allogist too if the U. S. Senate plus the U. S. 181 00:10:20,360 --> 00:10:23,960 Speaker 1: Supreme Court handled an impeachment trial in the federal system, 182 00:10:24,000 --> 00:10:26,240 Speaker 1: which of course is not the way it works. Tell 183 00:10:26,280 --> 00:10:30,480 Speaker 1: us about the federal investigation of Cuomo, we don't know 184 00:10:30,520 --> 00:10:33,640 Speaker 1: a lot about it. There has been an investigation by 185 00:10:33,760 --> 00:10:38,320 Speaker 1: d o J about whether people in the administration gave 186 00:10:38,360 --> 00:10:42,440 Speaker 1: false information to federal investigators about the numbers of COVID deaths. 187 00:10:42,520 --> 00:10:45,320 Speaker 1: The question is whether people in the administration we're trying 188 00:10:45,360 --> 00:10:49,640 Speaker 1: to falsify or give disingenuous responses in order to minimize 189 00:10:50,000 --> 00:10:52,199 Speaker 1: the political damage. But if you make false statements to 190 00:10:52,240 --> 00:10:57,160 Speaker 1: federal investigators intentionally, that could be a crime. And the 191 00:10:57,200 --> 00:11:02,760 Speaker 1: Attorney General says she's can continuing her investigation of Cuomo 192 00:11:02,800 --> 00:11:08,520 Speaker 1: with respect to his book and whether public resources were utilized, yes, 193 00:11:08,600 --> 00:11:12,160 Speaker 1: which would be especially a misappropriation of state resources, state 194 00:11:12,240 --> 00:11:15,840 Speaker 1: funds exactly. So we'll see where the AG goes, you know, 195 00:11:15,840 --> 00:11:17,760 Speaker 1: one of the dynamics here, as the governor has tried 196 00:11:17,800 --> 00:11:20,320 Speaker 1: to say this is political. The ag Leticia James wants 197 00:11:20,360 --> 00:11:23,120 Speaker 1: to become governor, which may or may not be true. 198 00:11:23,160 --> 00:11:26,360 Speaker 1: But I have a hard time with that. First of all, 199 00:11:26,800 --> 00:11:31,360 Speaker 1: the investigation done into the sexual harassment allegations was done 200 00:11:31,360 --> 00:11:34,319 Speaker 1: by independent investigators. Many of the people calling for his 201 00:11:34,440 --> 00:11:37,839 Speaker 1: resignation are Democrats, and the people who bade these allegations, 202 00:11:37,840 --> 00:11:42,280 Speaker 1: who actually came forward, these accusers, these women, you can't 203 00:11:42,320 --> 00:11:45,079 Speaker 1: say that that's something that Letitia James or anyone else 204 00:11:45,120 --> 00:11:47,079 Speaker 1: put them up to. So I think that's a very 205 00:11:47,160 --> 00:11:51,840 Speaker 1: unconvincing defense, and just explain why, as the AG said 206 00:11:51,880 --> 00:11:55,160 Speaker 1: several times yesterday, this is the end of what she 207 00:11:55,360 --> 00:11:58,000 Speaker 1: can do. Yeah, I mean, it's not necessarily the end 208 00:11:58,000 --> 00:12:00,200 Speaker 1: of what she can do. It's it apparently at the 209 00:12:00,280 --> 00:12:02,920 Speaker 1: end of what she's willing to do. But I think 210 00:12:02,920 --> 00:12:05,400 Speaker 1: her message here is, Okay, if there's going to be 211 00:12:05,440 --> 00:12:08,160 Speaker 1: criminal charges, we will leave that up to the d 212 00:12:08,280 --> 00:12:11,280 Speaker 1: a's and if there's going to be impeachment processes, that's 213 00:12:11,320 --> 00:12:14,120 Speaker 1: in the hands of the New York State legislature and 214 00:12:14,120 --> 00:12:16,920 Speaker 1: then send it. So I guess it's it's roughly akin 215 00:12:17,040 --> 00:12:19,960 Speaker 1: to where Robert Mueller left things off. If you remember 216 00:12:19,960 --> 00:12:22,520 Speaker 1: when he did his report, he said, here my findings, 217 00:12:22,600 --> 00:12:25,240 Speaker 1: and I'm out now. You know, Congress, if you want 218 00:12:25,240 --> 00:12:28,280 Speaker 1: to impeach, that's your prerogative. Other prosecutors, if you want 219 00:12:28,280 --> 00:12:30,559 Speaker 1: to bring charges, you know what, once the president's out 220 00:12:30,559 --> 00:12:32,360 Speaker 1: of office, you can do that. Of course, the governor 221 00:12:32,400 --> 00:12:35,480 Speaker 1: doesn't have those same protections. So Letitia James has made 222 00:12:35,480 --> 00:12:37,760 Speaker 1: the decision that this opinion is going to be her 223 00:12:37,800 --> 00:12:40,920 Speaker 1: final word on the matter, and now various other officials 224 00:12:41,080 --> 00:12:43,400 Speaker 1: have to pick it up. What else could you do 225 00:12:43,480 --> 00:12:45,840 Speaker 1: as a g you know, there's not a heck of 226 00:12:45,840 --> 00:12:48,440 Speaker 1: a lot more. I mean, she could make a we 227 00:12:48,480 --> 00:12:51,600 Speaker 1: talked about this earlier. I guess a formal referral of 228 00:12:51,640 --> 00:12:55,600 Speaker 1: a criminal investigation or formal referral to the Assembly for 229 00:12:55,840 --> 00:12:58,520 Speaker 1: impeachment proceedings. But both of those things are symbolic, they're 230 00:12:58,559 --> 00:13:01,040 Speaker 1: not official, They don't carry any official weight. They don't 231 00:13:01,120 --> 00:13:04,720 Speaker 1: need her to make referrals. But yeah, there's not really 232 00:13:04,840 --> 00:13:08,800 Speaker 1: much more that she can do. She's authorized this investigation, 233 00:13:08,840 --> 00:13:11,080 Speaker 1: which happened according to the laws of New York, and 234 00:13:11,120 --> 00:13:13,440 Speaker 1: the reports come out, so you know there's more she 235 00:13:13,480 --> 00:13:15,640 Speaker 1: could do sort of symbolically and politically, but if we're 236 00:13:15,679 --> 00:13:18,240 Speaker 1: just talking about technically, this sort of is the end 237 00:13:18,240 --> 00:13:20,160 Speaker 1: of the road for the a G on this issue. 238 00:13:20,400 --> 00:13:22,959 Speaker 1: Thanks for being on the show. Ellie. That's former federal 239 00:13:23,000 --> 00:13:29,120 Speaker 1: prosecutor Ellie Honig. A federal judge has temporarily blocked Texas 240 00:13:29,200 --> 00:13:32,800 Speaker 1: state troopers from enforcing the governor's order to stop anyone 241 00:13:32,840 --> 00:13:36,760 Speaker 1: who isn't in law enforcement from transporting migrants across the 242 00:13:36,800 --> 00:13:40,559 Speaker 1: Texas border. This came in response to the Biden administration 243 00:13:40,720 --> 00:13:44,920 Speaker 1: suing Texas to block Governor Greg Abbot's order allowing state 244 00:13:44,960 --> 00:13:49,520 Speaker 1: troopers to stop vehicles suspected of transporting migrants on grounds 245 00:13:49,520 --> 00:13:53,680 Speaker 1: that they may spread COVID nineteen. The administration warns the 246 00:13:53,720 --> 00:13:57,640 Speaker 1: practice would exacerbate problems amid high levels of crossing on 247 00:13:57,679 --> 00:14:01,160 Speaker 1: the state's border with Mexico joining EASi. Leon Fresco, a 248 00:14:01,240 --> 00:14:04,480 Speaker 1: partner at Hollandon Knight, tell me about the Texas Governor's 249 00:14:04,640 --> 00:14:08,920 Speaker 1: executive order. So, the Texas governor issued an executive order 250 00:14:09,000 --> 00:14:13,959 Speaker 1: last week that basically said that any officer in Texas 251 00:14:14,280 --> 00:14:18,440 Speaker 1: could stop any conveyance or vehicle that they thought was 252 00:14:18,520 --> 00:14:22,320 Speaker 1: being used to transport people who had crossed the southern 253 00:14:22,360 --> 00:14:26,880 Speaker 1: border without status and basically take those human beings who 254 00:14:26,920 --> 00:14:29,800 Speaker 1: did not have status and returned them back to either 255 00:14:29,880 --> 00:14:33,040 Speaker 1: where their trip began or to the port of entry 256 00:14:33,120 --> 00:14:37,000 Speaker 1: themselves where they actually either crossed or closest to where 257 00:14:37,000 --> 00:14:41,920 Speaker 1: they crossed. And the idea behind this executive order was 258 00:14:42,240 --> 00:14:45,360 Speaker 1: that Texas would not be used, according to the governor, 259 00:14:45,760 --> 00:14:49,880 Speaker 1: as a transport location where basically people would come in 260 00:14:50,000 --> 00:14:53,240 Speaker 1: from the south of Texas and then leave through Texas 261 00:14:53,280 --> 00:14:56,360 Speaker 1: into the rest of the United States. Are most of 262 00:14:56,360 --> 00:14:59,640 Speaker 1: the people that are picking up actually people who are 263 00:14:59,720 --> 00:15:04,480 Speaker 1: under the authority of the federal government and our transporting migrants. 264 00:15:04,480 --> 00:15:07,160 Speaker 1: So the problem with this case, which is why the 265 00:15:07,240 --> 00:15:11,560 Speaker 1: federal government is suing the State of Texas, is the 266 00:15:11,560 --> 00:15:14,520 Speaker 1: there's an exception in the order that says, if you're 267 00:15:14,520 --> 00:15:18,120 Speaker 1: being transported by the federal government then or state or 268 00:15:18,200 --> 00:15:22,360 Speaker 1: local government, whatever, but some government official, then the State 269 00:15:22,400 --> 00:15:25,240 Speaker 1: of Texas and their police and their authorities won't stop 270 00:15:25,280 --> 00:15:27,480 Speaker 1: you and interdict you and bring you back to your 271 00:15:27,480 --> 00:15:31,400 Speaker 1: original destination. But the problem is a lot of the 272 00:15:31,440 --> 00:15:35,320 Speaker 1: individuals who are transporting people who have recently crossed the 273 00:15:35,400 --> 00:15:39,560 Speaker 1: Southern border are actually contractors employed by the federal government, 274 00:15:39,840 --> 00:15:43,280 Speaker 1: but aren't actually federal government employees, so they can't show 275 00:15:43,320 --> 00:15:47,520 Speaker 1: you a badge there from some company brand X Transportation, 276 00:15:48,080 --> 00:15:52,040 Speaker 1: and brand X Transportation has gotten into a contract with 277 00:15:52,120 --> 00:15:56,600 Speaker 1: the federal government to take, for instance, unaccompanied miners from 278 00:15:56,640 --> 00:16:00,280 Speaker 1: a border patrol facility to a shelter operative by the 279 00:16:00,320 --> 00:16:04,360 Speaker 1: Office of Refugee Resettlement, or it has contracted to take 280 00:16:05,000 --> 00:16:10,000 Speaker 1: adults from the CBP facilities in the border to an 281 00:16:10,000 --> 00:16:14,840 Speaker 1: ice facility somewhere else in Texas, and those contractors could 282 00:16:14,960 --> 00:16:20,080 Speaker 1: conceivably get stopped. And so that is a situation that 283 00:16:20,120 --> 00:16:22,680 Speaker 1: the federal government wanted to see about because they said, 284 00:16:22,920 --> 00:16:25,880 Speaker 1: we don't want you stopping our contractors who are trying 285 00:16:25,880 --> 00:16:29,560 Speaker 1: to make the system operate. Here. Let me ask you this, 286 00:16:29,720 --> 00:16:34,400 Speaker 1: are there that many migrants who are being transported not 287 00:16:34,480 --> 00:16:38,200 Speaker 1: under federal government authority, but are being transported that you 288 00:16:38,240 --> 00:16:41,760 Speaker 1: want to have an executive order to stop it. Well, 289 00:16:41,800 --> 00:16:47,040 Speaker 1: here's the problem. So just today there's news that says 290 00:16:47,240 --> 00:16:51,720 Speaker 1: that about two hundred thousand people try to enter the 291 00:16:51,840 --> 00:16:55,040 Speaker 1: United States through the southern border, most of them through 292 00:16:55,080 --> 00:16:58,360 Speaker 1: Texas because in the other states there's fencing, and so 293 00:16:58,760 --> 00:17:02,520 Speaker 1: most people go through. That's where there's less spending. And 294 00:17:02,880 --> 00:17:06,240 Speaker 1: those individuals we're talking two hundred thousand a month. We're 295 00:17:06,280 --> 00:17:09,359 Speaker 1: talking then at the end of the day a large 296 00:17:09,440 --> 00:17:11,960 Speaker 1: you know, over one point four million over the course 297 00:17:12,000 --> 00:17:15,399 Speaker 1: of a year. And so what what happens is many 298 00:17:15,480 --> 00:17:18,480 Speaker 1: of those individuals don't actually end up wanting to stay 299 00:17:18,480 --> 00:17:21,159 Speaker 1: in Texas. Some do, but then some want to go 300 00:17:21,240 --> 00:17:24,320 Speaker 1: to Los Angeles or Chicago or New York or somewhere else. 301 00:17:24,760 --> 00:17:26,920 Speaker 1: And that's because that's where that's where they have their 302 00:17:26,960 --> 00:17:32,600 Speaker 1: particular family members. And so what happens is if you 303 00:17:32,640 --> 00:17:36,719 Speaker 1: are let's say you're an unaccompanied minor and you're actually 304 00:17:36,920 --> 00:17:41,560 Speaker 1: processed through the southern border into an RR facility and 305 00:17:41,600 --> 00:17:45,680 Speaker 1: then process to a sponsor, what the governor of Texas 306 00:17:45,680 --> 00:17:48,920 Speaker 1: is saying is saying, I object to this process continuing. 307 00:17:49,240 --> 00:17:51,919 Speaker 1: I don't even want these people coming into the United States, 308 00:17:52,119 --> 00:17:55,359 Speaker 1: much less being transported through the state of Texas to 309 00:17:55,560 --> 00:17:58,879 Speaker 1: some other state. And so he's trying to sort of 310 00:17:58,920 --> 00:18:02,480 Speaker 1: take back the whatever power he thinks he might be 311 00:18:02,560 --> 00:18:06,120 Speaker 1: able to credibly assert to try to move people back 312 00:18:06,119 --> 00:18:10,280 Speaker 1: towards the southern border. But he framed his executive order 313 00:18:10,520 --> 00:18:14,240 Speaker 1: as a way to prevent the spread of COVID nineteen. Correct. 314 00:18:14,520 --> 00:18:17,280 Speaker 1: And that's what was a little bit complicated about this 315 00:18:17,440 --> 00:18:22,240 Speaker 1: because there's two criticisms that are being levied here, which is, first, 316 00:18:22,760 --> 00:18:25,159 Speaker 1: it's hard to say you're doing this to stop the 317 00:18:25,160 --> 00:18:27,639 Speaker 1: spread of COVID nineteen and at the same time you 318 00:18:27,760 --> 00:18:32,000 Speaker 1: also have mandates that nobody nobody's gonna wear masks in Texas. 319 00:18:32,040 --> 00:18:35,760 Speaker 1: So that's one criticism that the authorities are levying at 320 00:18:36,080 --> 00:18:40,880 Speaker 1: the governor. But second that this is really about stopping 321 00:18:40,880 --> 00:18:44,400 Speaker 1: a legal immigration, it's not about stopping COVID, and so 322 00:18:44,640 --> 00:18:48,520 Speaker 1: that justification it shouldn't be given. So the Justice Department 323 00:18:48,880 --> 00:18:51,760 Speaker 1: wrote a letter, they tried to settle this, and then 324 00:18:51,800 --> 00:18:55,960 Speaker 1: finally they sued. What are the grounds that they're suing under. Essentially, 325 00:18:55,960 --> 00:18:59,600 Speaker 1: it's all about federal preemption, which is that states don't 326 00:18:59,680 --> 00:19:04,359 Speaker 1: have the authority to interfere with the federal government and 327 00:19:04,440 --> 00:19:09,679 Speaker 1: its execution of federal laws. And so regardless of whether 328 00:19:09,760 --> 00:19:13,040 Speaker 1: it's federal officials themselves who work for ICE or c 329 00:19:13,200 --> 00:19:16,280 Speaker 1: VP who are not covered by this order, or even 330 00:19:16,320 --> 00:19:20,359 Speaker 1: federal contractors who are working pursuing the contracts to do 331 00:19:20,440 --> 00:19:22,919 Speaker 1: what a federal official would be doing except for the 332 00:19:22,960 --> 00:19:25,880 Speaker 1: fact that it's being contracted out to a private company 333 00:19:25,960 --> 00:19:30,040 Speaker 1: to do. The state government does not have authority to 334 00:19:30,320 --> 00:19:33,600 Speaker 1: interfere with these operations of the federal government. So there's 335 00:19:33,640 --> 00:19:37,280 Speaker 1: the supremacy clause, that take care clause, and all of 336 00:19:37,280 --> 00:19:40,679 Speaker 1: these various clauses preemption all have to do with the 337 00:19:40,720 --> 00:19:43,800 Speaker 1: fact that basically the state does not have authority here 338 00:19:44,240 --> 00:19:49,040 Speaker 1: to interfere with the federal government's execution of immigration laws 339 00:19:49,080 --> 00:19:52,560 Speaker 1: because that is a federal issue that Congress entrusted to 340 00:19:52,640 --> 00:19:55,840 Speaker 1: the federal government, and no one state could interfere because 341 00:19:55,840 --> 00:20:00,159 Speaker 1: you can imagine a difficult patchwork of fifty different eight 342 00:20:00,240 --> 00:20:03,639 Speaker 1: laws with regard to this issue, where you would almost 343 00:20:03,680 --> 00:20:07,040 Speaker 1: have an impossibility of navigating how people are supposed to 344 00:20:07,119 --> 00:20:09,560 Speaker 1: go through the United States of every state has a 345 00:20:09,600 --> 00:20:13,520 Speaker 1: different rule for under what way you can actually transport 346 00:20:13,640 --> 00:20:18,320 Speaker 1: people through their state. Texas Governor Greg Abbott came back 347 00:20:18,359 --> 00:20:21,159 Speaker 1: and said he has an emergency authority to control the 348 00:20:21,240 --> 00:20:24,760 Speaker 1: movements of people during a disaster. The court has to 349 00:20:24,760 --> 00:20:30,239 Speaker 1: scrutinize whether the authority is properly being exercised visa e. 350 00:20:30,840 --> 00:20:34,920 Speaker 1: National Emergency number one or the state emergency in this case, 351 00:20:35,000 --> 00:20:38,560 Speaker 1: these of the COVID, whether it's pretextual, or whether even 352 00:20:38,560 --> 00:20:41,760 Speaker 1: if it's not pretextual, you can do it, but not 353 00:20:41,840 --> 00:20:46,120 Speaker 1: to this extent that you're interfering with federal operations. But certainly, 354 00:20:46,160 --> 00:20:50,119 Speaker 1: for instance, as an example, you could certainly say, hey, 355 00:20:50,160 --> 00:20:53,399 Speaker 1: because of the COVID nineteen emergency, nobody is allowed to 356 00:20:53,920 --> 00:20:57,560 Speaker 1: travel more than five miles outside of their home for 357 00:20:57,640 --> 00:21:00,520 Speaker 1: the next two weeks after ten p m. At night 358 00:21:00,640 --> 00:21:03,600 Speaker 1: or something like that. States have that police power authority 359 00:21:03,920 --> 00:21:07,320 Speaker 1: to do that. But the question becomes when you're doing 360 00:21:07,359 --> 00:21:10,959 Speaker 1: it against a certain segment of people and in a 361 00:21:11,000 --> 00:21:16,560 Speaker 1: certain manner, and it's not tailored toward actually the COVID 362 00:21:16,640 --> 00:21:19,920 Speaker 1: nineteen issue, but it's actually tailored toward an issue that's 363 00:21:19,960 --> 00:21:24,320 Speaker 1: related towards federal laws, in this case immigration. That's where 364 00:21:24,400 --> 00:21:26,680 Speaker 1: this becomes a much more difficult case for the state 365 00:21:26,760 --> 00:21:30,760 Speaker 1: to win. I know that pro immigration groups are arguing 366 00:21:30,880 --> 00:21:37,360 Speaker 1: that the directive encourages racial profiling of Latinos. Well, certainly, 367 00:21:37,520 --> 00:21:39,919 Speaker 1: it depends on how it's implemented. And one of the 368 00:21:40,040 --> 00:21:43,640 Speaker 1: arguments that Texas is making in the court is, well, 369 00:21:43,680 --> 00:21:46,399 Speaker 1: you don't even know how we're implementing this yet, because 370 00:21:46,440 --> 00:21:49,359 Speaker 1: we haven't even decided how we're implementing this yet, so 371 00:21:49,440 --> 00:21:53,000 Speaker 1: you can't issue an injunction until you can actually determine 372 00:21:53,000 --> 00:21:57,040 Speaker 1: our implementation instructions which we're going to issue. So that 373 00:21:57,160 --> 00:22:00,600 Speaker 1: argument cuts both ways because we don't know it will happen. 374 00:22:00,640 --> 00:22:04,040 Speaker 1: But certainly, as we don't know what will happen, there's 375 00:22:04,040 --> 00:22:06,280 Speaker 1: two ways this kind of thing can be enforced. So, 376 00:22:06,400 --> 00:22:11,480 Speaker 1: for instance, if all you had where Texas Police officials 377 00:22:11,480 --> 00:22:16,639 Speaker 1: standing outside of CBP facilities and ICE facilities and or 378 00:22:16,720 --> 00:22:20,760 Speaker 1: our facilities saying hey, you can't drive this truck or 379 00:22:20,840 --> 00:22:24,000 Speaker 1: van wherever you think of going. It has to stay here. 380 00:22:24,680 --> 00:22:27,639 Speaker 1: That will lead to some supremacy clause issues, but it 381 00:22:27,640 --> 00:22:30,920 Speaker 1: wouldn't lead to racial profiling issues because you would know 382 00:22:31,560 --> 00:22:34,480 Speaker 1: that the people in those vehicles where the people you 383 00:22:34,480 --> 00:22:38,760 Speaker 1: were actually targeted. But if you were picking people up 384 00:22:38,760 --> 00:22:41,320 Speaker 1: in the middle of just the highway and saying this 385 00:22:41,359 --> 00:22:44,199 Speaker 1: looks like it has a vehicle with undocumented people on it, 386 00:22:44,560 --> 00:22:47,119 Speaker 1: well that certainly you have no basis to say that 387 00:22:47,160 --> 00:22:51,280 Speaker 1: other than what you think are characteristics about the appearance 388 00:22:51,320 --> 00:22:54,520 Speaker 1: of undocumented people, that is certainly going to be much 389 00:22:54,560 --> 00:22:57,960 Speaker 1: more problematic because we don't know how it would be applied. 390 00:22:58,480 --> 00:23:01,520 Speaker 1: That's why these criticism them may or may not be valid. 391 00:23:02,040 --> 00:23:05,240 Speaker 1: So this time the Biden administration gets to pick the judge. 392 00:23:05,280 --> 00:23:07,760 Speaker 1: I guess right. Yes, there's a districtcord in El Paso 393 00:23:07,840 --> 00:23:10,399 Speaker 1: where the court where the case is being heard. Judge 394 00:23:10,440 --> 00:23:14,520 Speaker 1: was appointed by President Bush, by the by George W. Bush, 395 00:23:14,760 --> 00:23:19,000 Speaker 1: and the judge you know, gave the case very good 396 00:23:19,000 --> 00:23:22,280 Speaker 1: consideration at the hearing yesterday. And it's unclear what the 397 00:23:22,320 --> 00:23:24,480 Speaker 1: judge is going to do other than an order will 398 00:23:24,520 --> 00:23:27,760 Speaker 1: be issued imminently on whether to enjoy this or to 399 00:23:27,880 --> 00:23:33,040 Speaker 1: wait until Texas actually starts implementing this and issues guidance 400 00:23:33,080 --> 00:23:35,800 Speaker 1: on how it's going to implement it. So I want 401 00:23:35,840 --> 00:23:38,520 Speaker 1: to ask you a question about the number of migrants 402 00:23:38,600 --> 00:23:41,879 Speaker 1: crossing the southern border is surging. The number of times 403 00:23:41,880 --> 00:23:45,240 Speaker 1: border officials caught migrants crossing illegally in June was the 404 00:23:45,320 --> 00:23:49,000 Speaker 1: highest monthly figure since April of two thousand and more 405 00:23:49,040 --> 00:23:52,199 Speaker 1: than a third of those crossings were attempted by a 406 00:23:52,280 --> 00:23:57,040 Speaker 1: repeat crosser. So the Biden administration has decided to leave 407 00:23:57,119 --> 00:24:00,560 Speaker 1: in place the public health rule. Tell us about the 408 00:24:00,560 --> 00:24:04,200 Speaker 1: public health rule that's allowed them during COVID to turn 409 00:24:04,240 --> 00:24:08,200 Speaker 1: away migrants sure. Under Title forty two of the United 410 00:24:08,240 --> 00:24:11,280 Speaker 1: States Code, which is not part of the Immigration Code, 411 00:24:11,320 --> 00:24:14,080 Speaker 1: but it is part of the Public Health Code, the 412 00:24:14,200 --> 00:24:17,040 Speaker 1: public health officials and in this case, the c d 413 00:24:17,160 --> 00:24:21,880 Speaker 1: C can say during an emergency like COVID, you are 414 00:24:21,960 --> 00:24:24,879 Speaker 1: not to admit anybody from outside of the United States. 415 00:24:24,880 --> 00:24:28,040 Speaker 1: Inside of the United States have very broad authority, which 416 00:24:28,080 --> 00:24:32,640 Speaker 1: even theoretically could apply to citizens, but nevertheless, uh they haven't. 417 00:24:32,760 --> 00:24:35,239 Speaker 1: They have not applied it ever to citizens or two 418 00:24:35,320 --> 00:24:39,000 Speaker 1: lawful green card holders or anything like that. But they 419 00:24:39,080 --> 00:24:41,840 Speaker 1: have applied it on the southern border, beginning with the 420 00:24:41,840 --> 00:24:45,879 Speaker 1: Trump administration and now with a Biden administration, to say 421 00:24:45,960 --> 00:24:48,840 Speaker 1: that if you are coming across the southern border and 422 00:24:48,960 --> 00:24:52,920 Speaker 1: seek to enter to ask for asylum, normally you would 423 00:24:52,960 --> 00:24:55,920 Speaker 1: be allowed to enter to do that while your case suspending. 424 00:24:55,960 --> 00:24:58,680 Speaker 1: You'd be allowed to enter, and you'd either be detained 425 00:24:58,760 --> 00:25:02,359 Speaker 1: or not detained, but you be inside the territorial grounds 426 00:25:02,359 --> 00:25:06,359 Speaker 1: of the United States. Well not under this Title forty two. 427 00:25:06,480 --> 00:25:11,399 Speaker 1: This allows the government to actually refuse for the human 428 00:25:11,440 --> 00:25:14,600 Speaker 1: being to enter the United States and instead to take 429 00:25:14,640 --> 00:25:17,960 Speaker 1: custody of the human being for the purposes of pushing 430 00:25:18,000 --> 00:25:21,119 Speaker 1: them back into Mexico. And so that's what's been happening 431 00:25:21,200 --> 00:25:23,560 Speaker 1: under Title forty two, and there's a lawsuit that's been 432 00:25:23,600 --> 00:25:27,000 Speaker 1: pending that the lawyers from the A c. L. You 433 00:25:27,040 --> 00:25:29,280 Speaker 1: are saying that now it's been seven months into the 434 00:25:29,280 --> 00:25:34,080 Speaker 1: Biden administrations, it's time to end the Title forty two blockade. 435 00:25:34,680 --> 00:25:38,200 Speaker 1: And so the question just becomes whether a court would 436 00:25:38,280 --> 00:25:41,080 Speaker 1: end up viewing this as something a it can review 437 00:25:41,160 --> 00:25:43,960 Speaker 1: period and be if it can review under what level 438 00:25:44,000 --> 00:25:47,480 Speaker 1: of difference do you give? And it be I think 439 00:25:47,520 --> 00:25:51,760 Speaker 1: it'd be very hard for the plaintiffs in this case 440 00:25:51,880 --> 00:25:53,439 Speaker 1: to say that in the middle of what we have 441 00:25:53,600 --> 00:25:58,040 Speaker 1: now with the deltavreat the government couldn't impose Title forty 442 00:25:58,080 --> 00:26:01,720 Speaker 1: two authorities. But we remain to be seen. In late July, 443 00:26:02,480 --> 00:26:06,240 Speaker 1: the governor of Texas deployed the Texas National Guard to 444 00:26:06,400 --> 00:26:11,920 Speaker 1: assist state police in arresting undocumented immigrants on trespassing charges 445 00:26:12,760 --> 00:26:17,199 Speaker 1: and detaining them in state prisons. Is that allowed? So 446 00:26:17,400 --> 00:26:20,280 Speaker 1: here's what's interesting. So the last case that dealt with 447 00:26:20,320 --> 00:26:23,680 Speaker 1: this issue was Arizona versus of the United States, where 448 00:26:23,760 --> 00:26:27,080 Speaker 1: Governor jam Brewer at the time and the state legislature 449 00:26:27,119 --> 00:26:29,560 Speaker 1: had actually passed the law doing the same thing, saying 450 00:26:29,600 --> 00:26:35,360 Speaker 1: trespassing into Arizona is illegal. And that case was decided 451 00:26:35,480 --> 00:26:41,439 Speaker 1: on a six to three UM Supreme Court breakdown that 452 00:26:41,520 --> 00:26:46,600 Speaker 1: had at that time for liberal justices plus Justice Roberts 453 00:26:46,600 --> 00:26:51,119 Speaker 1: and Justice Kennedy. So what ended up happening now is 454 00:26:51,160 --> 00:26:55,200 Speaker 1: the Court doesn't have those votes anymore to maintain Arizona. 455 00:26:55,240 --> 00:26:58,440 Speaker 1: They're not guaranteed votes, and so what Texas is trying 456 00:26:58,480 --> 00:27:02,080 Speaker 1: to do is to read up this issue because there 457 00:27:02,080 --> 00:27:06,280 Speaker 1: were three justices at the time. Thomas and Elite are 458 00:27:06,320 --> 00:27:11,040 Speaker 1: still there, Scalia is not there, but there are potentially Gorsage, Kavanaugh, 459 00:27:11,119 --> 00:27:15,000 Speaker 1: and Coney Barrett now that could decide what the three 460 00:27:15,320 --> 00:27:19,000 Speaker 1: justices in the descent had decided in Arizona, which is 461 00:27:19,040 --> 00:27:23,080 Speaker 1: that immigration is just like drugs, where there are federal 462 00:27:23,160 --> 00:27:25,879 Speaker 1: drug laws and state drug laws and you can complement 463 00:27:25,960 --> 00:27:28,640 Speaker 1: them to each other. And there's no reason a state 464 00:27:28,680 --> 00:27:32,920 Speaker 1: can criminalize illegal immigration just like the federal government does. 465 00:27:33,520 --> 00:27:37,320 Speaker 1: And so that's the question that would be potentially tied 466 00:27:37,400 --> 00:27:40,000 Speaker 1: up to the court if this actually happens in a 467 00:27:40,119 --> 00:27:43,200 Speaker 1: large scale such that this actually all the way gets 468 00:27:43,240 --> 00:27:45,960 Speaker 1: all the way to the Supreme Court, is whether the 469 00:27:46,000 --> 00:27:49,600 Speaker 1: Arizona decision should be maintained or whether states can take 470 00:27:49,640 --> 00:27:53,000 Speaker 1: it into their own hands to arrest people who don't 471 00:27:53,040 --> 00:27:56,880 Speaker 1: have proper immigration status. Thanks for being the Bloomberg Laws. 472 00:27:56,920 --> 00:28:00,640 Speaker 1: Ear Leon. That's Leon Fresco of Hollandon Knight. And that's 473 00:28:00,680 --> 00:28:03,399 Speaker 1: it for this edition of The Bloomberg Law Show. Remember 474 00:28:03,440 --> 00:28:05,359 Speaker 1: you can always get the latest legal news on our 475 00:28:05,359 --> 00:28:09,080 Speaker 1: Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, 476 00:28:09,160 --> 00:28:13,880 Speaker 1: and at www dot Bloomberg dot com slash podcast Slash Law. 477 00:28:14,520 --> 00:28:17,440 Speaker 1: I'm June Grosso. Thanks so much for listening, and please 478 00:28:17,480 --> 00:28:19,960 Speaker 1: tun into The Bloomberg Law Show every weeknight attend da 479 00:28:20,000 --> 00:28:22,159 Speaker 1: in Eastern right here on Bloomberg Radio