1
00:00:02,759 --> 00:00:07,480
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.

2
00:00:08,680 --> 00:00:13,039
Speaker 1: After more than three months in federal custody, Columbia University

3
00:00:13,200 --> 00:00:17,080
Speaker 1: graduate and activist Mahmoud Khalil was released from an iced

4
00:00:17,120 --> 00:00:21,280
Speaker 1: attention facility in Louisiana on Friday. He vowed to continue

5
00:00:21,280 --> 00:00:24,440
Speaker 1: the protests against Israel and the war in Gaza that

6
00:00:24,480 --> 00:00:28,480
Speaker 1: got him arrested in the Trump administration's crackdown on foreign

7
00:00:28,560 --> 00:00:31,040
Speaker 1: students who joined campus protests.

8
00:00:31,560 --> 00:00:39,520
Speaker 2: The US government is funding this genocide and Columbia University

9
00:00:40,640 --> 00:00:44,600
Speaker 2: is investing in this genocide. This is what I was protesting.

10
00:00:45,280 --> 00:00:47,360
Speaker 2: This is what I would continue to protest with every

11
00:00:47,360 --> 00:00:47,760
Speaker 2: one of you.

12
00:00:48,200 --> 00:00:51,760
Speaker 1: A federal judge had ordered Khalil to be released, saying

13
00:00:51,800 --> 00:00:55,280
Speaker 1: it would be highly unusual for the government to continue

14
00:00:55,320 --> 00:00:59,320
Speaker 1: to detain a legal US resident who's unlikely to flee

15
00:00:59,600 --> 00:01:02,440
Speaker 1: and had hasn't been accused of violence. Joining me is

16
00:01:02,480 --> 00:01:06,039
Speaker 1: Immigration law expert Leon Fresco, a partner at Honda Knight,

17
00:01:06,720 --> 00:01:10,000
Speaker 1: Leon Khalil is out of detention. But is he out

18
00:01:10,000 --> 00:01:10,600
Speaker 1: of the woods.

19
00:01:11,680 --> 00:01:14,399
Speaker 3: No, He's absolutely not out of the woods, because there

20
00:01:14,400 --> 00:01:17,160
Speaker 3: are so many different ways in which he can be

21
00:01:17,240 --> 00:01:20,320
Speaker 3: placed back in detention. The first would be for an

22
00:01:20,319 --> 00:01:23,399
Speaker 3: appellate court to place him back in detention under the

23
00:01:23,440 --> 00:01:28,640
Speaker 3: guys that his entire habeas proceeding. There's no jurisdiction for

24
00:01:28,720 --> 00:01:31,959
Speaker 3: the lower court judge to actually issue any of the

25
00:01:32,080 --> 00:01:35,920
Speaker 3: orders he's issuing. This is a big undecided issue in

26
00:01:35,959 --> 00:01:40,200
Speaker 3: the immigration system, which is do these types of habeas

27
00:01:40,200 --> 00:01:44,600
Speaker 3: claims have to be decided actually in the context of

28
00:01:44,640 --> 00:01:48,360
Speaker 3: the removal preceding itself, and not in a habeas claim,

29
00:01:48,840 --> 00:01:50,920
Speaker 3: but rather just what happens is you go to an

30
00:01:50,960 --> 00:01:54,880
Speaker 3: immigration judge, you say that the law is unconstitutional that

31
00:01:55,000 --> 00:01:57,680
Speaker 3: says that you can be banned from the country because

32
00:01:57,720 --> 00:02:01,160
Speaker 3: of foreign policy reasons. The immigrant just says they don't

33
00:02:01,160 --> 00:02:04,600
Speaker 3: have jurisdiction. Then the Board of Immigration Appeal says they

34
00:02:04,600 --> 00:02:07,800
Speaker 3: don't have jurisdiction, and only then you can make this

35
00:02:07,920 --> 00:02:11,160
Speaker 3: constitutional claim to a court of appeals as part of

36
00:02:11,200 --> 00:02:15,120
Speaker 3: a petition for review. So that's the argument the government's making,

37
00:02:15,440 --> 00:02:20,120
Speaker 3: and they actually have pretty strong statutory authority for this.

38
00:02:20,320 --> 00:02:23,360
Speaker 3: The problem is that could take years, and so the

39
00:02:23,440 --> 00:02:27,360
Speaker 3: question is will the Supreme Court say, look, you actually

40
00:02:27,400 --> 00:02:29,960
Speaker 3: can be detained for years while you make these kinds

41
00:02:29,960 --> 00:02:33,600
Speaker 3: of claims or does the court allow this kind of

42
00:02:33,600 --> 00:02:37,519
Speaker 3: habeas for this exact type of situation. So there's that,

43
00:02:37,960 --> 00:02:40,600
Speaker 3: But then there's a whole second issue, which is that

44
00:02:40,680 --> 00:02:43,160
Speaker 3: they're actually trying to deport in not just for this

45
00:02:43,520 --> 00:02:46,880
Speaker 3: calm to foreign policy reason, but they're also saying that

46
00:02:46,919 --> 00:02:51,400
Speaker 3: he lied on his green card application, and that in

47
00:02:51,440 --> 00:02:55,120
Speaker 3: and of itself justifies his detention and removal if they

48
00:02:55,120 --> 00:02:58,040
Speaker 3: can show that the lies on the green card application

49
00:02:58,200 --> 00:03:01,799
Speaker 3: or material and the lies were all about various associations

50
00:03:01,840 --> 00:03:03,960
Speaker 3: that he's had in the past that he did not

51
00:03:04,200 --> 00:03:07,679
Speaker 3: report when there was this question that says, please tell

52
00:03:07,720 --> 00:03:10,320
Speaker 3: me about any organizations that you've been a member of,

53
00:03:10,720 --> 00:03:14,120
Speaker 3: and he didn't put any of these organizations on his application,

54
00:03:14,240 --> 00:03:17,720
Speaker 3: and the question is are those omissions materials? And so

55
00:03:17,800 --> 00:03:20,399
Speaker 3: the lower court judge said that because there wasn't any

56
00:03:20,400 --> 00:03:24,239
Speaker 3: evidence that the government provided, they did not think that

57
00:03:24,400 --> 00:03:29,280
Speaker 3: detention and removal was based on that issue. That is

58
00:03:29,360 --> 00:03:33,600
Speaker 3: never used to justify detention and removal. But if an

59
00:03:33,600 --> 00:03:37,040
Speaker 3: appellate court used that either of those two issues are

60
00:03:37,080 --> 00:03:40,440
Speaker 3: sufficient to place him back in detention and ultimately removal,

61
00:03:40,960 --> 00:03:44,720
Speaker 3: then Khalil will be either redetained and ultimately removed and

62
00:03:44,880 --> 00:03:47,040
Speaker 3: so he's definitely not out of the woods.

63
00:03:47,120 --> 00:03:50,640
Speaker 1: Yet can't the government bring up at any point that

64
00:03:50,760 --> 00:03:52,560
Speaker 1: you lied on your green court application?

65
00:03:53,320 --> 00:03:55,840
Speaker 3: They absolutely can, and that's why it was kind of

66
00:03:55,840 --> 00:03:59,240
Speaker 3: remarkable what the district judge said. The district judge basically

67
00:03:59,280 --> 00:04:03,320
Speaker 3: said that this was a pretextual claim, and because he

68
00:04:03,440 --> 00:04:06,120
Speaker 3: viewed it as a pretextual claim, he wasn't going to

69
00:04:06,200 --> 00:04:09,280
Speaker 3: allow the government to keep Khalil in detention. There's a

70
00:04:09,360 --> 00:04:12,120
Speaker 3: lot of precarious parts about the lower court's order, but

71
00:04:12,160 --> 00:04:15,480
Speaker 3: that's the most precarious part, because there wasn't even a

72
00:04:15,640 --> 00:04:19,720
Speaker 3: dispute that the government has this authority to detain and

73
00:04:19,760 --> 00:04:23,560
Speaker 3: remove on the basis of these omissions. But the district said, look,

74
00:04:23,600 --> 00:04:26,400
Speaker 3: there wasn't any strong evidence that you've done this in

75
00:04:26,440 --> 00:04:29,360
Speaker 3: the past in this context, and so I'm going to

76
00:04:29,440 --> 00:04:32,400
Speaker 3: view this as pretextual and say that you are doing

77
00:04:32,440 --> 00:04:37,160
Speaker 3: this because of Mahmud Khalil's complaints about the war, you know,

78
00:04:37,200 --> 00:04:41,560
Speaker 3: between the Israelis and the Palestinians. And so that's kind

79
00:04:41,600 --> 00:04:46,200
Speaker 3: of a remarkable decision in terms of its far reaching authority.

80
00:04:46,640 --> 00:04:48,480
Speaker 3: And we're going to see if an appellate court tries

81
00:04:48,560 --> 00:04:49,920
Speaker 3: to rein that in he.

82
00:04:49,920 --> 00:04:52,800
Speaker 1: Says he's going to continue his protests, and since his

83
00:04:52,960 --> 00:04:56,359
Speaker 1: release he's been doing just that. Is he hurting his

84
00:04:56,520 --> 00:05:00,159
Speaker 1: case in any way by continuing the pro chest.

85
00:05:00,760 --> 00:05:03,800
Speaker 3: I definitely think now we're at the point where he's

86
00:05:03,880 --> 00:05:08,159
Speaker 3: gonna get all the negative presumptions in terms of his activity,

87
00:05:08,640 --> 00:05:11,960
Speaker 3: whether his activity is viewed in a way that's helpful

88
00:05:12,040 --> 00:05:15,240
Speaker 3: or harmful. It's just a matter now of the sort

89
00:05:15,240 --> 00:05:18,640
Speaker 3: of legal arguments in this case, which are Number one,

90
00:05:19,320 --> 00:05:22,640
Speaker 3: is the statute under which he's being detained so vague

91
00:05:23,080 --> 00:05:26,279
Speaker 3: that putting aside anything you think Mamood Khalil is doing,

92
00:05:26,880 --> 00:05:29,400
Speaker 3: it's just so vague. We just don't know what if

93
00:05:29,400 --> 00:05:31,880
Speaker 3: what you're leading is a protest in favor of the

94
00:05:31,920 --> 00:05:34,880
Speaker 3: Red Cross and you're saying give more money to the

95
00:05:34,920 --> 00:05:37,760
Speaker 3: Red Cross, if somebody just doesn't like that and detains you,

96
00:05:38,320 --> 00:05:40,760
Speaker 3: And so that's the real question here is is that

97
00:05:40,800 --> 00:05:44,520
Speaker 3: statute so vague that it can't be used for any purpose?

98
00:05:45,240 --> 00:05:48,839
Speaker 3: Or will that statute actually not be viewed as vague?

99
00:05:49,160 --> 00:05:51,360
Speaker 3: And then the second question, of course, is what is

100
00:05:51,440 --> 00:05:54,760
Speaker 3: the context in which you can challenge this? And so

101
00:05:55,480 --> 00:05:59,360
Speaker 3: it's possible that his entire habeas salad was completely unlawful

102
00:05:59,680 --> 00:06:01,719
Speaker 3: because you have to only challenge it as part of

103
00:06:01,720 --> 00:06:05,960
Speaker 3: the removal process. And then third the specific questions about

104
00:06:06,040 --> 00:06:08,840
Speaker 3: his green card application and whether he lied on it.

105
00:06:09,240 --> 00:06:12,560
Speaker 3: So there's just so many complications in this case that

106
00:06:12,720 --> 00:06:17,120
Speaker 3: for him to pull out the perfect straight flush here

107
00:06:17,760 --> 00:06:21,799
Speaker 3: would be an incredible legal accomplishment. But I definitely don't

108
00:06:21,839 --> 00:06:25,600
Speaker 3: think that he's doing himself and he favors fact wise

109
00:06:25,920 --> 00:06:28,480
Speaker 3: by doing all of the things he's doing.

110
00:06:28,760 --> 00:06:31,480
Speaker 1: I want to turn to jilmoar Abrigo Garcia for a moment,

111
00:06:31,520 --> 00:06:36,480
Speaker 1: because a judge rule that he should be released as well,

112
00:06:36,720 --> 00:06:39,320
Speaker 1: explain why she said that he shouldn't be kept in

113
00:06:39,440 --> 00:06:40,560
Speaker 1: pre trial detention.

114
00:06:41,720 --> 00:06:44,360
Speaker 3: Well, at the end of the day, the issue there is,

115
00:06:44,960 --> 00:06:48,880
Speaker 3: when you're doing a pre trial criminal detention, you're trying

116
00:06:48,920 --> 00:06:52,480
Speaker 3: to decide whether the person is going to be dangerous

117
00:06:52,520 --> 00:06:57,120
Speaker 3: and are they going to abscond from their proceedings, And

118
00:06:57,320 --> 00:07:00,600
Speaker 3: the issue there is, at least vis a v the

119
00:07:00,880 --> 00:07:05,520
Speaker 3: criminal proceedings, what the judge is basically saying is there

120
00:07:05,560 --> 00:07:10,520
Speaker 3: isn't enough evidence here that he's going to be violent enough. Member.

121
00:07:10,760 --> 00:07:13,600
Speaker 3: When you ask for bond from a criminal case, many

122
00:07:13,640 --> 00:07:17,200
Speaker 3: people get bond when they're in trial. It doesn't. So

123
00:07:17,280 --> 00:07:20,080
Speaker 3: there are people who are on murder cases who are

124
00:07:20,080 --> 00:07:23,559
Speaker 3: on bond during trial, and so it's very actually rare

125
00:07:24,240 --> 00:07:26,840
Speaker 3: that there's no bond at all that's issued. And so

126
00:07:26,880 --> 00:07:30,360
Speaker 3: they're saying, this guy doesn't have a history of actually

127
00:07:30,400 --> 00:07:35,640
Speaker 3: committing violent crimes. Number one and number two in terms

128
00:07:35,680 --> 00:07:38,920
Speaker 3: of being a flight risk. This guy's pretty famous and

129
00:07:39,040 --> 00:07:42,280
Speaker 3: notorious now, and so he doesn't actually want to flee

130
00:07:42,320 --> 00:07:44,960
Speaker 3: the country. His whole point is he's wanted to stay

131
00:07:45,000 --> 00:07:47,840
Speaker 3: in the country, and so he would be someone that

132
00:07:48,160 --> 00:07:51,480
Speaker 3: would be absconding. There wouldn't be a risk there, because

133
00:07:51,680 --> 00:07:54,360
Speaker 3: the whole point is this guy's just trying to remain

134
00:07:54,480 --> 00:07:57,960
Speaker 3: in the country. But in any case, the fact that

135
00:07:58,000 --> 00:08:01,760
Speaker 3: he's gotten this bond doesn't really change anything, because now

136
00:08:02,040 --> 00:08:06,720
Speaker 3: what happens is the immigration proceedings will continue because there's

137
00:08:06,720 --> 00:08:09,840
Speaker 3: sort of these two parallel things. There's a deportation process

138
00:08:10,160 --> 00:08:13,320
Speaker 3: and there's a criminal process, and the government can always

139
00:08:13,360 --> 00:08:16,520
Speaker 3: elect to do the criminal process first and then do

140
00:08:16,640 --> 00:08:19,320
Speaker 3: the deportation process, but it doesn't have to do it

141
00:08:19,320 --> 00:08:22,720
Speaker 3: that way. And so if this judge says he can

142
00:08:22,760 --> 00:08:26,280
Speaker 3: go free on bond, then what the immigration folks will

143
00:08:26,320 --> 00:08:29,000
Speaker 3: do is say, well, we'll just then continue the immigration

144
00:08:29,200 --> 00:08:33,760
Speaker 3: process of trying to get him deported, and that part

145
00:08:33,760 --> 00:08:37,000
Speaker 3: of the process has to do with showing that conditions

146
00:08:37,000 --> 00:08:40,640
Speaker 3: in El Salvador have changed such that he would be

147
00:08:40,720 --> 00:08:43,599
Speaker 3: able to be sent there without being tortured, which is

148
00:08:43,679 --> 00:08:47,080
Speaker 3: itself going to be quite a tricky case because if

149
00:08:47,080 --> 00:08:48,880
Speaker 3: he's just going to be sent back to that same

150
00:08:48,960 --> 00:08:52,160
Speaker 3: Sea Coot facility, this might not be the easiest case

151
00:08:52,200 --> 00:08:54,240
Speaker 3: as opposed to he was going to be sent to

152
00:08:54,280 --> 00:08:58,480
Speaker 3: El Salvador and be freed, then okay, you can make

153
00:08:58,520 --> 00:09:01,360
Speaker 3: a better argument that the game related torture he was

154
00:09:01,400 --> 00:09:04,280
Speaker 3: worried about in the past isn't going to happen now.

155
00:09:04,840 --> 00:09:07,840
Speaker 3: But there's this whole separate claim about, well, the president

156
00:09:07,880 --> 00:09:10,600
Speaker 3: of Olsavador has called him a terrorist, and if he

157
00:09:10,640 --> 00:09:13,640
Speaker 3: puts him back in seacocks, are the conditions in the

158
00:09:13,679 --> 00:09:17,960
Speaker 3: seacot facility tends about the torture. So this case is

159
00:09:18,600 --> 00:09:22,120
Speaker 3: even messier than the Khalil case, and we'll just have

160
00:09:22,200 --> 00:09:24,720
Speaker 3: to wait and see. But the upshot is he's not

161
00:09:24,800 --> 00:09:27,720
Speaker 3: going to be free from detension one way or another. Again,

162
00:09:27,760 --> 00:09:30,440
Speaker 3: he's another one that will need the straight plush of

163
00:09:30,640 --> 00:09:34,400
Speaker 3: having both the criminal court free him from bond, and

164
00:09:34,600 --> 00:09:37,960
Speaker 3: an immigration court judge who will free him in a

165
00:09:38,000 --> 00:09:39,319
Speaker 3: bond proceeding as well.

166
00:09:40,040 --> 00:09:42,880
Speaker 1: Yes, these cases are so complicated. I guess they're showing

167
00:09:42,880 --> 00:09:47,920
Speaker 1: the public how complicated the immigration laws are. Let's talk

168
00:09:47,920 --> 00:09:54,160
Speaker 1: about sanctuary cities and sanctuary states. Attorneys general in twenty states,

169
00:09:54,640 --> 00:09:59,360
Speaker 1: mostly Democratic led states, have sued the administration. Their claims

170
00:09:59,360 --> 00:10:01,840
Speaker 1: are sort of similar to other lawsuits that have sued

171
00:10:01,880 --> 00:10:03,839
Speaker 1: the administration for different things.

172
00:10:04,440 --> 00:10:07,120
Speaker 3: Yes, what happened in the particular case that just got

173
00:10:07,120 --> 00:10:11,240
Speaker 3: decided earlier last week was that the Secretary of Transportation,

174
00:10:11,520 --> 00:10:16,480
Speaker 3: Sean Duffy, had tried to block transportation funds, which are

175
00:10:16,559 --> 00:10:19,800
Speaker 3: funds that the Congress sets for the purpose of giving

176
00:10:19,840 --> 00:10:22,840
Speaker 3: them to the states and to the cities for roads

177
00:10:22,960 --> 00:10:25,600
Speaker 3: and bridges and tunnels and that kind of thing. And

178
00:10:25,760 --> 00:10:30,800
Speaker 3: Secretary Duffi's claim was, why should sanctuary cities get this money.

179
00:10:30,840 --> 00:10:34,760
Speaker 3: They're just ruining everything, They're causing all these problems. I'm

180
00:10:34,760 --> 00:10:38,160
Speaker 3: going to give it to cities that actually will try

181
00:10:38,160 --> 00:10:41,480
Speaker 3: to improve their communities and not be sanctuary cities. Those

182
00:10:41,480 --> 00:10:44,559
Speaker 3: are his words, not mine. And so he said these

183
00:10:44,600 --> 00:10:47,560
Speaker 3: conditions that said you will have to make a certification

184
00:10:48,040 --> 00:10:50,360
Speaker 3: that you're not a sanctuary city in order to get

185
00:10:50,360 --> 00:10:53,480
Speaker 3: these funds. And so again, as you said, the states

186
00:10:53,480 --> 00:10:56,839
Speaker 3: and the city sued, and the federal court judge in

187
00:10:56,920 --> 00:11:01,400
Speaker 3: Rhode Island actually blocked this ability to say that you

188
00:11:01,440 --> 00:11:04,800
Speaker 3: can't get funding unless you say you're not a sanctuary

189
00:11:04,840 --> 00:11:07,960
Speaker 3: city because he said that the Congress didn't actually when

190
00:11:07,960 --> 00:11:12,640
Speaker 3: they issued these grants contemplate anything related to sanctuary cities

191
00:11:12,679 --> 00:11:15,040
Speaker 3: at all. And so the point is, maybe if the

192
00:11:15,080 --> 00:11:18,400
Speaker 3: Congress had said something about that, you could have an argument,

193
00:11:18,520 --> 00:11:23,040
Speaker 3: But the Congress just said, hey, based these grant allocations

194
00:11:23,080 --> 00:11:26,640
Speaker 3: on the transportation means of the states of the cities,

195
00:11:26,640 --> 00:11:29,839
Speaker 3: and the story. That's it. So there isn't any authority

196
00:11:30,240 --> 00:11:34,640
Speaker 3: for the Secretary of Transportation to add new requirements, especially

197
00:11:34,679 --> 00:11:36,720
Speaker 3: not ones that are related to immigrations.

198
00:11:37,600 --> 00:11:41,800
Speaker 1: Leon are there any sanctuary cities or states because of this,

199
00:11:42,400 --> 00:11:46,120
Speaker 1: you know, pushed by the Trump administration that are retreating

200
00:11:46,200 --> 00:11:47,400
Speaker 1: from their positions.

201
00:11:48,360 --> 00:11:51,280
Speaker 3: So there's a couple of problems. So in some states,

202
00:11:51,320 --> 00:11:55,439
Speaker 3: like for instance, if you say California, California actually has

203
00:11:55,679 --> 00:12:00,360
Speaker 3: a state law that requires all of the city in

204
00:12:00,480 --> 00:12:04,080
Speaker 3: California to be sanctuary cities as a state. They say

205
00:12:04,120 --> 00:12:09,120
Speaker 3: the states and the cities cannot cooperate with ICE vis

206
00:12:09,160 --> 00:12:12,840
Speaker 3: a ve giving either access to the jails or with

207
00:12:12,880 --> 00:12:16,640
Speaker 3: regard to detaining people and reporting them to ICE, and

208
00:12:16,720 --> 00:12:18,960
Speaker 3: so in those situations, there are plenty of cities in

209
00:12:18,960 --> 00:12:24,559
Speaker 3: California that are voicing a desire to cooperate with ICE,

210
00:12:24,600 --> 00:12:28,160
Speaker 3: but they're not able to because of state law. And

211
00:12:28,480 --> 00:12:30,880
Speaker 3: in a lot of big cities there's that problem. But

212
00:12:30,920 --> 00:12:34,920
Speaker 3: in other cities where the states are not constraining them,

213
00:12:35,520 --> 00:12:38,840
Speaker 3: you are seeing some efforts. It's sort of the same

214
00:12:38,840 --> 00:12:42,120
Speaker 3: thing you're seeing with the law firms and a little

215
00:12:42,160 --> 00:12:45,400
Speaker 3: bit with the universities, except that no university has yet

216
00:12:45,800 --> 00:12:49,320
Speaker 3: reached an agreement with the Trump administration. Where there are

217
00:12:49,480 --> 00:12:53,960
Speaker 3: some cities that are trying to broker deals with the

218
00:12:54,000 --> 00:12:57,360
Speaker 3: Trump administration to get themselves off of the naughty list,

219
00:12:57,440 --> 00:13:00,640
Speaker 3: so to speak, but again none have been a But

220
00:13:01,040 --> 00:13:04,040
Speaker 3: there are some cities that are sort of lower profile

221
00:13:04,160 --> 00:13:08,080
Speaker 3: cities that are trying to broker those deals to get

222
00:13:08,160 --> 00:13:11,440
Speaker 3: themselves off this list, but again none have been finalized

223
00:13:11,440 --> 00:13:12,559
Speaker 3: and none have been announced.

224
00:13:12,679 --> 00:13:15,240
Speaker 1: Coming up next, Trump gets an immigration win at the

225
00:13:15,280 --> 00:13:19,160
Speaker 1: Supreme Court. This is Bloomberg. There's been a lot of

226
00:13:19,200 --> 00:13:24,239
Speaker 1: publicity over federal immigration officials conducting large scale arrests outside

227
00:13:24,280 --> 00:13:28,560
Speaker 1: immigration courtrooms across the country. In many cases, immigrants are

228
00:13:28,640 --> 00:13:32,720
Speaker 1: arrested after a judge grants a government request to dismiss

229
00:13:32,760 --> 00:13:37,160
Speaker 1: their case, making them eligible for expedited removal. I've been

230
00:13:37,200 --> 00:13:40,559
Speaker 1: talking to immigration law expertly on Fresco of Holland and

231
00:13:40,640 --> 00:13:44,160
Speaker 1: Knight Leon is what the government is doing in these cases,

232
00:13:44,640 --> 00:13:49,160
Speaker 1: dismissing the case and then arresting them. Is it legal?

233
00:13:49,920 --> 00:13:54,120
Speaker 3: Yes, it is legal. ICE can and the reason it

234
00:13:54,120 --> 00:13:58,319
Speaker 3: actually does choose the immigration court is because the individuals

235
00:13:58,320 --> 00:14:01,240
Speaker 3: have gone through security so they don't have any weapons.

236
00:14:01,520 --> 00:14:04,400
Speaker 3: They're not home, they're not in a school, they're not

237
00:14:04,520 --> 00:14:08,160
Speaker 3: in a place where it will be a major scene,

238
00:14:08,760 --> 00:14:11,319
Speaker 3: sort of a place where you wouldn't expect to be caught. Now,

239
00:14:11,320 --> 00:14:13,959
Speaker 3: the problem is if you go to immigration courts and

240
00:14:14,040 --> 00:14:17,439
Speaker 3: you apprehend people, people will stop going to immigration court,

241
00:14:17,559 --> 00:14:19,360
Speaker 3: which is not what you want. You want them to

242
00:14:19,360 --> 00:14:22,240
Speaker 3: go to court and then you want them to see

243
00:14:22,280 --> 00:14:24,640
Speaker 3: what happens after that. But now people are not going

244
00:14:24,720 --> 00:14:26,720
Speaker 3: to go to court. But that's the reason why ICE

245
00:14:26,840 --> 00:14:29,320
Speaker 3: is doing it. Now. The second thing that they're doing

246
00:14:29,360 --> 00:14:31,600
Speaker 3: as you said, is they're not just waiting to see

247
00:14:31,640 --> 00:14:36,280
Speaker 3: who loses and then apprehend them, which theoretically people would

248
00:14:36,400 --> 00:14:38,400
Speaker 3: understand that. They would say, look, if you get a

249
00:14:38,440 --> 00:14:44,040
Speaker 3: deportation order, why not actually place the person in deportation

250
00:14:44,480 --> 00:14:47,640
Speaker 3: custody at that point and deport them. Why let them

251
00:14:47,720 --> 00:14:50,560
Speaker 3: just go home and have to go get them some

252
00:14:50,720 --> 00:14:54,160
Speaker 3: other day and deport them. So I think people understand

253
00:14:54,240 --> 00:14:57,120
Speaker 3: that point. But what's happening now is this second thing

254
00:14:57,680 --> 00:15:02,000
Speaker 3: where they're saying, we're going to actually cut your deportation

255
00:15:02,240 --> 00:15:06,080
Speaker 3: proceedings off. We're going to dismiss them, which in a

256
00:15:06,200 --> 00:15:09,640
Speaker 3: theory is a benefit to the foreign nationals. But what

257
00:15:09,680 --> 00:15:12,800
Speaker 3: they're doing is they're asking them to be dismissed because

258
00:15:12,800 --> 00:15:15,200
Speaker 3: they don't want to go through the two year process

259
00:15:15,200 --> 00:15:17,520
Speaker 3: that these hearings sake. They want to put them in

260
00:15:17,640 --> 00:15:21,760
Speaker 3: something called expedited removal. The difference is is once you're

261
00:15:21,800 --> 00:15:26,120
Speaker 3: in expedited removal, you can be placed in mandatory detention.

262
00:15:26,360 --> 00:15:29,600
Speaker 3: There is no bond from that. And what expedited removal

263
00:15:29,720 --> 00:15:32,600
Speaker 3: is is if you've been in the country less than

264
00:15:32,680 --> 00:15:36,600
Speaker 3: two years, you actually don't need to go through the

265
00:15:36,640 --> 00:15:41,440
Speaker 3: whole formal removal process. So long as you haven't articulated

266
00:15:41,760 --> 00:15:45,080
Speaker 3: a credible fear of being persecuted on the basis of

267
00:15:45,080 --> 00:15:49,840
Speaker 3: your race, religion, national origin, social group, or political opinions.

268
00:15:50,040 --> 00:15:53,640
Speaker 3: And so what happens is there's a been about five

269
00:15:53,800 --> 00:15:56,800
Speaker 3: six hundred thousand people who have been parolled under that

270
00:15:56,880 --> 00:16:02,800
Speaker 3: Biden Cuban, Haitian, Nicaraguans Whalen parole, and also hundreds of

271
00:16:02,800 --> 00:16:06,960
Speaker 3: other thousands of people that have gotten temporary protected status,

272
00:16:07,400 --> 00:16:09,920
Speaker 3: and so some of those people actually don't have any

273
00:16:10,080 --> 00:16:14,320
Speaker 3: such claims for persecution. So what Ice is trying to

274
00:16:14,320 --> 00:16:17,200
Speaker 3: do is say, let's take some of those people just

275
00:16:17,240 --> 00:16:20,560
Speaker 3: because they're very low hanging fruit, and when we terminate

276
00:16:20,600 --> 00:16:24,520
Speaker 3: their status, place them in expedite and removal and cut

277
00:16:24,560 --> 00:16:28,240
Speaker 3: off their two or three year immigration proceeding so that

278
00:16:28,280 --> 00:16:32,040
Speaker 3: we can place them in mandatory detention. And so it's

279
00:16:32,120 --> 00:16:36,440
Speaker 3: really just about that. And also remember that they've been

280
00:16:36,480 --> 00:16:39,240
Speaker 3: getting a lot of political pressure to have three thousand

281
00:16:39,400 --> 00:16:42,120
Speaker 3: arrests per day, and so this is just again the

282
00:16:42,200 --> 00:16:45,920
Speaker 3: lowest hanging fruit way of getting those three thousand arrests

283
00:16:45,960 --> 00:16:46,400
Speaker 3: per day.

284
00:16:47,040 --> 00:16:50,120
Speaker 1: So, speaking about immigration court and people not wanting to

285
00:16:50,200 --> 00:16:53,720
Speaker 1: show up for fear of arrest, let's talk about the

286
00:16:53,760 --> 00:16:58,600
Speaker 1: Alien Registration Act, which has not been used in seventy

287
00:16:58,600 --> 00:17:01,600
Speaker 1: five years. You know, it's still on the books.

288
00:17:01,240 --> 00:17:05,320
Speaker 3: Though, correct, there's laws that require that if you haven't

289
00:17:05,400 --> 00:17:09,040
Speaker 3: registered with the federal government when you've entered the country,

290
00:17:09,080 --> 00:17:12,720
Speaker 3: you're actually committing a misdemean And so what happens is

291
00:17:12,760 --> 00:17:15,040
Speaker 3: the way it's being interpreted right now, and say they

292
00:17:15,080 --> 00:17:17,680
Speaker 3: tried to get it and enjoined and they failed. Meaning

293
00:17:17,720 --> 00:17:21,040
Speaker 3: the courts have actually recently and meaning this year, have

294
00:17:21,160 --> 00:17:25,679
Speaker 3: said that the Trump administration can enforce this registration requirement.

295
00:17:25,800 --> 00:17:28,000
Speaker 3: The Trump administration has said, look, if you entered with

296
00:17:28,080 --> 00:17:31,119
Speaker 3: a visa, then you've registered, that's fine. But if you

297
00:17:31,320 --> 00:17:35,480
Speaker 3: cross the border and nobody knows you're here, you just

298
00:17:35,560 --> 00:17:39,560
Speaker 3: crossed illegally. If we find you and you didn't register,

299
00:17:40,240 --> 00:17:42,840
Speaker 3: we can put you in jail. We can prosecute you

300
00:17:43,400 --> 00:17:47,520
Speaker 3: for failure to register. And what you're seeing now is

301
00:17:48,320 --> 00:17:53,840
Speaker 3: because there's not enough space in immigration detention facilities to

302
00:17:54,520 --> 00:17:57,399
Speaker 3: place all of these people in the deportation process in

303
00:17:57,440 --> 00:18:01,120
Speaker 3: an immigration detention facility. The other way that these three

304
00:18:01,200 --> 00:18:04,199
Speaker 3: thousand arrests are being executed is that some of these

305
00:18:04,200 --> 00:18:08,840
Speaker 3: people are actually being placed in federal criminal prosecutions and

306
00:18:08,920 --> 00:18:13,200
Speaker 3: proceedings to say, look, you just didn't register as someone

307
00:18:13,240 --> 00:18:16,080
Speaker 3: who's here undocumented, so they're actually going to prosecute you

308
00:18:16,200 --> 00:18:19,600
Speaker 3: for this crime. And the added benefit of that to

309
00:18:20,280 --> 00:18:23,919
Speaker 3: the Trump administration is by doing that, that sort of

310
00:18:24,000 --> 00:18:29,760
Speaker 3: creates another deterrent factor, another tactic that will make people

311
00:18:29,800 --> 00:18:34,800
Speaker 3: who cross the border illegally hear very, very nervous about

312
00:18:34,840 --> 00:18:37,960
Speaker 3: remaining in the country, because in addition to just being deported,

313
00:18:38,359 --> 00:18:41,440
Speaker 3: now there's this other possibility that they can be criminally

314
00:18:41,480 --> 00:18:47,000
Speaker 3: prosecuted and criminally detained for failure to report their statistie.

315
00:18:47,119 --> 00:18:49,359
Speaker 3: But then one might argue, well, why don't they just

316
00:18:49,400 --> 00:18:52,720
Speaker 3: report their status, and certainly they should, but then the

317
00:18:52,760 --> 00:18:54,680
Speaker 3: fear as well if they do that, does that make

318
00:18:54,760 --> 00:18:57,640
Speaker 3: them low hanging fruit for ice to come pick them

319
00:18:57,720 --> 00:19:01,640
Speaker 3: up anyway? And so that's the forty two situation that

320
00:19:01,680 --> 00:19:05,200
Speaker 3: those individuals are in. But the point is, if there's

321
00:19:05,240 --> 00:19:08,840
Speaker 3: any interaction at all that any person who crossed the

322
00:19:08,880 --> 00:19:12,360
Speaker 3: border has with police, it's very likely now that they're

323
00:19:12,400 --> 00:19:15,320
Speaker 3: going to be charged with this failure to register and

324
00:19:15,440 --> 00:19:17,240
Speaker 3: be criminally prosecuted for it.

325
00:19:17,960 --> 00:19:21,320
Speaker 1: DHS estimates that up to three point two million immigrants

326
00:19:21,359 --> 00:19:25,679
Speaker 1: are currently unregistered and would be affected by this. But

327
00:19:26,000 --> 00:19:29,280
Speaker 1: there are several cases, like five cases or so, and

328
00:19:29,520 --> 00:19:34,640
Speaker 1: a federal magistrate judge dismissed the criminal cases right.

329
00:19:34,680 --> 00:19:39,040
Speaker 3: Well, some federal magistrate judges are saying that people are

330
00:19:39,080 --> 00:19:43,720
Speaker 3: not intentionally refusing to register, and so they're interpreting the

331
00:19:43,760 --> 00:19:46,800
Speaker 3: statute as saying that the only way you can actually

332
00:19:46,840 --> 00:19:49,760
Speaker 3: be prosecuted is if you knew you had this requirement

333
00:19:50,040 --> 00:19:54,440
Speaker 3: and intentionally refused to register. And so from that perspective,

334
00:19:55,160 --> 00:19:58,040
Speaker 3: there's going to be some debate about, well, does ICE

335
00:19:58,119 --> 00:20:00,840
Speaker 3: need to sort of do a double cat, which is

336
00:20:00,960 --> 00:20:03,760
Speaker 3: catch the person, tell them to register, and only if

337
00:20:03,760 --> 00:20:07,640
Speaker 3: they don't register then you can prosecute them. And that's

338
00:20:07,680 --> 00:20:09,440
Speaker 3: going to be another of these issues that's going to

339
00:20:09,480 --> 00:20:12,000
Speaker 3: have to work their way up to the Supreme Court.

340
00:20:12,520 --> 00:20:15,399
Speaker 3: Is do you have some duty to know already that

341
00:20:15,440 --> 00:20:18,639
Speaker 3: you have to register or does the government have to

342
00:20:18,680 --> 00:20:20,760
Speaker 3: tell you you have to register and only then do

343
00:20:20,800 --> 00:20:21,760
Speaker 3: you have to register?

344
00:20:22,240 --> 00:20:24,440
Speaker 1: And how much is the possible sentence?

345
00:20:24,800 --> 00:20:28,160
Speaker 3: The maximum is six months in prison, but I don't

346
00:20:28,160 --> 00:20:30,679
Speaker 3: think anybody would actually get six months in prison. And

347
00:20:30,720 --> 00:20:33,879
Speaker 3: I think the larger issue is just that it's just

348
00:20:33,920 --> 00:20:36,639
Speaker 3: another way to when they arrest you. They can arrest you,

349
00:20:36,680 --> 00:20:39,120
Speaker 3: they can put you in the tension, separate you from

350
00:20:39,119 --> 00:20:42,240
Speaker 3: your family, and just that trauma that that whole process

351
00:20:42,280 --> 00:20:45,080
Speaker 3: creates is basically the reason for doing it.

352
00:20:45,359 --> 00:20:48,400
Speaker 1: A lot of these tactics by the Trump administration are

353
00:20:48,480 --> 00:20:52,560
Speaker 1: to encourage illegal immigrants to self deport.

354
00:20:53,440 --> 00:20:56,720
Speaker 3: Correct, that's the whole point of this. By creating the

355
00:20:56,840 --> 00:20:59,840
Speaker 3: various touch points in which one can be apprehended and

356
00:21:00,119 --> 00:21:05,080
Speaker 3: can eventually either be detained or prosecuted or deported or

357
00:21:05,280 --> 00:21:08,840
Speaker 3: otherwise inconvenience. There's now, by the way, new regulation that's

358
00:21:08,880 --> 00:21:11,680
Speaker 3: going to come out soon for the people that overstayed.

359
00:21:11,800 --> 00:21:14,399
Speaker 3: So those are not people that registered, but the people

360
00:21:14,440 --> 00:21:17,800
Speaker 3: oversay that will find them each day and we'll see

361
00:21:17,800 --> 00:21:20,200
Speaker 3: if the courts allow that to happen. But that'll be

362
00:21:20,280 --> 00:21:23,560
Speaker 3: yet another checkpoint is if you get this gigantic bill

363
00:21:23,640 --> 00:21:26,840
Speaker 3: for hundreds of thousands of dollars for you know, every

364
00:21:26,920 --> 00:21:29,000
Speaker 3: day that you've been in the country and lawfully you

365
00:21:29,080 --> 00:21:32,280
Speaker 3: got to fined fifty dollars or something like that. And

366
00:21:32,359 --> 00:21:34,640
Speaker 3: so all of these are various touch points that they're

367
00:21:34,680 --> 00:21:37,959
Speaker 3: trying to create to basically force people to self support

368
00:21:38,000 --> 00:21:40,119
Speaker 3: from the United States And let's.

369
00:21:39,880 --> 00:21:42,639
Speaker 1: Turn to Harvard for a minute, because it's a little

370
00:21:42,640 --> 00:21:46,879
Speaker 1: confusing to me. What has the Trump administration tried to

371
00:21:46,960 --> 00:21:53,600
Speaker 1: do with regard to Harvard and its foreign students.

372
00:21:52,200 --> 00:21:55,680
Speaker 3: From multiple things. The first attempt was just to say,

373
00:21:56,560 --> 00:21:59,920
Speaker 3: every school in America that wants to bring a fore

374
00:22:00,240 --> 00:22:03,520
Speaker 3: students into their school has to get an approval from

375
00:22:03,560 --> 00:22:07,679
Speaker 3: something called SEVP, the Student Exchange Visitor Program, which is

376
00:22:07,720 --> 00:22:11,080
Speaker 3: part of ICE Immigration and Customs Enforcement. And so once

377
00:22:11,160 --> 00:22:14,439
Speaker 3: you have that approval, you basically have the ability to

378
00:22:14,480 --> 00:22:18,320
Speaker 3: give these permission flips out. They're called I twenty forms

379
00:22:18,640 --> 00:22:21,159
Speaker 3: that gives a student that you've admitted to your school

380
00:22:21,200 --> 00:22:23,480
Speaker 3: the right to go to an embassy and ask for

381
00:22:23,520 --> 00:22:28,520
Speaker 3: a student visa. And so what Harvard did is Harvard,

382
00:22:28,600 --> 00:22:31,960
Speaker 3: like everyone else, gave out these I twenties and students

383
00:22:31,960 --> 00:22:34,239
Speaker 3: had visas and they were at Harvard. And so what

384
00:22:34,280 --> 00:22:38,120
Speaker 3: the Trump administration said is we wanted to terminate your

385
00:22:38,400 --> 00:22:43,080
Speaker 3: SEVP status, meaning put Harvard back into the position as

386
00:22:43,119 --> 00:22:46,040
Speaker 3: if it had never been given disapproval at all, like

387
00:22:46,080 --> 00:22:48,600
Speaker 3: if it was just a brand new university that can't

388
00:22:48,600 --> 00:22:53,080
Speaker 3: bring foreign students in. And this would have had two effects. One,

389
00:22:53,240 --> 00:22:56,360
Speaker 3: don't do students could have come in and gotten visas.

390
00:22:56,800 --> 00:23:00,240
Speaker 3: But number two, the students who are at Harvard would

391
00:23:00,240 --> 00:23:04,680
Speaker 3: immediately lose their ability to continue studying at Harvard because

392
00:23:04,720 --> 00:23:07,840
Speaker 3: every student who's here on a student visa has to

393
00:23:07,880 --> 00:23:11,320
Speaker 3: have what's called that quote unquote active status in the

394
00:23:11,400 --> 00:23:15,160
Speaker 3: Student Exchange Visitor Program in order to have lawful status.

395
00:23:15,200 --> 00:23:17,960
Speaker 3: And so what the Trump administration had said to those

396
00:23:18,000 --> 00:23:21,240
Speaker 3: students was, you have to transfer. You have to leave

397
00:23:21,520 --> 00:23:23,600
Speaker 3: Harvard as student as possible and go to some other

398
00:23:23,760 --> 00:23:26,960
Speaker 3: school if you want to maintain your status. So Harvard

399
00:23:27,400 --> 00:23:31,159
Speaker 3: asks for an injunction, and they get an injunction or

400
00:23:31,160 --> 00:23:33,439
Speaker 3: they get a temporary restraining order, and now they have

401
00:23:33,480 --> 00:23:37,919
Speaker 3: an injunction that prevents the government from at the moment

402
00:23:38,359 --> 00:23:45,440
Speaker 3: revoking their status from the SEVP Student and Exchange Visitor Program.

403
00:23:45,920 --> 00:23:49,000
Speaker 3: But that doesn't make them out of the woods quite yet,

404
00:23:49,080 --> 00:23:53,359
Speaker 3: because there's a separate issue, which is what about visas

405
00:23:53,480 --> 00:23:57,840
Speaker 3: for new students. And here the Trump administration actually did

406
00:23:57,880 --> 00:24:03,400
Speaker 3: something very powerful. If you remember the old travel ban,

407
00:24:03,800 --> 00:24:06,440
Speaker 3: and potentially people have talked about, you know, the Muslim

408
00:24:06,440 --> 00:24:10,159
Speaker 3: ban or whatever else, and the COVID bans. That statue

409
00:24:10,200 --> 00:24:12,520
Speaker 3: I NA two twelve f that allows the president to

410
00:24:12,600 --> 00:24:16,480
Speaker 3: ban people. The President actually issued a ban for Harvard

411
00:24:16,960 --> 00:24:19,439
Speaker 3: and said that nobody who was applying for a visa

412
00:24:19,520 --> 00:24:23,760
Speaker 3: abroad from Harvard could actually get a visa. So he

413
00:24:23,840 --> 00:24:28,080
Speaker 3: issued a ban under that, and that's in this separate litigation.

414
00:24:28,320 --> 00:24:31,600
Speaker 3: And the judge has that currently blocked for a couple

415
00:24:31,640 --> 00:24:36,119
Speaker 3: more days, but didn't want to extend that block quite

416
00:24:36,200 --> 00:24:40,359
Speaker 3: yet fully. And so Harvard's got two separate problems, which is,

417
00:24:40,840 --> 00:24:44,439
Speaker 3: they have this system, which at the moment, the district

418
00:24:44,440 --> 00:24:47,000
Speaker 3: court judges said they have to be allowed to remain

419
00:24:47,040 --> 00:24:51,080
Speaker 3: in the system, but they have this separate ban that

420
00:24:51,240 --> 00:24:54,560
Speaker 3: may still be allowed to go into effect that actually

421
00:24:54,800 --> 00:24:59,160
Speaker 3: allows the federal government to ban anybody associated with Harvard

422
00:24:59,440 --> 00:25:02,560
Speaker 3: from getting visa time re enter or enter in the

423
00:25:02,600 --> 00:25:04,440
Speaker 3: first place the United States.

424
00:25:04,920 --> 00:25:07,200
Speaker 1: And Harvard's got a lot more problems from the Trump

425
00:25:07,280 --> 00:25:11,120
Speaker 1: administration than these cases. Thanks so much, Leon, as always,

426
00:25:11,960 --> 00:25:15,960
Speaker 1: that's Leon Fresco of Honda Knight And in Supreme Court

427
00:25:16,040 --> 00:25:21,240
Speaker 1: news late this afternoon, a divided court lifted a Massachusetts

428
00:25:21,400 --> 00:25:26,000
Speaker 1: judges order that required the administration to give people ten

429
00:25:26,080 --> 00:25:30,280
Speaker 1: days notice and a chance to object before they're deported

430
00:25:30,680 --> 00:25:34,840
Speaker 1: to countries other than their home countries. The Trump administration

431
00:25:34,960 --> 00:25:39,560
Speaker 1: had made an emergency request, saying this order usurp presidential

432
00:25:39,600 --> 00:25:44,200
Speaker 1: authority and interfered with diplomatic efforts, and the court's six

433
00:25:44,320 --> 00:25:49,680
Speaker 1: conservative justices granted the administration's request without issuing an opinion

434
00:25:49,720 --> 00:25:53,639
Speaker 1: explaining their reasoning, but the decision to a scathing descent

435
00:25:53,800 --> 00:25:57,119
Speaker 1: from liberal Justice Sonya so to Mayor, who wrote that

436
00:25:57,160 --> 00:26:01,240
Speaker 1: the court's action exposes thousands to the risk of torture

437
00:26:01,440 --> 00:26:04,720
Speaker 1: or death. The court's two other liberal justices joined in

438
00:26:04,760 --> 00:26:08,960
Speaker 1: her descent, coming up Trump's judiciary picks this is Bloomberg.

439
00:26:11,440 --> 00:26:15,200
Speaker 1: Republican efforts to restrict the power of the courts ran

440
00:26:15,359 --> 00:26:19,800
Speaker 1: headlong into the power of the Senate Parliamentarian. In the

441
00:26:19,840 --> 00:26:23,040
Speaker 1: wake of the many federal court rulings that have stymied

442
00:26:23,040 --> 00:26:27,520
Speaker 1: the Trump agenda, Senate Republicans added a provision restricting the

443
00:26:27,560 --> 00:26:32,120
Speaker 1: power of judges to block federal government policies with injunctions

444
00:26:32,160 --> 00:26:36,560
Speaker 1: or restraining orders. It would require anyone seeking an injunction

445
00:26:36,800 --> 00:26:38,879
Speaker 1: to pay a fee that would be equal to the

446
00:26:38,960 --> 00:26:42,840
Speaker 1: costs and damages sustained by the federal government if it

447
00:26:42,880 --> 00:26:46,800
Speaker 1: were to ultimately win the case. But the Senate Parliamentarian

448
00:26:46,960 --> 00:26:50,480
Speaker 1: ruled that that provision does not comply with the Chamber's

449
00:26:50,600 --> 00:26:54,840
Speaker 1: Bird Rule, which essentially bars policy matters from being addressed

450
00:26:54,920 --> 00:26:58,840
Speaker 1: in the budget reconciliation process. Joining me is an expert

451
00:26:58,840 --> 00:27:02,000
Speaker 1: in the federal judiciary, Mary Carl Tobias, a professor at

452
00:27:02,040 --> 00:27:05,159
Speaker 1: the University of Richmond Law School. Carl, is it the

453
00:27:05,280 --> 00:27:07,960
Speaker 1: role of Congress to tell the judges how to run

454
00:27:08,000 --> 00:27:08,880
Speaker 1: their courtrooms?

455
00:27:09,800 --> 00:27:17,320
Speaker 4: Well, it probably is, because there's a lot of possibilities

456
00:27:17,480 --> 00:27:22,320
Speaker 4: for the Congress to do that as opposed to the

457
00:27:22,320 --> 00:27:27,960
Speaker 4: courts doing it, And they can make rules that govern,

458
00:27:28,200 --> 00:27:32,159
Speaker 4: but by and large they defer to the Judicial Conference,

459
00:27:32,400 --> 00:27:36,040
Speaker 4: you know, the policy making body and its rules committees

460
00:27:36,560 --> 00:27:39,800
Speaker 4: to do that type of work. But if you look

461
00:27:39,800 --> 00:27:44,720
Speaker 4: at Title twenty eight USC, there are lots of provisions

462
00:27:44,720 --> 00:27:47,840
Speaker 4: they make for the fields courts, the district courts, their

463
00:27:47,880 --> 00:27:50,880
Speaker 4: procedures and their members and whether they have to live

464
00:27:50,920 --> 00:27:53,520
Speaker 4: in the district or the appeals court, all of that.

465
00:27:54,760 --> 00:27:58,080
Speaker 4: So there's a long tradition of that. At the same time,

466
00:27:58,080 --> 00:28:01,320
Speaker 4: as I think it's a sort of cooperative arrangement. And

467
00:28:01,359 --> 00:28:06,040
Speaker 4: so if the Judicial Conference or judges would be uncomfortable

468
00:28:06,280 --> 00:28:11,000
Speaker 4: with certain kinds of procedural requirements, they may be able

469
00:28:11,040 --> 00:28:13,879
Speaker 4: to convince Congress not to adopt those, and so I

470
00:28:13,920 --> 00:28:17,679
Speaker 4: think there is a pretty good relationship there. And I

471
00:28:17,720 --> 00:28:21,200
Speaker 4: know lots of judges are amenable to, you know, testifying

472
00:28:21,320 --> 00:28:23,440
Speaker 4: and that type of thing and working on the committees

473
00:28:23,480 --> 00:28:27,159
Speaker 4: that the Chief Justice appoints. So on this one, I

474
00:28:27,200 --> 00:28:30,120
Speaker 4: think the reason when people can differ as to who

475
00:28:30,200 --> 00:28:34,000
Speaker 4: really should should be doing this, and I think Congress

476
00:28:34,000 --> 00:28:36,280
Speaker 4: could do it if it wanted to, but it ought

477
00:28:36,320 --> 00:28:39,960
Speaker 4: to be consulting with the judges too, in their best

478
00:28:40,000 --> 00:28:40,680
Speaker 4: sense of that.

479
00:28:41,120 --> 00:28:45,440
Speaker 1: The Parliamentarian said that the provision would be subject to

480
00:28:45,480 --> 00:28:48,840
Speaker 1: the Bird rule, so subject to a sixty vote threshold,

481
00:28:49,520 --> 00:28:53,240
Speaker 1: so that probably is going nowhere, yes.

482
00:28:53,120 --> 00:28:56,480
Speaker 4: And I think that was an appropriate judgment that she

483
00:28:56,680 --> 00:29:00,440
Speaker 4: made in that context, because as I understand, it supposed

484
00:29:00,480 --> 00:29:03,840
Speaker 4: to be restricted to budgetary items, and it doesn't seem

485
00:29:03,880 --> 00:29:07,280
Speaker 4: like that's a budgetary item. So I think her call

486
00:29:07,360 --> 00:29:08,920
Speaker 4: on that was correct.

487
00:29:09,600 --> 00:29:15,120
Speaker 1: Let's talk about in general about Trump's nominees to the

488
00:29:15,160 --> 00:29:20,840
Speaker 1: federal courts. Is he looking for young lawyers with experience

489
00:29:20,960 --> 00:29:25,840
Speaker 1: on issues that are important to the conservative movement, like abortion,

490
00:29:26,640 --> 00:29:29,640
Speaker 1: transgender rights, people who've worked in that area.

491
00:29:29,840 --> 00:29:32,600
Speaker 4: Well to some extent. Yes, we don't have much to

492
00:29:32,680 --> 00:29:36,720
Speaker 4: go on so far. He started a little slowly, as

493
00:29:36,760 --> 00:29:39,560
Speaker 4: Carl Holt said in the New York Times when the

494
00:29:39,600 --> 00:29:43,320
Speaker 4: first group came out. But what we have is, I

495
00:29:43,480 --> 00:29:47,640
Speaker 4: think now two for the appeals courts nominees, you know,

496
00:29:47,720 --> 00:29:50,000
Speaker 4: this week, actually one of them will have a hearing,

497
00:29:50,400 --> 00:29:52,720
Speaker 4: the other one will be voted out of committee or

498
00:29:52,720 --> 00:29:56,680
Speaker 4: at least discussed. And then they're nine for the district courts,

499
00:29:57,120 --> 00:30:00,400
Speaker 4: and five of them, I believe for Florida have a

500
00:30:00,400 --> 00:30:05,479
Speaker 4: hearing on Wednesday. Already the four for the Missouri district

501
00:30:05,600 --> 00:30:09,200
Speaker 4: vacancies have had their hearing and they will be up

502
00:30:09,320 --> 00:30:13,480
Speaker 4: for a committee discussion and vote on Thursday. So there's

503
00:30:13,480 --> 00:30:17,479
Speaker 4: a lot of activity this week about Trump's nominees, and

504
00:30:18,080 --> 00:30:20,440
Speaker 4: I think it's fair to say that they are only

505
00:30:20,480 --> 00:30:24,120
Speaker 4: six of palet vacancies right now. Those first two are

506
00:30:24,680 --> 00:30:30,640
Speaker 4: clearly conservative, and one of them, Whitney Hermanndorff for the

507
00:30:30,680 --> 00:30:34,680
Speaker 4: sixth Circuit Tennessee vacancy clerk for three of the justices

508
00:30:35,360 --> 00:30:40,160
Speaker 4: and is right now in the Attorney General's office in Tennessee.

509
00:30:40,600 --> 00:30:44,720
Speaker 4: She had a strong hearing, I thought, and answered questions

510
00:30:45,040 --> 00:30:48,560
Speaker 4: pretty directly, and so she may get a committee vote

511
00:30:48,600 --> 00:30:52,640
Speaker 4: on Thursday. Then, as I understand it, Emil Bauvay for

512
00:30:52,720 --> 00:30:57,160
Speaker 4: the third Circuit New Jersey vacancy will be up on

513
00:30:57,200 --> 00:31:00,720
Speaker 4: the pan on Wednesday, So that'll be interesting to see.

514
00:31:01,520 --> 00:31:07,360
Speaker 1: Are the nominees avoiding directly answering whether Biden won the

515
00:31:07,400 --> 00:31:09,320
Speaker 1: election to some extent?

516
00:31:09,400 --> 00:31:12,760
Speaker 4: Yes, I mean especially I think there's been a lot

517
00:31:12,800 --> 00:31:17,200
Speaker 4: of writing about the Missouri nominees. Apparently almost all of

518
00:31:17,240 --> 00:31:22,120
Speaker 4: them were not as forthcoming as people might like about

519
00:31:22,760 --> 00:31:28,000
Speaker 4: January sixth, and so that was an interesting dynamic about

520
00:31:28,520 --> 00:31:31,480
Speaker 4: whether Biden had actually won the election, and that's about

521
00:31:31,520 --> 00:31:34,280
Speaker 4: all they would say is he was the president and

522
00:31:34,360 --> 00:31:38,080
Speaker 4: people were critical of them. Certainly the legal press was

523
00:31:38,600 --> 00:31:41,360
Speaker 4: that may be thrashed out then on Thursday when they're

524
00:31:41,480 --> 00:31:43,160
Speaker 4: up for discussion and vote.

525
00:31:43,760 --> 00:31:50,080
Speaker 1: Some progressive advocacy groups have complained about the Senate Democrats

526
00:31:50,240 --> 00:31:55,280
Speaker 1: and the way they're not questioning these nominees aggressively enough,

527
00:31:56,000 --> 00:31:59,280
Speaker 1: not like the Republicans did when there were Democratic nominees,

528
00:31:59,320 --> 00:32:03,760
Speaker 1: and apparently only six of the panels ten Democrats posed

529
00:32:03,760 --> 00:32:07,280
Speaker 1: any questions of the first nominee. Are Democrats not taking

530
00:32:07,280 --> 00:32:10,520
Speaker 1: this seriously enough because they don't have the votes.

531
00:32:11,360 --> 00:32:14,640
Speaker 4: Well, I did see some of that in the legal press.

532
00:32:15,360 --> 00:32:18,640
Speaker 4: And part of the problem, of course is they're in

533
00:32:18,680 --> 00:32:23,240
Speaker 4: a minority, and the committee line up is twelve Republicans

534
00:32:23,280 --> 00:32:27,400
Speaker 4: and ten Democrats, and people are spread fairly thin on

535
00:32:27,560 --> 00:32:30,520
Speaker 4: the committees, and so they may have had other commitments.

536
00:32:30,560 --> 00:32:34,320
Speaker 4: But I think it's a fair criticism to say it's

537
00:32:34,360 --> 00:32:40,000
Speaker 4: important to ask difficult questions in committee meetings and in hearing,

538
00:32:40,480 --> 00:32:44,560
Speaker 4: and I think they'll do better going forward. Certainly the

539
00:32:44,640 --> 00:32:51,120
Speaker 4: ranking members. Senator Durbin has been very straightforward and I

540
00:32:51,160 --> 00:32:55,000
Speaker 4: think asking lots of questions, as have a number of others.

541
00:32:55,120 --> 00:32:58,680
Speaker 4: But you're right there was I think one hearing where

542
00:32:58,840 --> 00:33:02,000
Speaker 4: a number of the Democrats either weren't there or didn't

543
00:33:02,040 --> 00:33:03,080
Speaker 4: ask questions.

544
00:33:03,560 --> 00:33:07,840
Speaker 1: We've talked before about Republican Senator Kennedy, who often asked

545
00:33:07,960 --> 00:33:13,240
Speaker 1: questions basic legal questions of the nominees, and not only

546
00:33:13,240 --> 00:33:15,840
Speaker 1: does that question get a lot of hits on YouTube,

547
00:33:16,360 --> 00:33:19,800
Speaker 1: but at times he's caught judicial nominees not knowing some

548
00:33:19,920 --> 00:33:24,479
Speaker 1: basic concepts, and I'm wondering if Democrats should start doing that.

549
00:33:25,480 --> 00:33:27,920
Speaker 4: Yes, I think that is a fair question, and I

550
00:33:27,960 --> 00:33:31,680
Speaker 4: think they've Democrats opposed some of them and Kennedy, to

551
00:33:31,760 --> 00:33:36,240
Speaker 4: his credit, I think, did with Trump one point zero nominees,

552
00:33:36,320 --> 00:33:40,920
Speaker 4: and I think was actually responsible for a couple of

553
00:33:40,920 --> 00:33:45,480
Speaker 4: them deciding not to go forward. We'll see if he's

554
00:33:45,520 --> 00:33:48,640
Speaker 4: going to do the same thing with these nominees this

555
00:33:48,760 --> 00:33:54,080
Speaker 4: time around, though, I would say in watching the Missouri nominees,

556
00:33:54,120 --> 00:33:59,000
Speaker 4: they all I think were people who had substantial experience

557
00:33:59,000 --> 00:34:02,760
Speaker 4: in the attorney General's off in that state, and I

558
00:34:02,800 --> 00:34:06,160
Speaker 4: think for the district court they would know their way

559
00:34:06,240 --> 00:34:10,640
Speaker 4: around those procedures, and we're familiar with them. I think

560
00:34:10,680 --> 00:34:14,520
Speaker 4: on that score they were pretty good. We'll see about

561
00:34:14,560 --> 00:34:18,480
Speaker 4: the Florida ones, but most of them are state sitting

562
00:34:18,520 --> 00:34:21,920
Speaker 4: state judges or want to magistrate judge in the federal system,

563
00:34:22,480 --> 00:34:27,000
Speaker 4: and that's what you want. I mean, the basis for nominating,

564
00:34:27,040 --> 00:34:31,080
Speaker 4: confirming somebody for the district bench is familiarity, right, and

565
00:34:31,200 --> 00:34:35,000
Speaker 4: competence the ability to move cases. So far, I think

566
00:34:35,160 --> 00:34:39,319
Speaker 4: people may disagree with the political views of some of

567
00:34:39,360 --> 00:34:44,880
Speaker 4: the district nominees, but they do have experience in litigating cases,

568
00:34:45,120 --> 00:34:49,320
Speaker 4: and so I think on the competence front, they probably

569
00:34:50,040 --> 00:34:55,719
Speaker 4: are relatively strong, and maybe stronger than one point zero

570
00:34:55,840 --> 00:34:59,439
Speaker 4: district nominees so far. But we haven't seen them all.

571
00:35:00,040 --> 00:35:03,120
Speaker 4: They're you know, thirty nine or so current vacancies that

572
00:35:03,440 --> 00:35:06,600
Speaker 4: need to be filled in the district level.

573
00:35:07,000 --> 00:35:11,000
Speaker 1: Trump has put all his personal lawyers, the top personal

574
00:35:11,040 --> 00:35:14,840
Speaker 1: lawyers that defended him, in different positions in the administration.

575
00:35:15,560 --> 00:35:19,680
Speaker 1: And Emil Bovey has gotten a lot of criticism for

576
00:35:19,920 --> 00:35:23,200
Speaker 1: his handling of the Eric Adams case. And now he's

577
00:35:23,280 --> 00:35:25,480
Speaker 1: up for a seat on the Third Circuit.

578
00:35:26,840 --> 00:35:31,640
Speaker 4: Yes, and I think Democrats have been and the legal

579
00:35:31,680 --> 00:35:37,280
Speaker 4: press have been pretty much opposed to his nomination because

580
00:35:37,480 --> 00:35:43,280
Speaker 4: of what happened with the Eric Adams case, and also

581
00:35:43,400 --> 00:35:47,319
Speaker 4: what happened at the Justice Department with the Eric Adams case.

582
00:35:47,360 --> 00:35:49,680
Speaker 4: Of course, the whole number of Southern District of New

583
00:35:49,760 --> 00:35:54,879
Speaker 4: York nominees, including Danielle Sessoon, who was the acting US

584
00:35:54,920 --> 00:35:59,800
Speaker 4: Attorney for the Southern District, they resigned rather than follow

585
00:35:59,880 --> 00:36:02,680
Speaker 4: the orders from Bouve, and he forced all of that.

586
00:36:03,200 --> 00:36:09,400
Speaker 4: And then in headquarters back in DC, he was instrumental

587
00:36:09,600 --> 00:36:14,960
Speaker 4: in dismantling the Public Integrity Unit basically which checks on

588
00:36:15,239 --> 00:36:19,320
Speaker 4: all of the prosecutions to be pursued around the country

589
00:36:19,360 --> 00:36:22,759
Speaker 4: to be sure that they're solid cases. And so his

590
00:36:22,880 --> 00:36:27,720
Speaker 4: involvement on those front has troubled certainly Democrats and probably

591
00:36:27,719 --> 00:36:28,719
Speaker 4: some Republicans.

592
00:36:29,719 --> 00:36:32,759
Speaker 1: But does it seem like any Trump judicial nominee is

593
00:36:32,800 --> 00:36:35,040
Speaker 1: going to get through this committee and the Senate.

594
00:36:35,840 --> 00:36:38,320
Speaker 4: Well, we'll see. We'll see how he does in the hearing,

595
00:36:38,920 --> 00:36:41,479
Speaker 4: and I would expect this also would be a test

596
00:36:41,520 --> 00:36:48,360
Speaker 4: for Democrats to rigorously question him because there are issues

597
00:36:48,440 --> 00:36:52,520
Speaker 4: that trouble them and I think may trouble some Republicans.

598
00:36:53,080 --> 00:36:57,239
Speaker 4: So we could see how he answers those questions. That

599
00:36:57,320 --> 00:37:01,239
Speaker 4: could tell us a lot weeks after that or so

600
00:37:01,560 --> 00:37:06,560
Speaker 4: maybe late July there would be discussion and vote in committee.

601
00:37:06,719 --> 00:37:09,080
Speaker 4: But you're right, as I said earlier, the twelve to

602
00:37:09,160 --> 00:37:13,560
Speaker 4: ten majority that the Republicans have make it difficult for

603
00:37:13,640 --> 00:37:19,080
Speaker 4: Democrats to do much about Trump's nominees. But this particular case,

604
00:37:19,239 --> 00:37:22,280
Speaker 4: they may well be able to make a strong case

605
00:37:22,760 --> 00:37:26,160
Speaker 4: based on very recent history that has been widely reported.

606
00:37:26,400 --> 00:37:29,239
Speaker 4: Indj at the highest level.

607
00:37:29,560 --> 00:37:35,440
Speaker 1: Are any circuits going to be flipped because of these Trump.

608
00:37:35,239 --> 00:37:39,920
Speaker 4: Nominees, Well, I think the third circuit would be I

609
00:37:39,920 --> 00:37:41,799
Speaker 4: don't know if flip is the right word, because I

610
00:37:41,840 --> 00:37:45,560
Speaker 4: think they're pretty evenly divided right now. But if they

611
00:37:45,600 --> 00:37:49,360
Speaker 4: were to fill the New Jersey seat and the Delaware

612
00:37:49,440 --> 00:37:53,800
Speaker 4: seat there would be a majority of members in active

613
00:37:53,800 --> 00:37:58,600
Speaker 4: service appointed by Republican presidents. They would have either one

614
00:37:58,680 --> 00:38:02,400
Speaker 4: or I think maybe two vote majority on that court.

615
00:38:02,920 --> 00:38:05,520
Speaker 4: But that's I think the only place as a first

616
00:38:05,520 --> 00:38:09,480
Speaker 4: circuit vacancy. There's the sixth circuit vacancy, where the Republican

617
00:38:09,480 --> 00:38:13,440
Speaker 4: appointees already have a majority. There's a California one. It

618
00:38:13,520 --> 00:38:17,240
Speaker 4: won't change that because it's a Republican appointee who's stepping

619
00:38:17,280 --> 00:38:20,400
Speaker 4: down or taking senior status, and so there are not

620
00:38:20,440 --> 00:38:24,040
Speaker 4: many opportunities right now. And it's interesting because I think

621
00:38:24,160 --> 00:38:26,000
Speaker 4: this is one of the longest periods that I think

622
00:38:26,040 --> 00:38:30,480
Speaker 4: I can remember where no judges assume senior status over

623
00:38:30,600 --> 00:38:33,400
Speaker 4: like the last two or three months. Very few.

624
00:38:34,120 --> 00:38:36,759
Speaker 1: Well, we know why the judges appointed by Democrats are

625
00:38:36,800 --> 00:38:39,719
Speaker 1: holding out, but I'm not sure why the judges appointed

626
00:38:39,719 --> 00:38:43,480
Speaker 1: by Republicans are. Thanks so much, Carl. That's Professor Carl

627
00:38:43,520 --> 00:38:47,520
Speaker 1: Tobias of the University of Richmond Law School. And that's

628
00:38:47,520 --> 00:38:50,160
Speaker 1: it for this edition of the Bloomberg Law Show. Remember

629
00:38:50,200 --> 00:38:52,279
Speaker 1: you can always get the latest legal news on our

630
00:38:52,280 --> 00:38:55,759
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts.

631
00:38:55,840 --> 00:39:01,680
Speaker 1: Spotify and at www dot bloomberg dot com, podcast Slash Law,

632
00:39:02,080 --> 00:39:04,680
Speaker 1: and remember to tune into The Bloomberg Law Show every

633
00:39:04,719 --> 00:39:08,640
Speaker 1: weeknight at ten pm Wall Street Time. I'm Jim Grosso

634
00:39:08,760 --> 00:39:10,360
Speaker 1: and you're listening to Bloomberg