Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 1: After more than three months in federal custody, Columbia University
Speaker 1: graduate and activist Mahmoud Khalil was released from an iced
Speaker 1: attention facility in Louisiana on Friday. He vowed to continue
Speaker 1: the protests against Israel and the war in Gaza that
Speaker 1: got him arrested in the Trump administration's crackdown on foreign
Speaker 1: students who joined campus protests.
Speaker 2: The US government is funding this genocide and Columbia University
Speaker 2: is investing in this genocide. This is what I was protesting.
Speaker 2: This is what I would continue to protest with every
Speaker 2: one of you.
Speaker 1: A federal judge had ordered Khalil to be released, saying
Speaker 1: it would be highly unusual for the government to continue
Speaker 1: to detain a legal US resident who's unlikely to flee
Speaker 1: and had hasn't been accused of violence. Joining me is
Speaker 1: Immigration law expert Leon Fresco, a partner at Honda Knight,
Speaker 1: Leon Khalil is out of detention. But is he out
Speaker 1: of the woods.
Speaker 3: No, He's absolutely not out of the woods, because there
Speaker 3: are so many different ways in which he can be
Speaker 3: placed back in detention. The first would be for an
Speaker 3: appellate court to place him back in detention under the
Speaker 3: guys that his entire habeas proceeding. There's no jurisdiction for
Speaker 3: the lower court judge to actually issue any of the
Speaker 3: orders he's issuing. This is a big undecided issue in
Speaker 3: the immigration system, which is do these types of habeas
Speaker 3: claims have to be decided actually in the context of
Speaker 3: the removal preceding itself, and not in a habeas claim,
Speaker 3: but rather just what happens is you go to an
Speaker 3: immigration judge, you say that the law is unconstitutional that
Speaker 3: says that you can be banned from the country because
Speaker 3: of foreign policy reasons. The immigrant just says they don't
Speaker 3: have jurisdiction. Then the Board of Immigration Appeal says they
Speaker 3: don't have jurisdiction, and only then you can make this
Speaker 3: constitutional claim to a court of appeals as part of
Speaker 3: a petition for review. So that's the argument the government's making,
Speaker 3: and they actually have pretty strong statutory authority for this.
Speaker 3: The problem is that could take years, and so the
Speaker 3: question is will the Supreme Court say, look, you actually
Speaker 3: can be detained for years while you make these kinds
Speaker 3: of claims or does the court allow this kind of
Speaker 3: habeas for this exact type of situation. So there's that,
Speaker 3: But then there's a whole second issue, which is that
Speaker 3: they're actually trying to deport in not just for this
Speaker 3: calm to foreign policy reason, but they're also saying that
Speaker 3: he lied on his green card application, and that in
Speaker 3: and of itself justifies his detention and removal if they
Speaker 3: can show that the lies on the green card application
Speaker 3: or material and the lies were all about various associations
Speaker 3: that he's had in the past that he did not
Speaker 3: report when there was this question that says, please tell
Speaker 3: me about any organizations that you've been a member of,
Speaker 3: and he didn't put any of these organizations on his application,
Speaker 3: and the question is are those omissions materials? And so
Speaker 3: the lower court judge said that because there wasn't any
Speaker 3: evidence that the government provided, they did not think that
Speaker 3: detention and removal was based on that issue. That is
Speaker 3: never used to justify detention and removal. But if an
Speaker 3: appellate court used that either of those two issues are
Speaker 3: sufficient to place him back in detention and ultimately removal,
Speaker 3: then Khalil will be either redetained and ultimately removed and
Speaker 3: so he's definitely not out of the woods.
Speaker 1: Yet can't the government bring up at any point that
Speaker 1: you lied on your green court application?
Speaker 3: They absolutely can, and that's why it was kind of
Speaker 3: remarkable what the district judge said. The district judge basically
Speaker 3: said that this was a pretextual claim, and because he
Speaker 3: viewed it as a pretextual claim, he wasn't going to
Speaker 3: allow the government to keep Khalil in detention. There's a
Speaker 3: lot of precarious parts about the lower court's order, but
Speaker 3: that's the most precarious part, because there wasn't even a
Speaker 3: dispute that the government has this authority to detain and
Speaker 3: remove on the basis of these omissions. But the district said, look,
Speaker 3: there wasn't any strong evidence that you've done this in
Speaker 3: the past in this context, and so I'm going to
Speaker 3: view this as pretextual and say that you are doing
Speaker 3: this because of Mahmud Khalil's complaints about the war, you know,
Speaker 3: between the Israelis and the Palestinians. And so that's kind
Speaker 3: of a remarkable decision in terms of its far reaching authority.
Speaker 3: And we're going to see if an appellate court tries
Speaker 3: to rein that in he.
Speaker 1: Says he's going to continue his protests, and since his
Speaker 1: release he's been doing just that. Is he hurting his
Speaker 1: case in any way by continuing the pro chest.
Speaker 3: I definitely think now we're at the point where he's
Speaker 3: gonna get all the negative presumptions in terms of his activity,
Speaker 3: whether his activity is viewed in a way that's helpful
Speaker 3: or harmful. It's just a matter now of the sort
Speaker 3: of legal arguments in this case, which are Number one,
Speaker 3: is the statute under which he's being detained so vague
Speaker 3: that putting aside anything you think Mamood Khalil is doing,
Speaker 3: it's just so vague. We just don't know what if
Speaker 3: what you're leading is a protest in favor of the
Speaker 3: Red Cross and you're saying give more money to the
Speaker 3: Red Cross, if somebody just doesn't like that and detains you,
Speaker 3: And so that's the real question here is is that
Speaker 3: statute so vague that it can't be used for any purpose?
Speaker 3: Or will that statute actually not be viewed as vague?
Speaker 3: And then the second question, of course, is what is
Speaker 3: the context in which you can challenge this? And so
Speaker 3: it's possible that his entire habeas salad was completely unlawful
Speaker 3: because you have to only challenge it as part of
Speaker 3: the removal process. And then third the specific questions about
Speaker 3: his green card application and whether he lied on it.
Speaker 3: So there's just so many complications in this case that
Speaker 3: for him to pull out the perfect straight flush here
Speaker 3: would be an incredible legal accomplishment. But I definitely don't
Speaker 3: think that he's doing himself and he favors fact wise
Speaker 3: by doing all of the things he's doing.
Speaker 1: I want to turn to jilmoar Abrigo Garcia for a moment,
Speaker 1: because a judge rule that he should be released as well,
Speaker 1: explain why she said that he shouldn't be kept in
Speaker 1: pre trial detention.
Speaker 3: Well, at the end of the day, the issue there is,
Speaker 3: when you're doing a pre trial criminal detention, you're trying
Speaker 3: to decide whether the person is going to be dangerous
Speaker 3: and are they going to abscond from their proceedings, And
Speaker 3: the issue there is, at least vis a v the
Speaker 3: criminal proceedings, what the judge is basically saying is there
Speaker 3: isn't enough evidence here that he's going to be violent enough. Member.
Speaker 3: When you ask for bond from a criminal case, many
Speaker 3: people get bond when they're in trial. It doesn't. So
Speaker 3: there are people who are on murder cases who are
Speaker 3: on bond during trial, and so it's very actually rare
Speaker 3: that there's no bond at all that's issued. And so
Speaker 3: they're saying, this guy doesn't have a history of actually
Speaker 3: committing violent crimes. Number one and number two in terms
Speaker 3: of being a flight risk. This guy's pretty famous and
Speaker 3: notorious now, and so he doesn't actually want to flee
Speaker 3: the country. His whole point is he's wanted to stay
Speaker 3: in the country, and so he would be someone that
Speaker 3: would be absconding. There wouldn't be a risk there, because
Speaker 3: the whole point is this guy's just trying to remain
Speaker 3: in the country. But in any case, the fact that
Speaker 3: he's gotten this bond doesn't really change anything, because now
Speaker 3: what happens is the immigration proceedings will continue because there's
Speaker 3: sort of these two parallel things. There's a deportation process
Speaker 3: and there's a criminal process, and the government can always
Speaker 3: elect to do the criminal process first and then do
Speaker 3: the deportation process, but it doesn't have to do it
Speaker 3: that way. And so if this judge says he can
Speaker 3: go free on bond, then what the immigration folks will
Speaker 3: do is say, well, we'll just then continue the immigration
Speaker 3: process of trying to get him deported, and that part
Speaker 3: of the process has to do with showing that conditions
Speaker 3: in El Salvador have changed such that he would be
Speaker 3: able to be sent there without being tortured, which is
Speaker 3: itself going to be quite a tricky case because if
Speaker 3: he's just going to be sent back to that same
Speaker 3: Sea Coot facility, this might not be the easiest case
Speaker 3: as opposed to he was going to be sent to
Speaker 3: El Salvador and be freed, then okay, you can make
Speaker 3: a better argument that the game related torture he was
Speaker 3: worried about in the past isn't going to happen now.
Speaker 3: But there's this whole separate claim about, well, the president
Speaker 3: of Olsavador has called him a terrorist, and if he
Speaker 3: puts him back in seacocks, are the conditions in the
Speaker 3: seacot facility tends about the torture. So this case is
Speaker 3: even messier than the Khalil case, and we'll just have
Speaker 3: to wait and see. But the upshot is he's not
Speaker 3: going to be free from detension one way or another. Again,
Speaker 3: he's another one that will need the straight plush of
Speaker 3: having both the criminal court free him from bond, and
Speaker 3: an immigration court judge who will free him in a
Speaker 3: bond proceeding as well.
Speaker 1: Yes, these cases are so complicated. I guess they're showing
Speaker 1: the public how complicated the immigration laws are. Let's talk
Speaker 1: about sanctuary cities and sanctuary states. Attorneys general in twenty states,
Speaker 1: mostly Democratic led states, have sued the administration. Their claims
Speaker 1: are sort of similar to other lawsuits that have sued
Speaker 1: the administration for different things.
Speaker 3: Yes, what happened in the particular case that just got
Speaker 3: decided earlier last week was that the Secretary of Transportation,
Speaker 3: Sean Duffy, had tried to block transportation funds, which are
Speaker 3: funds that the Congress sets for the purpose of giving
Speaker 3: them to the states and to the cities for roads
Speaker 3: and bridges and tunnels and that kind of thing. And
Speaker 3: Secretary Duffi's claim was, why should sanctuary cities get this money.
Speaker 3: They're just ruining everything, They're causing all these problems. I'm
Speaker 3: going to give it to cities that actually will try
Speaker 3: to improve their communities and not be sanctuary cities. Those
Speaker 3: are his words, not mine. And so he said these
Speaker 3: conditions that said you will have to make a certification
Speaker 3: that you're not a sanctuary city in order to get
Speaker 3: these funds. And so again, as you said, the states
Speaker 3: and the city sued, and the federal court judge in
Speaker 3: Rhode Island actually blocked this ability to say that you
Speaker 3: can't get funding unless you say you're not a sanctuary
Speaker 3: city because he said that the Congress didn't actually when
Speaker 3: they issued these grants contemplate anything related to sanctuary cities
Speaker 3: at all. And so the point is, maybe if the
Speaker 3: Congress had said something about that, you could have an argument,
Speaker 3: But the Congress just said, hey, based these grant allocations
Speaker 3: on the transportation means of the states of the cities,
Speaker 3: and the story. That's it. So there isn't any authority
Speaker 3: for the Secretary of Transportation to add new requirements, especially
Speaker 3: not ones that are related to immigrations.
Speaker 1: Leon are there any sanctuary cities or states because of this,
Speaker 1: you know, pushed by the Trump administration that are retreating
Speaker 1: from their positions.
Speaker 3: So there's a couple of problems. So in some states,
Speaker 3: like for instance, if you say California, California actually has
Speaker 3: a state law that requires all of the city in
Speaker 3: California to be sanctuary cities as a state. They say
Speaker 3: the states and the cities cannot cooperate with ICE vis
Speaker 3: a ve giving either access to the jails or with
Speaker 3: regard to detaining people and reporting them to ICE, and
Speaker 3: so in those situations, there are plenty of cities in
Speaker 3: California that are voicing a desire to cooperate with ICE,
Speaker 3: but they're not able to because of state law. And
Speaker 3: in a lot of big cities there's that problem. But
Speaker 3: in other cities where the states are not constraining them,
Speaker 3: you are seeing some efforts. It's sort of the same
Speaker 3: thing you're seeing with the law firms and a little
Speaker 3: bit with the universities, except that no university has yet
Speaker 3: reached an agreement with the Trump administration. Where there are
Speaker 3: some cities that are trying to broker deals with the
Speaker 3: Trump administration to get themselves off of the naughty list,
Speaker 3: so to speak, but again none have been a But
Speaker 3: there are some cities that are sort of lower profile
Speaker 3: cities that are trying to broker those deals to get
Speaker 3: themselves off this list, but again none have been finalized
Speaker 3: and none have been announced.
Speaker 1: Coming up next, Trump gets an immigration win at the
Speaker 1: Supreme Court. This is Bloomberg. There's been a lot of
Speaker 1: publicity over federal immigration officials conducting large scale arrests outside
Speaker 1: immigration courtrooms across the country. In many cases, immigrants are
Speaker 1: arrested after a judge grants a government request to dismiss
Speaker 1: their case, making them eligible for expedited removal. I've been
Speaker 1: talking to immigration law expertly on Fresco of Holland and
Speaker 1: Knight Leon is what the government is doing in these cases,
Speaker 1: dismissing the case and then arresting them. Is it legal?
Speaker 3: Yes, it is legal. ICE can and the reason it
Speaker 3: actually does choose the immigration court is because the individuals
Speaker 3: have gone through security so they don't have any weapons.
Speaker 3: They're not home, they're not in a school, they're not
Speaker 3: in a place where it will be a major scene,
Speaker 3: sort of a place where you wouldn't expect to be caught. Now,
Speaker 3: the problem is if you go to immigration courts and
Speaker 3: you apprehend people, people will stop going to immigration court,
Speaker 3: which is not what you want. You want them to
Speaker 3: go to court and then you want them to see
Speaker 3: what happens after that. But now people are not going
Speaker 3: to go to court. But that's the reason why ICE
Speaker 3: is doing it. Now. The second thing that they're doing
Speaker 3: as you said, is they're not just waiting to see
Speaker 3: who loses and then apprehend them, which theoretically people would
Speaker 3: understand that. They would say, look, if you get a
Speaker 3: deportation order, why not actually place the person in deportation
Speaker 3: custody at that point and deport them. Why let them
Speaker 3: just go home and have to go get them some
Speaker 3: other day and deport them. So I think people understand
Speaker 3: that point. But what's happening now is this second thing
Speaker 3: where they're saying, we're going to actually cut your deportation
Speaker 3: proceedings off. We're going to dismiss them, which in a
Speaker 3: theory is a benefit to the foreign nationals. But what
Speaker 3: they're doing is they're asking them to be dismissed because
Speaker 3: they don't want to go through the two year process
Speaker 3: that these hearings sake. They want to put them in
Speaker 3: something called expedited removal. The difference is is once you're
Speaker 3: in expedited removal, you can be placed in mandatory detention.
Speaker 3: There is no bond from that. And what expedited removal
Speaker 3: is is if you've been in the country less than
Speaker 3: two years, you actually don't need to go through the
Speaker 3: whole formal removal process. So long as you haven't articulated
Speaker 3: a credible fear of being persecuted on the basis of
Speaker 3: your race, religion, national origin, social group, or political opinions.
Speaker 3: And so what happens is there's a been about five
Speaker 3: six hundred thousand people who have been parolled under that
Speaker 3: Biden Cuban, Haitian, Nicaraguans Whalen parole, and also hundreds of
Speaker 3: other thousands of people that have gotten temporary protected status,
Speaker 3: and so some of those people actually don't have any
Speaker 3: such claims for persecution. So what Ice is trying to
Speaker 3: do is say, let's take some of those people just
Speaker 3: because they're very low hanging fruit, and when we terminate
Speaker 3: their status, place them in expedite and removal and cut
Speaker 3: off their two or three year immigration proceeding so that
Speaker 3: we can place them in mandatory detention. And so it's
Speaker 3: really just about that. And also remember that they've been
Speaker 3: getting a lot of political pressure to have three thousand
Speaker 3: arrests per day, and so this is just again the
Speaker 3: lowest hanging fruit way of getting those three thousand arrests
Speaker 3: per day.
Speaker 1: So, speaking about immigration court and people not wanting to
Speaker 1: show up for fear of arrest, let's talk about the
Speaker 1: Alien Registration Act, which has not been used in seventy
Speaker 1: five years. You know, it's still on the books.
Speaker 3: Though, correct, there's laws that require that if you haven't
Speaker 3: registered with the federal government when you've entered the country,
Speaker 3: you're actually committing a misdemean And so what happens is
Speaker 3: the way it's being interpreted right now, and say they
Speaker 3: tried to get it and enjoined and they failed. Meaning
Speaker 3: the courts have actually recently and meaning this year, have
Speaker 3: said that the Trump administration can enforce this registration requirement.
Speaker 3: The Trump administration has said, look, if you entered with
Speaker 3: a visa, then you've registered, that's fine. But if you
Speaker 3: cross the border and nobody knows you're here, you just
Speaker 3: crossed illegally. If we find you and you didn't register,
Speaker 3: we can put you in jail. We can prosecute you
Speaker 3: for failure to register. And what you're seeing now is
Speaker 3: because there's not enough space in immigration detention facilities to
Speaker 3: place all of these people in the deportation process in
Speaker 3: an immigration detention facility. The other way that these three
Speaker 3: thousand arrests are being executed is that some of these
Speaker 3: people are actually being placed in federal criminal prosecutions and
Speaker 3: proceedings to say, look, you just didn't register as someone
Speaker 3: who's here undocumented, so they're actually going to prosecute you
Speaker 3: for this crime. And the added benefit of that to
Speaker 3: the Trump administration is by doing that, that sort of
Speaker 3: creates another deterrent factor, another tactic that will make people
Speaker 3: who cross the border illegally hear very, very nervous about
Speaker 3: remaining in the country, because in addition to just being deported,
Speaker 3: now there's this other possibility that they can be criminally
Speaker 3: prosecuted and criminally detained for failure to report their statistie.
Speaker 3: But then one might argue, well, why don't they just
Speaker 3: report their status, and certainly they should, but then the
Speaker 3: fear as well if they do that, does that make
Speaker 3: them low hanging fruit for ice to come pick them
Speaker 3: up anyway? And so that's the forty two situation that
Speaker 3: those individuals are in. But the point is, if there's
Speaker 3: any interaction at all that any person who crossed the
Speaker 3: border has with police, it's very likely now that they're
Speaker 3: going to be charged with this failure to register and
Speaker 3: be criminally prosecuted for it.
Speaker 1: DHS estimates that up to three point two million immigrants
Speaker 1: are currently unregistered and would be affected by this. But
Speaker 1: there are several cases, like five cases or so, and
Speaker 1: a federal magistrate judge dismissed the criminal cases right.
Speaker 3: Well, some federal magistrate judges are saying that people are
Speaker 3: not intentionally refusing to register, and so they're interpreting the
Speaker 3: statute as saying that the only way you can actually
Speaker 3: be prosecuted is if you knew you had this requirement
Speaker 3: and intentionally refused to register. And so from that perspective,
Speaker 3: there's going to be some debate about, well, does ICE
Speaker 3: need to sort of do a double cat, which is
Speaker 3: catch the person, tell them to register, and only if
Speaker 3: they don't register then you can prosecute them. And that's
Speaker 3: going to be another of these issues that's going to
Speaker 3: have to work their way up to the Supreme Court.
Speaker 3: Is do you have some duty to know already that
Speaker 3: you have to register or does the government have to
Speaker 3: tell you you have to register and only then do
Speaker 3: you have to register?
Speaker 1: And how much is the possible sentence?
Speaker 3: The maximum is six months in prison, but I don't
Speaker 3: think anybody would actually get six months in prison. And
Speaker 3: I think the larger issue is just that it's just
Speaker 3: another way to when they arrest you. They can arrest you,
Speaker 3: they can put you in the tension, separate you from
Speaker 3: your family, and just that trauma that that whole process
Speaker 3: creates is basically the reason for doing it.
Speaker 1: A lot of these tactics by the Trump administration are
Speaker 1: to encourage illegal immigrants to self deport.
Speaker 3: Correct, that's the whole point of this. By creating the
Speaker 3: various touch points in which one can be apprehended and
Speaker 3: can eventually either be detained or prosecuted or deported or
Speaker 3: otherwise inconvenience. There's now, by the way, new regulation that's
Speaker 3: going to come out soon for the people that overstayed.
Speaker 3: So those are not people that registered, but the people
Speaker 3: oversay that will find them each day and we'll see
Speaker 3: if the courts allow that to happen. But that'll be
Speaker 3: yet another checkpoint is if you get this gigantic bill
Speaker 3: for hundreds of thousands of dollars for you know, every
Speaker 3: day that you've been in the country and lawfully you
Speaker 3: got to fined fifty dollars or something like that. And
Speaker 3: so all of these are various touch points that they're
Speaker 3: trying to create to basically force people to self support
Speaker 3: from the United States And let's.
Speaker 1: Turn to Harvard for a minute, because it's a little
Speaker 1: confusing to me. What has the Trump administration tried to
Speaker 1: do with regard to Harvard and its foreign students.
Speaker 3: From multiple things. The first attempt was just to say,
Speaker 3: every school in America that wants to bring a fore
Speaker 3: students into their school has to get an approval from
Speaker 3: something called SEVP, the Student Exchange Visitor Program, which is
Speaker 3: part of ICE Immigration and Customs Enforcement. And so once
Speaker 3: you have that approval, you basically have the ability to
Speaker 3: give these permission flips out. They're called I twenty forms
Speaker 3: that gives a student that you've admitted to your school
Speaker 3: the right to go to an embassy and ask for
Speaker 3: a student visa. And so what Harvard did is Harvard,
Speaker 3: like everyone else, gave out these I twenties and students
Speaker 3: had visas and they were at Harvard. And so what
Speaker 3: the Trump administration said is we wanted to terminate your
Speaker 3: SEVP status, meaning put Harvard back into the position as
Speaker 3: if it had never been given disapproval at all, like
Speaker 3: if it was just a brand new university that can't
Speaker 3: bring foreign students in. And this would have had two effects. One,
Speaker 3: don't do students could have come in and gotten visas.
Speaker 3: But number two, the students who are at Harvard would
Speaker 3: immediately lose their ability to continue studying at Harvard because
Speaker 3: every student who's here on a student visa has to
Speaker 3: have what's called that quote unquote active status in the
Speaker 3: Student Exchange Visitor Program in order to have lawful status.
Speaker 3: And so what the Trump administration had said to those
Speaker 3: students was, you have to transfer. You have to leave
Speaker 3: Harvard as student as possible and go to some other
Speaker 3: school if you want to maintain your status. So Harvard
Speaker 3: asks for an injunction, and they get an injunction or
Speaker 3: they get a temporary restraining order, and now they have
Speaker 3: an injunction that prevents the government from at the moment
Speaker 3: revoking their status from the SEVP Student and Exchange Visitor Program.
Speaker 3: But that doesn't make them out of the woods quite yet,
Speaker 3: because there's a separate issue, which is what about visas
Speaker 3: for new students. And here the Trump administration actually did
Speaker 3: something very powerful. If you remember the old travel ban,
Speaker 3: and potentially people have talked about, you know, the Muslim
Speaker 3: ban or whatever else, and the COVID bans. That statue
Speaker 3: I NA two twelve f that allows the president to
Speaker 3: ban people. The President actually issued a ban for Harvard
Speaker 3: and said that nobody who was applying for a visa
Speaker 3: abroad from Harvard could actually get a visa. So he
Speaker 3: issued a ban under that, and that's in this separate litigation.
Speaker 3: And the judge has that currently blocked for a couple
Speaker 3: more days, but didn't want to extend that block quite
Speaker 3: yet fully. And so Harvard's got two separate problems, which is,
Speaker 3: they have this system, which at the moment, the district
Speaker 3: court judges said they have to be allowed to remain
Speaker 3: in the system, but they have this separate ban that
Speaker 3: may still be allowed to go into effect that actually
Speaker 3: allows the federal government to ban anybody associated with Harvard
Speaker 3: from getting visa time re enter or enter in the
Speaker 3: first place the United States.
Speaker 1: And Harvard's got a lot more problems from the Trump
Speaker 1: administration than these cases. Thanks so much, Leon, as always,
Speaker 1: that's Leon Fresco of Honda Knight And in Supreme Court
Speaker 1: news late this afternoon, a divided court lifted a Massachusetts
Speaker 1: judges order that required the administration to give people ten
Speaker 1: days notice and a chance to object before they're deported
Speaker 1: to countries other than their home countries. The Trump administration
Speaker 1: had made an emergency request, saying this order usurp presidential
Speaker 1: authority and interfered with diplomatic efforts, and the court's six
Speaker 1: conservative justices granted the administration's request without issuing an opinion
Speaker 1: explaining their reasoning, but the decision to a scathing descent
Speaker 1: from liberal Justice Sonya so to Mayor, who wrote that
Speaker 1: the court's action exposes thousands to the risk of torture
Speaker 1: or death. The court's two other liberal justices joined in
Speaker 1: her descent, coming up Trump's judiciary picks this is Bloomberg.
Speaker 1: Republican efforts to restrict the power of the courts ran
Speaker 1: headlong into the power of the Senate Parliamentarian. In the
Speaker 1: wake of the many federal court rulings that have stymied
Speaker 1: the Trump agenda, Senate Republicans added a provision restricting the
Speaker 1: power of judges to block federal government policies with injunctions
Speaker 1: or restraining orders. It would require anyone seeking an injunction
Speaker 1: to pay a fee that would be equal to the
Speaker 1: costs and damages sustained by the federal government if it
Speaker 1: were to ultimately win the case. But the Senate Parliamentarian
Speaker 1: ruled that that provision does not comply with the Chamber's
Speaker 1: Bird Rule, which essentially bars policy matters from being addressed
Speaker 1: in the budget reconciliation process. Joining me is an expert
Speaker 1: in the federal judiciary, Mary Carl Tobias, a professor at
Speaker 1: the University of Richmond Law School. Carl, is it the
Speaker 1: role of Congress to tell the judges how to run
Speaker 1: their courtrooms?
Speaker 4: Well, it probably is, because there's a lot of possibilities
Speaker 4: for the Congress to do that as opposed to the
Speaker 4: courts doing it, And they can make rules that govern,
Speaker 4: but by and large they defer to the Judicial Conference,
Speaker 4: you know, the policy making body and its rules committees
Speaker 4: to do that type of work. But if you look
Speaker 4: at Title twenty eight USC, there are lots of provisions
Speaker 4: they make for the fields courts, the district courts, their
Speaker 4: procedures and their members and whether they have to live
Speaker 4: in the district or the appeals court, all of that.
Speaker 4: So there's a long tradition of that. At the same time,
Speaker 4: as I think it's a sort of cooperative arrangement. And
Speaker 4: so if the Judicial Conference or judges would be uncomfortable
Speaker 4: with certain kinds of procedural requirements, they may be able
Speaker 4: to convince Congress not to adopt those, and so I
Speaker 4: think there is a pretty good relationship there. And I
Speaker 4: know lots of judges are amenable to, you know, testifying
Speaker 4: and that type of thing and working on the committees
Speaker 4: that the Chief Justice appoints. So on this one, I
Speaker 4: think the reason when people can differ as to who
Speaker 4: really should should be doing this, and I think Congress
Speaker 4: could do it if it wanted to, but it ought
Speaker 4: to be consulting with the judges too, in their best
Speaker 4: sense of that.
Speaker 1: The Parliamentarian said that the provision would be subject to
Speaker 1: the Bird rule, so subject to a sixty vote threshold,
Speaker 1: so that probably is going nowhere, yes.
Speaker 4: And I think that was an appropriate judgment that she
Speaker 4: made in that context, because as I understand, it supposed
Speaker 4: to be restricted to budgetary items, and it doesn't seem
Speaker 4: like that's a budgetary item. So I think her call
Speaker 4: on that was correct.
Speaker 1: Let's talk about in general about Trump's nominees to the
Speaker 1: federal courts. Is he looking for young lawyers with experience
Speaker 1: on issues that are important to the conservative movement, like abortion,
Speaker 1: transgender rights, people who've worked in that area.
Speaker 4: Well to some extent. Yes, we don't have much to
Speaker 4: go on so far. He started a little slowly, as
Speaker 4: Carl Holt said in the New York Times when the
Speaker 4: first group came out. But what we have is, I
Speaker 4: think now two for the appeals courts nominees, you know,
Speaker 4: this week, actually one of them will have a hearing,
Speaker 4: the other one will be voted out of committee or
Speaker 4: at least discussed. And then they're nine for the district courts,
Speaker 4: and five of them, I believe for Florida have a
Speaker 4: hearing on Wednesday. Already the four for the Missouri district
Speaker 4: vacancies have had their hearing and they will be up
Speaker 4: for a committee discussion and vote on Thursday. So there's
Speaker 4: a lot of activity this week about Trump's nominees, and
Speaker 4: I think it's fair to say that they are only
Speaker 4: six of palet vacancies right now. Those first two are
Speaker 4: clearly conservative, and one of them, Whitney Hermanndorff for the
Speaker 4: sixth Circuit Tennessee vacancy clerk for three of the justices
Speaker 4: and is right now in the Attorney General's office in Tennessee.
Speaker 4: She had a strong hearing, I thought, and answered questions
Speaker 4: pretty directly, and so she may get a committee vote
Speaker 4: on Thursday. Then, as I understand it, Emil Bauvay for
Speaker 4: the third Circuit New Jersey vacancy will be up on
Speaker 4: the pan on Wednesday, So that'll be interesting to see.
Speaker 1: Are the nominees avoiding directly answering whether Biden won the
Speaker 1: election to some extent?
Speaker 4: Yes, I mean especially I think there's been a lot
Speaker 4: of writing about the Missouri nominees. Apparently almost all of
Speaker 4: them were not as forthcoming as people might like about
Speaker 4: January sixth, and so that was an interesting dynamic about
Speaker 4: whether Biden had actually won the election, and that's about
Speaker 4: all they would say is he was the president and
Speaker 4: people were critical of them. Certainly the legal press was
Speaker 4: that may be thrashed out then on Thursday when they're
Speaker 4: up for discussion and vote.
Speaker 1: Some progressive advocacy groups have complained about the Senate Democrats
Speaker 1: and the way they're not questioning these nominees aggressively enough,
Speaker 1: not like the Republicans did when there were Democratic nominees,
Speaker 1: and apparently only six of the panels ten Democrats posed
Speaker 1: any questions of the first nominee. Are Democrats not taking
Speaker 1: this seriously enough because they don't have the votes.
Speaker 4: Well, I did see some of that in the legal press.
Speaker 4: And part of the problem, of course is they're in
Speaker 4: a minority, and the committee line up is twelve Republicans
Speaker 4: and ten Democrats, and people are spread fairly thin on
Speaker 4: the committees, and so they may have had other commitments.
Speaker 4: But I think it's a fair criticism to say it's
Speaker 4: important to ask difficult questions in committee meetings and in hearing,
Speaker 4: and I think they'll do better going forward. Certainly the
Speaker 4: ranking members. Senator Durbin has been very straightforward and I
Speaker 4: think asking lots of questions, as have a number of others.
Speaker 4: But you're right there was I think one hearing where
Speaker 4: a number of the Democrats either weren't there or didn't
Speaker 4: ask questions.
Speaker 1: We've talked before about Republican Senator Kennedy, who often asked
Speaker 1: questions basic legal questions of the nominees, and not only
Speaker 1: does that question get a lot of hits on YouTube,
Speaker 1: but at times he's caught judicial nominees not knowing some
Speaker 1: basic concepts, and I'm wondering if Democrats should start doing that.
Speaker 4: Yes, I think that is a fair question, and I
Speaker 4: think they've Democrats opposed some of them and Kennedy, to
Speaker 4: his credit, I think, did with Trump one point zero nominees,
Speaker 4: and I think was actually responsible for a couple of
Speaker 4: them deciding not to go forward. We'll see if he's
Speaker 4: going to do the same thing with these nominees this
Speaker 4: time around, though, I would say in watching the Missouri nominees,
Speaker 4: they all I think were people who had substantial experience
Speaker 4: in the attorney General's off in that state, and I
Speaker 4: think for the district court they would know their way
Speaker 4: around those procedures, and we're familiar with them. I think
Speaker 4: on that score they were pretty good. We'll see about
Speaker 4: the Florida ones, but most of them are state sitting
Speaker 4: state judges or want to magistrate judge in the federal system,
Speaker 4: and that's what you want. I mean, the basis for nominating,
Speaker 4: confirming somebody for the district bench is familiarity, right, and
Speaker 4: competence the ability to move cases. So far, I think
Speaker 4: people may disagree with the political views of some of
Speaker 4: the district nominees, but they do have experience in litigating cases,
Speaker 4: and so I think on the competence front, they probably
Speaker 4: are relatively strong, and maybe stronger than one point zero
Speaker 4: district nominees so far. But we haven't seen them all.
Speaker 4: They're you know, thirty nine or so current vacancies that
Speaker 4: need to be filled in the district level.
Speaker 1: Trump has put all his personal lawyers, the top personal
Speaker 1: lawyers that defended him, in different positions in the administration.
Speaker 1: And Emil Bovey has gotten a lot of criticism for
Speaker 1: his handling of the Eric Adams case. And now he's
Speaker 1: up for a seat on the Third Circuit.
Speaker 4: Yes, and I think Democrats have been and the legal
Speaker 4: press have been pretty much opposed to his nomination because
Speaker 4: of what happened with the Eric Adams case, and also
Speaker 4: what happened at the Justice Department with the Eric Adams case.
Speaker 4: Of course, the whole number of Southern District of New
Speaker 4: York nominees, including Danielle Sessoon, who was the acting US
Speaker 4: Attorney for the Southern District, they resigned rather than follow
Speaker 4: the orders from Bouve, and he forced all of that.
Speaker 4: And then in headquarters back in DC, he was instrumental
Speaker 4: in dismantling the Public Integrity Unit basically which checks on
Speaker 4: all of the prosecutions to be pursued around the country
Speaker 4: to be sure that they're solid cases. And so his
Speaker 4: involvement on those front has troubled certainly Democrats and probably
Speaker 4: some Republicans.
Speaker 1: But does it seem like any Trump judicial nominee is
Speaker 1: going to get through this committee and the Senate.
Speaker 4: Well, we'll see. We'll see how he does in the hearing,
Speaker 4: and I would expect this also would be a test
Speaker 4: for Democrats to rigorously question him because there are issues
Speaker 4: that trouble them and I think may trouble some Republicans.
Speaker 4: So we could see how he answers those questions. That
Speaker 4: could tell us a lot weeks after that or so
Speaker 4: maybe late July there would be discussion and vote in committee.
Speaker 4: But you're right, as I said earlier, the twelve to
Speaker 4: ten majority that the Republicans have make it difficult for
Speaker 4: Democrats to do much about Trump's nominees. But this particular case,
Speaker 4: they may well be able to make a strong case
Speaker 4: based on very recent history that has been widely reported.
Speaker 4: Indj at the highest level.
Speaker 1: Are any circuits going to be flipped because of these Trump.
Speaker 4: Nominees, Well, I think the third circuit would be I
Speaker 4: don't know if flip is the right word, because I
Speaker 4: think they're pretty evenly divided right now. But if they
Speaker 4: were to fill the New Jersey seat and the Delaware
Speaker 4: seat there would be a majority of members in active
Speaker 4: service appointed by Republican presidents. They would have either one
Speaker 4: or I think maybe two vote majority on that court.
Speaker 4: But that's I think the only place as a first
Speaker 4: circuit vacancy. There's the sixth circuit vacancy, where the Republican
Speaker 4: appointees already have a majority. There's a California one. It
Speaker 4: won't change that because it's a Republican appointee who's stepping
Speaker 4: down or taking senior status, and so there are not
Speaker 4: many opportunities right now. And it's interesting because I think
Speaker 4: this is one of the longest periods that I think
Speaker 4: I can remember where no judges assume senior status over
Speaker 4: like the last two or three months. Very few.
Speaker 1: Well, we know why the judges appointed by Democrats are
Speaker 1: holding out, but I'm not sure why the judges appointed
Speaker 1: by Republicans are. Thanks so much, Carl. That's Professor Carl
Speaker 1: Tobias of the University of Richmond Law School. And that's
Speaker 1: it for this edition of the Bloomberg Law Show. Remember
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