1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,600 --> 00:00:13,360 Speaker 2: President Trump has taken unprecedented steps to fire board members 3 00:00:13,600 --> 00:00:17,840 Speaker 2: at agencies created by Congress to be independent of the 4 00:00:17,840 --> 00:00:21,560 Speaker 2: White House. He's fired members of the Federal Trade Commission, 5 00:00:21,840 --> 00:00:26,440 Speaker 2: the Equal Employment Opportunity Commission, the National Labor Relations Board, 6 00:00:26,560 --> 00:00:30,920 Speaker 2: and the Merit Systems Protection Board, all without cause as 7 00:00:31,040 --> 00:00:35,840 Speaker 2: required by relevant statutes. All these firings are being challenged 8 00:00:35,880 --> 00:00:39,480 Speaker 2: in DC federal courts. Some are at the trial court level, 9 00:00:39,640 --> 00:00:42,519 Speaker 2: others are at the appellate level, and still others at 10 00:00:42,560 --> 00:00:46,559 Speaker 2: the Supreme Court. Joining me is Bloomberg Intelligence senior litigation 11 00:00:46,720 --> 00:00:51,000 Speaker 2: analyst Elliott Stein. Elliott, isn't the same issue that's coming 12 00:00:51,080 --> 00:00:55,520 Speaker 2: up over and over again in these cases involving firings. 13 00:00:56,040 --> 00:01:01,200 Speaker 3: Yeah, exactly. You know, basically whether Humphy's Executor, which is 14 00:01:01,200 --> 00:01:04,880 Speaker 3: the Supreme Court decision from nineteen thirty five which upheld 15 00:01:04,959 --> 00:01:09,360 Speaker 3: four cause removal restrictions, still applies, because all these government 16 00:01:09,360 --> 00:01:12,200 Speaker 3: statutes for all these agencies where the commissioners are being 17 00:01:12,200 --> 00:01:16,160 Speaker 3: fired have the same or similar four cause removal restrictions. 18 00:01:16,440 --> 00:01:18,560 Speaker 3: And so the question is whether you know the Trump 19 00:01:18,640 --> 00:01:22,800 Speaker 3: administration is arguing that those restrictions are unconstitutional because they 20 00:01:22,800 --> 00:01:25,480 Speaker 3: impinge on the president's authority to run the executive branch. 21 00:01:26,160 --> 00:01:29,080 Speaker 2: And these cases are all in the DC. 22 00:01:29,040 --> 00:01:31,280 Speaker 3: Circuit, right exactly. Some of them are still at the 23 00:01:31,280 --> 00:01:34,480 Speaker 3: trial court level, so d DC, but yes, they're all 24 00:01:34,800 --> 00:01:37,000 Speaker 3: under the umbrella of the DC Circuit, and some have 25 00:01:37,080 --> 00:01:39,400 Speaker 3: already started reaching the Supreme Court. 26 00:01:39,680 --> 00:01:43,200 Speaker 2: So tell us about the hearing yesterday over the firing 27 00:01:43,240 --> 00:01:44,880 Speaker 2: of the FTC commissioners. 28 00:01:45,560 --> 00:01:49,280 Speaker 3: Yesterday's hearing was at the trial court level. It was 29 00:01:49,320 --> 00:01:53,120 Speaker 3: before Judge Ali Khan, and you know, it was similar 30 00:01:53,200 --> 00:01:58,120 Speaker 3: to what we've seen in other cases involving commissioners from 31 00:01:58,400 --> 00:02:03,360 Speaker 3: other agencies for example ANLRB, the National Labor Relations Board 32 00:02:03,440 --> 00:02:07,360 Speaker 3: and the MSPB, the Merit Systems Protection Board. And essentially, 33 00:02:07,920 --> 00:02:12,400 Speaker 3: the Trump administration is arguing that the four cause removal 34 00:02:12,440 --> 00:02:16,360 Speaker 3: restrictions that are in the governing statutes are unconstitutional and 35 00:02:16,400 --> 00:02:20,440 Speaker 3: the president should be able to fire these commissioners at 36 00:02:20,480 --> 00:02:23,560 Speaker 3: will because they're part of the executive branch and under 37 00:02:23,639 --> 00:02:27,760 Speaker 3: Article to the president has authority to control the executive branch. 38 00:02:28,360 --> 00:02:32,519 Speaker 3: The commissioners obviously take the opposite view and say, well, 39 00:02:32,600 --> 00:02:34,720 Speaker 3: you know, we have a Supreme Court decision from nineteen 40 00:02:34,760 --> 00:02:39,720 Speaker 3: thirty five Humphrey's Executor, which upheld four cause removal restrictions, 41 00:02:39,800 --> 00:02:43,160 Speaker 3: and that decision is still good law. The Supreme Court 42 00:02:43,280 --> 00:02:47,320 Speaker 3: hasn't overruled it, even though it revisited and interpreted that 43 00:02:47,440 --> 00:02:51,040 Speaker 3: decision in recent cases involving single director agencies like the 44 00:02:51,080 --> 00:02:52,840 Speaker 3: CFPB and the FAHFA. 45 00:02:53,639 --> 00:02:57,360 Speaker 2: One of these cases actually reached an on bank panel 46 00:02:57,480 --> 00:03:00,919 Speaker 2: of the DC Circuit, which means the three judge panel 47 00:03:01,080 --> 00:03:04,680 Speaker 2: ruled in the case and then it was appealed to 48 00:03:04,760 --> 00:03:06,359 Speaker 2: the full DC Circuit. 49 00:03:07,400 --> 00:03:10,320 Speaker 3: Essentially two of the cases, but they've sort of been consolidated. 50 00:03:10,520 --> 00:03:14,160 Speaker 3: Those are the cases involving the NRB and the MSPB, 51 00:03:14,280 --> 00:03:18,119 Speaker 3: the Merit Systems Protection Board. In that case, the trial 52 00:03:18,360 --> 00:03:22,280 Speaker 3: court Judge Howell said that the four cause removal restrictions 53 00:03:22,280 --> 00:03:25,960 Speaker 3: are fined their constitutional under Humphrey's Executor and as a result, 54 00:03:26,000 --> 00:03:29,960 Speaker 3: the termination of the commissioners from those agencies was improper, 55 00:03:30,400 --> 00:03:34,239 Speaker 3: and so she directed the agencies to reinstate the commissioners 56 00:03:34,600 --> 00:03:37,760 Speaker 3: their trump administration then went to the DC Circuit, which 57 00:03:38,400 --> 00:03:40,720 Speaker 3: in the first instance went to a three judge panel, 58 00:03:41,240 --> 00:03:44,360 Speaker 3: and the panel, which was comprised of two judges appointed 59 00:03:44,400 --> 00:03:49,040 Speaker 3: by Republicans and won by a Democrat, essentially said that 60 00:03:49,080 --> 00:03:53,360 Speaker 3: the trial court's ruling was unlikely to succeed on the merits, 61 00:03:53,400 --> 00:03:56,120 Speaker 3: and as a result, they put a hold on the 62 00:03:56,160 --> 00:04:00,000 Speaker 3: trial court's injunction that would have reinstated the commissioners. Commit 63 00:04:00,000 --> 00:04:03,640 Speaker 3: missioners then went to the full DC Circuit and requested 64 00:04:03,640 --> 00:04:06,920 Speaker 3: an ND bound review of that panel decision, and and 65 00:04:07,120 --> 00:04:11,280 Speaker 3: Bank Court essentially came out the other way from the 66 00:04:11,320 --> 00:04:15,320 Speaker 3: panel and said that the child Court's injunction to reinstate 67 00:04:15,360 --> 00:04:18,760 Speaker 3: the commissioners was fine because the commissioners were likely to 68 00:04:18,800 --> 00:04:22,360 Speaker 3: succeed on the merits. What's interesting is that you know, 69 00:04:22,480 --> 00:04:26,839 Speaker 3: these rulings are coming out completely along ideological lines. So 70 00:04:27,120 --> 00:04:29,320 Speaker 3: you know, I mentioned the three judge panel where you 71 00:04:29,360 --> 00:04:33,760 Speaker 3: had two judges appointed by Republicans ruling in favor of 72 00:04:33,800 --> 00:04:37,520 Speaker 3: the Trump administration and one judge appointed by a Democrat 73 00:04:37,640 --> 00:04:40,000 Speaker 3: ruling in favor of the commissioners. You had a similar 74 00:04:40,360 --> 00:04:43,799 Speaker 3: alignment at the en Bank level where you had seven 75 00:04:43,920 --> 00:04:47,000 Speaker 3: judges appointed by Democrats ruling in favor of the commissioners 76 00:04:47,040 --> 00:04:49,760 Speaker 3: and four judges appointed by Republicans ruling in favor of 77 00:04:49,760 --> 00:04:50,760 Speaker 3: the Trump administration. 78 00:04:51,440 --> 00:04:56,839 Speaker 2: How are the judges appointed by Republicans get over Humphrey's executor, 79 00:04:56,920 --> 00:04:58,359 Speaker 2: which is still good law. 80 00:04:59,000 --> 00:05:02,360 Speaker 3: Right, So they say the more recent Supreme Court decisions 81 00:05:02,400 --> 00:05:07,200 Speaker 3: concerning four cause removal restrictions sale a law which concerned 82 00:05:07,200 --> 00:05:11,159 Speaker 3: the CFPV director and Collins, which concerned the FHFA director, 83 00:05:11,680 --> 00:05:16,719 Speaker 3: really narrowed the holding of Humphrey's executor, and that the 84 00:05:16,760 --> 00:05:22,839 Speaker 3: more recent decisions essentially held that four cause removal restrictions 85 00:05:23,000 --> 00:05:28,520 Speaker 3: are improper for agencies that wield executive power, and that 86 00:05:28,760 --> 00:05:33,840 Speaker 3: in Humphreys, the FTC at that time didn't really wield 87 00:05:33,880 --> 00:05:37,400 Speaker 3: executive power because there was more like a quasi legislative 88 00:05:37,480 --> 00:05:41,400 Speaker 3: or quasi judicial agency. It basically acted as a legislative 89 00:05:41,520 --> 00:05:45,080 Speaker 3: aid and didn't quite have the full gamut of powers 90 00:05:45,160 --> 00:05:48,839 Speaker 3: that it has now. And as a result, you know, 91 00:05:49,000 --> 00:05:53,239 Speaker 3: these agencies where commissioners are being fired, wield executive power. 92 00:05:53,240 --> 00:05:55,679 Speaker 3: And you know two of the hallmarks of executive power 93 00:05:55,800 --> 00:05:58,680 Speaker 3: or rule making authority and enforcement authority, and most of 94 00:05:58,720 --> 00:06:01,760 Speaker 3: these agencies have authority, and as a result, they wield 95 00:06:01,800 --> 00:06:05,280 Speaker 3: executive power and they fall under the President's authority. 96 00:06:05,640 --> 00:06:07,479 Speaker 2: So that was the only one that went up to 97 00:06:07,520 --> 00:06:09,279 Speaker 2: the full DC circuit. 98 00:06:09,720 --> 00:06:12,480 Speaker 3: Yes, that's right. Most of these other ones are still 99 00:06:12,520 --> 00:06:15,080 Speaker 3: at the trial court level, including the FDC one that 100 00:06:15,200 --> 00:06:16,200 Speaker 3: was heard yesterday. 101 00:06:16,440 --> 00:06:19,000 Speaker 2: There was a May sixteenth appellate court. 102 00:06:18,880 --> 00:06:24,000 Speaker 3: Argument, right, So on May sixteenth, the NLRB and MSPB 103 00:06:24,240 --> 00:06:28,720 Speaker 3: cases were argued before the DC Circuit panel on the merits. Right. 104 00:06:28,760 --> 00:06:32,760 Speaker 3: We already discussed how the preliminary issue or sort of 105 00:06:32,760 --> 00:06:36,640 Speaker 3: the emergency issue regarding the injunction to reinstate them went up, 106 00:06:36,880 --> 00:06:40,800 Speaker 3: but those were just emergency issues here, and on May 107 00:06:40,839 --> 00:06:45,000 Speaker 3: sixteenth concerned the full merits of the trial court's ruling 108 00:06:45,040 --> 00:06:48,800 Speaker 3: to reinstate the commissioners. And how did that go, you know, 109 00:06:49,040 --> 00:06:52,360 Speaker 3: similar to how all these cases are going where you know, 110 00:06:52,480 --> 00:06:55,600 Speaker 3: you do see this alignment where that panel had again 111 00:06:55,640 --> 00:06:58,640 Speaker 3: two judges, Judge Walker and Judge Katsas, who were appointed 112 00:06:58,640 --> 00:07:01,919 Speaker 3: by President Trump, and then Judge Pan who was appointed 113 00:07:01,960 --> 00:07:06,000 Speaker 3: by President Biden. And you know, Judge Pan was very 114 00:07:06,200 --> 00:07:10,920 Speaker 3: critical or skeptical of the Trump administration's position. So I 115 00:07:11,000 --> 00:07:13,720 Speaker 3: expect her to rule in favor of the commissioners, but 116 00:07:13,920 --> 00:07:16,280 Speaker 3: you know, so likely be in the dissent. There are 117 00:07:16,280 --> 00:07:19,200 Speaker 3: two other judges. Judge Walker has taken a very expansive 118 00:07:19,320 --> 00:07:23,280 Speaker 3: view of executive authority. He wrote one of the opinions 119 00:07:23,440 --> 00:07:26,880 Speaker 3: when this case reached the DC Circuit panel previously, and 120 00:07:27,000 --> 00:07:30,560 Speaker 3: he took a very expansive view of executive authority. So 121 00:07:30,880 --> 00:07:33,120 Speaker 3: he's very likely to rule for President Trump, and then 122 00:07:33,160 --> 00:07:35,600 Speaker 3: the other judge, Katsis, I think will also rule for 123 00:07:35,680 --> 00:07:38,920 Speaker 3: President Trump. He was sort of trying to figure out 124 00:07:39,040 --> 00:07:43,960 Speaker 3: just how far the Trump administration's argument could go. You know, 125 00:07:44,000 --> 00:07:45,320 Speaker 3: he's trying to figure out sort of like what the 126 00:07:45,320 --> 00:07:47,560 Speaker 3: outer bounds would be. But at the end of the day, 127 00:07:47,600 --> 00:07:50,840 Speaker 3: I do expect that the Trump administration will win reversal 128 00:07:51,160 --> 00:07:54,680 Speaker 3: at the panel level, after which, of course the Commissioners 129 00:07:54,720 --> 00:07:57,160 Speaker 3: will then ask her and Bank review again. I expect 130 00:07:57,200 --> 00:07:59,520 Speaker 3: they'll win there, and then we'll probably be onto the 131 00:07:59,560 --> 00:08:02,200 Speaker 3: Supreme Court for ruling on the merits eventually. 132 00:08:02,320 --> 00:08:05,560 Speaker 2: Do you need a scorecard? It's you're here to figure 133 00:08:05,560 --> 00:08:09,040 Speaker 2: out which cases are aware and which judges heard them. 134 00:08:09,120 --> 00:08:11,920 Speaker 2: So now tell us about the case that reached the 135 00:08:11,960 --> 00:08:16,040 Speaker 2: Supreme Court and Chief Justice Roberts handed down an order. 136 00:08:16,560 --> 00:08:19,600 Speaker 3: So in the NRB and MSCB cases, you know, we 137 00:08:19,640 --> 00:08:21,640 Speaker 3: already talked about how it went to the on the 138 00:08:21,640 --> 00:08:24,560 Speaker 3: emergency issue of whether the commissioners could be reinstated and 139 00:08:24,600 --> 00:08:27,679 Speaker 3: went to the DC Circuit panel and bank. The Trump 140 00:08:27,680 --> 00:08:30,640 Speaker 3: administration lost at the end bank level, so they asked 141 00:08:30,640 --> 00:08:34,200 Speaker 3: the Supreme Court to put a stay on the ruling 142 00:08:34,240 --> 00:08:38,200 Speaker 3: that would have reinstated the commissioners, and the Supreme Court 143 00:08:38,480 --> 00:08:42,520 Speaker 3: put an administrative stay on the injunction that would have 144 00:08:42,520 --> 00:08:44,880 Speaker 3: reinstated the commissioners, you know, to give them more time 145 00:08:44,880 --> 00:08:47,480 Speaker 3: to actually rule on the issue. But they haven't done 146 00:08:47,480 --> 00:08:50,520 Speaker 3: anything subsequent to that, so, you know, I think it 147 00:08:50,600 --> 00:08:53,120 Speaker 3: seems like they're leaning. The Supreme Court is leaning towards 148 00:08:53,200 --> 00:08:56,480 Speaker 3: letting the case play out at the lower court level, 149 00:08:56,559 --> 00:09:00,560 Speaker 3: because in addition to requesting a stay of the injunction, 150 00:09:00,880 --> 00:09:04,360 Speaker 3: the Trump administration also asked the Supreme Court to actually 151 00:09:04,400 --> 00:09:07,559 Speaker 3: grant cert sort of you know, at a very early 152 00:09:07,559 --> 00:09:09,800 Speaker 3: stage in the litigation, before it even went all the 153 00:09:09,800 --> 00:09:12,520 Speaker 3: way through the DC Circuit on the merits. And the 154 00:09:12,559 --> 00:09:14,720 Speaker 3: Supreme Court hasn't ruled on that request either. 155 00:09:14,880 --> 00:09:17,680 Speaker 2: The Trump administration seems to be doing that a lot, 156 00:09:17,760 --> 00:09:19,319 Speaker 2: pushing the envelope for it. 157 00:09:19,480 --> 00:09:21,559 Speaker 3: Yeah, you know what we call the shadow dock here, right, 158 00:09:21,679 --> 00:09:24,920 Speaker 3: you know, they're entitled to do it. Other parties do it. 159 00:09:24,840 --> 00:09:29,360 Speaker 2: Too, although no other president has gone to the Supreme 160 00:09:29,480 --> 00:09:33,640 Speaker 2: Court on an emergency basis. This often in this short 161 00:09:33,720 --> 00:09:36,640 Speaker 2: period of time, I think so far there are nineteen 162 00:09:36,720 --> 00:09:41,360 Speaker 2: emergency petitions from the Trump administration at the Supreme Court, 163 00:09:41,600 --> 00:09:45,319 Speaker 2: and that includes one file just today the administration asked 164 00:09:45,320 --> 00:09:48,800 Speaker 2: the court to stop a judge's order that would force 165 00:09:48,880 --> 00:09:52,920 Speaker 2: it to answer questions from a watchdog group and turnover 166 00:09:53,120 --> 00:09:58,200 Speaker 2: documents about Elon Musk's Department of Government efficiency. So they're 167 00:09:58,200 --> 00:10:00,360 Speaker 2: not slowing down with the petitions. 168 00:10:00,440 --> 00:10:01,760 Speaker 3: Well, I mean, part of that is because a lot 169 00:10:01,800 --> 00:10:04,240 Speaker 3: of these cases do go through the DC's circuit, which 170 00:10:04,400 --> 00:10:08,480 Speaker 3: leans towards judges who have been appointed by Democrats, so 171 00:10:08,520 --> 00:10:11,080 Speaker 3: as a result of Trump administration and loses more cases there, 172 00:10:11,400 --> 00:10:13,400 Speaker 3: and then they go to the Supreme Court hoping for 173 00:10:13,440 --> 00:10:13,719 Speaker 3: a win. 174 00:10:14,120 --> 00:10:19,240 Speaker 2: I mean, let's talk about how this affects perhaps the 175 00:10:19,280 --> 00:10:22,520 Speaker 2: Federal Reserve Board, right and your own power. So, first 176 00:10:22,559 --> 00:10:25,439 Speaker 2: of all, the Federal Reserve Act, is it the same 177 00:10:25,559 --> 00:10:27,559 Speaker 2: kind of language as in these other. 178 00:10:27,920 --> 00:10:31,080 Speaker 3: Yes, it's similar. I mean, all these statutes sort of 179 00:10:31,120 --> 00:10:34,800 Speaker 3: have variations of the same theme, which is some sort 180 00:10:34,800 --> 00:10:37,800 Speaker 3: of four cause removal restriction. And sometimes it's defined, sometimes 181 00:10:37,800 --> 00:10:40,600 Speaker 3: it's not defined what four causes. When it's not defined. 182 00:10:40,600 --> 00:10:44,439 Speaker 3: It's generally assumed to mean some sort of neglect, inefficiency, 183 00:10:44,559 --> 00:10:48,440 Speaker 3: or malfeasance. The Federal Reserve Act does have four cause 184 00:10:48,520 --> 00:10:53,600 Speaker 3: removal restriction language in order to remove you know, Federal 185 00:10:53,640 --> 00:10:58,240 Speaker 3: Reserve Board governors. It doesn't have any such language to 186 00:10:58,559 --> 00:11:01,720 Speaker 3: sort of demote the or any of the vice chairs, 187 00:11:01,960 --> 00:11:04,240 Speaker 3: but to completely remove them from the board. It does 188 00:11:04,320 --> 00:11:05,440 Speaker 3: have that language. 189 00:11:05,679 --> 00:11:08,320 Speaker 2: There have been, you know, arguments at the Supreme Court 190 00:11:08,360 --> 00:11:11,840 Speaker 2: where during the oral argument some of the justices singled 191 00:11:11,880 --> 00:11:14,760 Speaker 2: out the Feds being different. But what's your take on 192 00:11:14,880 --> 00:11:18,440 Speaker 2: whether the cases that we've been talking about indicate that 193 00:11:18,480 --> 00:11:22,320 Speaker 2: the court will rule that the president can fire the 194 00:11:22,320 --> 00:11:23,480 Speaker 2: Federal Reserve chair. 195 00:11:24,040 --> 00:11:26,400 Speaker 3: Yeah. It's interesting because the issue does come up in 196 00:11:26,440 --> 00:11:29,440 Speaker 3: all these cases that we've already discussed, and you know 197 00:11:29,920 --> 00:11:32,720 Speaker 3: that the commissioners who were fired, and some of the 198 00:11:32,840 --> 00:11:36,280 Speaker 3: judges who are skeptical to the Trump administration's view say well, 199 00:11:36,320 --> 00:11:39,840 Speaker 3: you know, if you can fire these commissioners, there's nothing 200 00:11:40,120 --> 00:11:45,240 Speaker 3: to stop you from firing Federal Reserve Board governors. And 201 00:11:45,280 --> 00:11:47,600 Speaker 3: then it's interesting because then the Trump administration comes back 202 00:11:47,600 --> 00:11:50,120 Speaker 3: and says, well, you know, we haven't taken a position 203 00:11:50,160 --> 00:11:54,440 Speaker 3: on the Federal Reserve Board that's not before this court. 204 00:11:54,480 --> 00:11:58,520 Speaker 3: There may be arguments that Federal Reserve Board governors could 205 00:11:58,640 --> 00:12:02,120 Speaker 3: raise that are different than the ones before these other cases. 206 00:12:02,280 --> 00:12:04,240 Speaker 3: So it's sort of interesting to see how the Trump 207 00:12:04,280 --> 00:12:07,840 Speaker 3: administration tries to sidestep that argument. But at the end 208 00:12:07,840 --> 00:12:10,680 Speaker 3: of the day, I think the commissioners are right and 209 00:12:10,720 --> 00:12:13,200 Speaker 3: the judges that are skeptical to the Trump administration are 210 00:12:13,320 --> 00:12:16,959 Speaker 3: right because the Fed, you know, it has rule making authority, 211 00:12:17,240 --> 00:12:21,080 Speaker 3: it can bring enforcement actions. It does a lot of 212 00:12:21,160 --> 00:12:26,280 Speaker 3: things on the regulatory side of its responsibilities that would 213 00:12:26,360 --> 00:12:31,680 Speaker 3: fall under executive authority. Right. It also obviously has monetary 214 00:12:31,840 --> 00:12:36,000 Speaker 3: policy responsibilities, and those are even the Trump administration has 215 00:12:36,000 --> 00:12:40,200 Speaker 3: carved those out from falling under the president's authority. But 216 00:12:40,440 --> 00:12:46,880 Speaker 3: given its other powers, including rulemaking and enforcement action authority, 217 00:12:47,080 --> 00:12:51,040 Speaker 3: I think, in order to be consistent with trumpet administration's arguments, 218 00:12:51,080 --> 00:12:53,199 Speaker 3: which I do believe will prevail in these other cases, 219 00:12:53,600 --> 00:12:56,560 Speaker 3: that the President would be able under the law to 220 00:12:56,840 --> 00:12:59,880 Speaker 3: fire Federal Reserve Board governors. But I also say, you know, 221 00:13:00,160 --> 00:13:02,800 Speaker 3: the markets are more likely to dissuade the president from 222 00:13:02,840 --> 00:13:04,160 Speaker 3: doing that than the courts. 223 00:13:03,880 --> 00:13:07,679 Speaker 2: Are, and the Supreme Court justices. Is it just the 224 00:13:07,720 --> 00:13:11,640 Speaker 2: to Clarence Thomas and Neil Gorsich who said that they 225 00:13:11,679 --> 00:13:13,880 Speaker 2: would overrule Humphrey's executor. 226 00:13:14,320 --> 00:13:16,680 Speaker 3: Yeah, they are the only two that has explicitly said that. 227 00:13:16,920 --> 00:13:18,960 Speaker 3: And they did say that. I forget if it was 228 00:13:19,000 --> 00:13:21,120 Speaker 3: in Sale a Law or in Collins. I think it 229 00:13:21,160 --> 00:13:25,559 Speaker 3: was in Sale They said they would explicitly overrule Humphries. 230 00:13:25,880 --> 00:13:29,120 Speaker 3: But you know the rest of the Conservative justices, they've 231 00:13:29,200 --> 00:13:32,120 Speaker 3: interpreted Humphries to be a very narrow exception to the 232 00:13:32,200 --> 00:13:35,280 Speaker 3: general rule that the president can fire anyone in the 233 00:13:35,280 --> 00:13:35,960 Speaker 3: exec dipperience. 234 00:13:36,320 --> 00:13:39,000 Speaker 2: And are we still waiting to see if the Supreme 235 00:13:39,000 --> 00:13:44,200 Speaker 2: Court rules on reinstatement of the NLRB and MSBT. 236 00:13:44,320 --> 00:13:49,600 Speaker 3: Yeah, technically those requests are still pending. But you know, 237 00:13:49,920 --> 00:13:54,120 Speaker 3: given that the DC Circuit panel just last Friday on 238 00:13:54,160 --> 00:13:58,600 Speaker 3: the sixteenth, heard those cases on the merits, it would 239 00:13:58,640 --> 00:14:01,840 Speaker 3: be odd I think for the Supreme Court to take 240 00:14:01,960 --> 00:14:05,319 Speaker 3: up the case now. I think they'll wait for the 241 00:14:05,400 --> 00:14:06,560 Speaker 3: DC Circuit to rule. 242 00:14:06,760 --> 00:14:10,079 Speaker 2: Well, the Supreme Court has lots of other emergency applications 243 00:14:10,080 --> 00:14:13,840 Speaker 2: to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior 244 00:14:13,880 --> 00:14:20,120 Speaker 2: litigation analyst Elliott Stein. Geofence warrants are relatively New Google 245 00:14:20,200 --> 00:14:23,640 Speaker 2: received its first in twenty sixteen, but the use of 246 00:14:23,720 --> 00:14:28,320 Speaker 2: such warrants has proliferated, as have court cases challenging them. 247 00:14:28,720 --> 00:14:33,120 Speaker 2: Unlike a warrant authorizing surveillance of a known suspect, geo 248 00:14:33,280 --> 00:14:37,480 Speaker 2: fencing is used to identify would be suspects. Google has 249 00:14:37,520 --> 00:14:41,000 Speaker 2: been the primary recipient of these warrants due to its 250 00:14:41,040 --> 00:14:46,280 Speaker 2: extensive location history database. Federal courts have split on whether 251 00:14:46,360 --> 00:14:50,840 Speaker 2: these geofence warrants are constitutional, but now New Jersey State 252 00:14:50,880 --> 00:14:54,760 Speaker 2: Court has ruled that police use of geofence warrants does 253 00:14:54,840 --> 00:15:00,000 Speaker 2: not violate constitutional privacy protections and is not an impermissible 254 00:15:00,400 --> 00:15:05,240 Speaker 2: general warrant. Joining me is Alex Ebert Bloomberg Law correspondent, 255 00:15:05,600 --> 00:15:08,360 Speaker 2: So Alex tell us what a geofence warrant is. 256 00:15:09,080 --> 00:15:13,000 Speaker 1: A geofence warrant is a broad warrant that allows police 257 00:15:13,320 --> 00:15:16,360 Speaker 1: to find out who may have been in a certain 258 00:15:16,400 --> 00:15:20,800 Speaker 1: location at a given time. So imagine you're the police 259 00:15:20,880 --> 00:15:24,120 Speaker 1: and you're looking for people, let's say at the Capitol 260 00:15:24,200 --> 00:15:27,960 Speaker 1: riot on January sixth, and you want to find out, hey, 261 00:15:28,120 --> 00:15:31,800 Speaker 1: whose cell phones might have been present around the Capitol 262 00:15:31,880 --> 00:15:34,440 Speaker 1: when things started going down. Or let's say there was 263 00:15:34,480 --> 00:15:37,080 Speaker 1: another event where we have a ride after there's a 264 00:15:37,080 --> 00:15:40,760 Speaker 1: police shooting. Hypothetically police officers could find out who was 265 00:15:40,800 --> 00:15:44,160 Speaker 1: in the vicinity of building when it got broken into. 266 00:15:44,840 --> 00:15:47,160 Speaker 1: That's the sort of information that police officers can be 267 00:15:47,200 --> 00:15:47,640 Speaker 1: looking for. 268 00:15:48,360 --> 00:15:52,240 Speaker 2: So what is the question when using a geofence warrant? 269 00:15:52,600 --> 00:15:56,200 Speaker 2: Is it privacy concerns? What are the constitutional concerns? 270 00:15:56,600 --> 00:15:59,320 Speaker 1: That's right? So this all boils down to privacy, And 271 00:15:59,360 --> 00:16:02,600 Speaker 1: there's two sort of big questions that courts are grappling with. 272 00:16:02,840 --> 00:16:06,440 Speaker 1: One is this a general warrant that would violate the 273 00:16:06,480 --> 00:16:10,600 Speaker 1: Fourth Amendment protections we have against the police invading our privacy? 274 00:16:11,160 --> 00:16:14,800 Speaker 1: And two would this be considered the stuff that we 275 00:16:14,840 --> 00:16:18,120 Speaker 1: don't really have an entitlement to protect because it's held 276 00:16:18,120 --> 00:16:20,560 Speaker 1: by third parties. This is an issue that courts have 277 00:16:20,600 --> 00:16:24,080 Speaker 1: grappled with for decades and it gets only more complex 278 00:16:24,560 --> 00:16:27,800 Speaker 1: as more of our data is being given to third parties. 279 00:16:27,840 --> 00:16:29,560 Speaker 2: Tell us what happened in this case? What you know 280 00:16:29,600 --> 00:16:30,560 Speaker 2: the facts of the case. 281 00:16:30,960 --> 00:16:36,000 Speaker 1: Sure, So this case involves a Milltown robbery. Basically, what 282 00:16:36,040 --> 00:16:39,720 Speaker 1: happens is someone came into a convenience store gas station 283 00:16:40,120 --> 00:16:43,760 Speaker 1: late at night and the clerk who got assaulted hurt 284 00:16:43,800 --> 00:16:46,720 Speaker 1: someone talking on the phone. That was really all the 285 00:16:46,720 --> 00:16:49,280 Speaker 1: police had to go off of in this case. And 286 00:16:49,360 --> 00:16:52,640 Speaker 1: so because they knew there was a phone conversation going on, 287 00:16:53,080 --> 00:16:55,960 Speaker 1: they went to Google and said, hey, was there anyone 288 00:16:56,120 --> 00:16:59,440 Speaker 1: in this particular area. Usually it's a couple of blocks 289 00:16:59,760 --> 00:17:03,200 Speaker 1: that is making a phone call or accessing their phone 290 00:17:03,360 --> 00:17:06,080 Speaker 1: at this given time period. They went to Google and 291 00:17:06,119 --> 00:17:10,639 Speaker 1: Google found only one identifiable person that was there, and 292 00:17:10,720 --> 00:17:13,760 Speaker 1: from there the police officers were able to request from 293 00:17:13,800 --> 00:17:18,880 Speaker 1: Google demand that they provide the identification of that Googled 294 00:17:19,000 --> 00:17:19,920 Speaker 1: user and. 295 00:17:19,840 --> 00:17:22,040 Speaker 2: So explain what the court found here. 296 00:17:22,560 --> 00:17:26,600 Speaker 1: Sure, So the New Jersey Court of Appeals was extremely divided, 297 00:17:26,760 --> 00:17:30,720 Speaker 1: as other courts have been in recent times on this issue. 298 00:17:30,760 --> 00:17:35,000 Speaker 1: The majority found that this is okay. That there's a 299 00:17:35,080 --> 00:17:39,000 Speaker 1: process through which the police here are requesting information from Google, 300 00:17:39,520 --> 00:17:43,040 Speaker 1: and they're narrowing it down based on the location and 301 00:17:43,080 --> 00:17:46,679 Speaker 1: the time period that they're seeking pings on people's cell phones. 302 00:17:47,200 --> 00:17:51,200 Speaker 1: And from there it's fine, it's articulable suspicion. We've got 303 00:17:51,200 --> 00:17:55,480 Speaker 1: the probable cause necessary to get this information in a warrant. 304 00:17:56,160 --> 00:17:59,680 Speaker 1: But the descent here is saying, no way, what we're 305 00:17:59,720 --> 00:18:02,400 Speaker 1: asking for here is to hoover up all this information, 306 00:18:03,160 --> 00:18:06,520 Speaker 1: and you're able to tap into whomever might be in 307 00:18:06,560 --> 00:18:09,400 Speaker 1: this location at a given time, whether or not they 308 00:18:09,480 --> 00:18:11,479 Speaker 1: might be related to this crime or not. 309 00:18:12,119 --> 00:18:15,159 Speaker 2: This New Jersey case is a case in state court, 310 00:18:15,560 --> 00:18:18,960 Speaker 2: but the federal courts are split on this. The Fourth Circuit, 311 00:18:19,480 --> 00:18:24,800 Speaker 2: sitting on Bank couldn't produce a majority opinion explaining why 312 00:18:25,160 --> 00:18:30,919 Speaker 2: they allowed the geofence warrant, so it issued eight separate concurrences. 313 00:18:31,720 --> 00:18:35,000 Speaker 1: It is such a mess, Joon. So we have that 314 00:18:35,160 --> 00:18:38,800 Speaker 1: court going that direction, and then we have the Fifth Circuit, 315 00:18:38,880 --> 00:18:41,679 Speaker 1: what we would consider to be extremely conservative, going to 316 00:18:41,720 --> 00:18:45,080 Speaker 1: complete other routes. So we have this circuit split where 317 00:18:45,160 --> 00:18:47,520 Speaker 1: we have a court that says this isn't the search 318 00:18:47,600 --> 00:18:50,919 Speaker 1: at all, this is information held by third parties. The 319 00:18:50,960 --> 00:18:53,840 Speaker 1: defendants aren't entitled to protection over right. Then we've got 320 00:18:53,880 --> 00:18:56,600 Speaker 1: the Fifth Circuit saying this isn't just a search, this 321 00:18:56,720 --> 00:19:00,720 Speaker 1: is an unconstitutional general warrant. You know the thing that 322 00:19:00,920 --> 00:19:03,119 Speaker 1: you know we created the Fourth Amendment to stop. We 323 00:19:03,119 --> 00:19:06,960 Speaker 1: don't want the British officers coming in and ransacking our 324 00:19:06,960 --> 00:19:10,400 Speaker 1: houses just generally looking for stuff, and that's what you're 325 00:19:10,400 --> 00:19:13,440 Speaker 1: trying to do here with these general warrants of disinformation 326 00:19:13,520 --> 00:19:16,520 Speaker 1: at Google users and just pulling it back. We're talking 327 00:19:16,520 --> 00:19:20,320 Speaker 1: about hundreds of millions of devices in the United States. 328 00:19:20,760 --> 00:19:23,159 Speaker 1: You know, hundreds of millions of people have access to 329 00:19:23,400 --> 00:19:26,680 Speaker 1: just Google's accounts. And so if you're looking at the 330 00:19:26,720 --> 00:19:29,840 Speaker 1: split here, it's the difference between can we get at 331 00:19:29,840 --> 00:19:34,480 Speaker 1: that private information that's held by these service providers, by 332 00:19:34,520 --> 00:19:38,159 Speaker 1: these apps, or is that just too much data? Do 333 00:19:38,240 --> 00:19:42,119 Speaker 1: we have an updated sense of privacy that is being 334 00:19:42,160 --> 00:19:42,800 Speaker 1: invaded here? 335 00:19:43,000 --> 00:19:45,680 Speaker 2: Do you have any idea how many of these GEO 336 00:19:45,800 --> 00:19:48,120 Speaker 2: warrants are issued in a year. 337 00:19:48,880 --> 00:19:51,560 Speaker 1: I haven't been able to find information how mean it is. However, 338 00:19:51,640 --> 00:19:54,200 Speaker 1: when I've spoken with attorneys off the record, they've told 339 00:19:54,240 --> 00:19:57,440 Speaker 1: me that it's increasing again and again and again because 340 00:19:57,440 --> 00:20:01,600 Speaker 1: it's becoming more valuable in for We also have other 341 00:20:01,680 --> 00:20:05,880 Speaker 1: courts considering this issue right now. Just last month, the 342 00:20:05,920 --> 00:20:09,000 Speaker 1: Texas Criminal Court of Appeals, which is their highest level 343 00:20:09,280 --> 00:20:13,520 Speaker 1: of criminal courts, they allowed the geofense warrants, and the 344 00:20:13,560 --> 00:20:17,000 Speaker 1: Minnesota Supreme Court is considering right now a case on 345 00:20:17,119 --> 00:20:20,520 Speaker 1: the constitutionality of geofense warrants. So this is bubbling up 346 00:20:20,560 --> 00:20:21,480 Speaker 1: across the country. 347 00:20:21,800 --> 00:20:25,200 Speaker 2: Could this be appealed to the New Jersey Supreme Court. 348 00:20:25,640 --> 00:20:29,760 Speaker 1: Indeed, so because this is a divided decision in the 349 00:20:29,800 --> 00:20:33,840 Speaker 1: Court of Appeals, New Jersey Supreme Court will automatically grant 350 00:20:34,080 --> 00:20:37,840 Speaker 1: review if the loser wants it. That is a certainty here. 351 00:20:38,280 --> 00:20:40,800 Speaker 1: This is going to be a huge case and you're 352 00:20:40,800 --> 00:20:43,640 Speaker 1: going to see you know, amakis briefs from all over 353 00:20:43,680 --> 00:20:46,240 Speaker 1: the country pour in on this thing because there's so 354 00:20:46,400 --> 00:20:49,199 Speaker 1: few of these decisions that are either bubbling up or 355 00:20:49,240 --> 00:20:53,280 Speaker 1: at that highest court level. And in particular, New Jersey 356 00:20:53,480 --> 00:20:56,720 Speaker 1: is extremely strong in Fourth Amendment terms, and it has 357 00:20:56,760 --> 00:21:00,840 Speaker 1: interpreted both the national the federal Fourth amend and its 358 00:21:00,880 --> 00:21:04,040 Speaker 1: own privacy protections broadly for criminal defendants. 359 00:21:04,359 --> 00:21:08,760 Speaker 2: Google is implementing changes to encryption. Explain what they're trying 360 00:21:08,760 --> 00:21:10,080 Speaker 2: to do, that's right. 361 00:21:10,160 --> 00:21:12,119 Speaker 1: Yeah, So it's been over a year now since Google 362 00:21:12,160 --> 00:21:14,840 Speaker 1: has announced that it's going to be implementing changes to 363 00:21:14,960 --> 00:21:19,119 Speaker 1: encryption that would prevent somewhat you know, some of these 364 00:21:19,359 --> 00:21:24,359 Speaker 1: broader geofense warrants we're talking about. Instead of Google storing 365 00:21:24,400 --> 00:21:27,400 Speaker 1: this information, it will be stored on a local device, 366 00:21:27,800 --> 00:21:30,080 Speaker 1: or it will be you know, encrypted in such a 367 00:21:30,119 --> 00:21:32,359 Speaker 1: way that giving Google can't read it, and so it 368 00:21:32,359 --> 00:21:36,760 Speaker 1: can't turn over account information to police officers. But that's 369 00:21:37,119 --> 00:21:40,760 Speaker 1: not necessarily going to stop, either for Google or for 370 00:21:40,880 --> 00:21:44,440 Speaker 1: other apps. If you think about it, there's other warrants 371 00:21:44,520 --> 00:21:47,240 Speaker 1: that you know, could function well beyond this. Right, So, 372 00:21:47,359 --> 00:21:51,119 Speaker 1: if you're taking an Uber somewhere, why can't the police say, hey, Uber, 373 00:21:51,480 --> 00:21:53,760 Speaker 1: give me all of the rides that you know came 374 00:21:53,800 --> 00:21:57,840 Speaker 1: into this block, right or this series of blocks within 375 00:21:57,960 --> 00:22:01,160 Speaker 1: the you know, three hours the night April twenty fives, 376 00:22:01,280 --> 00:22:04,040 Speaker 1: or Facebook or Apple you know, were there any location 377 00:22:04,240 --> 00:22:07,480 Speaker 1: tags or people that bought things, you know, using Apple 378 00:22:07,520 --> 00:22:11,280 Speaker 1: Pay or whatever within certain radius around here. It's not 379 00:22:11,359 --> 00:22:14,480 Speaker 1: just Google that you know, defendants might have to worry about. 380 00:22:14,800 --> 00:22:17,320 Speaker 1: And beyond that, you could even think of ways where 381 00:22:17,560 --> 00:22:20,560 Speaker 1: you can get at this sort of information without really 382 00:22:20,600 --> 00:22:24,440 Speaker 1: looking at you know, pinging from someone's location through geolocation. 383 00:22:24,880 --> 00:22:27,160 Speaker 1: What if you could go to Google and say, hey, 384 00:22:27,359 --> 00:22:31,359 Speaker 1: give me anyone that's searched for, you know, the victim's 385 00:22:31,560 --> 00:22:35,080 Speaker 1: house or areas around there in a certain time period. 386 00:22:35,400 --> 00:22:38,159 Speaker 1: So you can think of creative ways where the police 387 00:22:38,160 --> 00:22:42,240 Speaker 1: could really use an expansive access to these geofence warrants 388 00:22:42,640 --> 00:22:45,359 Speaker 1: to look for information, you know, even outside of what 389 00:22:45,440 --> 00:22:46,880 Speaker 1: Google is trying to prohibit. 390 00:22:47,119 --> 00:22:50,400 Speaker 2: Has the Supreme Court taken up any case that's similar 391 00:22:50,440 --> 00:22:51,880 Speaker 2: to these geo warrants? 392 00:22:52,280 --> 00:22:55,439 Speaker 1: Not exactly on point tune. So over the course of 393 00:22:55,480 --> 00:22:58,160 Speaker 1: my lifetime, the Supreme Court has gone from a more 394 00:22:58,480 --> 00:23:02,520 Speaker 1: favorable access to third party data to a less favorable 395 00:23:02,520 --> 00:23:06,040 Speaker 1: access to third party data framework and stamp. And in 396 00:23:06,119 --> 00:23:09,680 Speaker 1: twenty eighteen, we had a Carpenter case, which is about 397 00:23:10,000 --> 00:23:13,560 Speaker 1: the pinging of cell phone towers, right and there the 398 00:23:13,560 --> 00:23:18,720 Speaker 1: Supreme Court made sort of a great ruling for defendants that, hey, 399 00:23:18,800 --> 00:23:20,960 Speaker 1: police have to get a warrant to get access to this. 400 00:23:21,080 --> 00:23:24,240 Speaker 1: You can't just hoover in this information. But there's nothing 401 00:23:24,320 --> 00:23:28,600 Speaker 1: that's on this level that involves this kind of technology 402 00:23:29,000 --> 00:23:30,000 Speaker 1: and this kind of. 403 00:23:29,960 --> 00:23:33,960 Speaker 2: Warrant, And how's the privacy bar taking this case? 404 00:23:34,320 --> 00:23:37,639 Speaker 1: Privacy rights attorneys are really up in arms about this 405 00:23:37,720 --> 00:23:40,480 Speaker 1: because of the huge implications here, and you know, for 406 00:23:40,560 --> 00:23:42,919 Speaker 1: the creative ways that it could be used. You know, 407 00:23:43,000 --> 00:23:46,959 Speaker 1: oftentimes these sort of maneuvers aren't really discovered until you know, 408 00:23:47,359 --> 00:23:50,320 Speaker 1: months or years after. You know, police are looking for 409 00:23:50,359 --> 00:23:53,520 Speaker 1: this information, but at the same time police officers say, hey, 410 00:23:53,560 --> 00:23:57,000 Speaker 1: we didn't have anything on this guy. You know that 411 00:23:57,160 --> 00:24:00,879 Speaker 1: committed this robbery. You know, there's no CCTV. There's nothing 412 00:24:00,920 --> 00:24:03,399 Speaker 1: really that would have given us this lead. And so 413 00:24:03,840 --> 00:24:07,680 Speaker 1: on one hand you have this extremely powerful tool for 414 00:24:07,720 --> 00:24:11,720 Speaker 1: police officers, and then the other you have this really scary, 415 00:24:11,840 --> 00:24:15,560 Speaker 1: sort of invasive ability to look into what we're doing 416 00:24:15,560 --> 00:24:16,200 Speaker 1: on our phones. 417 00:24:16,359 --> 00:24:18,440 Speaker 2: I'm sure we're going to hear more about these warrants. 418 00:24:18,520 --> 00:24:22,680 Speaker 2: Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert 419 00:24:22,880 --> 00:24:27,400 Speaker 2: coming up. A Democratic member of Congress charged with felony assault. 420 00:24:27,760 --> 00:24:33,159 Speaker 2: This is Bloomberg. New Jersey Congresswoman la Monica McIver appeared 421 00:24:33,200 --> 00:24:37,040 Speaker 2: in court today to face felony charges accusing her of 422 00:24:37,119 --> 00:24:41,880 Speaker 2: assaulting US immigration officers as she tried to prevent Newark's 423 00:24:41,920 --> 00:24:46,639 Speaker 2: mayor from being arrested outside a detention facility on May ninth. 424 00:24:46,920 --> 00:24:50,960 Speaker 2: Macgiver said the charges against her are purely political. They 425 00:24:51,040 --> 00:24:55,600 Speaker 2: mischaracterize and distort her actions, and are meant to criminalize 426 00:24:55,600 --> 00:24:59,200 Speaker 2: and deter legislative oversight. It is rare for the Department 427 00:24:59,240 --> 00:25:02,879 Speaker 2: of Justice to charge a sitting member of Congress criminally 428 00:25:03,160 --> 00:25:07,920 Speaker 2: for things other than campaign finance violations or corruption. House 429 00:25:08,000 --> 00:25:11,760 Speaker 2: Minority Leader Hakim Jeffries said it crosses the line. 430 00:25:12,240 --> 00:25:18,119 Speaker 4: We're not going to be intimidated by their tactics to 431 00:25:18,200 --> 00:25:22,919 Speaker 4: try to force principled opposition from not standing up to 432 00:25:22,960 --> 00:25:23,760 Speaker 4: their extremism. 433 00:25:23,960 --> 00:25:27,159 Speaker 2: My guest is immigration law expert Leon Fresco, a partner 434 00:25:27,160 --> 00:25:30,840 Speaker 2: at Holland and Knight. Leon. This arrest relates to that 435 00:25:31,080 --> 00:25:36,200 Speaker 2: scrum outside the private detention facility, and both sides are 436 00:25:36,280 --> 00:25:40,000 Speaker 2: pointing to video to illustrate their cases. 437 00:25:40,680 --> 00:25:46,000 Speaker 5: The federal government's position is interestingly enough that the original 438 00:25:46,040 --> 00:25:49,879 Speaker 5: person that they had arrested, the Newark mayor Ros Barakai, 439 00:25:49,920 --> 00:25:52,800 Speaker 5: it turns out in the end, was not amenable to 440 00:25:52,840 --> 00:25:57,639 Speaker 5: addrespassing prosecution, so those charges were actually dropped, but that 441 00:25:57,800 --> 00:26:03,280 Speaker 5: this representative McIver is liable for the impeding of an 442 00:26:03,359 --> 00:26:07,000 Speaker 5: arrest which would have been an arrest that theoretically was 443 00:26:07,119 --> 00:26:10,639 Speaker 5: not prosecutable, which was the arrest of ros Baraka. So 444 00:26:10,880 --> 00:26:13,439 Speaker 5: that actually adds a little bit of a complication to 445 00:26:13,480 --> 00:26:16,400 Speaker 5: this case because if they're saying that she was impeding 446 00:26:16,400 --> 00:26:20,040 Speaker 5: the arrest of someone that theoretically shouldn't have been arrested 447 00:26:20,080 --> 00:26:23,600 Speaker 5: because this person is not actually being prosecuted, now hard 448 00:26:23,640 --> 00:26:27,800 Speaker 5: to say what was being impeded there, but there's that argument, 449 00:26:27,840 --> 00:26:31,200 Speaker 5: and then there's the second one about whether this representative 450 00:26:31,280 --> 00:26:37,040 Speaker 5: was actually pushing and shoving and grabbing Homeland Security Investigation agents. 451 00:26:37,040 --> 00:26:41,119 Speaker 5: I've seen the video. Look, if you take this unwanted 452 00:26:41,240 --> 00:26:45,760 Speaker 5: touching language broadly, you know, all of us commit battery 453 00:26:45,800 --> 00:26:48,159 Speaker 5: and assault every day, you know, if you're in a 454 00:26:48,240 --> 00:26:51,919 Speaker 5: sub way or if you're at a football game or something, 455 00:26:51,960 --> 00:26:55,000 Speaker 5: who knows. So that's the problem with these statues of 456 00:26:55,160 --> 00:26:59,520 Speaker 5: unwanted touching is the government has great discretion over who 457 00:26:59,560 --> 00:27:03,560 Speaker 5: it can prosecutor who it cannot. And what the Representative 458 00:27:03,680 --> 00:27:07,280 Speaker 5: McIver is going to say is that at the end 459 00:27:07,320 --> 00:27:09,919 Speaker 5: of the day, that this is a person trying to 460 00:27:10,000 --> 00:27:13,879 Speaker 5: have congressional oversight. There's a statute that literally says this 461 00:27:13,920 --> 00:27:17,920 Speaker 5: person is able to go into a facility without meaning 462 00:27:18,000 --> 00:27:21,960 Speaker 5: to get prior clear in that access is being blockaded. 463 00:27:22,560 --> 00:27:25,080 Speaker 5: And so this person is trying to do what they 464 00:27:25,119 --> 00:27:28,000 Speaker 5: can to get access to the facility and is being 465 00:27:28,000 --> 00:27:30,880 Speaker 5: impeded by the government, and so it will be up 466 00:27:30,880 --> 00:27:33,760 Speaker 5: for the courts to decide. I do think if this 467 00:27:34,040 --> 00:27:38,439 Speaker 5: is a criminal case happening in New Jersey that if 468 00:27:38,520 --> 00:27:41,080 Speaker 5: it doesn't get dismissed by a judge, it's very unlikely 469 00:27:41,160 --> 00:27:45,119 Speaker 5: that a jury will vote to convict the representative in 470 00:27:45,200 --> 00:27:47,879 Speaker 5: this set of facts. I don't see how it's possible 471 00:27:48,280 --> 00:27:51,399 Speaker 5: you could get jurors to unanimously agree to convict in 472 00:27:51,480 --> 00:27:54,080 Speaker 5: this scenario. I don't see basically any chance of that. 473 00:27:54,640 --> 00:27:58,680 Speaker 5: But nevertheless, if this prosecution continues, that's probably where we 474 00:27:58,720 --> 00:28:01,359 Speaker 5: would end up as a try and I'm sure either 475 00:28:01,400 --> 00:28:04,960 Speaker 5: a mistrial or even potentially an acquittal, because I don't 476 00:28:05,000 --> 00:28:07,639 Speaker 5: think the jury's going to take too kindly to this 477 00:28:07,760 --> 00:28:08,679 Speaker 5: kind of prosecution. 478 00:28:09,359 --> 00:28:12,199 Speaker 2: You have armed ICE agents and they're claiming that this 479 00:28:12,320 --> 00:28:16,800 Speaker 2: woman jostled them, and she's screaming he just assaulted me. 480 00:28:16,920 --> 00:28:19,959 Speaker 2: It just seems like the facts are, to put it kindly, 481 00:28:20,040 --> 00:28:23,960 Speaker 2: the facts are not clear. So why make a federal 482 00:28:24,040 --> 00:28:25,040 Speaker 2: case out of this? 483 00:28:25,600 --> 00:28:27,720 Speaker 5: I think the argument would be that they want the 484 00:28:27,760 --> 00:28:31,760 Speaker 5: congress people in the future to call ICE and arrange 485 00:28:31,800 --> 00:28:35,879 Speaker 5: these tours and have a more orderly process than just 486 00:28:35,960 --> 00:28:40,400 Speaker 5: showing up with cameras saying you know, we're against what's 487 00:28:40,440 --> 00:28:43,880 Speaker 5: going on in this facility, and then dramatically ordering one's 488 00:28:43,920 --> 00:28:47,400 Speaker 5: way into the facility. So they're trying to deter that. 489 00:28:48,160 --> 00:28:51,320 Speaker 5: But I don't think it's very likely that if this 490 00:28:51,440 --> 00:28:53,720 Speaker 5: case ends up going to trial. Look, it's possible to 491 00:28:53,840 --> 00:28:56,280 Speaker 5: end up going to trial because, as I said, this 492 00:28:56,440 --> 00:29:00,719 Speaker 5: assault and battery elements to this are very very broad, 493 00:29:00,840 --> 00:29:03,360 Speaker 5: and any of us could be convicted for them at 494 00:29:03,400 --> 00:29:07,080 Speaker 5: basically any time in terms of just an unwonted touching. 495 00:29:07,560 --> 00:29:10,400 Speaker 5: So then the question is what do you do after that? 496 00:29:11,080 --> 00:29:14,320 Speaker 5: And I think that's the question is are you actually 497 00:29:15,360 --> 00:29:18,800 Speaker 5: doing something that's a criminal act that allows you to 498 00:29:18,840 --> 00:29:22,000 Speaker 5: actually go to jail. Just in the history of New 499 00:29:22,080 --> 00:29:24,760 Speaker 5: Jersey and a lot of the trials they've had, it 500 00:29:24,840 --> 00:29:27,720 Speaker 5: seems unlikely that there would be able to be a 501 00:29:27,760 --> 00:29:29,000 Speaker 5: conviction in this case. 502 00:29:29,360 --> 00:29:32,800 Speaker 2: She likened the charges to the indictment of the Wisconsin 503 00:29:32,920 --> 00:29:36,880 Speaker 2: judge who was accused of helping an undocumented immigrant elude 504 00:29:36,920 --> 00:29:41,160 Speaker 2: federal agencies. Is this more about the Trump administration proving 505 00:29:41,280 --> 00:29:41,960 Speaker 2: a point? 506 00:29:42,440 --> 00:29:44,440 Speaker 5: I don't know if it's about them proving a point. 507 00:29:44,520 --> 00:29:48,840 Speaker 5: I'm just saying I think the desired effect is to 508 00:29:49,000 --> 00:29:52,760 Speaker 5: get people to coordinate their visits with ICE. But you know, 509 00:29:53,240 --> 00:29:56,480 Speaker 5: I leave it for your listeners to decide whether this 510 00:29:56,560 --> 00:29:59,280 Speaker 5: is the method that's the most productive for that purpose. 511 00:30:00,240 --> 00:30:04,720 Speaker 2: Turned to another immigration issue, A Massachusetts judge has found 512 00:30:04,720 --> 00:30:09,240 Speaker 2: that the Trump administration violated an order he issued last 513 00:30:09,400 --> 00:30:14,480 Speaker 2: month that barred officials from deporting people to countries other 514 00:30:14,560 --> 00:30:18,400 Speaker 2: than their own home country without first giving them enough 515 00:30:18,440 --> 00:30:23,280 Speaker 2: time to object. Why is the administration even sending migrants 516 00:30:23,440 --> 00:30:24,560 Speaker 2: to South Sudan? 517 00:30:25,080 --> 00:30:28,040 Speaker 5: Well, I think there was previously a dispute with South 518 00:30:28,080 --> 00:30:31,960 Speaker 5: Sudan about work for the US government to take back 519 00:30:32,040 --> 00:30:36,080 Speaker 5: people to be deported to South Sudan. And it looks 520 00:30:36,240 --> 00:30:39,920 Speaker 5: like this dispute has been resolved in a way where 521 00:30:39,960 --> 00:30:44,280 Speaker 5: South Sudan is now agreeing to take other people rather 522 00:30:44,360 --> 00:30:49,239 Speaker 5: than South Sudanese people back for deportations. And so to 523 00:30:49,280 --> 00:30:52,040 Speaker 5: the extent that the Trump administration has people that it 524 00:30:52,080 --> 00:30:56,560 Speaker 5: can't afford to other nations, it appears that it's going 525 00:30:56,680 --> 00:30:59,920 Speaker 5: to be trying to do that. And what did your 526 00:31:00,080 --> 00:31:03,000 Speaker 5: thing with regard to that? Is also that the Trump administration, 527 00:31:03,560 --> 00:31:07,120 Speaker 5: unlike many other countries whose temporary protective status it has 528 00:31:07,160 --> 00:31:11,400 Speaker 5: taken away, it actually renewed for six more months the 529 00:31:11,480 --> 00:31:15,320 Speaker 5: temporary protective status for South Sudan. So it does seem 530 00:31:15,400 --> 00:31:19,720 Speaker 5: like there's some coalescing of some arrangement there. But now, 531 00:31:19,720 --> 00:31:24,200 Speaker 5: of course we have an injunction and a tumultuous federal 532 00:31:24,240 --> 00:31:27,880 Speaker 5: court situation with regard to sending these individuals from other 533 00:31:27,920 --> 00:31:29,800 Speaker 5: countries to South Sudan. 534 00:31:30,680 --> 00:31:34,080 Speaker 2: I have a practical question. If we're talking about eight 535 00:31:34,120 --> 00:31:38,680 Speaker 2: to twelve migrants, rather than possibly flouting a court order, 536 00:31:39,480 --> 00:31:42,200 Speaker 2: why not just keep them in detention. It's not a 537 00:31:42,320 --> 00:31:42,960 Speaker 2: station number. 538 00:31:43,400 --> 00:31:47,480 Speaker 5: I mean, this is a very interesting question. And the 539 00:31:47,640 --> 00:31:51,239 Speaker 5: pattern in practice previously was to make sure that if 540 00:31:51,240 --> 00:31:55,200 Speaker 5: there was any litigation around a specific issue, that you 541 00:31:55,240 --> 00:31:59,240 Speaker 5: would not have that deportation until all the litigation was done. 542 00:31:59,760 --> 00:32:02,840 Speaker 5: But I think that the Trump administration is feeling very 543 00:32:02,880 --> 00:32:06,520 Speaker 5: frustrated with the amount of litigation, the amount of timing, 544 00:32:07,040 --> 00:32:10,960 Speaker 5: and they're just trying to take any window that's conceivably 545 00:32:11,080 --> 00:32:14,760 Speaker 5: possible that they can argue that a deportation was proper 546 00:32:15,160 --> 00:32:18,200 Speaker 5: so that they could then execute that deportation and then 547 00:32:18,240 --> 00:32:20,200 Speaker 5: go back to the courts and say, sorry, we don't 548 00:32:20,240 --> 00:32:22,560 Speaker 5: know what to do now that that deportation has happened. 549 00:32:23,160 --> 00:32:27,040 Speaker 2: Why are they struggling with these cases that are distinct 550 00:32:27,120 --> 00:32:30,880 Speaker 2: in different ways. If there are so many migrants that 551 00:32:31,040 --> 00:32:33,960 Speaker 2: they say have to be deported, I. 552 00:32:33,920 --> 00:32:37,040 Speaker 5: Think the issue is they're trying to create solutions to 553 00:32:37,120 --> 00:32:40,880 Speaker 5: a lot of different problems that have been long running 554 00:32:40,960 --> 00:32:44,360 Speaker 5: in the immigration system. So there's always been this large 555 00:32:44,360 --> 00:32:47,440 Speaker 5: group of people that just can't be deported because their 556 00:32:47,480 --> 00:32:51,240 Speaker 5: countries won't accept them. And so they're trying to send 557 00:32:51,240 --> 00:32:55,680 Speaker 5: these messages even if they can't accomplish a deportation. They're 558 00:32:55,720 --> 00:32:58,600 Speaker 5: trying to send the message to people who would otherwise 559 00:32:58,680 --> 00:33:01,960 Speaker 5: not be fearful of remains here because they don't think 560 00:33:02,000 --> 00:33:04,680 Speaker 5: they can be deported, to say, the last thing you 561 00:33:04,800 --> 00:33:07,719 Speaker 5: want is for us to come get you and then 562 00:33:07,800 --> 00:33:11,400 Speaker 5: send you to South Sudan or to El Salvador, or 563 00:33:11,480 --> 00:33:14,960 Speaker 5: to Rwanda or someplace like that. And I think so 564 00:33:15,040 --> 00:33:17,080 Speaker 5: a lot of this is to create an effect of 565 00:33:17,160 --> 00:33:20,920 Speaker 5: deterrent rather than just accomplish the twelve removal. So I 566 00:33:20,960 --> 00:33:23,280 Speaker 5: think that's what's really going on here, Lee. 567 00:33:23,280 --> 00:33:25,200 Speaker 2: And as you know, the Supreme Court has said that 568 00:33:25,280 --> 00:33:30,880 Speaker 2: the government has to give undocumented migrants due process and 569 00:33:30,920 --> 00:33:35,240 Speaker 2: the ability to file habeas corpus petitions. And yesterday on 570 00:33:35,320 --> 00:33:40,200 Speaker 2: Capitol Hill, Homeland Security Secretary Christy Nome was asked to 571 00:33:40,280 --> 00:33:46,720 Speaker 2: explain what habeas corpus was by Democratic Senator Maggie Hassen 572 00:33:46,920 --> 00:33:47,880 Speaker 2: of New Hampshire. 573 00:33:48,280 --> 00:33:52,280 Speaker 6: So Secretary Nome, what is habeas corpus? Well, habeas corpus 574 00:33:52,480 --> 00:33:55,760 Speaker 6: is a constitutional right that the president has to be 575 00:33:55,840 --> 00:33:58,080 Speaker 6: able to remove people from this country to. 576 00:33:58,080 --> 00:33:58,760 Speaker 3: Spend their right. 577 00:33:59,360 --> 00:34:02,040 Speaker 6: Let me stop man, spend the hebeas corpus. Excuse me, 578 00:34:02,120 --> 00:34:07,800 Speaker 6: that's that's incorrect. President, excuse me. Habeas corpus is the 579 00:34:07,880 --> 00:34:11,920 Speaker 6: legal principle that requires that the government provide a public 580 00:34:12,000 --> 00:34:14,680 Speaker 6: reason for detaining and imprisoning people. 581 00:34:15,120 --> 00:34:17,560 Speaker 2: So how will the Department be able to follow the 582 00:34:17,560 --> 00:34:21,920 Speaker 2: Supreme Court's orders if its top official thinks habeas corpus 583 00:34:22,040 --> 00:34:24,839 Speaker 2: is the right of the president rather than the right 584 00:34:25,000 --> 00:34:27,360 Speaker 2: of those imprisoned or detained. 585 00:34:27,840 --> 00:34:32,280 Speaker 5: I mean, it is a complicated situation. But for your listeners, 586 00:34:32,280 --> 00:34:35,400 Speaker 5: because we've certainly talked about habeas corpus in the past, 587 00:34:35,440 --> 00:34:38,279 Speaker 5: and so I do think it's useful for everybody to 588 00:34:38,320 --> 00:34:41,920 Speaker 5: be clear that corpus means body in Latin. And so 589 00:34:42,000 --> 00:34:45,080 Speaker 5: the point is, whenever you feel that your body is 590 00:34:45,120 --> 00:34:49,760 Speaker 5: being unnecessarily restrained or detained and formed by the government, 591 00:34:50,200 --> 00:34:54,040 Speaker 5: the traditional remedy for that is to file a habeas corpus, 592 00:34:54,080 --> 00:34:58,200 Speaker 5: saying take custody over this body and tell the government 593 00:34:58,280 --> 00:35:03,120 Speaker 5: to not unlawfully either detain or restrain it in some manner. 594 00:35:03,640 --> 00:35:06,040 Speaker 5: And that's what an abeas corpus is. So when you 595 00:35:06,120 --> 00:35:08,680 Speaker 5: hear that term, that's what it is. It's the ability 596 00:35:08,840 --> 00:35:12,000 Speaker 5: of any person in the United States who feels that 597 00:35:12,000 --> 00:35:17,200 Speaker 5: the government is unjustly doing something with detainment or restrainment 598 00:35:17,280 --> 00:35:19,759 Speaker 5: of their body to be able to go to a 599 00:35:19,880 --> 00:35:23,160 Speaker 5: court and say, you the government are acting unlawfully in 600 00:35:23,239 --> 00:35:26,480 Speaker 5: doing this. And so people are doing that now for 601 00:35:26,560 --> 00:35:30,520 Speaker 5: the purposes of trying to avoid removal under these various 602 00:35:30,719 --> 00:35:34,240 Speaker 5: new ways that the government is trying to accomplish removal, 603 00:35:34,280 --> 00:35:38,600 Speaker 5: such as the Alien Enemies Act or the Foreign Policy Act, 604 00:35:39,040 --> 00:35:41,880 Speaker 5: where the government is saying that people are here in 605 00:35:41,920 --> 00:35:45,080 Speaker 5: violation of US foreign policy interests. And so if the 606 00:35:45,080 --> 00:35:47,240 Speaker 5: Supreme Court has said, look, we know that there's normal 607 00:35:47,280 --> 00:35:50,120 Speaker 5: immigration laws, but you can't use that for these. You 608 00:35:50,160 --> 00:35:54,160 Speaker 5: got to go use a abeas corpus in order to 609 00:35:54,239 --> 00:35:57,279 Speaker 5: challenge this. That's what the Supreme Court has said. And 610 00:35:57,360 --> 00:36:00,160 Speaker 5: so now people are doing that, and so we're this 611 00:36:00,239 --> 00:36:02,960 Speaker 5: debate is is will the Trump administration actually do what's 612 00:36:03,000 --> 00:36:07,879 Speaker 5: called suspension of habeas corpus, which is the only way 613 00:36:07,920 --> 00:36:10,480 Speaker 5: it can do that under the laws that claims that 614 00:36:10,560 --> 00:36:13,600 Speaker 5: the United States is under an invasion, which is the 615 00:36:13,640 --> 00:36:17,359 Speaker 5: same reason it's citing the Alien Enemies Act. And so 616 00:36:17,600 --> 00:36:20,760 Speaker 5: those cases are currently not going well for the government, 617 00:36:21,239 --> 00:36:25,000 Speaker 5: and so will it be able to suspend habeas corpus 618 00:36:25,080 --> 00:36:28,120 Speaker 5: at this time? And so that's what the debate is about. 619 00:36:28,200 --> 00:36:32,200 Speaker 2: And the federal judge in Massachusetts has said that the 620 00:36:32,239 --> 00:36:37,160 Speaker 2: Trump administration unquestionably violated the court order with this possible 621 00:36:37,200 --> 00:36:42,239 Speaker 2: deportation flight to South Sudan. So we'll see where that goes. 622 00:36:42,400 --> 00:36:45,400 Speaker 5: That's where it gets complicated because the courts have so 623 00:36:45,560 --> 00:36:49,359 Speaker 5: far not said you have to bring someone back. Now, 624 00:36:49,400 --> 00:36:51,840 Speaker 5: it's a little bit different when someone's not in detention 625 00:36:52,600 --> 00:36:54,760 Speaker 5: like they are in El Salvador. So if the people 626 00:36:54,800 --> 00:36:57,320 Speaker 5: sent to South Sudan are not going to be placed 627 00:36:57,360 --> 00:37:02,280 Speaker 5: in a detention facility, well, and there's no theoretical problem 628 00:37:02,800 --> 00:37:07,160 Speaker 5: for the United States to quote unquote facilitate their entrance back, 629 00:37:07,440 --> 00:37:09,880 Speaker 5: because now it's just a matter of being given a 630 00:37:09,920 --> 00:37:13,080 Speaker 5: document that allows you to re enter the United States 631 00:37:13,120 --> 00:37:16,759 Speaker 5: and perhaps a playing ride, though that would be potentially 632 00:37:16,760 --> 00:37:21,520 Speaker 5: a subject of litigation. But the Al Savador cases troubled 633 00:37:21,560 --> 00:37:23,920 Speaker 5: because of the fact that they're in detention, so that 634 00:37:23,960 --> 00:37:27,320 Speaker 5: you would need al Savador to actually agree to levels 635 00:37:27,360 --> 00:37:30,480 Speaker 5: individuals out of detention. But in South today, and it's 636 00:37:30,520 --> 00:37:33,840 Speaker 5: not clear that these individuals will be in detention there, 637 00:37:34,239 --> 00:37:38,040 Speaker 5: and so in past cases people have been allowed to 638 00:37:38,120 --> 00:37:41,680 Speaker 5: re enter. The government has actually flown the people back 639 00:37:41,719 --> 00:37:45,160 Speaker 5: into the country, and we'll see if that's what happens here. 640 00:37:45,800 --> 00:37:49,600 Speaker 2: I'm sure everyone will understand habeas corpus by the time 641 00:37:49,680 --> 00:37:53,040 Speaker 2: we're through with all these cases. Thanks so much, Leon. 642 00:37:53,719 --> 00:37:57,080 Speaker 2: That's Leon Fresco, a partner at Holland and Knight. And 643 00:37:57,120 --> 00:37:59,280 Speaker 2: that's it for this edition of The Bloomberg Law Show. 644 00:37:59,560 --> 00:38:01,920 Speaker 2: Remember you can always get the latest legal news on 645 00:38:02,000 --> 00:38:06,279 Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 646 00:38:06,480 --> 00:38:11,520 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 647 00:38:11,920 --> 00:38:14,480 Speaker 2: and remember to tune into The Bloomberg Law Show every 648 00:38:14,560 --> 00:38:18,440 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 649 00:38:18,560 --> 00:38:20,200 Speaker 2: and you're listening to Bloomberg