Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: President Trump has taken unprecedented steps to fire board members
Speaker 2: at agencies created by Congress to be independent of the
Speaker 2: White House. He's fired members of the Federal Trade Commission,
Speaker 2: the Equal Employment Opportunity Commission, the National Labor Relations Board,
Speaker 2: and the Merit Systems Protection Board, all without cause as
Speaker 2: required by relevant statutes. All these firings are being challenged
Speaker 2: in DC federal courts. Some are at the trial court level,
Speaker 2: others are at the appellate level, and still others at
Speaker 2: the Supreme Court. Joining me is Bloomberg Intelligence senior litigation
Speaker 2: analyst Elliott Stein. Elliott, isn't the same issue that's coming
Speaker 2: up over and over again in these cases involving firings.
Speaker 3: Yeah, exactly. You know, basically whether Humphy's Executor, which is
Speaker 3: the Supreme Court decision from nineteen thirty five which upheld
Speaker 3: four cause removal restrictions, still applies, because all these government
Speaker 3: statutes for all these agencies where the commissioners are being
Speaker 3: fired have the same or similar four cause removal restrictions.
Speaker 3: And so the question is whether you know the Trump
Speaker 3: administration is arguing that those restrictions are unconstitutional because they
Speaker 3: impinge on the president's authority to run the executive branch.
Speaker 2: And these cases are all in the DC.
Speaker 3: Circuit, right exactly. Some of them are still at the
Speaker 3: trial court level, so d DC, but yes, they're all
Speaker 3: under the umbrella of the DC Circuit, and some have
Speaker 3: already started reaching the Supreme Court.
Speaker 2: So tell us about the hearing yesterday over the firing
Speaker 2: of the FTC commissioners.
Speaker 3: Yesterday's hearing was at the trial court level. It was
Speaker 3: before Judge Ali Khan, and you know, it was similar
Speaker 3: to what we've seen in other cases involving commissioners from
Speaker 3: other agencies for example ANLRB, the National Labor Relations Board
Speaker 3: and the MSPB, the Merit Systems Protection Board. And essentially,
Speaker 3: the Trump administration is arguing that the four cause removal
Speaker 3: restrictions that are in the governing statutes are unconstitutional and
Speaker 3: the president should be able to fire these commissioners at
Speaker 3: will because they're part of the executive branch and under
Speaker 3: Article to the president has authority to control the executive branch.
Speaker 3: The commissioners obviously take the opposite view and say, well,
Speaker 3: you know, we have a Supreme Court decision from nineteen
Speaker 3: thirty five Humphrey's Executor, which upheld four cause removal restrictions,
Speaker 3: and that decision is still good law. The Supreme Court
Speaker 3: hasn't overruled it, even though it revisited and interpreted that
Speaker 3: decision in recent cases involving single director agencies like the
Speaker 3: CFPB and the FAHFA.
Speaker 2: One of these cases actually reached an on bank panel
Speaker 2: of the DC Circuit, which means the three judge panel
Speaker 2: ruled in the case and then it was appealed to
Speaker 2: the full DC Circuit.
Speaker 3: Essentially two of the cases, but they've sort of been consolidated.
Speaker 3: Those are the cases involving the NRB and the MSPB,
Speaker 3: the Merit Systems Protection Board. In that case, the trial
Speaker 3: court Judge Howell said that the four cause removal restrictions
Speaker 3: are fined their constitutional under Humphrey's Executor and as a result,
Speaker 3: the termination of the commissioners from those agencies was improper,
Speaker 3: and so she directed the agencies to reinstate the commissioners
Speaker 3: their trump administration then went to the DC Circuit, which
Speaker 3: in the first instance went to a three judge panel,
Speaker 3: and the panel, which was comprised of two judges appointed
Speaker 3: by Republicans and won by a Democrat, essentially said that
Speaker 3: the trial court's ruling was unlikely to succeed on the merits,
Speaker 3: and as a result, they put a hold on the
Speaker 3: trial court's injunction that would have reinstated the commissioners. Commit
Speaker 3: missioners then went to the full DC Circuit and requested
Speaker 3: an ND bound review of that panel decision, and and
Speaker 3: Bank Court essentially came out the other way from the
Speaker 3: panel and said that the child Court's injunction to reinstate
Speaker 3: the commissioners was fine because the commissioners were likely to
Speaker 3: succeed on the merits. What's interesting is that you know,
Speaker 3: these rulings are coming out completely along ideological lines. So
Speaker 3: you know, I mentioned the three judge panel where you
Speaker 3: had two judges appointed by Republicans ruling in favor of
Speaker 3: the Trump administration and one judge appointed by a Democrat
Speaker 3: ruling in favor of the commissioners. You had a similar
Speaker 3: alignment at the en Bank level where you had seven
Speaker 3: judges appointed by Democrats ruling in favor of the commissioners
Speaker 3: and four judges appointed by Republicans ruling in favor of
Speaker 3: the Trump administration.
Speaker 2: How are the judges appointed by Republicans get over Humphrey's executor,
Speaker 2: which is still good law.
Speaker 3: Right, So they say the more recent Supreme Court decisions
Speaker 3: concerning four cause removal restrictions sale a law which concerned
Speaker 3: the CFPV director and Collins, which concerned the FHFA director,
Speaker 3: really narrowed the holding of Humphrey's executor, and that the
Speaker 3: more recent decisions essentially held that four cause removal restrictions
Speaker 3: are improper for agencies that wield executive power, and that
Speaker 3: in Humphreys, the FTC at that time didn't really wield
Speaker 3: executive power because there was more like a quasi legislative
Speaker 3: or quasi judicial agency. It basically acted as a legislative
Speaker 3: aid and didn't quite have the full gamut of powers
Speaker 3: that it has now. And as a result, you know,
Speaker 3: these agencies where commissioners are being fired, wield executive power.
Speaker 3: And you know two of the hallmarks of executive power
Speaker 3: or rule making authority and enforcement authority, and most of
Speaker 3: these agencies have authority, and as a result, they wield
Speaker 3: executive power and they fall under the President's authority.
Speaker 2: So that was the only one that went up to
Speaker 2: the full DC circuit.
Speaker 3: Yes, that's right. Most of these other ones are still
Speaker 3: at the trial court level, including the FDC one that
Speaker 3: was heard yesterday.
Speaker 2: There was a May sixteenth appellate court.
Speaker 3: Argument, right, So on May sixteenth, the NLRB and MSPB
Speaker 3: cases were argued before the DC Circuit panel on the merits. Right.
Speaker 3: We already discussed how the preliminary issue or sort of
Speaker 3: the emergency issue regarding the injunction to reinstate them went up,
Speaker 3: but those were just emergency issues here, and on May
Speaker 3: sixteenth concerned the full merits of the trial court's ruling
Speaker 3: to reinstate the commissioners. And how did that go, you know,
Speaker 3: similar to how all these cases are going where you know,
Speaker 3: you do see this alignment where that panel had again
Speaker 3: two judges, Judge Walker and Judge Katsas, who were appointed
Speaker 3: by President Trump, and then Judge Pan who was appointed
Speaker 3: by President Biden. And you know, Judge Pan was very
Speaker 3: critical or skeptical of the Trump administration's position. So I
Speaker 3: expect her to rule in favor of the commissioners, but
Speaker 3: you know, so likely be in the dissent. There are
Speaker 3: two other judges. Judge Walker has taken a very expansive
Speaker 3: view of executive authority. He wrote one of the opinions
Speaker 3: when this case reached the DC Circuit panel previously, and
Speaker 3: he took a very expansive view of executive authority. So
Speaker 3: he's very likely to rule for President Trump, and then
Speaker 3: the other judge, Katsis, I think will also rule for
Speaker 3: President Trump. He was sort of trying to figure out
Speaker 3: just how far the Trump administration's argument could go. You know,
Speaker 3: he's trying to figure out sort of like what the
Speaker 3: outer bounds would be. But at the end of the day,
Speaker 3: I do expect that the Trump administration will win reversal
Speaker 3: at the panel level, after which, of course the Commissioners
Speaker 3: will then ask her and Bank review again. I expect
Speaker 3: they'll win there, and then we'll probably be onto the
Speaker 3: Supreme Court for ruling on the merits eventually.
Speaker 2: Do you need a scorecard? It's you're here to figure
Speaker 2: out which cases are aware and which judges heard them.
Speaker 2: So now tell us about the case that reached the
Speaker 2: Supreme Court and Chief Justice Roberts handed down an order.
Speaker 3: So in the NRB and MSCB cases, you know, we
Speaker 3: already talked about how it went to the on the
Speaker 3: emergency issue of whether the commissioners could be reinstated and
Speaker 3: went to the DC Circuit panel and bank. The Trump
Speaker 3: administration lost at the end bank level, so they asked
Speaker 3: the Supreme Court to put a stay on the ruling
Speaker 3: that would have reinstated the commissioners, and the Supreme Court
Speaker 3: put an administrative stay on the injunction that would have
Speaker 3: reinstated the commissioners, you know, to give them more time
Speaker 3: to actually rule on the issue. But they haven't done
Speaker 3: anything subsequent to that, so, you know, I think it
Speaker 3: seems like they're leaning. The Supreme Court is leaning towards
Speaker 3: letting the case play out at the lower court level,
Speaker 3: because in addition to requesting a stay of the injunction,
Speaker 3: the Trump administration also asked the Supreme Court to actually
Speaker 3: grant cert sort of you know, at a very early
Speaker 3: stage in the litigation, before it even went all the
Speaker 3: way through the DC Circuit on the merits. And the
Speaker 3: Supreme Court hasn't ruled on that request either.
Speaker 2: The Trump administration seems to be doing that a lot,
Speaker 2: pushing the envelope for it.
Speaker 3: Yeah, you know what we call the shadow dock here, right,
Speaker 3: you know, they're entitled to do it. Other parties do it.
Speaker 2: Too, although no other president has gone to the Supreme
Speaker 2: Court on an emergency basis. This often in this short
Speaker 2: period of time, I think so far there are nineteen
Speaker 2: emergency petitions from the Trump administration at the Supreme Court,
Speaker 2: and that includes one file just today the administration asked
Speaker 2: the court to stop a judge's order that would force
Speaker 2: it to answer questions from a watchdog group and turnover
Speaker 2: documents about Elon Musk's Department of Government efficiency. So they're
Speaker 2: not slowing down with the petitions.
Speaker 3: Well, I mean, part of that is because a lot
Speaker 3: of these cases do go through the DC's circuit, which
Speaker 3: leans towards judges who have been appointed by Democrats, so
Speaker 3: as a result of Trump administration and loses more cases there,
Speaker 3: and then they go to the Supreme Court hoping for
Speaker 3: a win.
Speaker 2: I mean, let's talk about how this affects perhaps the
Speaker 2: Federal Reserve Board, right and your own power. So, first
Speaker 2: of all, the Federal Reserve Act, is it the same
Speaker 2: kind of language as in these other.
Speaker 3: Yes, it's similar. I mean, all these statutes sort of
Speaker 3: have variations of the same theme, which is some sort
Speaker 3: of four cause removal restriction. And sometimes it's defined, sometimes
Speaker 3: it's not defined what four causes. When it's not defined.
Speaker 3: It's generally assumed to mean some sort of neglect, inefficiency,
Speaker 3: or malfeasance. The Federal Reserve Act does have four cause
Speaker 3: removal restriction language in order to remove you know, Federal
Speaker 3: Reserve Board governors. It doesn't have any such language to
Speaker 3: sort of demote the or any of the vice chairs,
Speaker 3: but to completely remove them from the board. It does
Speaker 3: have that language.
Speaker 2: There have been, you know, arguments at the Supreme Court
Speaker 2: where during the oral argument some of the justices singled
Speaker 2: out the Feds being different. But what's your take on
Speaker 2: whether the cases that we've been talking about indicate that
Speaker 2: the court will rule that the president can fire the
Speaker 2: Federal Reserve chair.
Speaker 3: Yeah. It's interesting because the issue does come up in
Speaker 3: all these cases that we've already discussed, and you know
Speaker 3: that the commissioners who were fired, and some of the
Speaker 3: judges who are skeptical to the Trump administration's view say well,
Speaker 3: you know, if you can fire these commissioners, there's nothing
Speaker 3: to stop you from firing Federal Reserve Board governors. And
Speaker 3: then it's interesting because then the Trump administration comes back
Speaker 3: and says, well, you know, we haven't taken a position
Speaker 3: on the Federal Reserve Board that's not before this court.
Speaker 3: There may be arguments that Federal Reserve Board governors could
Speaker 3: raise that are different than the ones before these other cases.
Speaker 3: So it's sort of interesting to see how the Trump
Speaker 3: administration tries to sidestep that argument. But at the end
Speaker 3: of the day, I think the commissioners are right and
Speaker 3: the judges that are skeptical to the Trump administration are
Speaker 3: right because the Fed, you know, it has rule making authority,
Speaker 3: it can bring enforcement actions. It does a lot of
Speaker 3: things on the regulatory side of its responsibilities that would
Speaker 3: fall under executive authority. Right. It also obviously has monetary
Speaker 3: policy responsibilities, and those are even the Trump administration has
Speaker 3: carved those out from falling under the president's authority. But
Speaker 3: given its other powers, including rulemaking and enforcement action authority,
Speaker 3: I think, in order to be consistent with trumpet administration's arguments,
Speaker 3: which I do believe will prevail in these other cases,
Speaker 3: that the President would be able under the law to
Speaker 3: fire Federal Reserve Board governors. But I also say, you know,
Speaker 3: the markets are more likely to dissuade the president from
Speaker 3: doing that than the courts.
Speaker 2: Are, and the Supreme Court justices. Is it just the
Speaker 2: to Clarence Thomas and Neil Gorsich who said that they
Speaker 2: would overrule Humphrey's executor.
Speaker 3: Yeah, they are the only two that has explicitly said that.
Speaker 3: And they did say that. I forget if it was
Speaker 3: in Sale a Law or in Collins. I think it
Speaker 3: was in Sale They said they would explicitly overrule Humphries.
Speaker 3: But you know the rest of the Conservative justices, they've
Speaker 3: interpreted Humphries to be a very narrow exception to the
Speaker 3: general rule that the president can fire anyone in the
Speaker 3: exec dipperience.
Speaker 2: And are we still waiting to see if the Supreme
Speaker 2: Court rules on reinstatement of the NLRB and MSBT.
Speaker 3: Yeah, technically those requests are still pending. But you know,
Speaker 3: given that the DC Circuit panel just last Friday on
Speaker 3: the sixteenth, heard those cases on the merits, it would
Speaker 3: be odd I think for the Supreme Court to take
Speaker 3: up the case now. I think they'll wait for the
Speaker 3: DC Circuit to rule.
Speaker 2: Well, the Supreme Court has lots of other emergency applications
Speaker 2: to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior
Speaker 2: litigation analyst Elliott Stein. Geofence warrants are relatively New Google
Speaker 2: received its first in twenty sixteen, but the use of
Speaker 2: such warrants has proliferated, as have court cases challenging them.
Speaker 2: Unlike a warrant authorizing surveillance of a known suspect, geo
Speaker 2: fencing is used to identify would be suspects. Google has
Speaker 2: been the primary recipient of these warrants due to its
Speaker 2: extensive location history database. Federal courts have split on whether
Speaker 2: these geofence warrants are constitutional, but now New Jersey State
Speaker 2: Court has ruled that police use of geofence warrants does
Speaker 2: not violate constitutional privacy protections and is not an impermissible
Speaker 2: general warrant. Joining me is Alex Ebert Bloomberg Law correspondent,
Speaker 2: So Alex tell us what a geofence warrant is.
Speaker 1: A geofence warrant is a broad warrant that allows police
Speaker 1: to find out who may have been in a certain
Speaker 1: location at a given time. So imagine you're the police
Speaker 1: and you're looking for people, let's say at the Capitol
Speaker 1: riot on January sixth, and you want to find out, hey,
Speaker 1: whose cell phones might have been present around the Capitol
Speaker 1: when things started going down. Or let's say there was
Speaker 1: another event where we have a ride after there's a
Speaker 1: police shooting. Hypothetically police officers could find out who was
Speaker 1: in the vicinity of building when it got broken into.
Speaker 1: That's the sort of information that police officers can be
Speaker 1: looking for.
Speaker 2: So what is the question when using a geofence warrant?
Speaker 2: Is it privacy concerns? What are the constitutional concerns?
Speaker 1: That's right? So this all boils down to privacy, And
Speaker 1: there's two sort of big questions that courts are grappling with.
Speaker 1: One is this a general warrant that would violate the
Speaker 1: Fourth Amendment protections we have against the police invading our privacy?
Speaker 1: And two would this be considered the stuff that we
Speaker 1: don't really have an entitlement to protect because it's held
Speaker 1: by third parties. This is an issue that courts have
Speaker 1: grappled with for decades and it gets only more complex
Speaker 1: as more of our data is being given to third parties.
Speaker 2: Tell us what happened in this case? What you know
Speaker 2: the facts of the case.
Speaker 1: Sure, So this case involves a Milltown robbery. Basically, what
Speaker 1: happens is someone came into a convenience store gas station
Speaker 1: late at night and the clerk who got assaulted hurt
Speaker 1: someone talking on the phone. That was really all the
Speaker 1: police had to go off of in this case. And
Speaker 1: so because they knew there was a phone conversation going on,
Speaker 1: they went to Google and said, hey, was there anyone
Speaker 1: in this particular area. Usually it's a couple of blocks
Speaker 1: that is making a phone call or accessing their phone
Speaker 1: at this given time period. They went to Google and
Speaker 1: Google found only one identifiable person that was there, and
Speaker 1: from there the police officers were able to request from
Speaker 1: Google demand that they provide the identification of that Googled
Speaker 1: user and.
Speaker 2: So explain what the court found here.
Speaker 1: Sure, So the New Jersey Court of Appeals was extremely divided,
Speaker 1: as other courts have been in recent times on this issue.
Speaker 1: The majority found that this is okay. That there's a
Speaker 1: process through which the police here are requesting information from Google,
Speaker 1: and they're narrowing it down based on the location and
Speaker 1: the time period that they're seeking pings on people's cell phones.
Speaker 1: And from there it's fine, it's articulable suspicion. We've got
Speaker 1: the probable cause necessary to get this information in a warrant.
Speaker 1: But the descent here is saying, no way, what we're
Speaker 1: asking for here is to hoover up all this information,
Speaker 1: and you're able to tap into whomever might be in
Speaker 1: this location at a given time, whether or not they
Speaker 1: might be related to this crime or not.
Speaker 2: This New Jersey case is a case in state court,
Speaker 2: but the federal courts are split on this. The Fourth Circuit,
Speaker 2: sitting on Bank couldn't produce a majority opinion explaining why
Speaker 2: they allowed the geofence warrant, so it issued eight separate concurrences.
Speaker 1: It is such a mess, Joon. So we have that
Speaker 1: court going that direction, and then we have the Fifth Circuit,
Speaker 1: what we would consider to be extremely conservative, going to
Speaker 1: complete other routes. So we have this circuit split where
Speaker 1: we have a court that says this isn't the search
Speaker 1: at all, this is information held by third parties. The
Speaker 1: defendants aren't entitled to protection over right. Then we've got
Speaker 1: the Fifth Circuit saying this isn't just a search, this
Speaker 1: is an unconstitutional general warrant. You know the thing that
Speaker 1: you know we created the Fourth Amendment to stop. We
Speaker 1: don't want the British officers coming in and ransacking our
Speaker 1: houses just generally looking for stuff, and that's what you're
Speaker 1: trying to do here with these general warrants of disinformation
Speaker 1: at Google users and just pulling it back. We're talking
Speaker 1: about hundreds of millions of devices in the United States.
Speaker 1: You know, hundreds of millions of people have access to
Speaker 1: just Google's accounts. And so if you're looking at the
Speaker 1: split here, it's the difference between can we get at
Speaker 1: that private information that's held by these service providers, by
Speaker 1: these apps, or is that just too much data? Do
Speaker 1: we have an updated sense of privacy that is being
Speaker 1: invaded here?
Speaker 2: Do you have any idea how many of these GEO
Speaker 2: warrants are issued in a year.
Speaker 1: I haven't been able to find information how mean it is. However,
Speaker 1: when I've spoken with attorneys off the record, they've told
Speaker 1: me that it's increasing again and again and again because
Speaker 1: it's becoming more valuable in for We also have other
Speaker 1: courts considering this issue right now. Just last month, the
Speaker 1: Texas Criminal Court of Appeals, which is their highest level
Speaker 1: of criminal courts, they allowed the geofense warrants, and the
Speaker 1: Minnesota Supreme Court is considering right now a case on
Speaker 1: the constitutionality of geofense warrants. So this is bubbling up
Speaker 1: across the country.
Speaker 2: Could this be appealed to the New Jersey Supreme Court.
Speaker 1: Indeed, so because this is a divided decision in the
Speaker 1: Court of Appeals, New Jersey Supreme Court will automatically grant
Speaker 1: review if the loser wants it. That is a certainty here.
Speaker 1: This is going to be a huge case and you're
Speaker 1: going to see you know, amakis briefs from all over
Speaker 1: the country pour in on this thing because there's so
Speaker 1: few of these decisions that are either bubbling up or
Speaker 1: at that highest court level. And in particular, New Jersey
Speaker 1: is extremely strong in Fourth Amendment terms, and it has
Speaker 1: interpreted both the national the federal Fourth amend and its
Speaker 1: own privacy protections broadly for criminal defendants.
Speaker 2: Google is implementing changes to encryption. Explain what they're trying
Speaker 2: to do, that's right.
Speaker 1: Yeah, So it's been over a year now since Google
Speaker 1: has announced that it's going to be implementing changes to
Speaker 1: encryption that would prevent somewhat you know, some of these
Speaker 1: broader geofense warrants we're talking about. Instead of Google storing
Speaker 1: this information, it will be stored on a local device,
Speaker 1: or it will be you know, encrypted in such a
Speaker 1: way that giving Google can't read it, and so it
Speaker 1: can't turn over account information to police officers. But that's
Speaker 1: not necessarily going to stop, either for Google or for
Speaker 1: other apps. If you think about it, there's other warrants
Speaker 1: that you know, could function well beyond this. Right, So,
Speaker 1: if you're taking an Uber somewhere, why can't the police say, hey, Uber,
Speaker 1: give me all of the rides that you know came
Speaker 1: into this block, right or this series of blocks within
Speaker 1: the you know, three hours the night April twenty fives,
Speaker 1: or Facebook or Apple you know, were there any location
Speaker 1: tags or people that bought things, you know, using Apple
Speaker 1: Pay or whatever within certain radius around here. It's not
Speaker 1: just Google that you know, defendants might have to worry about.
Speaker 1: And beyond that, you could even think of ways where
Speaker 1: you can get at this sort of information without really
Speaker 1: looking at you know, pinging from someone's location through geolocation.
Speaker 1: What if you could go to Google and say, hey,
Speaker 1: give me anyone that's searched for, you know, the victim's
Speaker 1: house or areas around there in a certain time period.
Speaker 1: So you can think of creative ways where the police
Speaker 1: could really use an expansive access to these geofence warrants
Speaker 1: to look for information, you know, even outside of what
Speaker 1: Google is trying to prohibit.
Speaker 2: Has the Supreme Court taken up any case that's similar
Speaker 2: to these geo warrants?
Speaker 1: Not exactly on point tune. So over the course of
Speaker 1: my lifetime, the Supreme Court has gone from a more
Speaker 1: favorable access to third party data to a less favorable
Speaker 1: access to third party data framework and stamp. And in
Speaker 1: twenty eighteen, we had a Carpenter case, which is about
Speaker 1: the pinging of cell phone towers, right and there the
Speaker 1: Supreme Court made sort of a great ruling for defendants that, hey,
Speaker 1: police have to get a warrant to get access to this.
Speaker 1: You can't just hoover in this information. But there's nothing
Speaker 1: that's on this level that involves this kind of technology
Speaker 1: and this kind of.
Speaker 2: Warrant, And how's the privacy bar taking this case?
Speaker 1: Privacy rights attorneys are really up in arms about this
Speaker 1: because of the huge implications here, and you know, for
Speaker 1: the creative ways that it could be used. You know,
Speaker 1: oftentimes these sort of maneuvers aren't really discovered until you know,
Speaker 1: months or years after. You know, police are looking for
Speaker 1: this information, but at the same time police officers say, hey,
Speaker 1: we didn't have anything on this guy. You know that
Speaker 1: committed this robbery. You know, there's no CCTV. There's nothing
Speaker 1: really that would have given us this lead. And so
Speaker 1: on one hand you have this extremely powerful tool for
Speaker 1: police officers, and then the other you have this really scary,
Speaker 1: sort of invasive ability to look into what we're doing
Speaker 1: on our phones.
Speaker 2: I'm sure we're going to hear more about these warrants.
Speaker 2: Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
Speaker 2: coming up. A Democratic member of Congress charged with felony assault.
Speaker 2: This is Bloomberg. New Jersey Congresswoman la Monica McIver appeared
Speaker 2: in court today to face felony charges accusing her of
Speaker 2: assaulting US immigration officers as she tried to prevent Newark's
Speaker 2: mayor from being arrested outside a detention facility on May ninth.
Speaker 2: Macgiver said the charges against her are purely political. They
Speaker 2: mischaracterize and distort her actions, and are meant to criminalize
Speaker 2: and deter legislative oversight. It is rare for the Department
Speaker 2: of Justice to charge a sitting member of Congress criminally
Speaker 2: for things other than campaign finance violations or corruption. House
Speaker 2: Minority Leader Hakim Jeffries said it crosses the line.
Speaker 4: We're not going to be intimidated by their tactics to
Speaker 4: try to force principled opposition from not standing up to
Speaker 4: their extremism.
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
Speaker 2: at Holland and Knight. Leon. This arrest relates to that
Speaker 2: scrum outside the private detention facility, and both sides are
Speaker 2: pointing to video to illustrate their cases.
Speaker 5: The federal government's position is interestingly enough that the original
Speaker 5: person that they had arrested, the Newark mayor Ros Barakai,
Speaker 5: it turns out in the end, was not amenable to
Speaker 5: addrespassing prosecution, so those charges were actually dropped, but that
Speaker 5: this representative McIver is liable for the impeding of an
Speaker 5: arrest which would have been an arrest that theoretically was
Speaker 5: not prosecutable, which was the arrest of ros Baraka. So
Speaker 5: that actually adds a little bit of a complication to
Speaker 5: this case because if they're saying that she was impeding
Speaker 5: the arrest of someone that theoretically shouldn't have been arrested
Speaker 5: because this person is not actually being prosecuted, now hard
Speaker 5: to say what was being impeded there, but there's that argument,
Speaker 5: and then there's the second one about whether this representative
Speaker 5: was actually pushing and shoving and grabbing Homeland Security Investigation agents.
Speaker 5: I've seen the video. Look, if you take this unwanted
Speaker 5: touching language broadly, you know, all of us commit battery
Speaker 5: and assault every day, you know, if you're in a
Speaker 5: sub way or if you're at a football game or something,
Speaker 5: who knows. So that's the problem with these statues of
Speaker 5: unwanted touching is the government has great discretion over who
Speaker 5: it can prosecutor who it cannot. And what the Representative
Speaker 5: McIver is going to say is that at the end
Speaker 5: of the day, that this is a person trying to
Speaker 5: have congressional oversight. There's a statute that literally says this
Speaker 5: person is able to go into a facility without meaning
Speaker 5: to get prior clear in that access is being blockaded.
Speaker 5: And so this person is trying to do what they
Speaker 5: can to get access to the facility and is being
Speaker 5: impeded by the government, and so it will be up
Speaker 5: for the courts to decide. I do think if this
Speaker 5: is a criminal case happening in New Jersey that if
Speaker 5: it doesn't get dismissed by a judge, it's very unlikely
Speaker 5: that a jury will vote to convict the representative in
Speaker 5: this set of facts. I don't see how it's possible
Speaker 5: you could get jurors to unanimously agree to convict in
Speaker 5: this scenario. I don't see basically any chance of that.
Speaker 5: But nevertheless, if this prosecution continues, that's probably where we
Speaker 5: would end up as a try and I'm sure either
Speaker 5: a mistrial or even potentially an acquittal, because I don't
Speaker 5: think the jury's going to take too kindly to this
Speaker 5: kind of prosecution.
Speaker 2: You have armed ICE agents and they're claiming that this
Speaker 2: woman jostled them, and she's screaming he just assaulted me.
Speaker 2: It just seems like the facts are, to put it kindly,
Speaker 2: the facts are not clear. So why make a federal
Speaker 2: case out of this?
Speaker 5: I think the argument would be that they want the
Speaker 5: congress people in the future to call ICE and arrange
Speaker 5: these tours and have a more orderly process than just
Speaker 5: showing up with cameras saying you know, we're against what's
Speaker 5: going on in this facility, and then dramatically ordering one's
Speaker 5: way into the facility. So they're trying to deter that.
Speaker 5: But I don't think it's very likely that if this
Speaker 5: case ends up going to trial. Look, it's possible to
Speaker 5: end up going to trial because, as I said, this
Speaker 5: assault and battery elements to this are very very broad,
Speaker 5: and any of us could be convicted for them at
Speaker 5: basically any time in terms of just an unwonted touching.
Speaker 5: So then the question is what do you do after that?
Speaker 5: And I think that's the question is are you actually
Speaker 5: doing something that's a criminal act that allows you to
Speaker 5: actually go to jail. Just in the history of New
Speaker 5: Jersey and a lot of the trials they've had, it
Speaker 5: seems unlikely that there would be able to be a
Speaker 5: conviction in this case.
Speaker 2: She likened the charges to the indictment of the Wisconsin
Speaker 2: judge who was accused of helping an undocumented immigrant elude
Speaker 2: federal agencies. Is this more about the Trump administration proving
Speaker 2: a point?
Speaker 5: I don't know if it's about them proving a point.
Speaker 5: I'm just saying I think the desired effect is to
Speaker 5: get people to coordinate their visits with ICE. But you know,
Speaker 5: I leave it for your listeners to decide whether this
Speaker 5: is the method that's the most productive for that purpose.
Speaker 2: Turned to another immigration issue, A Massachusetts judge has found
Speaker 2: that the Trump administration violated an order he issued last
Speaker 2: month that barred officials from deporting people to countries other
Speaker 2: than their own home country without first giving them enough
Speaker 2: time to object. Why is the administration even sending migrants
Speaker 2: to South Sudan?
Speaker 5: Well, I think there was previously a dispute with South
Speaker 5: Sudan about work for the US government to take back
Speaker 5: people to be deported to South Sudan. And it looks
Speaker 5: like this dispute has been resolved in a way where
Speaker 5: South Sudan is now agreeing to take other people rather
Speaker 5: than South Sudanese people back for deportations. And so to
Speaker 5: the extent that the Trump administration has people that it
Speaker 5: can't afford to other nations, it appears that it's going
Speaker 5: to be trying to do that. And what did your
Speaker 5: thing with regard to that? Is also that the Trump administration,
Speaker 5: unlike many other countries whose temporary protective status it has
Speaker 5: taken away, it actually renewed for six more months the
Speaker 5: temporary protective status for South Sudan. So it does seem
Speaker 5: like there's some coalescing of some arrangement there. But now,
Speaker 5: of course we have an injunction and a tumultuous federal
Speaker 5: court situation with regard to sending these individuals from other
Speaker 5: countries to South Sudan.
Speaker 2: I have a practical question. If we're talking about eight
Speaker 2: to twelve migrants, rather than possibly flouting a court order,
Speaker 2: why not just keep them in detention. It's not a
Speaker 2: station number.
Speaker 5: I mean, this is a very interesting question. And the
Speaker 5: pattern in practice previously was to make sure that if
Speaker 5: there was any litigation around a specific issue, that you
Speaker 5: would not have that deportation until all the litigation was done.
Speaker 5: But I think that the Trump administration is feeling very
Speaker 5: frustrated with the amount of litigation, the amount of timing,
Speaker 5: and they're just trying to take any window that's conceivably
Speaker 5: possible that they can argue that a deportation was proper
Speaker 5: so that they could then execute that deportation and then
Speaker 5: go back to the courts and say, sorry, we don't
Speaker 5: know what to do now that that deportation has happened.
Speaker 2: Why are they struggling with these cases that are distinct
Speaker 2: in different ways. If there are so many migrants that
Speaker 2: they say have to be deported, I.
Speaker 5: Think the issue is they're trying to create solutions to
Speaker 5: a lot of different problems that have been long running
Speaker 5: in the immigration system. So there's always been this large
Speaker 5: group of people that just can't be deported because their
Speaker 5: countries won't accept them. And so they're trying to send
Speaker 5: these messages even if they can't accomplish a deportation. They're
Speaker 5: trying to send the message to people who would otherwise
Speaker 5: not be fearful of remains here because they don't think
Speaker 5: they can be deported, to say, the last thing you
Speaker 5: want is for us to come get you and then
Speaker 5: send you to South Sudan or to El Salvador, or
Speaker 5: to Rwanda or someplace like that. And I think so
Speaker 5: a lot of this is to create an effect of
Speaker 5: deterrent rather than just accomplish the twelve removal. So I
Speaker 5: think that's what's really going on here, Lee.
Speaker 2: And as you know, the Supreme Court has said that
Speaker 2: the government has to give undocumented migrants due process and
Speaker 2: the ability to file habeas corpus petitions. And yesterday on
Speaker 2: Capitol Hill, Homeland Security Secretary Christy Nome was asked to
Speaker 2: explain what habeas corpus was by Democratic Senator Maggie Hassen
Speaker 2: of New Hampshire.
Speaker 6: So Secretary Nome, what is habeas corpus? Well, habeas corpus
Speaker 6: is a constitutional right that the president has to be
Speaker 6: able to remove people from this country to.
Speaker 3: Spend their right.
Speaker 6: Let me stop man, spend the hebeas corpus. Excuse me,
Speaker 6: that's that's incorrect. President, excuse me. Habeas corpus is the
Speaker 6: legal principle that requires that the government provide a public
Speaker 6: reason for detaining and imprisoning people.
Speaker 2: So how will the Department be able to follow the
Speaker 2: Supreme Court's orders if its top official thinks habeas corpus
Speaker 2: is the right of the president rather than the right
Speaker 2: of those imprisoned or detained.
Speaker 5: I mean, it is a complicated situation. But for your listeners,
Speaker 5: because we've certainly talked about habeas corpus in the past,
Speaker 5: and so I do think it's useful for everybody to
Speaker 5: be clear that corpus means body in Latin. And so
Speaker 5: the point is, whenever you feel that your body is
Speaker 5: being unnecessarily restrained or detained and formed by the government,
Speaker 5: the traditional remedy for that is to file a habeas corpus,
Speaker 5: saying take custody over this body and tell the government
Speaker 5: to not unlawfully either detain or restrain it in some manner.
Speaker 5: And that's what an abeas corpus is. So when you
Speaker 5: hear that term, that's what it is. It's the ability
Speaker 5: of any person in the United States who feels that
Speaker 5: the government is unjustly doing something with detainment or restrainment
Speaker 5: of their body to be able to go to a
Speaker 5: court and say, you the government are acting unlawfully in
Speaker 5: doing this. And so people are doing that now for
Speaker 5: the purposes of trying to avoid removal under these various
Speaker 5: new ways that the government is trying to accomplish removal,
Speaker 5: such as the Alien Enemies Act or the Foreign Policy Act,
Speaker 5: where the government is saying that people are here in
Speaker 5: violation of US foreign policy interests. And so if the
Speaker 5: Supreme Court has said, look, we know that there's normal
Speaker 5: immigration laws, but you can't use that for these. You
Speaker 5: got to go use a abeas corpus in order to
Speaker 5: challenge this. That's what the Supreme Court has said. And
Speaker 5: so now people are doing that, and so we're this
Speaker 5: debate is is will the Trump administration actually do what's
Speaker 5: called suspension of habeas corpus, which is the only way
Speaker 5: it can do that under the laws that claims that
Speaker 5: the United States is under an invasion, which is the
Speaker 5: same reason it's citing the Alien Enemies Act. And so
Speaker 5: those cases are currently not going well for the government,
Speaker 5: and so will it be able to suspend habeas corpus
Speaker 5: at this time? And so that's what the debate is about.
Speaker 2: And the federal judge in Massachusetts has said that the
Speaker 2: Trump administration unquestionably violated the court order with this possible
Speaker 2: deportation flight to South Sudan. So we'll see where that goes.
Speaker 5: That's where it gets complicated because the courts have so
Speaker 5: far not said you have to bring someone back. Now,
Speaker 5: it's a little bit different when someone's not in detention
Speaker 5: like they are in El Salvador. So if the people
Speaker 5: sent to South Sudan are not going to be placed
Speaker 5: in a detention facility, well, and there's no theoretical problem
Speaker 5: for the United States to quote unquote facilitate their entrance back,
Speaker 5: because now it's just a matter of being given a
Speaker 5: document that allows you to re enter the United States
Speaker 5: and perhaps a playing ride, though that would be potentially
Speaker 5: a subject of litigation. But the Al Savador cases troubled
Speaker 5: because of the fact that they're in detention, so that
Speaker 5: you would need al Savador to actually agree to levels
Speaker 5: individuals out of detention. But in South today, and it's
Speaker 5: not clear that these individuals will be in detention there,
Speaker 5: and so in past cases people have been allowed to
Speaker 5: re enter. The government has actually flown the people back
Speaker 5: into the country, and we'll see if that's what happens here.
Speaker 2: I'm sure everyone will understand habeas corpus by the time
Speaker 2: we're through with all these cases. Thanks so much, Leon.
Speaker 2: That's Leon Fresco, a partner at Holland and Knight. And
Speaker 2: that's it for this edition of The Bloomberg Law Show.
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