Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: A growing number of lawmakers on both sides of the
Speaker 2: isle are calling for the Justice Department to release all
Speaker 2: the files related to Jeffrey Epstein. This despite President Trump's
Speaker 2: efforts to downplay them, calling it a hoax and a scam.
Speaker 1: It's all been a big hoax.
Speaker 3: It's perpetrated by the Democrats, and some stupid Republicans and
Speaker 3: foolish Republicans fall.
Speaker 2: Into the net, and so they try and do the
Speaker 2: Democrats work. Last Thursday, Trump authorized the Justice Department to
Speaker 2: seek the release of grand jury testimony from the Epstein
Speaker 2: prosecution after The Wall Street Journal published a story alleging
Speaker 2: that he once sent a suggestive birthday letter to Epstein.
Speaker 2: But some Republicans, like Tennessee Congressman Tim Burchett, are still
Speaker 2: saying it's not enough.
Speaker 1: I think it's a start. I don't think we're ever
Speaker 1: going to get to the bottom of anything, all of it.
Speaker 1: This town doesn't give up its Sacred's very easy.
Speaker 2: Joining me is former federal prosecutor Robert Mintz, a partner
Speaker 2: McCarter in English, Bob So. The Trump administration asked a
Speaker 2: federal judge to unseal the transcripts in the Epstein case,
Speaker 2: this is an unusual motion. Why go through the bother
Speaker 2: of making it? What information would you really be able
Speaker 2: to get from those transcripts?
Speaker 4: Well, there's no question that the release of grand jury
Speaker 4: transcripts raises real privacy concerns about not only the victims,
Speaker 4: but even individuals whose names may have come up in
Speaker 4: connection with an investigation but were never charged, that would
Speaker 4: not have any opportunities to defend themselves if those names
Speaker 4: were released. The other thing about the grand jury testimony
Speaker 4: that's interesting is that typically the grand jury is used
Speaker 4: for the limited purpose of obtaining an indictment. Now, there
Speaker 4: are certain ccumstances where prosecutors will use a grand jury
Speaker 4: as more of an investigative tool, and in that instance
Speaker 4: you might have more witness testimony in front of a
Speaker 4: grand jury. But for the most part, when you're the prosecutor,
Speaker 4: the last thing you want to do is put a
Speaker 4: key witness in front of the grand jury, because that
Speaker 4: testimony would then have to be turned over to the
Speaker 4: defense council at some point.
Speaker 1: So most of the time.
Speaker 4: All of the critical witness interviews take place outside of
Speaker 4: the grand jury, assuming those witnesses are cooperating and they're
Speaker 4: done in front of an FBI agent or another investigative agent,
Speaker 4: and a report is prepared. But that's not grand jury material,
Speaker 4: and that's not the kind of information that will be
Speaker 4: released if a judge indeed decides to release these grand
Speaker 4: jury transcripts.
Speaker 2: Even if they release transcripts of let's say an FBI
Speaker 2: agent's testimony to the grand jury, you wouldn't see, for example,
Speaker 2: the notes of witness interviews or photos anything that's attached
Speaker 2: to that.
Speaker 4: No, in fact, it's quite the opposite. When the FBI
Speaker 4: interview is a witness outside of the grand jury, they
Speaker 4: create a report commonly down as an FBI three to
Speaker 4: zero two, and that is a detailed report of what
Speaker 4: a witness says during the course of an interview. But
Speaker 4: when a prosecutor presents is or her case to the
Speaker 4: grand jury, if they put an FBI agent on the stand,
Speaker 4: that testimony will be very focused and will be very summary,
Speaker 4: in the sense that all the prosecutor is looking for
Speaker 4: is enough evidence to show a grand jury that there's
Speaker 4: probable cause that the crime has been committed, and that
Speaker 4: there's enough evidence to move forward with the charges. So
Speaker 4: the reality is, as a prosecutor, you want to present
Speaker 4: as little information as you need in front of the
Speaker 4: grand jury in order to obtain that indictment.
Speaker 1: The other thing.
Speaker 4: About grand jury testimony is that hearstay is admissible, so
Speaker 4: that agents routinely will go in to the grand jury
Speaker 4: in order to paint an indictment and provide a summary
Speaker 4: of witness interviews. They don't have to provide all the
Speaker 4: d tails, and the witnesses themselves do not have to
Speaker 4: appear to present their testimony in order for the grand
Speaker 4: jury or rely on that testimony in deciding whether or
Speaker 4: not to return an indictment.
Speaker 2: And Bob talk a little bit about the importance of
Speaker 2: protecting grand jury secrecy.
Speaker 4: So grand juries are covered by something called the Federal
Speaker 4: Rule of Criminal Procedure sixty. It's a rule that every
Speaker 4: federal prosecutor is extremely familiar with, and it prohibits an
Speaker 4: attorney from the government or anybody really who is aware
Speaker 4: of matters occurring before a grand jury from disclosing any
Speaker 4: of that information. In fact, when you represent a witness
Speaker 4: who goes to testify before the grand jury, as the lawyer,
Speaker 4: even you are not permitted to go inside the grand
Speaker 4: jury only the witnesses, and you can debrief your client
Speaker 4: after they come out, because the witnesses themselves can talk
Speaker 4: about what their testimony was, but nobody else can talk
Speaker 4: about what goes on in the grand jury, not any
Speaker 4: of the grand jurors and not any of the federal prosecutors.
Speaker 4: And there's good reason for that. The grand jury is
Speaker 4: an investigative tool. Information is presented to a grand jury
Speaker 4: that may not ever result in an indictment. Charges may
Speaker 4: never be brought. And the concept behind Rule six e
Speaker 4: is that all of those proceedings are secret unless and
Speaker 4: until an indictment is returned by that grand jury. And
Speaker 4: it's done in order to preserve the privacy of victims
Speaker 4: and even the privacy of individuals who prosecutors may suspect
Speaker 4: have committed a crime, but ultimately if they're never charged.
Speaker 4: The idea that would be unfair to release damaging information
Speaker 4: about an individual who then never gets their day in
Speaker 4: court if they're never charged with a crime.
Speaker 2: What are the reasons that the Attorney General is giving
Speaker 2: for unsealing the grand jury testimony?
Speaker 4: Well, the Department of Justice filed in motion before Judge
Speaker 4: Richard Berman, who was the judge that was handling the
Speaker 4: Epstein case at the time that mister Epstein committed suicide,
Speaker 4: and the motion essentially said that disclosure of this grandjury
Speaker 4: testimony is necessary given the long standing and legitimate public
Speaker 4: interests in the Jeffrey Epstein case. It's going to be
Speaker 4: interesting to see how the judge handles that request because
Speaker 4: there are many cases that are very high profile of
Speaker 4: which there is long standing and legitimate public interests, and
Speaker 4: typically a judge will.
Speaker 1: Not release that information. Now in the.
Speaker 4: Second circuit, which is the Court of Appeal, where any
Speaker 4: decision made by the Trialey judge will ultimately end up,
Speaker 4: the law says judges have inherent authority to release grandeury
Speaker 4: materials in what's called special or exceptional circumstances. And what
Speaker 4: that really means is that it is up to the
Speaker 4: discretion of the judge whether or not to release this information.
Speaker 4: But it certainly suggests that it is done only in
Speaker 4: the most unusual of circumstances. And then even if information
Speaker 4: is released, it would have to be heavily redacted. And
Speaker 4: by that I mean that the names of victims and
Speaker 4: perhaps even the names of some individuals would be blacked
Speaker 4: out and not released to the public. So the reality
Speaker 4: is that this motion may take some time for the
Speaker 4: judge to decide, and then even if the judge decides
Speaker 4: to release that information, there may be parts of it
Speaker 4: that are blacked out and never released to the public.
Speaker 4: So we really don't know how critical this information ultimately
Speaker 4: will be even if the judge decides to grant the
Speaker 4: government's motion.
Speaker 2: There's also the fact that his co defendant, Glaine Maxwell,
Speaker 2: is appealing her conviction to the Supreme Court, and the
Speaker 2: Government acknowledged that in their papers, saying, while the Government
Speaker 2: recognizes that Maxwell's case is currently pending before the Supreme Court,
Speaker 2: it nonetheless moves this court for relief due to the
Speaker 2: intense public scrutiny into this matter. So will the judge
Speaker 2: have to weigh, you know, the possible impact on her
Speaker 2: case with the public interest.
Speaker 4: Yes, they're absolutely right, as you said, Ghlaine Maxwell, who
Speaker 4: was the former girlfriend of Jeffrey Epstein, was convicted in
Speaker 4: twenty twenty one on second craftking charges. As she's currently
Speaker 4: serving a twenty years sentence, But as you say, that
Speaker 4: conviction is going up on appeal and the court will
Speaker 4: be mindful of her rights and will try to make
Speaker 4: sure that nothing that is released here ultimately could be
Speaker 4: prejudicial to her. So there's an awful lot for the
Speaker 4: court to weigh in the balancing act of trying to
Speaker 4: figure out what, if any, information should be released. And
Speaker 4: then I think the real interesting question is, even if
Speaker 4: the judge does grant this motion and release some of
Speaker 4: this grand jury information, just how critical will it be
Speaker 4: in terms of answering the questions that seem to be
Speaker 4: motivating the Department of Justice to file this motion for
Speaker 4: the release of grand jury testimony.
Speaker 2: Some are suggesting a special counsel. Trump initially said I
Speaker 2: have nothing to do with that, but then the Press
Speaker 2: secretary said that Trump wouldn't recommend a special counsel. Could
Speaker 2: a special counsel get to the truth here?
Speaker 4: Well, there could be another type of investigator into exactly
Speaker 4: what the Department of Justice did, because there's lots of
Speaker 4: evidence that was gathered during that investigation that is not
Speaker 4: going to be part of grand jury testimony. For example,
Speaker 4: there's videos, there's photographs, other recordings, there's texts, there's emails.
Speaker 4: There's an enormous amount of information that was no doubt
Speaker 4: gathered by federal prosecutors during the course of this investigation.
Speaker 4: None of that information will be released based upon the
Speaker 4: government's motion. So there's lots of information that's still going
Speaker 4: to be out there, and I think the pressure is
Speaker 4: going to continue to mount to release more information. It is,
Speaker 4: I should say, a highly unusual circumstance here. It's highly
Speaker 4: unusual for the Attorney General of the United States to
Speaker 4: be asking a court to unseal grand jury testimony. That's
Speaker 4: even more unusual for the President of the United States
Speaker 4: to be weighing in on that question. So we're in
Speaker 4: a circumstance here where there is not a lot of
Speaker 4: precedence to see how the courts may look at this information. Generally,
Speaker 4: the worts are reluctant to release this type of information
Speaker 4: given the privacy concerns that are at stake here, and
Speaker 4: the concept that is simply unfair to release the names
Speaker 4: of individuals who may have been caught up an investigation
Speaker 4: but who are never ultimately charged with a crime.
Speaker 2: Is filing to get the grand jury transcripts more of
Speaker 2: a distraction because the information that people seem to be
Speaker 2: looking for is not going to be found in grand
Speaker 2: jury transcripts, but rather in the files. The Justice Department has.
Speaker 4: Given the mounting public pressure to release information and connect
Speaker 4: you with this investigation. The decision by the Department of
Speaker 4: Justice to seek the unsealing of the grand jury testimony
Speaker 4: is somewhat unusual because that testimony is going to be
Speaker 4: focused on building the case against Jeffrey Epstein, on the
Speaker 4: case against Glaine Maxwell, and specifically on the conduct that
Speaker 4: form the basis of the criminal charges against them, which
Speaker 4: means it's a narrowly foot focused investigation, and the grand
Speaker 4: jury testimony is likewise going to be narrowly focused on
Speaker 4: the evidence that they had to present to the grand
Speaker 4: jury in order to obtain those criminal charges. The remainder
Speaker 4: of the files are going to be much more far reaching.
Speaker 4: They're likely to involve other individuals and perhaps other activity
Speaker 4: that never made its way into either of those indictments.
Speaker 4: But then you raise the question of bringing in the
Speaker 4: names of victims and other individuals who were never charged
Speaker 4: with a crime, and balancing that against the groundswell of
Speaker 4: public interest to release this information.
Speaker 2: How long could this process take?
Speaker 4: At the end of the day, the government's motion to
Speaker 4: release this grand jury testimony is likely to take some
Speaker 4: time I think who can expect Judge Berman to take
Speaker 4: his time to go through the grand jury testimony and
Speaker 4: to consider what portions, if any, he is going to release.
Speaker 4: And then even if he does release information, it's likely
Speaker 4: it will not satisfy the public's desire to get more
Speaker 4: information about this case because so much of that information
Speaker 4: is likely not information that was ever presented to a
Speaker 4: grand jury. It remains in the investigatory files of the DODA,
Speaker 4: and the real question is will that information ever be released?
Speaker 2: I guess all you can say is we shall see.
Speaker 2: Thanks so much, Bob. That's former federal prosecutor Robert Mintz
Speaker 2: of Macarter and English. Coming up next on the Bloomberg
Speaker 2: Law Show, we'll take a look at the top immigration issues,
Speaker 2: including the question of whether the Trump administration will be
Speaker 2: able to deny bond to all migrants who entered the
Speaker 2: country illegally. That means they could be in detention for
Speaker 2: months or even years as they fight their deportations, and
Speaker 2: a federal judge says ICE can't use racial profiling in
Speaker 2: carrying out arrests. I'm June Grosso and you're listening to Bloomberg.
Speaker 2: The City of laws Autels has been a focus of
Speaker 2: the Trump administration's immigration crackdown, with complaints that ICE is
Speaker 2: roaming around car washes, home depots, and libraries and targeting
Speaker 2: Spanish speaking day laborers for arrest. Here's La Mayor Karen
Speaker 2: Bass And when.
Speaker 3: The administration came in, they said that they were going
Speaker 3: to go after violent gang members, drug dealers, human traffickers.
Speaker 3: I don't think that's what's happening at a day labor center.
Speaker 4: And home depot.
Speaker 3: You know, how do you go from a drug den
Speaker 3: to a home depot parking lot that terrifies people and
Speaker 3: then they run out, chasing them throughout the parking lot.
Speaker 2: Well, a federal judge has temporarily blocked ICE agents from
Speaker 2: using racial profiling to carry out indiscriminate immigration arrests. Joining
Speaker 2: me is an expert in immigration law, Leon Fresco, a
Speaker 2: partner at Hollnda Knight Leam. Before we even get to
Speaker 2: the legal question these ICE raids that the La Times
Speaker 2: reported that ICE agents have been sort of roaming around
Speaker 2: home depots and car washes, stopping brown skins, Spanish speaking
Speaker 2: day labors and others to arrest on immigration charges. Is
Speaker 2: this the way ICE has normally operated or is this
Speaker 2: something new.
Speaker 1: Well, there have been times in the last twenty five
Speaker 1: years that ICE has operated in this way. But if
Speaker 1: one is looking at the time arc of the last
Speaker 1: twenty five years and said group them into two buckets,
Speaker 1: times that ICE has not operated this way, and times
Speaker 1: that ICE has operated this way over the last twenty
Speaker 1: five years. More often than not, ICE has not operated
Speaker 1: this way. ICE has tried to go after people with
Speaker 1: final orders of removal, or people with criminal convictions, or
Speaker 1: people in targeted operations where there's something known about the operations,
Speaker 1: such as that it's a business that exploits their workers
Speaker 1: or is involved in some sort of trafficking, et cetera. Now,
Speaker 1: there have been times, most notably in two thousand and seven,
Speaker 1: two thousand and eight, in the last part of the
Speaker 1: Bush administration, and then beginning points in the Trump administration
Speaker 1: of the first term, where ICE had started to act
Speaker 1: in this manner, going around essentially trying to find people
Speaker 1: it can actually apprehend and place into removal proceedings. And
Speaker 1: this is the new norm. I would say, It's not
Speaker 1: something that is very common over the last twenty five years,
Speaker 1: but it is something that is within their mandate. They're
Speaker 1: permitted to go and try to find people who are
Speaker 1: not here with status and place them under arrest and
Speaker 1: place them into deportation proceedings and then actually deport them. Now,
Speaker 1: the problem is going to be the methods of how
Speaker 1: ICE operates. And this litigation is very fascinating in that
Speaker 1: this has been a debate between the pro immigration enforcement
Speaker 1: people and the pro what I would call, you know,
Speaker 1: relaxation on immigration enforcement people, where they've had this debate
Speaker 1: about what is it permissible for ICE to do in
Speaker 1: these operations? Are their limits to what it can do?
Speaker 1: And that's what was being debated in this case. And
Speaker 1: I think it's ultimately going to have to take the
Speaker 1: Supreme Court to adjudicate these issues.
Speaker 2: So Tom Holman, the Borders Are has said and echoing
Speaker 2: what the government attorney said in this case, that agents
Speaker 2: in deciding whether to stop a person can consider their location,
Speaker 2: their workplace, the particular work they're doing, clothing, et cetera.
Speaker 2: But the judge said that she found a sufficient amount
Speaker 2: of evidence that agents were using just that race language,
Speaker 2: a person's vocation, or the location they're at, such as
Speaker 2: a car wash, to form reasonable suspicion, and she ruled
Speaker 2: that ICE agents can't rely on those factors. Who do
Speaker 2: you think is right here?
Speaker 1: This is the most complicated area of the immigration law
Speaker 1: that one can imagine, because in every other area of
Speaker 1: the law, we don't allow our law enforcement to conduct
Speaker 1: a law enforcement based on quote unquote immutable factors because
Speaker 1: we don't like these sort of status crimes. We don't say,
Speaker 1: you know, go after only this race when it comes
Speaker 1: to this crime, or go after that gender, or go
Speaker 1: after people with a certain characteristic. We don't do it. It's illegal.
Speaker 1: It's not necessary. You can go after whatever the actual
Speaker 1: violation of the law is. So did you file your taxes?
Speaker 1: Did you steal from the store, whatever it may be,
Speaker 1: So you don't have to do this profiling. And so
Speaker 1: it's easy to say, if you're profiling, it's illegal, and
Speaker 1: that's the end of it, because the profiling has nothing
Speaker 1: to do with the underlying offense. Is the car stole
Speaker 1: and did somebody steal, did somebody not file some document,
Speaker 1: whatever it may be. The problem in immigration is this
Speaker 1: is a status offense. You're either here legally or you're
Speaker 1: not here legally. So what are the ndisha of a
Speaker 1: person who's not here legally? It is some of these things.
Speaker 1: You know, are you speaking in certain languages versus other languages.
Speaker 1: Are you engaging in behavior that looks like you're smuggling
Speaker 1: someone at that moment, that kind of thing. Now, obviously
Speaker 1: these things can be taken too far, and for sure
Speaker 1: that's the problem is if you're engaging in this profiling
Speaker 1: in a way where it's aggressive and it's all over
Speaker 1: the community, and it's everywhere, and anybody who speaks a
Speaker 1: non English language to their grandmother who happens to be
Speaker 1: here legally, but she never learned English for whatever reason,
Speaker 1: but she's here legally, And now everybody's being arrested because
Speaker 1: the ICE agent hears somebody speaking to their grandmother in
Speaker 1: a different language or something, or ICE arrest a bunch
Speaker 1: of tourists here to see some soccer game or something
Speaker 1: because they don't speak the language. Just like if I
Speaker 1: travel to Europe, I don't speak whatever language I'm in
Speaker 1: in my European country. If I'm suddenly being confronted by
Speaker 1: an immigration officer, you know, those are all tough issues.
Speaker 1: And so the question starts to become how that enforcement
Speaker 1: comes into play. What are the constraints, what are not
Speaker 1: the constraints and so I think what the group who
Speaker 1: is suing would say is ICE, you have to be
Speaker 1: operating from a list of people you're looking for and
Speaker 1: go look for them, and then that's how you can
Speaker 1: enforce immigration law in America. That's basically what the group
Speaker 1: who is suing is saying. And what ICE is saying
Speaker 1: is that constrains us way too much because that takes time.
Speaker 1: And in addition, every time we try to make lists
Speaker 1: like this, we're being thwarted in various different ways. You know,
Speaker 1: whether we try to make a list of criminals, the
Speaker 1: counties and the cities and the states who are quote
Speaker 1: unquote sanctuary jurisdiction don't allow us to make a list
Speaker 1: of criminals. They don't give us the names of people,
Speaker 1: so they make it harder for us to find those people.
Speaker 1: So we can't make a list of criminals in these places.
Speaker 1: If we try to get a list of people who
Speaker 1: are not using public benefits appropriately, we get thwarted by
Speaker 1: lawsuits that say you can't do that either. And so
Speaker 1: this is the problem. Is ISA is saying, we need
Speaker 1: to be able to arrest somebody, and if people are
Speaker 1: making our lives difficult in terms of the effort and
Speaker 1: the resources and the constraints to make these lists to
Speaker 1: go find people. Then what we'd like to do is
Speaker 1: to be able to question people essentially when we have
Speaker 1: a reasonable suspicion that they're not here legally, and ask
Speaker 1: them to produce identification that says they're here legally. This
Speaker 1: becomes super complicated, especially sometimes if you're just a US citizen,
Speaker 1: let's say, going for a jog. You don't have any
Speaker 1: legal duty when you're a US citizen going for a
Speaker 1: job to have any identification on you. But what if
Speaker 1: that means that you get arrested and you're put in
Speaker 1: detention for days or weeks until somebody figures out that
Speaker 1: you're in detention and can find the right document for you.
Speaker 1: So all of that becomes very complicated and messy, and
Speaker 1: the courts, I do not envy what they're gonna have
Speaker 1: to try to do to ultimately come to a solution
Speaker 1: that's reasonable. I don't think the kind of injunction that
Speaker 1: was issued here will be allowed to ultimately remain in
Speaker 1: its full form, which is essentially that I mean, it
Speaker 1: doesn't exactly say this, but what it is essentially saying
Speaker 1: is I has to know who they're going after before
Speaker 1: they go after that, meaning they have to say, here's
Speaker 1: a piece of paper called John Smith. I'm looking for
Speaker 1: John Smith. I'm going to apprehend John Smith, and I'm
Speaker 1: going to bring John Smith into detention. I don't think
Speaker 1: the ICE is going to be limited to just that,
Speaker 1: But the question is what is ICE going to be
Speaker 1: limited to, if anything, and if it's not limited to anything,
Speaker 1: that will also create its own set of complexities. But
Speaker 1: I will say this, just if anybody's been paying attention
Speaker 1: to the Supreme Court over the last ten or twenty years,
Speaker 1: they don't like cases where they sort of have to
Speaker 1: guess something up front and issue an injunction. They like
Speaker 1: what's called the as applied challenges, where you can actually
Speaker 1: go to them and say a certain behavior and then
Speaker 1: say is this behavior unconstitutional or not.
Speaker 2: The Trump administration says it's going to appeal that judge's ruling,
Speaker 2: so we'll see what happens there. You mentioned being in detention,
Speaker 2: and the Trump administration has declared that immigrants who arrived
Speaker 2: in the US illegally are no longer eligible for a
Speaker 2: bond hearing while they're fighting deportation proceedings in court. So
Speaker 2: that means mandatory indefinite detention for months or even years
Speaker 2: while the cases play out.
Speaker 1: Well, a lot of this is going to depend on
Speaker 1: the constraints of the space and the funding and everything
Speaker 1: that's available to detain people for removal proceedings. That's been
Speaker 1: the reason historically why many more people have gotten bond
Speaker 1: than have been released and have not been in detention
Speaker 1: than theoretically could have been placed in detention. But let's
Speaker 1: start with a more fundamental issue, because this is critically important,
Speaker 1: which is that immigration detention is not criminal detention. And
Speaker 1: that matters because the courts have held that in immigration,
Speaker 1: the people going through this system have far fewer rights
Speaker 1: than people going through the criminal courts because it's not
Speaker 1: a criminal issue. So you don't have a right to
Speaker 1: a jury trial, don't have a right to counsel, or
Speaker 1: any of these things. But why does that matter. That
Speaker 1: matters because since immigration is in the civil context and
Speaker 1: not in the criminal context, the government's ability to constitutionally
Speaker 1: detain someone, meaning you know, keep them locked up their
Speaker 1: freedom is gone, is much more limited. And the courts
Speaker 1: have recognized this that in the civil context, there's very
Speaker 1: few reasons to have people in civil detention, and so
Speaker 1: what the courts have held is that if there's a
Speaker 1: statute that Congress has said makes the detention mandatory, which
Speaker 1: is what happens in cases where people have criminal convictions,
Speaker 1: the only reason that's currently constitutional is if the detention
Speaker 1: is brief and targeted enough to get you through the
Speaker 1: proceeding quickly enough. And they have said, come to us
Speaker 1: with as applied challenges if the detention is too lengthy
Speaker 1: in this situation, you know, if you're taking it in
Speaker 1: a context where it's not a mandatory, statutory thing, and
Speaker 1: we know it's not because for decades administrations have said
Speaker 1: this is not mandatory. This is just now something that
Speaker 1: the administration is deciding to do. They're saying, we're not
Speaker 1: going to have bond hearings anymore. We're just going to
Speaker 1: put people in detention. We are taking an optional policy
Speaker 1: and making it mandatory that people have to be in
Speaker 1: detention while they're in removal proceedings, at least in the
Speaker 1: initial hearings. I think courts are going to say that
Speaker 1: that's illegal, and you have to give people a chance
Speaker 1: to have bond. Just like if you're going through the
Speaker 1: criminal process, you can have a bond hearing. So you know,
Speaker 1: there's plenty of people in criminal proceeding for murder who
Speaker 1: are out on bond while the murder proceeding is happening.
Speaker 1: Because what you're looking for is is the person likely
Speaker 1: to commit another crime? Are they likely to abscond, etc.
Speaker 1: Is the bond amount sufficient to make sure they'll come?
Speaker 1: All of those indisha are required also in the immigration context,
Speaker 1: and even more because it's a civil detention, which really
Speaker 1: is not something that the law is very fond of
Speaker 1: as opposed to a criminal detention, and so at least
Speaker 1: in the lower courts, I think this is going to
Speaker 1: be very tough for the administration to put this policy
Speaker 1: in place once the lawsuits get filed and rolling. But
Speaker 1: then again it's going to go up to the Supreme Court,
Speaker 1: and the Supreme Court is going to have to decide
Speaker 1: does the administration have the ability to just change from
Speaker 1: the Again, the previous twenty five years, the norm was
Speaker 1: people who didn't commit crimes could get bond hearings where
Speaker 1: a judge would decide, hey, can you be constrained by
Speaker 1: a high bond and other things such that you're not dangerous,
Speaker 1: you're not a risk of absconding or do you have
Speaker 1: to be placed in detention as opposed to just taking
Speaker 1: away this ability to who give people bond hearings whatsoever,
Speaker 1: which is what this policy does. We will see what
Speaker 1: the Supreme Court does. But in this context, the Supreme
Speaker 1: Court has only allowed it because it was congressionally mandated,
Speaker 1: it involved criminals, and it was for a short period
Speaker 1: of time. If this is going to be many, many
Speaker 1: more people and non criminals, and it will be much
Speaker 1: lengthier because you're putting more and more people into a
Speaker 1: system that still, at the least at the moment, has
Speaker 1: the same amount of immigration judges, which means that that
Speaker 1: just makes every case longer because you have more people
Speaker 1: going to the same number of immigration judges. I don't
Speaker 1: know if the Supreme Court is going to allow it,
Speaker 1: but again we'll have to see if they put any
Speaker 1: constraints on it in advance or do they make it
Speaker 1: again and as applied challenge where people have to come
Speaker 1: in let's say after six months or after a year,
Speaker 1: or after eighteen months and say, hey, I've been detained
Speaker 1: too long when my removal proceedings are pending, let me out.
Speaker 1: That's why we're gonna have to wait and see coming.
Speaker 2: Up a lawsuit over ICE agents arresting people outside immigration court.
Speaker 2: This is Bloomberg. I've been talking to immigration attorney Leon
Speaker 2: Fresco of Honda Knight about the Trump administration declaring that
Speaker 2: immigrants who arrived in the US illegally are no longer
Speaker 2: eligible for a bond hearing as they fight deportation proceedings
Speaker 2: in court. Leon, the Department of Homeland Security said that
Speaker 2: they revisited their legal position on detention by reinterpreting an
Speaker 2: immigration law from the nineteen nineties. So they're saying that
Speaker 2: under section two thirty five, which says shall be detained,
Speaker 2: they're saying that the interpretation before was inaccurate and it
Speaker 2: means must be detained right.
Speaker 1: And shall be detained means for the purposes of putting
Speaker 1: that into removal proceeding. Meaning what the statue says is
Speaker 1: ICE or Department of Homeland Insecurity, if you find someone
Speaker 1: who's undocumented, detain them, place them in removal proceedings. But
Speaker 1: it doesn't then say what you do with them after
Speaker 1: you've detained them and placed them in removal forceeedings. Can
Speaker 1: they get out on bond or can they not get
Speaker 1: out on bond, and for the last twenty five years,
Speaker 1: that answer has been they can get out on bond.
Speaker 1: And the reason it has been that they can get
Speaker 1: out on bond is for the reasons I'm saying, which
Speaker 1: is that because the Congress didn't specifically say, like it
Speaker 1: did in the criminal context, you can't release them. So
Speaker 1: here there is no such statute that says you can't
Speaker 1: release them. So you have to say that if Congress
Speaker 1: has a statute in one context that says you can't
Speaker 1: release them, that means that in this other context you
Speaker 1: probably can release them. This is going to be the
Speaker 1: question for the court is can the government constitutionally, in
Speaker 1: the civil context decide to not let people have the
Speaker 1: right to a bond hearing while their immigration proceedings are pending.
Speaker 1: And that's why the policy has been what it's been
Speaker 1: the last twenty five years. Is nobody thought that the
Speaker 1: government could get away with this. But we're going to see.
Speaker 1: We're going to see what the courts say. I don't
Speaker 1: think the lower courts will be friendly towards this position,
Speaker 1: especially in the jurisdictions where it's likely to be challenged,
Speaker 1: but it's possible the Supreme Court will say as they've
Speaker 1: been giving difference in some context to the Trump administration
Speaker 1: and immigration recently, that they are permitted to hold everybody
Speaker 1: in detention that's in the removal process, and then it
Speaker 1: will just be up to the constraints and the number
Speaker 1: of facilities that the Trump administration has. So that's what
Speaker 1: we're going to have to wait and see. But whether
Speaker 1: this detention is constitutional or not will depend on a
Speaker 1: number of factors, which also include how lengthy is the
Speaker 1: detention going to be, and are these people really demonstrated
Speaker 1: to be flight risks, et cetera. And all of this
Speaker 1: is going to be litigated in the court.
Speaker 2: Speaking of litigation, so, as we've discussed before, ICE agents,
Speaker 2: and this has gotten a lot of publicity, ICE agents
Speaker 2: have been arresting migrants who appear at immigration courts for
Speaker 2: previously scheduled hearings. The government will dismiss the deportation proceedings,
Speaker 2: and then when the migrants leave, there are ICE officers
Speaker 2: waiting in the hallway to take them into custody. So
Speaker 2: a group of immigrants and legal advocates filed a class
Speaker 2: action lawsuit last week to stop this. What do you
Speaker 2: think about their chances they're saying they're stripping them of
Speaker 2: rights afforded to them under immigration law and the Fifth Amendment.
Speaker 1: This is another of these very complicated cases, both policy
Speaker 1: wise and legally policy wise, because again, this is a
Speaker 1: place where Ice would say, fine, you don't want us
Speaker 1: racial profiling going to the home depot grabbing people in
Speaker 1: the middle of the three. Here's one of the easiest
Speaker 1: places for us to apprehend people and place them into detention,
Speaker 1: which is in the immigration course. They've already cleared the security,
Speaker 1: they don't have any weapons, et cetera. And you don't
Speaker 1: even want us to do this. That's what they would say.
Speaker 1: From their perspective. The people representing the foreign nationals would say,
Speaker 1: wait a second. These are the people who are following
Speaker 1: everything correctly. They're actually showing up to their court hearing.
Speaker 1: They're not absconding. They have a process. You just don't
Speaker 1: like how long the process is going to take with
Speaker 1: these individuals, so you want to place them into an
Speaker 1: expedited process. And by the way, the end result of
Speaker 1: placing them in this expedited process is that maybe seventy
Speaker 1: or eighty percent of them, after three or four weeks
Speaker 1: of detention, will go right back to the exact scenario
Speaker 1: they were in previously, and only maybe a fifth or
Speaker 1: a quarter of them will be able to be detained
Speaker 1: and deported on an expedited basis because they won't be
Speaker 1: able to meet the initial threshold of even having a
Speaker 1: credible asylum claims. But yeah, some number will. And then
Speaker 1: the question is is the juice worth the squeeze there,
Speaker 1: And that just will depend on where you're looking at
Speaker 1: it from. From the perspective of Ice, if that's an
Speaker 1: extra fifty thousand people they can deport in a year,
Speaker 1: they might say, that's very worth it to us, especially
Speaker 1: since we didn't have to go into the community and
Speaker 1: have guns blazing and have armor and all of this.
Speaker 1: But from the perspective of the immigrant Trice community, they
Speaker 1: would say, yeah, But now no one is showing up
Speaker 1: the court. And the whole point is you wanted people
Speaker 1: to show up that the court. They had a case,
Speaker 1: they were making their case. Now they have to make
Speaker 1: a different case. You're violating their due process because you're
Speaker 1: making them change the case that they had for no
Speaker 1: good reason. This is I think another case where I
Speaker 1: think there's likely to be success in the lower court.
Speaker 1: But I think the Supreme Court likely at the end
Speaker 1: of this probably stays any injunction, and behind the scenes,
Speaker 1: what I think they would be debating and contemplating would
Speaker 1: be some sort of context where they say ICE has
Speaker 1: to be able to arrest somebody for something, and for us,
Speaker 1: this is better than the whole depot scenario. And so
Speaker 1: this is where I think these practical realities start colliding
Speaker 1: with the laws. And certainly you wouldn't want to design
Speaker 1: a framework where people were terrified to go to immigration
Speaker 1: court because something bad was going to happen to them,
Speaker 1: even mid process. So the point is, yes, they may
Speaker 1: know that at the final hearing they will either win
Speaker 1: or be deported, fine, so that there's always that, But
Speaker 1: mid process, when you don't even think you have any
Speaker 1: fear of being deported, the fact that you would go
Speaker 1: to court for a check in hearing and be placed
Speaker 1: in detention that same day, I think that's alarming to people.
Speaker 1: And if the result is that people stop going to
Speaker 1: court because of that, then there can be perhaps a
Speaker 1: claim made that says encouraging people to basically end up
Speaker 1: having in absentia removal orders, because that's what happens when
Speaker 1: you don't go to court is you automatically forfeit your
Speaker 1: case and you can be removed because you were in absentia,
Speaker 1: you didn't show off the court, and so that's gonna
Speaker 1: has to be the argument that's made, and we'll have
Speaker 1: to see where the court come out on this.
Speaker 2: Lyne, it seems pretty clear at this point that they
Speaker 2: had said they're going to arrest criminals first. They're arresting
Speaker 2: the worst of the worst. They're not arresting the worst
Speaker 2: of the worst, or even those with criminal records. The
Speaker 2: latest ICE statistics show that June twenty ninth, there were
Speaker 2: fifty seven and sixty one people detained by ICE. Seventy
Speaker 2: one point seven percent had no criminal convictions. Why are
Speaker 2: they not going after the criminals first as they said
Speaker 2: they would.
Speaker 1: It's very hard, it's very time consuming, it's very resource intensive.
Speaker 1: They don't if they go to somebody's houns with a
Speaker 1: criminal case conviction, they don't show up with just one
Speaker 1: ICE agent as you've been seeing. They show up with
Speaker 1: multiple agents, they show up with a warrant. All of
Speaker 1: that takes time and effort and energy to do. And
Speaker 1: when they have one of these huge operations that they publicize,
Speaker 1: it maybe captures two hundred and fifty people, and it
Speaker 1: took many, many agents over many many days, and so
Speaker 1: it doesn't yield the kind of numbers they're looking for.
Speaker 1: They're looking to try to arrest thirty five hundred people
Speaker 1: a day. And if you are trying to arrest thirty
Speaker 1: five hundred people a day and get, you know, into
Speaker 1: a scenario where you're over a million people you're deporting
Speaker 1: in a year, then the only way to accomplish that
Speaker 1: is to try to arrest people without criminal convictions that
Speaker 1: you can find in other locations such as ice check
Speaker 1: in court, or people who you know were here legally
Speaker 1: but their status expired because they came in under one
Speaker 1: of the statuses that the Biden administration created, which were
Speaker 1: again you know, these are debates about whether those statuses
Speaker 1: were proper to create or not. But the point is
Speaker 1: these people are well known, they're out in the open,
Speaker 1: they were here legally, they're the easiest to apprehend. And
Speaker 1: so you do have some segment of the restrictionists individuals
Speaker 1: who say that's the people you should be going after.
Speaker 1: You need to get deported. Every single person who came
Speaker 1: in under the Biden administration, whether they came in illegally
Speaker 1: through the border or through one of these programs, and
Speaker 1: I think ICE has taken that rhetoric seriously, and that
Speaker 1: appears to be the large segment of who they're looking
Speaker 1: for are the people who enter, be it illegally or
Speaker 1: legally during the Biden administration, in addition to criminals, but again,
Speaker 1: as you pointed out, not the majority of criminals because
Speaker 1: of how resource intensive that process is.
Speaker 2: At this rate, they're not going to reach there are
Speaker 2: one million deportations in a year.
Speaker 1: Well at this rate, that's true. But they've just over
Speaker 1: the last month been given forty billion dollars, which is
Speaker 1: going to take a while to ramp up because they're
Speaker 1: first trying to bring back agents that had retired, So
Speaker 1: that's the first thing they're trying to do that they're
Speaker 1: gonna have to hire new agents. When they did this
Speaker 1: with the Border Patrol under the Bush administration, they had
Speaker 1: a lot of problems hiring people who didn't have criminal
Speaker 1: convictions and weren't otherwise employed in the marketplace. It's not
Speaker 1: this is not the easiest job to recruit people for it.
Speaker 1: Because people understand what they sign up to become ICE agents.
Speaker 1: It has a certain wear and tear to it. So
Speaker 1: it's not really the easiest job that the recruit for.
Speaker 1: And so from that standpoint, all of this is going
Speaker 1: to have to be brought up. But as these agents
Speaker 1: and resources start getting brought up, you will see the
Speaker 1: numbers get higher. But then the question is going to
Speaker 1: be fine, as the numbers get higher, now what And
Speaker 1: that's where the society starts pushing back. And you're starting
Speaker 1: to see this on that front too. So there's the
Speaker 1: resource constraints on why the numbers are low. Those are
Speaker 1: going to be taken away soon and the resources will
Speaker 1: permit higher numbers of removals. And then the question is
Speaker 1: when that's actually being implemented, what's that going to look
Speaker 1: like and feel like in your average big city And
Speaker 1: is there going to be the level of pushback where
Speaker 1: the president himself is getting contacted by numbers of people saying, hey,
Speaker 1: I know you're deporting XYZ, but don't support my person
Speaker 1: and he keeps hearing that over and over again, and
Speaker 1: everybody has a person that they care about, and now
Speaker 1: suddenly you know, it becomes a process where the exception
Speaker 1: swallow up the rule, and that's where we're going to
Speaker 1: have to wait and see what happens there.
Speaker 2: Yeah, and more Americans are souring on Trump's immigration crackdown.
Speaker 2: According to a new CBS news you gov survey, only
Speaker 2: forty four percent of Americans approve of Trump's handling of immigration.
Speaker 2: Fifty six percent disapprove. That approval rate is down ten
Speaker 2: points since March.
Speaker 1: Obviously, everybody debates who's pulling what and who's getting pulled
Speaker 1: and everything, but just in general, it's fair to say
Speaker 1: that the ramifications of large scale immigration enforcement to the
Speaker 1: level of being contemplated by the administration because people haven't
Speaker 1: actually lived through it and seen it there, are going
Speaker 1: to be just because it is inevitable things about that
Speaker 1: process that makes people uncomfortable, and we're going to have
Speaker 1: to see where the societal alarm bells are.
Speaker 2: Thanks so much, Leon. That's Leon Fresco of Honda Night
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
Speaker 2: Remember you can always get the latest legal news is
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