1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,720 --> 00:00:13,080 Speaker 2: In a high profile clash over presidential power, a sharply 3 00:00:13,160 --> 00:00:18,239 Speaker 2: divided Supreme Court allowed President Donald Trump to resume deporting 4 00:00:18,280 --> 00:00:23,360 Speaker 2: alleged Venezuelan gang members under an eighteenth century wartime law 5 00:00:23,720 --> 00:00:27,040 Speaker 2: by a five to four vote. The justices tossed out 6 00:00:27,040 --> 00:00:30,760 Speaker 2: a lower court order that had paused deportations under the 7 00:00:30,760 --> 00:00:35,239 Speaker 2: Alien Enemies Act, but ruled that detainees must have noticed 8 00:00:35,280 --> 00:00:37,879 Speaker 2: and a chance to make their case to a judge 9 00:00:38,120 --> 00:00:42,320 Speaker 2: before being deported. The Court was bitterly divided, with the 10 00:00:42,360 --> 00:00:46,840 Speaker 2: majority downplaying the significance of the decision and the minority, 11 00:00:47,040 --> 00:00:51,360 Speaker 2: the three liberal justices and conservative Justice Amy Coney Barrett, 12 00:00:51,640 --> 00:00:55,960 Speaker 2: complaining that the Court was rewarding the government for conduct 13 00:00:55,960 --> 00:00:59,200 Speaker 2: that posed an extraordinary threat to the rule of law. 14 00:01:00,080 --> 00:01:02,840 Speaker 2: Guest is Leon Fresco, a partner to Holland and Knight 15 00:01:03,520 --> 00:01:06,680 Speaker 2: and the former head of the Office of Immigration Litigation 16 00:01:06,920 --> 00:01:10,440 Speaker 2: in the Obama administration. Leon, let's get straight what the 17 00:01:10,480 --> 00:01:14,160 Speaker 2: Court did and didn't rule. So the justices cleared the 18 00:01:14,160 --> 00:01:18,720 Speaker 2: way for the government to continue using the Alien Enemies 19 00:01:18,760 --> 00:01:22,880 Speaker 2: Act to deport alleged Venezuelan gang members, but they didn't 20 00:01:23,000 --> 00:01:26,120 Speaker 2: rule on the core question of whether it was lawful 21 00:01:26,200 --> 00:01:28,679 Speaker 2: for Trump to use the Act in this way. 22 00:01:29,400 --> 00:01:32,880 Speaker 3: In the end, this was a very narrow ruling that 23 00:01:32,959 --> 00:01:36,480 Speaker 3: really came down to whether the district court in the 24 00:01:36,520 --> 00:01:41,280 Speaker 3: District of Columbia was the correct forum for challenges of 25 00:01:41,319 --> 00:01:44,400 Speaker 3: the use of the Alien Enemies Act. And what the 26 00:01:44,440 --> 00:01:47,480 Speaker 3: Supreme Court said in a five to four decision was 27 00:01:47,800 --> 00:01:51,480 Speaker 3: that if someone wanted to challenge their detention and or 28 00:01:51,640 --> 00:01:55,080 Speaker 3: removal under the Alien Enemies Act, they had to do 29 00:01:55,120 --> 00:02:00,560 Speaker 3: it in a habeas corpus claim, not an administrative procedures claim, 30 00:02:01,120 --> 00:02:04,160 Speaker 3: and that the habeas corpus claim needed to be filed 31 00:02:04,560 --> 00:02:08,560 Speaker 3: in the location of the detention facility where they were held. 32 00:02:08,760 --> 00:02:12,880 Speaker 3: So what had happened was when the President had signed 33 00:02:12,919 --> 00:02:17,520 Speaker 3: the order invoking the Alien Enemies Act, these individuals were 34 00:02:17,520 --> 00:02:20,400 Speaker 3: in the middle of being transferred, and it wasn't clear 35 00:02:20,480 --> 00:02:23,720 Speaker 3: what kind of law applied in this situation. There was 36 00:02:23,760 --> 00:02:27,440 Speaker 3: some bad case law from twenty twenty where just as 37 00:02:27,440 --> 00:02:30,840 Speaker 3: Alito had written that you couldn't use habeas the challenge 38 00:02:30,880 --> 00:02:34,160 Speaker 3: removal orders, and so it wasn't clear who could do what, 39 00:02:34,840 --> 00:02:39,320 Speaker 3: And so the lawyers for the individuals that were detained 40 00:02:39,480 --> 00:02:43,760 Speaker 3: under this Alien Enemies Act proclamation filed a lawsuit under 41 00:02:43,760 --> 00:02:48,280 Speaker 3: the Administrative Procedures Act challenging what was a proclamation. So 42 00:02:48,320 --> 00:02:52,239 Speaker 3: that was an administrative procedure in the District Court of Columbia, 43 00:02:52,680 --> 00:02:55,520 Speaker 3: and that is where there was this oral injunction not 44 00:02:55,639 --> 00:02:59,959 Speaker 3: to deport people. And then that oral order turned into 45 00:03:00,120 --> 00:03:02,640 Speaker 3: written order. But by the time it was the planes 46 00:03:02,680 --> 00:03:06,280 Speaker 3: that already landed in El Salvador, and the case continue 47 00:03:06,320 --> 00:03:08,480 Speaker 3: up to the Supreme Court. But now the Supreme Court 48 00:03:08,520 --> 00:03:13,120 Speaker 3: said that lawsuit in DC under the Administrative Procedures Act 49 00:03:13,360 --> 00:03:16,919 Speaker 3: was incorrect and instead what needed to happen was there 50 00:03:16,960 --> 00:03:21,560 Speaker 3: needed to be a habeas corpus claim. So the good 51 00:03:21,639 --> 00:03:25,320 Speaker 3: news in terms of where we're at in this decision 52 00:03:26,000 --> 00:03:31,880 Speaker 3: is there isn't really yet any interpretation one way or 53 00:03:31,880 --> 00:03:36,480 Speaker 3: the other about anything substantive related to this Act. There's 54 00:03:36,640 --> 00:03:40,120 Speaker 3: just a decision that that lawsuit needs to take place 55 00:03:40,160 --> 00:03:42,640 Speaker 3: at the moment where they're held, which is the Southern 56 00:03:42,640 --> 00:03:46,520 Speaker 3: District of Texas, which is in South Texas. Now, the 57 00:03:46,600 --> 00:03:50,800 Speaker 3: other thing that's very interesting is all nine justices, even 58 00:03:50,840 --> 00:03:54,800 Speaker 3: though it was a five to four decision agreed that 59 00:03:54,960 --> 00:03:59,680 Speaker 3: the Alien Enemies Act was something that could be challenged 60 00:03:59,720 --> 00:04:04,760 Speaker 3: in meaning that a person who is detained and that 61 00:04:04,800 --> 00:04:07,520 Speaker 3: the government wants to deport under the Alien Enemies Act 62 00:04:07,960 --> 00:04:12,160 Speaker 3: can ask for review on all of the following issues. 63 00:04:12,240 --> 00:04:17,279 Speaker 3: Number one, was the act properly invoked? Second? Was the 64 00:04:17,400 --> 00:04:22,120 Speaker 3: Act properly invoked as to this individual? And third does 65 00:04:22,160 --> 00:04:25,840 Speaker 3: this individual have other defenses even if it was properly 66 00:04:25,880 --> 00:04:30,120 Speaker 3: invoked in order to avoid deportation? All of those things 67 00:04:30,640 --> 00:04:34,520 Speaker 3: can be challenged, according to the Supreme Court under a 68 00:04:34,560 --> 00:04:37,440 Speaker 3: writ of habeas corpus, which was the original way people 69 00:04:37,520 --> 00:04:40,919 Speaker 3: used to challenge their deportation for over one hundred years, 70 00:04:41,400 --> 00:04:44,520 Speaker 3: but that had been foreclosed. In twenty twenty two, the 71 00:04:44,600 --> 00:04:48,320 Speaker 3: Court had reopened it as a venue for challenging a 72 00:04:48,440 --> 00:04:52,719 Speaker 3: deportation in this context of the Alien Enemies Act. So 73 00:04:53,560 --> 00:04:57,760 Speaker 3: now at least there is some comfort, I guess. I 74 00:04:57,760 --> 00:05:01,520 Speaker 3: would say that there aren't people in the United States 75 00:05:02,000 --> 00:05:06,760 Speaker 3: who can be just detained and deported without any due process, 76 00:05:07,160 --> 00:05:11,080 Speaker 3: which was an argument that was being made, and now 77 00:05:11,200 --> 00:05:14,680 Speaker 3: that is not the case. All nine justices in the 78 00:05:14,680 --> 00:05:16,839 Speaker 3: Supreme Court have said otherwise. 79 00:05:17,600 --> 00:05:20,919 Speaker 2: So the justices might have agreed on the fact that 80 00:05:21,240 --> 00:05:26,240 Speaker 2: the detainees should get notice and a review before being deported, 81 00:05:26,680 --> 00:05:31,000 Speaker 2: But there was a sharply worded and fervent descent. Justice 82 00:05:31,000 --> 00:05:34,320 Speaker 2: Sodo Mayor said the court's decision to rule now is 83 00:05:34,360 --> 00:05:38,560 Speaker 2: as inexplicable as it's dangerous. She warned of life and 84 00:05:38,640 --> 00:05:42,840 Speaker 2: death consequences. Complain that the court was creating new law 85 00:05:42,960 --> 00:05:47,120 Speaker 2: on the emergency docket. So while the majority tried to 86 00:05:47,120 --> 00:05:49,880 Speaker 2: make it, oh, this isn't about much, we all agreed 87 00:05:49,920 --> 00:05:52,040 Speaker 2: on this, the descent is furious. 88 00:05:52,880 --> 00:05:56,200 Speaker 3: Well, the concern, I think is of the following nature. 89 00:05:56,600 --> 00:06:00,440 Speaker 3: Even after this decision was issued by the Supreme Court 90 00:06:00,480 --> 00:06:04,200 Speaker 3: that basically said, this is just about whether it's about 91 00:06:04,200 --> 00:06:07,560 Speaker 3: a habeas case or about an administrative procedure at case, 92 00:06:07,720 --> 00:06:10,039 Speaker 3: and whether it should be filed in DC or whether 93 00:06:10,080 --> 00:06:12,440 Speaker 3: it should be filed in the district where people are 94 00:06:12,440 --> 00:06:14,880 Speaker 3: being detained. So that was it. That was the only 95 00:06:15,000 --> 00:06:20,120 Speaker 3: thing that was decided in this case, because theoretically or technically, 96 00:06:20,480 --> 00:06:23,800 Speaker 3: the order from the District Court judge in DC was 97 00:06:23,880 --> 00:06:27,880 Speaker 3: vacated because the DC Court no longer was the right forum. 98 00:06:27,920 --> 00:06:31,360 Speaker 3: The forum needs to be in South Texas. You already 99 00:06:31,480 --> 00:06:36,400 Speaker 3: had tweets coming from the administration saying that the judge 100 00:06:36,400 --> 00:06:41,279 Speaker 3: has been overruled and deportations will immediately begin again to 101 00:06:41,880 --> 00:06:45,159 Speaker 3: El Salvador of Venezuelan people. And so that was the 102 00:06:45,240 --> 00:06:49,840 Speaker 3: concern Justice sort Of Mayor was voicing, was, how is 103 00:06:49,880 --> 00:06:53,800 Speaker 3: this court to guarantee that more people won't now be 104 00:06:53,960 --> 00:06:59,200 Speaker 3: deported during this very short interim process where people are 105 00:06:59,240 --> 00:07:04,360 Speaker 3: supposed to now challenge their deportation in the Southern District 106 00:07:04,440 --> 00:07:08,279 Speaker 3: of Texas, because now those people have to file another 107 00:07:08,880 --> 00:07:11,960 Speaker 3: complaint and they need to go through it. And yes, 108 00:07:12,000 --> 00:07:13,680 Speaker 3: it's true the Supreme Court says they have to have 109 00:07:13,720 --> 00:07:16,280 Speaker 3: an opportunity to do it, but they don't say how 110 00:07:16,360 --> 00:07:21,080 Speaker 3: many days, what is the opportunity, et cetera. And so 111 00:07:21,640 --> 00:07:24,960 Speaker 3: maybe the United States government takes the position that, well, 112 00:07:25,000 --> 00:07:27,920 Speaker 3: if you didn't file it within fifteen minutes of the 113 00:07:28,000 --> 00:07:31,520 Speaker 3: Supreme Court decision, then you've lost the opportunity in the 114 00:07:31,560 --> 00:07:34,280 Speaker 3: notice to do this and we can start deporting people again. 115 00:07:34,360 --> 00:07:38,680 Speaker 3: I don't know how much leeway the administration is going 116 00:07:38,760 --> 00:07:42,080 Speaker 3: to take with regard to what is an adequate amount 117 00:07:42,120 --> 00:07:44,920 Speaker 3: of notice, But in any case, that was the concern 118 00:07:45,400 --> 00:07:49,240 Speaker 3: that Justice Soto Mayor was voicing there, and she did 119 00:07:49,320 --> 00:07:53,960 Speaker 3: try to say in order to try to prevent such 120 00:07:53,960 --> 00:07:57,280 Speaker 3: a scenario. And this was a sentence that even just 121 00:07:57,320 --> 00:08:00,680 Speaker 3: as Tony Barrett actually signed on to, she signed on 122 00:08:00,760 --> 00:08:03,480 Speaker 3: the parts of the decision and not others. She said 123 00:08:03,560 --> 00:08:06,160 Speaker 3: that this is a very notable sentence. To the extent 124 00:08:06,280 --> 00:08:11,000 Speaker 3: the government removes even one individual without affording him notice 125 00:08:11,040 --> 00:08:15,000 Speaker 3: and a meaningful opportunity to file and pursue habeas relief, 126 00:08:15,360 --> 00:08:18,160 Speaker 3: it does so indirect contravention of an edict by the 127 00:08:18,240 --> 00:08:21,480 Speaker 3: United States Supreme Court. So she's trying to say, don't 128 00:08:21,640 --> 00:08:24,200 Speaker 3: dare do this. But in the end, there was no 129 00:08:24,800 --> 00:08:27,680 Speaker 3: time frame given about what is adequate notice and a 130 00:08:27,680 --> 00:08:31,680 Speaker 3: meaningful opportunity here, and so this is why she used 131 00:08:31,680 --> 00:08:35,800 Speaker 3: such scathing language. And then finally she was saying, why 132 00:08:35,840 --> 00:08:40,040 Speaker 3: have we decided in a matter of hours that you 133 00:08:40,160 --> 00:08:43,400 Speaker 3: don't have administrative PROCEDURECT relief in a case like this, 134 00:08:43,840 --> 00:08:46,960 Speaker 3: and that habeas is the only thing that's necessary when 135 00:08:47,000 --> 00:08:51,559 Speaker 3: this is such a complicated legal question. Normally, we would 136 00:08:51,840 --> 00:08:54,680 Speaker 3: let the lower courtway in and then let other appellate 137 00:08:54,720 --> 00:08:57,199 Speaker 3: courtsway in, and then we'd have the benefit of all 138 00:08:57,240 --> 00:09:00,760 Speaker 3: of this analysis to make such a decision. Here we're 139 00:09:00,800 --> 00:09:03,319 Speaker 3: just making this up on the fly in one of 140 00:09:03,400 --> 00:09:07,760 Speaker 3: the most important constitutional contexts possible. So that was her 141 00:09:07,800 --> 00:09:10,400 Speaker 3: other criticism of what the majority did there. 142 00:09:11,280 --> 00:09:14,240 Speaker 2: I mean, the reason that Trump administration used the ailing 143 00:09:14,400 --> 00:09:17,280 Speaker 2: enemy sector is because they wanted to deport people quickly 144 00:09:17,360 --> 00:09:21,319 Speaker 2: without any process. So in that sense, if they follow 145 00:09:21,440 --> 00:09:24,880 Speaker 2: what the Supreme Court says, it's a loss for them 146 00:09:24,920 --> 00:09:26,920 Speaker 2: because now you have process involved. 147 00:09:28,120 --> 00:09:31,040 Speaker 3: Correct, This will now make it longer. Although it's not 148 00:09:31,200 --> 00:09:36,520 Speaker 3: as long as an actual immigration court proceeding where you 149 00:09:36,600 --> 00:09:38,680 Speaker 3: have to go to the immigration courts and the Board 150 00:09:38,679 --> 00:09:42,480 Speaker 3: of Immigration Appeals and then potentially a petition for review 151 00:09:42,520 --> 00:09:45,800 Speaker 3: in the Circuit Court of Appeals. It won't be that long. 152 00:09:46,320 --> 00:09:52,400 Speaker 3: It nevertheless will have some procedure involved in it. Unclear 153 00:09:52,480 --> 00:09:56,240 Speaker 3: how many days a person will be given to file 154 00:09:56,280 --> 00:10:00,240 Speaker 3: a habeas who's detained under this proclamation, but it is 155 00:10:00,240 --> 00:10:02,680 Speaker 3: clear they have to be given some amount of time. 156 00:10:03,240 --> 00:10:06,120 Speaker 3: And then the question is when they file this habeas, Well, 157 00:10:06,120 --> 00:10:10,400 Speaker 3: how long is a district court going to take in 158 00:10:10,520 --> 00:10:13,280 Speaker 3: order to make a decision in a particular case? Is 159 00:10:13,320 --> 00:10:16,760 Speaker 3: this a trial? What actually happens here? So, how does 160 00:10:16,800 --> 00:10:19,800 Speaker 3: someone prove they're in this gang or not in this gang? 161 00:10:20,280 --> 00:10:22,640 Speaker 3: All of that will need to be worked out, and 162 00:10:22,679 --> 00:10:26,160 Speaker 3: so depending this could still be a very short process, 163 00:10:26,280 --> 00:10:28,800 Speaker 3: or this could be a process just like any other 164 00:10:28,840 --> 00:10:31,839 Speaker 3: federal litigation that could take over a year or two 165 00:10:31,960 --> 00:10:34,959 Speaker 3: years to resolve. And I think that all still needs 166 00:10:35,000 --> 00:10:38,520 Speaker 3: to be fleshed out and work through in these various 167 00:10:38,600 --> 00:10:40,960 Speaker 3: lawsuits that are now going to happen in the southern 168 00:10:41,000 --> 00:10:44,000 Speaker 3: District of Texas or maybe another location. 169 00:10:44,720 --> 00:10:47,839 Speaker 2: Let's look in the future. So a Venezuelan is given 170 00:10:47,960 --> 00:10:50,240 Speaker 2: notice by the government we're going to deport you to 171 00:10:50,400 --> 00:10:53,559 Speaker 2: l Salvador, that person has to get a lawyer right 172 00:10:53,559 --> 00:10:55,840 Speaker 2: away to file a habeas corpus petition. 173 00:10:56,800 --> 00:10:57,199 Speaker 1: Correct. 174 00:10:57,280 --> 00:11:01,040 Speaker 3: Presumably, the way that this would work much every context 175 00:11:01,160 --> 00:11:04,319 Speaker 3: is you would get this notice after you've been detained 176 00:11:04,720 --> 00:11:07,120 Speaker 3: by Ice. It seems very unlikely that if you were 177 00:11:07,160 --> 00:11:09,960 Speaker 3: quote unquote an alien enemy, they would just let you 178 00:11:10,440 --> 00:11:13,480 Speaker 3: walk around in public. So what would happen is Ice 179 00:11:13,480 --> 00:11:16,320 Speaker 3: would come get you, pick you up somewhere, put you 180 00:11:16,400 --> 00:11:19,400 Speaker 3: in detention, give you this notice, and then once you 181 00:11:19,520 --> 00:11:23,000 Speaker 3: got this notice, you'd have whatever amount of days that's 182 00:11:23,120 --> 00:11:26,400 Speaker 3: in that notice to find yourself an attorney and file 183 00:11:26,440 --> 00:11:29,320 Speaker 3: a haviast because if you don't then you could theoretically 184 00:11:29,679 --> 00:11:35,520 Speaker 3: be deported to El Salvador under this proclamation. Now, perhaps 185 00:11:35,559 --> 00:11:39,000 Speaker 3: one day there will be a writ large injunction that 186 00:11:39,120 --> 00:11:42,920 Speaker 3: prevents the use of the Alien Enemies Act in this context, 187 00:11:43,040 --> 00:11:47,120 Speaker 3: but until that kind of injunction is imposed yes on 188 00:11:47,160 --> 00:11:50,800 Speaker 3: an individual by individual basis, people will have to file 189 00:11:50,880 --> 00:11:55,440 Speaker 3: these habeas lawsuits in federal court, either by themselves or 190 00:11:55,480 --> 00:11:58,600 Speaker 3: with an attorney before the removal can be accomplished. And 191 00:11:58,679 --> 00:12:02,880 Speaker 3: then the question is, well, okay, what does filing that 192 00:12:03,000 --> 00:12:06,560 Speaker 3: claim mean. Does that mean there's an automatic stay or 193 00:12:06,559 --> 00:12:09,079 Speaker 3: do you actually have to get a say of removal 194 00:12:09,480 --> 00:12:12,320 Speaker 3: issued by the court as part of this abeas. And 195 00:12:12,400 --> 00:12:14,920 Speaker 3: if you actually have to get a say, that's a 196 00:12:15,000 --> 00:12:17,520 Speaker 3: much more difficult burden because there you have to show 197 00:12:17,520 --> 00:12:20,760 Speaker 3: you have a likelihood of success than just filing the 198 00:12:20,800 --> 00:12:23,960 Speaker 3: complaint and that that becomes an automatic stay. And so 199 00:12:24,120 --> 00:12:25,640 Speaker 3: all of these things are going to have to be 200 00:12:25,679 --> 00:12:29,480 Speaker 3: worked out, and so it can easily be foreseen that 201 00:12:29,559 --> 00:12:31,840 Speaker 3: the government might take the position, well, if a court 202 00:12:31,880 --> 00:12:36,079 Speaker 3: hasn't stayed your removal, it doesn't matter that you filed it. 203 00:12:36,440 --> 00:12:38,960 Speaker 3: You actually have to get a say in order to 204 00:12:38,960 --> 00:12:41,120 Speaker 3: get it removed. And so the question is going to be. 205 00:12:41,160 --> 00:12:44,200 Speaker 3: How aggressive is the government going to be and trying 206 00:12:44,240 --> 00:12:48,600 Speaker 3: to find ambiguities and loopholes in order to keep supporting 207 00:12:48,600 --> 00:12:51,440 Speaker 3: people into Osalvador, or are they going to play this 208 00:12:51,559 --> 00:12:55,760 Speaker 3: more conservatively and just wait until they actually have an 209 00:12:55,880 --> 00:12:59,559 Speaker 3: order that permits a removal under the alien enemy side. 210 00:12:59,800 --> 00:13:04,720 Speaker 2: And this also means that the government can basically choose 211 00:13:04,760 --> 00:13:09,360 Speaker 2: the jurisdiction that the habeas corpus proceedings want to be 212 00:13:09,400 --> 00:13:13,520 Speaker 2: heard in because they decide where to hold the detainees. 213 00:13:13,760 --> 00:13:16,880 Speaker 2: And for example, the courts in Texas are not usually 214 00:13:16,920 --> 00:13:21,360 Speaker 2: as friendly to these kind of immigration claims then the 215 00:13:21,400 --> 00:13:25,240 Speaker 2: courts perhaps in DC or Manhattan. 216 00:13:25,720 --> 00:13:31,240 Speaker 3: Two points there. One. This is theoretically true unless basically 217 00:13:31,320 --> 00:13:36,080 Speaker 3: every Venezuelan decides to have a pre written habeas petition 218 00:13:36,200 --> 00:13:39,360 Speaker 3: ready to go that could be filed within seconds of 219 00:13:39,400 --> 00:13:43,679 Speaker 3: their apprehension in the jurisdiction they live in. Then theoretically 220 00:13:43,840 --> 00:13:47,320 Speaker 3: that would have that place would have jurisdiction over the 221 00:13:48,040 --> 00:13:50,960 Speaker 3: over the havieas petition because they would have been apprehended 222 00:13:51,520 --> 00:13:54,800 Speaker 3: in that location when the habeast was filed. So if 223 00:13:54,840 --> 00:13:57,640 Speaker 3: you theoretically did that so sort of in the same way, 224 00:13:57,679 --> 00:14:00,680 Speaker 3: one would have a will that was ready, God forbid 225 00:14:00,679 --> 00:14:05,239 Speaker 3: if they died, if a Venezuelan decided. Look, I'm a Venezuelan, 226 00:14:05,320 --> 00:14:08,520 Speaker 3: so I am theoretically subject, no matter how nice of 227 00:14:08,559 --> 00:14:11,400 Speaker 3: a person I am, to being apprehended as a gang 228 00:14:11,440 --> 00:14:15,120 Speaker 3: member and being deported to El Salvador. I'm going to 229 00:14:15,160 --> 00:14:19,520 Speaker 3: prehmptively have this complaint ready and have a lawyer on 230 00:14:19,680 --> 00:14:22,720 Speaker 3: call so that my family can file this right now 231 00:14:22,760 --> 00:14:27,200 Speaker 3: in New York or Maryland or California or wherever. Then 232 00:14:27,280 --> 00:14:30,720 Speaker 3: theoretically that court would have jurisdiction. But if you don't 233 00:14:30,720 --> 00:14:34,400 Speaker 3: file the avieas until you get to your location, which 234 00:14:34,440 --> 00:14:37,200 Speaker 3: is the location the government wants you to file your 235 00:14:37,240 --> 00:14:40,080 Speaker 3: habeas in, then that's where you're going to be stuck 236 00:14:40,360 --> 00:14:43,120 Speaker 3: filing your habeas. So that's one aspect in terms of 237 00:14:43,240 --> 00:14:47,440 Speaker 3: who has jurisdiction. The jurisdiction is the place you're at 238 00:14:47,560 --> 00:14:50,760 Speaker 3: at the time the case is filed. That's where the 239 00:14:50,880 --> 00:14:55,280 Speaker 3: jurisdiction lies. So that's the first part of this. The 240 00:14:55,320 --> 00:14:58,640 Speaker 3: second part of this is that just as sort of 241 00:14:58,680 --> 00:15:02,600 Speaker 3: mayor actually say something which I don't recall any other 242 00:15:02,720 --> 00:15:05,480 Speaker 3: Supreme Court justice saying, but they may have, But I 243 00:15:05,600 --> 00:15:09,640 Speaker 3: just noticed that in her this sense talking about forum 244 00:15:09,680 --> 00:15:13,000 Speaker 3: shopping by the government and that some judges were more 245 00:15:13,200 --> 00:15:17,440 Speaker 3: disposed to these claims than others. And that's usually something 246 00:15:17,560 --> 00:15:21,800 Speaker 3: very taboo that the courts don't want to admit actutely exists. 247 00:15:22,200 --> 00:15:25,240 Speaker 3: But here she sort of blatantly says that there's this 248 00:15:25,360 --> 00:15:29,120 Speaker 3: forum shopping and these judges that are more favorable than others, 249 00:15:29,520 --> 00:15:31,520 Speaker 3: which is sort of a thing court shouldn't want to 250 00:15:31,520 --> 00:15:35,760 Speaker 3: do because it sort of delegitimizes the court writ large. 251 00:15:36,080 --> 00:15:38,600 Speaker 3: But she goes ahead and says it, which I also 252 00:15:38,640 --> 00:15:40,120 Speaker 3: found interesting in her descent. 253 00:15:41,160 --> 00:15:44,840 Speaker 2: Coming up next, what about the Venezuelans already imprisoned in 254 00:15:44,880 --> 00:15:49,680 Speaker 2: El Salvador. This is Bloomberg. I've been talking to immigration 255 00:15:49,800 --> 00:15:53,920 Speaker 2: law expert Leon Fresco of Holliday Knight about a sharply 256 00:15:54,000 --> 00:15:59,200 Speaker 2: divided Supreme Court allowing President Trump to resume deporting alleged 257 00:15:59,280 --> 00:16:05,120 Speaker 2: Venezuelan gang members under an eighteenth century wartime law. It 258 00:16:05,160 --> 00:16:08,880 Speaker 2: seems like the Chief Justice and Justice Barrett are sort 259 00:16:08,920 --> 00:16:14,120 Speaker 2: of switching sides in some of these emergency Trump applications. 260 00:16:14,400 --> 00:16:17,880 Speaker 2: Barrett sided with the liberals. In this case, the Chief 261 00:16:18,000 --> 00:16:22,760 Speaker 2: sided with the liberals over notwithholding money for teacher training programs. 262 00:16:23,320 --> 00:16:26,160 Speaker 2: With the liberals always being in dissent, do you see 263 00:16:26,160 --> 00:16:28,960 Speaker 2: any reason why the sort of middle of the court 264 00:16:29,320 --> 00:16:31,920 Speaker 2: justices ended up where they did in these cases. 265 00:16:32,360 --> 00:16:36,080 Speaker 3: I think it's not a line in that case. There's 266 00:16:36,120 --> 00:16:40,800 Speaker 3: a line in a different case, which is the Fourth 267 00:16:40,800 --> 00:16:45,440 Speaker 3: Circuit Review Judge Wilkinson. It's a really powerful line where 268 00:16:45,480 --> 00:16:49,680 Speaker 3: he talks about there's two different concerns here and he 269 00:16:49,800 --> 00:16:54,200 Speaker 3: calls them both legitimate. Which is one, people are very concerned. 270 00:16:54,200 --> 00:16:59,280 Speaker 3: They now believe that this government is inclined to detain 271 00:16:59,440 --> 00:17:03,200 Speaker 3: and the poor individuals without any opportunity for error correction 272 00:17:03,760 --> 00:17:07,240 Speaker 3: of any kind, and that that is a very scary proposition, 273 00:17:07,400 --> 00:17:10,919 Speaker 3: no matter who is involved. And then the second is 274 00:17:11,359 --> 00:17:16,160 Speaker 3: that the courts themselves, because of this fear, may be 275 00:17:16,240 --> 00:17:20,880 Speaker 3: forced to take such extraordinary actions that the courts are 276 00:17:20,920 --> 00:17:26,159 Speaker 3: also overstepping very long held norms of constitutional law. And 277 00:17:26,240 --> 00:17:29,240 Speaker 3: so the question is who's right and who's wrong in 278 00:17:29,280 --> 00:17:31,760 Speaker 3: these situations. And that's why you have these middle of 279 00:17:31,840 --> 00:17:36,080 Speaker 3: the road justices caught betwixt them between because they are 280 00:17:36,160 --> 00:17:39,919 Speaker 3: rightfully concerned about what president are we setting if we 281 00:17:40,000 --> 00:17:43,760 Speaker 3: say there's no role for courts in a world where 282 00:17:43,800 --> 00:17:48,480 Speaker 3: the government chooses to literally detain any individuals and say 283 00:17:48,480 --> 00:17:52,080 Speaker 3: there's no due process if we make a mistake here. So, Okay, 284 00:17:52,240 --> 00:17:55,120 Speaker 3: this person was a US citizen, but now they're in Nolsalvador, 285 00:17:55,160 --> 00:17:57,959 Speaker 3: there's nothing we can do about it. Is that really 286 00:17:58,320 --> 00:18:02,360 Speaker 3: something that the court wants to to and trine as 287 00:18:02,400 --> 00:18:05,600 Speaker 3: a decision. But at the same token, it becomes very 288 00:18:05,640 --> 00:18:09,760 Speaker 3: complicated if the courts are then forced the issue injunction 289 00:18:10,000 --> 00:18:13,880 Speaker 3: saying you have to force El Salvador to bring back 290 00:18:13,960 --> 00:18:17,160 Speaker 3: even this US citizen, Because the point is courts don't 291 00:18:17,200 --> 00:18:21,120 Speaker 3: do that. Courts don't force foreign countries to have these 292 00:18:21,200 --> 00:18:24,560 Speaker 3: injunctions that they have to listen to. And so this 293 00:18:24,800 --> 00:18:30,040 Speaker 3: is quite the very difficult conundrum of constitutional laws, and 294 00:18:30,119 --> 00:18:32,480 Speaker 3: I get why the middle of the road justice is 295 00:18:33,040 --> 00:18:36,680 Speaker 3: start feeling that they are in a very stressful ensignus 296 00:18:36,720 --> 00:18:37,080 Speaker 3: a moment. 297 00:18:37,680 --> 00:18:42,840 Speaker 2: The court didn't address the fact that you have hundreds 298 00:18:42,840 --> 00:18:46,560 Speaker 2: of people who have already been sent to El Salvador 299 00:18:46,880 --> 00:18:50,359 Speaker 2: without notice, without a hearing what happens to them That 300 00:18:50,840 --> 00:18:51,399 Speaker 2: is going to. 301 00:18:51,400 --> 00:18:54,680 Speaker 3: Be part of this other case that's working its way 302 00:18:54,720 --> 00:18:57,960 Speaker 3: up through the Supreme Court. There was one individual within 303 00:18:58,040 --> 00:19:02,960 Speaker 3: this cohort of people that was deported into El Savador 304 00:19:03,000 --> 00:19:06,200 Speaker 3: who was actually not a Venezuelan under the Alien Enemies Act, 305 00:19:06,560 --> 00:19:11,480 Speaker 3: but was from El Salvador itself. UH and this individual 306 00:19:11,800 --> 00:19:14,560 Speaker 3: was detained despite an order saying they couldn't be deported 307 00:19:14,600 --> 00:19:19,359 Speaker 3: specifically to El Salvador. And in that case it was 308 00:19:19,400 --> 00:19:22,919 Speaker 3: a district court judge in Maryland who held that the 309 00:19:23,040 --> 00:19:26,720 Speaker 3: United States government has to try to bring this individual 310 00:19:26,880 --> 00:19:30,520 Speaker 3: back to the United States. Then the Fourth Circuit, in 311 00:19:30,600 --> 00:19:33,879 Speaker 3: a two to one decision or three to zero but 312 00:19:34,119 --> 00:19:37,840 Speaker 3: two to one with a concurrence, said that they agreed 313 00:19:38,000 --> 00:19:40,399 Speaker 3: that the United States government has to bring this person 314 00:19:40,480 --> 00:19:44,639 Speaker 3: back from El Salvador, although the one concurrent judge said 315 00:19:45,080 --> 00:19:47,919 Speaker 3: they can't require Al Savador to do it. They basically 316 00:19:48,000 --> 00:19:50,600 Speaker 3: have to use their best efforts if they can do it. 317 00:19:51,119 --> 00:19:53,720 Speaker 3: And that case is now up in the Supreme Court, 318 00:19:53,760 --> 00:19:58,720 Speaker 3: where that decision has been administratively stayed until later this week, 319 00:19:59,080 --> 00:20:02,040 Speaker 3: where there is going to be a decision that's going 320 00:20:02,080 --> 00:20:04,879 Speaker 3: to be made as to whether that decision will be 321 00:20:04,920 --> 00:20:07,719 Speaker 3: allowed to go into effect and the United States Government 322 00:20:07,760 --> 00:20:10,879 Speaker 3: will have to use its best efforts to bring this 323 00:20:10,960 --> 00:20:14,480 Speaker 3: individual back from El Savador or whether it is true 324 00:20:14,480 --> 00:20:17,959 Speaker 3: that once a mistake gets made like this, the United 325 00:20:18,000 --> 00:20:21,720 Speaker 3: States has no jurisdiction and no ability to do anything 326 00:20:21,720 --> 00:20:24,720 Speaker 3: about it. And so that's going to be a very 327 00:20:24,720 --> 00:20:28,080 Speaker 3: interesting decision that will then come back to this other 328 00:20:28,200 --> 00:20:32,560 Speaker 3: case that we've been discussing about the Venezuelans who have 329 00:20:32,760 --> 00:20:36,000 Speaker 3: already been said to Elsavador as well, because that's going 330 00:20:36,040 --> 00:20:38,679 Speaker 3: to be the question. Can a court actually order the 331 00:20:38,800 --> 00:20:43,720 Speaker 3: United States to quote unquote, either order El Savador to 332 00:20:43,800 --> 00:20:47,040 Speaker 3: give them the people back or maybe this arrangement already 333 00:20:47,200 --> 00:20:50,480 Speaker 3: contemplated that meaning they don't have to order El Savador 334 00:20:50,560 --> 00:20:54,080 Speaker 3: to do anything. Whatever the case may be, that's going 335 00:20:54,119 --> 00:20:56,080 Speaker 3: to be decided as part of this other case. 336 00:20:57,760 --> 00:21:02,600 Speaker 2: You worked in immigration litigation in the government. It seems 337 00:21:02,640 --> 00:21:06,879 Speaker 2: to me inconceivable that the Trump administration can't ask the 338 00:21:06,920 --> 00:21:10,000 Speaker 2: president of l Salvador to send the man who was 339 00:21:10,119 --> 00:21:14,360 Speaker 2: incorrectly sent there back to the United States. I mean, 340 00:21:14,400 --> 00:21:16,879 Speaker 2: the President of l Salvador is coming to the White 341 00:21:16,880 --> 00:21:18,520 Speaker 2: House for a visit next week. 342 00:21:18,960 --> 00:21:22,520 Speaker 3: Let's talk about this in multiple contexts. So first of all, 343 00:21:23,240 --> 00:21:26,960 Speaker 3: in terms of just other cases forgetting about this context. 344 00:21:26,960 --> 00:21:30,240 Speaker 3: In a second, in a case where someone is deported 345 00:21:30,320 --> 00:21:35,280 Speaker 3: to another country and that person is just walking around 346 00:21:35,320 --> 00:21:38,840 Speaker 3: that other countries. So let's say it's Mexico or Chile 347 00:21:39,160 --> 00:21:42,760 Speaker 3: or South Korea or wherever. The Supreme Court has already 348 00:21:42,800 --> 00:21:46,560 Speaker 3: said in a case called the ten Nken that if 349 00:21:46,600 --> 00:21:51,119 Speaker 3: the government is wrong, it can actually and must do 350 00:21:51,240 --> 00:21:53,960 Speaker 3: what it takes to bring that person back. Give them, 351 00:21:54,400 --> 00:21:58,199 Speaker 3: let's say, a parole, pay perwork, apply whatever is needed 352 00:21:58,400 --> 00:22:01,520 Speaker 3: to bring this person back into the United States than 353 00:22:01,640 --> 00:22:05,040 Speaker 3: to bring this person back to whatever status was the 354 00:22:05,080 --> 00:22:09,280 Speaker 3: status that they had when the case was moving forward. 355 00:22:09,520 --> 00:22:15,479 Speaker 3: So that was that situation. Now this context in al 356 00:22:15,520 --> 00:22:19,000 Speaker 3: Savador is a little bit more complicated because here the 357 00:22:19,040 --> 00:22:23,119 Speaker 3: person is in detention in a Salvador in prison. And 358 00:22:23,200 --> 00:22:25,439 Speaker 3: so now the question that the courts are trying to 359 00:22:25,440 --> 00:22:29,959 Speaker 3: grapple with is whose custody are these people under. And 360 00:22:30,040 --> 00:22:34,119 Speaker 3: so the Trump administration is saying they are in the 361 00:22:34,200 --> 00:22:37,119 Speaker 3: custody of al Savador. They're in the Nolsalvador in prison. 362 00:22:37,280 --> 00:22:40,399 Speaker 3: End of story. We can no longer order al Salvador 363 00:22:40,480 --> 00:22:43,840 Speaker 3: to do this. But the real question then becomes is 364 00:22:43,880 --> 00:22:46,920 Speaker 3: that true or not? Because why would al Savador want 365 00:22:46,920 --> 00:22:50,280 Speaker 3: to hold anybody in these prisons. They're doing it at 366 00:22:50,280 --> 00:22:53,720 Speaker 3: the request of the United States government, and the United 367 00:22:53,720 --> 00:22:56,520 Speaker 3: States Government is paying them to do this, So does 368 00:22:56,560 --> 00:23:01,400 Speaker 3: this not confer the power to bring this person back 369 00:23:01,560 --> 00:23:05,920 Speaker 3: still back to the US government in this situation? And 370 00:23:06,440 --> 00:23:09,199 Speaker 3: that's really the issue that the Supreme Court is going 371 00:23:09,280 --> 00:23:12,280 Speaker 3: to have to grapple with once the administrative stay is lifted, 372 00:23:12,880 --> 00:23:17,040 Speaker 3: is really whose custody are these people in? And what 373 00:23:17,240 --> 00:23:20,720 Speaker 3: makes it super complicated in the case of the Salvadoran 374 00:23:20,800 --> 00:23:24,240 Speaker 3: person as opposed to the Venezuelan person is that this 375 00:23:24,359 --> 00:23:28,280 Speaker 3: is an actual Salvadoran person in a Salvadoran prison as 376 00:23:28,280 --> 00:23:31,639 Speaker 3: opposed to a Venezuelan person. Because at least with the 377 00:23:31,720 --> 00:23:35,159 Speaker 3: Venezuelan people, it's a little bit more clear cut that 378 00:23:35,400 --> 00:23:38,080 Speaker 3: why in the world would El Salvador want to hold 379 00:23:38,160 --> 00:23:42,760 Speaker 3: Venezuelan is at El Salvador prison. That belies any sort 380 00:23:42,760 --> 00:23:45,040 Speaker 3: of explanation. It would have to be because they're being 381 00:23:45,080 --> 00:23:48,679 Speaker 3: asked to do so by the United States government. But 382 00:23:48,880 --> 00:23:53,119 Speaker 3: is this El Salvador case, it becomes more complicated. You know, 383 00:23:53,200 --> 00:23:56,080 Speaker 3: maybe El Salvador has some interest in having this person 384 00:23:56,160 --> 00:23:59,680 Speaker 3: in their detention facility, and so what can the court 385 00:23:59,720 --> 00:24:01,080 Speaker 3: act the ordered there? 386 00:24:01,240 --> 00:24:03,879 Speaker 2: In that situation, It just seems to me, if you 387 00:24:03,920 --> 00:24:07,800 Speaker 2: strip away all the legalities, some of which seem concocted 388 00:24:07,920 --> 00:24:12,040 Speaker 2: to me, and look at it practically, does anyone doubt 389 00:24:12,040 --> 00:24:16,359 Speaker 2: that El Salvador's president would comply with a request by 390 00:24:16,400 --> 00:24:20,280 Speaker 2: Trump to send the man back tells the what's his name? 391 00:24:20,400 --> 00:24:21,080 Speaker 2: The president. 392 00:24:21,640 --> 00:24:26,240 Speaker 3: Seems to me that if this entire framework was implemented 393 00:24:26,280 --> 00:24:29,040 Speaker 3: at the request of the United States, that a release 394 00:24:29,119 --> 00:24:31,399 Speaker 3: could occur at the request of the United States. That 395 00:24:31,480 --> 00:24:34,720 Speaker 3: seems to me to be a logical proposition. But the 396 00:24:34,800 --> 00:24:38,280 Speaker 3: question is what does the law do visa the suspension 397 00:24:38,320 --> 00:24:42,200 Speaker 3: of disbelief? Does the law say, no, we're going to 398 00:24:42,240 --> 00:24:46,240 Speaker 3: look at the actual foughts here and say that that 399 00:24:46,400 --> 00:24:48,320 Speaker 3: really at the end, the only reason any of this 400 00:24:48,359 --> 00:24:51,080 Speaker 3: is happening is because the US is asking Al Salvador 401 00:24:51,359 --> 00:24:54,919 Speaker 3: to do it, and so yes, they continue to maintain jurisdiction. 402 00:24:55,440 --> 00:24:58,160 Speaker 3: Or does the law create the suspension of this belief 403 00:24:58,520 --> 00:25:01,440 Speaker 3: where it says, look, we can't get into all of that. 404 00:25:01,880 --> 00:25:04,800 Speaker 3: In the end, this person is now in Salvador in custody, 405 00:25:04,880 --> 00:25:07,600 Speaker 3: end of story. What can we do? And so I 406 00:25:07,640 --> 00:25:09,800 Speaker 3: don't know where they're going to go with this, but 407 00:25:10,280 --> 00:25:14,199 Speaker 3: practically it seems to me I don't know what the 408 00:25:14,320 --> 00:25:17,680 Speaker 3: reason would be pornl Salvador to say no to the 409 00:25:17,800 --> 00:25:20,119 Speaker 3: United States in a particular case, I don't know. We 410 00:25:20,119 --> 00:25:22,359 Speaker 3: would have to wave the sea a lot to wait. 411 00:25:22,240 --> 00:25:25,560 Speaker 2: And see about. Thanks so much, Leon. That's Leon Fresco, 412 00:25:25,680 --> 00:25:28,240 Speaker 2: a partner at Honda Night. Coming up next on the 413 00:25:28,240 --> 00:25:32,879 Speaker 2: Bloomberg Law Show, Trump's War on Big Law exposes the 414 00:25:33,000 --> 00:25:37,000 Speaker 2: vulnerabilities of Wall Street law firms. I'm June Gross. When 415 00:25:37,040 --> 00:25:42,240 Speaker 2: you're listening to Bloomberg, President Trump's war on big law 416 00:25:42,440 --> 00:25:47,120 Speaker 2: sees firms caving in, sometimes before the executive order against 417 00:25:47,119 --> 00:25:51,000 Speaker 2: them is even issued. Millbank tweet is the latest firm 418 00:25:51,119 --> 00:25:54,359 Speaker 2: to settle in exchange for one hundred million dollars in 419 00:25:54,480 --> 00:25:57,600 Speaker 2: pro bono work. So what kind of firms have the 420 00:25:57,640 --> 00:26:01,400 Speaker 2: incentive to settle and avoid illegal battle with the president 421 00:26:01,960 --> 00:26:05,520 Speaker 2: and what firms would rather fight it out? Joining me? 422 00:26:05,560 --> 00:26:10,120 Speaker 2: Is Bloomberg Law reporter Justin Henry Justin? How would you 423 00:26:10,240 --> 00:26:12,320 Speaker 2: describe the firms that are settling? 424 00:26:12,840 --> 00:26:16,439 Speaker 1: So the firms that we're seeing settle are primarily concentrated 425 00:26:16,520 --> 00:26:19,400 Speaker 1: in New York. I think all of them are headquartered 426 00:26:19,480 --> 00:26:22,000 Speaker 1: or at least originating from New York and have real 427 00:26:22,640 --> 00:26:27,639 Speaker 1: Wall Street pedigree. They're also much more wealthy, and a 428 00:26:27,680 --> 00:26:32,359 Speaker 1: lot of that wealth has come from their rainmaker transactional practices, 429 00:26:32,440 --> 00:26:37,120 Speaker 1: so corporate deals involving mergers and acquisitions and private equity. 430 00:26:37,560 --> 00:26:41,520 Speaker 2: So what would be the reason why those firms would 431 00:26:41,560 --> 00:26:44,840 Speaker 2: want to settle more the ones that do transactional work. 432 00:26:45,640 --> 00:26:50,359 Speaker 1: So my understanding is that they have really sensitive client relationships, 433 00:26:50,400 --> 00:26:53,760 Speaker 1: clients who are very averse being in kind of the 434 00:26:53,800 --> 00:26:58,520 Speaker 1: political limelight. Some of those firms have client relationships that 435 00:26:58,560 --> 00:27:01,440 Speaker 1: are worth one hundred million dollars a year in revenue 436 00:27:01,600 --> 00:27:05,720 Speaker 1: or more, and those are client relationships that could vanish 437 00:27:06,320 --> 00:27:10,360 Speaker 1: literally overnight if their lawyers can't represent them in front 438 00:27:10,359 --> 00:27:12,720 Speaker 1: of government agencies or get the same kind of attention 439 00:27:12,880 --> 00:27:17,240 Speaker 1: from regulatory agencies to put the deals through. And then 440 00:27:17,320 --> 00:27:21,159 Speaker 1: that literally within a matter of days, could decrease the 441 00:27:21,280 --> 00:27:25,520 Speaker 1: overall profitability of the firm, which would have a cascading 442 00:27:25,560 --> 00:27:28,840 Speaker 1: effect on other partners at the firm making lesson profits 443 00:27:28,880 --> 00:27:32,760 Speaker 1: and then also being vulnerable approaching by other firms. So 444 00:27:32,800 --> 00:27:35,639 Speaker 1: you could have a phenomenon that resembles the kind of 445 00:27:35,720 --> 00:27:36,560 Speaker 1: run on the bank. 446 00:27:36,960 --> 00:27:41,440 Speaker 2: So they're even afraid that their partners will abandon them exactly. 447 00:27:41,560 --> 00:27:46,919 Speaker 1: Yeah, and not for any individual lawyers sort of decision 448 00:27:46,960 --> 00:27:51,679 Speaker 1: making on the process. It's really a coordination issue where 449 00:27:52,119 --> 00:27:53,760 Speaker 1: you know, they might want to stay with the firm, 450 00:27:53,800 --> 00:27:56,119 Speaker 1: the clients might want to stay with the firm, but 451 00:27:57,280 --> 00:28:01,120 Speaker 1: just because of business reasons, not because of reasons. There's 452 00:28:01,119 --> 00:28:03,920 Speaker 1: no shortage of other firms looking to scoop up that business, 453 00:28:04,000 --> 00:28:05,680 Speaker 1: and they can come to them and say, hey, listen, 454 00:28:05,680 --> 00:28:08,640 Speaker 1: we're not in the negative limelight of the president. Come 455 00:28:08,680 --> 00:28:10,919 Speaker 1: to us, or we still have a good relationship with 456 00:28:11,080 --> 00:28:14,280 Speaker 1: the administration, or at least we're not in the crosshairs 457 00:28:14,280 --> 00:28:15,399 Speaker 1: of the Trump administration. 458 00:28:15,920 --> 00:28:19,040 Speaker 2: Right And with these transactional firms that have to deal 459 00:28:19,080 --> 00:28:23,080 Speaker 2: with the regulatory agencies, it could be a problem if 460 00:28:23,119 --> 00:28:26,240 Speaker 2: they're in the bad graces of the Trump administration. 461 00:28:27,000 --> 00:28:30,560 Speaker 1: Yeah, exactly. I mean a protracted dispute with the Trump administration, 462 00:28:30,680 --> 00:28:33,080 Speaker 1: which three of the firms that have been targeted are 463 00:28:33,160 --> 00:28:36,000 Speaker 1: currently in can make them seem like kind of a 464 00:28:36,040 --> 00:28:40,480 Speaker 1: para politically speaking. That makes clients look at them and say, well, 465 00:28:40,720 --> 00:28:44,200 Speaker 1: we're worried about not getting good treatment from the regulatory 466 00:28:44,240 --> 00:28:48,480 Speaker 1: agencies that have to approve are massive that the company 467 00:28:48,680 --> 00:28:53,520 Speaker 1: deals those very expensive, very lucrative deals require the good 468 00:28:53,520 --> 00:28:56,400 Speaker 1: will of the executive branch agencies, and that is something 469 00:28:56,440 --> 00:28:59,120 Speaker 1: that is at risk when you're in a protracted dispute 470 00:28:59,120 --> 00:28:59,960 Speaker 1: with the Trump administry. 471 00:29:00,560 --> 00:29:03,560 Speaker 2: I thought it was interesting you spoke to Bruce McEwan, 472 00:29:03,800 --> 00:29:06,160 Speaker 2: who was a former in house lawyer at Morgan Stanley, 473 00:29:06,160 --> 00:29:09,480 Speaker 2: and he said, law firms, for all their seeming solidity, 474 00:29:09,600 --> 00:29:11,600 Speaker 2: are very fragile economically. 475 00:29:12,480 --> 00:29:16,600 Speaker 1: So law firms really aren't organized like any other type 476 00:29:16,600 --> 00:29:20,200 Speaker 1: of business except for other professional services businesses like accounting. 477 00:29:20,720 --> 00:29:23,800 Speaker 1: What makes law firms different is that their shareholders are 478 00:29:24,000 --> 00:29:28,200 Speaker 1: internal to the company, and those shareholders who are the partners, 479 00:29:28,880 --> 00:29:31,880 Speaker 1: have the ability to go to any firm they want 480 00:29:32,360 --> 00:29:35,200 Speaker 1: at the drop of a hat. There are no non 481 00:29:35,280 --> 00:29:38,280 Speaker 1: compete agreements in the legal field like there are an 482 00:29:38,320 --> 00:29:42,000 Speaker 1: other professions, so the law firm can't impose any restrictions 483 00:29:42,400 --> 00:29:46,760 Speaker 1: on one of their lawyers moving to another firm, a 484 00:29:46,800 --> 00:29:49,960 Speaker 1: competitor firm that's willing to pay them more. And so 485 00:29:50,080 --> 00:29:54,200 Speaker 1: that's a huge reason why law firms are much more 486 00:29:54,200 --> 00:29:57,440 Speaker 1: a precarious type of business than other types of businesses. 487 00:29:58,080 --> 00:30:01,360 Speaker 2: The three firms that sued Trump, what are they best 488 00:30:01,400 --> 00:30:03,560 Speaker 2: known for? The obviously they're not transactional. 489 00:30:04,120 --> 00:30:09,280 Speaker 1: Yeah, so these are firms that are very famous for 490 00:30:09,360 --> 00:30:13,640 Speaker 1: their work in the areas of litigation, and litigation is 491 00:30:13,720 --> 00:30:17,200 Speaker 1: just a practice area that, you know, it's still very 492 00:30:17,240 --> 00:30:21,160 Speaker 1: sensitive to politics, but already kind of has an adversarial 493 00:30:21,240 --> 00:30:24,320 Speaker 1: stance by definition, just a breed of lawyers who are 494 00:30:24,440 --> 00:30:27,480 Speaker 1: much more willing to take an adversarial stance, whether it's 495 00:30:27,480 --> 00:30:31,400 Speaker 1: with the government or whether it's with another private sector party. 496 00:30:31,720 --> 00:30:33,920 Speaker 1: And according to the lawyers I've talked to you, that 497 00:30:34,000 --> 00:30:36,840 Speaker 1: kind of has bread a willingness in these firms too, 498 00:30:37,800 --> 00:30:41,120 Speaker 1: in their case take an adversarial stance against the Trump administration. Now, 499 00:30:41,160 --> 00:30:44,240 Speaker 1: that doesn't mean it doesn't come with any risk. There 500 00:30:44,280 --> 00:30:48,360 Speaker 1: are risks involved. However, when you're litigating in a courthouse 501 00:30:48,560 --> 00:30:52,920 Speaker 1: as opposed to seeking merger clearance in an executive branch agency. 502 00:30:53,520 --> 00:30:57,640 Speaker 1: The courthouses are not subject to the Trump administration's executive 503 00:30:57,720 --> 00:30:59,960 Speaker 1: order like the executive branch agencies are. 504 00:31:00,600 --> 00:31:04,480 Speaker 2: I didn't realize is the litigation firms have less revenue 505 00:31:04,520 --> 00:31:06,040 Speaker 2: than the transactional firms. 506 00:31:06,960 --> 00:31:11,240 Speaker 1: Yes, they're on average about half as much in revenue 507 00:31:11,440 --> 00:31:15,440 Speaker 1: every year on average than the more transactional focused firms. 508 00:31:15,680 --> 00:31:17,520 Speaker 1: And that really just goes to show you how much 509 00:31:17,640 --> 00:31:21,000 Speaker 1: private equity in m and A has turbocharged the profits 510 00:31:21,000 --> 00:31:23,160 Speaker 1: of the wealthiest firms right now. But I think what 511 00:31:23,160 --> 00:31:24,920 Speaker 1: we're seeing right now is that it also shows you 512 00:31:24,960 --> 00:31:26,959 Speaker 1: how precarious that wealth is. 513 00:31:27,800 --> 00:31:31,880 Speaker 2: You say that the same pattern applies to firms that 514 00:31:32,000 --> 00:31:35,560 Speaker 2: have been publicly speaking out against the Trump administration, how 515 00:31:35,600 --> 00:31:38,000 Speaker 2: many firms have been publicly speaking out? 516 00:31:38,200 --> 00:31:40,600 Speaker 1: So the number of firms that have been speaking out 517 00:31:40,600 --> 00:31:45,880 Speaker 1: against the Trump administration recently skyrocketed, actually because of an 518 00:31:45,920 --> 00:31:50,640 Speaker 1: amicus brief in the lawsuit that Perkins Cooey filed against 519 00:31:50,640 --> 00:31:54,360 Speaker 1: the Trump administration. However, only eight of the firms that 520 00:31:54,480 --> 00:31:57,200 Speaker 1: sign on to that brief are in the am law 521 00:31:57,400 --> 00:32:00,600 Speaker 1: one hundred. So when I say that the firms that 522 00:32:00,640 --> 00:32:04,360 Speaker 1: are speaking out against the Trump administration are litigation firms, 523 00:32:04,400 --> 00:32:07,400 Speaker 1: I mean the other big law firms. So that would 524 00:32:07,400 --> 00:32:10,920 Speaker 1: be Williams and Connolly, which is representing Perkins Koohey and 525 00:32:11,040 --> 00:32:14,640 Speaker 1: its lawsuits against the Trump administration, and the munger Tolden 526 00:32:14,640 --> 00:32:19,200 Speaker 1: Olsen is primarily a litigation firm that organize the brief 527 00:32:19,640 --> 00:32:23,320 Speaker 1: in the Perkins Cooohy lawsuits. And so those are kind 528 00:32:23,360 --> 00:32:25,960 Speaker 1: of the high profile examples of firms that are willing 529 00:32:25,960 --> 00:32:28,640 Speaker 1: to oppose the Trump administration, and how they are pretty 530 00:32:28,680 --> 00:32:31,000 Speaker 1: hard nosed, litigation focused firms. 531 00:32:31,360 --> 00:32:35,240 Speaker 2: Trump has only targeted the big firm so. 532 00:32:35,320 --> 00:32:39,680 Speaker 1: Far, Yes, because it seems what he's looking for, at 533 00:32:39,760 --> 00:32:43,040 Speaker 1: least in part, is hundreds of millions of dollars in 534 00:32:43,240 --> 00:32:47,880 Speaker 1: pro bono legal services. Now, the bigger firms, the wealthier firms, 535 00:32:47,920 --> 00:32:51,160 Speaker 1: have more resources to devote to pro bono legal services, 536 00:32:52,080 --> 00:32:54,320 Speaker 1: and so that's why I think it makes sense that 537 00:32:54,400 --> 00:32:58,360 Speaker 1: Trump is going after those larger firms, who I believe 538 00:32:58,360 --> 00:33:00,880 Speaker 1: at this point has committed more than three hundred million 539 00:33:01,000 --> 00:33:04,680 Speaker 1: in pro bona legal services to causes that Trump is 540 00:33:04,760 --> 00:33:05,520 Speaker 1: advocating for. 541 00:33:06,160 --> 00:33:08,760 Speaker 2: Do we know what kind of things he's going to 542 00:33:08,800 --> 00:33:09,640 Speaker 2: ask them to do? 543 00:33:10,200 --> 00:33:13,520 Speaker 1: So, just to make it totally clear, what the firms 544 00:33:13,560 --> 00:33:16,640 Speaker 1: have said that have pledged pro bono legal services is 545 00:33:16,680 --> 00:33:20,960 Speaker 1: that they aren't letting the Trump administration call the shots 546 00:33:21,080 --> 00:33:24,560 Speaker 1: down to the individual client relationships. They've just set out 547 00:33:24,600 --> 00:33:28,600 Speaker 1: categories that they need to provide pro bono legal services 548 00:33:28,640 --> 00:33:33,040 Speaker 1: in order to comply with the agreement. And those categories 549 00:33:33,760 --> 00:33:38,440 Speaker 1: include advocating on behalf of veterans' rights. You know, that's 550 00:33:38,440 --> 00:33:44,120 Speaker 1: a very established conservative legal cause, there's combating anti semitism, 551 00:33:44,640 --> 00:33:47,400 Speaker 1: and then there's quote unquote fairness in the justice system. 552 00:33:48,280 --> 00:33:50,560 Speaker 1: There's still a lot of unanswered questions about how they 553 00:33:50,640 --> 00:33:55,080 Speaker 1: will comply with that. You know, I struggle to imagine 554 00:33:55,080 --> 00:33:58,080 Speaker 1: that the law firms and the Trump administration have the 555 00:33:58,120 --> 00:34:01,640 Speaker 1: same definition of those, especially with something as broad as 556 00:34:01,720 --> 00:34:05,840 Speaker 1: fairness in the justice system. But these are clearly areas 557 00:34:05,880 --> 00:34:08,560 Speaker 1: that you know, Trump for a while now has felt 558 00:34:08,640 --> 00:34:11,080 Speaker 1: like big law isn't as fair a conservatives as it 559 00:34:11,160 --> 00:34:14,480 Speaker 1: is to liberal causes, and so this is his way of, 560 00:34:14,760 --> 00:34:16,600 Speaker 1: in his mind, evening the playing field. 561 00:34:16,920 --> 00:34:21,440 Speaker 2: Are these executive orders against law firms going to continue? 562 00:34:21,560 --> 00:34:24,719 Speaker 1: So I think at this point what I've heard is 563 00:34:24,760 --> 00:34:26,800 Speaker 1: that there are several law firms that have come to 564 00:34:26,880 --> 00:34:29,960 Speaker 1: the table with the Trump administration in order to negotiate 565 00:34:30,000 --> 00:34:33,520 Speaker 1: their way out of an executive order. When you just 566 00:34:33,600 --> 00:34:38,640 Speaker 1: look at the rationale, the pretext backing these executive orders, 567 00:34:38,920 --> 00:34:42,560 Speaker 1: it's hard to imagine a law firm, a high profile 568 00:34:42,640 --> 00:34:46,000 Speaker 1: law firm that Trump might not have a beef with. 569 00:34:46,640 --> 00:34:50,640 Speaker 1: You know, everybody has some connection to a potential enemy 570 00:34:50,680 --> 00:34:55,080 Speaker 1: of the president, and so that makes the potential targets 571 00:34:55,080 --> 00:34:57,399 Speaker 1: of these executive orders pretty far and wide, and that 572 00:34:57,520 --> 00:35:00,200 Speaker 1: I think is making a lot of law firms to 573 00:35:00,280 --> 00:35:03,680 Speaker 1: the table and try to negotiate preemptively their way out 574 00:35:03,680 --> 00:35:04,640 Speaker 1: of an executive order. 575 00:35:05,040 --> 00:35:07,680 Speaker 2: I think Scadden did that right before they had an 576 00:35:07,680 --> 00:35:09,600 Speaker 2: executive order against them. They settled. 577 00:35:10,280 --> 00:35:14,719 Speaker 1: So far, we've seen Scadden do that, Wilkie and Millbank, 578 00:35:15,320 --> 00:35:19,160 Speaker 1: and it's been reported, including by Bloomberg Law, that Kirkland 579 00:35:19,160 --> 00:35:22,920 Speaker 1: Analys is in preemptive negotiations, and as late as this 580 00:35:23,080 --> 00:35:26,000 Speaker 1: morning there's been reporting by The New York Times that 581 00:35:26,520 --> 00:35:30,920 Speaker 1: suggest that Catwald is in a similar position. And Cadwalder 582 00:35:30,960 --> 00:35:33,360 Speaker 1: is notable because they are the former firm of Todd 583 00:35:33,360 --> 00:35:38,080 Speaker 1: Blanche who's in the Justice Department obviously, and who had 584 00:35:38,080 --> 00:35:40,520 Speaker 1: to leave the firm in order to represent Trump in 585 00:35:40,560 --> 00:35:41,799 Speaker 1: the Stormy Daniel's case. 586 00:35:42,400 --> 00:35:45,600 Speaker 2: Has anyone in the Trump administration expressed what the legal 587 00:35:45,680 --> 00:35:49,640 Speaker 2: basis for these executive orders are? I mean, it seems 588 00:35:49,640 --> 00:35:51,120 Speaker 2: so clearly retribution. 589 00:35:52,040 --> 00:35:56,080 Speaker 1: It does, but that what people are calling retribution has 590 00:35:56,160 --> 00:36:00,279 Speaker 1: been touched by the Trump administration in the language of 591 00:36:00,360 --> 00:36:04,520 Speaker 1: protecting national security interests, the language that was used in 592 00:36:04,560 --> 00:36:09,920 Speaker 1: the Perkins Cooey executive order. The other legal pretext that's 593 00:36:09,960 --> 00:36:14,719 Speaker 1: being cited is anti discrimination laws. Those are being in 594 00:36:14,920 --> 00:36:19,440 Speaker 1: going after firms for alleged dei quote unquote discrimination. 595 00:36:20,080 --> 00:36:23,319 Speaker 2: That is a big theme of the Trump administration so far. 596 00:36:23,840 --> 00:36:28,040 Speaker 2: Thanks so much, Justin. That's Bloomberg Law reporter Justin Henry 597 00:36:28,719 --> 00:36:31,040 Speaker 2: and that's it for this edition of The Bloomberg Law Show. 598 00:36:31,360 --> 00:36:33,719 Speaker 2: Remember you can always get the latest legal news on 599 00:36:33,760 --> 00:36:38,040 Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 600 00:36:38,239 --> 00:36:43,279 Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law, 601 00:36:43,680 --> 00:36:46,280 Speaker 2: and remember to tune into The Bloomberg Law Show every 602 00:36:46,320 --> 00:36:50,200 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 603 00:36:50,360 --> 00:36:51,960 Speaker 2: and you're listening to Bloomberg