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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: I'm innocent and I intend to prove my innocence, not

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Speaker 2: just for me, but for the precedent. This case we'll

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Speaker 2: sip for you and future members of the Senate.

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Speaker 3: That was New Jersey Senator Robert Menendez back in January,

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Speaker 3: and today he once again pleaded not guilty, this time

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Speaker 3: to obstruction of justice charges added to the bribery charges

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Speaker 3: that accused him of accepting gold bars, cash, and a

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Speaker 3: Mercedes Benz in exchange for helping three businessmen. The new

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Speaker 3: allegations are part of what is now an eighteen count indictment.

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Speaker 3: The Democratic Senator's wife, Nadine, and two of the businessmen

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Speaker 3: charged with him, also pleaded not guilty. Joining me is

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Speaker 3: Bloomberg Legal reporter David Voriachis, who was in the courtroom

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Speaker 3: for the police. David explained why Menandez was back in

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Speaker 3: a Manhattan federal courtroom today.

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Speaker 4: Senator Menendez pleaded not guilty for a fourth time because

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Speaker 4: he was re indicted by prosecutors who expanded the charges

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Speaker 4: against him from earlier indictments. So every time there's a

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Speaker 4: new indictment, he has to appear in court again to

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Speaker 4: plead guilty or not guilty.

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Speaker 5: And what was the expansion.

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Speaker 4: It expanded the number of counts in the indictment from

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Speaker 4: four to eighteen, and substantively, what it did was added

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Speaker 4: an obstruction of justice charge against Menendez because prosecutors say

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Speaker 4: that he instructed his lawyers to falsely tell prosecutors that

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Speaker 4: he had repaid a businessman who gave him mercedes the

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Speaker 4: prosecutors say was a bribe. Menendez claimed that the payments

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Speaker 4: that that businessman made on the car, that that was alone.

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Speaker 3: I mean, you hear all the time about people being

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Speaker 3: charged for lying to the FBI, But this is he

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Speaker 3: lied to his attorneys, which is confidential communication, and his

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Speaker 3: attorneys then unknowingly lied to the prosecutors. It seems like

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Speaker 3: there are too many steps to get to his act.

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Speaker 3: Have you heard of a charge framed in this way before.

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Speaker 4: It's a very unusual charge and I have not heard

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Speaker 4: of that. It could have a chilling effect on lawyers

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Speaker 4: who communicate with their clients. The indictment says this was

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Speaker 4: his former legal team. And there's also another unusual charge

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Speaker 4: in this case which had previously been brought, that he

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Speaker 4: conspired to act as an agent of Egypt, and that's

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Speaker 4: apparently never been brought against a sitting member of Congress.

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Speaker 3: Are these new charges being brought basically because one of

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Speaker 3: the businessmen who was charged with Menandez flipped on him.

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Speaker 4: I think there's an aspect of that. They added the

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Speaker 4: obstruction charge after the guilty plea of Jose Uribe, who

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Speaker 4: admitted in his guilty plea a few days ago that

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Speaker 4: he bribed Senator Menendez and his wife through the gift

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Speaker 4: of this Mercedes Benz and then he made payments on

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Speaker 4: the car. So the new indictment very closely tracks what

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Speaker 4: Jose Uribe admitted to in his guilty plea, and Uribe

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Speaker 4: is now cooperating with prosecutors, and that gives them an

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Speaker 4: insider account of this corruption plot.

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Speaker 5: That plea is a game changer, I take it.

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Speaker 4: I would imagine that it is not helpful to Senator Menendez.

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Speaker 4: It's always good for prosecutors to have insiders who can

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Speaker 4: describe how a scheme work. Now, I would say that

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Speaker 4: Uribe pleaded guilty to several charges in addition to bribery,

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Speaker 4: including tax evasion and obstruction of justice himself, so that

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Speaker 4: the defense lawyers could challenge his credibility when he testifies

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Speaker 4: as a prosecution witness against Menendez at trial.

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Speaker 3: This is the fourth superseding indictment tell us about the

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Speaker 3: initial charges.

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Speaker 4: The initial charges were three conspiracy to commit bribery charges,

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Speaker 4: and they were all essentially dealing with the same set

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Speaker 4: of facts but with different iterations of the law. And

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Speaker 4: those showed the world that FBI agents seized gold bars

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Speaker 4: at his house hundreds of thousands of dollars of cash,

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Speaker 4: and this Mercedes Benz and it essentially laid out several

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Speaker 4: overlapping bribery plots in which prosecutors allege that Menendez accepted

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Speaker 4: bribes in exchange for doing favors from three New Jersey

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Speaker 4: businessmen who were seeking his help.

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Speaker 3: Now there is less than two months before trial. Menandez

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Speaker 3: asked to delay the March sixth trial date.

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Speaker 4: Today he did well. He has previously asked to delay

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Speaker 4: it on a number of grounds, but one of them

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Speaker 4: is that as a member of Congress, he's protected by

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Speaker 4: the speecher debate Clause in the US Constitution, which covers

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Speaker 4: legislative acts. And if he loses that motion to dismiss

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Speaker 4: the indictment on the speech of debate clause grounds he

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Speaker 4: has an automatic right of appeal before trial, which would

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Speaker 4: certainly postpone the trial beyond May sixth. I should say

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Speaker 4: that he was previously indicted in New Jersey in twenty fifteen,

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Speaker 4: and he raised a speecher debate clause motion at the

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Speaker 4: time and the judge denied that. The Senator then appealed

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Speaker 4: it to the US Third Circuit Court of Appeals, where

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Speaker 4: he lost, and then he asked the US Supreme Court

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Speaker 4: to take it up, and the Supreme Court declined to

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Speaker 4: take the case. The whole process took about eighteen months,

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Speaker 4: and then he finally went to trial in twenty seventeen

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Speaker 4: on unrelated corruption charges, and the jury deadlocked on those charges,

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Speaker 4: and the Justice Department ultimately dropped the case.

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Speaker 3: It's a delay tactic, if nothing else, but explain exactly

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Speaker 3: what his claim is under the speech or debate clause.

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Speaker 4: He's saying that all the actions that the prosecutors alleged

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Speaker 4: were corrupt were in fact routine legislative matters that are

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Speaker 4: protected as part of his job duties under the speech

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Speaker 4: or debate clause of the Constitution.

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Speaker 3: His wife also pleaded not guilty. Today are they being

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Speaker 3: represented by the same attorney any different attorneys, and are

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Speaker 3: their defenses the same.

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Speaker 4: Senator Menendez and his wife, Nadine have separate lawyers, and

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Speaker 4: they have both said that they should have separate trials

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Speaker 4: because their defenses would run against each other's interests, and

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Speaker 4: that they each have a spousal privilege and that if

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Speaker 4: they had to testify against each other that would harm

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Speaker 4: their Fifth Amendment right against self incrimination.

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Speaker 5: So has the judge decided about that.

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Speaker 4: The judge has not decided on that aspect yet. There

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Speaker 4: are several motions that are still pending. I should say

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Speaker 4: that Judge Stein has ruled against the defense on a

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Speaker 4: number of motions so far.

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Speaker 3: You would think that that's something they need to know

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Speaker 3: whether they're going to have separate trials before preparing for

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Speaker 3: the trial that's coming up. I'm surprised the judge hasn't

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Speaker 3: made that decision already, considering it's less than two months

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Speaker 3: to trial, and it surely will make a difference from

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Speaker 3: the defense standpoint whether they're tried together or separately.

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Speaker 4: Yes, he has a number of motions outstanding, and he

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Speaker 4: has denied other motions to dismiss the case based on

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Speaker 4: improper search warrants, so that the defense just keeps coming,

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Speaker 4: and obviously it's their right to challenge the evidence and

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Speaker 4: the law.

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Speaker 5: He didn't say anything to the media who were waiting, and.

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Speaker 3: What he said in a statement was, what this latest

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Speaker 3: charge reveals is that the prosecutors are afraid of the facts,

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Speaker 3: scared to subject their charges to the fair minded scrutiny

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Speaker 3: of a jury, and unconstrained by any sense.

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Speaker 5: Of justice or fair play. What does he mean they're

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Speaker 5: going to a jury, right?

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Speaker 4: Yes. I think his general objection is that he believes

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Speaker 4: that these superseding indictments are piling on, that the government

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Speaker 4: just keeps coming with new charges and allegations, and I

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Speaker 4: think he believes that that's unfair. I should say that

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Speaker 4: after the hearing today, several reporters asked the senator if

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Speaker 4: he was going to run for reelection, because his popularity

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Speaker 4: has plummeted since his original indictment in September, he faces

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Speaker 4: a primary election if he were to choose to do

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Speaker 4: so in June. He has not said yet whether he

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Speaker 4: will run for reelection, and today in the hallway outside

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Speaker 4: the courtroom, he said I wouldn't be announcing it in

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Speaker 4: a courtroom.

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Speaker 3: And just to follow up on that, Ammouth University poll

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Speaker 3: found that sixty three percent of New Jersey residents think

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Speaker 3: he should resign and seventy five percent say he's probably

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Speaker 3: guilty of federal bribery charges he faces. It's a contrast

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Speaker 3: to the first time he was tried and then one reelection,

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Speaker 3: But this case appears to be weightier than the first

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Speaker 3: case against him.

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Speaker 4: I would say that I covered the first trial every day,

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Speaker 4: and I would say that there's more substantial evidence against

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Speaker 4: him this time. And having eurebe plead guilty and agree

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Speaker 4: to testify against him is going to be a substantial

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Speaker 4: burden for Menendez. And you can't underestimate the shock value

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Speaker 4: of the photographs of the cash and the gold bars

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Speaker 4: that agent seized in a raid on the house where

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Speaker 4: he and his wife live in New Jersey.

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Speaker 3: And how has his role in the Senate diminished since

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Speaker 3: these charges?

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Speaker 4: He was a powerful legislative force on foreign affairs. He

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Speaker 4: has since stepped down as chairman of the Senate Foreign

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Speaker 4: Affairs Committee because.

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Speaker 3: Of this indictment, and many of his Democratic colleagues in

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Speaker 3: the Senate, more than twenty of them, have called on

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Speaker 3: him to resign, including his friend and New Jersey colleague,

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Speaker 3: Senator Corey Booker, and The New York Post has reported

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Speaker 3: that Menendez will not run for reelection, according to a source.

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Speaker 3: It sided, So we'll see what happens. Thanks so much, David.

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Speaker 3: That's Bloomberg Legal reporter David Voriakis coming up next on

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Speaker 3: the Bloomberg Lawn Show. A Trump appointee upholds the Biden

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Speaker 3: administration's parole program, which allows up to three hundred and

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Speaker 3: sixty thousand people from Cuba, Haiti, Nicaragua, and Venezuela to

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Speaker 3: legally migrate to the US each year. And the Supreme

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Speaker 3: Court has only two days left to block a controversial

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Speaker 3: Texas migrant deportation law. I'm June Grosso and you're listening

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Speaker 3: to Bloomberg.

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Speaker 2: We are dealing with extraordinary dangers today that have never

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Speaker 2: existed in this country before, with known terrorists coming across

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Speaker 2: our border, and Joe Biden is doing absolutely nothing about it.

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Speaker 3: Texas Governor Greg Abbott has made it his mission to

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Speaker 3: attack the immigration policies of the Biden administration by passing

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Speaker 3: controversial state laws, bring lawsuits against the federal government, erecting

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Speaker 3: razor wire along the border and shipping migrants to northern

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Speaker 3: democratic run cities, constantly testing the limits on how far

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Speaker 3: local officials can go in defying federal authority over immigration.

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Speaker 3: Since Biden took office, the state has spent more than

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Speaker 3: one point four million dollars litigating dozens of cases related

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Speaker 3: to border security and immigration. But Texas lost its latest

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Speaker 3: legal battle with the Biden administration last Friday. Federal judge

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Speaker 3: Drew Tipton, a Trump appointee who's ruled against the administration

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Speaker 3: in other cases, tossed the state's challenge to the administration's

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Speaker 3: parole program that allows up to three hundred and sixty

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Speaker 3: thousand people from Cuba, Haiti, Nicaragua, and Venezuela to legally

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Speaker 3: migrate to the US each year. Joining me is Leon Fresco,

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Speaker 3: a partner in Holland and Knight who headed the Office

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Speaker 3: of Immigration Litigation in the Obama administration. Leon, was it

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Speaker 3: surprising to you that a Trump appointee who's ruled against

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Speaker 3: the Biden administration in other immigration cases ruled in favor

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Speaker 3: of the administration's parole program.

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Speaker 1: Well, for this particular judge, the Trump appointee, the problem

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Speaker 1: was he actually really did hold a full scale trial

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Speaker 1: on this issue of standing about whether Texas had standing

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Speaker 1: to sue in this case involving the Cuban Haitian Nicaragua

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Speaker 1: and Venezuelan parole. And what this trial found was that

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Speaker 1: there were more Cuban Haitians Nicaragua to Venezuelans coming to

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Speaker 1: the United States before the program than after, which meant

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Speaker 1: that any harm that Texas was suffering was less than

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Speaker 1: it was prior to the program, which meant that it

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Speaker 1: had no standing. And there was basically no way to

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Speaker 1: get around that because there was no evidentiary argument to

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Speaker 1: be able to make to show how Texas would be

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Speaker 1: able to have standing.

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Speaker 3: It's important that the judge never got to Texas's argument

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Speaker 3: on the merits right, which is part of this program,

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Speaker 3: is constitutional correct.

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Speaker 1: The judge didn't even get to that argument because of

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Speaker 1: their Article three standing doctrine, which has been decayed for

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Speaker 1: many many years now. You cannot even get to the

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Speaker 1: merits of a constitutional argument unless the person can show

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Speaker 1: that they're harmed by the very law that they're challenging.

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Speaker 1: And here the court really went through a very detailed

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Speaker 1: trial and finding the fact and laid it out very

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Speaker 1: clearly about how many cubansations Nicaraguans, and Venezuelans were coming

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Speaker 1: to Texas prior to that parole program being announced, and

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Speaker 1: how many were coming after the parole program being announced,

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Speaker 1: and then laid out all of the different damages that

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Speaker 1: Texas would have had school damages and drivers' license damages

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Speaker 1: and healthcare damages and detention of people damages, and said

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Speaker 1: that all of those are based on the numbers of people,

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Speaker 1: and if the total numbers are going down, which was

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Speaker 1: a point that Texas couldn't argue, then those numbers are

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Speaker 1: going down, meaning the cost to Texas of that policy

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Speaker 1: was actually giving Texas more money rather than taking away

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Speaker 1: money from Texas, which meant that Texas then had no

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Speaker 1: standing to challenge the law because it was not being

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Speaker 1: harmed by the laws. And then the court had to

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Speaker 1: dismiss the claim.

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Speaker 3: So the constitutional or the merits argument that Texas was

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Speaker 3: making that the judge never got to was that this

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Speaker 3: program creates a pathway to residency for the accepted migrants

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Speaker 3: and exceeds executive authority on immigration policy. And I'm wondering

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Speaker 3: whether that the merits argument is a pretty good argument.

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Speaker 1: Well, it is a pretty good argument in the sense

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Speaker 1: that the parole Statue itself says it needs to be

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Speaker 1: a case by case basis is because the whole point

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Speaker 1: of why the parole Statue was amended to read that

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Speaker 1: way was there used to be these group wide paroles

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Speaker 1: during the Vietnam War and with Cambodia and other things,

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Speaker 1: where whole groups of people were parolled into the country.

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Speaker 1: And when the Refugee Act was passed, the idea was, look,

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Speaker 1: if there are legitimate refugees, you have to have an orderly,

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Speaker 1: annual process where the President announces where the United States

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Speaker 1: is going to get refugees from, and the Congress is

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Speaker 1: informed of this and the Congress has a chance to

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Speaker 1: change it in the appropriations process. But you couldn't just

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Speaker 1: announce a mass parole of people into the country. And

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Speaker 1: that is technically what's being done here with the CHNV,

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Speaker 1: the Cuban, Asian, Nicaragua and Venezuela parole program, which is

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Speaker 1: it's a thirty thousand person a month parole program. But

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Speaker 1: that never got to that argument because again the standing argument,

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Speaker 1: which actually is quite a success for the Biden administration

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Speaker 1: to be able to show that this program actually worked

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Speaker 1: in reducing the net numbers total of Cuban nations, Nicaraguans

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Speaker 1: and Venezuelans and during the United States.

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Speaker 3: Just suppose the merits argument had gone to the Supreme Court.

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Speaker 3: I mean, in the past, the Supreme Court has in

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Speaker 3: recent past has invalidated Biden's executive orders on student loans, right,

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Speaker 3: so the Supreme Court might find that this too goes

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Speaker 3: beyond his authority.

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Speaker 1: I think there would have been two issues. There would

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Speaker 1: have obviously have been this standing issue, which would have

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Speaker 1: been one, but more importantly, there would have been this

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Speaker 1: issue of dose states have jurisdiction in general to challenge

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Speaker 1: this kind of law, or is this also the kind

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Speaker 1: of law that, now after the Remain in Mexico ruling,

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Speaker 1: is the kind of law not permitted to be challenged

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Speaker 1: by states. So I think the court would have had

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Speaker 1: to make a ruling there whether it's falls within the

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Speaker 1: ambit of laws that has to do ultimately with deportation,

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Speaker 1: which cannot be challenged, or is this because it's entry

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Speaker 1: falls outside of the scope of laws that cannot be challenged.

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Speaker 1: And so those two threshold questions would have been very

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Speaker 1: very important before it then got to the larger final

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Speaker 1: question as to whether this is still a case by

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Speaker 1: case parole, because no Cuban, Haitian, Nicaragun, or Venezuelan is

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Speaker 1: guaranteed entry. They all still have to enter and be

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Speaker 1: approved on their own accord. Or whether this is like

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Speaker 1: DACA or DAPPA, one of those programs where the courts

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Speaker 1: have held that at the end of the day, those

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Speaker 1: are larger, systematic programs and they're not being done on

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Speaker 1: a case by case basis.

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Speaker 3: So we talked a couple of weeks ago about the

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Speaker 3: rumors that Biden was going to try to take some

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Speaker 3: executive action on immigration in light of the failure of

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Speaker 3: the passage of the bipart as an immigration bill.

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Speaker 5: Might this ruling.

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Speaker 3: Encourage him to take executive action or is it just

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Speaker 3: standing and so it's not a big encouragement.

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Speaker 1: Well, it will be interesting to see from the standpoint

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Speaker 1: of how long it would take to make another claim,

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Speaker 1: whether they wanted to expand this program from the thirty

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Speaker 1: thousand paroles that are currently in there to a larger number,

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Speaker 1: or whether they wanted to expand the program to include

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Speaker 1: some additional countries that are not currently included in the program,

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Speaker 1: such as Ecuador or Columbia, where we're seeing some increased

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Speaker 1: numbers of people coming across the border. Not clear. I

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Speaker 1: don't think this is where the Biden administration is going

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Speaker 1: to go. I don't see them expanding this program. Although

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Speaker 1: the Haitian issue now might become more complicated given the

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Speaker 1: difficulties that are happening in Haiti right now. Maybe perhaps

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Speaker 1: they might increase the parole program for Haiti, But short

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Speaker 1: of that, I don't see it happening for Cuba and

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Speaker 1: Nicaragua Venezuela. I think what you're likely going to see

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Speaker 1: now is whether the Bidend ministry it's comfortable taking actions

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Speaker 1: that they know will be enjoyed by the court solely

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Speaker 1: for the purpose of saying they tried, and here's the

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Speaker 1: proof that you need congressional authority to do things. So,

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Speaker 1: for instance, they could just try to come up with

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Speaker 1: their own asylum band that would be basically taking Title

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Speaker 1: forty two and actually just kicking people out until they're

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Speaker 1: told by a court they can't do that, and then

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Speaker 1: they could say, you see, while I tried, I did

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Speaker 1: everything I could, and I can't do that. They could

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Speaker 1: also try re implementing remain in Mexico, which is what

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Speaker 1: President Trump was in the process of doing. But the

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Speaker 1: problem there is again that would not be implemented in

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Speaker 1: any kind of scale before the election, and so that's

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Speaker 1: not going to actually solve any numerical problems that you're

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Speaker 1: seeing at the border. It may solve some symbolic issues,

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Speaker 1: but it wouldn't solve any numerical problems until much later

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Speaker 1: after the election.

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Speaker 3: Let's turn now out of this controversial Texas immigration law

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Speaker 3: known as SB four that's set to take effect on

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Speaker 3: Wednesday unless the Supreme Court steps in.

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Speaker 1: Well, what Texas SB four does, at the end of

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Speaker 1: the day is it allows Texas to do something that

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Speaker 1: no state has ever been able to do before, which

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Speaker 1: is to basically coerce people into returning back into Mexico

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Speaker 1: for fear that if they don't do that, they would

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Speaker 1: be prosecuted for the crime of being unlawfully in the

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Speaker 1: state of Texas unlawfully in the United States. And so

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Speaker 1: what they do is they try to use a carts

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Speaker 1: and six approach in the law, which is to say, look,

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Speaker 1: you won't be prosecuted at all, and you won't have

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Speaker 1: any problem if you simply just returned back into Mexico.

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Speaker 1: But if you choose not to do that and you

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Speaker 1: choose to proceed, we're actually going to prosecute you for

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Speaker 1: a felony, and that felony will be being in Texas lawfully,

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Speaker 1: atter you've already been taken to the border and trying

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Speaker 1: to come back in. And so from that standpoint, that's

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Speaker 1: what the law basically does. And the challenges to that

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Speaker 1: are that states can't do that, they can't take matters

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Speaker 1: into their own hands, and the distinct enforcers of immigration

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Speaker 1: law that that under the Arizona versus United States Supreme

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Speaker 1: Court decision of twenty twelve, is a doctrine that is

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Speaker 1: held only for the federal government to enforce, and states

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Speaker 1: simply can't take matters into their own hands, regardless of

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Speaker 1: what their reasoning would be.

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Speaker 3: This bill has had a tangled legal history. Let's untangle it.

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Speaker 3: It began when a Texas judge stopped the law, saying

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Speaker 3: that if allowed to proceed, it would open the door

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Speaker 3: to each state passing its own version of immigration laws,

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Speaker 3: which follows Supreme Court precedent.

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Speaker 1: Right, So then what happened correct and the Fifth Circuit,

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Speaker 1: the United Six Court of Appeals for the Fifth Circuit

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Speaker 1: very quick weekend order that was then published on a

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Speaker 1: Monday just said we are saying that order of the

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Speaker 1: district judge, meaning the district judge said the Texas law

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Speaker 1: was illegal. We are going to stay that order, meaning

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Speaker 1: there will be no order in place that says that

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Speaker 1: that law is illegal, which means that the law is

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Speaker 1: legal once it's stayed. And what they said was, look,

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Speaker 1: do you want to take an appeal to the Supreme Court.

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Speaker 1: If you do, you want to go ahead and do it.

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Speaker 1: And so that's what the federal government did. They took

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Speaker 1: an appeal to the Supreme Court. And so now there's

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Speaker 1: a new data will go into effects, which is Wednesday,

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Speaker 1: March thirteenth, because the US Supreme Court issued a temporary

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Speaker 1: say of the Fifth Circuit's decision that would have allowed

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Speaker 1: the bill to go into effect March ninth. But unless

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Speaker 1: the Supreme Court allows it, further to be said, the

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Speaker 1: law will go into effect March thirteen.

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Speaker 3: This law is against their precedent. Shouldn't they step in

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Speaker 3: to confirm what the law is?

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Speaker 1: So ordinarily to answer that question would be yes. Let

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Speaker 1: me start by saying that. But what's interesting is when

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Speaker 1: the original case challenging the Biden prosecutorial discretion memo came

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Speaker 1: out where there was this judge in Texas that said,

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Speaker 1: the federal government doesn't have any say about prosecutorial discretion.

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Speaker 1: It has to prosecute every single person that it comes

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Speaker 1: across and puts them in deportation proceeding. And that decision

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Speaker 1: was still outside the bounds of anything that had ever

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Speaker 1: happened before the Supreme Court. I don't think really thought

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Speaker 1: about it, just let it go into effect, and it

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Speaker 1: was many months before the Supreme Court ultimately, when it

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Speaker 1: had an oral argument, was incredulous. How is this thing

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Speaker 1: supposed to work where there's a judge in Texas telling

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Speaker 1: Ice who to deport and who not to deport, or

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Speaker 1: else they get put in contensive court. This thing can't work.

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Speaker 1: Of course, we have to let Ice decide who to

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Speaker 1: deport and not to deport. And so by the the

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Speaker 1: time they finally got to the oral argument on the marriage,

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Speaker 1: it was obvious what they had done by letting the

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Speaker 1: law go into effect. And that's saying it was outrageous.

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Speaker 1: But it was too late. Many months had passed, and

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Speaker 1: so you wonder could something like that happen again, where

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Speaker 1: it's just basically the court doesn't have any patience for

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Speaker 1: getting involved in yet another immigration case and simply allows

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Speaker 1: this law to go to effect. Or perhaps the court

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Speaker 1: just wants to see, hey, because Texas actually solve its

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Speaker 1: mortar crisis, if we let this law go into effect,

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Speaker 1: maybe that would be an interesting thing just to see.

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Speaker 1: So we'll just let it happen and we won't say

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Speaker 1: anything about it. So we'll see. We'll see if that

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Speaker 1: actually happened. But one would suspect if the law was

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Speaker 1: nine artificial intelligence robots trying to analyze prior president and

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Speaker 1: trying to analyze this law in Texas, they would of

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Speaker 1: course have to say the case, citing the Arizona versus

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Speaker 1: United States decision of twenty twelve. But stranger things have

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Speaker 1: happened and will just be allowed to go into effect

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Speaker 1: until there's a longer Supreme Court argument about it.

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Speaker 3: I'm thinking about how if we had nine ais instead

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Speaker 3: of the justices, how things would come out. Moving on,

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Speaker 3: stay with me Leon coming up on the Bloomberg Law Show.

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Speaker 3: I'll continue this conversation with immigration law expert Leon Fresco,

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Speaker 3: and we'll turn to the state of Georgia, where Biden

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Speaker 3: and Trump held dueling rallies over the weekend. I'm June

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Speaker 3: Grosso and you're listening to Bloomberg. Once a Republican stronghold,

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Speaker 3: Georgia is now competitive, and President Joe Biden and former

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Speaker 3: President Donald Trump held dueling rallies in the state on Saturday,

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Speaker 3: each warning of dire consequences for the country if the

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Speaker 3: other wins. Attacking each other over immigration, among other things.

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Speaker 1: Instead of celebrating the contribution of immigrants to our country,

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Speaker 1: to our economy and our communities, Donald Trump calls them

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Speaker 1: verman Trump.

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Speaker 3: Meanwhile, we hammered Biden on the border and blamed him

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Speaker 3: for the death of twenty two year old Georgia nursing

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Speaker 3: student Lake and Riley, an immigrant from Venezuela who entered

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Speaker 3: the country illegally has been arrested and charged with her murder.

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Speaker 3: He ridiculed Biden for expressing regret over using the term

440
00:27:17,160 --> 00:27:19,280
Speaker 3: illegal to describe the suspect.

441
00:27:19,960 --> 00:27:23,600
Speaker 4: He was an illegal immigrant. He was an illegal migrant,

442
00:27:24,040 --> 00:27:25,399
Speaker 4: and he shouldn't have been.

443
00:27:25,280 --> 00:27:28,160
Speaker 3: In our country, and he never would have been under

444
00:27:28,200 --> 00:27:33,520
Speaker 3: the Trump policy. I've been talking to immigration law expert

445
00:27:33,600 --> 00:27:37,040
Speaker 3: Leon Fresco, a partner at Hollanden Knight. Leon tell us

446
00:27:37,040 --> 00:27:42,840
Speaker 3: about this Georgia bill that would require every police and

447
00:27:42,880 --> 00:27:46,919
Speaker 3: sheriff's department to help identify undocumented immigrants.

448
00:27:47,760 --> 00:27:50,959
Speaker 1: Georgia is trying to pass a bill that is shrinked

449
00:27:51,040 --> 00:27:55,000
Speaker 1: upon his cities and counties that break state immigration law

450
00:27:55,080 --> 00:28:00,119
Speaker 1: and basically have a sanctuary city type of policy. And

451
00:28:00,160 --> 00:28:03,320
Speaker 1: what they're trying to do is they're trying to do

452
00:28:03,720 --> 00:28:09,199
Speaker 1: what basically Texas did. Texas padelaw like this in the past,

453
00:28:09,359 --> 00:28:11,880
Speaker 1: where they said it was against the law to be

454
00:28:12,440 --> 00:28:17,080
Speaker 1: a sanctuary state sanctuary city. So they're requiring jailers to

455
00:28:17,200 --> 00:28:22,200
Speaker 1: identify in all people if they get apprehended by ice.

456
00:28:22,520 --> 00:28:27,240
Speaker 1: And so from that standpoint that actually has been litigated

457
00:28:27,280 --> 00:28:30,280
Speaker 1: in the Fifth Circuits didn't go up to the Supreme Court,

458
00:28:30,359 --> 00:28:32,280
Speaker 1: but in the Fifth Circuit they said that the state

459
00:28:32,800 --> 00:28:38,080
Speaker 1: did have the authority to force cities and counties to

460
00:28:38,120 --> 00:28:42,120
Speaker 1: not be sanctuary cities or sanctuary counties because unlike the

461
00:28:42,120 --> 00:28:46,520
Speaker 1: way the federal supremacy Clause work, the state government can

462
00:28:47,360 --> 00:28:51,760
Speaker 1: under its prerogatives, forces cities and counties to not be

463
00:28:51,960 --> 00:28:55,160
Speaker 1: sanctuary counties. So what Georgia then says is, Okay, we're

464
00:28:55,160 --> 00:28:58,160
Speaker 1: going to emulate that law that Texas has and we're

465
00:28:58,200 --> 00:29:01,040
Speaker 1: going to say if you don't call ICE, if you're

466
00:29:01,080 --> 00:29:05,960
Speaker 1: a police agency, or a local prison or a local jail,

467
00:29:06,480 --> 00:29:10,600
Speaker 1: if you don't call ICE when you are in custody

468
00:29:11,000 --> 00:29:14,640
Speaker 1: of a foreign national, then you will be punished by

469
00:29:14,640 --> 00:29:16,240
Speaker 1: the State of Georgia for not doing this.

470
00:29:16,640 --> 00:29:20,680
Speaker 3: One of the Republican state representatives says that clause is

471
00:29:20,800 --> 00:29:24,640
Speaker 3: needed to enforce existing state law that requires sheriffs to

472
00:29:24,720 --> 00:29:27,080
Speaker 3: check with ICE. I mean, does that seem like even

473
00:29:27,120 --> 00:29:28,880
Speaker 3: if it went up to the Supreme Court that that

474
00:29:29,040 --> 00:29:32,240
Speaker 3: would pass muster right, because.

475
00:29:32,000 --> 00:29:34,520
Speaker 1: What's being hadded is the punishment component to it. What

476
00:29:34,840 --> 00:29:38,239
Speaker 1: they're currently is is a mandate with no punishment, and

477
00:29:38,320 --> 00:29:41,160
Speaker 1: so this is just adding a punishment component to this,

478
00:29:41,680 --> 00:29:44,920
Speaker 1: which would cut off local aid to local government and

479
00:29:44,960 --> 00:29:48,160
Speaker 1: remove elected officials from office who are not complying with this.

480
00:29:49,000 --> 00:29:52,160
Speaker 1: And so it's not even necessarily prison time, but it's

481
00:29:52,240 --> 00:29:56,080
Speaker 1: just punishment in terms of funding and in terms of

482
00:29:56,160 --> 00:29:59,240
Speaker 1: removing people from their offices. I do think if that

483
00:29:59,280 --> 00:30:01,160
Speaker 1: were to make it to the Supreme Court, it would

484
00:30:01,160 --> 00:30:04,320
Speaker 1: be upheld under that same logic that the Fifth Circuit

485
00:30:04,400 --> 00:30:07,080
Speaker 1: upheld the Texas law, which is that states do have

486
00:30:07,240 --> 00:30:10,560
Speaker 1: the prerogative to do this. Now, the question is, of course,

487
00:30:11,120 --> 00:30:15,320
Speaker 1: when these individuals call ICE at the moment, are they

488
00:30:15,360 --> 00:30:19,400
Speaker 1: getting ICE calling them back and apprehending people. And I

489
00:30:19,440 --> 00:30:22,200
Speaker 1: think they would only be getting that in cases where

490
00:30:22,600 --> 00:30:26,680
Speaker 1: people have submitted violent crimes. But I don't know necessarily

491
00:30:26,720 --> 00:30:28,960
Speaker 1: that they're going to get ICE to start picking up

492
00:30:29,000 --> 00:30:32,040
Speaker 1: a bunch of people who are encountered in traffic stops.

493
00:30:32,640 --> 00:30:34,200
Speaker 1: And I think this is where there's going to be

494
00:30:34,200 --> 00:30:35,520
Speaker 1: the frustration in Georgia.

495
00:30:36,080 --> 00:30:39,920
Speaker 3: And it's been called the Lake and Riley Act because

496
00:30:39,920 --> 00:30:43,720
Speaker 3: it's in response to the murder of nursing student Lake

497
00:30:43,800 --> 00:30:49,000
Speaker 3: and Riley, and a Venezuelan illegal immigrant has been arrested

498
00:30:49,040 --> 00:30:52,720
Speaker 3: for that. But this law wouldn't have prevented that murder

499
00:30:53,000 --> 00:30:56,320
Speaker 3: because he was never arrested in Georgia. He was arrested

500
00:30:56,360 --> 00:30:57,040
Speaker 3: in New York.

501
00:30:57,480 --> 00:31:01,320
Speaker 1: Correct, they would have to be a situation where the

502
00:31:01,360 --> 00:31:05,200
Speaker 1: person was arrested in Georgia and that person would have

503
00:31:05,240 --> 00:31:08,400
Speaker 1: been had to have been declared to ICE, and then

504
00:31:08,440 --> 00:31:11,160
Speaker 1: ICE would have actually had to agree to pick up

505
00:31:11,200 --> 00:31:15,960
Speaker 1: the person. So it perhaps may stop a scenario where

506
00:31:16,000 --> 00:31:19,200
Speaker 1: there was an officer, perhaps in Fulton County and Atlanta,

507
00:31:19,280 --> 00:31:23,360
Speaker 1: who wasn't making those calls. Now those individuals will have

508
00:31:23,480 --> 00:31:27,560
Speaker 1: to make those calls, but that doesn't guarantee that ICE

509
00:31:27,600 --> 00:31:30,040
Speaker 1: will pick up the person or place them in removal

510
00:31:30,080 --> 00:31:33,440
Speaker 1: proceedings or place them in detention. And it certainly has

511
00:31:33,480 --> 00:31:36,520
Speaker 1: nothing to do with it. New York doesn't either arrest

512
00:31:36,560 --> 00:31:40,200
Speaker 1: the person or doesn't call ICE or doesn't do anything.

513
00:31:40,600 --> 00:31:44,920
Speaker 1: And so that's the problem is Georgia is trying to

514
00:31:44,960 --> 00:31:48,360
Speaker 1: solve a problem that didn't actually lead to the murder

515
00:31:48,360 --> 00:31:51,120
Speaker 1: of Lake and Riley. I understand they may not want

516
00:31:51,160 --> 00:31:54,320
Speaker 1: that fact pattern to exist in Georgia where somebody who

517
00:31:54,400 --> 00:31:57,080
Speaker 1: went through the Georgia system does this, but at the

518
00:31:57,120 --> 00:31:59,600
Speaker 1: end of the day, it would not have prevented this

519
00:31:59,640 --> 00:32:00,640
Speaker 1: particular murder.

520
00:32:01,160 --> 00:32:04,480
Speaker 3: Biden and Trump held dueling rallies in Georgian. Of course,

521
00:32:04,560 --> 00:32:08,360
Speaker 3: immigration was part of it. There's been a lot of

522
00:32:08,920 --> 00:32:14,040
Speaker 3: discussion about Biden calling the person arrested for the murder

523
00:32:14,040 --> 00:32:17,240
Speaker 3: of Lake and Riley an illegal immigrant, and he said

524
00:32:17,240 --> 00:32:18,840
Speaker 3: he should have said undocumented.

525
00:32:19,240 --> 00:32:21,320
Speaker 5: But he is an illegal immigrant, isn't he.

526
00:32:22,000 --> 00:32:26,400
Speaker 1: Well, this whole problem with the nomenclature is partly a

527
00:32:26,560 --> 00:32:29,920
Speaker 1: problem of the immigration code and is partly a problem

528
00:32:30,040 --> 00:32:34,480
Speaker 1: of the political debate. So in the Immigration Code a

529
00:32:34,520 --> 00:32:37,520
Speaker 1: person who's not a citizen of the United States. It

530
00:32:37,640 --> 00:32:40,480
Speaker 1: literally says that in the Immigration Code, in the very

531
00:32:40,560 --> 00:32:43,880
Speaker 1: first section of the entire code, in the definition section,

532
00:32:44,200 --> 00:32:45,640
Speaker 1: they say, if you are not a citizen in the

533
00:32:45,760 --> 00:32:48,600
Speaker 1: United States, the term used to describe you as alien.

534
00:32:49,000 --> 00:32:52,240
Speaker 1: And then that term alien is used probably seven thousand

535
00:32:52,320 --> 00:32:56,320
Speaker 1: times is the code, because it's saying when an alien comes,

536
00:32:56,320 --> 00:32:59,000
Speaker 1: when you detain an alien, blah blah blah. So from

537
00:32:59,000 --> 00:33:01,120
Speaker 1: that standpoint, you have to first problem of the use

538
00:33:01,160 --> 00:33:03,600
Speaker 1: of the word alien. Then you have the use of

539
00:33:03,640 --> 00:33:05,600
Speaker 1: the word well, what do you do if somebody's here

540
00:33:05,920 --> 00:33:10,880
Speaker 1: without authorization? And interestingly enough, here the code actually doesn't

541
00:33:10,960 --> 00:33:14,680
Speaker 1: use the word illegal. It just says the person doesn't

542
00:33:14,680 --> 00:33:19,040
Speaker 1: have authorization, So undocumented as a term that's made up.

543
00:33:19,120 --> 00:33:21,880
Speaker 1: That's just a politically correct term. But do you want

544
00:33:21,920 --> 00:33:24,560
Speaker 1: to say that the person is present without authorization that

545
00:33:24,600 --> 00:33:27,800
Speaker 1: would be the actual legal term, or do you want

546
00:33:27,840 --> 00:33:30,719
Speaker 1: to say they are an illegal immigrant and illegal alien?

547
00:33:31,120 --> 00:33:34,360
Speaker 1: This is where all of this gets complicated. But the

548
00:33:34,400 --> 00:33:38,600
Speaker 1: actual term illegal is not in the code. That term

549
00:33:38,720 --> 00:33:41,640
Speaker 1: isn't there. What's in the code is this person who's

550
00:33:41,640 --> 00:33:45,000
Speaker 1: present without authorization or a person who has not admitted

551
00:33:45,360 --> 00:33:48,240
Speaker 1: or inspected into the United States. So they're very specific

552
00:33:48,480 --> 00:33:52,160
Speaker 1: ways to describe these individuals. And what probably can't fault

553
00:33:52,240 --> 00:33:55,120
Speaker 1: Joe Biden for not using the legal term that's in

554
00:33:55,160 --> 00:33:58,360
Speaker 1: the code, and so this gets complicated. You know, there's

555
00:33:58,400 --> 00:34:01,880
Speaker 1: been debates back and forth worth about this issue of well,

556
00:34:01,920 --> 00:34:05,000
Speaker 1: if you don't refer to the conduct as illegal, you're

557
00:34:05,040 --> 00:34:07,760
Speaker 1: saying that there's nothing wrong with it, and there's some

558
00:34:07,880 --> 00:34:11,000
Speaker 1: truth to that, And the question is, how do you

559
00:34:11,040 --> 00:34:15,680
Speaker 1: do it in a way that's not particularly dehumanizing in

560
00:34:15,760 --> 00:34:18,759
Speaker 1: context other than this. The problem is in this context

561
00:34:19,040 --> 00:34:21,879
Speaker 1: the man committed a murder, and so some people would

562
00:34:22,000 --> 00:34:27,040
Speaker 1: argue that the politically correctness is misplaced here. But generally,

563
00:34:27,080 --> 00:34:32,680
Speaker 1: when describing this phenomenon, how can one basically convey the

564
00:34:32,719 --> 00:34:38,680
Speaker 1: seriousness of not being for this unauthorized immigration but in

565
00:34:38,680 --> 00:34:41,439
Speaker 1: a way if it's not dehumanizing to the people who

566
00:34:41,440 --> 00:34:44,600
Speaker 1: are engaging in it and not otherwise committing any other

567
00:34:44,640 --> 00:34:45,960
Speaker 1: public states the issue.

568
00:34:46,040 --> 00:34:49,480
Speaker 3: So it's all about PC then being PC because illegal

569
00:34:49,560 --> 00:34:54,399
Speaker 3: is not in the law, but neither is undocumented, correct. So, Leon,

570
00:34:54,560 --> 00:34:57,120
Speaker 3: I want to get your take on this, because there's

571
00:34:57,160 --> 00:35:02,440
Speaker 3: been a lot of back and forth about crime by migrants,

572
00:35:03,200 --> 00:35:07,880
Speaker 3: But is there any connection between migrants and increases in crime?

573
00:35:08,440 --> 00:35:12,320
Speaker 1: Well, this is hard to know. These these statistics are

574
00:35:12,640 --> 00:35:15,400
Speaker 1: very very complicated, and this is this is sort of

575
00:35:15,680 --> 00:35:17,600
Speaker 1: back when I was in the Department of Justice. I

576
00:35:17,680 --> 00:35:20,919
Speaker 1: used to cite statistics until I realized that every time

577
00:35:20,920 --> 00:35:23,480
Speaker 1: we cited statistics to the court, we had to correct

578
00:35:23,520 --> 00:35:26,839
Speaker 1: them because the statistics were wrong. And so I put

579
00:35:26,880 --> 00:35:29,920
Speaker 1: in a directive for the lawyers in my department, no

580
00:35:30,000 --> 00:35:33,160
Speaker 1: more statistics unless the court forces us to give them

581
00:35:33,440 --> 00:35:36,440
Speaker 1: than we have to. But with the caveat, these statistics

582
00:35:36,480 --> 00:35:39,480
Speaker 1: are probably wrong. And so because the problem with the

583
00:35:39,520 --> 00:35:42,719
Speaker 1: crime thing is a crime statistic depends on a lot

584
00:35:42,719 --> 00:35:45,480
Speaker 1: of factors. You know, somebody has to call the police,

585
00:35:45,960 --> 00:35:50,080
Speaker 1: a policeman has to actually arrest somebody. That person has

586
00:35:50,120 --> 00:35:52,960
Speaker 1: to be prosecuted, and so there's no way to know.

587
00:35:53,280 --> 00:35:57,200
Speaker 1: This argument honestly of people saying whether crime is going

588
00:35:57,280 --> 00:36:02,239
Speaker 1: up or down because of more immigration really is difficult

589
00:36:02,239 --> 00:36:06,600
Speaker 1: to know because we don't know what's being reported, what's

590
00:36:06,640 --> 00:36:10,000
Speaker 1: not being reported, and what baseline we're comparing it to.

591
00:36:10,760 --> 00:36:13,680
Speaker 1: And so that's the problem. I wish I would be

592
00:36:13,719 --> 00:36:16,439
Speaker 1: one of these people who could give you something more

593
00:36:16,440 --> 00:36:20,200
Speaker 1: definitive than that as an ideologue in either direction. But

594
00:36:20,239 --> 00:36:23,120
Speaker 1: the truth is, if you're really trying to be precise

595
00:36:23,160 --> 00:36:26,440
Speaker 1: and accurate and responsible to the people listening to your show,

596
00:36:26,880 --> 00:36:31,560
Speaker 1: you would say, realistically, it's too difficult to know whether

597
00:36:32,000 --> 00:36:35,400
Speaker 1: more or less crime is being committed by this specific

598
00:36:35,480 --> 00:36:38,960
Speaker 1: population that's coming through the border right now. Although just

599
00:36:39,120 --> 00:36:43,200
Speaker 1: generally more people means more crime. I mean that's a fact.

600
00:36:43,320 --> 00:36:45,839
Speaker 1: Meaning if you let in a million of anybody, there

601
00:36:45,840 --> 00:36:48,800
Speaker 1: will be a million people who are available to commit

602
00:36:48,920 --> 00:36:51,600
Speaker 1: crime who would otherwise not have committed crime. So if

603
00:36:51,640 --> 00:36:55,640
Speaker 1: even one more person committed crime, that would be true.

604
00:36:55,800 --> 00:36:58,239
Speaker 1: There would be more crime. But the question is is

605
00:36:58,280 --> 00:37:01,880
Speaker 1: the rate of crime higher with this group than with

606
00:37:02,200 --> 00:37:04,880
Speaker 1: previous group? And I don't have a good answer to

607
00:37:04,920 --> 00:37:05,440
Speaker 1: that question.

608
00:37:05,760 --> 00:37:10,200
Speaker 3: You had many other good answers, though lyon very good answers.

609
00:37:10,920 --> 00:37:13,600
Speaker 3: That's Leon Fresco, a partner at Holland and Knight. In

610
00:37:13,680 --> 00:37:17,000
Speaker 3: other legal news today, Trump is asking for his New

611
00:37:17,080 --> 00:37:21,080
Speaker 3: York State hush money criminal trial to be delayed, citing

612
00:37:21,160 --> 00:37:24,319
Speaker 3: his pending immunity appeal, slated to be heard by the

613
00:37:24,440 --> 00:37:28,600
Speaker 3: US Supreme Court next month. The former president is scheduled

614
00:37:28,640 --> 00:37:31,880
Speaker 3: to go on trial March twenty fifth on charges he

615
00:37:32,040 --> 00:37:35,880
Speaker 3: falsified business records to conceal payments he made to porn

616
00:37:35,960 --> 00:37:40,319
Speaker 3: star Stormy Daniels before the twenty sixteen election in order

617
00:37:40,360 --> 00:37:45,600
Speaker 3: to bury her claims about an extramarital affair a decade earlier. Today,

618
00:37:45,719 --> 00:37:49,279
Speaker 3: Trump asked Judge Jan Mrshawan, who's presiding over the hush

619
00:37:49,320 --> 00:37:53,000
Speaker 3: money case, to delay the trial until after the Supreme

620
00:37:53,080 --> 00:37:56,320
Speaker 3: Court rules on his bid for immunity from federal election

621
00:37:56,440 --> 00:38:00,360
Speaker 3: interference charges. The justices are hearing the argument in the

622
00:38:00,400 --> 00:38:03,919
Speaker 3: case on April twenty fifth, but they may not rule

623
00:38:04,000 --> 00:38:06,240
Speaker 3: until the end of June, which is the end.

624
00:38:06,120 --> 00:38:07,240
Speaker 5: Of the term.

625
00:38:07,360 --> 00:38:09,920
Speaker 3: In a ruling made public today, the judge said the

626
00:38:09,920 --> 00:38:14,080
Speaker 3: deadline for motions was February twenty sixth, and that Trump

627
00:38:14,200 --> 00:38:17,719
Speaker 3: quote does not explain the reason for the late filing,

628
00:38:17,840 --> 00:38:20,600
Speaker 3: a mere two and a half weeks before jury selection

629
00:38:20,719 --> 00:38:24,200
Speaker 3: is set to begin. The judge has given prosecutors until

630
00:38:24,239 --> 00:38:27,680
Speaker 3: Wednesday to file a response, but he also directed that

631
00:38:27,760 --> 00:38:31,480
Speaker 3: any lawyer who seeks to file any additional motions must

632
00:38:31,520 --> 00:38:34,520
Speaker 3: get his permission first. And that's it for this edition

633
00:38:34,560 --> 00:38:37,600
Speaker 3: of the Bloomberg Law podcast. Remember You can always get

634
00:38:37,600 --> 00:38:40,319
Speaker 3: the latest legal news by subscribing and listening to the

635
00:38:40,360 --> 00:38:44,400
Speaker 3: show on Apple Podcasts, Spotify, and at bloomberg dot com

636
00:38:44,400 --> 00:38:46,280
Speaker 3: slash podcast slash Law.

637
00:38:46,600 --> 00:38:49,279
Speaker 5: I'm June Grosso and this is Bloomberg