Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 1: We will bring justice to this issue to our community.
Speaker 2: We will not stand for this type of discrimination and racism.
Speaker 3: Los Angeles Mayor Karen Bess slammed the Supreme Court's emergency
Speaker 3: ruling this week that allows ice agents to stop and
Speaker 3: detain people based on their race, language, job, or location,
Speaker 3: factors that a federal judge had found unconstitutional. The ruling
Speaker 3: was six to three, with the conservative justices in the
Speaker 3: majority and the liberals in descent. Immigration advocates like Columbia
Speaker 3: Law School professor Alaura Mukherjee say it means the Court
Speaker 3: has essentially legalized racial profiling.
Speaker 4: What this means in practice is that immigration officers, as
Speaker 4: well as other law enforcement officers, now practically have an
Speaker 4: invitation to engage in racial profiling when they are carrying
Speaker 4: out stops. The effect of this decision is that America
Speaker 4: has become a show me your papers country for the
Speaker 4: overwhelming majority of people of color.
Speaker 3: The ruling was a one paragraph order with no explanation
Speaker 3: at all from the majority. My guest is a leading
Speaker 3: authority on racial profiling, Professor David Harris of the University
Speaker 3: of Pittsburgh Law School. David, I want to start with
Speaker 3: the basics. When can law enforcement stop someone under the
Speaker 3: Fourth Amendment.
Speaker 5: People can be stopped by the police under the Fourth
Speaker 5: Amendment when there is reasonable suspicion that a crime is
Speaker 5: afoot and they may be involved in the crime, and
Speaker 5: reasonable suspicion is less than probable cause, but it is
Speaker 5: based on facts and reasons. Now, when we transition from
Speaker 5: detecting crime to looking at immigration issues, the standard is
Speaker 5: still reasonable suspicion. There must be facts, and there must
Speaker 5: be proper inferences. But what we're looking for, of course,
Speaker 5: is whether a person is in immigration status or not.
Speaker 3: So with this ruling, the Supreme Court put on hold
Speaker 3: a federal judges order tell us about the order at stayed.
Speaker 5: The lower court in Los Angeles had decided that ICE
Speaker 5: and its law enforcement allies were using factors to stop
Speaker 5: people that inevitably led to unconstitutional stops, and the lower
Speaker 5: court had said, you may not use, either alone or
Speaker 5: in combination, the factors of somebody's Hispanic or Latino appearance,
Speaker 5: speaking Spanish or having an accent appearance, that you are
Speaker 5: engaged in low wage work, and being at a location
Speaker 5: associated with day labor, and the Court said, you can't
Speaker 5: do this anymore because I can see from the evidence
Speaker 5: that I took that this is being done in ways
Speaker 5: that violate the Constitution. And what the Supreme Court did
Speaker 5: on its emergency docket was to say, no, no, this
Speaker 5: order will not go into effect. We're holding it for
Speaker 5: now until we have more time to look at it.
Speaker 5: And Justice Kavanaugh wrote an opinion that is not for
Speaker 5: the court, saying that he believed that the administration who
Speaker 5: want to be able to use those factors will succeed
Speaker 5: when they get to a full hearing, that they'll win,
Speaker 5: and therefore Ice and the police allies can go back
Speaker 5: to using those factors when they stop people to see
Speaker 5: if they are in violation of the immigration laws.
Speaker 3: Are they basically saying, well, racial profiling's okay.
Speaker 5: Then what they're doing is they're looking back, and this
Speaker 5: is the best we can tell. We're not really sure, because,
Speaker 5: like you said, there is no opinion, so we're having
Speaker 5: to speculate to some extent. But what they seem to
Speaker 5: be saying, based on the fact that they stopped the
Speaker 5: lower courts ruling which would have put a stop to
Speaker 5: all of this and Justice Kavanaugh's opinion for himself is
Speaker 5: it's okay to use some combination of those four factors
Speaker 5: ethnic appearance, Spanish speaking or accent, appearance of being a
Speaker 5: low wage worker in these particular locations. Now, Kavanaugh was
Speaker 5: clear on saying, you can't just say, well, this person
Speaker 5: looks Mexican and that's enough. But it's a very slippery
Speaker 5: slope down to exactly that point. Our experience with this
Speaker 5: sort of thing goes back many years now. I've been
Speaker 5: studying racial and ethnic profiling for well over thirty years,
Speaker 5: and we've seen it. We've seen exactly this kind of
Speaker 5: thing before. We saw it when Arizona enacted the show
Speaker 5: your Paper statue back in about two thousand and eight
Speaker 5: or so, and Sheriff Joe Rpio went to town on
Speaker 5: that and it was just picking up people because of
Speaker 5: how they looked in their Spanish speaking or their accent.
Speaker 5: And that is racial profiling by any other name. I mean,
Speaker 5: we don't want to call it that, fine, but that's
Speaker 5: what happened. Law enforcement begins to lean on the most
Speaker 5: obvious factors, and that's what the judge saw in Los Angeles,
Speaker 5: and that's why the judge stopped them from doing this
Speaker 5: in the first place. So all of this will move
Speaker 5: immigration enforcement efforts right up to that very same line,
Speaker 5: and we will have people getting picked up just for
Speaker 5: how they look and whether they're Spanish speaking. It's going
Speaker 5: to happen as night follows day.
Speaker 3: And the only way we'll find out what factors the
Speaker 3: immigration officers are relying on is if someone who's detained
Speaker 3: brings a lawsuit, right.
Speaker 5: Exactly, and there will be some cases broad chances there,
Speaker 5: because one of the other effects of this is going
Speaker 5: to be that lots of people will be interrogated and
Speaker 5: even picked up and arrested who are in good order
Speaker 5: as far as immigration law. That's another thing that we see.
Speaker 5: Whenever there is widespread sort of dragnet pulling people in
Speaker 5: on these very basic factors, they end up making mistakes
Speaker 5: when they're allowed to lean on those kind of factors,
Speaker 5: and we will get a few people who end up
Speaker 5: in custody, maybe for a few days, maybe for a
Speaker 5: long time, maybe even getting deported before it can be
Speaker 5: reversed and they can bring a case. Justice Kavanaugh says
Speaker 5: in his opinion, well, look, if everything's in order, they'll
Speaker 5: just let you go and He says it's an important
Speaker 5: problem in Los Angeles because there's an estimate of stake
Speaker 5: two million people who are undocumented in Los Angeles. But
Speaker 5: what he doesn't say is that there are millions more
Speaker 5: who share those characteristics, who have ethnic features of people
Speaker 5: from Latin America, who speak Spanish, who have a Spanish accent,
Speaker 5: and they're going to be swept up in this two
Speaker 5: and that's where the cases will probably come from.
Speaker 3: Just as Kavanaugh said, as for stops of those individuals
Speaker 3: who are legally in the country, the questioning in those
Speaker 3: circumstances is typically brief, and those individuals may promptly go
Speaker 3: free after making clear of the immigration officers that they
Speaker 3: are US citizens or otherwise legally in the United States.
Speaker 3: He doesn't mention that one of the plaintiffs here, Jason
Speaker 3: Brian Gavidia, who's an American citizen, was stopped by immigration agents,
Speaker 3: shoved into a metal fence and his arm was twisted
Speaker 3: behind his back, all the while that he's shouting, I'm American,
Speaker 3: I was born in East LA And there's video of
Speaker 3: it that anyone can see on the internet.
Speaker 4: Literally.
Speaker 3: Gavidia says that he was frightened and the agents took
Speaker 3: his phone and ID. He was released, but he never
Speaker 3: did get his ID card back.
Speaker 5: Yeah, this is going to happen. This is going to
Speaker 5: happen more now that everybody can see, including the ICE
Speaker 5: agents and the police are helping them, that they've been
Speaker 5: given the green light. We will have that happen. It's
Speaker 5: a certainty. And for Justice Cavanaugh to say, hey, it's
Speaker 5: all fine as long as you carrying your papers with it, well,
Speaker 5: I mean, do you carry your birth certificate to work?
Speaker 5: I mean does everybody do that? And even if you do,
Speaker 5: you might not get those things back. You can be
Speaker 5: in big trouble even if you have crushed every t
Speaker 5: and dited every eye and you were born here. So
Speaker 5: I just really took offense at that. I think it's
Speaker 5: somebody who never has to confront these problems making a
Speaker 5: pronouncement he knows nothing about.
Speaker 3: So Justice Sodomayo wrote a stinging descent quote, we should
Speaker 3: not have to live in a country where the government
Speaker 3: can seize anyone who looks Latino, speaks Spanish, and appears
Speaker 3: to work a low wage job. She quoted in nineteen
Speaker 3: seventy five case that said it was unconstitutional for the
Speaker 3: border patrol to stop a car and question its occupants
Speaker 3: when the only ground for suspicion was that they appeared
Speaker 3: to be of Mexican ancestry. Does this shadow docket decision
Speaker 3: contradict that decision or is it broader?
Speaker 5: It's a little broader, But again we're less to speculate
Speaker 5: because it's just on the shadow docket. But that's a
Speaker 5: live question. For sure. There is an older case that
Speaker 5: says things like that you have to go beyond just
Speaker 5: ethnic appearance, But certainly it does also say that same case,
Speaker 5: ethnic appearance counts. And my experience, in the experience of
Speaker 5: those who study this as I have, is that when
Speaker 5: that's a factor that is relied on, even with others
Speaker 5: in the mix, law enforcement leans heavily on. It discounts
Speaker 5: the other factors that may go in the other direction,
Speaker 5: and you get mistakes.
Speaker 3: Immigration advocates fear that this decision will open the door
Speaker 3: to racial profiling across the United States. Do you think
Speaker 3: that now that the Supreme Court has found this is
Speaker 3: okay in Los Angeles, that it will also be okay
Speaker 3: in Chicago or New York or other cities.
Speaker 5: Well, again, we're left without full knowledge of what the
Speaker 5: Supreme Court has done or will do. We don't know
Speaker 5: how far they will go or what they will say
Speaker 5: in the end. But people who know just the headline,
Speaker 5: if they're in the enforcement business, that's how they're going
Speaker 5: to take it. Supreme Court says it's okay to use
Speaker 5: racial or ethnic appearance. They're not even going to make
Speaker 5: the distinction that Justice Kavanaugh does, which is that wouldn't
Speaker 5: be enough by itself. They're going to take it as
Speaker 5: racial profiling is okay. And if it's okay in LA,
Speaker 5: why wouldn't it be okay in Chicago or New York.
Speaker 5: And when they say blood his own, they mean lots
Speaker 5: and lots of people from our force will be out
Speaker 5: there doing this and long range. What you care about
Speaker 5: is public safety. You are doing the wrong things because
Speaker 5: public safety depends on public support. You need the public
Speaker 5: to give the police information about what's what in the neighborhoods.
Speaker 5: If this is happening not just to people who might
Speaker 5: be deported legitimately, let's say, but to people born here
Speaker 5: because they look a certain way. That is going to
Speaker 5: alienate people not just from ice, but from police generally,
Speaker 5: and it makes them less likely to cooperate with any
Speaker 5: policing of any type. So this immigration policy of flooding
Speaker 5: the zone with forces with these low accuracy factors, this
Speaker 5: is going to make it more dangerous for US just
Speaker 5: on the level of regular crime.
Speaker 3: Thanks so much, David. That's Professor David Harris of the
Speaker 3: University of Pittsburgh Law School. Coming up next. How the
Speaker 3: Roberts Court has changed the law. I'm June gross when
Speaker 3: you're listening to Bloomberg. Chief Justice John Roberts famously compared
Speaker 3: judges to umpires during his confirmation hearings in twenty ten.
Speaker 1: Judges are like umpires. Umpires don't make the rules, they
Speaker 1: apply them. The role of an umpire and a judge
Speaker 1: is critical. They make sure everybody plays by the rules.
Speaker 1: But it is a limited role.
Speaker 3: But many legal experts say the Roberts Court has changed
Speaker 3: the rules playing anything but the limited role of an umpire.
Speaker 3: During the twenty years since he's been chief, the Court,
Speaker 3: with its conservative majority and now conservative supermajority, has dramatically
Speaker 3: changed the law on abortion, gun rights, race, religion, federal agencies,
Speaker 3: and presidential power, overturning precedents that got in the way
Speaker 3: and moving the court further and further to the right.
Speaker 3: My guest is constitutional law professor Eric Siegel of Georgia
Speaker 3: State Universal. Eric, what do you think of Robert's comparison
Speaker 3: of justices to umpires.
Speaker 6: Well, Justice Kavanaugh repeated that years later as well, despite
Speaker 6: the mockery of virtually all court watchers pungents across the
Speaker 6: political spectrum on that statement by Justice Roberts, they're not umpires.
Speaker 6: They've never been umpires. In eighteen fifty seven, Congress wanted
Speaker 6: to end slavery in the territories. Congress had the power
Speaker 6: to do that under the Constitution. The Court made up
Speaker 6: a new rule and said no, And from nineteen hundred
Speaker 6: to nineteen thirty six the Court struck down hundreds of
Speaker 6: laws about minimum wages, overtime rules, and labor conditions. The
Speaker 6: Constitution allows Congress to do that. The Court wasn't playing
Speaker 6: like an umpire, And I think conservatives would fairly say
Speaker 6: that cases like rovers Wait were not the justices acting
Speaker 6: like umpires. So no, it was a silly statement when
Speaker 6: he made it. It was even sillier for Justice Kavanaugh
Speaker 6: to repeat it during this confirmation airing. The Constitution is
Speaker 6: a very vague document when it comes to litigation, there
Speaker 6: are some specific things. The president has to be thirty
Speaker 6: five to centers from every state. Inauguration day is January twentieth.
Speaker 6: But we don't litigate those clauses. We litigate due process,
Speaker 6: equal protection, cruel and usual punishment, unreasonable searchers and seizures,
Speaker 6: and so on. It'd be a thing to an umpire
Speaker 6: you get to decide what's fair in a baseball game.
Speaker 6: That's not what umpires do in baseball. They have some discretion.
Speaker 6: Of course, we've told the Supreme Court in effect make
Speaker 6: the constitutional rules for America, and that has nothing to
Speaker 6: do with sports.
Speaker 5: Someone.
Speaker 3: There are a lot of areas where the Roberts Court
Speaker 3: has changed or reshaped the law. Some changes seem dramatic,
Speaker 3: like abortion and gun rights. Other changes, like the laws
Speaker 3: around race, seem slower in coming. Tell us about Robert's role.
Speaker 6: There other than the presidential immunity decision in Trump versus
Speaker 6: the United States, one of the worst opinions in Supreme
Speaker 6: Court history. In my opinion and many others, leaving aside
Speaker 6: that opinion written by Justice Roberts, I think he's done
Speaker 6: the most damage to America when it comes to race,
Speaker 6: and it started in his very first term, when the
Speaker 6: cities of Seattle and Louisville. Let's take Louisville for a minute.
Speaker 6: You know, Louisville had segregation under the law for many,
Speaker 6: many years. Those schools were still segregated. So at the
Speaker 6: very local level, students and teachers and parents and school
Speaker 6: board members and voters got together and came up with
Speaker 6: a very limited plan to make sure that the public
Speaker 6: schools in Louisville had some minimal degree of desegregation so
Speaker 6: that white kids and black kids in Louisville could go
Speaker 6: to school together. And no judge ordered this. This was
Speaker 6: volunteer and in his very first term, the Roberts Court
Speaker 6: struck that down. And that's when Justice Roberts said the
Speaker 6: famous line, the way to stop discrimination based on race
Speaker 6: is to stop discriminating based on race. In the context
Speaker 6: of Louisville, Kentucky, which discriminated in the basis of race
Speaker 6: legally for a century, that's, in my opinion, a very
Speaker 6: bizarre statement. And even Justice Kennedy, who was a fifth
Speaker 6: vote in that case, disagreed with that statement. So it
Speaker 6: started there. Everybody knows that Justice Roberts does not like
Speaker 6: voting rights as a young attorney in the Reagan administration
Speaker 6: in nineteen eighty one, he wrote some scathing things about
Speaker 6: the Voting Rights Act, and then, of course, in Shelby
Speaker 6: County versus Holder, he was able to concoct a new
Speaker 6: rule that Congress can't treat different states differently without a
Speaker 6: strong reason and struck down a law that was passed
Speaker 6: by a unanimous Senate and signed by a Republican president.
Speaker 6: That law was struck down, and then the very next
Speaker 6: day Texas and North Carolina passed the voting rules they
Speaker 6: could not have passed prior to that law being struck down.
Speaker 6: They've also interpreted the Voting Rights Act very narrowly, and
Speaker 6: I think this next year even more narrowly again. And then,
Speaker 6: of course there's the Affirmative Action case, which overturned fifty
Speaker 6: years of president and said colleges and universities are not
Speaker 6: allowed to use race at all in their admissions process.
Speaker 6: It says, if Justice Roberts thinks race was never a
Speaker 6: problem in this country, it's as if he thinks we
Speaker 6: can just snap our fingers and all of our racial
Speaker 6: divisions will go away. And Justice Roberts has really turned
Speaker 6: a cold shoulder to dealing with those problems.
Speaker 3: There was a time when Roberts seemed I guess you
Speaker 3: could describe it as more middle of the road. He
Speaker 3: did write the opinion saving Obamacare, and in the Dobbs decision,
Speaker 3: he wouldn't have gone so far as to actually overturn Roe.
Speaker 3: So is it Roberts that's moving the court to the
Speaker 3: right or is it the three Trump appointees that gave
Speaker 3: the court a conservative supermajority.
Speaker 6: There's no question those three Trump appointees have played and
Speaker 6: will continue to play a significant role in moving the
Speaker 6: court far to the right. But it's also a little
Speaker 6: bit of a myth that Justice Roberts was ever anything
Speaker 6: less than an extremely conservative justice. Yes, he did save
Speaker 6: part of Obamacare. Remember he did not save the medicaid
Speaker 6: part of Obamacare, which was actually a key part of
Speaker 6: that law, and by striking down that part of law,
Speaker 6: the Court did serious damage to Obamacare in complicated ways
Speaker 6: that health policy experts could explain. Before twenty twelve, in
Speaker 6: a seven years preceding that case, he had never joined
Speaker 6: with the liberals in a five to four opinion. Since then,
Speaker 6: he's joined the liberals a few times. And you're right
Speaker 6: about Dobbs but there is no question that he would
Speaker 6: have eventually voted to overturn Row. Justice Roberts' formula has
Speaker 6: been consistently in voting rights, race cases, abortion cases, and
Speaker 6: separation of powers cases. Punch holes in the precedent, punch
Speaker 6: holes in the precedent, then reverse the president. There is
Speaker 6: no doubt he would have eventually voted to overturn Roe
Speaker 6: versus Way. So I think even a five to four
Speaker 6: court run by Justice Roberts would be an extremely conservative court,
Speaker 6: and with the exception of Justice Kennedy's votes on affirmative
Speaker 6: action in gay rights, was an extremely conservative court for
Speaker 6: most of Justice Roberts's court.
Speaker 3: There seems to be a lot of movement lately in
Speaker 3: the area of federal agency authority, and likely more changes
Speaker 3: to come. Tell us what's been happening there.
Speaker 6: Most of the laws that govern American private conduct and companies,
Speaker 6: environmental regulations, food and drug regulations, they all come from
Speaker 6: the executive branch. Congress passes a very broad law saying
Speaker 6: pollution is bad. President, go fix it. Congress passes the
Speaker 6: law saying we want to have to stay food. Executive branch,
Speaker 6: you go ahead and fix that. Well. Donald Trump's a
Speaker 6: businessman who doesn't like regulations. He appointed three justices who
Speaker 6: don't like regulations, and they are doing everything they can
Speaker 6: to make it harder for the executive branch to pass
Speaker 6: regulations such as environmental and food and drug laws. And
Speaker 6: it's very hard for Congress to do it because they
Speaker 6: don't want to politically take the hit. So it's not
Speaker 6: a surprise that this Supreme Court is trying to really
Speaker 6: go back to a nineteen thirty's pre New Deal understanding
Speaker 6: of federal power over the economy because these are people
Speaker 6: who believe, you know, in a tur free marketplace, not
Speaker 6: burdened by government regulation. And of course not just in
Speaker 6: the court, but this is filtering down all through the
Speaker 6: Trump administration. But the justices share that political goal, and
Speaker 6: that's what we're seeing.
Speaker 3: Roberts is the Chief Justice, but his vote is just
Speaker 3: one of nine votes, So how much power does he wield?
Speaker 6: So a very famous lower court judge, maybe the most
Speaker 6: famous lower court judge of our lifetimes, Judge Richard Posner,
Speaker 6: used to say that the Chief Justice really has no
Speaker 6: power except you know, to decide who writes the opinion
Speaker 6: when he's in the majority, and maybe some administrative rules.
Speaker 6: So I have a theory about Chief Justice Roberts's vote
Speaker 6: in the Obamacare case, which is that from two thousand
Speaker 6: and five, when Justice Roberts became the chief to twenty twelve,
Speaker 6: he had no power at all because Justice Kennedy held
Speaker 6: all the power. In that first term, Justice Kennedy was
Speaker 6: in the majority of one hundred percent of five votes,
Speaker 6: and for the next seven years the court went the
Speaker 6: way Justice Kennedy went. Supreme Court justice is a human beings.
Speaker 6: They are people like us. Now they have better jobs
Speaker 6: than most of us, but they aren't like us. And
Speaker 6: you know, Chief Justice Roberts, I think always wanted to
Speaker 6: be on the Supreme Court and always wanted to be
Speaker 6: Chief Justice. I'm not saying he thought he would ever
Speaker 6: get that, but you can't go any higher in the
Speaker 6: law than he went. And he had no power because
Speaker 6: Justice Kennedy had all the power. I think psychologically that
Speaker 6: was a factor in his decision in twenty twelve in
Speaker 6: the Obamacare case. So the story after twenty twelve became, oh,
Speaker 6: Justice Roberts is a swing vote also wasn't really true.
Speaker 6: Today he has very very little power. He has to
Speaker 6: get either Justice Barrett or Justice Kavanaugh or Justice Gorsich
Speaker 6: to agree with him when he doesn't want to rule
Speaker 6: in a conservative fashion, because he's never getting the Leado
Speaker 6: and Thomas to rule with him. So I would say
Speaker 6: he has no more power than Gorsic, Kavanaugh, and Barrett.
Speaker 6: And I'm not even sure he's more power than Justice
Speaker 6: Barrett with the exception. And it's a big deal. When
Speaker 6: he's in the majority, he gets to assign the opinion.
Speaker 6: But other than that, his vote counts the same. And frankly,
Speaker 6: I think he was a little bit scarred in the
Speaker 6: first seven years on the bench when his vote counted
Speaker 6: much less than Justice Kennedy's vote.
Speaker 3: So how do you think he ranks as far as
Speaker 3: chief justices who've led the court?
Speaker 6: My guess is he's going to go down as one
Speaker 6: of the worst chief Justices. And I say this for
Speaker 6: the following reason. History has shown that when the Supreme
Speaker 6: Court lurches far to the left or to the right,
Speaker 6: eventually the political system goes the other direction. So when
Speaker 6: the war In Court went too far to the left,
Speaker 6: and I'm a liberal progressive who will say I think
Speaker 6: the Warren Court went too far to the left, then
Speaker 6: Richard Nixon runs on a law an order campaign run
Speaker 6: a Reagan runs on Roe versus Wade, you know, and
Speaker 6: Republicans hold power for most of that time period. In
Speaker 6: the this Supreme Court, I think, and I think political
Speaker 6: scientists think, is far to the right of the median
Speaker 6: Republican voter, leaving aside the median Democrat voter. So my
Speaker 6: guess is eventually there will be a cycle where the
Speaker 6: political system lurches in the other direction, and then we
Speaker 6: will see just how conservative his court has been. It
Speaker 6: has been very, very conservative, and there are even conservatives today, scholars,
Speaker 6: even from federalist society folks, who are saying things like this,
Speaker 6: respect for precedent is not a conservative value. Right Conservatives
Speaker 6: like the status quo. Progressives want to change the status quote.
Speaker 6: The Roberts Court has been reversing important precedents at I
Speaker 6: think a rate that's probably unheard of in American history.
Speaker 6: I'm not saying they're reversing more cases. The importance is
Speaker 6: are the reversing important cases guns, abortion, affirmative action, separation
Speaker 6: of church and state, separation of powers, and even federalism,
Speaker 6: which traditionally has been a very conservative value. Those areas
Speaker 6: of the law have been dramatically rechhaped in two short decades.
Speaker 6: There's no definition of conservative that I know that suggests
Speaker 6: that judges should be the ones doing it.
Speaker 3: And looking at the term coming up, there may be
Speaker 3: more changes ahead. Thanks so much, Eric, that's professor Eric
Speaker 3: Siegel of the Georgia State University coming up next on
Speaker 3: the Bloomberg Law Show. They say that prosecutors can get
Speaker 3: a grand jury to indict a ham sandwich. Well, it
Speaker 3: seems that doesn't apply to the prosecutors in the DCUs
Speaker 3: Attorney's office. I'm June Grosso and you're listening to Bloomberg.
Speaker 3: You've probably heard the famous saying that prosecutors have so
Speaker 3: much influence on grand juries they could get them to
Speaker 3: indict a ham sandwich. Well maybe not if that prosecutor
Speaker 3: is in the DCUs Attorney's office trying to get a
Speaker 3: gret to indict someone overthrowing a salami sandwich at a
Speaker 3: federal agent. DCUs attorney Janine Piro bragged about charging the
Speaker 3: man who threw the sandwich with a felony of assaulting
Speaker 3: a federal law enforcement officer.
Speaker 4: And then he took a subway sandwich about this big
Speaker 4: and took it and threw it at the officer. He
Speaker 4: thought it was funny. Well, he doesn't think it's funny today,
Speaker 4: because we charge it with a felony assault on a
Speaker 4: police officer, and we're going to back.
Speaker 5: The police to the hilt.
Speaker 4: So there, stick your subway sandwich somewhere else.
Speaker 3: But the grand jury apparently didn't get Piero's joke, and
Speaker 3: the US Attorney's Office didn't get their felony indictment against
Speaker 3: Sean Dunn, known now as the Sandwich Guy. Prosecutors have
Speaker 3: now charged him with a misdemeanor of simple assault, which
Speaker 3: doesn't require a grand jury's input. It's extraordinarily rare for
Speaker 3: a grand jury to refuse to return an indictment, but
Speaker 3: it's happened with DC grand juries at least seven times
Speaker 3: since President Trump ordered a surge in patrols by federal
Speaker 3: agents and troops in the nation's capital. Joining me is
Speaker 3: former federal prosecutor Robert Mintz, a partner Mat Carter. In
Speaker 3: English Bile, people know the basics of the workings of
Speaker 3: a jury even if they haven't been on one, because
Speaker 3: it's depicted so much in the movies and on TV,
Speaker 3: but less so about the workings of a grand jury.
Speaker 3: So tell us about the grand jury.
Speaker 2: A grand jury proceeding is necessary when ever, prosecutors are
Speaker 2: seeking to bring a felony charge. Under the Fifth Amendment,
Speaker 2: there is a requirement for capital or otherwise infamous crime
Speaker 2: to go before a grand jury, which in the federal
Speaker 2: system is between sixteen and twenty two citizens, in order
Speaker 2: to establish probable cause to bring the charge. But that
Speaker 2: means is prosecutors have to ass thankfully present their case
Speaker 2: to the grand jurors in order to bring the indictment,
Speaker 2: and what goes on in the grand jury is entirely
Speaker 2: controlled by prosecutors. It's a presentation in which only the
Speaker 2: prosecutor is present. The defense lawyer is not allowed inside
Speaker 2: the grand jury. The defendant does not get a right
Speaker 2: to testify before the grand jury. It's really the prosecutor
Speaker 2: asking questions of witnesses, who may summarize interviews on other
Speaker 2: evidence that they've gathered, and allow for hear stake to
Speaker 2: be presented to the grand jury to establish whether or
Speaker 2: not there is probable cost to bring that charge. Now
Speaker 2: bear in mind that probable cause is a very low bar.
Speaker 2: It only means that there is a reason to proceed
Speaker 2: with the case and that the prosecutor is able to
Speaker 2: get an indictment and then that case will go to trial.
Speaker 2: But prosecutors can only bring a case that they believe
Speaker 2: that a reasonable jury can convict down the road on
Speaker 2: the standard of trial is beyond reasonable doubt. So getting
Speaker 2: an indictment in front of a grand jury is usually
Speaker 2: a very easy task for prosecutors and is exceedingly rare
Speaker 2: for prosecutors to present a case to a grand jury
Speaker 2: and not have the grand jury return an indictment.
Speaker 3: Has that ever happened to you?
Speaker 2: I was a prosecutor for ten years and I never
Speaker 2: had a single instance in which the grand jury refused
Speaker 2: to indict, and while I was in the office, I
Speaker 2: think it only happened about one time. So it is
Speaker 2: very very rare, and it's rare for a couple of reasons.
Speaker 2: Number One, prosecutors only bring cases where they believe there
Speaker 2: is strong evidence, because again the case has to go
Speaker 2: beyond the charging stage. Prosecutors have to believe that they
Speaker 2: could ultimately convince a jury of proof beyond a reasonable doubt,
Speaker 2: which is the highest standard we have in our legal system.
Speaker 2: And so in order to be able to satisfy that standard,
Speaker 2: there certainly has to at least be probable cause, which
Speaker 2: is the very lowest standard we have in order to
Speaker 2: bring the charges. The other reason is that prosecutors are
Speaker 2: very selective in which cases they bring, and they tend
Speaker 2: to bring cases in which there is overwhelming evidence and
Speaker 2: they believe that they're be able to gain that conviction
Speaker 2: that trial. Otherwise, prosecutors can decline to bring the case,
Speaker 2: or they can bring different charges that would be easier
Speaker 2: for them to prove at a trial.
Speaker 3: And whereas at trial in a criminal case the jurors
Speaker 3: have to be unanimous, in a grand jury, they don't
Speaker 3: have to be unanimous.
Speaker 2: Right, That's exactly right. A criminal trial does have to
Speaker 2: be a unanimous verdict. In order to get what's called
Speaker 2: a true bill, or have grand jurors return an indictment,
Speaker 2: you only need twelve of those grand jurors to vote
Speaker 2: in favor of the indictment.
Speaker 3: One of the cases where the US Attorney's Office couldn't
Speaker 3: get an indictment involved a woman who allegedly tried to
Speaker 3: interfere with the transfer of two people into ice custody,
Speaker 3: and the US Attorney's Office was trying to get an
Speaker 3: indictment for felony assault against a federal officer. Three grand
Speaker 3: juries refused three, so the office opted to charge a
Speaker 3: misdemeanor instead.
Speaker 2: It's very unusual. In order to sustain a charge of
Speaker 2: assaulting a federal officer, prosecutors have to show that the
Speaker 2: federal officer face a fear of death or serious bodily injury,
Speaker 2: and it does carry a penalty of up to eight
Speaker 2: years in prison. So it's very unusual for grand jurys
Speaker 2: to be faced with a potential charge of assaulting a
Speaker 2: federal officer and not return an indictment. There really are
Speaker 2: two possible reasons why that happened, And again, what goes
Speaker 2: on in a grand jury is entirely secret, so we
Speaker 2: don't really know what their reasons are. And when a
Speaker 2: grand jury decides not to return a true bill or
Speaker 2: not to return an indictment, they don't have to give
Speaker 2: any reasons and don't give any reasons. It's simply a
Speaker 2: vote that either is twelve in favor of indictment or
Speaker 2: not twelve in favor of indictment. So at the end
Speaker 2: of the day, we don't really know the grand jury's reasoning,
Speaker 2: but we can surmise that it's really one of two things.
Speaker 2: Either prosecutors hadn't made out their case for probable cause,
Speaker 2: which it only means there's evidence that a crime has
Speaker 2: been committed and that the individual who prosecutors are seeking
Speaker 2: to charge have committed that crime, or the other reason
Speaker 2: is something called jury nullification, which really happens at trials
Speaker 2: more than it happens in front of grand juries. And
Speaker 2: what happens there is that sometimes jurors will hear a
Speaker 2: case and jurors may actually believe that the prosecution has
Speaker 2: met its burden of proof, but for other reasons decide
Speaker 2: that they are not going to vote for a conviction.
Speaker 2: That's something called jury nullification, and it generally happens when
Speaker 2: there's some feeling among jurors that there's been some overreaching
Speaker 2: by prosecutors or some improper conduct by prosecutors. Once again,
Speaker 2: the jury system, just like the grand jury system, is
Speaker 2: entirely secret, and prosecutors as a general rule, never find
Speaker 2: out why jurors vote a particular way unless there is
Speaker 2: some aleked impropriety in the jury process, but otherwise there's
Speaker 2: no way of knowing why jurors vote a particular way.
Speaker 2: All they will know is at the end of the day,
Speaker 2: the jurors did not vote in favor of conviction. And
Speaker 2: sometimes it happens because jurors simply believe that there's something
Speaker 2: improper about the charge, about the nature of the prosecution,
Speaker 2: about the way prosecutors handle the case, and so even
Speaker 2: though prosecutors may have met the burden of proof, the
Speaker 2: jury may decide not to convict. It really is kind
Speaker 2: of an act of civil disobedience by juries, and it
Speaker 2: very rarely happens, but it does happen on occasion.
Speaker 3: You heard Pierro saying we're going to back our police
Speaker 3: to the hilt. And these cases that we've been talking
Speaker 3: about involve assaults of some kind on law enforcement. For example,
Speaker 3: the guy who threw the subway sandwich at the federal officer,
Speaker 3: and there was another case where a guy was accused
Speaker 3: of swinging his arms at a park police officer. So
Speaker 3: is this likely the grand jurys saying they're overcharging these cases.
Speaker 2: Well, we don't really know why grand juries are refusing
Speaker 2: to return indictments here, but I think it's a fair
Speaker 2: assumption that the grand jurors are looking at these charges
Speaker 2: and deciding that either there is no probable cause which
Speaker 2: seems unlikely. The more likely conclusion I think we can
Speaker 2: reach here is that the grandeurs are deciding that prosecutors
Speaker 2: are overcharging, that they're looking at the body camera evidence
Speaker 2: so they can see exactly what went on here and
Speaker 2: asking themselves, while that may have been improper, while the
Speaker 2: defendant may have touched a federal officer, while they may
Speaker 2: have acted improperly, did they really assault them? Were they're
Speaker 2: really intending death or serious bodily harm? And it may
Speaker 2: well be that grandeurs are putting themselves in the shoes
Speaker 2: of the defendant and saying, what would I do in
Speaker 2: that circumstance where maybe I was very upset, or maybe
Speaker 2: the defendant is placed in a situation where they felt
Speaker 2: that what was going on by the National Guard or
Speaker 2: by federal officers was somehow went proper And again, touching
Speaker 2: of a federal officer or any way impeding what's going
Speaker 2: on in terms of federal officers trying to conduct their
Speaker 2: business is improper. But the question is does it amount
Speaker 2: to assaulting a federal officer or is really some lesser
Speaker 2: charge more appropriate. But I think what we can conclude
Speaker 2: here is that in those instances, grandeurs believe that prosecutors
Speaker 2: were overcharging those cases and that while the conduct may
Speaker 2: have been inappropriate, it didn't rise to the level of
Speaker 2: assaulting a federal officer.
Speaker 3: Is a grand jury considered sort of a safeguard against
Speaker 3: prosecutorial overreach.
Speaker 2: Concept of an indictment is enshrined in the Fifth Amendment,
Speaker 2: So even going back to the founding of this country,
Speaker 2: there was always a concern about the government being able
Speaker 2: to bring charges on its own, and that's why we
Speaker 2: have this concept of the grand jury where they hear
Speaker 2: evidence and prosecutors have to convince those grand jurors, who
Speaker 2: are just like any other jurors out there. They are
Speaker 2: randomly selected and then they are questioned and then they're
Speaker 2: made a part of this grand jury and all they
Speaker 2: do is hear evidence for possible charges, and it goes
Speaker 2: on for about a year and a half while they
Speaker 2: sit and hear these cases once a week. But they
Speaker 2: are put in place pursue it to the intent of
Speaker 2: the framers of the Constitution to act at the buffer
Speaker 2: between the government and decisions to charge citizens.
Speaker 3: And also a federal magistrate has criticized the DCUs attorney,
Speaker 3: saying that people are being held in jail while the
Speaker 3: US Attorney is trying to get these indictments from a
Speaker 3: grand jury.
Speaker 2: Again, this is really very unprecedented because usually indictments are
Speaker 2: given very freely, and that really is pretty much the
Speaker 2: case because of the way prosecutors control that whole proceeding.
Speaker 2: So it's very unusual for prosecutors to have to go
Speaker 2: in front of a grand jury multiple times in order
Speaker 2: to try to get an indictment, and all the while
Speaker 2: that's happening, the defendant is remaining in jail. What is
Speaker 2: also extremely unusual is for the US Attorney in Washington,
Speaker 2: d c. To name Piro to get into stick a
Speaker 2: public dispute with a sitting magistrate judge where she is
Speaker 2: calling him out by name and the magistrate judge is
Speaker 2: so openly critical of the US Attorney's office. We rarely
Speaker 2: see that kind of public display between prosecutors and judges. Generally,
Speaker 2: there is a level of trust that judges have in
Speaker 2: the federal government and particularly with regard to the US
Speaker 2: Attorney's offices, and my experience, judges did show a degree
Speaker 2: of deference to federal prosecutors. And when there comes a
Speaker 2: time where judges are no longer trusting. It really does
Speaker 2: throw stand to the gears of the justice.
Speaker 3: System, and that's reportedly happening in other courtrooms as well.
Speaker 3: Thanks Bob. That's Robert Mints of McCarter and English and
Speaker 3: that's it for this edition of The Bloomberg Law Show.
Speaker 3: Remember you can always get the latest legal news on
Speaker 3: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 3: and at www dot bloomberg dot com, slash podcast Slash Law,
Speaker 3: and remember to tune into The Bloomberg Law Show every
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 3: and you're listening to Bloomberg