1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio. 2 00:00:06,480 --> 00:00:10,360 Speaker 1: Roger Stone has always been a controversial figure in American politics, 3 00:00:10,720 --> 00:00:14,080 Speaker 1: and President Trump's commutation of his prison sentence is no 4 00:00:14,240 --> 00:00:18,040 Speaker 1: less controversial. On Friday, Trump issued a commutation for his 5 00:00:18,160 --> 00:00:21,160 Speaker 1: longtime ally, who had been sentenced to three years in 6 00:00:21,280 --> 00:00:24,800 Speaker 1: prison for witness tampering and lying to Congress. Joining me 7 00:00:24,880 --> 00:00:27,840 Speaker 1: is former federal prosecutor Revert Mints, a partner at Carter. 8 00:00:27,920 --> 00:00:33,720 Speaker 1: In English, residential pardon powers are extremely broad. So is 9 00:00:33,760 --> 00:00:38,320 Speaker 1: this pardon of Roger Stone clearly within them. It's absolutely 10 00:00:38,360 --> 00:00:42,680 Speaker 1: within the president's power. The act of pardon is essentially 11 00:00:43,280 --> 00:00:47,280 Speaker 1: the president for giving somebody for a crime that they committed. 12 00:00:47,280 --> 00:00:50,320 Speaker 1: It's rooted in Article to section two of the United 13 00:00:50,320 --> 00:00:54,520 Speaker 1: States Constitution, and it wipes the slate clean for the recipient, 14 00:00:54,640 --> 00:00:59,280 Speaker 1: even halting judicial proceedings that maybe underway. That's what a partner, 15 00:00:59,360 --> 00:01:03,480 Speaker 1: a communtationation. By contrast, which is what the President gave 16 00:01:03,480 --> 00:01:06,880 Speaker 1: to Riser Stone, makes a punishment milder. In this case. 17 00:01:06,920 --> 00:01:10,119 Speaker 1: It eliminated the prison sentence altogether, but it does not 18 00:01:10,319 --> 00:01:13,640 Speaker 1: wipe out the underlying conviction. Just let's go back a 19 00:01:13,720 --> 00:01:18,119 Speaker 1: moment and explain what roger Stone was convicted of and 20 00:01:18,640 --> 00:01:22,720 Speaker 1: the prison term he was facing. Roger Stone went to 21 00:01:22,840 --> 00:01:27,320 Speaker 1: trial facing seven counts. He ultimately was convicted on all 22 00:01:27,360 --> 00:01:30,479 Speaker 1: of those seven counts, including five counts of lying to Congress, 23 00:01:31,000 --> 00:01:34,400 Speaker 1: one count of witness tampering, and one count of obstruction 24 00:01:34,440 --> 00:01:38,560 Speaker 1: of a proceeding. Basically, what those charges focused on was 25 00:01:38,840 --> 00:01:44,000 Speaker 1: stone sworn testimony in September seen before the House Intelligence 26 00:01:44,000 --> 00:01:48,880 Speaker 1: Committee in which he allegedly misled the committee on several 27 00:01:49,000 --> 00:01:52,400 Speaker 1: key elements of their probe. He was also charged with 28 00:01:52,520 --> 00:01:55,720 Speaker 1: witness tampering by urging a former associate, a man named 29 00:01:55,760 --> 00:01:58,760 Speaker 1: Randy Cretico, to exercise his fisthem en and rights and 30 00:01:58,880 --> 00:02:03,080 Speaker 1: to not cooperate with the committee. President Trump has issued 31 00:02:03,520 --> 00:02:08,240 Speaker 1: three dozen clemencies in three years, and critics find a 32 00:02:08,280 --> 00:02:13,280 Speaker 1: problem with them in that he avoids the office of 33 00:02:13,480 --> 00:02:17,960 Speaker 1: Pardon Attorney, which is the office that presidents normally go 34 00:02:18,200 --> 00:02:23,840 Speaker 1: to because it's their duty to examine clemencies. So our 35 00:02:23,880 --> 00:02:28,200 Speaker 1: President Trump has issued twenty five pardons and eleven commutations 36 00:02:28,320 --> 00:02:32,040 Speaker 1: during his term in office. The standard procedure for presidents 37 00:02:32,040 --> 00:02:36,000 Speaker 1: is selected Justice Department that these possible pardons and commutations, 38 00:02:36,000 --> 00:02:39,639 Speaker 1: and they actually have a series of guidelines that they 39 00:02:39,720 --> 00:02:43,240 Speaker 1: enforced in considering whether or not to grant clemency, and 40 00:02:43,440 --> 00:02:48,840 Speaker 1: this department within the Department of Justice investigates and reviews, 41 00:02:48,919 --> 00:02:52,400 Speaker 1: and it makes a recommendation to the president. In this case, 42 00:02:52,639 --> 00:02:57,959 Speaker 1: President Trump tends to not follow the advice of the 43 00:02:58,040 --> 00:03:00,760 Speaker 1: Office of Partner Attorney or in many case says he 44 00:03:00,800 --> 00:03:04,440 Speaker 1: has granted clemencies and situations where a request and not 45 00:03:04,520 --> 00:03:07,480 Speaker 1: even been filed with the Office of Pardon Attorney. So 46 00:03:07,840 --> 00:03:11,840 Speaker 1: he is departing from the standard practice that many presidents 47 00:03:11,880 --> 00:03:13,880 Speaker 1: have used in the past, which is to rely on 48 00:03:14,040 --> 00:03:17,960 Speaker 1: the Department of Justice, the professionals who have institutional knowledge 49 00:03:17,960 --> 00:03:21,080 Speaker 1: of how pardons and clemencies are typically granted, and in 50 00:03:21,120 --> 00:03:24,880 Speaker 1: this case is acting more on his own without following 51 00:03:24,880 --> 00:03:27,240 Speaker 1: those godlines, or, as they said earlier, in many cases, 52 00:03:27,280 --> 00:03:29,560 Speaker 1: without even the request having been made to that office 53 00:03:29,560 --> 00:03:33,560 Speaker 1: in the first place. Many presidents have faced criticism for 54 00:03:33,680 --> 00:03:38,200 Speaker 1: how they used their pardon powers. Some say this particular 55 00:03:38,240 --> 00:03:42,720 Speaker 1: pardon stands out because President Trump is granting clemency to 56 00:03:42,920 --> 00:03:47,800 Speaker 1: someone who is convicted of lying to protect him the president, 57 00:03:48,520 --> 00:03:50,720 Speaker 1: it's useful to put this into context. The history of 58 00:03:50,720 --> 00:03:55,200 Speaker 1: presidential clemencies is replete with disputes over the years of 59 00:03:55,200 --> 00:03:58,360 Speaker 1: whether or not these clemencies ought to have been handed 60 00:03:58,400 --> 00:04:00,760 Speaker 1: down in the first place. As any example in n 61 00:04:02,240 --> 00:04:05,040 Speaker 1: Lawrence Walls, she was then the Independent Council investigating their 62 00:04:05,120 --> 00:04:08,480 Speaker 1: rand contrasts, there filed a new indictment against former Defense 63 00:04:08,480 --> 00:04:13,080 Speaker 1: Secretary Casper Weinberger. Then President H. W. Bush responded the 64 00:04:13,120 --> 00:04:17,640 Speaker 1: next month by pardoning Mr Weinberger and five others. Bill Clinton, 65 00:04:17,680 --> 00:04:20,800 Speaker 1: for example, issued more than a seventy five partners or 66 00:04:20,839 --> 00:04:24,479 Speaker 1: commutations on his last day in office, including one to 67 00:04:24,600 --> 00:04:29,560 Speaker 1: his half brother Roger. Clinton had several other former administration officials. 68 00:04:29,600 --> 00:04:32,960 Speaker 1: He also pardoned Susan McDougall, a former business partner from 69 00:04:32,960 --> 00:04:35,880 Speaker 1: Mark and Saw who spent twenty one months behind bars 70 00:04:35,960 --> 00:04:40,320 Speaker 1: refusing for refusing to cooperate with the Independent Council kind 71 00:04:40,320 --> 00:04:44,040 Speaker 1: of start in the investigation of the Whitewater land venture. 72 00:04:44,440 --> 00:04:46,280 Speaker 1: That case, so it's important to point out, is one 73 00:04:46,320 --> 00:04:49,080 Speaker 1: in which Susan McDougal had already served her sentence and 74 00:04:49,160 --> 00:04:51,880 Speaker 1: has been released. But the biggest fear that came about 75 00:04:51,920 --> 00:04:54,760 Speaker 1: during the Clinton administration was the pardon at the end 76 00:04:54,800 --> 00:04:58,560 Speaker 1: of his term of financier Mark Rich, who had fled 77 00:04:58,600 --> 00:05:01,640 Speaker 1: the country to avoid charge of evading forty billion dollars 78 00:05:01,640 --> 00:05:06,520 Speaker 1: in taxes and obcame clemency after his ex wife, Denise Rich, 79 00:05:06,839 --> 00:05:10,680 Speaker 1: a Democratic donor, contributed money to Mr Clemon's presidential library. 80 00:05:11,240 --> 00:05:14,800 Speaker 1: So there have been other controversial pardons or commutations in 81 00:05:14,839 --> 00:05:19,719 Speaker 1: the past. What sets this apart is that this individual, 82 00:05:19,839 --> 00:05:23,880 Speaker 1: rise or Stone, was the first one to be pardoned 83 00:05:23,920 --> 00:05:28,520 Speaker 1: in connection with the investigation into the alleged ties between 84 00:05:28,520 --> 00:05:31,560 Speaker 1: the Trump campaign and Russia and the dump of the 85 00:05:31,600 --> 00:05:35,240 Speaker 1: Wiki Leaks documents. So the argument for those who are 86 00:05:35,320 --> 00:05:38,120 Speaker 1: critics of this decision is to say that Mr Trump 87 00:05:38,200 --> 00:05:44,680 Speaker 1: essentially rewarded somebody for not cooperating with prosecutors and perhaps 88 00:05:44,760 --> 00:05:50,279 Speaker 1: withholding information ultimately could have led to charges against the president, 89 00:05:50,400 --> 00:05:53,160 Speaker 1: or at least perhaps to have tied the president to 90 00:05:53,360 --> 00:05:57,159 Speaker 1: information that showed that the Trump campaign had knowledge of 91 00:05:57,279 --> 00:06:00,920 Speaker 1: these Wiki Leaks dumps, which were used in the end 92 00:06:01,000 --> 00:06:04,280 Speaker 1: of the campaign to try to discredit Mrs Clinton, who 93 00:06:04,279 --> 00:06:07,600 Speaker 1: was at the time running for presidents against Mr Trump. 94 00:06:08,000 --> 00:06:10,839 Speaker 1: I've been talking to Robert Manson, McCarter and English about 95 00:06:10,839 --> 00:06:15,320 Speaker 1: Trump's commutation of Roger Stone's sentence Roger Stone's case in 96 00:06:15,400 --> 00:06:20,640 Speaker 1: particular has drawn criticism from many people because it was 97 00:06:20,720 --> 00:06:24,839 Speaker 1: also the case in which four prosecutors for the line 98 00:06:24,880 --> 00:06:28,960 Speaker 1: prosecutors in the case resigned from the case rather than 99 00:06:29,680 --> 00:06:33,560 Speaker 1: revised their sentencing recommendation. This case seems to be one 100 00:06:33,640 --> 00:06:38,200 Speaker 1: where time after time there's controversy. In this case has 101 00:06:38,240 --> 00:06:41,760 Speaker 1: been controversial right from the get go. It started with 102 00:06:42,360 --> 00:06:46,840 Speaker 1: the arrest of Roger Stone, where critics of the Department 103 00:06:46,839 --> 00:06:50,239 Speaker 1: of Justice claimed that they came down with an army 104 00:06:50,560 --> 00:06:55,720 Speaker 1: of investigators and FBI agents overkill in the in the 105 00:06:55,800 --> 00:06:58,479 Speaker 1: circumstances of Roger Stone, who was asleep in his house 106 00:06:58,520 --> 00:07:00,760 Speaker 1: with his wife. Uh. And then it just went on 107 00:07:00,880 --> 00:07:05,240 Speaker 1: from there with one controversy after another. The latest controversy 108 00:07:05,360 --> 00:07:09,320 Speaker 1: prior to this commutation of a sentence was the sentencing 109 00:07:09,760 --> 00:07:12,320 Speaker 1: of Riser Stone itself, and that was a case where 110 00:07:12,360 --> 00:07:15,640 Speaker 1: prosecutors had filed the sentencing memorandum calling for Stone to 111 00:07:15,720 --> 00:07:19,800 Speaker 1: receive between seven and nine years in prison. The President 112 00:07:19,840 --> 00:07:23,280 Speaker 1: tweeted that he thought that that recommendation was horrible and 113 00:07:23,480 --> 00:07:26,880 Speaker 1: very unfair and the miscarriage of justice. And then within 114 00:07:27,000 --> 00:07:30,400 Speaker 1: hours the Justice Department told reporters that there was a 115 00:07:30,480 --> 00:07:34,320 Speaker 1: mistake in the filing of that sensing memorandum, which again 116 00:07:34,360 --> 00:07:36,360 Speaker 1: had been filed with the court, had been presented to 117 00:07:36,360 --> 00:07:40,000 Speaker 1: the judge, and the Department of Justice withdrew that recommendation 118 00:07:40,320 --> 00:07:44,160 Speaker 1: and ultimately replaced it with a sentencing memorandum that recommended 119 00:07:44,200 --> 00:07:47,960 Speaker 1: a more lenient sentence, And the move was considered so 120 00:07:48,120 --> 00:07:51,440 Speaker 1: outrageous that the four career prosecutors who were handling the 121 00:07:51,480 --> 00:07:54,560 Speaker 1: trial quit the case in protests. One of them in 122 00:07:54,640 --> 00:07:59,160 Speaker 1: fact resigned from the Department Justice whiltogether, and the revised 123 00:07:59,160 --> 00:08:02,280 Speaker 1: recommendation of ultimately went to the court for more lean 124 00:08:02,440 --> 00:08:06,480 Speaker 1: sentence was signed only by the then acting U S Attorney, 125 00:08:06,520 --> 00:08:09,040 Speaker 1: who had been a former aid of Bill Barr had 126 00:08:09,240 --> 00:08:13,080 Speaker 1: had been installed in the post less than two weeks earlier. Well, 127 00:08:13,080 --> 00:08:16,840 Speaker 1: it's interesting there is ultimately when the sentence was handed down, 128 00:08:17,000 --> 00:08:19,920 Speaker 1: that the jug did hand down a sentence that was 129 00:08:20,040 --> 00:08:24,720 Speaker 1: less severe than the original recommendation by the original prosecutors. 130 00:08:24,760 --> 00:08:28,240 Speaker 1: It was more in line with what the bar recommendation 131 00:08:28,640 --> 00:08:32,840 Speaker 1: m suggested. And Bill barr Uh to this day has 132 00:08:33,040 --> 00:08:37,160 Speaker 1: maintained that the prosecution of Roser Stone was righteous. As 133 00:08:37,200 --> 00:08:39,760 Speaker 1: he put it, he believed it was a legitimate prosecution, 134 00:08:40,080 --> 00:08:43,120 Speaker 1: and he believed the ultimate sentence of forty months was there. 135 00:08:43,280 --> 00:08:46,360 Speaker 1: So he has taken a position directly contrary to the 136 00:08:46,360 --> 00:08:49,440 Speaker 1: President here by believing that the prostitution was not a 137 00:08:49,440 --> 00:08:51,520 Speaker 1: witch chunk, that it was a fair prosecution at the 138 00:08:51,760 --> 00:08:54,320 Speaker 1: at the sentence but ultimately was handed down here was 139 00:08:54,400 --> 00:08:59,400 Speaker 1: the correct one. This means that the conviction against Stone 140 00:08:59,559 --> 00:09:03,679 Speaker 1: is still intact. He's appealing his conviction, says he wants 141 00:09:03,720 --> 00:09:07,560 Speaker 1: to overturn it and clear his name. How difficult is 142 00:09:07,600 --> 00:09:11,680 Speaker 1: it to get a conviction like his reversed on appeal. 143 00:09:12,480 --> 00:09:15,640 Speaker 1: The fact that the President here issued a commutation of 144 00:09:15,720 --> 00:09:19,680 Speaker 1: sentence rather than a part means that the appeal of 145 00:09:19,760 --> 00:09:23,440 Speaker 1: this conviction will continue to go forward. The appeal is 146 00:09:23,679 --> 00:09:27,080 Speaker 1: ensures that the facts tied to the Stone case, which 147 00:09:27,120 --> 00:09:30,199 Speaker 1: includes evidence that the President knew about Wiki Leak's plans 148 00:09:30,280 --> 00:09:36,040 Speaker 1: to release the hacked emails damaging to Mrs Clinton's sixteen campaign, 149 00:09:36,480 --> 00:09:39,200 Speaker 1: that will continue to be an issue. It also means 150 00:09:39,320 --> 00:09:42,400 Speaker 1: that there will be an odd circumstance here where the 151 00:09:42,440 --> 00:09:46,400 Speaker 1: Attorney General William Barr and his Justice Department will continue 152 00:09:46,400 --> 00:09:51,320 Speaker 1: to defend that conviction despite the fact that the President 153 00:09:51,440 --> 00:09:56,000 Speaker 1: has condemned the prosecution as being unfair. The issues on 154 00:09:56,160 --> 00:10:02,040 Speaker 1: appeal are essentially that the charges were politically motivated. Mr 155 00:10:02,160 --> 00:10:05,720 Speaker 1: Stone has claimed that the charges were fabricated and that 156 00:10:05,800 --> 00:10:08,160 Speaker 1: he was denied to stay our trial by an unbiased 157 00:10:08,240 --> 00:10:11,760 Speaker 1: judge and by an honest jury. So he is going 158 00:10:11,800 --> 00:10:14,679 Speaker 1: after a sort of broad range of charges about the 159 00:10:14,840 --> 00:10:18,920 Speaker 1: entire process being unfair, and UH is trying to, I think, 160 00:10:18,920 --> 00:10:23,239 Speaker 1: particularly focus on comments that were made by the jury 161 00:10:23,440 --> 00:10:26,600 Speaker 1: for woman who later it turns out to have been 162 00:10:26,679 --> 00:10:31,640 Speaker 1: someone who has tweeted about the president in an unfavorable way, 163 00:10:31,800 --> 00:10:33,520 Speaker 1: and he's going to argue that he should have been 164 00:10:33,559 --> 00:10:36,160 Speaker 1: granted a new trial based on the fact that this 165 00:10:36,240 --> 00:10:40,160 Speaker 1: jury forum woman had not disclosed certain information about her 166 00:10:40,240 --> 00:10:45,400 Speaker 1: prior political conduct which was UH not supportive of the president. 167 00:10:46,280 --> 00:10:48,840 Speaker 1: The fact that this is a commutation rather than a 168 00:10:48,920 --> 00:10:53,840 Speaker 1: pardon means that Roger Stone can still plead the fifth 169 00:10:53,960 --> 00:10:59,040 Speaker 1: if he's ever called to testify against the president. One 170 00:10:59,120 --> 00:11:04,360 Speaker 1: of the distinctions between the pardon and the commutation is 171 00:11:04,400 --> 00:11:09,360 Speaker 1: that not only is the underlying conviction still standing, which 172 00:11:09,400 --> 00:11:12,200 Speaker 1: gives riser Stone the right to clear his name, which 173 00:11:12,240 --> 00:11:14,360 Speaker 1: is what riser Stone wanted. By the way, he was 174 00:11:14,400 --> 00:11:16,800 Speaker 1: not looking for a full pardon because he believes that 175 00:11:16,840 --> 00:11:19,960 Speaker 1: he was wrongly convicted and wants the opportunity to clear 176 00:11:20,000 --> 00:11:23,920 Speaker 1: his name in court. But one of the other consequences 177 00:11:23,960 --> 00:11:28,080 Speaker 1: of the commutation is that it raises this interesting question 178 00:11:28,240 --> 00:11:30,920 Speaker 1: about whether Mr Stone will continue to have a Fifth 179 00:11:30,920 --> 00:11:33,840 Speaker 1: Amendment right if he were to be subpoened before a 180 00:11:33,880 --> 00:11:38,200 Speaker 1: grand jury and ask questions about his involvement with Wicky 181 00:11:38,280 --> 00:11:40,720 Speaker 1: Leaks and what he may or may not have told 182 00:11:40,760 --> 00:11:45,480 Speaker 1: the President about that situation during the campaign. Does the 183 00:11:45,559 --> 00:11:50,439 Speaker 1: President commuting Roger Stone's sentence before he goes to prison 184 00:11:50,880 --> 00:11:54,400 Speaker 1: and before he appeals his case, does it put a 185 00:11:54,520 --> 00:12:00,640 Speaker 1: question mark about the fairness of the justice system. Critics 186 00:12:00,679 --> 00:12:03,319 Speaker 1: of the president would suggest that he has wielded the 187 00:12:03,400 --> 00:12:08,000 Speaker 1: pardon power in a more overtly political way than many 188 00:12:08,040 --> 00:12:12,040 Speaker 1: of his predecessors. For example, the President pardoned former Arizona 189 00:12:12,120 --> 00:12:17,560 Speaker 1: Sheriff Joe or Pio in August of regarding our Pio's 190 00:12:17,679 --> 00:12:22,200 Speaker 1: ongoing legal battle and his conviction for contempt of court. 191 00:12:22,600 --> 00:12:24,520 Speaker 1: That was a case in which our Pio had been 192 00:12:24,559 --> 00:12:30,200 Speaker 1: supporting the President's agenda regarding illegal immigration. Another example was 193 00:12:30,320 --> 00:12:34,640 Speaker 1: the partnering of Scooter Libby, who was former Vice President 194 00:12:34,679 --> 00:12:38,640 Speaker 1: Dick Cheney's age, he was pardoned by the president. Another 195 00:12:38,720 --> 00:12:42,560 Speaker 1: pardon that many people viewed as more political than in 196 00:12:42,600 --> 00:12:45,480 Speaker 1: the national interest was a pardon of former New York 197 00:12:45,480 --> 00:12:48,120 Speaker 1: City Police Commissioner Bernie Carrick, who was sinced to four 198 00:12:48,160 --> 00:12:51,280 Speaker 1: years in prison for failure to pay taxes. I'm lying 199 00:12:51,320 --> 00:12:55,120 Speaker 1: to White House officials. He also pardoned former Illinois Governor 200 00:12:55,200 --> 00:12:58,960 Speaker 1: Rod Blogoyevic to Democrats, had been convicted of public corruption, 201 00:12:59,320 --> 00:13:03,200 Speaker 1: and it actually been on the President's reality television show, 202 00:13:03,240 --> 00:13:05,559 Speaker 1: which is how he got to know him. So there 203 00:13:05,679 --> 00:13:10,440 Speaker 1: is this thread going through many of President Trump's pardons 204 00:13:10,440 --> 00:13:13,880 Speaker 1: and commutations in which each of these individuals either know 205 00:13:14,000 --> 00:13:17,000 Speaker 1: him personally or no, a family member or no. Somebody 206 00:13:17,200 --> 00:13:20,840 Speaker 1: knows it well. And each of these individuals, at least 207 00:13:20,840 --> 00:13:24,120 Speaker 1: in the President's eyes, were either wrongly convicted or given 208 00:13:24,160 --> 00:13:26,840 Speaker 1: a sentence that was too harsh. But they all in 209 00:13:26,960 --> 00:13:30,480 Speaker 1: some way are tied either to the President personally or 210 00:13:30,520 --> 00:13:32,960 Speaker 1: to the president's agenda. And that's why many of the 211 00:13:33,000 --> 00:13:37,040 Speaker 1: critics are saying that he's using the presidential partner computation 212 00:13:37,080 --> 00:13:40,440 Speaker 1: power in a way that is unprecedented and inconsistent with 213 00:13:40,520 --> 00:13:44,320 Speaker 1: the way the former presidents have used this very important 214 00:13:44,640 --> 00:13:53,439 Speaker 1: and essentially unchecked power. That's Robert McCarter and English. The 215 00:13:53,559 --> 00:13:57,920 Speaker 1: government backed down from a high profile confrontation with Harvard University, 216 00:13:58,160 --> 00:14:00,760 Speaker 1: M I T and hundreds of other college just over 217 00:14:00,880 --> 00:14:04,360 Speaker 1: foreign student visas, ending a standoff that could have sent 218 00:14:04,480 --> 00:14:07,600 Speaker 1: thousands of foreign students back to their home countries and 219 00:14:07,720 --> 00:14:11,000 Speaker 1: left schools scrambling to plan for the fall. A federal 220 00:14:11,040 --> 00:14:13,600 Speaker 1: judge announced the government had agreed to rescind a new 221 00:14:13,679 --> 00:14:17,320 Speaker 1: policy requiring international students to take at least one in 222 00:14:17,400 --> 00:14:21,400 Speaker 1: person class, permitting the foreign students to take online classes 223 00:14:21,480 --> 00:14:24,840 Speaker 1: only during the health crisis. Joining me is Leon Fresco, 224 00:14:24,960 --> 00:14:27,840 Speaker 1: a partner at Hollandon Knight. Leon. Let's start with a 225 00:14:27,840 --> 00:14:31,160 Speaker 1: little bit of background explain what the government did in 226 00:14:31,200 --> 00:14:35,400 Speaker 1: its July six directive. So here's what happened. We had 227 00:14:35,400 --> 00:14:39,520 Speaker 1: a normally functioning student visa system for many, many years, 228 00:14:40,040 --> 00:14:44,000 Speaker 1: and then when COVID nineteen struck America in January and 229 00:14:44,040 --> 00:14:47,880 Speaker 1: then really really started to strike in March, I started 230 00:14:47,920 --> 00:14:52,040 Speaker 1: to have a problem because university started closing down. And 231 00:14:52,080 --> 00:14:54,520 Speaker 1: so the question was what would I do with all 232 00:14:54,560 --> 00:14:57,680 Speaker 1: of these foreign students? Because the existing state of The 233 00:14:57,760 --> 00:15:01,160 Speaker 1: law had been for many years that you cannot get 234 00:15:01,240 --> 00:15:04,440 Speaker 1: a student visa to come to America to take fully 235 00:15:04,560 --> 00:15:07,880 Speaker 1: online classes. The limit was you can only take three 236 00:15:07,880 --> 00:15:10,720 Speaker 1: hours a week of online class and you needed to 237 00:15:10,760 --> 00:15:14,240 Speaker 1: take at least nine additional hours per weeks of in 238 00:15:14,360 --> 00:15:18,080 Speaker 1: person education. So that's the law, that's the laws that existence. 239 00:15:18,320 --> 00:15:22,920 Speaker 1: I suspended that law in March because obviously students had 240 00:15:22,960 --> 00:15:26,360 Speaker 1: paid tuition they did here and there was no use 241 00:15:26,400 --> 00:15:28,520 Speaker 1: in saying they have to leave anyway because there were 242 00:15:28,520 --> 00:15:31,040 Speaker 1: no planes that would have taken them home. And so 243 00:15:31,080 --> 00:15:35,360 Speaker 1: they said students can finish their term online and this 244 00:15:35,400 --> 00:15:38,680 Speaker 1: would create no problems. The question that became now that 245 00:15:38,720 --> 00:15:42,240 Speaker 1: we had some time and some critical distance, what would 246 00:15:42,280 --> 00:15:45,680 Speaker 1: you do with September in a world where it was 247 00:15:45,760 --> 00:15:49,320 Speaker 1: unclear whether schools would stay open, whether they would close 248 00:15:49,400 --> 00:15:51,800 Speaker 1: down and do online, or whether they would do a 249 00:15:51,840 --> 00:15:55,040 Speaker 1: bix of both. And so then because of that, I 250 00:15:55,280 --> 00:15:58,960 Speaker 1: thought about the problem and the issue guidance that said, 251 00:15:59,520 --> 00:16:03,360 Speaker 1: if the who has any in person components, then the 252 00:16:03,440 --> 00:16:05,680 Speaker 1: students could remain in the United States and go to 253 00:16:05,720 --> 00:16:08,960 Speaker 1: the school. But if the school was a fully online school, 254 00:16:09,400 --> 00:16:12,840 Speaker 1: there was no reason for the students to remain in 255 00:16:12,880 --> 00:16:16,640 Speaker 1: the United States. And so there's so many dimensions and 256 00:16:16,680 --> 00:16:19,320 Speaker 1: the levels to look at that problem. Because if you 257 00:16:19,320 --> 00:16:23,920 Speaker 1: look at it as purely appointing headed immigration questions, I 258 00:16:24,040 --> 00:16:27,680 Speaker 1: have no doubt that that's the correct decision, because you 259 00:16:27,840 --> 00:16:31,400 Speaker 1: can't be in America for the purpose of doing something 260 00:16:31,480 --> 00:16:34,560 Speaker 1: that the visa does not permitt you to do. But 261 00:16:34,640 --> 00:16:37,600 Speaker 1: if you look at it as a practical question, you 262 00:16:37,680 --> 00:16:40,920 Speaker 1: start asking yourselves, well, what are these actual human beings 263 00:16:40,960 --> 00:16:43,720 Speaker 1: who are here supposed to do? Are they supposed to, 264 00:16:44,440 --> 00:16:46,640 Speaker 1: you know, they now paid for two years of college 265 00:16:46,720 --> 00:16:49,200 Speaker 1: or three years of college. Are they supposed to go 266 00:16:49,240 --> 00:16:51,400 Speaker 1: home and risk that they'll never come back again and 267 00:16:51,480 --> 00:16:53,640 Speaker 1: never be able to us in this school. Are they 268 00:16:53,640 --> 00:16:58,760 Speaker 1: supposed to subject themselves to flight that might in endanger them? 269 00:16:59,160 --> 00:17:02,080 Speaker 1: Are they supposed to, you know, go to school where 270 00:17:02,120 --> 00:17:04,760 Speaker 1: that might endanger them? Whereas you know, there is a 271 00:17:04,840 --> 00:17:07,399 Speaker 1: very simple solusion which the people stay home with is 272 00:17:07,400 --> 00:17:10,560 Speaker 1: what they've been doing and takes the classes. And so 273 00:17:10,640 --> 00:17:13,760 Speaker 1: if you look at it from that perspective, it seems 274 00:17:14,080 --> 00:17:16,639 Speaker 1: very harsh, you know, what you would do to these 275 00:17:16,720 --> 00:17:21,359 Speaker 1: foreign students. And so those are the two main competing issues, 276 00:17:21,400 --> 00:17:24,840 Speaker 1: plus the third issue of the general desire by this 277 00:17:24,960 --> 00:17:28,600 Speaker 1: administration to want to open schools, and they're desire to 278 00:17:28,720 --> 00:17:31,840 Speaker 1: use any lever possible to accomplish that. Are there some 279 00:17:32,000 --> 00:17:35,480 Speaker 1: students who actually might not be able to return home 280 00:17:35,640 --> 00:17:39,520 Speaker 1: because of restrictions in their country on people coming from 281 00:17:39,520 --> 00:17:44,880 Speaker 1: the United States. There are countries that have completely banned 282 00:17:45,119 --> 00:17:48,760 Speaker 1: re entry of anybody from that country. So, for instance, 283 00:17:48,760 --> 00:17:52,399 Speaker 1: if you're coming from Venezuela or you're coming from some 284 00:17:52,520 --> 00:17:55,280 Speaker 1: other countries in South America, you just can't come back 285 00:17:55,400 --> 00:17:58,439 Speaker 1: in the country. There are others where it's hard to 286 00:17:58,520 --> 00:18:01,479 Speaker 1: get in but it can be done, and there are 287 00:18:01,520 --> 00:18:04,480 Speaker 1: others where it's easier to get in. So it just 288 00:18:04,520 --> 00:18:08,280 Speaker 1: depends on the student. And that's the perfect that's the 289 00:18:08,320 --> 00:18:12,040 Speaker 1: perfect kind of thing where if you had a blanket rule, 290 00:18:12,440 --> 00:18:14,359 Speaker 1: what you would want to do is put an exception 291 00:18:14,400 --> 00:18:17,680 Speaker 1: in for that exact concept, which is fine. You want 292 00:18:17,680 --> 00:18:20,600 Speaker 1: to have a rule that says you can't study purely online. 293 00:18:21,080 --> 00:18:23,399 Speaker 1: One of the exceptions you might want to build into 294 00:18:23,440 --> 00:18:27,119 Speaker 1: that is but if the student can't return home because 295 00:18:27,119 --> 00:18:30,480 Speaker 1: there are no flights available to that students country, then 296 00:18:30,600 --> 00:18:32,600 Speaker 1: that might want to be an exception that you make 297 00:18:32,800 --> 00:18:37,880 Speaker 1: for instance. So these are rules of ICE. Does ICE 298 00:18:37,920 --> 00:18:42,240 Speaker 1: have the power to make these rules and regulations on 299 00:18:42,320 --> 00:18:45,399 Speaker 1: its own? Yeah, So what happens is there's a student 300 00:18:45,480 --> 00:18:49,480 Speaker 1: needs a statute that's created by Congress in the Immigration 301 00:18:49,480 --> 00:18:53,320 Speaker 1: of Nationality Act, and that gives broad delegations to the 302 00:18:53,359 --> 00:18:56,880 Speaker 1: Department of Homeland Security RID Large, which sends the Department 303 00:18:56,880 --> 00:19:00,719 Speaker 1: of Homeland Security then designated to I to run this 304 00:19:00,760 --> 00:19:04,040 Speaker 1: thing called the Student and Exchange Visitor Programs. And the 305 00:19:04,080 --> 00:19:08,080 Speaker 1: Student Exchanged Visitor Program issued regulations a long time ago 306 00:19:08,240 --> 00:19:11,760 Speaker 1: that were done appropriately, with notice in comment, and with 307 00:19:11,800 --> 00:19:14,760 Speaker 1: all the proper procedures that said, when you come here 308 00:19:14,760 --> 00:19:17,000 Speaker 1: to the United States, you have to be coming to 309 00:19:17,040 --> 00:19:20,720 Speaker 1: the United States to physically attend school and could only 310 00:19:20,800 --> 00:19:25,320 Speaker 1: spend no more than three hours offline. Those rules were relaxed, 311 00:19:25,400 --> 00:19:27,560 Speaker 1: and what could argue there was no basis to relax 312 00:19:27,600 --> 00:19:31,159 Speaker 1: those rules. But in the end, nobody was going to 313 00:19:31,320 --> 00:19:33,119 Speaker 1: oppose that because we were in the middle of a 314 00:19:33,160 --> 00:19:36,960 Speaker 1: COVID crisis. But those rules were relaxed to say that 315 00:19:37,080 --> 00:19:41,560 Speaker 1: students could fully attend online last semester. The question was 316 00:19:41,920 --> 00:19:45,400 Speaker 1: whether those relaxed rules should be maintained for this semester. 317 00:19:46,240 --> 00:19:50,040 Speaker 1: Liam was there any common claim in all these federal lawsuits. Yeah, 318 00:19:50,080 --> 00:19:53,439 Speaker 1: there's basically three separate claims, and by the way, there 319 00:19:53,440 --> 00:19:56,479 Speaker 1: should be more claims, I think, but there's three basic claims. 320 00:19:56,560 --> 00:19:59,199 Speaker 1: One claim is that this was a new rule that 321 00:19:59,240 --> 00:20:02,800 Speaker 1: was announced with a formal notice and comment rulemaking. That's 322 00:20:02,880 --> 00:20:06,000 Speaker 1: number one. That's the simple enough claim. Eating you know 323 00:20:06,040 --> 00:20:08,720 Speaker 1: you're changing the whole system here, How are you going 324 00:20:08,760 --> 00:20:11,359 Speaker 1: to do that unless you put notice in comments. The 325 00:20:11,440 --> 00:20:15,879 Speaker 1: second was that the rule itself as arbitrary and capricius 326 00:20:15,920 --> 00:20:19,400 Speaker 1: because it's not serving a purpose. And so the way 327 00:20:19,440 --> 00:20:22,320 Speaker 1: that would play out is the judge would ask what 328 00:20:22,440 --> 00:20:26,119 Speaker 1: is the purpose of this rule, and the government's going 329 00:20:26,160 --> 00:20:27,880 Speaker 1: to have to say, well, the purpose of this rule 330 00:20:27,960 --> 00:20:32,600 Speaker 1: is to keep people out who aren't legitimate students. And 331 00:20:32,680 --> 00:20:34,919 Speaker 1: the point would be in return, well, we already know 332 00:20:35,040 --> 00:20:38,120 Speaker 1: these are are legitimate students. They've been here, they've been studying. 333 00:20:38,520 --> 00:20:41,600 Speaker 1: This isn't about issue in some new visas. This is 334 00:20:41,640 --> 00:20:45,000 Speaker 1: about the legitimate students that were already here. Why can't 335 00:20:45,000 --> 00:20:48,399 Speaker 1: they just stay here and finish their degree? And I 336 00:20:48,520 --> 00:20:51,320 Speaker 1: think it will be hard to articulate a reason why 337 00:20:51,359 --> 00:20:54,160 Speaker 1: you need to punish those people and kick them out 338 00:20:54,160 --> 00:20:56,840 Speaker 1: of the country rather than let them finish their degree here. 339 00:20:57,480 --> 00:20:59,560 Speaker 1: And then the third one is sort of a due 340 00:20:59,560 --> 00:21:02,760 Speaker 1: process type of claim, with the sort of the idea 341 00:21:02,840 --> 00:21:08,040 Speaker 1: that the government's endangering the safety of these individuals who 342 00:21:08,040 --> 00:21:10,320 Speaker 1: are here by either forcing them to go to school, 343 00:21:10,359 --> 00:21:13,359 Speaker 1: which might endanger their safety, or by forcing them to 344 00:21:13,440 --> 00:21:16,639 Speaker 1: take an airplane that they don't, you know, want to 345 00:21:16,680 --> 00:21:19,679 Speaker 1: take if they're sick or whatever, that might endanger them 346 00:21:19,720 --> 00:21:22,080 Speaker 1: if they're taking one or two or three or four flights, 347 00:21:22,160 --> 00:21:24,960 Speaker 1: however many it takes to get to their ultimate destinations, 348 00:21:25,280 --> 00:21:28,320 Speaker 1: that that entire process could endanger the person as well, 349 00:21:28,880 --> 00:21:30,880 Speaker 1: and that that would be a reason that you would 350 00:21:30,920 --> 00:21:33,919 Speaker 1: build some sort of health exception into this. The government 351 00:21:33,960 --> 00:21:37,520 Speaker 1: capitulated only eight days after it had announced the directive. 352 00:21:37,920 --> 00:21:41,399 Speaker 1: The judge announced the recision of the directive at the 353 00:21:41,480 --> 00:21:45,000 Speaker 1: very start of the hearing in Boston. What happened, I 354 00:21:45,119 --> 00:21:48,560 Speaker 1: think what happened was there were so many lawsuits that 355 00:21:48,680 --> 00:21:51,440 Speaker 1: had been filed in the last twenty four hours. It 356 00:21:51,520 --> 00:21:55,080 Speaker 1: was gonna have to be defended in so many different venues. 357 00:21:55,400 --> 00:21:57,920 Speaker 1: And the fact that the results of all of those 358 00:21:57,920 --> 00:22:00,600 Speaker 1: different lawsuits would have meant that by the tide you 359 00:22:00,680 --> 00:22:03,119 Speaker 1: got to the Supreme court, it would have been in 360 00:22:03,160 --> 00:22:07,520 Speaker 1: the middle of the semester. I think they decided it's 361 00:22:07,560 --> 00:22:10,560 Speaker 1: not worth it to have this kind of uncertainty for 362 00:22:10,720 --> 00:22:14,359 Speaker 1: students here who are ultimately trying to figure out what 363 00:22:14,440 --> 00:22:17,360 Speaker 1: the law is to supply by and they can't control 364 00:22:17,400 --> 00:22:19,840 Speaker 1: either what their school does or what these courts do, 365 00:22:20,440 --> 00:22:22,960 Speaker 1: and so I think that's why they pulled out of disguised. 366 00:22:23,440 --> 00:22:27,200 Speaker 1: So where does this leave their their guidance where so 367 00:22:27,400 --> 00:22:29,600 Speaker 1: we have been talking about the concept of do they 368 00:22:29,720 --> 00:22:33,040 Speaker 1: revert back to the original regulations or to March and 369 00:22:33,160 --> 00:22:36,440 Speaker 1: so what was actually quite stunning is that they reverted 370 00:22:36,480 --> 00:22:39,919 Speaker 1: back to March. So the guidance is at the moment 371 00:22:40,040 --> 00:22:43,200 Speaker 1: that if you are pursuing your course of study, even 372 00:22:43,240 --> 00:22:45,919 Speaker 1: if it's completely online, you could do it from the 373 00:22:46,000 --> 00:22:50,640 Speaker 1: United States. Now what's still unclear is whether visas will 374 00:22:50,680 --> 00:22:53,359 Speaker 1: be granted, because some embassies are opening this week and 375 00:22:53,440 --> 00:22:55,680 Speaker 1: next week for people who are going to come to 376 00:22:55,720 --> 00:22:59,879 Speaker 1: the United States to do only online education. At the moment, 377 00:23:00,040 --> 00:23:04,800 Speaker 1: there's nothing theoretically preventing that. But my suspicion is that 378 00:23:05,160 --> 00:23:08,240 Speaker 1: somewhere along the line, the administration is going to try 379 00:23:08,359 --> 00:23:12,000 Speaker 1: to block that again, because it's one thing to treat 380 00:23:12,040 --> 00:23:15,120 Speaker 1: the people here fairly. But it's another thing to see 381 00:23:15,160 --> 00:23:18,280 Speaker 1: whether the administration will let people come to the United 382 00:23:18,280 --> 00:23:22,280 Speaker 1: States for the purpose of studying online. This March guidance, 383 00:23:22,480 --> 00:23:26,600 Speaker 1: this guidance now wasn't adopted under the rules of the 384 00:23:26,640 --> 00:23:31,199 Speaker 1: Administrative Procedure Act, correct, It was just emergency. It was 385 00:23:31,240 --> 00:23:35,280 Speaker 1: an emergency memorandum that said, we will not say that 386 00:23:35,359 --> 00:23:37,800 Speaker 1: anyone is out of status as long as they're taking 387 00:23:38,200 --> 00:23:41,159 Speaker 1: that classes they're supposed to take, regardless of whether they 388 00:23:41,200 --> 00:23:44,880 Speaker 1: are online or not. And what the administration has decided 389 00:23:44,920 --> 00:23:47,440 Speaker 1: to do by settlement, which there are certainly allowed to do, 390 00:23:48,040 --> 00:23:50,919 Speaker 1: and if it becomes a settlement effectually entered by the courts, 391 00:23:50,960 --> 00:23:53,600 Speaker 1: and that's the force of law, so that's even stronger 392 00:23:53,920 --> 00:23:56,440 Speaker 1: than a regulation, which would be to keep the March 393 00:23:56,520 --> 00:23:59,520 Speaker 1: guidance going for a certain period. So we'd have to 394 00:23:59,560 --> 00:24:02,600 Speaker 1: see what's in the actual settlement. But the Court a 395 00:24:02,760 --> 00:24:05,720 Speaker 1: orally announced the settlement. And what the court said is 396 00:24:05,760 --> 00:24:09,120 Speaker 1: that that orally that that settlement is that they will 397 00:24:09,160 --> 00:24:11,320 Speaker 1: revert back to the March guidance and they will in 398 00:24:11,400 --> 00:24:14,160 Speaker 1: no way try to enforce any of the guidance that's 399 00:24:14,160 --> 00:24:19,920 Speaker 1: benetued in July. What does the law say about international students? 400 00:24:19,960 --> 00:24:24,120 Speaker 1: The regulations that governance the student in exchange visitor program 401 00:24:24,480 --> 00:24:27,720 Speaker 1: says that a student cannot be lawfully in the United 402 00:24:27,800 --> 00:24:31,440 Speaker 1: States if they're taking more than three hours of online classes. 403 00:24:31,800 --> 00:24:36,080 Speaker 1: The March guidance was emergency guidance, which says that the 404 00:24:36,160 --> 00:24:39,080 Speaker 1: student can take entirely online classes as long as they're 405 00:24:39,080 --> 00:24:42,360 Speaker 1: actually taking them and the schools are verifying that they're 406 00:24:42,400 --> 00:24:44,720 Speaker 1: taking them. Expectually, pretty easy for the schools to do 407 00:24:45,119 --> 00:24:49,480 Speaker 1: because you're leaving a digital footprint every time you log into, 408 00:24:49,480 --> 00:24:53,160 Speaker 1: whether it's Zoom or Microsoft Sees or something like that, 409 00:24:53,600 --> 00:24:56,240 Speaker 1: and so the school can certainly verify that the student 410 00:24:56,240 --> 00:24:59,840 Speaker 1: attended the class, and so under that scenario, the student 411 00:25:00,080 --> 00:25:04,240 Speaker 1: maintaining their legal status. It's a little bit mind boggling 412 00:25:04,280 --> 00:25:06,600 Speaker 1: to me that this happened so fast. The rule was 413 00:25:06,640 --> 00:25:09,720 Speaker 1: put in last week and they had the lawsuits filed. 414 00:25:09,920 --> 00:25:13,480 Speaker 1: They didn't even have a full court hearing before they decided, okay, 415 00:25:13,560 --> 00:25:16,680 Speaker 1: we're gonna take it all back. I think what happens, 416 00:25:16,840 --> 00:25:20,159 Speaker 1: and the best example of this in the past was 417 00:25:20,200 --> 00:25:23,439 Speaker 1: the first travel ban, where I think what happens is 418 00:25:23,640 --> 00:25:28,960 Speaker 1: despite the intention of what the law is and what 419 00:25:29,119 --> 00:25:32,080 Speaker 1: the people want to do with the law. They realized 420 00:25:32,119 --> 00:25:35,000 Speaker 1: that the overwhelming weight of lawsuit. So we saw this 421 00:25:35,040 --> 00:25:37,760 Speaker 1: from the travel ban, and we're seeing an ear. Sometimes 422 00:25:37,760 --> 00:25:40,600 Speaker 1: you can actually get to an issue where when you 423 00:25:40,720 --> 00:25:42,680 Speaker 1: get to it, you know you're not gonna be able 424 00:25:42,720 --> 00:25:46,879 Speaker 1: to win. And the problem is, as we said, the 425 00:25:47,000 --> 00:25:49,879 Speaker 1: best case scenario for the administration was going to be 426 00:25:50,000 --> 00:25:53,600 Speaker 1: to revert back to the guidance and literally lead to 427 00:25:53,800 --> 00:25:57,399 Speaker 1: the removal of all the foreign students because no school 428 00:25:57,480 --> 00:26:01,199 Speaker 1: is opening up completely and entirely. And so I just 429 00:26:01,240 --> 00:26:04,439 Speaker 1: think in the end, the administration just didn't want to 430 00:26:04,440 --> 00:26:08,280 Speaker 1: go there because they knew that the financial impact of 431 00:26:08,359 --> 00:26:11,720 Speaker 1: doing that was actually more harmful to the United States 432 00:26:11,800 --> 00:26:14,360 Speaker 1: than keeping people here in the United States who are 433 00:26:14,400 --> 00:26:18,080 Speaker 1: taking money from their parents abroad and buying things and 434 00:26:18,200 --> 00:26:22,320 Speaker 1: renting apartments and you know, buying clothes and food, et cetera, 435 00:26:22,880 --> 00:26:25,560 Speaker 1: and so all of that is actually helpful to our 436 00:26:25,560 --> 00:26:29,320 Speaker 1: economy at this time, as opposed to removing those people 437 00:26:29,400 --> 00:26:32,960 Speaker 1: from the economy. From what you know, the schools didn't 438 00:26:33,000 --> 00:26:37,000 Speaker 1: give in at all. They didn't make any concessions, absolutely not. 439 00:26:37,160 --> 00:26:40,240 Speaker 1: It does that look like any concessions I've been given. 440 00:26:40,320 --> 00:26:43,600 Speaker 1: The only questions that is still left up in the 441 00:26:43,640 --> 00:26:46,919 Speaker 1: air that I don't think I've been resolved by today 442 00:26:47,200 --> 00:26:50,920 Speaker 1: is that the administration agreed to bind itself with regard 443 00:26:51,240 --> 00:26:55,000 Speaker 1: to new individuals coming into the United States. But my 444 00:26:55,119 --> 00:26:57,840 Speaker 1: suspicion is, I don't think at the end of this one, 445 00:26:57,880 --> 00:27:00,320 Speaker 1: this all plays out, that you will be able to 446 00:27:00,320 --> 00:27:03,080 Speaker 1: get a visa to enter the United States to fully 447 00:27:03,080 --> 00:27:06,840 Speaker 1: depend online. Clive, that's Leon Fresco of Holland and Night. 448 00:27:07,440 --> 00:27:11,240 Speaker 1: I'm JOm Bosso and this is Bloomberg. Thank you.