1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,680 --> 00:00:14,239 Speaker 2: The argument went an hour longer than scheduled as a 3 00:00:14,320 --> 00:00:17,400 Speaker 2: DC Federal Appellate court weighed whether to put back in 4 00:00:17,560 --> 00:00:21,759 Speaker 2: place a gag order that barred Donald Trump from comments 5 00:00:21,800 --> 00:00:26,360 Speaker 2: that target prosecutors, potential witnesses, and courts staff in the 6 00:00:26,400 --> 00:00:31,159 Speaker 2: federal election subversion case. Trump's lawyer John Sower argued that 7 00:00:31,200 --> 00:00:34,640 Speaker 2: the former president has an absolute First Amendment right to 8 00:00:34,720 --> 00:00:39,000 Speaker 2: talk about the case, especially because he's running again for president. 9 00:00:39,800 --> 00:00:43,479 Speaker 3: The order is unprecedented and it says a terrible president 10 00:00:43,560 --> 00:00:47,080 Speaker 3: for future restrictions on corpor political speech. This is a 11 00:00:47,159 --> 00:00:49,720 Speaker 3: radical departure from the only cases that have considered this 12 00:00:49,840 --> 00:00:54,120 Speaker 3: particular form of restriction and restriction on a criminal defenderical 13 00:00:54,160 --> 00:00:56,480 Speaker 3: campaign for public office, and it does so in the 14 00:00:56,480 --> 00:01:00,480 Speaker 3: context of a hotly contested campaign for the high office 15 00:01:00,480 --> 00:01:02,080 Speaker 3: in the United States and America. 16 00:01:02,160 --> 00:01:06,480 Speaker 2: But the three judges seemed skeptical of the absolutist arguments 17 00:01:06,480 --> 00:01:10,320 Speaker 2: he was making. Judge Patricia Millett made a distinction between 18 00:01:10,480 --> 00:01:14,800 Speaker 2: campaign speech and speech aimed at derailing or corrupting the 19 00:01:14,800 --> 00:01:16,320 Speaker 2: criminal justice process. 20 00:01:17,280 --> 00:01:20,080 Speaker 1: I'm not tunning out everyone who speaks for only. This 21 00:01:20,120 --> 00:01:22,400 Speaker 1: does only effect no one's shutting down and everyone's. It 22 00:01:22,480 --> 00:01:26,200 Speaker 1: is only affecting the speech temporarily during a criminal frile 23 00:01:26,240 --> 00:01:28,640 Speaker 1: process by someone who has indicted as a felon. No 24 00:01:28,680 --> 00:01:30,880 Speaker 1: one here is threatening the First Amendment. 25 00:01:30,880 --> 00:01:36,160 Speaker 2: Broadly, there's limited legal precedent for restricting speech of political candidates, 26 00:01:36,400 --> 00:01:39,600 Speaker 2: and the stakes are high given the volume and intensity 27 00:01:39,600 --> 00:01:43,120 Speaker 2: of Trump's public comments about the case and the massive 28 00:01:43,200 --> 00:01:47,560 Speaker 2: public platform he holds. Joining me is Joshua Castenberg, a 29 00:01:47,560 --> 00:01:50,680 Speaker 2: professor at the University of New Mexico Law School and 30 00:01:50,760 --> 00:01:54,760 Speaker 2: a former judge in the US Air Force. Trump's lawyer 31 00:01:54,800 --> 00:01:59,920 Speaker 2: pushed an absolutist argument that Trump's speech can't be restrict 32 00:02:00,080 --> 00:02:00,840 Speaker 2: did at all. 33 00:02:01,600 --> 00:02:05,120 Speaker 4: Well, so a person does not have the right to 34 00:02:05,280 --> 00:02:09,440 Speaker 4: try to affect or alter the outcome of a trial 35 00:02:09,560 --> 00:02:16,000 Speaker 4: by intimidating witnesses, intimidating judges, intimidating jurors. But they do 36 00:02:16,040 --> 00:02:18,280 Speaker 4: have a right to defend themselves in the court of 37 00:02:18,320 --> 00:02:22,360 Speaker 4: public opinions. And there's an old case on point called 38 00:02:22,360 --> 00:02:27,079 Speaker 4: Bridges versus California, where a labor leader named Harry Bridges 39 00:02:27,440 --> 00:02:31,600 Speaker 4: was accused of trying to chill a jury chill a 40 00:02:31,680 --> 00:02:36,720 Speaker 4: prosecution against him, and Bridges was held in contempt. You know, 41 00:02:36,800 --> 00:02:40,160 Speaker 4: Harry Bridges was not the most popular of individuals among 42 00:02:40,200 --> 00:02:42,359 Speaker 4: the powers that be because he was the president of 43 00:02:42,440 --> 00:02:46,200 Speaker 4: the Longshoreman's Union and in the midst of the depression 44 00:02:46,320 --> 00:02:50,200 Speaker 4: had engaged in some strike activity. He did, to a 45 00:02:50,200 --> 00:02:53,560 Speaker 4: certain degree, do what Trump is doing now, which is 46 00:02:54,080 --> 00:02:57,880 Speaker 4: take his case to the public. The difference, though, is 47 00:02:57,919 --> 00:03:03,880 Speaker 4: that Bridges was conveying to the public that the longshoreman 48 00:03:04,000 --> 00:03:08,120 Speaker 4: would go on strike again if the prosecution didn't back 49 00:03:08,200 --> 00:03:12,120 Speaker 4: off on him. That's fundamentally different, though, than these hints 50 00:03:12,160 --> 00:03:16,360 Speaker 4: of direct threats to jurors, to the judge, to the prosecutor. 51 00:03:16,520 --> 00:03:20,760 Speaker 4: So it's not a slam dunk case for the former president. 52 00:03:21,200 --> 00:03:24,080 Speaker 4: On the other hand, he does have First Amendment rights, 53 00:03:24,120 --> 00:03:26,720 Speaker 4: and he has the rights to make political speech, and 54 00:03:26,800 --> 00:03:29,960 Speaker 4: so the gag order has to be crafted very narrowly 55 00:03:30,040 --> 00:03:33,600 Speaker 4: because his right to make political speech includes his right 56 00:03:33,680 --> 00:03:36,240 Speaker 4: to object to being prosecuted for a case that he 57 00:03:36,320 --> 00:03:41,000 Speaker 4: believes and some of his followers believe, is being done 58 00:03:41,040 --> 00:03:43,560 Speaker 4: to affect the presidential election against him. 59 00:03:43,800 --> 00:03:46,600 Speaker 2: Trump's attorney said the test was whether there was a 60 00:03:46,640 --> 00:03:50,920 Speaker 2: clear and present danger resulting from his speech. But the 61 00:03:51,120 --> 00:03:54,960 Speaker 2: judges said that Supreme Court President requires there be a 62 00:03:55,080 --> 00:03:59,680 Speaker 2: balancing test that weighs First Amendment rights against protecting the 63 00:03:59,840 --> 00:04:02,480 Speaker 2: entire tegrity of a trial by restricting some of the 64 00:04:02,520 --> 00:04:06,000 Speaker 2: defendant speech. Are the judges writer, or is the defense 65 00:04:06,080 --> 00:04:06,760 Speaker 2: right right? 66 00:04:07,040 --> 00:04:07,200 Speaker 3: Oh? 67 00:04:07,240 --> 00:04:10,040 Speaker 4: The judges are right. Here's the thing. You can have 68 00:04:10,080 --> 00:04:13,680 Speaker 4: an absolutist view of the First Amendment, but when you 69 00:04:13,760 --> 00:04:17,360 Speaker 4: become a defendant or a witness in a criminal case, 70 00:04:17,760 --> 00:04:22,359 Speaker 4: your First Amendment rights do not include putting fear into 71 00:04:22,400 --> 00:04:26,200 Speaker 4: the judicial process. And that's where the balancing test comes up. 72 00:04:26,240 --> 00:04:29,600 Speaker 4: Trump's attorneys are citing to Oliver Wendell Holmes Junior's a 73 00:04:29,680 --> 00:04:32,440 Speaker 4: clear and present change er test that he created in 74 00:04:32,480 --> 00:04:36,680 Speaker 4: a dissent after World War One. That test has nothing 75 00:04:36,720 --> 00:04:41,640 Speaker 4: to do specifically with a defendant on trial. That test 76 00:04:41,720 --> 00:04:44,720 Speaker 4: has to do with general life speech that's made an 77 00:04:44,720 --> 00:04:48,240 Speaker 4: opposition to some government program, and in that case it 78 00:04:48,279 --> 00:04:51,240 Speaker 4: was the draft in World War One. That test has 79 00:04:51,320 --> 00:04:55,880 Speaker 4: nothing to do specifically with a defendant on trial. That 80 00:04:56,040 --> 00:04:59,240 Speaker 4: test has to do with general life speech that's made 81 00:04:59,240 --> 00:05:02,719 Speaker 4: an opposition into some government program, and in that case 82 00:05:02,760 --> 00:05:04,600 Speaker 4: it was the draft in World War one. 83 00:05:05,680 --> 00:05:09,240 Speaker 2: Judge Millett also posed some questions about the potential that 84 00:05:09,360 --> 00:05:13,400 Speaker 2: Trump would try to intimidate witnesses, and she used the 85 00:05:13,440 --> 00:05:15,960 Speaker 2: example of former Vice president Mike Pence. 86 00:05:16,600 --> 00:05:20,080 Speaker 1: Let's assume former Vice President Mike Pence is going to 87 00:05:20,120 --> 00:05:27,920 Speaker 1: testify and it's the night before his testimony. Couldn't the 88 00:05:27,960 --> 00:05:34,600 Speaker 1: defendant tweet out, Mike Pence can still fix this. Mike 89 00:05:34,680 --> 00:05:39,360 Speaker 1: Pence can still do the right thing if he says 90 00:05:39,440 --> 00:05:42,600 Speaker 1: the right stuff tomorrow. First of all, is that communicating 91 00:05:42,600 --> 00:05:43,120 Speaker 1: with the witness? 92 00:05:43,640 --> 00:05:47,520 Speaker 3: Okay, it's just broadcasting a statement of core political social 93 00:05:47,600 --> 00:05:49,040 Speaker 3: media likely. 94 00:05:48,880 --> 00:05:53,320 Speaker 2: Not trying to protect a witness from intimidation seems like 95 00:05:53,880 --> 00:05:57,200 Speaker 2: perhaps the most important reason for a gag order before 96 00:05:57,240 --> 00:05:57,760 Speaker 2: a trial. 97 00:05:58,600 --> 00:06:02,960 Speaker 4: Yeah, so try to intimidate a witness from testifying to 98 00:06:03,040 --> 00:06:06,520 Speaker 4: the truth. What I would say on that is, if 99 00:06:06,560 --> 00:06:10,760 Speaker 4: there's evidence that he's trying to affect pensive testimony from 100 00:06:11,440 --> 00:06:15,920 Speaker 4: not testifying truthfully, then you've got an obstruction of justice. 101 00:06:15,920 --> 00:06:18,680 Speaker 4: In order to prevent a perversion of the judicial process, 102 00:06:18,720 --> 00:06:22,320 Speaker 4: the judge would be in her right or his right 103 00:06:23,000 --> 00:06:27,560 Speaker 4: to issue a ruling a gag order on the individuals. 104 00:06:27,960 --> 00:06:30,280 Speaker 4: So I think the question from the judges and the 105 00:06:30,360 --> 00:06:33,800 Speaker 4: right in that particular case. But you know, Trump is 106 00:06:33,960 --> 00:06:37,479 Speaker 4: very good at saying one thing and then just saying, well, 107 00:06:37,600 --> 00:06:39,880 Speaker 4: you misinterpreted me. And I have a right to speak 108 00:06:39,960 --> 00:06:43,320 Speaker 4: my mind and I have a right to campaign for office. Well, 109 00:06:43,640 --> 00:06:45,960 Speaker 4: both of those are true. He certainly has a right 110 00:06:46,000 --> 00:06:48,600 Speaker 4: to speak his mind, and he certainly has a right 111 00:06:48,640 --> 00:06:51,720 Speaker 4: to campaign for office. But he doesn't have a right 112 00:06:52,360 --> 00:06:55,960 Speaker 4: to pervert the judicial process. And that's where the balancing 113 00:06:56,040 --> 00:06:56,920 Speaker 4: test comes in. 114 00:06:57,360 --> 00:06:59,839 Speaker 2: It looked to me like this was a narrowly tailored order, 115 00:07:00,279 --> 00:07:03,800 Speaker 2: but they did suggest it was broad and that there 116 00:07:03,880 --> 00:07:08,640 Speaker 2: was a distinction between threats and harassment of prosecutors versus 117 00:07:08,680 --> 00:07:10,600 Speaker 2: threats to witnesses or jurors. 118 00:07:11,640 --> 00:07:14,920 Speaker 4: Yeah, they were commenting on Jack Smith's tough skin, and 119 00:07:15,000 --> 00:07:18,000 Speaker 4: the general public would know who Jack Smith is right now. 120 00:07:18,040 --> 00:07:21,280 Speaker 4: And he's in a different role because he's a prosecutor 121 00:07:21,360 --> 00:07:24,360 Speaker 4: than being a juror or a witness. And you know, 122 00:07:24,560 --> 00:07:27,400 Speaker 4: what there is is a mindset, and it's a mindset 123 00:07:27,520 --> 00:07:31,720 Speaker 4: that has come in regarding prosecutors that prosecutors. 124 00:07:31,080 --> 00:07:32,239 Speaker 5: Have to have thick skins. 125 00:07:32,240 --> 00:07:35,280 Speaker 4: They're going to get accused of things, including in court 126 00:07:35,400 --> 00:07:39,680 Speaker 4: sometimes by defense counsel, and they can't fire back, and 127 00:07:40,000 --> 00:07:44,040 Speaker 4: I think that's what's going on here. I mean, Jack Smith, 128 00:07:44,200 --> 00:07:48,000 Speaker 4: I don't think has presented any real evidence yet, and 129 00:07:48,080 --> 00:07:52,040 Speaker 4: maybe there is evidence there that Trump's statements have resulted in, 130 00:07:52,800 --> 00:07:55,720 Speaker 4: you know, a real chill to the ability of the 131 00:07:55,760 --> 00:08:01,120 Speaker 4: prosecutors to do their job as ethical prosecutors. I suppose 132 00:08:01,480 --> 00:08:06,640 Speaker 4: what you could make the argument on is that today, 133 00:08:06,920 --> 00:08:11,880 Speaker 4: when someone liked Donald Trump or someone of public importance 134 00:08:12,720 --> 00:08:15,840 Speaker 4: makes an allegation against someone else, in the world of 135 00:08:15,960 --> 00:08:19,600 Speaker 4: artificial intelligence, in the world of people being able to 136 00:08:19,640 --> 00:08:23,200 Speaker 4: mask who they are as people in terms of their 137 00:08:23,240 --> 00:08:27,160 Speaker 4: real identity, you get all kinds of nasty emails and 138 00:08:27,280 --> 00:08:31,200 Speaker 4: phone calls and bots thrown your way. I've experienced that 139 00:08:31,320 --> 00:08:34,560 Speaker 4: I gave a very neutral comment to the New York 140 00:08:34,640 --> 00:08:38,600 Speaker 4: Times in twenty and seventeen or twenty and sixteen about 141 00:08:39,040 --> 00:08:42,959 Speaker 4: boie Bergdal and all I did was give a history 142 00:08:43,000 --> 00:08:45,360 Speaker 4: of the charge that he was charged with, which was 143 00:08:45,679 --> 00:08:48,720 Speaker 4: desertion also in the face of the enemy and the like. 144 00:08:48,880 --> 00:08:50,240 Speaker 5: And I got a. 145 00:08:50,200 --> 00:08:53,600 Speaker 4: Dozen or more kind of hate emails that my way. 146 00:08:53,679 --> 00:08:55,480 Speaker 4: And it was hard to tell whether they were real 147 00:08:55,559 --> 00:08:59,000 Speaker 4: people in the United States or bots doing it, but 148 00:08:59,040 --> 00:09:01,160 Speaker 4: they seem to know enough about me based on a 149 00:09:01,200 --> 00:09:04,360 Speaker 4: public bio to do that. And I've talked to prosecutors, 150 00:09:04,960 --> 00:09:07,120 Speaker 4: and I've talked to a couple of judges who've said 151 00:09:07,200 --> 00:09:13,520 Speaker 4: on cases that involve people of real important significance, and 152 00:09:13,679 --> 00:09:16,720 Speaker 4: they say it's become routine that they get harassed. And 153 00:09:16,800 --> 00:09:19,920 Speaker 4: so I think Jack Smith's side has a point that 154 00:09:20,840 --> 00:09:25,040 Speaker 4: when Trump argues that you know, he's being prosecuted as 155 00:09:25,040 --> 00:09:27,800 Speaker 4: a political vendetta and he's going to go after Jacksmith, 156 00:09:27,840 --> 00:09:30,920 Speaker 4: he encourages his people to do that, that there really 157 00:09:31,000 --> 00:09:33,880 Speaker 4: is a threat to the judicial process, and that means 158 00:09:33,880 --> 00:09:37,480 Speaker 4: there's a threat to democracy. But the judges are supposed 159 00:09:37,520 --> 00:09:41,079 Speaker 4: to maintain and protect the integrity of the judicial process. 160 00:09:41,160 --> 00:09:44,560 Speaker 4: And I think out of this some of the gag 161 00:09:44,679 --> 00:09:47,160 Speaker 4: order will survive, but some of it will be narrowed. 162 00:09:47,880 --> 00:09:48,120 Speaker 1: Yeah. 163 00:09:48,160 --> 00:09:51,600 Speaker 2: Do you think the narrowing will be basically taking the 164 00:09:51,640 --> 00:09:53,160 Speaker 2: prosecutors out of the equation. 165 00:09:54,200 --> 00:09:56,800 Speaker 4: Yes, I think that's where the narrowing will be, and 166 00:09:56,880 --> 00:09:59,760 Speaker 4: they'll go back to the traditional model of the prosecutor 167 00:10:00,160 --> 00:10:02,880 Speaker 4: to have a tough skin and is in a different 168 00:10:02,920 --> 00:10:04,000 Speaker 4: position altogether. 169 00:10:04,679 --> 00:10:08,160 Speaker 2: Although we do know that all the prosecutors involved in 170 00:10:08,200 --> 00:10:11,760 Speaker 2: these criminal and civil cases have said that they've been 171 00:10:11,840 --> 00:10:14,880 Speaker 2: threatened and their staffs have been threatened. So now the 172 00:10:14,920 --> 00:10:17,199 Speaker 2: defense says, if they lose this, they're going to go 173 00:10:17,240 --> 00:10:20,439 Speaker 2: to the Supreme Court. The Supreme Court has the option 174 00:10:20,520 --> 00:10:22,800 Speaker 2: of taking the case or not taking the case. Do 175 00:10:22,840 --> 00:10:25,760 Speaker 2: you think the Supreme Court will take a gag order 176 00:10:25,800 --> 00:10:26,439 Speaker 2: case like this? 177 00:10:27,520 --> 00:10:30,720 Speaker 4: I don't think the Supreme Court will take a gag 178 00:10:30,840 --> 00:10:35,719 Speaker 4: order case. Normally, we are talking about the former president 179 00:10:35,840 --> 00:10:39,680 Speaker 4: who is campaigning to be president, and that does make 180 00:10:39,720 --> 00:10:42,439 Speaker 4: it somewhat different. I would say it's a fifty to 181 00:10:42,520 --> 00:10:45,800 Speaker 4: fifty chance they will on the one, and the Supreme 182 00:10:45,800 --> 00:10:48,559 Speaker 4: Court doesn't want to set a precedent in terms of 183 00:10:48,640 --> 00:10:50,920 Speaker 4: gag orders. They would set a president in terms of 184 00:10:50,920 --> 00:10:54,400 Speaker 4: a contempt finding. But you know, you've got a former 185 00:10:54,440 --> 00:10:58,120 Speaker 4: president running once more for president, and this has an 186 00:10:58,200 --> 00:11:02,240 Speaker 4: unusual constitutional aspect to it. Beyond the power of the judiciary. 187 00:11:02,320 --> 00:11:06,560 Speaker 4: It has the unusual aspect of how does a candidate 188 00:11:06,600 --> 00:11:11,199 Speaker 4: who's running for office the nation's highest office, have to 189 00:11:11,240 --> 00:11:16,240 Speaker 4: be confined in his speech while facing criminal trials. It's 190 00:11:16,400 --> 00:11:21,520 Speaker 4: almost like it invites the separation of powers analysis to it. 191 00:11:21,520 --> 00:11:25,680 Speaker 2: It's once again unprecedented, which we've said so many times 192 00:11:26,440 --> 00:11:27,800 Speaker 2: with respect to Trump. 193 00:11:28,200 --> 00:11:30,960 Speaker 4: You know, it reminds me in a way of a 194 00:11:31,080 --> 00:11:34,920 Speaker 4: case involving judicial power and the presidency, but it's not 195 00:11:35,040 --> 00:11:38,679 Speaker 4: quite it's not really on point. But it's a nineteen 196 00:11:38,720 --> 00:11:43,720 Speaker 4: twenty four case called ex Parte Grossman. Grossman was a 197 00:11:43,760 --> 00:11:49,240 Speaker 4: bootlegger in Chicago and found guilty of contempt in front 198 00:11:49,280 --> 00:11:52,880 Speaker 4: of Judge Kennesaw Mountain Landis, who you know, is sort 199 00:11:52,880 --> 00:11:55,480 Speaker 4: of famous for later becoming the first commissioner of Major 200 00:11:55,520 --> 00:12:02,200 Speaker 4: League Baseball, and the contempt or was simply because Landis 201 00:12:02,280 --> 00:12:04,760 Speaker 4: ordered him to stop making and selling booze and he 202 00:12:04,800 --> 00:12:08,160 Speaker 4: wouldn't do it. On the very first day of Calvin 203 00:12:08,200 --> 00:12:12,000 Speaker 4: Coolidge's presidency, after Harding dies and Coolidge gets born in 204 00:12:12,880 --> 00:12:18,120 Speaker 4: Coolidge pardons Grossman, and Grossman was a contributor to the 205 00:12:18,120 --> 00:12:21,040 Speaker 4: Illinois Republican Party, So you can kind of understand how 206 00:12:21,040 --> 00:12:23,400 Speaker 4: this happened. It was one of the very first things 207 00:12:23,400 --> 00:12:28,360 Speaker 4: Calvin Coolidge did. Landis made the decision that because a 208 00:12:28,440 --> 00:12:32,600 Speaker 4: contempt finding wasn't a conviction in the classic sense, but 209 00:12:32,720 --> 00:12:35,680 Speaker 4: rather was to uphold the power of the judiciary over 210 00:12:35,800 --> 00:12:40,600 Speaker 4: miscreants who violate judicial orders, that Coolidge didn't have the 211 00:12:40,640 --> 00:12:43,920 Speaker 4: authority to issue a pardon. It goes up to the 212 00:12:43,960 --> 00:12:48,760 Speaker 4: Supreme Court. The Supreme Court decides that a president has 213 00:12:48,920 --> 00:12:53,600 Speaker 4: really unique authorities that are broad. And when I think 214 00:12:53,640 --> 00:12:56,360 Speaker 4: about that case, and I think about Trump running for 215 00:12:56,400 --> 00:13:00,040 Speaker 4: the office of the presidency, I would say, normally the 216 00:13:00,040 --> 00:13:02,880 Speaker 4: Supreme Court wouldn't take up even come close to taking 217 00:13:02,960 --> 00:13:04,959 Speaker 4: up a gag order, but in this case they might 218 00:13:05,000 --> 00:13:07,439 Speaker 4: because it does involve the power of the presidency. 219 00:13:08,240 --> 00:13:12,120 Speaker 2: Donald Trump has presented more issues over the power of 220 00:13:12,120 --> 00:13:16,840 Speaker 2: the presidency, probably than any other president in history. Thanks 221 00:13:16,880 --> 00:13:21,120 Speaker 2: so much, josh That's Professor Joshua Castenberg of the University 222 00:13:21,120 --> 00:13:22,640 Speaker 2: of New Mexico Law School. 223 00:13:23,360 --> 00:13:26,560 Speaker 5: We need a president who's going to restore law and 224 00:13:26,840 --> 00:13:29,240 Speaker 5: order in the United States of America. 225 00:13:29,320 --> 00:13:34,079 Speaker 2: Texas Governor Greg Abbott endorsed Donald Trump on Sunday, focusing 226 00:13:34,120 --> 00:13:37,480 Speaker 2: on the hardline immigration policies that have played a role 227 00:13:37,640 --> 00:13:41,160 Speaker 2: in both their political careers. The border is a centerpiece 228 00:13:41,200 --> 00:13:44,360 Speaker 2: of Abbot's agenda in an escalating fight with the Biden 229 00:13:44,360 --> 00:13:48,480 Speaker 2: administration over immigration, The three term governor has approved billions 230 00:13:48,480 --> 00:13:52,679 Speaker 2: of dollars in new border wall construction, authorized razor wire 231 00:13:52,760 --> 00:13:55,840 Speaker 2: on the banks of the Rio Grande, and bust thousands 232 00:13:55,840 --> 00:13:59,680 Speaker 2: of migrants to democratic led cities, and Abbot is expected 233 00:13:59,679 --> 00:14:01,880 Speaker 2: to sow on what would be one of Texas's most 234 00:14:01,920 --> 00:14:05,640 Speaker 2: aggressive measures to date, a law that allows police officers 235 00:14:05,640 --> 00:14:09,560 Speaker 2: to arrest migrants suspected of entering the country illegally and 236 00:14:09,600 --> 00:14:14,040 Speaker 2: empowers judges to effectively deport them. Joining me is immigration 237 00:14:14,160 --> 00:14:17,120 Speaker 2: law expert Leon Fresco, a partner at Holland and Knight. 238 00:14:17,960 --> 00:14:21,560 Speaker 2: He's expected to sign Greg Abbott one of the harshest 239 00:14:21,760 --> 00:14:25,320 Speaker 2: anti immigration laws. It makes it a state crime to 240 00:14:25,440 --> 00:14:28,960 Speaker 2: cross into Texas from another country without papers. Is that 241 00:14:29,000 --> 00:14:30,680 Speaker 2: basically what it is or is there more to tell 242 00:14:30,680 --> 00:14:31,360 Speaker 2: about what it is? 243 00:14:31,400 --> 00:14:34,720 Speaker 5: Actually? That's basically the law. The law is intended to 244 00:14:34,840 --> 00:14:38,840 Speaker 5: give the state of Texas the ability to basically stop 245 00:14:38,840 --> 00:14:43,400 Speaker 5: a legal immigration into Texas by allowing state and local 246 00:14:43,440 --> 00:14:47,360 Speaker 5: police officers the ability to arrest someone that they've witnessed 247 00:14:47,400 --> 00:14:50,760 Speaker 5: crossing the border and telling them you have two options. 248 00:14:50,840 --> 00:14:53,400 Speaker 5: Go back, which would be their preferred option. They don't 249 00:14:53,400 --> 00:14:55,640 Speaker 5: actually want to put people in jail because of what 250 00:14:55,680 --> 00:14:58,720 Speaker 5: a huge resource constraint that's going to be. But the 251 00:14:58,760 --> 00:15:01,040 Speaker 5: second option is to say, if you don't go back, 252 00:15:01,080 --> 00:15:03,240 Speaker 5: we're going to put you in jail for this misdemeanor 253 00:15:03,600 --> 00:15:07,080 Speaker 5: that we've created, which is called crossing the border illegally 254 00:15:07,160 --> 00:15:11,240 Speaker 5: and during the State of Texas. Now having said that, 255 00:15:11,280 --> 00:15:15,160 Speaker 5: the state of Arizona tried this same thing in twenty 256 00:15:15,200 --> 00:15:18,200 Speaker 5: eleven twenty twelve, and that's what led to the famous 257 00:15:18,200 --> 00:15:22,160 Speaker 5: Supreme Court case called Arizona versus the United States, where 258 00:15:22,240 --> 00:15:27,160 Speaker 5: the Supreme Court decided that that was preempted by federal law. 259 00:15:27,280 --> 00:15:29,960 Speaker 5: So you couldn't pass a law like that because only 260 00:15:30,000 --> 00:15:34,080 Speaker 5: the federal government had the ability to punish this kind 261 00:15:34,080 --> 00:15:38,440 Speaker 5: of unauthorized immigration. And the theory at the time was 262 00:15:39,000 --> 00:15:42,360 Speaker 5: that the conflicts between what states might do and the 263 00:15:42,360 --> 00:15:46,000 Speaker 5: federal government could lead to all of these unforeseen public 264 00:15:46,120 --> 00:15:50,040 Speaker 5: policy outcomes and foreign policy outcomes, that it was very 265 00:15:50,040 --> 00:15:53,440 Speaker 5: important that the United States speak with one voice and 266 00:15:53,560 --> 00:15:58,960 Speaker 5: one comprehensive strategy visa the immigration It may be that 267 00:15:59,080 --> 00:16:02,720 Speaker 5: now that the Justice have changed in composition because the 268 00:16:02,760 --> 00:16:07,200 Speaker 5: only guaranteed vote you would have for the Arizona case, 269 00:16:07,360 --> 00:16:10,440 Speaker 5: Justice Roberts did vote on the side of the federal 270 00:16:10,440 --> 00:16:13,720 Speaker 5: government in the Arizona case. So you know, Justice Roberts 271 00:16:13,760 --> 00:16:18,120 Speaker 5: will not probably decide to overturn Arizona but then you 272 00:16:18,280 --> 00:16:21,920 Speaker 5: probably also have Justice Brown Jackson and Justice Soda Bayor 273 00:16:22,040 --> 00:16:24,840 Speaker 5: and Justice Kagan. Justice Kagan at the time had been 274 00:16:24,920 --> 00:16:28,520 Speaker 5: recute because he's been working on this matter as Solicitor General. 275 00:16:28,560 --> 00:16:32,080 Speaker 5: But you'd assume those four would vote to uphold Arizona. 276 00:16:32,600 --> 00:16:34,720 Speaker 5: And then the question is going to be, well, we 277 00:16:34,800 --> 00:16:39,280 Speaker 5: know Thomas and Alito already voted to allow states to 278 00:16:39,320 --> 00:16:42,320 Speaker 5: have this immigration authority, so nono. The question is, well, 279 00:16:42,360 --> 00:16:45,680 Speaker 5: what about Kavanagh Borsa, said Cony Barrett, And that's where 280 00:16:45,720 --> 00:16:50,840 Speaker 5: it's gonna matter. Will vote three vote to overturn the 281 00:16:51,120 --> 00:16:55,240 Speaker 5: Arizona law, And the question is how will they do it, 282 00:16:55,360 --> 00:16:57,960 Speaker 5: because there's a broadway and a narrow way to do it. 283 00:16:58,400 --> 00:17:01,440 Speaker 5: The narrow way would be to say, look, this is 284 00:17:01,480 --> 00:17:06,280 Speaker 5: completely consistent with federal immigration laws. So just like a 285 00:17:06,359 --> 00:17:09,679 Speaker 5: state can punish drugs, so does the federal government. We 286 00:17:09,720 --> 00:17:13,040 Speaker 5: don't tell states you can't punish illegal drugs in your 287 00:17:13,119 --> 00:17:17,119 Speaker 5: state because the federal government punishes illegal drugs. No, we 288 00:17:17,240 --> 00:17:20,560 Speaker 5: allow them to work in fandom to do this, and 289 00:17:20,680 --> 00:17:22,960 Speaker 5: so that might happen as if they say, look, these 290 00:17:23,000 --> 00:17:26,879 Speaker 5: are not inconsistent. These are completely consistent. So only in 291 00:17:26,960 --> 00:17:31,879 Speaker 5: that scenario that permitted, or they may actually do something 292 00:17:32,040 --> 00:17:36,960 Speaker 5: very broad and say that the Constitution doesn't in any 293 00:17:37,000 --> 00:17:40,399 Speaker 5: way prevent state from having immigration laws, and that would 294 00:17:40,400 --> 00:17:43,560 Speaker 5: sort of take us back to the beginning of immigration laws, 295 00:17:43,640 --> 00:17:47,120 Speaker 5: to the eighteen eighties where that issue was litigated and 296 00:17:47,760 --> 00:17:50,000 Speaker 5: the court said, well, even though there's nothing in the 297 00:17:50,040 --> 00:17:55,400 Speaker 5: Constitution that explains this, we still must assume because there's 298 00:17:55,400 --> 00:17:57,240 Speaker 5: no way you can have a federal government if it 299 00:17:57,320 --> 00:18:01,960 Speaker 5: can't control immigration. So maybe this will not be the case, 300 00:18:02,040 --> 00:18:04,040 Speaker 5: and they will go back to the pre eighteen eighty 301 00:18:04,240 --> 00:18:06,639 Speaker 5: view that if the sting is not written in the Constitution, 302 00:18:07,200 --> 00:18:09,880 Speaker 5: that means that the states have the ability to regulate 303 00:18:09,960 --> 00:18:13,520 Speaker 5: it in addition, and so that may happen here and 304 00:18:13,600 --> 00:18:15,760 Speaker 5: there may be an ability for the states to actually 305 00:18:15,840 --> 00:18:18,480 Speaker 5: enforce them a grace law. So we'll see how broadly 306 00:18:18,840 --> 00:18:22,280 Speaker 5: or narrowly, or perhaps not at all. The Arizona case 307 00:18:22,320 --> 00:18:23,719 Speaker 5: from twenty twelve is changed. 308 00:18:24,280 --> 00:18:29,840 Speaker 2: The last term, though, wasn't there a surprising ruling against Texas? 309 00:18:29,840 --> 00:18:31,080 Speaker 2: And I think it was Missouri. 310 00:18:31,680 --> 00:18:34,840 Speaker 5: So there was two cases and they had split views. 311 00:18:34,920 --> 00:18:40,320 Speaker 5: There was one case involving the Texas prosecutorial discretion standards, 312 00:18:40,840 --> 00:18:43,679 Speaker 5: where the Supreme Court said, look, Ice is allowed to 313 00:18:43,680 --> 00:18:47,760 Speaker 5: have a prosecutorial discretion memo, and the federal government can't 314 00:18:47,760 --> 00:18:53,640 Speaker 5: be sued for not prosecuting people within this prosecutorial discretion 315 00:18:53,800 --> 00:18:56,159 Speaker 5: memo that states won prosecuted. It's not up to the 316 00:18:56,200 --> 00:19:00,280 Speaker 5: states to determine who the federal government should prosecute. So 317 00:19:00,400 --> 00:19:03,359 Speaker 5: that's different than they can the states take matters into 318 00:19:03,359 --> 00:19:06,120 Speaker 5: their own hands. So what we know based on last 319 00:19:06,200 --> 00:19:09,600 Speaker 5: year that the states cannot dictate who the federal government 320 00:19:10,480 --> 00:19:13,560 Speaker 5: needs to prosecute. But now we would have a second issue, well, 321 00:19:13,600 --> 00:19:15,760 Speaker 5: can the states take matters into their own hands and 322 00:19:15,880 --> 00:19:18,760 Speaker 5: prosecute if the federal government doesn't. And so there was 323 00:19:18,800 --> 00:19:22,600 Speaker 5: a case called Kansas versus Garcia that was a little 324 00:19:22,600 --> 00:19:25,199 Speaker 5: bit of a deviation from Arizona for the purposes of 325 00:19:25,280 --> 00:19:29,160 Speaker 5: employment verification, where they said the state of Kansas could 326 00:19:29,240 --> 00:19:34,280 Speaker 5: prosecute people who had used fake identities to get jobs 327 00:19:34,359 --> 00:19:37,040 Speaker 5: because of the reason of immigration. And there had been 328 00:19:37,080 --> 00:19:39,960 Speaker 5: an argument in that case that it was prehisted, and 329 00:19:40,080 --> 00:19:42,160 Speaker 5: the court said, no, it's not pre emptant. The state 330 00:19:42,160 --> 00:19:46,600 Speaker 5: of Kansas could prosecute people who use faith forms to 331 00:19:46,880 --> 00:19:49,960 Speaker 5: get jobs, even if it was an immigration reason for 332 00:19:50,119 --> 00:19:52,920 Speaker 5: using the faith form. And so it will be very 333 00:19:52,920 --> 00:19:56,200 Speaker 5: interesting to see whether they continue to go down that 334 00:19:56,359 --> 00:19:59,520 Speaker 5: route of the Kansas case to allow states to take 335 00:19:59,560 --> 00:20:02,439 Speaker 5: manners of to their own hands, or whether they just 336 00:20:02,640 --> 00:20:05,520 Speaker 5: uphold Arizona and not allow this to happen. 337 00:20:06,119 --> 00:20:09,879 Speaker 2: Immigrants groups are said that they're going to oppose this, 338 00:20:10,000 --> 00:20:13,920 Speaker 2: that it's unconstitutional, they say it's discriminatory and it will 339 00:20:14,000 --> 00:20:16,840 Speaker 2: victimize people of Latino descent. 340 00:20:17,520 --> 00:20:20,240 Speaker 5: Well, I think the question will be a matter of implementation, 341 00:20:20,400 --> 00:20:23,679 Speaker 5: and the Supreme Court has not been too kind to 342 00:20:23,960 --> 00:20:29,000 Speaker 5: these facial challenges where we assume upfront that the brunt 343 00:20:29,040 --> 00:20:32,719 Speaker 5: of the enforcement is going to be toward Latino immigrants 344 00:20:32,720 --> 00:20:35,600 Speaker 5: and not talking about who's coming, because obviously people if 345 00:20:35,600 --> 00:20:39,320 Speaker 5: they're coming from Mexico into the United States and from 346 00:20:39,320 --> 00:20:42,679 Speaker 5: the Western Hemisphere, are more likely than not going to 347 00:20:42,720 --> 00:20:45,240 Speaker 5: be from a Western Hemisphere country, which might be deaned 348 00:20:45,240 --> 00:20:48,520 Speaker 5: the Latino Hispanic country. Sure, but that's not what they 349 00:20:48,560 --> 00:20:52,240 Speaker 5: mean by racial profiling here. They mean what about if 350 00:20:52,280 --> 00:20:55,240 Speaker 5: they didn't actually see the person crossing, but they just 351 00:20:55,359 --> 00:20:59,440 Speaker 5: assume minutes later by based on how someone looks that 352 00:20:59,800 --> 00:21:03,439 Speaker 5: they were someone who just crossed the statue. Doesn't prevent 353 00:21:03,520 --> 00:21:06,359 Speaker 5: this kind of arrest and so this should be the 354 00:21:06,440 --> 00:21:09,040 Speaker 5: kind of statues that should be enjoined because it is 355 00:21:09,080 --> 00:21:12,760 Speaker 5: too prone to this kind of racial abuse, where people 356 00:21:12,760 --> 00:21:15,200 Speaker 5: who look a certain way are more likely or less 357 00:21:15,320 --> 00:21:18,040 Speaker 5: likely to be viewed as someone who just crossed the 358 00:21:18,119 --> 00:21:21,720 Speaker 5: border than somebody who looks a different way. The Supreme Court, 359 00:21:21,840 --> 00:21:24,560 Speaker 5: even in the Arizona case, but in many other cases 360 00:21:24,560 --> 00:21:29,000 Speaker 5: since then, has basically taken the tact of saying, don't 361 00:21:29,160 --> 00:21:32,280 Speaker 5: come to me with these theoretical claims. If this is happening, 362 00:21:32,640 --> 00:21:36,320 Speaker 5: who wants it starts happening, and then will address it 363 00:21:36,400 --> 00:21:39,639 Speaker 5: then and will decide whether this is too much of 364 00:21:39,680 --> 00:21:42,360 Speaker 5: a radical law because of the way its being implemented. 365 00:21:42,359 --> 00:21:45,720 Speaker 5: It's to continue to be allowed to be implemented, but preemptively. 366 00:21:46,160 --> 00:21:49,440 Speaker 5: We're no longer going to sort of start facially striking 367 00:21:49,520 --> 00:21:52,120 Speaker 5: down these laws when we have no idea how they're 368 00:21:52,160 --> 00:21:53,000 Speaker 5: going to be implemented. 369 00:21:53,760 --> 00:21:57,320 Speaker 2: Lenn is part of this just messaging that Texas is 370 00:21:57,400 --> 00:22:00,919 Speaker 2: trying every way it can to message don't come to 371 00:22:01,080 --> 00:22:04,679 Speaker 2: Texas because this will take years to get through the system. 372 00:22:04,800 --> 00:22:08,119 Speaker 5: Right. I think if the courts are being faithful to 373 00:22:08,359 --> 00:22:11,720 Speaker 5: the President, then yes, they have to enjoin the law, 374 00:22:12,359 --> 00:22:14,199 Speaker 5: and then let it work its way up to the 375 00:22:14,240 --> 00:22:17,240 Speaker 5: Supreme Court. Now having said that, the Supreme Court may 376 00:22:17,960 --> 00:22:20,960 Speaker 5: somehow lift a say and say, hey, there's a likelihood 377 00:22:21,000 --> 00:22:23,040 Speaker 5: of success here. I don't know if they do that 378 00:22:23,080 --> 00:22:25,720 Speaker 5: on a rapid basis, or if they'd wait all the 379 00:22:25,720 --> 00:22:28,840 Speaker 5: way through before they would do something like overturn a 380 00:22:28,920 --> 00:22:32,040 Speaker 5: prior president. I would assume they'd wait all the way through, 381 00:22:32,080 --> 00:22:34,440 Speaker 5: and they'd keep to say all the way through, and 382 00:22:34,560 --> 00:22:37,400 Speaker 5: so the actual briefing on the merits, which as you say, 383 00:22:37,440 --> 00:22:41,080 Speaker 5: will take years. But I do think it's fair to 384 00:22:41,119 --> 00:22:44,200 Speaker 5: say that if this law were to actually go into effect, 385 00:22:44,720 --> 00:22:47,439 Speaker 5: and you were to actually put the choice to people, 386 00:22:47,440 --> 00:22:49,520 Speaker 5: hey do you want to spend time in jail or 387 00:22:49,560 --> 00:22:50,960 Speaker 5: do you want to just go back to the port 388 00:22:50,960 --> 00:22:53,800 Speaker 5: of entry where you could try again in a different state. 389 00:22:54,160 --> 00:22:56,159 Speaker 5: I don't know how many people might think that second 390 00:22:56,240 --> 00:22:58,720 Speaker 5: choice would be a benefit to the state of sixes. 391 00:22:59,119 --> 00:23:03,000 Speaker 5: And so it does lead you to think that, yes, 392 00:23:03,119 --> 00:23:05,960 Speaker 5: Texas is doing it partly for politics, partly to show 393 00:23:06,000 --> 00:23:10,080 Speaker 5: they're doing everything they can, partly to make set the message. 394 00:23:10,200 --> 00:23:12,800 Speaker 5: All of that. They're still doubts. But I do also 395 00:23:12,880 --> 00:23:15,639 Speaker 5: think that if this were ever to be implemented. It 396 00:23:15,720 --> 00:23:19,520 Speaker 5: certainly might change the calculus that somebody has when they're 397 00:23:19,520 --> 00:23:22,560 Speaker 5: crossing the post of crossing in a different location. 398 00:23:23,000 --> 00:23:25,720 Speaker 2: Coming up next, we'll look at how US Customs and 399 00:23:25,800 --> 00:23:30,240 Speaker 2: Border Protection is paying a data broker for powerful surveillance 400 00:23:30,359 --> 00:23:33,520 Speaker 2: tools to monitor immigrants and others in the country. This 401 00:23:33,640 --> 00:23:36,880 Speaker 2: is Bloomberg. I've been talking to immigration law expert Leon 402 00:23:37,000 --> 00:23:39,879 Speaker 2: Fresco of Holland and Knight about some of the unique 403 00:23:39,920 --> 00:23:44,480 Speaker 2: ways Texas is fighting immigration. I mean, Texas seems to 404 00:23:44,480 --> 00:23:48,480 Speaker 2: come up with idea after idea. Remember the boys in 405 00:23:48,560 --> 00:23:52,359 Speaker 2: the Rio Grande y did they just remove those voluntarily? 406 00:23:52,400 --> 00:23:53,280 Speaker 2: What happened there? 407 00:23:53,880 --> 00:23:57,639 Speaker 5: That's still in litigation right now. The buoys were first 408 00:23:57,840 --> 00:24:00,680 Speaker 5: ordered to be removed, but then the Pellet course, the 409 00:24:00,720 --> 00:24:03,679 Speaker 5: Fifth Circuit did say then that they can keep the 410 00:24:03,720 --> 00:24:07,760 Speaker 5: buoys while the challenges continue. And so, yeah, some have 411 00:24:07,840 --> 00:24:11,320 Speaker 5: been removed, but some are still there, and those I 412 00:24:11,359 --> 00:24:13,119 Speaker 5: don't think that are still there are going to be 413 00:24:13,160 --> 00:24:17,359 Speaker 5: removed until there's an actual order requiring those to be removed. Now, 414 00:24:17,480 --> 00:24:18,520 Speaker 5: are they effective? 415 00:24:18,960 --> 00:24:19,000 Speaker 3: Not? 416 00:24:19,240 --> 00:24:21,399 Speaker 5: Because there's other parts of the river that are not 417 00:24:21,520 --> 00:24:24,679 Speaker 5: very wide where the buoys are not cannot be used. 418 00:24:25,160 --> 00:24:28,119 Speaker 5: And also there's ways to get around these booys, et cetera. 419 00:24:28,520 --> 00:24:31,320 Speaker 5: But having said that, all of these things are being 420 00:24:31,359 --> 00:24:36,160 Speaker 5: done to create symbols and barriers both figurative and literal, 421 00:24:36,640 --> 00:24:40,840 Speaker 5: to drive to send these messages that a lawful migration 422 00:24:41,000 --> 00:24:45,119 Speaker 5: into Texas is not welcome. But I do agree in 423 00:24:45,200 --> 00:24:48,240 Speaker 5: terms of the bang for your buck or the impacts 424 00:24:48,240 --> 00:24:51,119 Speaker 5: of what you're getting, that these buoys are certainly not 425 00:24:51,560 --> 00:24:54,080 Speaker 5: the best use of Texas's resources. 426 00:24:54,480 --> 00:24:57,240 Speaker 2: Unlike New York City's mayor who went down for a 427 00:24:57,320 --> 00:25:01,119 Speaker 2: visit and really didn't send out a message don't come sure. 428 00:25:01,480 --> 00:25:03,640 Speaker 5: I mean, look, at the end of the day, all 429 00:25:03,680 --> 00:25:07,719 Speaker 5: of these folks really have come together, and if they 430 00:25:07,760 --> 00:25:11,480 Speaker 5: all were to rally sort of around two topics. Number 431 00:25:11,520 --> 00:25:14,439 Speaker 5: one is, if you do pass whatever screaming we're going 432 00:25:14,520 --> 00:25:16,959 Speaker 5: to end up giving you, you still have to have 433 00:25:17,680 --> 00:25:20,160 Speaker 5: some sponsor who's going to take care of you, who's 434 00:25:20,160 --> 00:25:23,520 Speaker 5: proven and is vetted before you can be released from custody. 435 00:25:24,000 --> 00:25:26,320 Speaker 5: I think that will make a huge difference in terms 436 00:25:26,400 --> 00:25:29,000 Speaker 5: of where all of these folks are going and why 437 00:25:29,000 --> 00:25:31,760 Speaker 5: they're all coming, because right now people aren't coming expecting 438 00:25:31,800 --> 00:25:34,440 Speaker 5: to be taken care of by local government, which is 439 00:25:34,480 --> 00:25:36,800 Speaker 5: a sea change from where it was number one, but 440 00:25:36,880 --> 00:25:38,919 Speaker 5: number two. I do think you have to raise the 441 00:25:39,000 --> 00:25:43,240 Speaker 5: standard to give people some higher standard that they have 442 00:25:43,359 --> 00:25:47,320 Speaker 5: to be rather than just articulating a formulaic asylum claim, 443 00:25:47,359 --> 00:25:50,880 Speaker 5: there has to be the idiosyncratic claim that you make 444 00:25:51,320 --> 00:25:56,200 Speaker 5: has to have some reasonableness to it, where it seems 445 00:25:56,280 --> 00:25:59,200 Speaker 5: like at least you have given clear and convincing evidence 446 00:25:59,240 --> 00:26:03,160 Speaker 5: that if your account is correct, that you will win. 447 00:26:03,640 --> 00:26:07,240 Speaker 5: I think is a better standard than just saying that 448 00:26:07,359 --> 00:26:12,640 Speaker 5: your account, if we get more information later, is an 449 00:26:12,680 --> 00:26:15,840 Speaker 5: account that allows you to stay in the country. Meaning 450 00:26:15,880 --> 00:26:18,960 Speaker 5: you could just say I was politically persecuted in my 451 00:26:19,080 --> 00:26:22,280 Speaker 5: country and leave it at That should not be enough. 452 00:26:22,320 --> 00:26:25,520 Speaker 5: You should have to lay out your entire story, and 453 00:26:25,560 --> 00:26:28,840 Speaker 5: then the point is, well, okay, if this story is corroborated, 454 00:26:29,040 --> 00:26:31,600 Speaker 5: sort of the way a complaint works in a federal lawsuit. 455 00:26:32,000 --> 00:26:35,440 Speaker 5: If this is corroborated and that means you'd win, then 456 00:26:35,480 --> 00:26:38,800 Speaker 5: you can say. But if you can't lay out a 457 00:26:38,920 --> 00:26:43,000 Speaker 5: claim that, if corroborated, would not win, you probably shouldn't 458 00:26:43,000 --> 00:26:43,800 Speaker 5: be allowed to say. 459 00:26:45,040 --> 00:26:48,680 Speaker 2: Leon. Let's turn now to US Customs and Border Protection 460 00:26:49,280 --> 00:26:54,000 Speaker 2: paying a data broker Lexis Nexus Special Services nearly sixteen 461 00:26:54,000 --> 00:26:58,280 Speaker 2: million dollars for a five year contract for access to 462 00:26:58,640 --> 00:27:04,240 Speaker 2: a suite of surveills tools including social media monitoring, web 463 00:27:04,320 --> 00:27:08,200 Speaker 2: data such as email address and IP address locations, real 464 00:27:08,240 --> 00:27:12,840 Speaker 2: time jail booking data, facial recognition services, and cell phone 465 00:27:12,920 --> 00:27:15,840 Speaker 2: geolocation data analysis tools. 466 00:27:16,640 --> 00:27:19,680 Speaker 5: So for the last few years, the Department of Homeland Security, 467 00:27:19,840 --> 00:27:24,440 Speaker 5: both ICE, Immigration of Customs Enforcement and CBP UF put 468 00:27:24,520 --> 00:27:29,200 Speaker 5: some Border Protection have been purchasing as much privately available 469 00:27:29,280 --> 00:27:34,040 Speaker 5: data as possible. And the reason is threefold. Basically, the 470 00:27:34,119 --> 00:27:37,080 Speaker 5: first thing that they're trying to do is they're just 471 00:27:37,240 --> 00:27:40,560 Speaker 5: trying to figure out where people are because there are 472 00:27:40,560 --> 00:27:43,600 Speaker 5: so many people that are being released into the United States. 473 00:27:43,640 --> 00:27:46,239 Speaker 5: And then at con big it's for various reasons they 474 00:27:46,240 --> 00:27:48,520 Speaker 5: don't show up the court, or they rip off their ankle, 475 00:27:48,560 --> 00:27:52,159 Speaker 5: bracelet or whatever. And when I really need to find 476 00:27:52,200 --> 00:27:56,880 Speaker 5: these people or CBP through its investigative arms, then they 477 00:27:56,920 --> 00:27:58,920 Speaker 5: can find them. And this can be through all kinds 478 00:27:58,960 --> 00:28:01,359 Speaker 5: of things such as your license play was read on 479 00:28:01,440 --> 00:28:05,159 Speaker 5: a red line, or you ordered a pizza, or you 480 00:28:05,320 --> 00:28:08,000 Speaker 5: bought some movie or whatever it is that you ended 481 00:28:08,080 --> 00:28:10,800 Speaker 5: up doing that ended up getting attracted by a private 482 00:28:10,920 --> 00:28:15,119 Speaker 5: vendor and all of that private information is being bought 483 00:28:15,160 --> 00:28:18,399 Speaker 5: and purchased by the government, which is perfectly legal be 484 00:28:19,000 --> 00:28:22,960 Speaker 5: private industries get your consent theoretically whenever you're checking those 485 00:28:23,000 --> 00:28:25,439 Speaker 5: boxes that you don't want to check, but they're forcing 486 00:28:25,480 --> 00:28:28,080 Speaker 5: you to check to order a pizza or to buy 487 00:28:28,119 --> 00:28:31,119 Speaker 5: something out a sore online or whatever it is you're doing. 488 00:28:31,720 --> 00:28:34,440 Speaker 5: And they're collecting all of this data and they're doing 489 00:28:34,520 --> 00:28:37,040 Speaker 5: it to a try to find people b The other 490 00:28:37,040 --> 00:28:39,520 Speaker 5: thing they're trying to do is to determine if people 491 00:28:39,600 --> 00:28:43,040 Speaker 5: are violating the terms and conditions of their non immigrant visa. 492 00:28:43,280 --> 00:28:45,880 Speaker 5: So that might be, for instance, if you're a student 493 00:28:46,240 --> 00:28:48,360 Speaker 5: and you're supposed to be studying, let's say at the 494 00:28:48,440 --> 00:28:52,880 Speaker 5: University of Texas at Austin, and everything about you shows 495 00:28:52,960 --> 00:28:56,520 Speaker 5: that you are purchasing everything and then traveling and doing 496 00:28:56,680 --> 00:28:59,480 Speaker 5: everything is in Los Angeles, then the idea is, well, 497 00:28:59,480 --> 00:29:02,840 Speaker 5: maybe you're not actually studying at the University of Texas. 498 00:29:02,880 --> 00:29:05,840 Speaker 5: Maybe you're in Los Angeles and you're working, and we 499 00:29:05,960 --> 00:29:09,000 Speaker 5: have that event of this, and so that's the second 500 00:29:09,000 --> 00:29:12,760 Speaker 5: thing it's being used for, is to determine visa compliance. 501 00:29:13,120 --> 00:29:15,600 Speaker 5: And then the third thing it's being used for is 502 00:29:15,640 --> 00:29:20,120 Speaker 5: to determine this sort of web of associates to try 503 00:29:20,160 --> 00:29:22,760 Speaker 5: to link up different people in different cases. But the 504 00:29:22,800 --> 00:29:26,600 Speaker 5: government is suspicious about one person, to try to find 505 00:29:26,640 --> 00:29:30,200 Speaker 5: as many webs of where you're intersecting, and the more 506 00:29:30,280 --> 00:29:33,760 Speaker 5: a person intersects with sort of other bad people at 507 00:29:33,800 --> 00:29:36,440 Speaker 5: five or six degrees a level that you say, oh boy, 508 00:29:36,560 --> 00:29:41,719 Speaker 5: this person has associates XYZ, and then XYZ have associates 509 00:29:41,840 --> 00:29:46,880 Speaker 5: YZW and they're all intersecting. Then that's alerting the government 510 00:29:47,120 --> 00:29:49,200 Speaker 5: that it needs to either revoke a visa or de 511 00:29:49,360 --> 00:29:52,000 Speaker 5: i of visa or come get you because you're a 512 00:29:52,120 --> 00:29:55,640 Speaker 5: dangerous person. So that's what this evidence is being used for. 513 00:29:56,840 --> 00:30:01,240 Speaker 2: So why is just Future's Law, a legal nonprofit serving 514 00:30:01,360 --> 00:30:07,040 Speaker 2: marginalized communities suing Lexis Nexis Risk Solutions. Is that over 515 00:30:07,120 --> 00:30:09,240 Speaker 2: individual state privacy laws? 516 00:30:09,560 --> 00:30:12,520 Speaker 5: Well, the problem is there's all these different privacy laws 517 00:30:12,560 --> 00:30:17,160 Speaker 5: and all the different states and privacy advocates politically, so 518 00:30:17,240 --> 00:30:20,200 Speaker 5: let's start with that, just the political aspect first. There, 519 00:30:20,520 --> 00:30:22,400 Speaker 5: Please tell any of people who say, look, the government 520 00:30:22,360 --> 00:30:25,240 Speaker 5: shouldn't be doing this, shouldn't be accumulating all of this information. 521 00:30:25,720 --> 00:30:28,560 Speaker 5: Who knows how it's being used? Is it being safeguarded? 522 00:30:29,000 --> 00:30:32,000 Speaker 5: So there's all of those complaints which are understood. Those 523 00:30:32,000 --> 00:30:35,520 Speaker 5: are generally good government sort of complaints. And you know, 524 00:30:35,600 --> 00:30:38,480 Speaker 5: it just depends what year you want to live in, 525 00:30:38,560 --> 00:30:40,680 Speaker 5: and you want to live in a year where all 526 00:30:40,720 --> 00:30:43,560 Speaker 5: of that cat isn't out of the bag already, I understand, 527 00:30:43,640 --> 00:30:46,840 Speaker 5: and you know, the people who are always pushing back 528 00:30:46,880 --> 00:30:50,320 Speaker 5: on that are understood. But sort of now here at 529 00:30:50,360 --> 00:30:53,480 Speaker 5: the end of twenty twenty three, you start thinking to yourself, boy, 530 00:30:53,640 --> 00:30:55,360 Speaker 5: that cat not only is out of the bag, that 531 00:30:55,440 --> 00:30:58,120 Speaker 5: cat is in a different state than the bag at 532 00:30:58,120 --> 00:31:01,600 Speaker 5: this point. So I wonder what the complaces now, And 533 00:31:01,640 --> 00:31:04,680 Speaker 5: then yeah, these are these state laws. You have different 534 00:31:04,680 --> 00:31:08,320 Speaker 5: states that require different levels of consent before people's data 535 00:31:08,400 --> 00:31:12,120 Speaker 5: can be purchased, and so people will too if they 536 00:31:12,160 --> 00:31:15,760 Speaker 5: can determine that a state law was violated for the 537 00:31:15,800 --> 00:31:20,000 Speaker 5: purpose of privacy, because CBP may have bought data or 538 00:31:20,120 --> 00:31:23,320 Speaker 5: used data that wasn't consented to for a specific purpose, 539 00:31:23,960 --> 00:31:27,160 Speaker 5: and so that is a reason that you can see 540 00:31:27,240 --> 00:31:30,120 Speaker 5: and so people are always monitoring that. But that's a 541 00:31:30,240 --> 00:31:33,920 Speaker 5: very sort of detailed data oriented thing, because different data 542 00:31:33,920 --> 00:31:36,280 Speaker 5: can be used for different purposes and has to have 543 00:31:36,360 --> 00:31:40,120 Speaker 5: different level of disclosure, and so all of this is 544 00:31:40,280 --> 00:31:43,680 Speaker 5: on a very state by state and data by data basis. 545 00:31:44,200 --> 00:31:47,000 Speaker 2: When you come into this country, you're immigrating here, and 546 00:31:47,040 --> 00:31:49,080 Speaker 2: let's say you go through the system, do you sign 547 00:31:49,120 --> 00:31:51,200 Speaker 2: anything that consents to monitoring. 548 00:31:51,680 --> 00:31:54,240 Speaker 5: Well, it's not that you sign anything, because there's a 549 00:31:54,280 --> 00:31:56,800 Speaker 5: lot of foreign nationals who are told don't sign anything, 550 00:31:57,000 --> 00:31:59,600 Speaker 5: and so many of them don't even sign anything. But 551 00:31:59,680 --> 00:32:02,200 Speaker 5: it's not actually in the law. It's in the statute 552 00:32:02,200 --> 00:32:06,240 Speaker 5: and in the regulation that if you get relief from detention, 553 00:32:06,440 --> 00:32:09,760 Speaker 5: you can be released under any terms and conditions that 554 00:32:09,880 --> 00:32:14,280 Speaker 5: the Department of Homeland Security beings appropriate. And so it's 555 00:32:14,400 --> 00:32:18,920 Speaker 5: just the act of releasing someone from immigration detention that 556 00:32:19,040 --> 00:32:22,440 Speaker 5: automatically creates the legal duty to comply with any terms 557 00:32:22,440 --> 00:32:23,840 Speaker 5: and conditions that I want. 558 00:32:24,000 --> 00:32:25,959 Speaker 2: Once again, Leon, I have to say, I don't know 559 00:32:26,000 --> 00:32:28,920 Speaker 2: how you keep up with all of this. Thanks so 560 00:32:29,000 --> 00:32:32,360 Speaker 2: much for being on the show. That's Immigration Law expertly 561 00:32:32,440 --> 00:32:35,720 Speaker 2: on Fresco, a partner at Honda Night. And that's it 562 00:32:35,760 --> 00:32:38,360 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 563 00:32:38,360 --> 00:32:40,840 Speaker 2: can always get the latest legal news on our Bloomberg 564 00:32:40,920 --> 00:32:44,560 Speaker 2: Law podcast. You can find them on Apple Podcasts, Spotify, 565 00:32:44,720 --> 00:32:49,760 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 566 00:32:50,200 --> 00:32:52,760 Speaker 2: and remember to tune into the Bloomberg Law Show every 567 00:32:52,800 --> 00:32:56,720 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 568 00:32:56,840 --> 00:32:58,440 Speaker 2: and you're listening to Bloomberg