Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The argument went an hour longer than scheduled as a
Speaker 2: DC Federal Appellate court weighed whether to put back in
Speaker 2: place a gag order that barred Donald Trump from comments
Speaker 2: that target prosecutors, potential witnesses, and courts staff in the
Speaker 2: federal election subversion case. Trump's lawyer John Sower argued that
Speaker 2: the former president has an absolute First Amendment right to
Speaker 2: talk about the case, especially because he's running again for president.
Speaker 3: The order is unprecedented and it says a terrible president
Speaker 3: for future restrictions on corpor political speech. This is a
Speaker 3: radical departure from the only cases that have considered this
Speaker 3: particular form of restriction and restriction on a criminal defenderical
Speaker 3: campaign for public office, and it does so in the
Speaker 3: context of a hotly contested campaign for the high office
Speaker 3: in the United States and America.
Speaker 2: But the three judges seemed skeptical of the absolutist arguments
Speaker 2: he was making. Judge Patricia Millett made a distinction between
Speaker 2: campaign speech and speech aimed at derailing or corrupting the
Speaker 2: criminal justice process.
Speaker 1: I'm not tunning out everyone who speaks for only. This
Speaker 1: does only effect no one's shutting down and everyone's. It
Speaker 1: is only affecting the speech temporarily during a criminal frile
Speaker 1: process by someone who has indicted as a felon. No
Speaker 1: one here is threatening the First Amendment.
Speaker 2: Broadly, there's limited legal precedent for restricting speech of political candidates,
Speaker 2: and the stakes are high given the volume and intensity
Speaker 2: of Trump's public comments about the case and the massive
Speaker 2: public platform he holds. Joining me is Joshua Castenberg, a
Speaker 2: professor at the University of New Mexico Law School and
Speaker 2: a former judge in the US Air Force. Trump's lawyer
Speaker 2: pushed an absolutist argument that Trump's speech can't be restrict
Speaker 2: did at all.
Speaker 4: Well, so a person does not have the right to
Speaker 4: try to affect or alter the outcome of a trial
Speaker 4: by intimidating witnesses, intimidating judges, intimidating jurors. But they do
Speaker 4: have a right to defend themselves in the court of
Speaker 4: public opinions. And there's an old case on point called
Speaker 4: Bridges versus California, where a labor leader named Harry Bridges
Speaker 4: was accused of trying to chill a jury chill a
Speaker 4: prosecution against him, and Bridges was held in contempt. You know,
Speaker 4: Harry Bridges was not the most popular of individuals among
Speaker 4: the powers that be because he was the president of
Speaker 4: the Longshoreman's Union and in the midst of the depression
Speaker 4: had engaged in some strike activity. He did, to a
Speaker 4: certain degree, do what Trump is doing now, which is
Speaker 4: take his case to the public. The difference, though, is
Speaker 4: that Bridges was conveying to the public that the longshoreman
Speaker 4: would go on strike again if the prosecution didn't back
Speaker 4: off on him. That's fundamentally different, though, than these hints
Speaker 4: of direct threats to jurors, to the judge, to the prosecutor.
Speaker 4: So it's not a slam dunk case for the former president.
Speaker 4: On the other hand, he does have First Amendment rights,
Speaker 4: and he has the rights to make political speech, and
Speaker 4: so the gag order has to be crafted very narrowly
Speaker 4: because his right to make political speech includes his right
Speaker 4: to object to being prosecuted for a case that he
Speaker 4: believes and some of his followers believe, is being done
Speaker 4: to affect the presidential election against him.
Speaker 2: Trump's attorney said the test was whether there was a
Speaker 2: clear and present danger resulting from his speech. But the
Speaker 2: judges said that Supreme Court President requires there be a
Speaker 2: balancing test that weighs First Amendment rights against protecting the
Speaker 2: entire tegrity of a trial by restricting some of the
Speaker 2: defendant speech. Are the judges writer, or is the defense
Speaker 2: right right?
Speaker 3: Oh?
Speaker 4: The judges are right. Here's the thing. You can have
Speaker 4: an absolutist view of the First Amendment, but when you
Speaker 4: become a defendant or a witness in a criminal case,
Speaker 4: your First Amendment rights do not include putting fear into
Speaker 4: the judicial process. And that's where the balancing test comes up.
Speaker 4: Trump's attorneys are citing to Oliver Wendell Holmes Junior's a
Speaker 4: clear and present change er test that he created in
Speaker 4: a dissent after World War One. That test has nothing
Speaker 4: to do specifically with a defendant on trial. That test
Speaker 4: has to do with general life speech that's made an
Speaker 4: opposition to some government program, and in that case it
Speaker 4: was the draft in World War One. That test has
Speaker 4: nothing to do specifically with a defendant on trial. That
Speaker 4: test has to do with general life speech that's made
Speaker 4: an opposition into some government program, and in that case
Speaker 4: it was the draft in World War one.
Speaker 2: Judge Millett also posed some questions about the potential that
Speaker 2: Trump would try to intimidate witnesses, and she used the
Speaker 2: example of former Vice president Mike Pence.
Speaker 1: Let's assume former Vice President Mike Pence is going to
Speaker 1: testify and it's the night before his testimony. Couldn't the
Speaker 1: defendant tweet out, Mike Pence can still fix this. Mike
Speaker 1: Pence can still do the right thing if he says
Speaker 1: the right stuff tomorrow. First of all, is that communicating
Speaker 1: with the witness?
Speaker 3: Okay, it's just broadcasting a statement of core political social
Speaker 3: media likely.
Speaker 2: Not trying to protect a witness from intimidation seems like
Speaker 2: perhaps the most important reason for a gag order before
Speaker 2: a trial.
Speaker 4: Yeah, so try to intimidate a witness from testifying to
Speaker 4: the truth. What I would say on that is, if
Speaker 4: there's evidence that he's trying to affect pensive testimony from
Speaker 4: not testifying truthfully, then you've got an obstruction of justice.
Speaker 4: In order to prevent a perversion of the judicial process,
Speaker 4: the judge would be in her right or his right
Speaker 4: to issue a ruling a gag order on the individuals.
Speaker 4: So I think the question from the judges and the
Speaker 4: right in that particular case. But you know, Trump is
Speaker 4: very good at saying one thing and then just saying, well,
Speaker 4: you misinterpreted me. And I have a right to speak
Speaker 4: my mind and I have a right to campaign for office. Well,
Speaker 4: both of those are true. He certainly has a right
Speaker 4: to speak his mind, and he certainly has a right
Speaker 4: to campaign for office. But he doesn't have a right
Speaker 4: to pervert the judicial process. And that's where the balancing
Speaker 4: test comes in.
Speaker 2: It looked to me like this was a narrowly tailored order,
Speaker 2: but they did suggest it was broad and that there
Speaker 2: was a distinction between threats and harassment of prosecutors versus
Speaker 2: threats to witnesses or jurors.
Speaker 4: Yeah, they were commenting on Jack Smith's tough skin, and
Speaker 4: the general public would know who Jack Smith is right now.
Speaker 4: And he's in a different role because he's a prosecutor
Speaker 4: than being a juror or a witness. And you know,
Speaker 4: what there is is a mindset, and it's a mindset
Speaker 4: that has come in regarding prosecutors that prosecutors.
Speaker 5: Have to have thick skins.
Speaker 4: They're going to get accused of things, including in court
Speaker 4: sometimes by defense counsel, and they can't fire back, and
Speaker 4: I think that's what's going on here. I mean, Jack Smith,
Speaker 4: I don't think has presented any real evidence yet, and
Speaker 4: maybe there is evidence there that Trump's statements have resulted in,
Speaker 4: you know, a real chill to the ability of the
Speaker 4: prosecutors to do their job as ethical prosecutors. I suppose
Speaker 4: what you could make the argument on is that today,
Speaker 4: when someone liked Donald Trump or someone of public importance
Speaker 4: makes an allegation against someone else, in the world of
Speaker 4: artificial intelligence, in the world of people being able to
Speaker 4: mask who they are as people in terms of their
Speaker 4: real identity, you get all kinds of nasty emails and
Speaker 4: phone calls and bots thrown your way. I've experienced that
Speaker 4: I gave a very neutral comment to the New York
Speaker 4: Times in twenty and seventeen or twenty and sixteen about
Speaker 4: boie Bergdal and all I did was give a history
Speaker 4: of the charge that he was charged with, which was
Speaker 4: desertion also in the face of the enemy and the like.
Speaker 5: And I got a.
Speaker 4: Dozen or more kind of hate emails that my way.
Speaker 4: And it was hard to tell whether they were real
Speaker 4: people in the United States or bots doing it, but
Speaker 4: they seem to know enough about me based on a
Speaker 4: public bio to do that. And I've talked to prosecutors,
Speaker 4: and I've talked to a couple of judges who've said
Speaker 4: on cases that involve people of real important significance, and
Speaker 4: they say it's become routine that they get harassed. And
Speaker 4: so I think Jack Smith's side has a point that
Speaker 4: when Trump argues that you know, he's being prosecuted as
Speaker 4: a political vendetta and he's going to go after Jacksmith,
Speaker 4: he encourages his people to do that, that there really
Speaker 4: is a threat to the judicial process, and that means
Speaker 4: there's a threat to democracy. But the judges are supposed
Speaker 4: to maintain and protect the integrity of the judicial process.
Speaker 4: And I think out of this some of the gag
Speaker 4: order will survive, but some of it will be narrowed.
Speaker 1: Yeah.
Speaker 2: Do you think the narrowing will be basically taking the
Speaker 2: prosecutors out of the equation.
Speaker 4: Yes, I think that's where the narrowing will be, and
Speaker 4: they'll go back to the traditional model of the prosecutor
Speaker 4: to have a tough skin and is in a different
Speaker 4: position altogether.
Speaker 2: Although we do know that all the prosecutors involved in
Speaker 2: these criminal and civil cases have said that they've been
Speaker 2: threatened and their staffs have been threatened. So now the
Speaker 2: defense says, if they lose this, they're going to go
Speaker 2: to the Supreme Court. The Supreme Court has the option
Speaker 2: of taking the case or not taking the case. Do
Speaker 2: you think the Supreme Court will take a gag order
Speaker 2: case like this?
Speaker 4: I don't think the Supreme Court will take a gag
Speaker 4: order case. Normally, we are talking about the former president
Speaker 4: who is campaigning to be president, and that does make
Speaker 4: it somewhat different. I would say it's a fifty to
Speaker 4: fifty chance they will on the one, and the Supreme
Speaker 4: Court doesn't want to set a precedent in terms of
Speaker 4: gag orders. They would set a president in terms of
Speaker 4: a contempt finding. But you know, you've got a former
Speaker 4: president running once more for president, and this has an
Speaker 4: unusual constitutional aspect to it. Beyond the power of the judiciary.
Speaker 4: It has the unusual aspect of how does a candidate
Speaker 4: who's running for office the nation's highest office, have to
Speaker 4: be confined in his speech while facing criminal trials. It's
Speaker 4: almost like it invites the separation of powers analysis to it.
Speaker 2: It's once again unprecedented, which we've said so many times
Speaker 2: with respect to Trump.
Speaker 4: You know, it reminds me in a way of a
Speaker 4: case involving judicial power and the presidency, but it's not
Speaker 4: quite it's not really on point. But it's a nineteen
Speaker 4: twenty four case called ex Parte Grossman. Grossman was a
Speaker 4: bootlegger in Chicago and found guilty of contempt in front
Speaker 4: of Judge Kennesaw Mountain Landis, who you know, is sort
Speaker 4: of famous for later becoming the first commissioner of Major
Speaker 4: League Baseball, and the contempt or was simply because Landis
Speaker 4: ordered him to stop making and selling booze and he
Speaker 4: wouldn't do it. On the very first day of Calvin
Speaker 4: Coolidge's presidency, after Harding dies and Coolidge gets born in
Speaker 4: Coolidge pardons Grossman, and Grossman was a contributor to the
Speaker 4: Illinois Republican Party, So you can kind of understand how
Speaker 4: this happened. It was one of the very first things
Speaker 4: Calvin Coolidge did. Landis made the decision that because a
Speaker 4: contempt finding wasn't a conviction in the classic sense, but
Speaker 4: rather was to uphold the power of the judiciary over
Speaker 4: miscreants who violate judicial orders, that Coolidge didn't have the
Speaker 4: authority to issue a pardon. It goes up to the
Speaker 4: Supreme Court. The Supreme Court decides that a president has
Speaker 4: really unique authorities that are broad. And when I think
Speaker 4: about that case, and I think about Trump running for
Speaker 4: the office of the presidency, I would say, normally the
Speaker 4: Supreme Court wouldn't take up even come close to taking
Speaker 4: up a gag order, but in this case they might
Speaker 4: because it does involve the power of the presidency.
Speaker 2: Donald Trump has presented more issues over the power of
Speaker 2: the presidency, probably than any other president in history. Thanks
Speaker 2: so much, josh That's Professor Joshua Castenberg of the University
Speaker 2: of New Mexico Law School.
Speaker 5: We need a president who's going to restore law and
Speaker 5: order in the United States of America.
Speaker 2: Texas Governor Greg Abbott endorsed Donald Trump on Sunday, focusing
Speaker 2: on the hardline immigration policies that have played a role
Speaker 2: in both their political careers. The border is a centerpiece
Speaker 2: of Abbot's agenda in an escalating fight with the Biden
Speaker 2: administration over immigration, The three term governor has approved billions
Speaker 2: of dollars in new border wall construction, authorized razor wire
Speaker 2: on the banks of the Rio Grande, and bust thousands
Speaker 2: of migrants to democratic led cities, and Abbot is expected
Speaker 2: to sow on what would be one of Texas's most
Speaker 2: aggressive measures to date, a law that allows police officers
Speaker 2: to arrest migrants suspected of entering the country illegally and
Speaker 2: empowers judges to effectively deport them. Joining me is immigration
Speaker 2: law expert Leon Fresco, a partner at Holland and Knight.
Speaker 2: He's expected to sign Greg Abbott one of the harshest
Speaker 2: anti immigration laws. It makes it a state crime to
Speaker 2: cross into Texas from another country without papers. Is that
Speaker 2: basically what it is or is there more to tell
Speaker 2: about what it is?
Speaker 5: Actually? That's basically the law. The law is intended to
Speaker 5: give the state of Texas the ability to basically stop
Speaker 5: a legal immigration into Texas by allowing state and local
Speaker 5: police officers the ability to arrest someone that they've witnessed
Speaker 5: crossing the border and telling them you have two options.
Speaker 5: Go back, which would be their preferred option. They don't
Speaker 5: actually want to put people in jail because of what
Speaker 5: a huge resource constraint that's going to be. But the
Speaker 5: second option is to say, if you don't go back,
Speaker 5: we're going to put you in jail for this misdemeanor
Speaker 5: that we've created, which is called crossing the border illegally
Speaker 5: and during the State of Texas. Now having said that,
Speaker 5: the state of Arizona tried this same thing in twenty
Speaker 5: eleven twenty twelve, and that's what led to the famous
Speaker 5: Supreme Court case called Arizona versus the United States, where
Speaker 5: the Supreme Court decided that that was preempted by federal law.
Speaker 5: So you couldn't pass a law like that because only
Speaker 5: the federal government had the ability to punish this kind
Speaker 5: of unauthorized immigration. And the theory at the time was
Speaker 5: that the conflicts between what states might do and the
Speaker 5: federal government could lead to all of these unforeseen public
Speaker 5: policy outcomes and foreign policy outcomes, that it was very
Speaker 5: important that the United States speak with one voice and
Speaker 5: one comprehensive strategy visa the immigration It may be that
Speaker 5: now that the Justice have changed in composition because the
Speaker 5: only guaranteed vote you would have for the Arizona case,
Speaker 5: Justice Roberts did vote on the side of the federal
Speaker 5: government in the Arizona case. So you know, Justice Roberts
Speaker 5: will not probably decide to overturn Arizona but then you
Speaker 5: probably also have Justice Brown Jackson and Justice Soda Bayor
Speaker 5: and Justice Kagan. Justice Kagan at the time had been
Speaker 5: recute because he's been working on this matter as Solicitor General.
Speaker 5: But you'd assume those four would vote to uphold Arizona.
Speaker 5: And then the question is going to be, well, we
Speaker 5: know Thomas and Alito already voted to allow states to
Speaker 5: have this immigration authority, so nono. The question is, well,
Speaker 5: what about Kavanagh Borsa, said Cony Barrett, And that's where
Speaker 5: it's gonna matter. Will vote three vote to overturn the
Speaker 5: Arizona law, And the question is how will they do it,
Speaker 5: because there's a broadway and a narrow way to do it.
Speaker 5: The narrow way would be to say, look, this is
Speaker 5: completely consistent with federal immigration laws. So just like a
Speaker 5: state can punish drugs, so does the federal government. We
Speaker 5: don't tell states you can't punish illegal drugs in your
Speaker 5: state because the federal government punishes illegal drugs. No, we
Speaker 5: allow them to work in fandom to do this, and
Speaker 5: so that might happen as if they say, look, these
Speaker 5: are not inconsistent. These are completely consistent. So only in
Speaker 5: that scenario that permitted, or they may actually do something
Speaker 5: very broad and say that the Constitution doesn't in any
Speaker 5: way prevent state from having immigration laws, and that would
Speaker 5: sort of take us back to the beginning of immigration laws,
Speaker 5: to the eighteen eighties where that issue was litigated and
Speaker 5: the court said, well, even though there's nothing in the
Speaker 5: Constitution that explains this, we still must assume because there's
Speaker 5: no way you can have a federal government if it
Speaker 5: can't control immigration. So maybe this will not be the case,
Speaker 5: and they will go back to the pre eighteen eighty
Speaker 5: view that if the sting is not written in the Constitution,
Speaker 5: that means that the states have the ability to regulate
Speaker 5: it in addition, and so that may happen here and
Speaker 5: there may be an ability for the states to actually
Speaker 5: enforce them a grace law. So we'll see how broadly
Speaker 5: or narrowly, or perhaps not at all. The Arizona case
Speaker 5: from twenty twelve is changed.
Speaker 2: The last term, though, wasn't there a surprising ruling against Texas?
Speaker 2: And I think it was Missouri.
Speaker 5: So there was two cases and they had split views.
Speaker 5: There was one case involving the Texas prosecutorial discretion standards,
Speaker 5: where the Supreme Court said, look, Ice is allowed to
Speaker 5: have a prosecutorial discretion memo, and the federal government can't
Speaker 5: be sued for not prosecuting people within this prosecutorial discretion
Speaker 5: memo that states won prosecuted. It's not up to the
Speaker 5: states to determine who the federal government should prosecute. So
Speaker 5: that's different than they can the states take matters into
Speaker 5: their own hands. So what we know based on last
Speaker 5: year that the states cannot dictate who the federal government
Speaker 5: needs to prosecute. But now we would have a second issue, well,
Speaker 5: can the states take matters into their own hands and
Speaker 5: prosecute if the federal government doesn't. And so there was
Speaker 5: a case called Kansas versus Garcia that was a little
Speaker 5: bit of a deviation from Arizona for the purposes of
Speaker 5: employment verification, where they said the state of Kansas could
Speaker 5: prosecute people who had used fake identities to get jobs
Speaker 5: because of the reason of immigration. And there had been
Speaker 5: an argument in that case that it was prehisted, and
Speaker 5: the court said, no, it's not pre emptant. The state
Speaker 5: of Kansas could prosecute people who use faith forms to
Speaker 5: get jobs, even if it was an immigration reason for
Speaker 5: using the faith form. And so it will be very
Speaker 5: interesting to see whether they continue to go down that
Speaker 5: route of the Kansas case to allow states to take
Speaker 5: manners of to their own hands, or whether they just
Speaker 5: uphold Arizona and not allow this to happen.
Speaker 2: Immigrants groups are said that they're going to oppose this,
Speaker 2: that it's unconstitutional, they say it's discriminatory and it will
Speaker 2: victimize people of Latino descent.
Speaker 5: Well, I think the question will be a matter of implementation,
Speaker 5: and the Supreme Court has not been too kind to
Speaker 5: these facial challenges where we assume upfront that the brunt
Speaker 5: of the enforcement is going to be toward Latino immigrants
Speaker 5: and not talking about who's coming, because obviously people if
Speaker 5: they're coming from Mexico into the United States and from
Speaker 5: the Western Hemisphere, are more likely than not going to
Speaker 5: be from a Western Hemisphere country, which might be deaned
Speaker 5: the Latino Hispanic country. Sure, but that's not what they
Speaker 5: mean by racial profiling here. They mean what about if
Speaker 5: they didn't actually see the person crossing, but they just
Speaker 5: assume minutes later by based on how someone looks that
Speaker 5: they were someone who just crossed the statue. Doesn't prevent
Speaker 5: this kind of arrest and so this should be the
Speaker 5: kind of statues that should be enjoined because it is
Speaker 5: too prone to this kind of racial abuse, where people
Speaker 5: who look a certain way are more likely or less
Speaker 5: likely to be viewed as someone who just crossed the
Speaker 5: border than somebody who looks a different way. The Supreme Court,
Speaker 5: even in the Arizona case, but in many other cases
Speaker 5: since then, has basically taken the tact of saying, don't
Speaker 5: come to me with these theoretical claims. If this is happening,
Speaker 5: who wants it starts happening, and then will address it
Speaker 5: then and will decide whether this is too much of
Speaker 5: a radical law because of the way its being implemented.
Speaker 5: It's to continue to be allowed to be implemented, but preemptively.
Speaker 5: We're no longer going to sort of start facially striking
Speaker 5: down these laws when we have no idea how they're
Speaker 5: going to be implemented.
Speaker 2: Lenn is part of this just messaging that Texas is
Speaker 2: trying every way it can to message don't come to
Speaker 2: Texas because this will take years to get through the system.
Speaker 5: Right. I think if the courts are being faithful to
Speaker 5: the President, then yes, they have to enjoin the law,
Speaker 5: and then let it work its way up to the
Speaker 5: Supreme Court. Now having said that, the Supreme Court may
Speaker 5: somehow lift a say and say, hey, there's a likelihood
Speaker 5: of success here. I don't know if they do that
Speaker 5: on a rapid basis, or if they'd wait all the
Speaker 5: way through before they would do something like overturn a
Speaker 5: prior president. I would assume they'd wait all the way through,
Speaker 5: and they'd keep to say all the way through, and
Speaker 5: so the actual briefing on the merits, which as you say,
Speaker 5: will take years. But I do think it's fair to
Speaker 5: say that if this law were to actually go into effect,
Speaker 5: and you were to actually put the choice to people,
Speaker 5: hey do you want to spend time in jail or
Speaker 5: do you want to just go back to the port
Speaker 5: of entry where you could try again in a different state.
Speaker 5: I don't know how many people might think that second
Speaker 5: choice would be a benefit to the state of sixes.
Speaker 5: And so it does lead you to think that, yes,
Speaker 5: Texas is doing it partly for politics, partly to show
Speaker 5: they're doing everything they can, partly to make set the message.
Speaker 5: All of that. They're still doubts. But I do also
Speaker 5: think that if this were ever to be implemented. It
Speaker 5: certainly might change the calculus that somebody has when they're
Speaker 5: crossing the post of crossing in a different location.
Speaker 2: Coming up next, we'll look at how US Customs and
Speaker 2: Border Protection is paying a data broker for powerful surveillance
Speaker 2: tools to monitor immigrants and others in the country. This
Speaker 2: is Bloomberg. I've been talking to immigration law expert Leon
Speaker 2: Fresco of Holland and Knight about some of the unique
Speaker 2: ways Texas is fighting immigration. I mean, Texas seems to
Speaker 2: come up with idea after idea. Remember the boys in
Speaker 2: the Rio Grande y did they just remove those voluntarily?
Speaker 2: What happened there?
Speaker 5: That's still in litigation right now. The buoys were first
Speaker 5: ordered to be removed, but then the Pellet course, the
Speaker 5: Fifth Circuit did say then that they can keep the
Speaker 5: buoys while the challenges continue. And so, yeah, some have
Speaker 5: been removed, but some are still there, and those I
Speaker 5: don't think that are still there are going to be
Speaker 5: removed until there's an actual order requiring those to be removed. Now,
Speaker 5: are they effective?
Speaker 3: Not?
Speaker 5: Because there's other parts of the river that are not
Speaker 5: very wide where the buoys are not cannot be used.
Speaker 5: And also there's ways to get around these booys, et cetera.
Speaker 5: But having said that, all of these things are being
Speaker 5: done to create symbols and barriers both figurative and literal,
Speaker 5: to drive to send these messages that a lawful migration
Speaker 5: into Texas is not welcome. But I do agree in
Speaker 5: terms of the bang for your buck or the impacts
Speaker 5: of what you're getting, that these buoys are certainly not
Speaker 5: the best use of Texas's resources.
Speaker 2: Unlike New York City's mayor who went down for a
Speaker 2: visit and really didn't send out a message don't come sure.
Speaker 5: I mean, look, at the end of the day, all
Speaker 5: of these folks really have come together, and if they
Speaker 5: all were to rally sort of around two topics. Number
Speaker 5: one is, if you do pass whatever screaming we're going
Speaker 5: to end up giving you, you still have to have
Speaker 5: some sponsor who's going to take care of you, who's
Speaker 5: proven and is vetted before you can be released from custody.
Speaker 5: I think that will make a huge difference in terms
Speaker 5: of where all of these folks are going and why
Speaker 5: they're all coming, because right now people aren't coming expecting
Speaker 5: to be taken care of by local government, which is
Speaker 5: a sea change from where it was number one, but
Speaker 5: number two. I do think you have to raise the
Speaker 5: standard to give people some higher standard that they have
Speaker 5: to be rather than just articulating a formulaic asylum claim,
Speaker 5: there has to be the idiosyncratic claim that you make
Speaker 5: has to have some reasonableness to it, where it seems
Speaker 5: like at least you have given clear and convincing evidence
Speaker 5: that if your account is correct, that you will win.
Speaker 5: I think is a better standard than just saying that
Speaker 5: your account, if we get more information later, is an
Speaker 5: account that allows you to stay in the country. Meaning
Speaker 5: you could just say I was politically persecuted in my
Speaker 5: country and leave it at That should not be enough.
Speaker 5: You should have to lay out your entire story, and
Speaker 5: then the point is, well, okay, if this story is corroborated,
Speaker 5: sort of the way a complaint works in a federal lawsuit.
Speaker 5: If this is corroborated and that means you'd win, then
Speaker 5: you can say. But if you can't lay out a
Speaker 5: claim that, if corroborated, would not win, you probably shouldn't
Speaker 5: be allowed to say.
Speaker 2: Leon. Let's turn now to US Customs and Border Protection
Speaker 2: paying a data broker Lexis Nexus Special Services nearly sixteen
Speaker 2: million dollars for a five year contract for access to
Speaker 2: a suite of surveills tools including social media monitoring, web
Speaker 2: data such as email address and IP address locations, real
Speaker 2: time jail booking data, facial recognition services, and cell phone
Speaker 2: geolocation data analysis tools.
Speaker 5: So for the last few years, the Department of Homeland Security,
Speaker 5: both ICE, Immigration of Customs Enforcement and CBP UF put
Speaker 5: some Border Protection have been purchasing as much privately available
Speaker 5: data as possible. And the reason is threefold. Basically, the
Speaker 5: first thing that they're trying to do is they're just
Speaker 5: trying to figure out where people are because there are
Speaker 5: so many people that are being released into the United States.
Speaker 5: And then at con big it's for various reasons they
Speaker 5: don't show up the court, or they rip off their ankle,
Speaker 5: bracelet or whatever. And when I really need to find
Speaker 5: these people or CBP through its investigative arms, then they
Speaker 5: can find them. And this can be through all kinds
Speaker 5: of things such as your license play was read on
Speaker 5: a red line, or you ordered a pizza, or you
Speaker 5: bought some movie or whatever it is that you ended
Speaker 5: up doing that ended up getting attracted by a private
Speaker 5: vendor and all of that private information is being bought
Speaker 5: and purchased by the government, which is perfectly legal be
Speaker 5: private industries get your consent theoretically whenever you're checking those
Speaker 5: boxes that you don't want to check, but they're forcing
Speaker 5: you to check to order a pizza or to buy
Speaker 5: something out a sore online or whatever it is you're doing.
Speaker 5: And they're collecting all of this data and they're doing
Speaker 5: it to a try to find people b The other
Speaker 5: thing they're trying to do is to determine if people
Speaker 5: are violating the terms and conditions of their non immigrant visa.
Speaker 5: So that might be, for instance, if you're a student
Speaker 5: and you're supposed to be studying, let's say at the
Speaker 5: University of Texas at Austin, and everything about you shows
Speaker 5: that you are purchasing everything and then traveling and doing
Speaker 5: everything is in Los Angeles, then the idea is, well,
Speaker 5: maybe you're not actually studying at the University of Texas.
Speaker 5: Maybe you're in Los Angeles and you're working, and we
Speaker 5: have that event of this, and so that's the second
Speaker 5: thing it's being used for, is to determine visa compliance.
Speaker 5: And then the third thing it's being used for is
Speaker 5: to determine this sort of web of associates to try
Speaker 5: to link up different people in different cases. But the
Speaker 5: government is suspicious about one person, to try to find
Speaker 5: as many webs of where you're intersecting, and the more
Speaker 5: a person intersects with sort of other bad people at
Speaker 5: five or six degrees a level that you say, oh boy,
Speaker 5: this person has associates XYZ, and then XYZ have associates
Speaker 5: YZW and they're all intersecting. Then that's alerting the government
Speaker 5: that it needs to either revoke a visa or de
Speaker 5: i of visa or come get you because you're a
Speaker 5: dangerous person. So that's what this evidence is being used for.
Speaker 2: So why is just Future's Law, a legal nonprofit serving
Speaker 2: marginalized communities suing Lexis Nexis Risk Solutions. Is that over
Speaker 2: individual state privacy laws?
Speaker 5: Well, the problem is there's all these different privacy laws
Speaker 5: and all the different states and privacy advocates politically, so
Speaker 5: let's start with that, just the political aspect first. There,
Speaker 5: Please tell any of people who say, look, the government
Speaker 5: shouldn't be doing this, shouldn't be accumulating all of this information.
Speaker 5: Who knows how it's being used? Is it being safeguarded?
Speaker 5: So there's all of those complaints which are understood. Those
Speaker 5: are generally good government sort of complaints. And you know,
Speaker 5: it just depends what year you want to live in,
Speaker 5: and you want to live in a year where all
Speaker 5: of that cat isn't out of the bag already, I understand,
Speaker 5: and you know, the people who are always pushing back
Speaker 5: on that are understood. But sort of now here at
Speaker 5: the end of twenty twenty three, you start thinking to yourself, boy,
Speaker 5: that cat not only is out of the bag, that
Speaker 5: cat is in a different state than the bag at
Speaker 5: this point. So I wonder what the complaces now, And
Speaker 5: then yeah, these are these state laws. You have different
Speaker 5: states that require different levels of consent before people's data
Speaker 5: can be purchased, and so people will too if they
Speaker 5: can determine that a state law was violated for the
Speaker 5: purpose of privacy, because CBP may have bought data or
Speaker 5: used data that wasn't consented to for a specific purpose,
Speaker 5: and so that is a reason that you can see
Speaker 5: and so people are always monitoring that. But that's a
Speaker 5: very sort of detailed data oriented thing, because different data
Speaker 5: can be used for different purposes and has to have
Speaker 5: different level of disclosure, and so all of this is
Speaker 5: on a very state by state and data by data basis.
Speaker 2: When you come into this country, you're immigrating here, and
Speaker 2: let's say you go through the system, do you sign
Speaker 2: anything that consents to monitoring.
Speaker 5: Well, it's not that you sign anything, because there's a
Speaker 5: lot of foreign nationals who are told don't sign anything,
Speaker 5: and so many of them don't even sign anything. But
Speaker 5: it's not actually in the law. It's in the statute
Speaker 5: and in the regulation that if you get relief from detention,
Speaker 5: you can be released under any terms and conditions that
Speaker 5: the Department of Homeland Security beings appropriate. And so it's
Speaker 5: just the act of releasing someone from immigration detention that
Speaker 5: automatically creates the legal duty to comply with any terms
Speaker 5: and conditions that I want.
Speaker 2: Once again, Leon, I have to say, I don't know
Speaker 2: how you keep up with all of this. Thanks so
Speaker 2: much for being on the show. That's Immigration Law expertly
Speaker 2: on Fresco, a partner at Honda Night. And that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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