1 00:00:00,440 --> 00:00:07,960 Speaker 1: Yea. This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,200 --> 00:00:12,040 Speaker 1: This week, the Supreme Court made it more difficult for 3 00:00:12,119 --> 00:00:16,120 Speaker 1: immigrants to challenge their detention in court while their deportation 4 00:00:16,239 --> 00:00:19,360 Speaker 1: cases are pending. In a pair of cases, the Court 5 00:00:19,440 --> 00:00:23,800 Speaker 1: rule that immigrants can be detained indefinitely without bond hearings 6 00:00:24,040 --> 00:00:27,600 Speaker 1: and that they can't challenge their detentions by banding together 7 00:00:27,640 --> 00:00:31,000 Speaker 1: as a class. During oral arguments. Some of the jostices, 8 00:00:31,080 --> 00:00:36,760 Speaker 1: like Stephen Bryer, expressed concerns about indefinite attention. Everybody gets 9 00:00:36,800 --> 00:00:39,440 Speaker 1: bail hearings that you're going to detain for a significant 10 00:00:39,479 --> 00:00:43,720 Speaker 1: amount of time every criminal case, debtors used to in 11 00:00:43,800 --> 00:00:48,040 Speaker 1: debtor prisons, Mental people being confined in hospitals have the 12 00:00:48,080 --> 00:00:51,720 Speaker 1: equivalent where you're going to day a person, not even 13 00:00:51,760 --> 00:00:55,280 Speaker 1: a criminal, you know, for months and months and months. 14 00:00:56,520 --> 00:00:58,920 Speaker 1: Why aren't they at least entitled to a bail hearing. 15 00:00:59,160 --> 00:01:03,200 Speaker 1: But severalice has suggested the proper procedure would be for 16 00:01:03,240 --> 00:01:06,920 Speaker 1: the immigrants to file a habeas corpus petition, where a 17 00:01:07,000 --> 00:01:10,120 Speaker 1: judge would decide the issue. Here are Justice is Neil 18 00:01:10,160 --> 00:01:13,960 Speaker 1: Gorsch and Amy Coney Barrett, I did not understand Mr 19 00:01:14,000 --> 00:01:19,080 Speaker 1: Reyner to contest that a habeas petition seeking relief on 20 00:01:19,120 --> 00:01:23,080 Speaker 1: a constitutional ground could be entertained by this court on 21 00:01:23,120 --> 00:01:28,440 Speaker 1: the basis that um detention has lasted too long without 22 00:01:28,480 --> 00:01:32,959 Speaker 1: sufficient explanation. You know, if you're bringing a habeas action, 23 00:01:33,040 --> 00:01:36,120 Speaker 1: you do have a judge, so you have a truly neutral, 24 00:01:36,600 --> 00:01:39,480 Speaker 1: uh decision maker as justice of course, just suggesting not 25 00:01:39,600 --> 00:01:42,280 Speaker 1: someone who's a member of the executive branch joining me 26 00:01:42,319 --> 00:01:45,759 Speaker 1: to sort through these decisions. Is Leon Fresco, a partner 27 00:01:45,760 --> 00:01:49,240 Speaker 1: at Hollandon Knight and formerly head of the Justice Department's 28 00:01:49,280 --> 00:01:53,840 Speaker 1: Office of Immigration Litigation. Leon, were these decisions a one 29 00:01:53,920 --> 00:01:59,280 Speaker 1: to punch for immigrants and immigration advocates? Absolutely due, there 30 00:01:59,400 --> 00:02:02,920 Speaker 1: was that only a very difficult day from the standpoint 31 00:02:03,000 --> 00:02:06,200 Speaker 1: that the immigration law. I would say, if you were 32 00:02:06,200 --> 00:02:08,959 Speaker 1: looking at it during the period of somewhere between two 33 00:02:08,960 --> 00:02:12,360 Speaker 1: thousand and nine and two thousand and fifteen two thousand 34 00:02:12,360 --> 00:02:15,560 Speaker 1: and sixteen, both of these cases would have been decided 35 00:02:15,639 --> 00:02:18,919 Speaker 1: completely the other way. And now the Supreme Court has 36 00:02:19,040 --> 00:02:22,799 Speaker 1: changed and the ethos has changed, and now you not 37 00:02:22,840 --> 00:02:25,480 Speaker 1: only have these five four decisions, but you actually have 38 00:02:25,560 --> 00:02:29,560 Speaker 1: decisions with liberal justice assigning onto them that are sort 39 00:02:29,560 --> 00:02:33,480 Speaker 1: of cracking down on immigration lawsuits. And from that standpoint, 40 00:02:33,520 --> 00:02:36,840 Speaker 1: it's a whole new, completely different world than it was before. 41 00:02:37,320 --> 00:02:42,280 Speaker 1: One case was unanimous and Justice Sotomayor wrote the majority opinion. 42 00:02:42,720 --> 00:02:45,679 Speaker 1: The other case on class actions was split six to 43 00:02:45,800 --> 00:02:50,680 Speaker 1: three down ideological lines and Justice Soto Mayor dissented. We 44 00:02:50,720 --> 00:02:54,399 Speaker 1: don't often see Justice Soto Mayor writing a majority opinion 45 00:02:54,760 --> 00:02:58,960 Speaker 1: in immigration cases. Well, it's certainly unusual in this court, 46 00:02:59,040 --> 00:03:01,639 Speaker 1: and it's certainly in usual in a case where it's 47 00:03:01,720 --> 00:03:05,960 Speaker 1: restricting rights of non citizens who want to file lawsuits. 48 00:03:06,040 --> 00:03:08,440 Speaker 1: If you would have had some sort of wager in 49 00:03:08,480 --> 00:03:11,440 Speaker 1: a casino to three years ago, that Justice sort of 50 00:03:11,480 --> 00:03:15,400 Speaker 1: Mayor would have written a decision making it more difficult 51 00:03:15,440 --> 00:03:18,120 Speaker 1: for non citizens to have a right to be released 52 00:03:18,120 --> 00:03:21,520 Speaker 1: from detention. That would have been like seven to one 53 00:03:21,520 --> 00:03:24,720 Speaker 1: odd And now you have such a decision. And so 54 00:03:25,000 --> 00:03:27,400 Speaker 1: really this was a tough day for the advocates in 55 00:03:27,440 --> 00:03:31,400 Speaker 1: the immigration world. So why because we hear her voice 56 00:03:31,600 --> 00:03:35,880 Speaker 1: in the second case where she's an advocate for immigrants. 57 00:03:36,440 --> 00:03:38,720 Speaker 1: Was it because of the text of the statute in 58 00:03:38,760 --> 00:03:43,600 Speaker 1: the first case in this detention regime, nothing anywhere in 59 00:03:43,640 --> 00:03:47,680 Speaker 1: the statute talks about bob hearings and burden of proof 60 00:03:47,680 --> 00:03:51,000 Speaker 1: and anything else. So if the Court was being asked 61 00:03:51,000 --> 00:03:55,880 Speaker 1: to make a decision, does this statute actually require bond hearings. 62 00:03:56,120 --> 00:03:58,760 Speaker 1: Does this statute actually require the burden of proof to 63 00:03:58,760 --> 00:04:01,400 Speaker 1: be on the government. It's not intellectually honest. You can't 64 00:04:01,400 --> 00:04:03,240 Speaker 1: look at a statute book and read any of that 65 00:04:03,440 --> 00:04:06,240 Speaker 1: because none of that's in there. So it seems like 66 00:04:06,400 --> 00:04:10,520 Speaker 1: in that context, the liberal justices gave in and said, look, 67 00:04:10,560 --> 00:04:12,560 Speaker 1: this might be a place where we might want to 68 00:04:12,600 --> 00:04:16,520 Speaker 1: build some credibility and some bipartisanship and come together and 69 00:04:16,560 --> 00:04:19,880 Speaker 1: say the statutory regime doesn't work there. I do think 70 00:04:19,960 --> 00:04:22,720 Speaker 1: that's the intent, because otherwise I don't think you would 71 00:04:22,720 --> 00:04:26,120 Speaker 1: have seen this decision because the path of where these 72 00:04:26,160 --> 00:04:34,359 Speaker 1: decisions were going sen were in giving expensive rights to 73 00:04:34,440 --> 00:04:37,920 Speaker 1: non citizens to have bomb hearings, and now here in 74 00:04:37,960 --> 00:04:41,080 Speaker 1: this case, what the Supreme Court is saying is we 75 00:04:41,200 --> 00:04:44,840 Speaker 1: are going to make people who are in detention for 76 00:04:44,920 --> 00:04:48,280 Speaker 1: extended periods of time go through the process of either 77 00:04:48,400 --> 00:04:52,880 Speaker 1: hiring a lawyer and filing a federal habeas corpus petition, 78 00:04:53,360 --> 00:04:55,039 Speaker 1: or they'll have to figure out how to do it 79 00:04:55,080 --> 00:04:59,599 Speaker 1: themselves pro sed to file these federal habeas petitions. But 80 00:04:59,680 --> 00:05:02,520 Speaker 1: we're not gonna just skip that step and make it 81 00:05:02,600 --> 00:05:06,280 Speaker 1: easier by sort of presuming that in six months you 82 00:05:06,320 --> 00:05:09,000 Speaker 1: get a bond hearing, because the statute doesn't say it. 83 00:05:09,320 --> 00:05:11,880 Speaker 1: And so if the statute doesn't say it, we can't 84 00:05:11,920 --> 00:05:15,320 Speaker 1: as a court start adding things that aren't in the statute. 85 00:05:15,680 --> 00:05:17,960 Speaker 1: That aren't in the statute. It sort of makes sense 86 00:05:18,040 --> 00:05:21,080 Speaker 1: from a literal point of view, but from a practical 87 00:05:21,120 --> 00:05:24,040 Speaker 1: point of view, what it's doing is is it's putting 88 00:05:24,080 --> 00:05:27,839 Speaker 1: a lot more onus on the foreign national who's detained 89 00:05:28,200 --> 00:05:31,839 Speaker 1: to either get a lawyer and have to file a 90 00:05:31,920 --> 00:05:35,680 Speaker 1: federal habeas complaint, which is pretty hard and work intensive, 91 00:05:36,080 --> 00:05:38,720 Speaker 1: and it's either expensive or you've got to find some 92 00:05:38,839 --> 00:05:42,040 Speaker 1: pro bono organization that has resources, or you're gonna have 93 00:05:42,080 --> 00:05:44,640 Speaker 1: to figure out how to argue your own federal court 94 00:05:44,720 --> 00:05:48,839 Speaker 1: habeas petition in order to get yourselves out of indefinite detention. 95 00:05:49,279 --> 00:05:51,960 Speaker 1: And so that's the impact of that decision. And we 96 00:05:52,000 --> 00:05:54,720 Speaker 1: have to back up a little here explain the first decision, 97 00:05:55,160 --> 00:05:58,240 Speaker 1: the facts and what's going on. Right, So what happens 98 00:05:58,279 --> 00:06:03,279 Speaker 1: in this Artiaga Martine cases as follows, you have individuals 99 00:06:03,320 --> 00:06:08,080 Speaker 1: who have actually been deported from the United States and 100 00:06:08,120 --> 00:06:10,479 Speaker 1: then they come back in and they say, during the 101 00:06:10,600 --> 00:06:14,000 Speaker 1: time that I was deported and now that I'm coming 102 00:06:14,040 --> 00:06:18,080 Speaker 1: back in, something has happened whereby I'm now eligible for 103 00:06:18,200 --> 00:06:22,120 Speaker 1: relief from deportation because I'm going to be persecuted in 104 00:06:22,160 --> 00:06:25,960 Speaker 1: the country that I'm fleeing. Now, those people can't get asylum, 105 00:06:26,080 --> 00:06:29,160 Speaker 1: which is a relief that gives you a path to citizenship, 106 00:06:29,480 --> 00:06:33,640 Speaker 1: but they can get something called withholding of removal, which 107 00:06:33,680 --> 00:06:37,800 Speaker 1: says you can stay here in limbo until your country 108 00:06:37,880 --> 00:06:41,240 Speaker 1: has better conditions than what it has today. But what 109 00:06:41,360 --> 00:06:45,560 Speaker 1: happens is if you re enter after you've been deported, 110 00:06:45,960 --> 00:06:49,120 Speaker 1: you are to be detained in the statute for as 111 00:06:49,120 --> 00:06:51,640 Speaker 1: long as it takes for this proceeding to take place. 112 00:06:52,279 --> 00:06:54,600 Speaker 1: And so what was happening is for some people, they 113 00:06:54,640 --> 00:06:58,280 Speaker 1: were being detained for so long that they started filing 114 00:06:58,440 --> 00:07:01,440 Speaker 1: habeas complaints and for the real court saying that they 115 00:07:01,440 --> 00:07:04,800 Speaker 1: should be entitled to a bond hearing, and that that 116 00:07:04,880 --> 00:07:09,200 Speaker 1: bond hearing should determine whether they are actually someone who 117 00:07:09,360 --> 00:07:10,960 Speaker 1: is going to be dangerous or is going to be 118 00:07:10,960 --> 00:07:13,760 Speaker 1: a flight risk, and if not, they should be released. 119 00:07:14,120 --> 00:07:17,360 Speaker 1: And so there was actually decisions from the Third Circuit 120 00:07:17,440 --> 00:07:20,720 Speaker 1: and the Ninth Circuit saying, look, we don't want thousands 121 00:07:20,720 --> 00:07:24,480 Speaker 1: of these habeas decisions coming to our federal courts, so 122 00:07:24,520 --> 00:07:27,679 Speaker 1: we're just gonna make up presumption that after six months 123 00:07:28,440 --> 00:07:31,320 Speaker 1: you get a bond hearing, meaning the government just has 124 00:07:31,400 --> 00:07:33,960 Speaker 1: to give you the bond hearing after six months, and 125 00:07:34,040 --> 00:07:37,880 Speaker 1: they have to decide whether you are a flight risk 126 00:07:38,080 --> 00:07:43,280 Speaker 1: or are dangerous. And the government appealed these decisions, and 127 00:07:43,360 --> 00:07:45,800 Speaker 1: what the Supreme Court said is, look, there's nothing in 128 00:07:45,880 --> 00:07:47,880 Speaker 1: the statute that talks about any of this. This is 129 00:07:47,920 --> 00:07:51,480 Speaker 1: literally all made up by courts. We get white. Courts 130 00:07:51,480 --> 00:07:54,520 Speaker 1: are making this up because it's a convenient thing to 131 00:07:54,720 --> 00:07:58,320 Speaker 1: just say, in six months, we don't presume that you'll 132 00:07:58,320 --> 00:08:01,000 Speaker 1: have to file a federal habea is and it will 133 00:08:01,040 --> 00:08:03,360 Speaker 1: be done on a one by one basis. Let's just 134 00:08:03,440 --> 00:08:07,520 Speaker 1: make this class wide and simple and after six months 135 00:08:07,960 --> 00:08:10,880 Speaker 1: you can just get automatically a bond hearing. Yes, it 136 00:08:10,880 --> 00:08:14,280 Speaker 1: would be much simpler, easier to use framework. But the 137 00:08:14,320 --> 00:08:18,240 Speaker 1: Court said, none of that is actually written anywhere, and 138 00:08:18,320 --> 00:08:21,160 Speaker 1: so courts can't make it up. And so that's why 139 00:08:21,320 --> 00:08:25,080 Speaker 1: the foreign nationals in this case lost. Let's talk about 140 00:08:25,080 --> 00:08:29,520 Speaker 1: the second case, where it becomes more difficult to challenge 141 00:08:29,760 --> 00:08:33,520 Speaker 1: immigration policies in court because you can't do it based 142 00:08:33,559 --> 00:08:36,840 Speaker 1: on a class action. So tell us about the second case. 143 00:08:37,000 --> 00:08:42,040 Speaker 1: What happened there. In the second case, it's basically similar 144 00:08:42,120 --> 00:08:45,840 Speaker 1: facts where you have people coming in from Mexico who 145 00:08:45,840 --> 00:08:49,480 Speaker 1: are detained again after re entering the United States, and 146 00:08:49,520 --> 00:08:52,959 Speaker 1: they're making basically the same claim again that they're entitled 147 00:08:52,960 --> 00:08:56,760 Speaker 1: to bomb hearings after six months of detention, and they're 148 00:08:56,800 --> 00:08:58,920 Speaker 1: trying to do it as a class as opposed to 149 00:08:59,000 --> 00:09:03,280 Speaker 1: one person trying to make precedent for themselves. They're doing 150 00:09:03,320 --> 00:09:05,480 Speaker 1: it as a class so that they can basically get 151 00:09:05,520 --> 00:09:11,280 Speaker 1: a nationwide decision that would say, nationwide, everybody going through 152 00:09:11,960 --> 00:09:15,640 Speaker 1: this process gets a bond hearing if they're still detained 153 00:09:15,640 --> 00:09:18,360 Speaker 1: after six months, if the government hasn't figured out whether 154 00:09:18,400 --> 00:09:20,240 Speaker 1: they're going to give them this relief or not after 155 00:09:20,320 --> 00:09:23,080 Speaker 1: six months, they can't just keep them detained forever. They 156 00:09:23,080 --> 00:09:25,760 Speaker 1: have to give them a bond hearing after six months. 157 00:09:25,880 --> 00:09:28,920 Speaker 1: And so, in addition to the merits of this claim, 158 00:09:28,960 --> 00:09:31,720 Speaker 1: which we talked about two seconds ago, in the other case, 159 00:09:32,160 --> 00:09:36,840 Speaker 1: the Johnson versus Artiaga Martinez case. This case, which is 160 00:09:36,880 --> 00:09:40,720 Speaker 1: the Garland versus a Lamam Gonzalez case, was again one 161 00:09:40,760 --> 00:09:44,560 Speaker 1: where in the lower courts they said that class action 162 00:09:44,640 --> 00:09:49,160 Speaker 1: relief was available, and the Department of Justice appealed this, 163 00:09:49,400 --> 00:09:52,760 Speaker 1: and this was the Trump administration appealed it, but the 164 00:09:52,880 --> 00:09:56,880 Speaker 1: bid the administration kept the appeal going, meaning even they 165 00:09:57,040 --> 00:10:00,400 Speaker 1: wanted to get rid of these class action lawsuits. And 166 00:10:00,520 --> 00:10:05,640 Speaker 1: what really came to bear is a statute which actually says, 167 00:10:06,120 --> 00:10:09,880 Speaker 1: it's called a USC Section twelve fifty two, that federal 168 00:10:09,920 --> 00:10:14,440 Speaker 1: courts do not have jurisdiction to enjoin or restrain the 169 00:10:14,520 --> 00:10:17,199 Speaker 1: operation of provisions of the I and A, and it 170 00:10:17,240 --> 00:10:20,679 Speaker 1: gives a list of them. And so then the question is, well, 171 00:10:20,720 --> 00:10:23,640 Speaker 1: does that mean then that they can't they can't enjoin that. 172 00:10:24,320 --> 00:10:27,560 Speaker 1: And so this was literally a huge semantics debate, which 173 00:10:27,640 --> 00:10:30,680 Speaker 1: is the people who wanted to have this ability to 174 00:10:30,720 --> 00:10:34,079 Speaker 1: do class wide injunction said, yes, of course, you can't 175 00:10:34,200 --> 00:10:38,600 Speaker 1: enjoin a statute if that's the actual correct reading of 176 00:10:38,679 --> 00:10:41,920 Speaker 1: that statute, meaning of course you can enjoin an illegal 177 00:10:42,000 --> 00:10:44,560 Speaker 1: reading of the statute. What this says is you just 178 00:10:44,640 --> 00:10:48,040 Speaker 1: can't enjoin a legal reading of the statute. So I 179 00:10:48,080 --> 00:10:52,160 Speaker 1: still get to enjoin any statute that's illegal, and what 180 00:10:52,240 --> 00:10:54,920 Speaker 1: the majority opinion said and what the government said, and 181 00:10:54,960 --> 00:10:57,320 Speaker 1: what the people who prevailed said said, no, no, no, 182 00:10:57,320 --> 00:10:59,960 Speaker 1: no no. This means you can't even attempt to get 183 00:11:00,080 --> 00:11:03,720 Speaker 1: an injunction of the statute. It doesn't matter whether the 184 00:11:03,800 --> 00:11:07,120 Speaker 1: statute were debating whether it's legal or not. You're doing 185 00:11:07,160 --> 00:11:10,120 Speaker 1: something extra there. What this is saying is we don't 186 00:11:10,160 --> 00:11:14,800 Speaker 1: even have jurisdiction to try for an attempt to determine 187 00:11:14,800 --> 00:11:17,480 Speaker 1: whether that statute is legal or not legal on a 188 00:11:17,559 --> 00:11:21,120 Speaker 1: class wide basis. What has to happen is an individual 189 00:11:21,160 --> 00:11:23,959 Speaker 1: person has to make that claim. And great, if they 190 00:11:23,960 --> 00:11:26,200 Speaker 1: get all the way up to the Supreme Court and 191 00:11:26,360 --> 00:11:28,880 Speaker 1: they get a decision saying something, well, then that will 192 00:11:28,920 --> 00:11:32,800 Speaker 1: be the way that that applies nationally. But otherwise that 193 00:11:32,880 --> 00:11:36,079 Speaker 1: decision will just apply to that one person, or it 194 00:11:36,160 --> 00:11:38,240 Speaker 1: might apply to that circuit if it goes to the 195 00:11:38,480 --> 00:11:40,880 Speaker 1: Circuit Court of Appeals. But you're not going to be 196 00:11:40,880 --> 00:11:44,720 Speaker 1: able to get a nationwide injunction of certain statutes in 197 00:11:44,760 --> 00:11:48,880 Speaker 1: the I and A by doing a district court nationwide 198 00:11:48,920 --> 00:11:54,040 Speaker 1: class action trying to enjoin the detention and deportation provisions 199 00:11:54,040 --> 00:11:57,080 Speaker 1: of the I and A. So in this case this 200 00:11:57,200 --> 00:12:02,320 Speaker 1: was six to three down ideological line. Justice Son wrote 201 00:12:02,360 --> 00:12:06,000 Speaker 1: the descent and said, I respectfully dissent from the courts 202 00:12:06,200 --> 00:12:12,640 Speaker 1: blinkered analysis that elevates piecemeal dictionary definitions and policy concerns 203 00:12:12,760 --> 00:12:16,760 Speaker 1: over plain meaning and context. I mean, she was basically, 204 00:12:16,880 --> 00:12:20,040 Speaker 1: very powerfully trying to say that, at the end of 205 00:12:20,040 --> 00:12:24,719 Speaker 1: the day, if you have an illegal version of a statute, 206 00:12:25,200 --> 00:12:27,520 Speaker 1: there's no way that you can write a statute that 207 00:12:27,600 --> 00:12:30,679 Speaker 1: prevents an injunction of an illegal version of the statute, 208 00:12:31,080 --> 00:12:34,360 Speaker 1: and that the court was taking the way the statute 209 00:12:34,480 --> 00:12:39,559 Speaker 1: was written to literally and saying that the Congress can 210 00:12:39,600 --> 00:12:45,200 Speaker 1: can literally ban jurisdictionally any lawsuited immigration in any manner 211 00:12:45,200 --> 00:12:48,000 Speaker 1: in which it is written. And what justice sort of 212 00:12:48,000 --> 00:12:50,040 Speaker 1: mayor was trying to say, what the descent is, No, 213 00:12:50,320 --> 00:12:53,920 Speaker 1: that's not true. There's no way you can ban lawsuits 214 00:12:54,160 --> 00:12:57,679 Speaker 1: into trying to say that a statute is illegal. Now, 215 00:12:58,240 --> 00:13:02,600 Speaker 1: what's a very resting flip side to this case, and 216 00:13:02,640 --> 00:13:06,200 Speaker 1: now we're gonna see whether these are consistently held beliefs 217 00:13:06,240 --> 00:13:09,560 Speaker 1: by the court or not. Is that a lot of 218 00:13:09,600 --> 00:13:12,640 Speaker 1: the lawsuits are being filed by the state of Texas 219 00:13:12,760 --> 00:13:15,560 Speaker 1: and by other states are trying to do the exact 220 00:13:15,600 --> 00:13:19,320 Speaker 1: same thing that these lawsuits were trying to do. So 221 00:13:19,960 --> 00:13:22,480 Speaker 1: either they're gonna now come up with some post hoc 222 00:13:22,640 --> 00:13:25,800 Speaker 1: rationale why the State of Texas can keep going and 223 00:13:25,840 --> 00:13:30,720 Speaker 1: filing their own lawsuits that are not individual immigrant lawsuits 224 00:13:31,200 --> 00:13:35,079 Speaker 1: challenging certain statutes, or all of those are going to 225 00:13:35,160 --> 00:13:39,000 Speaker 1: be dismissed too, which will mean that the Biden administration 226 00:13:39,200 --> 00:13:42,560 Speaker 1: for now and then some other administration later we'll be 227 00:13:42,640 --> 00:13:46,320 Speaker 1: able to have carte blanche interpretations of how they want 228 00:13:46,320 --> 00:13:49,959 Speaker 1: to administer these statutes. So that's to me going to 229 00:13:50,000 --> 00:13:52,559 Speaker 1: be the most interesting part to see is are we 230 00:13:52,600 --> 00:13:55,320 Speaker 1: going to start seeing courts bending over backwards to try 231 00:13:55,320 --> 00:13:58,959 Speaker 1: to distinguish this, or is this literally gonna shut down 232 00:13:59,400 --> 00:14:02,000 Speaker 1: all of these lawsuits where people are trying to make 233 00:14:02,360 --> 00:14:07,520 Speaker 1: programmatic changes to immigration in cases where there is not 234 00:14:07,600 --> 00:14:11,000 Speaker 1: an individual immigrant whose rights are at stake, So then 235 00:14:11,040 --> 00:14:14,600 Speaker 1: this might apply. We might see this in the remaining 236 00:14:14,679 --> 00:14:17,920 Speaker 1: Mexico case, which the court has yet to issue the 237 00:14:17,920 --> 00:14:21,240 Speaker 1: decision in. Absolutely, we could see this in a bunch 238 00:14:21,280 --> 00:14:23,880 Speaker 1: of cases, and we're gonna have to wait and see 239 00:14:23,880 --> 00:14:26,720 Speaker 1: how this court wants to apply that, and how lower 240 00:14:26,760 --> 00:14:29,680 Speaker 1: courts want to apply that, because what this is saying 241 00:14:29,840 --> 00:14:32,720 Speaker 1: is basically there's a subset of statutes and they involve 242 00:14:33,040 --> 00:14:36,560 Speaker 1: the detention and removal of non citizens. And what this 243 00:14:36,640 --> 00:14:39,600 Speaker 1: is saying is in those statutes involving the detention and 244 00:14:39,640 --> 00:14:42,400 Speaker 1: removal of non citizens, you've got to do that within 245 00:14:42,480 --> 00:14:45,280 Speaker 1: the individual case of a non citizen. And by the way, 246 00:14:45,320 --> 00:14:48,200 Speaker 1: that doesn't mean you can't get national application. You can. 247 00:14:48,680 --> 00:14:50,600 Speaker 1: But what has to happen is in order to get 248 00:14:50,680 --> 00:14:53,760 Speaker 1: national application is it has to go to the Supreme 249 00:14:53,760 --> 00:14:57,120 Speaker 1: Court or if not, you'll get circuit court application or 250 00:14:57,200 --> 00:15:00,680 Speaker 1: district court application. But what you can't do get a 251 00:15:00,760 --> 00:15:04,760 Speaker 1: nationwide class action that's done in one district because you 252 00:15:04,880 --> 00:15:07,560 Speaker 1: had a class action certified. It has to be done 253 00:15:07,840 --> 00:15:11,720 Speaker 1: in an individual case. And so what that means for 254 00:15:11,800 --> 00:15:13,960 Speaker 1: the State of Texas and all these other places is 255 00:15:14,000 --> 00:15:17,320 Speaker 1: they don't have individual immigrants going through cases at all, 256 00:15:17,920 --> 00:15:20,000 Speaker 1: and so it will be very interesting if they will 257 00:15:20,040 --> 00:15:24,840 Speaker 1: have any jurisdiction to be able to challenge these statutes 258 00:15:25,080 --> 00:15:29,000 Speaker 1: or these processes that also deal with the tension and 259 00:15:29,080 --> 00:15:32,000 Speaker 1: removal that they don't like the way the Biden administration 260 00:15:32,120 --> 00:15:34,760 Speaker 1: is operating the tension and removal or will they be 261 00:15:34,880 --> 00:15:36,720 Speaker 1: kicked out of court as well. That's going to be 262 00:15:36,800 --> 00:15:40,480 Speaker 1: very fascinating to see. Well, this decision have a lot 263 00:15:40,520 --> 00:15:47,920 Speaker 1: of repercussions for immigrants and immigration advocates to challenge immigration 264 00:15:48,080 --> 00:15:52,240 Speaker 1: policies in court. That will slow down the process in 265 00:15:52,720 --> 00:15:57,239 Speaker 1: cases where there's a new policy that's announced on enforcement 266 00:15:57,880 --> 00:15:59,840 Speaker 1: and instead of being able to go to one court 267 00:16:00,080 --> 00:16:03,560 Speaker 1: get a nationwide injunction, you will actually have to find 268 00:16:04,040 --> 00:16:07,600 Speaker 1: immigrants suffering and then go to all of those different 269 00:16:07,640 --> 00:16:10,800 Speaker 1: courts where immigrants are suffering and try to get rulings 270 00:16:10,800 --> 00:16:13,800 Speaker 1: in those circuits so that it doesn't apply in those 271 00:16:13,800 --> 00:16:17,200 Speaker 1: particular circuits until you go to the Supreme Court. So 272 00:16:17,240 --> 00:16:19,240 Speaker 1: that's going to be the big change, And then the 273 00:16:19,240 --> 00:16:22,160 Speaker 1: other big change will be what about it no immigrants 274 00:16:22,200 --> 00:16:24,800 Speaker 1: are suffering at all? So, for instance, what if you're 275 00:16:24,840 --> 00:16:27,760 Speaker 1: the state of Texas or the state of Louisiana and 276 00:16:27,800 --> 00:16:30,400 Speaker 1: you're trying to file a lawsuit? Will you be able 277 00:16:30,440 --> 00:16:33,920 Speaker 1: to actually do it since you're not actually representing anyone 278 00:16:33,960 --> 00:16:36,560 Speaker 1: that's going through the process. And so that's what's going 279 00:16:36,600 --> 00:16:39,920 Speaker 1: to be fascinating to see, And we'll find out soon 280 00:16:40,000 --> 00:16:43,040 Speaker 1: in two to three weeks before the term ends, Leon, 281 00:16:43,160 --> 00:16:45,960 Speaker 1: stay with me. Coming up, we'll discuss a case the 282 00:16:46,000 --> 00:16:50,320 Speaker 1: Supreme Court throughout where some Republican led states were trying 283 00:16:50,320 --> 00:16:53,920 Speaker 1: to take the administration to court over its recision of 284 00:16:54,000 --> 00:16:57,600 Speaker 1: the Trump Public Charge Rule. You're listening to Bloomberg in 285 00:16:58,520 --> 00:17:03,360 Speaker 1: the Biden administration engaged in some legal gamesmanship in rescinding 286 00:17:03,360 --> 00:17:07,320 Speaker 1: a hot button Trump immigration policy, the so called public 287 00:17:07,440 --> 00:17:11,240 Speaker 1: Charge Rule, and then drafting its own rule without following 288 00:17:11,280 --> 00:17:16,520 Speaker 1: administrative law procedure, leaving a tangled legal aftermath. Arizona and 289 00:17:16,560 --> 00:17:20,200 Speaker 1: other Republican led states took the administration to court over 290 00:17:20,240 --> 00:17:24,600 Speaker 1: the rule change, and during oral arguments, Supreme Court justices 291 00:17:24,680 --> 00:17:30,600 Speaker 1: across the ideological spectrum appeared annoyed with the Administration's legal maneuvers. 292 00:17:30,600 --> 00:17:35,840 Speaker 1: Here are Justices Samuel Alito and Elena Kagan. I congratulate 293 00:17:35,920 --> 00:17:39,119 Speaker 1: whoever it is in the Justice Department or the Executive 294 00:17:39,119 --> 00:17:44,800 Speaker 1: branch who devised this strategy and was able to implement 295 00:17:44,880 --> 00:17:52,480 Speaker 1: it with military precision to effect the removal of the 296 00:17:52,560 --> 00:17:58,520 Speaker 1: issue from our docket and two side step notice and 297 00:17:58,640 --> 00:18:04,080 Speaker 1: comment rulemaking. We shouldn't be green lighting that behavior for 298 00:18:04,200 --> 00:18:08,240 Speaker 1: your administration or any other administration, all right, and and 299 00:18:08,240 --> 00:18:13,960 Speaker 1: and and on that assumption, what should be the remedy 300 00:18:14,000 --> 00:18:17,119 Speaker 1: because it just seems as though you're here and saying, 301 00:18:17,560 --> 00:18:19,840 Speaker 1: you know, you can just tell us to go home, 302 00:18:19,880 --> 00:18:22,320 Speaker 1: and and and nothing's going to happen to us, and 303 00:18:22,359 --> 00:18:24,920 Speaker 1: everybody will just do it the next time. This week, 304 00:18:24,960 --> 00:18:27,840 Speaker 1: the Supreme Court appeared to throw its hands up and 305 00:18:27,880 --> 00:18:31,520 Speaker 1: dismiss the case. I've been talking to immigration law expert 306 00:18:31,600 --> 00:18:35,040 Speaker 1: Leon Fresco of Holland and Knight. The decision was one 307 00:18:35,119 --> 00:18:39,320 Speaker 1: sentence long and said the states petition seeking review was 308 00:18:39,440 --> 00:18:43,840 Speaker 1: dismissed as improvidently granted, so basically saying we shouldn't have 309 00:18:43,880 --> 00:18:46,439 Speaker 1: taken this case in the first place. But do we 310 00:18:46,520 --> 00:18:50,000 Speaker 1: know why they dismissed the case. There's basically a pretty 311 00:18:50,040 --> 00:18:54,879 Speaker 1: good indication in the two paid concurrent where Justice is 312 00:18:55,040 --> 00:18:59,600 Speaker 1: Robert Thomas, Alito and Gores that actually explain in their 313 00:19:00,000 --> 00:19:03,560 Speaker 1: ears why they think this case needed to be sent back. 314 00:19:03,840 --> 00:19:06,520 Speaker 1: And that is because at the end of the day, 315 00:19:06,560 --> 00:19:09,639 Speaker 1: there were too many issues that were wrapped up around 316 00:19:09,640 --> 00:19:12,280 Speaker 1: this case. And one could see that during the oral 317 00:19:12,400 --> 00:19:15,280 Speaker 1: argument where the justices were all over the place. So 318 00:19:15,400 --> 00:19:18,600 Speaker 1: just give you some context, this was originally a case 319 00:19:18,640 --> 00:19:22,160 Speaker 1: about whether the Trump public charge rule was legal or not. 320 00:19:22,640 --> 00:19:24,679 Speaker 1: And there were a bunch of courts that that it 321 00:19:24,760 --> 00:19:27,119 Speaker 1: was legal, and there was only one court that it 322 00:19:27,240 --> 00:19:30,639 Speaker 1: wasn't legal, and the Supreme Court that actually let that 323 00:19:30,840 --> 00:19:34,480 Speaker 1: public charge rule go into effects. But then what happened 324 00:19:34,560 --> 00:19:38,560 Speaker 1: was the President Biden reversed the public charge rule and said, 325 00:19:39,280 --> 00:19:42,879 Speaker 1: there's this one chord that says in Illinois that the 326 00:19:42,880 --> 00:19:46,920 Speaker 1: public charge rule is the legal We agree with this 327 00:19:46,960 --> 00:19:50,080 Speaker 1: one court in Illinois, so we're just going to not 328 00:19:50,280 --> 00:19:52,879 Speaker 1: use the Donald Trump public charge rule. We're going to 329 00:19:52,920 --> 00:19:56,920 Speaker 1: acquiesce in the decision of this Illinois court. And so 330 00:19:57,040 --> 00:20:01,520 Speaker 1: now when the states tried to intervene in that case 331 00:20:01,600 --> 00:20:04,840 Speaker 1: so that they could say no, no, no, that ruling 332 00:20:04,960 --> 00:20:09,080 Speaker 1: is incorrect and we should be allowed to move forward, 333 00:20:09,720 --> 00:20:11,760 Speaker 1: the court was sort of all over the place because 334 00:20:11,800 --> 00:20:13,920 Speaker 1: they said, well, wait a second, now there's a new 335 00:20:14,440 --> 00:20:18,440 Speaker 1: Joe Biden public charge rules. And so there's issues of muteness, 336 00:20:18,560 --> 00:20:21,480 Speaker 1: there's issues of standing, and all of these other things. 337 00:20:21,480 --> 00:20:24,040 Speaker 1: So there are so many and none of them were 338 00:20:24,080 --> 00:20:28,720 Speaker 1: the one about whether states can intervene. That the courts 339 00:20:28,760 --> 00:20:31,720 Speaker 1: to forget it. Let's just start from scribe here, since 340 00:20:31,720 --> 00:20:34,359 Speaker 1: there's a new public charge chool and if the state 341 00:20:34,520 --> 00:20:37,280 Speaker 1: wants to sue on this new public charge rule, they 342 00:20:37,280 --> 00:20:39,879 Speaker 1: can go ahead and do that. So then this doesn't 343 00:20:39,880 --> 00:20:43,760 Speaker 1: have anything to do with whether states can intervene in 344 00:20:43,800 --> 00:20:48,880 Speaker 1: a case like this. Well, the original reason for granting 345 00:20:48,920 --> 00:20:52,800 Speaker 1: surgery in this case was whether the states could intervene 346 00:20:53,640 --> 00:20:57,359 Speaker 1: in challenging what President Biden had done, which was to 347 00:20:57,440 --> 00:21:01,600 Speaker 1: acquiesce to that one district court decision in Illinois. But 348 00:21:01,720 --> 00:21:04,560 Speaker 1: what the court said is so much has happened since 349 00:21:04,640 --> 00:21:07,320 Speaker 1: that that now this case is all over the place. 350 00:21:07,400 --> 00:21:11,119 Speaker 1: Now Biden actually changed the rule. So what difference would 351 00:21:11,119 --> 00:21:14,880 Speaker 1: it make if we allow them to intervene, Because what 352 00:21:14,920 --> 00:21:17,240 Speaker 1: are you left to do about if the rule has 353 00:21:17,280 --> 00:21:20,080 Speaker 1: already changed. And so what they all agree to is, look, 354 00:21:20,160 --> 00:21:22,760 Speaker 1: let's just dismissed this case and move on with our lives. 355 00:21:22,880 --> 00:21:25,600 Speaker 1: So does this give the Biden administration or any other 356 00:21:25,600 --> 00:21:30,160 Speaker 1: administration a roadmap for the future. So it's a rare 357 00:21:30,920 --> 00:21:34,879 Speaker 1: situation because it could only happen in the exact situation 358 00:21:35,000 --> 00:21:40,359 Speaker 1: like this, where what happens is somebody sues and you 359 00:21:40,480 --> 00:21:43,280 Speaker 1: just accept the decision you want to accept. So yes, 360 00:21:43,400 --> 00:21:46,880 Speaker 1: you could actually do that always. You can always accept 361 00:21:47,000 --> 00:21:50,800 Speaker 1: a decision from a court that you like and then 362 00:21:51,000 --> 00:21:54,359 Speaker 1: just do that instead of reversing a regulation by notice 363 00:21:54,400 --> 00:21:59,920 Speaker 1: a comment. The only difference is that usually in those 364 00:22:00,119 --> 00:22:02,960 Speaker 1: kinds of lawsuits, the States would have had an opportunity 365 00:22:03,000 --> 00:22:07,720 Speaker 1: to intervene from the beginning, and if they don't intervene, 366 00:22:07,760 --> 00:22:10,520 Speaker 1: then it's going to be their fault at bat the end. Here, 367 00:22:10,600 --> 00:22:14,800 Speaker 1: the problem was because those lawsuits were being defended by 368 00:22:14,840 --> 00:22:18,960 Speaker 1: the Trump administration, the States felt no need to intervene, 369 00:22:19,520 --> 00:22:22,159 Speaker 1: and so it was only when Biden got elected and 370 00:22:22,240 --> 00:22:25,640 Speaker 1: acquiesced that is much much later, that the States came 371 00:22:25,680 --> 00:22:29,080 Speaker 1: in very late in the game and tried to intervene 372 00:22:29,119 --> 00:22:32,480 Speaker 1: and resuscitate this case. And so that's why the courts 373 00:22:32,480 --> 00:22:35,239 Speaker 1: are saying this is so unique and kind of like 374 00:22:35,280 --> 00:22:38,240 Speaker 1: a unicorn set of fact. There's no need for us 375 00:22:38,240 --> 00:22:41,280 Speaker 1: to really get involved in this. Thanks so much, Leon. 376 00:22:42,119 --> 00:22:47,440 Speaker 1: That's Leon Fresco of Hollandon Knight. The January six Committee 377 00:22:47,480 --> 00:22:50,439 Speaker 1: focused at the last hearing, they kind introducing evidence of 378 00:22:50,520 --> 00:22:53,760 Speaker 1: pressure and former President Donald Trump put on his Vice 379 00:22:53,800 --> 00:22:57,840 Speaker 1: president Mike Tense to delay or reject the certification of 380 00:22:57,920 --> 00:23:02,680 Speaker 1: Joe Biden's election victory continuing to make its case against Trump. 381 00:23:02,920 --> 00:23:06,359 Speaker 1: Joining me is Attorney Jordan Strauss, Kroll Managing Director and 382 00:23:06,520 --> 00:23:11,199 Speaker 1: Kroll Institute fellow. Give me your general impression of the 383 00:23:11,280 --> 00:23:15,040 Speaker 1: hearings to this point. I think my general impression is 384 00:23:15,560 --> 00:23:19,159 Speaker 1: this was, in fact, the most complex investigation in history. 385 00:23:19,359 --> 00:23:23,400 Speaker 1: And we've heard that from everyone involved in it. We've 386 00:23:23,400 --> 00:23:26,720 Speaker 1: seen it from the committee's activities, you know, over a 387 00:23:26,720 --> 00:23:30,200 Speaker 1: thousand interviews in eighteen months. I'm personally just bulled over 388 00:23:30,280 --> 00:23:32,879 Speaker 1: by how much they were able to get done and 389 00:23:32,960 --> 00:23:36,439 Speaker 1: what really is a relatively short amount of time. Um 390 00:23:36,480 --> 00:23:38,280 Speaker 1: and by the way, and I think that's sentiment shared 391 00:23:38,280 --> 00:23:40,320 Speaker 1: by the Attorney General and the Deputy Attorney General, who 392 00:23:40,359 --> 00:23:42,960 Speaker 1: you know, between them were on Enron and the Federal 393 00:23:42,960 --> 00:23:46,240 Speaker 1: bombing right to the most other most complex cases in history. 394 00:23:46,440 --> 00:23:50,440 Speaker 1: I think it's really hard to conduct very very complex investigations. 395 00:23:50,480 --> 00:23:52,160 Speaker 1: You know, we do this for businesses all the time, 396 00:23:52,160 --> 00:23:54,800 Speaker 1: and it's it's tough. And what's even harder than running 397 00:23:54,840 --> 00:23:58,320 Speaker 1: the investigation and finding the facts is explaining the facts. 398 00:23:58,280 --> 00:24:01,440 Speaker 1: And I think the Committee has done a very compelling 399 00:24:01,560 --> 00:24:06,520 Speaker 1: jobs so far explaining in pretty simple terms the findings 400 00:24:06,520 --> 00:24:11,200 Speaker 1: from this really complex investigation. City. Remember, Jamie Raskin said 401 00:24:11,200 --> 00:24:14,920 Speaker 1: on CNN, I suppose our entire investigation is a referral 402 00:24:14,960 --> 00:24:18,119 Speaker 1: of crimes, both to the Department of Justice and to 403 00:24:18,240 --> 00:24:21,760 Speaker 1: the American people. What did you see in the presentations 404 00:24:21,840 --> 00:24:24,879 Speaker 1: that you would consider a sort of pitch to d 405 00:24:25,000 --> 00:24:29,320 Speaker 1: o J to prosecute Trump? So on that it is 406 00:24:29,640 --> 00:24:33,159 Speaker 1: clear that the Justice Department is listening and watching. We 407 00:24:33,240 --> 00:24:36,760 Speaker 1: know that because Attorney General Garland said that the January 408 00:24:36,760 --> 00:24:39,720 Speaker 1: six team is going to be watching very carefully the hearings, 409 00:24:39,720 --> 00:24:42,119 Speaker 1: and because instead he will be watching very carefully the hearings. 410 00:24:43,000 --> 00:24:46,960 Speaker 1: The number of statutes that could be in play are 411 00:24:47,240 --> 00:24:52,560 Speaker 1: pretty large. Uh. And again, the facts are so so complex. 412 00:24:53,119 --> 00:24:56,160 Speaker 1: I think it's hard to stay until they've closed their 413 00:24:56,240 --> 00:25:00,800 Speaker 1: case and until they've finished presenting information. Who could be 414 00:25:00,920 --> 00:25:04,120 Speaker 1: charged with what? And I think it's also very important 415 00:25:04,160 --> 00:25:07,560 Speaker 1: to remember that the standard of proof in a criminal 416 00:25:07,640 --> 00:25:09,960 Speaker 1: case is beyond a reasonable doubt. You know, when I 417 00:25:10,040 --> 00:25:15,280 Speaker 1: was at the Justice Department and working on complex investigations, 418 00:25:15,320 --> 00:25:18,360 Speaker 1: I can say that the level of certainty not just 419 00:25:18,560 --> 00:25:22,080 Speaker 1: of guilt, but also that guilt could be proven to 420 00:25:22,240 --> 00:25:25,160 Speaker 1: a jury beyond a reasonable doubt for a prosecutor before 421 00:25:25,160 --> 00:25:28,280 Speaker 1: they before they move forward needed to be a hundred 422 00:25:28,359 --> 00:25:30,400 Speaker 1: percent in the minds of the prosecutor, even though that's 423 00:25:30,400 --> 00:25:32,320 Speaker 1: not the legal standard, right, it needs to be that 424 00:25:32,560 --> 00:25:36,320 Speaker 1: high before they move forward. When you're dealing with very 425 00:25:36,320 --> 00:25:40,480 Speaker 1: old statutes here. So if you look at like seditious conspiracy, 426 00:25:40,480 --> 00:25:42,959 Speaker 1: there's only really a handful of examples. Some of them 427 00:25:43,040 --> 00:25:46,160 Speaker 1: rise into constitutional levels in the last fifty years. I'm 428 00:25:46,200 --> 00:25:48,879 Speaker 1: not aware of a single case where insurrection, where the 429 00:25:48,920 --> 00:25:51,399 Speaker 1: crime of insurrection was charged in the last hundred and 430 00:25:51,440 --> 00:25:55,160 Speaker 1: fifty years. Right, So you're dealing with really complex statutes 431 00:25:55,200 --> 00:25:59,919 Speaker 1: that have really close adjacencies to core constitutional freedoms. Right. 432 00:26:00,200 --> 00:26:02,320 Speaker 1: It's okay to publicly disagree with the court case. It's 433 00:26:02,359 --> 00:26:04,720 Speaker 1: okay to publicly take a political position on something that's 434 00:26:04,720 --> 00:26:08,719 Speaker 1: not supported by the fact. It's not okay to then say, 435 00:26:09,040 --> 00:26:10,840 Speaker 1: you know, we're going to store the court because we 436 00:26:10,880 --> 00:26:13,760 Speaker 1: disagree with this court order. Right. So there's a lot 437 00:26:13,840 --> 00:26:17,400 Speaker 1: of nuanced here, and I think that the Department thus 438 00:26:17,440 --> 00:26:21,960 Speaker 1: far has taken a very careful approach to charging and 439 00:26:22,040 --> 00:26:24,920 Speaker 1: charging decisions that's you know, consistent with with our old 440 00:26:24,960 --> 00:26:26,639 Speaker 1: frends from law school, the rule of lenity. Right. The 441 00:26:26,640 --> 00:26:28,719 Speaker 1: Canada construction that says you have to look at criminal 442 00:26:28,920 --> 00:26:31,480 Speaker 1: cases narrowly, and I think that's going to continue. And 443 00:26:31,480 --> 00:26:37,119 Speaker 1: I think that unless there is really really incredibly incredibly 444 00:26:37,160 --> 00:26:40,760 Speaker 1: strong evidence that's presented by the committee or that's adduced 445 00:26:40,920 --> 00:26:45,159 Speaker 1: through some other investigative method, I think it's unlikely the 446 00:26:45,160 --> 00:26:48,240 Speaker 1: Department would elect to move forward with charges that are 447 00:26:48,600 --> 00:26:53,359 Speaker 1: that novel against someone that's that senior. Might they consider 448 00:26:53,440 --> 00:26:58,760 Speaker 1: a charge like obstructing an official proceeding. You have this 449 00:26:58,920 --> 00:27:02,280 Speaker 1: issue of the complexity of the facts, the complexity of 450 00:27:02,320 --> 00:27:04,840 Speaker 1: the law, and the application of those complex facts too 451 00:27:04,920 --> 00:27:08,000 Speaker 1: in some cases kind of unsettled areas of the law. 452 00:27:08,760 --> 00:27:14,760 Speaker 1: The obstruction of of a congressional proceedings is something that 453 00:27:14,800 --> 00:27:18,159 Speaker 1: a lot of the insurrectionists and writers have been charged 454 00:27:18,200 --> 00:27:20,240 Speaker 1: with and something that a lot of them have pled 455 00:27:20,240 --> 00:27:23,919 Speaker 1: guilty on. There is this one outstanding district court case 456 00:27:24,640 --> 00:27:30,080 Speaker 1: suggesting that, uh that the bus Turnings Office has read 457 00:27:30,119 --> 00:27:34,560 Speaker 1: that law in an overly and unconstitutionally broadway. There are 458 00:27:34,600 --> 00:27:37,200 Speaker 1: six other district court judges who have who have found 459 00:27:37,200 --> 00:27:38,480 Speaker 1: the other way. So I think that's something that will 460 00:27:38,560 --> 00:27:41,439 Speaker 1: kind of go up on appeal. But again, you know 461 00:27:41,560 --> 00:27:45,600 Speaker 1: these these legal issues which in some cases are complex, 462 00:27:45,640 --> 00:27:47,719 Speaker 1: and in some cases I think are relatively simple. Right. 463 00:27:47,760 --> 00:27:50,720 Speaker 1: You don't really want to bring an edge case when 464 00:27:50,720 --> 00:27:55,439 Speaker 1: you're dealing with conduct that is so close to constitutionally 465 00:27:55,480 --> 00:27:58,960 Speaker 1: protected behavior for the first time. Right. I think that 466 00:27:59,000 --> 00:28:01,280 Speaker 1: there are probably other older statutes which might be a 467 00:28:01,320 --> 00:28:04,879 Speaker 1: little bit more on poin, but there isn't really the 468 00:28:05,000 --> 00:28:09,200 Speaker 1: level and kind and quality of precedence to guide charging 469 00:28:09,240 --> 00:28:13,680 Speaker 1: decisions that there is for more contemporary statutes. That makes 470 00:28:13,720 --> 00:28:17,560 Speaker 1: things hard. As far as the Georgia investigation, do you 471 00:28:17,600 --> 00:28:21,320 Speaker 1: think the path is clearer there? I think that because 472 00:28:21,359 --> 00:28:26,000 Speaker 1: the Georgia investigation involves Georgia's state law, we also ultimately 473 00:28:26,040 --> 00:28:29,320 Speaker 1: involved the Georgia jury, there may be more direct tasks 474 00:28:29,400 --> 00:28:34,199 Speaker 1: to prosecuting individuals who if they applied inappropriate pressure to 475 00:28:34,280 --> 00:28:38,680 Speaker 1: do something illegal, particularly for the secretary of State. Again, 476 00:28:38,720 --> 00:28:42,120 Speaker 1: those are laws that don't approach being constitutional in nature 477 00:28:42,240 --> 00:28:45,320 Speaker 1: in some of the ways that that that federal laws do, 478 00:28:46,080 --> 00:28:47,520 Speaker 1: So it might be a I don't want to say 479 00:28:47,920 --> 00:28:50,640 Speaker 1: no investigation in criminal cases ever straightforward, but that there 480 00:28:50,720 --> 00:28:53,840 Speaker 1: might be a more straightforward path there. Of course, no 481 00:28:53,880 --> 00:28:57,400 Speaker 1: one has ever prosecuted a former president. Do you think 482 00:28:57,400 --> 00:29:01,600 Speaker 1: that the Justice Department is looking for more then they 483 00:29:01,600 --> 00:29:04,840 Speaker 1: would normally look for in a case, more than just 484 00:29:05,800 --> 00:29:08,600 Speaker 1: you know, being convinced that someone is guilty and that 485 00:29:08,720 --> 00:29:11,280 Speaker 1: you can prove it, because they know what's at stake. 486 00:29:14,720 --> 00:29:19,120 Speaker 1: So when they are high profile or high consequence criminal defendants, 487 00:29:20,000 --> 00:29:21,440 Speaker 1: and this is certainly case when I when I was 488 00:29:21,440 --> 00:29:23,520 Speaker 1: at d o J. And I think it's always been 489 00:29:23,560 --> 00:29:27,720 Speaker 1: the case there, they always receive more attention. So be 490 00:29:27,840 --> 00:29:30,400 Speaker 1: it a high profile counter terrorism case or a high 491 00:29:30,440 --> 00:29:35,360 Speaker 1: profile securities broad case, it's always going to receive extra layers. 492 00:29:35,720 --> 00:29:38,560 Speaker 1: One of the reasons that it receives extra layers is 493 00:29:38,920 --> 00:29:41,160 Speaker 1: when you're doing something high consequence, you want to make 494 00:29:41,200 --> 00:29:44,400 Speaker 1: sure that that senior leadership knows uh and you know, 495 00:29:44,440 --> 00:29:47,400 Speaker 1: you might want to stress test the theory of the 496 00:29:47,400 --> 00:29:49,240 Speaker 1: case a little bit more than usual, so you know, 497 00:29:49,240 --> 00:29:51,760 Speaker 1: more memos, more meetings. Right. One of the reasons might 498 00:29:51,800 --> 00:29:55,400 Speaker 1: be that you're making a novel application of the law, 499 00:29:55,680 --> 00:29:58,280 Speaker 1: or you're using a law of like thedicious conspiracy that's 500 00:29:58,320 --> 00:30:00,440 Speaker 1: just not used very often. And I no, you know, 501 00:30:00,480 --> 00:30:04,000 Speaker 1: the last time there was a seditious conspiracy charge, the 502 00:30:04,040 --> 00:30:08,040 Speaker 1: Department had the citious conspiracy charge dismissed by judge in Michigan. Right, 503 00:30:08,040 --> 00:30:11,280 Speaker 1: they didn't. They didn't even get to a point where, um, 504 00:30:11,280 --> 00:30:15,760 Speaker 1: where they could where they could fully try it. So yeah, 505 00:30:15,800 --> 00:30:18,000 Speaker 1: you know, you combine that with the complexity of the 506 00:30:18,000 --> 00:30:21,040 Speaker 1: fact finding, the fact that this is going to need 507 00:30:21,040 --> 00:30:23,440 Speaker 1: to be presented to a grand jury and explained to 508 00:30:23,440 --> 00:30:25,360 Speaker 1: a grand jury who's then going to need to indict, 509 00:30:25,440 --> 00:30:28,160 Speaker 1: and I think again the January six Committee is doing 510 00:30:28,160 --> 00:30:32,560 Speaker 1: an extraordinary job of explaining this really complex series of events, 511 00:30:32,640 --> 00:30:34,360 Speaker 1: right that has to happen to a grand jury and 512 00:30:34,400 --> 00:30:39,040 Speaker 1: then to uh to a district cord jury. Yes, I 513 00:30:39,040 --> 00:30:42,760 Speaker 1: I do think that that they're probably receiving additional attention. 514 00:30:43,160 --> 00:30:47,800 Speaker 1: That said, Judge Garland has said that the approach of 515 00:30:47,800 --> 00:30:49,840 Speaker 1: the Department is going to be to work its way 516 00:30:49,920 --> 00:30:53,320 Speaker 1: up and to bring more complex and more meaningful cases 517 00:30:54,200 --> 00:30:58,680 Speaker 1: as the more complex and more meaningful facts emerge, and 518 00:30:58,680 --> 00:31:01,440 Speaker 1: they they've done just that so far. I mean, I 519 00:31:01,440 --> 00:31:04,640 Speaker 1: think that there's just this balance of what a lot 520 00:31:04,680 --> 00:31:07,840 Speaker 1: of people want to see happen versus what should happen, 521 00:31:08,120 --> 00:31:12,720 Speaker 1: versus what can happen. And this is probably the highest, 522 00:31:12,960 --> 00:31:17,160 Speaker 1: one of the highest prop cases in history. But dealing 523 00:31:17,200 --> 00:31:19,680 Speaker 1: with the dynamics of that I think are not are 524 00:31:19,720 --> 00:31:22,920 Speaker 1: not unusual. And we saw this in uh, you know, 525 00:31:22,960 --> 00:31:26,600 Speaker 1: the bank collapses after two thousand eight with with Enron 526 00:31:26,600 --> 00:31:29,960 Speaker 1: and the corporate fraud in the the you know, in 527 00:31:29,960 --> 00:31:32,560 Speaker 1: in two thousand and one and two thousand two, in 528 00:31:32,640 --> 00:31:36,200 Speaker 1: some of the early terrorism cases. And I do think, 529 00:31:36,240 --> 00:31:38,560 Speaker 1: you know, this is a Justice Department that has said 530 00:31:38,640 --> 00:31:42,000 Speaker 1: it's going to move really deliberately and really carefully and 531 00:31:42,320 --> 00:31:45,840 Speaker 1: over time. I think that is probably the correct approach. 532 00:31:46,000 --> 00:31:50,560 Speaker 1: Thanks Jordan's that's Jordan Strauss Kroll Managing Director. And that's 533 00:31:50,600 --> 00:31:53,240 Speaker 1: it for this edition of The Bloomberg Law Show. Remember 534 00:31:53,240 --> 00:31:55,320 Speaker 1: you can always get the latest legal news on our 535 00:31:55,360 --> 00:31:59,480 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 536 00:31:59,680 --> 00:32:04,720 Speaker 1: and www dot Bloomberg dot com, slash podcast Slash Law, 537 00:32:05,160 --> 00:32:07,760 Speaker 1: and remember to tune into The Bloomberg Law Show every 538 00:32:07,800 --> 00:32:10,880 Speaker 1: week night at ten b m. Wall Street Time. I'm 539 00:32:10,960 --> 00:32:13,440 Speaker 1: June Grosso, and you're listening to Bloomberg