Speaker 1: Yea. This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: This week, the Supreme Court made it more difficult for
Speaker 1: immigrants to challenge their detention in court while their deportation
Speaker 1: cases are pending. In a pair of cases, the Court
Speaker 1: rule that immigrants can be detained indefinitely without bond hearings
Speaker 1: and that they can't challenge their detentions by banding together
Speaker 1: as a class. During oral arguments. Some of the jostices,
Speaker 1: like Stephen Bryer, expressed concerns about indefinite attention. Everybody gets
Speaker 1: bail hearings that you're going to detain for a significant
Speaker 1: amount of time every criminal case, debtors used to in
Speaker 1: debtor prisons, Mental people being confined in hospitals have the
Speaker 1: equivalent where you're going to day a person, not even
Speaker 1: a criminal, you know, for months and months and months.
Speaker 1: Why aren't they at least entitled to a bail hearing.
Speaker 1: But severalice has suggested the proper procedure would be for
Speaker 1: the immigrants to file a habeas corpus petition, where a
Speaker 1: judge would decide the issue. Here are Justice is Neil
Speaker 1: Gorsch and Amy Coney Barrett, I did not understand Mr
Speaker 1: Reyner to contest that a habeas petition seeking relief on
Speaker 1: a constitutional ground could be entertained by this court on
Speaker 1: the basis that um detention has lasted too long without
Speaker 1: sufficient explanation. You know, if you're bringing a habeas action,
Speaker 1: you do have a judge, so you have a truly neutral,
Speaker 1: uh decision maker as justice of course, just suggesting not
Speaker 1: someone who's a member of the executive branch joining me
Speaker 1: to sort through these decisions. Is Leon Fresco, a partner
Speaker 1: at Hollandon Knight and formerly head of the Justice Department's
Speaker 1: Office of Immigration Litigation. Leon, were these decisions a one
Speaker 1: to punch for immigrants and immigration advocates? Absolutely due, there
Speaker 1: was that only a very difficult day from the standpoint
Speaker 1: that the immigration law. I would say, if you were
Speaker 1: looking at it during the period of somewhere between two
Speaker 1: thousand and nine and two thousand and fifteen two thousand
Speaker 1: and sixteen, both of these cases would have been decided
Speaker 1: completely the other way. And now the Supreme Court has
Speaker 1: changed and the ethos has changed, and now you not
Speaker 1: only have these five four decisions, but you actually have
Speaker 1: decisions with liberal justice assigning onto them that are sort
Speaker 1: of cracking down on immigration lawsuits. And from that standpoint,
Speaker 1: it's a whole new, completely different world than it was before.
Speaker 1: One case was unanimous and Justice Sotomayor wrote the majority opinion.
Speaker 1: The other case on class actions was split six to
Speaker 1: three down ideological lines and Justice Soto Mayor dissented. We
Speaker 1: don't often see Justice Soto Mayor writing a majority opinion
Speaker 1: in immigration cases. Well, it's certainly unusual in this court,
Speaker 1: and it's certainly in usual in a case where it's
Speaker 1: restricting rights of non citizens who want to file lawsuits.
Speaker 1: If you would have had some sort of wager in
Speaker 1: a casino to three years ago, that Justice sort of
Speaker 1: Mayor would have written a decision making it more difficult
Speaker 1: for non citizens to have a right to be released
Speaker 1: from detention. That would have been like seven to one
Speaker 1: odd And now you have such a decision. And so
Speaker 1: really this was a tough day for the advocates in
Speaker 1: the immigration world. So why because we hear her voice
Speaker 1: in the second case where she's an advocate for immigrants.
Speaker 1: Was it because of the text of the statute in
Speaker 1: the first case in this detention regime, nothing anywhere in
Speaker 1: the statute talks about bob hearings and burden of proof
Speaker 1: and anything else. So if the Court was being asked
Speaker 1: to make a decision, does this statute actually require bond hearings.
Speaker 1: Does this statute actually require the burden of proof to
Speaker 1: be on the government. It's not intellectually honest. You can't
Speaker 1: look at a statute book and read any of that
Speaker 1: because none of that's in there. So it seems like
Speaker 1: in that context, the liberal justices gave in and said, look,
Speaker 1: this might be a place where we might want to
Speaker 1: build some credibility and some bipartisanship and come together and
Speaker 1: say the statutory regime doesn't work there. I do think
Speaker 1: that's the intent, because otherwise I don't think you would
Speaker 1: have seen this decision because the path of where these
Speaker 1: decisions were going sen were in giving expensive rights to
Speaker 1: non citizens to have bomb hearings, and now here in
Speaker 1: this case, what the Supreme Court is saying is we
Speaker 1: are going to make people who are in detention for
Speaker 1: extended periods of time go through the process of either
Speaker 1: hiring a lawyer and filing a federal habeas corpus petition,
Speaker 1: or they'll have to figure out how to do it
Speaker 1: themselves pro sed to file these federal habeas petitions. But
Speaker 1: we're not gonna just skip that step and make it
Speaker 1: easier by sort of presuming that in six months you
Speaker 1: get a bond hearing, because the statute doesn't say it.
Speaker 1: And so if the statute doesn't say it, we can't
Speaker 1: as a court start adding things that aren't in the statute.
Speaker 1: That aren't in the statute. It sort of makes sense
Speaker 1: from a literal point of view, but from a practical
Speaker 1: point of view, what it's doing is is it's putting
Speaker 1: a lot more onus on the foreign national who's detained
Speaker 1: to either get a lawyer and have to file a
Speaker 1: federal habeas complaint, which is pretty hard and work intensive,
Speaker 1: and it's either expensive or you've got to find some
Speaker 1: pro bono organization that has resources, or you're gonna have
Speaker 1: to figure out how to argue your own federal court
Speaker 1: habeas petition in order to get yourselves out of indefinite detention.
Speaker 1: And so that's the impact of that decision. And we
Speaker 1: have to back up a little here explain the first decision,
Speaker 1: the facts and what's going on. Right, So what happens
Speaker 1: in this Artiaga Martine cases as follows, you have individuals
Speaker 1: who have actually been deported from the United States and
Speaker 1: then they come back in and they say, during the
Speaker 1: time that I was deported and now that I'm coming
Speaker 1: back in, something has happened whereby I'm now eligible for
Speaker 1: relief from deportation because I'm going to be persecuted in
Speaker 1: the country that I'm fleeing. Now, those people can't get asylum,
Speaker 1: which is a relief that gives you a path to citizenship,
Speaker 1: but they can get something called withholding of removal, which
Speaker 1: says you can stay here in limbo until your country
Speaker 1: has better conditions than what it has today. But what
Speaker 1: happens is if you re enter after you've been deported,
Speaker 1: you are to be detained in the statute for as
Speaker 1: long as it takes for this proceeding to take place.
Speaker 1: And so what was happening is for some people, they
Speaker 1: were being detained for so long that they started filing
Speaker 1: habeas complaints and for the real court saying that they
Speaker 1: should be entitled to a bond hearing, and that that
Speaker 1: bond hearing should determine whether they are actually someone who
Speaker 1: is going to be dangerous or is going to be
Speaker 1: a flight risk, and if not, they should be released.
Speaker 1: And so there was actually decisions from the Third Circuit
Speaker 1: and the Ninth Circuit saying, look, we don't want thousands
Speaker 1: of these habeas decisions coming to our federal courts, so
Speaker 1: we're just gonna make up presumption that after six months
Speaker 1: you get a bond hearing, meaning the government just has
Speaker 1: to give you the bond hearing after six months, and
Speaker 1: they have to decide whether you are a flight risk
Speaker 1: or are dangerous. And the government appealed these decisions, and
Speaker 1: what the Supreme Court said is, look, there's nothing in
Speaker 1: the statute that talks about any of this. This is
Speaker 1: literally all made up by courts. We get white. Courts
Speaker 1: are making this up because it's a convenient thing to
Speaker 1: just say, in six months, we don't presume that you'll
Speaker 1: have to file a federal habea is and it will
Speaker 1: be done on a one by one basis. Let's just
Speaker 1: make this class wide and simple and after six months
Speaker 1: you can just get automatically a bond hearing. Yes, it
Speaker 1: would be much simpler, easier to use framework. But the
Speaker 1: Court said, none of that is actually written anywhere, and
Speaker 1: so courts can't make it up. And so that's why
Speaker 1: the foreign nationals in this case lost. Let's talk about
Speaker 1: the second case, where it becomes more difficult to challenge
Speaker 1: immigration policies in court because you can't do it based
Speaker 1: on a class action. So tell us about the second case.
Speaker 1: What happened there. In the second case, it's basically similar
Speaker 1: facts where you have people coming in from Mexico who
Speaker 1: are detained again after re entering the United States, and
Speaker 1: they're making basically the same claim again that they're entitled
Speaker 1: to bomb hearings after six months of detention, and they're
Speaker 1: trying to do it as a class as opposed to
Speaker 1: one person trying to make precedent for themselves. They're doing
Speaker 1: it as a class so that they can basically get
Speaker 1: a nationwide decision that would say, nationwide, everybody going through
Speaker 1: this process gets a bond hearing if they're still detained
Speaker 1: after six months, if the government hasn't figured out whether
Speaker 1: they're going to give them this relief or not after
Speaker 1: six months, they can't just keep them detained forever. They
Speaker 1: have to give them a bond hearing after six months.
Speaker 1: And so, in addition to the merits of this claim,
Speaker 1: which we talked about two seconds ago, in the other case,
Speaker 1: the Johnson versus Artiaga Martinez case. This case, which is
Speaker 1: the Garland versus a Lamam Gonzalez case, was again one
Speaker 1: where in the lower courts they said that class action
Speaker 1: relief was available, and the Department of Justice appealed this,
Speaker 1: and this was the Trump administration appealed it, but the
Speaker 1: bid the administration kept the appeal going, meaning even they
Speaker 1: wanted to get rid of these class action lawsuits. And
Speaker 1: what really came to bear is a statute which actually says,
Speaker 1: it's called a USC Section twelve fifty two, that federal
Speaker 1: courts do not have jurisdiction to enjoin or restrain the
Speaker 1: operation of provisions of the I and A, and it
Speaker 1: gives a list of them. And so then the question is, well,
Speaker 1: does that mean then that they can't they can't enjoin that.
Speaker 1: And so this was literally a huge semantics debate, which
Speaker 1: is the people who wanted to have this ability to
Speaker 1: do class wide injunction said, yes, of course, you can't
Speaker 1: enjoin a statute if that's the actual correct reading of
Speaker 1: that statute, meaning of course you can enjoin an illegal
Speaker 1: reading of the statute. What this says is you just
Speaker 1: can't enjoin a legal reading of the statute. So I
Speaker 1: still get to enjoin any statute that's illegal, and what
Speaker 1: the majority opinion said and what the government said, and
Speaker 1: what the people who prevailed said said, no, no, no,
Speaker 1: no no. This means you can't even attempt to get
Speaker 1: an injunction of the statute. It doesn't matter whether the
Speaker 1: statute were debating whether it's legal or not. You're doing
Speaker 1: something extra there. What this is saying is we don't
Speaker 1: even have jurisdiction to try for an attempt to determine
Speaker 1: whether that statute is legal or not legal on a
Speaker 1: class wide basis. What has to happen is an individual
Speaker 1: person has to make that claim. And great, if they
Speaker 1: get all the way up to the Supreme Court and
Speaker 1: they get a decision saying something, well, then that will
Speaker 1: be the way that that applies nationally. But otherwise that
Speaker 1: decision will just apply to that one person, or it
Speaker 1: might apply to that circuit if it goes to the
Speaker 1: Circuit Court of Appeals. But you're not going to be
Speaker 1: able to get a nationwide injunction of certain statutes in
Speaker 1: the I and A by doing a district court nationwide
Speaker 1: class action trying to enjoin the detention and deportation provisions
Speaker 1: of the I and A. So in this case this
Speaker 1: was six to three down ideological line. Justice Son wrote
Speaker 1: the descent and said, I respectfully dissent from the courts
Speaker 1: blinkered analysis that elevates piecemeal dictionary definitions and policy concerns
Speaker 1: over plain meaning and context. I mean, she was basically,
Speaker 1: very powerfully trying to say that, at the end of
Speaker 1: the day, if you have an illegal version of a statute,
Speaker 1: there's no way that you can write a statute that
Speaker 1: prevents an injunction of an illegal version of the statute,
Speaker 1: and that the court was taking the way the statute
Speaker 1: was written to literally and saying that the Congress can
Speaker 1: can literally ban jurisdictionally any lawsuited immigration in any manner
Speaker 1: in which it is written. And what justice sort of
Speaker 1: mayor was trying to say, what the descent is, No,
Speaker 1: that's not true. There's no way you can ban lawsuits
Speaker 1: into trying to say that a statute is illegal. Now,
Speaker 1: what's a very resting flip side to this case, and
Speaker 1: now we're gonna see whether these are consistently held beliefs
Speaker 1: by the court or not. Is that a lot of
Speaker 1: the lawsuits are being filed by the state of Texas
Speaker 1: and by other states are trying to do the exact
Speaker 1: same thing that these lawsuits were trying to do. So
Speaker 1: either they're gonna now come up with some post hoc
Speaker 1: rationale why the State of Texas can keep going and
Speaker 1: filing their own lawsuits that are not individual immigrant lawsuits
Speaker 1: challenging certain statutes, or all of those are going to
Speaker 1: be dismissed too, which will mean that the Biden administration
Speaker 1: for now and then some other administration later we'll be
Speaker 1: able to have carte blanche interpretations of how they want
Speaker 1: to administer these statutes. So that's to me going to
Speaker 1: be the most interesting part to see is are we
Speaker 1: going to start seeing courts bending over backwards to try
Speaker 1: to distinguish this, or is this literally gonna shut down
Speaker 1: all of these lawsuits where people are trying to make
Speaker 1: programmatic changes to immigration in cases where there is not
Speaker 1: an individual immigrant whose rights are at stake, So then
Speaker 1: this might apply. We might see this in the remaining
Speaker 1: Mexico case, which the court has yet to issue the
Speaker 1: decision in. Absolutely, we could see this in a bunch
Speaker 1: of cases, and we're gonna have to wait and see
Speaker 1: how this court wants to apply that, and how lower
Speaker 1: courts want to apply that, because what this is saying
Speaker 1: is basically there's a subset of statutes and they involve
Speaker 1: the detention and removal of non citizens. And what this
Speaker 1: is saying is in those statutes involving the detention and
Speaker 1: removal of non citizens, you've got to do that within
Speaker 1: the individual case of a non citizen. And by the way,
Speaker 1: that doesn't mean you can't get national application. You can.
Speaker 1: But what has to happen is in order to get
Speaker 1: national application is it has to go to the Supreme
Speaker 1: Court or if not, you'll get circuit court application or
Speaker 1: district court application. But what you can't do get a
Speaker 1: nationwide class action that's done in one district because you
Speaker 1: had a class action certified. It has to be done
Speaker 1: in an individual case. And so what that means for
Speaker 1: the State of Texas and all these other places is
Speaker 1: they don't have individual immigrants going through cases at all,
Speaker 1: and so it will be very interesting if they will
Speaker 1: have any jurisdiction to be able to challenge these statutes
Speaker 1: or these processes that also deal with the tension and
Speaker 1: removal that they don't like the way the Biden administration
Speaker 1: is operating the tension and removal or will they be
Speaker 1: kicked out of court as well. That's going to be
Speaker 1: very fascinating to see. Well, this decision have a lot
Speaker 1: of repercussions for immigrants and immigration advocates to challenge immigration
Speaker 1: policies in court. That will slow down the process in
Speaker 1: cases where there's a new policy that's announced on enforcement
Speaker 1: and instead of being able to go to one court
Speaker 1: get a nationwide injunction, you will actually have to find
Speaker 1: immigrants suffering and then go to all of those different
Speaker 1: courts where immigrants are suffering and try to get rulings
Speaker 1: in those circuits so that it doesn't apply in those
Speaker 1: particular circuits until you go to the Supreme Court. So
Speaker 1: that's going to be the big change, And then the
Speaker 1: other big change will be what about it no immigrants
Speaker 1: are suffering at all? So, for instance, what if you're
Speaker 1: the state of Texas or the state of Louisiana and
Speaker 1: you're trying to file a lawsuit? Will you be able
Speaker 1: to actually do it since you're not actually representing anyone
Speaker 1: that's going through the process. And so that's what's going
Speaker 1: to be fascinating to see, And we'll find out soon
Speaker 1: in two to three weeks before the term ends, Leon,
Speaker 1: stay with me. Coming up, we'll discuss a case the
Speaker 1: Supreme Court throughout where some Republican led states were trying
Speaker 1: to take the administration to court over its recision of
Speaker 1: the Trump Public Charge Rule. You're listening to Bloomberg in
Speaker 1: the Biden administration engaged in some legal gamesmanship in rescinding
Speaker 1: a hot button Trump immigration policy, the so called public
Speaker 1: Charge Rule, and then drafting its own rule without following
Speaker 1: administrative law procedure, leaving a tangled legal aftermath. Arizona and
Speaker 1: other Republican led states took the administration to court over
Speaker 1: the rule change, and during oral arguments, Supreme Court justices
Speaker 1: across the ideological spectrum appeared annoyed with the Administration's legal maneuvers.
Speaker 1: Here are Justices Samuel Alito and Elena Kagan. I congratulate
Speaker 1: whoever it is in the Justice Department or the Executive
Speaker 1: branch who devised this strategy and was able to implement
Speaker 1: it with military precision to effect the removal of the
Speaker 1: issue from our docket and two side step notice and
Speaker 1: comment rulemaking. We shouldn't be green lighting that behavior for
Speaker 1: your administration or any other administration, all right, and and
Speaker 1: and and on that assumption, what should be the remedy
Speaker 1: because it just seems as though you're here and saying,
Speaker 1: you know, you can just tell us to go home,
Speaker 1: and and and nothing's going to happen to us, and
Speaker 1: everybody will just do it the next time. This week,
Speaker 1: the Supreme Court appeared to throw its hands up and
Speaker 1: dismiss the case. I've been talking to immigration law expert
Speaker 1: Leon Fresco of Holland and Knight. The decision was one
Speaker 1: sentence long and said the states petition seeking review was
Speaker 1: dismissed as improvidently granted, so basically saying we shouldn't have
Speaker 1: taken this case in the first place. But do we
Speaker 1: know why they dismissed the case. There's basically a pretty
Speaker 1: good indication in the two paid concurrent where Justice is
Speaker 1: Robert Thomas, Alito and Gores that actually explain in their
Speaker 1: ears why they think this case needed to be sent back.
Speaker 1: And that is because at the end of the day,
Speaker 1: there were too many issues that were wrapped up around
Speaker 1: this case. And one could see that during the oral
Speaker 1: argument where the justices were all over the place. So
Speaker 1: just give you some context, this was originally a case
Speaker 1: about whether the Trump public charge rule was legal or not.
Speaker 1: And there were a bunch of courts that that it
Speaker 1: was legal, and there was only one court that it
Speaker 1: wasn't legal, and the Supreme Court that actually let that
Speaker 1: public charge rule go into effects. But then what happened
Speaker 1: was the President Biden reversed the public charge rule and said,
Speaker 1: there's this one chord that says in Illinois that the
Speaker 1: public charge rule is the legal We agree with this
Speaker 1: one court in Illinois, so we're just going to not
Speaker 1: use the Donald Trump public charge rule. We're going to
Speaker 1: acquiesce in the decision of this Illinois court. And so
Speaker 1: now when the states tried to intervene in that case
Speaker 1: so that they could say no, no, no, that ruling
Speaker 1: is incorrect and we should be allowed to move forward,
Speaker 1: the court was sort of all over the place because
Speaker 1: they said, well, wait a second, now there's a new
Speaker 1: Joe Biden public charge rules. And so there's issues of muteness,
Speaker 1: there's issues of standing, and all of these other things.
Speaker 1: So there are so many and none of them were
Speaker 1: the one about whether states can intervene. That the courts
Speaker 1: to forget it. Let's just start from scribe here, since
Speaker 1: there's a new public charge chool and if the state
Speaker 1: wants to sue on this new public charge rule, they
Speaker 1: can go ahead and do that. So then this doesn't
Speaker 1: have anything to do with whether states can intervene in
Speaker 1: a case like this. Well, the original reason for granting
Speaker 1: surgery in this case was whether the states could intervene
Speaker 1: in challenging what President Biden had done, which was to
Speaker 1: acquiesce to that one district court decision in Illinois. But
Speaker 1: what the court said is so much has happened since
Speaker 1: that that now this case is all over the place.
Speaker 1: Now Biden actually changed the rule. So what difference would
Speaker 1: it make if we allow them to intervene, Because what
Speaker 1: are you left to do about if the rule has
Speaker 1: already changed. And so what they all agree to is, look,
Speaker 1: let's just dismissed this case and move on with our lives.
Speaker 1: So does this give the Biden administration or any other
Speaker 1: administration a roadmap for the future. So it's a rare
Speaker 1: situation because it could only happen in the exact situation
Speaker 1: like this, where what happens is somebody sues and you
Speaker 1: just accept the decision you want to accept. So yes,
Speaker 1: you could actually do that always. You can always accept
Speaker 1: a decision from a court that you like and then
Speaker 1: just do that instead of reversing a regulation by notice
Speaker 1: a comment. The only difference is that usually in those
Speaker 1: kinds of lawsuits, the States would have had an opportunity
Speaker 1: to intervene from the beginning, and if they don't intervene,
Speaker 1: then it's going to be their fault at bat the end. Here,
Speaker 1: the problem was because those lawsuits were being defended by
Speaker 1: the Trump administration, the States felt no need to intervene,
Speaker 1: and so it was only when Biden got elected and
Speaker 1: acquiesced that is much much later, that the States came
Speaker 1: in very late in the game and tried to intervene
Speaker 1: and resuscitate this case. And so that's why the courts
Speaker 1: are saying this is so unique and kind of like
Speaker 1: a unicorn set of fact. There's no need for us
Speaker 1: to really get involved in this. Thanks so much, Leon.
Speaker 1: That's Leon Fresco of Hollandon Knight. The January six Committee
Speaker 1: focused at the last hearing, they kind introducing evidence of
Speaker 1: pressure and former President Donald Trump put on his Vice
Speaker 1: president Mike Tense to delay or reject the certification of
Speaker 1: Joe Biden's election victory continuing to make its case against Trump.
Speaker 1: Joining me is Attorney Jordan Strauss, Kroll Managing Director and
Speaker 1: Kroll Institute fellow. Give me your general impression of the
Speaker 1: hearings to this point. I think my general impression is
Speaker 1: this was, in fact, the most complex investigation in history.
Speaker 1: And we've heard that from everyone involved in it. We've
Speaker 1: seen it from the committee's activities, you know, over a
Speaker 1: thousand interviews in eighteen months. I'm personally just bulled over
Speaker 1: by how much they were able to get done and
Speaker 1: what really is a relatively short amount of time. Um
Speaker 1: and by the way, and I think that's sentiment shared
Speaker 1: by the Attorney General and the Deputy Attorney General, who
Speaker 1: you know, between them were on Enron and the Federal
Speaker 1: bombing right to the most other most complex cases in history.
Speaker 1: I think it's really hard to conduct very very complex investigations.
Speaker 1: You know, we do this for businesses all the time,
Speaker 1: and it's it's tough. And what's even harder than running
Speaker 1: the investigation and finding the facts is explaining the facts.
Speaker 1: And I think the Committee has done a very compelling
Speaker 1: jobs so far explaining in pretty simple terms the findings
Speaker 1: from this really complex investigation. City. Remember, Jamie Raskin said
Speaker 1: on CNN, I suppose our entire investigation is a referral
Speaker 1: of crimes, both to the Department of Justice and to
Speaker 1: the American people. What did you see in the presentations
Speaker 1: that you would consider a sort of pitch to d
Speaker 1: o J to prosecute Trump? So on that it is
Speaker 1: clear that the Justice Department is listening and watching. We
Speaker 1: know that because Attorney General Garland said that the January
Speaker 1: six team is going to be watching very carefully the hearings,
Speaker 1: and because instead he will be watching very carefully the hearings.
Speaker 1: The number of statutes that could be in play are
Speaker 1: pretty large. Uh. And again, the facts are so so complex.
Speaker 1: I think it's hard to stay until they've closed their
Speaker 1: case and until they've finished presenting information. Who could be
Speaker 1: charged with what? And I think it's also very important
Speaker 1: to remember that the standard of proof in a criminal
Speaker 1: case is beyond a reasonable doubt. You know, when I
Speaker 1: was at the Justice Department and working on complex investigations,
Speaker 1: I can say that the level of certainty not just
Speaker 1: of guilt, but also that guilt could be proven to
Speaker 1: a jury beyond a reasonable doubt for a prosecutor before
Speaker 1: they before they move forward needed to be a hundred
Speaker 1: percent in the minds of the prosecutor, even though that's
Speaker 1: not the legal standard, right, it needs to be that
Speaker 1: high before they move forward. When you're dealing with very
Speaker 1: old statutes here. So if you look at like seditious conspiracy,
Speaker 1: there's only really a handful of examples. Some of them
Speaker 1: rise into constitutional levels in the last fifty years. I'm
Speaker 1: not aware of a single case where insurrection, where the
Speaker 1: crime of insurrection was charged in the last hundred and
Speaker 1: fifty years. Right, So you're dealing with really complex statutes
Speaker 1: that have really close adjacencies to core constitutional freedoms. Right.
Speaker 1: It's okay to publicly disagree with the court case. It's
Speaker 1: okay to publicly take a political position on something that's
Speaker 1: not supported by the fact. It's not okay to then say,
Speaker 1: you know, we're going to store the court because we
Speaker 1: disagree with this court order. Right. So there's a lot
Speaker 1: of nuanced here, and I think that the Department thus
Speaker 1: far has taken a very careful approach to charging and
Speaker 1: charging decisions that's you know, consistent with with our old
Speaker 1: frends from law school, the rule of lenity. Right. The
Speaker 1: Canada construction that says you have to look at criminal
Speaker 1: cases narrowly, and I think that's going to continue. And
Speaker 1: I think that unless there is really really incredibly incredibly
Speaker 1: strong evidence that's presented by the committee or that's adduced
Speaker 1: through some other investigative method, I think it's unlikely the
Speaker 1: Department would elect to move forward with charges that are
Speaker 1: that novel against someone that's that senior. Might they consider
Speaker 1: a charge like obstructing an official proceeding. You have this
Speaker 1: issue of the complexity of the facts, the complexity of
Speaker 1: the law, and the application of those complex facts too
Speaker 1: in some cases kind of unsettled areas of the law.
Speaker 1: The obstruction of of a congressional proceedings is something that
Speaker 1: a lot of the insurrectionists and writers have been charged
Speaker 1: with and something that a lot of them have pled
Speaker 1: guilty on. There is this one outstanding district court case
Speaker 1: suggesting that, uh that the bus Turnings Office has read
Speaker 1: that law in an overly and unconstitutionally broadway. There are
Speaker 1: six other district court judges who have who have found
Speaker 1: the other way. So I think that's something that will
Speaker 1: kind of go up on appeal. But again, you know
Speaker 1: these these legal issues which in some cases are complex,
Speaker 1: and in some cases I think are relatively simple. Right.
Speaker 1: You don't really want to bring an edge case when
Speaker 1: you're dealing with conduct that is so close to constitutionally
Speaker 1: protected behavior for the first time. Right. I think that
Speaker 1: there are probably other older statutes which might be a
Speaker 1: little bit more on poin, but there isn't really the
Speaker 1: level and kind and quality of precedence to guide charging
Speaker 1: decisions that there is for more contemporary statutes. That makes
Speaker 1: things hard. As far as the Georgia investigation, do you
Speaker 1: think the path is clearer there? I think that because
Speaker 1: the Georgia investigation involves Georgia's state law, we also ultimately
Speaker 1: involved the Georgia jury, there may be more direct tasks
Speaker 1: to prosecuting individuals who if they applied inappropriate pressure to
Speaker 1: do something illegal, particularly for the secretary of State. Again,
Speaker 1: those are laws that don't approach being constitutional in nature
Speaker 1: in some of the ways that that that federal laws do,
Speaker 1: So it might be a I don't want to say
Speaker 1: no investigation in criminal cases ever straightforward, but that there
Speaker 1: might be a more straightforward path there. Of course, no
Speaker 1: one has ever prosecuted a former president. Do you think
Speaker 1: that the Justice Department is looking for more then they
Speaker 1: would normally look for in a case, more than just
Speaker 1: you know, being convinced that someone is guilty and that
Speaker 1: you can prove it, because they know what's at stake.
Speaker 1: So when they are high profile or high consequence criminal defendants,
Speaker 1: and this is certainly case when I when I was
Speaker 1: at d o J. And I think it's always been
Speaker 1: the case there, they always receive more attention. So be
Speaker 1: it a high profile counter terrorism case or a high
Speaker 1: profile securities broad case, it's always going to receive extra layers.
Speaker 1: One of the reasons that it receives extra layers is
Speaker 1: when you're doing something high consequence, you want to make
Speaker 1: sure that that senior leadership knows uh and you know,
Speaker 1: you might want to stress test the theory of the
Speaker 1: case a little bit more than usual, so you know,
Speaker 1: more memos, more meetings. Right. One of the reasons might
Speaker 1: be that you're making a novel application of the law,
Speaker 1: or you're using a law of like thedicious conspiracy that's
Speaker 1: just not used very often. And I no, you know,
Speaker 1: the last time there was a seditious conspiracy charge, the
Speaker 1: Department had the citious conspiracy charge dismissed by judge in Michigan. Right,
Speaker 1: they didn't. They didn't even get to a point where, um,
Speaker 1: where they could where they could fully try it. So yeah,
Speaker 1: you know, you combine that with the complexity of the
Speaker 1: fact finding, the fact that this is going to need
Speaker 1: to be presented to a grand jury and explained to
Speaker 1: a grand jury who's then going to need to indict,
Speaker 1: and I think again the January six Committee is doing
Speaker 1: an extraordinary job of explaining this really complex series of events,
Speaker 1: right that has to happen to a grand jury and
Speaker 1: then to uh to a district cord jury. Yes, I
Speaker 1: I do think that that they're probably receiving additional attention.
Speaker 1: That said, Judge Garland has said that the approach of
Speaker 1: the Department is going to be to work its way
Speaker 1: up and to bring more complex and more meaningful cases
Speaker 1: as the more complex and more meaningful facts emerge, and
Speaker 1: they they've done just that so far. I mean, I
Speaker 1: think that there's just this balance of what a lot
Speaker 1: of people want to see happen versus what should happen,
Speaker 1: versus what can happen. And this is probably the highest,
Speaker 1: one of the highest prop cases in history. But dealing
Speaker 1: with the dynamics of that I think are not are
Speaker 1: not unusual. And we saw this in uh, you know,
Speaker 1: the bank collapses after two thousand eight with with Enron
Speaker 1: and the corporate fraud in the the you know, in
Speaker 1: in two thousand and one and two thousand two, in
Speaker 1: some of the early terrorism cases. And I do think,
Speaker 1: you know, this is a Justice Department that has said
Speaker 1: it's going to move really deliberately and really carefully and
Speaker 1: over time. I think that is probably the correct approach.
Speaker 1: Thanks Jordan's that's Jordan Strauss Kroll Managing Director. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. Remember
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Speaker 1: June Grosso, and you're listening to Bloomberg