Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
Speaker 2: Our evidence further shows that the National Park Service employees
Speaker 2: observed Herne actually forcefully and violently pulling up and removing
Speaker 2: the bottom liner with both hands.
Speaker 3: Just a month ago, DCUs attorney Janine Piro was adamant
Speaker 3: that the government had evidence to prove that former Olympic
Speaker 3: rower David Hearn damaged the reflecting pool by violently ripping
Speaker 3: up sealant from the bottom of the pool.
Speaker 1: Does that indicating your belief that it was probably damaged
Speaker 1: before or do you believe that.
Speaker 2: He Oh, he damaged.
Speaker 1: It further, But do you believe there had already been damaged.
Speaker 2: Before he damaged the pool?
Speaker 3: A stunning reversal on Friday, when Piero dropped the felony
Speaker 3: vandalism charges against Herne, saying that the damage was actually
Speaker 3: the result of a botched installation by the contractor. President
Speaker 3: Trump continues to insist that vandals damaged the pool.
Speaker 4: I was disappointed with Janie Pirou, really disappointed with Janie Pierrou.
Speaker 1: She folded like an umbrella.
Speaker 3: Bob Pierro blamed the Interior Department for providing less than
Speaker 3: fulsome information and said she wouldn't have sought a grand
Speaker 3: jury indictment if the agency had been more forthcoming, but
Speaker 3: also wrote the filing that a visual inspection showed damage
Speaker 3: throughout the reflecting pool, even in the middle, where a
Speaker 3: vandal wouldn't likely attempt to peel the lining. I mean,
Speaker 3: shouldn't the US Attorney's Office have done a minimal at
Speaker 3: least investigation before they file felony charges against someone.
Speaker 4: That's exactly the question here and why this is such
Speaker 4: an embarrassing setback for the Department of Justice because typically
Speaker 4: the Department of Justice does not roll off on another
Speaker 4: agency to do its own investigation. And in this particular case,
Speaker 4: there was no real rush to judgment. In other words,
Speaker 4: we didn't have a circumstance where there was a potential
Speaker 4: danger to the community or where the potential defendant was
Speaker 4: a flight risk. There was no reason the Department of
Speaker 4: Justice had to move to indict him so quickly, and
Speaker 4: for them to now turn around and say that the
Speaker 4: information that they had been given by the Interior Department
Speaker 4: was incorrect. And as you said, the visual inspection revealed
Speaker 4: damage throughout the reflecting pool such that a vandal would
Speaker 4: not likely have attempted to peel the lining back really
Speaker 4: undermines the Department of Justice position because it shows that
Speaker 4: they never did a thorough investigation before going into the
Speaker 4: grand jury and seeking an indictment in this case.
Speaker 3: Also, in her press conference announcing this, she said there
Speaker 3: was an effort, of violent effort to rip up the
Speaker 3: seal from the bottom of the pool, and she also
Speaker 3: said that yes, there was more than one thousand dollars
Speaker 3: in damage. And now it appears that that was a
Speaker 3: misrepresentation of what happened.
Speaker 4: Well, it certainly seems that way, and I think to
Speaker 4: put this into context, it's fair to point out that
Speaker 4: the idea of the Department of Justice simply outright dismissing
Speaker 4: charges after an indictment is brought is exceedingly rare. It
Speaker 4: almost never happens, and the reason it doesn't happen is
Speaker 4: because federal prosecutors typically take their time to investigate cases
Speaker 4: to make sure that they have enough evidence to gain
Speaker 4: a conviction if their case goes to trial. In fact,
Speaker 4: the guidelines for the US Attorney's Office require that prosecutors
Speaker 4: cannot go into a grand jury and present a case
Speaker 4: for indictment unless they believe that they have evidence that
Speaker 4: would be admissible at trial that is likely to result
Speaker 4: in a conviction. So here it seems like there was
Speaker 4: a real rush to judgment where they went out and
Speaker 4: they indicted based on limited information that was coming from
Speaker 4: the Interior Department, and it turned out, according to the
Speaker 4: Department of Justice, to not be true.
Speaker 3: It seemed like an overcharge to me to charge, even
Speaker 3: if there was some vandalism, to charge him with a felony,
Speaker 3: you know, with the max being ten years. It reminded
Speaker 3: me of the you know, the case of the guy
Speaker 3: now known as the sandwich guy, who tossed a sandwich
Speaker 3: at an ice agent and Piro tried to charge him
Speaker 3: with a felony, but the grand jury wouldn't return a
Speaker 3: felony indictment.
Speaker 4: No, I think that's a fair point, because let's keep
Speaker 4: in mind that this case turned on a single count
Speaker 4: of property destruction, which carries a maximum sentence of ten
Speaker 4: years or up to ten years in prison if there
Speaker 4: is a conviction, and the lee to removing this case
Speaker 4: from a misdemeanor, which would only allow a prison sentence
Speaker 4: of up to a year, to a felony, which in
Speaker 4: this case allows a prison sentence of up to ten
Speaker 4: years is the government's ability to prove that the defendant
Speaker 4: caused at least one thousand dollars in damage to the pool.
Speaker 4: What ended up happening here is that the defense council
Speaker 4: focused on that damages issue, because what they were trying
Speaker 4: to do is at a minimum, move this case from
Speaker 4: a felony back to a misdemeanor by trying to show
Speaker 4: that the government could not meet that one thousand dollars threshold,
Speaker 4: And they focused on testimony that apparently occurred in the
Speaker 4: grand jury in order to obtain this indictment, where the
Speaker 4: government apparently presented only one witness on that element, on
Speaker 4: that critical element of showing that the damage caused allegedly
Speaker 4: by this defendant was at least one thousand dollars. According
Speaker 4: to the defense, that witness testified that the property had
Speaker 4: already deteriorate, that the pool had already begun to fall
Speaker 4: apart in terms of the lining coming up from the bottom,
Speaker 4: and that the repairs that would have been needed would
Speaker 4: have been needed even without mister Hearn's alleged conduct, and
Speaker 4: that the witness testified also that he could not quantify
Speaker 4: any loss. This is according to the defense, caused by
Speaker 4: the alleged conduct of the defendant. So they were really
Speaker 4: already attacking not only the question of whether their client
Speaker 4: committed any crime at all, but they were focusing on
Speaker 4: whether the government could meet this thousand dollars threshold that
Speaker 4: they used to turn this case from a misdemeanor into
Speaker 4: a felony.
Speaker 3: I'm wondering about the timing here, because they dropped the
Speaker 3: charges shortly after the defense was trying to get the
Speaker 3: grand jury transcripts because of what they said were irregularities
Speaker 3: in the process. And we have seen in several instances
Speaker 3: irregularities in the presentation of by federal prosecutors to grand juries,
Speaker 3: and I'm wondering if that might have been an impetus
Speaker 3: for dropping the case as well, that those would have
Speaker 3: been revealed. Now, that's exactly right.
Speaker 4: That was what the defense had focused on, and according
Speaker 4: to the defense, the sole witness that the government relied
Speaker 4: on to prove damages did not even say or suggest
Speaker 4: that the alleged conduct by mister Hearn had compromised the
Speaker 4: liner at all, and in fact, in the charging document
Speaker 4: he was simply charged with touching some of the liner
Speaker 4: that had floated to the surface. According to the prosecution,
Speaker 4: even in the indictment, he was accused of pulling up
Speaker 4: a two foot square piece of the pools lining. Now,
Speaker 4: the defendant's version of what happened, and this is a
Speaker 4: statement he gave just before his arrest, is that he
Speaker 4: was biking and he pulled over to the pool there
Speaker 4: and put his and in the reflecting pool. And he
Speaker 4: said that he reached in to examine the pool's newly
Speaker 4: peeled coding and briefly touched a chunk attached to the
Speaker 4: side of the pool. But he said that he obeyed
Speaker 4: a part worker who was standing right there with him
Speaker 4: and told him to let it go. So he basically
Speaker 4: said he did absolutely nothing to in any way vandalize
Speaker 4: the reflecting pool. And it seems that the government's witness
Speaker 4: largely corroborated the defendant's statement, and that is perhaps the
Speaker 4: reason why we're seeing this sudden dismissal of this indictment,
Speaker 4: because again, it's so exceedingly rare that prosecutors will fully
Speaker 4: dismiss a case rather than try to plead it down
Speaker 4: to a misdemeanor or work out some kind of a
Speaker 4: plea deal. Here it seems that the grand jury testimony
Speaker 4: that the defense was pressing for and that a judge
Speaker 4: would likely require prosecutors to turn over may have completely
Speaker 4: undermined the prosecution's case. And before that happened, it seems
Speaker 4: that Janine Piro, the US Attorney for the District of Columbia,
Speaker 4: felt that she had no choice but to dismiss the case.
Speaker 3: President Trump is exceedingly angry about this. He said that
Speaker 3: he disagreed one hundred percent with what she did. To me,
Speaker 3: it was a pure case of vandalism. If he installs
Speaker 3: a new US attorney for DC, is it possible that
Speaker 3: a new US attorney could bring these charges again?
Speaker 1: Well, I think it's.
Speaker 4: Possible that a US attorney could bring the charges, but
Speaker 4: I think the defense would have an ample basis to
Speaker 4: try to move to dismiss them. And at the end
Speaker 4: of the day, it doesn't seem like the facts here
Speaker 4: are going to change. What was really extraordinary here was
Speaker 4: that not only did Miss Pierro dismiss these charges, but
Speaker 4: she did so or the government did so in a
Speaker 4: twenty page court filing, with the judge in the case
Speaker 4: saying that they had been provided with additional documents by
Speaker 4: the Interior Department since the indictment showing that the damage
Speaker 4: was a result of a botched installation by a contractor,
Speaker 4: as well as the quote rushed to complete the project
Speaker 4: prior to events associated with the America two fifty celebration
Speaker 4: in the week surrounding Independence Day twenty twenty six. So
Speaker 4: what's really unusual here is that this dismissal didn't solely
Speaker 4: focus on the conduct of this defendant. In other words,
Speaker 4: it wasn't simply saying, this is why we have to
Speaker 4: dismiss this case against this defendant. Instead, it was a
Speaker 4: broad rebuke of the entire concept that any of the
Speaker 4: damage caused by the reflecting poll was done by vandals.
Speaker 4: It really completely undermined the narrative that came not only
Speaker 4: from President Trump, but also from the Interior Secretary, who
Speaker 4: took a completely different position and immediately issued a statement
Speaker 4: saying that the Interior Department provided the US Attorney's Office
Speaker 4: with expert and eyewitness testimonies to the damage done by vandals,
Speaker 4: and provided every piece of evidence they asked for and
Speaker 4: in the requested timeline detailing each area of damage to
Speaker 4: the pool. So what we're seeing here is really an
Speaker 4: unheard of scenario where you have one branch of government
Speaker 4: blaming and criticizing the other, a dispute between the Department
Speaker 4: of Justice and the President, the dispute between the Department
Speaker 4: of Justice and the Interior Department, and all of this
Speaker 4: is playing out in full public view. It's really something
Speaker 4: that is extraordinary and is unheard of where you see
Speaker 4: this type of internal debate within the government being played
Speaker 4: out on the national stage in full public view on
Speaker 4: such a high profile issue. And given the high profile
Speaker 4: nature of this prosecution, because of all of the publicity
Speaker 4: surrounding the reflecting pool and Independence Day and the very
Speaker 4: high profile make sure that the President made these repairs
Speaker 4: and having it ready in time for Independence Day. It
Speaker 4: really is extraordinary that the US Attorney has blamed the
Speaker 4: Interior Department and really come very close to saying that
Speaker 4: they were misled. Janeine Piro actually said that they would
Speaker 4: never have brought this case had they known of the
Speaker 4: evidence that was being withheld withheld from the Department of
Speaker 4: Justice by the Interior Department. That is an extraordinary charge
Speaker 4: from one agency to another.
Speaker 3: This is one embarrassment for the DC US Attorney. They
Speaker 3: also had the Sandwich guy case that I mentioned where
Speaker 3: a jury didn't even convict him of a misdemeanor. You
Speaker 3: have the case where they tried to get lawmakers indicted
Speaker 3: over the video that they made telling soldiers that they
Speaker 3: don't have to obey orders that are illegal, and then
Speaker 3: you had the failed subpoenas for former Fed Chair Jerome Powell.
Speaker 3: So I mean, it's been one thing after another with
Speaker 3: this office.
Speaker 4: Well, it certainly does lend credibility to those people who
Speaker 4: have criticized the office of responding to outside pressures, those
Speaker 4: often coming from the White House to bring criminal cases,
Speaker 4: and there appears to be in many of these cases
Speaker 4: a rush to judgment where prosecutors have to either dismiss
Speaker 4: charges when they find out that the evidence that they
Speaker 4: thought they had doesn't actually exist, or in some cases,
Speaker 4: grand jury is simply refusing to even return indictments in
Speaker 4: cases where prosecutors believe they have enough evidence to proceed
Speaker 4: with the criminal case.
Speaker 3: And as far as this case, we may hear more
Speaker 3: in the future from the defense because turns attorneys say
Speaker 3: they're looking at all possible remedies. Thanks so much, Bob.
Speaker 3: As always, that's Robert Mints of Macarter and English how
Speaker 3: hew help us.
Speaker 1: Hey, you guys, come ices here, help us, help us.
Speaker 3: If you go to an airport in the US these days,
Speaker 3: you may see a different kind of scene from the
Speaker 3: usual endless lines. ICE agents roaming around and arresting immigrants
Speaker 3: who have expired visas and sometimes facing opposition from concerned bystanders.
Speaker 1: What's going on? Law enforcement? That's going on? The rights that?
Speaker 1: What's going on? Okay, we're annoying? Are you okay? Back?
Speaker 1: Come on, come on, come on, come on.
Speaker 3: Whether it's l A, X, JFK, or any of about
Speaker 3: thirteen other major airports, ICE is opening up a new
Speaker 3: front in its drive to make two thousand arrests a day,
Speaker 3: and arrests at airports are made easier these days by
Speaker 3: a new cooperation arrangement between ICE and TSA join me
Speaker 3: is an expert in immigration law. Leon Fresco a partner
Speaker 3: at Hollanden Night.
Speaker 1: Leon.
Speaker 3: Are these airport arrests something new?
Speaker 1: Well, it's not completely new, meaning it's not that it's
Speaker 1: never happened before. But what is happening is that ICE,
Speaker 1: under the threat of needing to arrest two thousand people
Speaker 1: a day, is increasingly arresting people at US airports, and
Speaker 1: that's happening because when you're at an airport, you obviously
Speaker 1: don't have weapons, you're in a controlled environment. It's easier
Speaker 1: for ICE to be able to arrest you. So what
Speaker 1: happens is TSA is doing information sharing with ICE, and
Speaker 1: that's what's new. And now that TSA is doing information
Speaker 1: sharing with ICE, they have the manifest of the people
Speaker 1: who are going to be crossing the TSA that morning.
Speaker 1: Just like now, if you cross, you barely sometimes don't
Speaker 1: even need to show your ticket anymore. You just show
Speaker 1: your face and you go right through. They know everybody
Speaker 1: who's coming, why they're coming, what they're coming for. And
Speaker 1: so when one of these individuals that ICE is uncertain
Speaker 1: as to their status, rings the bell essentially and then
Speaker 1: shows up, then now TSA is referring to those individuals
Speaker 1: to ICE and is asking them, hey, prove that you're
Speaker 1: here legally. And a lot of people are in these
Speaker 1: quasi statuses. So that's the problem. Some people who are
Speaker 1: undocumented completely. Yes, those people are being arrested, they're being detained,
Speaker 1: they're being placed in removal proceedings. But the more complicated
Speaker 1: issue is there's a lot of people whose cases have
Speaker 1: been pending for many, many months because the administration has
Speaker 1: decided to dramatically slow down the legal immigration system, including
Speaker 1: pausing it for people from many countries. Although there's currently
Speaker 1: an injunction preventing that, but there's still many people who
Speaker 1: are stuck behind that pause as the backlog developed for many,
Speaker 1: many months from that pause, and so a lot of
Speaker 1: people who should normally be able to fly domestic in
Speaker 1: the United States are now terrified to fly because they're
Speaker 1: worried they won't be able to explain their complicated pending
Speaker 1: immigration status to an ICE agent who's incentivides to arrest them.
Speaker 3: From what I've been seeing, a lot of the people
Speaker 3: where their arrests have been documented on you know video
Speaker 3: by bystanders, a lot of them have expired visas, I
Speaker 3: mean expired for years.
Speaker 1: Well, what happens is this, So let's say you are
Speaker 1: an Indian national. This is a perfect example of this.
Speaker 1: So the Indian national comes to the United States on
Speaker 1: a student visa that might have been valid on April first,
Speaker 1: twenty twenty as an example, that may have been when
Speaker 1: they got their stamp to originally come into the United States.
Speaker 1: A lot of Indian nationals many of them who are
Speaker 1: my clients, never leave the country again after they first
Speaker 1: arrived as a student. They stay for all the years
Speaker 1: they're a student. They change their status from inside the
Speaker 1: United States to what's the H one B visa status,
Speaker 1: and then the problem is there's a backlog because only
Speaker 1: seven percent of all green cards each year are allowed
Speaker 1: to go to one country. So for Indian nationals, the
Speaker 1: green card backlog is like eighty years, one hundred years.
Speaker 1: So they don't leave, they just stay and so that
Speaker 1: initial visa stamp is expired, but their status is lawful.
Speaker 1: They just need to show this document called an I
Speaker 1: seven ninety seven that has the approval of their most
Speaker 1: recent extension of their H one B status from inside
Speaker 1: the United States. The problem is most people don't carry
Speaker 1: those documents around on a domestic flight, but now they
Speaker 1: better because the point is if you show a visa
Speaker 1: that is because the visa expiration on your passport only
Speaker 1: says the last date you're allowed to enter the United States.
Speaker 1: It says nothing about whether you're currently in legal status.
Speaker 1: So many people will have extended their status through a
Speaker 1: number of ways. But now people are going to need
Speaker 1: to be very careful to sort of have an exa
Speaker 1: Jesus written by an immigration lawyer with supporting documents that
Speaker 1: they can just hand to an ICE agent and say,
Speaker 1: here you go, here's all the proof you need. Please
Speaker 1: let me board my flight to Cleveland. Now. So that's
Speaker 1: now we're in a completely new world now.
Speaker 3: So let's say someone with an expired visa is traveling
Speaker 3: and ICE picks them up. Some of these people have
Speaker 3: applied for asylum. What happens next? Are they taken into custody.
Speaker 1: So what needs to happen is first they need to
Speaker 1: try to figure out if the person is here lawfully
Speaker 1: or not. But the question is even there, what are
Speaker 1: they doing. Are they doing this from like, you know,
Speaker 1: we'll detain you first and ask questions later, or are
Speaker 1: they asking the questions first at the airport and letting
Speaker 1: people out. So I've been very interested in this because
Speaker 1: I have a lot of clients in this field, and
Speaker 1: most of the clients I have who've been detained have
Speaker 1: been let out at the airport. But I you cannot
Speaker 1: prove that you have a lawful status. They are detaining you,
Speaker 1: and they're putting you in detention until your removal proceedings
Speaker 1: are over. So you won't get out. So here you
Speaker 1: are thinking you are doing a flight from Houston to Cleveland,
Speaker 1: and now you're in detention until that you get deported
Speaker 1: or until you win your case. And so there are
Speaker 1: some people who are entitled to bond hearings, and so
Speaker 1: those people can ask to be let out on bond
Speaker 1: while their immigration detention case is going on. But the
Speaker 1: families of those people are going to need to find
Speaker 1: wherever they've been detained and find what immigration court their
Speaker 1: case is pending, and hire a lawyer and file a
Speaker 1: bond hearing and argue that bond case. So all of
Speaker 1: that is again a completely new world from the world
Speaker 1: that previously.
Speaker 3: Existed, and d just just cares that it's counting as
Speaker 3: an arrest that day.
Speaker 1: Right exactly. So now you have a much larger number
Speaker 1: of people you can arrest. Of course, this is something
Speaker 1: of rapidly diminish returns because if people now know they're
Speaker 1: gonna get arrested at the airport, you might have gotten
Speaker 1: a good spike initially, but what you've essentially accomplished is
Speaker 1: a ban on domestic flying for undocumented individuals because now
Speaker 1: they know, okay, don't take the airport. So maybe we'll
Speaker 1: move to the boss next, or or the train or something.
Speaker 1: I don't know what will happen next. But the point is,
Speaker 1: if this keeps going on, that's really just what's gonna
Speaker 1: happen is you're just not gonna see First of all,
Speaker 1: for sure undocumented people flying, but even documented people who
Speaker 1: are not lawful permanent residents or who are not citizens
Speaker 1: may decide, you know what, I don't need to take
Speaker 1: this flight. I don't need this aggravation. And so that
Speaker 1: might not be so great for the economy if people
Speaker 1: aren't flying who have every lawful reason to be in
Speaker 1: the United States.
Speaker 3: TSA, and they're all in the Department of Homeland Security.
Speaker 1: All part of the Department of Homeland Security. But what's
Speaker 1: new is TSA didn't share previously the passenger manifests of
Speaker 1: who was coming in every day to the airport with eyes.
Speaker 1: So now they're sharing that, and so now ICE knows
Speaker 1: who's coming into the airport that day, and ICE can
Speaker 1: then cross reference it with its databases and say, okay,
Speaker 1: I want you to select number sixty two, number seventy eight,
Speaker 1: number four hundred and twelve, number three hundred and seventy one.
Speaker 1: And when those people go through the system, because now everyone,
Speaker 1: you don't just walk through now you actually scan an
Speaker 1: ID and take a picture and everything. So when those
Speaker 1: people do those things, the alarm bell immediately goes off,
Speaker 1: bing bing bing. They get referred to ICE, and now
Speaker 1: ICE starts talking to those individuals about what their status is.
Speaker 3: So that came from the top, right, that came.
Speaker 1: From the top. That is a THHS leadership director.
Speaker 3: They said that they've arrested a million people. Is that
Speaker 3: a million since the beginning of the Trump administration?
Speaker 1: I think that is a million since the beginning of
Speaker 1: the Trump administration because at the end of the day,
Speaker 1: they wouldn't have had the ability to arrest two million
Speaker 1: people over the course of just one year. So I'm
Speaker 1: pretty sure it's a million since the beginning of the
Speaker 1: Trump administration.
Speaker 3: And what did they promise three million?
Speaker 1: Well, what they promised was three thousand arrests per day,
Speaker 1: and they're nowhere near three thousand arrests per day, and
Speaker 1: so yeah, that would have been over a million per year.
Speaker 1: So if you do obviously three hundred and sixty five
Speaker 1: times three thousand arrests, that's where you get to the
Speaker 1: million per year. You're not getting that right now, So let's.
Speaker 3: Turn to TPS Temporary protected status. Three hundred and fifty
Speaker 3: thousand Haitians and Syrians had the way for their deportation
Speaker 3: cleared by the Supreme Court last month. What's happening with that?
Speaker 3: Are they all being picked up?
Speaker 1: Well, what I'm seeing anecdotally in the field is people
Speaker 1: with TPS who've lost their TPS are now getting letters
Speaker 1: in the mail. So they're not getting arrested, but they're
Speaker 1: getting letters in the mail saying a deportation case has
Speaker 1: begun against you, and so in that they're going to
Speaker 1: have to show up to a hearing, and if they
Speaker 1: don't show up to that hearing, then automatically they're going
Speaker 1: to be deported. If they show up to that hearing,
Speaker 1: they're going to have to explain, well, what other defense
Speaker 1: do you have? Are you applying for asylum or some
Speaker 1: other thing like have you been here longer than ten
Speaker 1: years and you have a US citizen child that's perhaps
Speaker 1: sick or something that needs you. Because there's a thing
Speaker 1: called cancelation of removal that in that situation you can
Speaker 1: get it, but it has to be an extreme and
Speaker 1: unusual hardship to a US it is in child So
Speaker 1: in a situation like that, perhaps you can stay, or
Speaker 1: perhaps you were a trafficking victim or something like that.
Speaker 1: But there's very few solutions for a lot of these
Speaker 1: people with expiring temporary protected status. So most of them
Speaker 1: are either going to lose their case or they'll just
Speaker 1: not go to the hearing and then it'll be up
Speaker 1: to the federal government to try to actually deport them
Speaker 1: one by one out of the United States.
Speaker 3: Are the Haitians being treated particularly sternly? I mean Trump
Speaker 3: had targeted, you know when he was campaigning.
Speaker 1: Well, at the moment, there's nothing saying that their deportation
Speaker 1: is moving any more quickly than Syrians or people from
Speaker 1: Venezuela or from other countries that have TPS. They all
Speaker 1: seem to be moving at the same pace, which is,
Speaker 1: you know, they go into immigration court and now the
Speaker 1: immigration courts are processing each of these cases. The one
Speaker 1: difference is that the US House actually voted to extend
Speaker 1: TPS for Haitians through twenty twenty nine. That was a
Speaker 1: bipartisan bill with Republicans and Democrats. But President Trump said
Speaker 1: he would veto the bill, and so there we are.
Speaker 1: We're stuck there in that situation.
Speaker 3: Stay with me. Leon coming up next on the Bloomberg
Speaker 3: Last Show, I'll continue this conversation with immigration law attorney
Speaker 3: Leon Fresco. The Trump administration is the first to use
Speaker 3: a secretive US court meant to deport alleged terrorists. I'm
Speaker 3: June Grosso and you're listening to Bloomberg. Florida is trying
Speaker 3: to keep in place a state law which imposes criminal
Speaker 3: penalties on someone who transports a migrant who entered the
Speaker 3: US in violation of the law. Florida's chief Deputy Solicitor
Speaker 3: General tried to walk a tightrope during Friday's oral arguments
Speaker 3: before the US Court of Appeals for the Eleventh Circuit.
Speaker 3: I've been talking to immigration expert Leon Fresco of Honda
Speaker 3: Knight Leon tell us about this Florida law.
Speaker 1: So it's a very creative law because in twenty twelve,
Speaker 1: there was a case called Arizona Versity United States where
Speaker 1: Arizona basically tried to say that if you were not
Speaker 1: registered with the federal government that they can prosecute you.
Speaker 1: So if you were in Arizona and you had not
Speaker 1: registered with the federal government, you could be prosecuted for
Speaker 1: that under Arizona state law, and the US Supreme Court
Speaker 1: said that that was preempted. So Florida tried to say, well,
Speaker 1: you know what, we're not going to do anything about
Speaker 1: immigration registration. Well we're going to say, is if you
Speaker 1: snuck into the United States and nobody knows you're here,
Speaker 1: so it has nothing to do with immigration, and just
Speaker 1: that you snuck in to the United States, and so
Speaker 1: you could be a US citizen, you could be a
Speaker 1: lawful permanent resident, you could be an undocumented person. It
Speaker 1: doesn't matter who you are. If you're anyone who's snuck
Speaker 1: into the United States and the United States doesn't know
Speaker 1: you're here, and now you're being transported into Florida, you
Speaker 1: can be prosecuted the people who transport you for harboring
Speaker 1: and trafficking and all kinds of other things like that.
Speaker 1: So that's what they tried to say. And so the
Speaker 1: farm Worker Association of Florida and the ACLU sued and said,
Speaker 1: you're being too cute by half. This is just an
Speaker 1: immigration statute that you're just trying to say isn't about immigration,
Speaker 1: And so this is still preempted, meaning the federal government
Speaker 1: has to do the punishment for harboring and trafficking and
Speaker 1: all of that. It's not something that you, the state
Speaker 1: of Florida, can do. And the district court agreed, and
Speaker 1: enjoying the statute, Florida appealed and now it's in the
Speaker 1: eleventh Circuit and there was a panel that just heard
Speaker 1: the argument with two Biden appointees and one Trump appointee
Speaker 1: who seemed skeptical that this was gonna work, that this
Speaker 1: solution of saying, well, this isn't really about immigration because
Speaker 1: we're not penalizing people who are undocumented. We're penalizing anyone
Speaker 1: who's snuck into the United States. And so because we're
Speaker 1: doing that, we're not checking anyone with immigration status. And
Speaker 1: so the court was s like, well, how somebody supposed
Speaker 1: to know whether someone snuck into the country or Now,
Speaker 1: what documents are they going to have to show the
Speaker 1: person transporting them to show that they were quote unquote
Speaker 1: inspected when they arrived in the United States, And of
Speaker 1: course those are going to be immigration documents. And so
Speaker 1: that's what's going to be the complication here. And so
Speaker 1: I don't know exactly how Florida gets around the pre
Speaker 1: empsion issue here, but we shall see. Anything can happen
Speaker 1: in the courts these days, but it seems very difficult
Speaker 1: there or gets.
Speaker 3: Struck down a Georgia. Similar Georgia law right in twenty
Speaker 3: twelve down a.
Speaker 1: Similar Georgia law that tried to do something very similar.
Speaker 1: But again Florida's trying to say that we're just looking
Speaker 1: unlike the Georgia law at this issue of just inspection.
Speaker 1: So if a US citizen snuck across the border and
Speaker 1: then you transported them into Florida, it would be the
Speaker 1: same penalty as an undocumented person. So this has nothing
Speaker 1: to do with immigration. We just don't want people here
Speaker 1: who's snuck into the country. We don't care if you overstayed.
Speaker 1: We're not doing anything related to overstaying. We're just doing
Speaker 1: something for penalizing people who snuck into the country. But
Speaker 1: I don't think it's going to be enough to work.
Speaker 3: Does Florida have the law enforcement resources to catch people
Speaker 3: who help people sneak into the country.
Speaker 1: Well, First of all, Florida is always sort of the
Speaker 1: leadership at the leading edge of the conservative causes, Because
Speaker 1: the leading edge of the conservative causes right now is deportation, deportation, deportation.
Speaker 1: They want to say, look, how we are at the
Speaker 1: front of these deportation issues. But at the end of
Speaker 1: the day, Florida has this very soft underbelly of agricultural
Speaker 1: needs and tourism needs and hospitality needs that if they
Speaker 1: really got their wish, it's like the dog catching the car.
Speaker 1: The dog really did catch the car. Here, I don't
Speaker 1: know how Florida's economy ends up functioning without all of
Speaker 1: these people. So alas, we are where we.
Speaker 3: Are, So now let's talk about this. They're calling it
Speaker 3: a zombie cord, the never used cord, the Alien Terrorist
Speaker 3: Removal Court. The Trump administration is the first administration to
Speaker 3: use this court.
Speaker 1: Correct, There was a court called the Alien Terrorist Removal
Speaker 1: Cord that was established in nineteen ninety six as part
Speaker 1: of the Anti Terrorism and Effective Death Penalty Act, which
Speaker 1: was all the laws that changed all the ways you
Speaker 1: could ask for habeas corpus in America because the system
Speaker 1: had been deemed way too complicated. And as a corollary
Speaker 1: to this, there was this court that was created. What
Speaker 1: the court was supposed to do is it was supposed
Speaker 1: to allow the government to have a special way to
Speaker 1: deport terrorists without needing to sort of give all the
Speaker 1: information to the court. So the idea is you could
Speaker 1: give classified confidential information in an application to the judge,
Speaker 1: so that judge would be the only person who would
Speaker 1: see it, and then the judge would say, Okay, I'm
Speaker 1: going to work with the federal government to create a
Speaker 1: non classified document that would theoretically give enough notice and
Speaker 1: ability to refute the charges to the defendant that it
Speaker 1: would survive due process concerns, because the idea is, how
Speaker 1: do you prove a negative? Someone says you're a terrorist?
Speaker 1: You say, well, how do you know I'm a terrorist?
Speaker 1: And they don't tell you because they say, well, if
Speaker 1: I tell you, I'll be revealing sources and methods, and
Speaker 1: so I can't tell you. So in a normal way
Speaker 1: that something could occur. It would be where someone would
Speaker 1: say you rob the liquor store and you would say, well,
Speaker 1: who saw me? And you would say Bob and you
Speaker 1: would say, well, no, it couldn't have been Bob because
Speaker 1: Bob was in another city that day or whatever. But
Speaker 1: you can't have that defense here because it's classified. But anyway,
Speaker 1: the idea is you're supposed to have enough to move
Speaker 1: forward and make your defense and then this district judge
Speaker 1: can decide whether you get deported or not. And then
Speaker 1: either side, either the government or the foreign national in question,
Speaker 1: can appeal to the DC Circuit only and then that
Speaker 1: gets decided. So this is the first case, and it
Speaker 1: involves an Afghan lawful permanent resident, meaning she has a
Speaker 1: green card and she's forty seven years old, and they're
Speaker 1: saying that she's the matriarch of an ISIS sympathizing family
Speaker 1: who radicalized her family to commit an ISIS inspired mass
Speaker 1: shooting on election Day in twenty twenty four, and so
Speaker 1: the kids were arrested and convicted for their plot. And
Speaker 1: so even though the mother didn't actually participate in the plot,
Speaker 1: so she doesn't have a criminal conviction because if she
Speaker 1: had a criminal conviction, it'd be very easy to deport her.
Speaker 1: They're trying to say, nonetheless, she's a terrorist, and so
Speaker 1: they're relying on a confidential application to do this or
Speaker 1: a classified application, and so the court was just implemented.
Speaker 1: And so you have the judge and she's new and
Speaker 1: this is the first time she's done this. And in
Speaker 1: the first hearing, Judge Erickson, she's trying to sort of
Speaker 1: work out with the government, how do we do this
Speaker 1: and who is submits evidence and where and who's entitled
Speaker 1: to seek does the defense attorney get to see classified evidence?
Speaker 1: At the defense attorney, who's a federal public defender, says
Speaker 1: this whole thing is unconstitutional and I want to appeal
Speaker 1: the constitutionality of all of this first before we have
Speaker 1: the actual merit heering. And so this is going to
Speaker 1: be years of litigation. But I suppose if you were
Speaker 1: ever going to use this court, it has to get done.
Speaker 1: So we will see how long this will take to
Speaker 1: actually prove the constitutionality or whether we'll have a constitutionality
Speaker 1: question first, or whether we'll have the merits of the
Speaker 1: removal first. Well, we'll just have to see how this
Speaker 1: all goes.
Speaker 3: And they're using this because they want to deport someone quickly.
Speaker 1: Correct the idea is once this finally gets implemented, if
Speaker 1: this actually is proven to be constitutional and it's proven
Speaker 1: to work, then the idea is you can because if
Speaker 1: you recall at the beginning of the Trump administration, they
Speaker 1: wanted to declare a bunch of Venezuelan nationals alien enemies
Speaker 1: and they wanted to deport them without due process, and
Speaker 1: they wanted to just say you're alien enemies. This was
Speaker 1: a seventeen eighty statue. And Judge Bosburg was the one
Speaker 1: who actually said, no, no, no, no, if you really think
Speaker 1: someone is a terrorist, you have to go and use
Speaker 1: this Alien Terrorist Removal cord. So that's the genesis of this.
Speaker 1: So they actually took his advice and they said, Okay,
Speaker 1: if you're telling us we have to use this Alien
Speaker 1: Terrorist Removal Court and not use the Alien Enemies Act,
Speaker 1: that's what we're going to use.
Speaker 3: Journey to yet another immigration topic. A federal has ruled
Speaker 3: that Illinois can no longer offer in state tuition at
Speaker 3: public colleges and universities to immigrants who are illegally in
Speaker 3: the US. How many states offer this right?
Speaker 1: Basically, there's a fourteen states that have these laws, and
Speaker 1: they all try to again, just like Florida tried to
Speaker 1: be a little bit tricky with its law with regard
Speaker 1: to inspection versus being undocumented. These states are a little
Speaker 1: bit tricky because there's a federal statute that says the following.
Speaker 1: The federal statute says eight USC. Sixteen twenty three. It says,
Speaker 1: notwithstanding any other provision of law, an alien who's not
Speaker 1: lawfully present in the United States shall not be eligible
Speaker 1: on the basis of residents within a state to any
Speaker 1: post secondary education benefit, unless a citizen or national of
Speaker 1: the United States is eligible for such a benefit. So
Speaker 1: what it's basically saying, in plain English for your listeners
Speaker 1: is you can't give undocumented immigrants and in state tuition
Speaker 1: discount unless everybody gets there. Basically, you'd have to end
Speaker 1: the concept of in state tuition because what you'd have
Speaker 1: to do is everybody would have to get that benefit.
Speaker 1: And so what these states have done is they say no, no, no, no,
Speaker 1: this is not about residents. We're just asking So, like
Speaker 1: the Illinois statue doesn't say anything about being a resident
Speaker 1: in Illinois. What it says instead is did you graduate
Speaker 1: from an Illinois high school after spending three years there?
Speaker 1: And so it's kind of a residence thing. But it's
Speaker 1: they're trying to take it out of there. They're saying, no, no,
Speaker 1: this is for people who graduated Illinois high school. It's
Speaker 1: not for residents. And so they try to make some
Speaker 1: distinction there. But most of these people other than in Minnesota.
Speaker 1: Minnesota one with that argument, other states have been losing
Speaker 1: in the courts with this argument, and they're saying, no,
Speaker 1: this is really just a residence thing. Again, this is
Speaker 1: not uh, try to work a way around the statute.
Speaker 1: At the end, the Supreme Court is probably going to
Speaker 1: have to look at this and decide are those really
Speaker 1: in state tuish given on the basis of residents or
Speaker 1: did they successfully craft a workaround that's not about residents
Speaker 1: by saying no, no, no, we don't care if you
Speaker 1: live in our state. We're just asking did you graduate
Speaker 1: from high school in our state? And so that's really
Speaker 1: the issue here.
Speaker 3: Yeah, I'm curious about about one thing. So you have
Speaker 3: people who are illegal going to college in these states.
Speaker 3: That information is on the books. So how come Ice
Speaker 3: isn't looking at the books and picking them up.
Speaker 1: Well, they could, absolutely, they just know that when they
Speaker 1: do that, that's sort of the hardest target in the
Speaker 1: pr war, because if you pick up a criminal, then
Speaker 1: that's great, that's the softest target. You can start doing
Speaker 1: press releases. Hey, we picked up a predator that Governor
Speaker 1: Holkel didn't care about, or a predator that governor knew
Speaker 1: some didn't care about. Blah blah blah. That's easy. But
Speaker 1: when you take the pre med student out of the
Speaker 1: University of Illinois Chicago, they say, oh my god, this
Speaker 1: was a person with a dream and they were here
Speaker 1: when they were too and it was their dream to
Speaker 1: become a medical student. And they have all a's and
Speaker 1: now you've ruined their life and all of that. That's
Speaker 1: sort of the one where a lot of people listen
Speaker 1: to that fact pattern and they say, come, why of
Speaker 1: all the people did you pick up that person and
Speaker 1: not someone else? So I think that's why you don't
Speaker 1: see it as that is as a pr matter, the
Speaker 1: absolute worst person you can pick up, they do do it. Sometimes.
Speaker 1: There was a student I remember who was flying on
Speaker 1: a plane to go to college, I think to Bentley
Speaker 1: or one of these universities in Massachusetts, and they picked
Speaker 1: her up. She was undocumented, and they said, you're not
Speaker 1: going to go to school. Now here is where statutorially, though,
Speaker 1: it's a tough deal because if you did everything correctly
Speaker 1: and you got a student visa, and that f one
Speaker 1: student visa to come into America, you had the whole
Speaker 1: point of the student visa and the whole reason why
Speaker 1: it's such a beloved thing by all these state schools
Speaker 1: is because all of those people are coming in with
Speaker 1: bags of cash to go to University of Florida or
Speaker 1: University of New you know, Sunny Binghamton or wherever else
Speaker 1: they're going to. And so it is a bit odd
Speaker 1: that you can be undocumented and so your quote unquote
Speaker 1: breaking the rules and getting an in state tuition, whereas
Speaker 1: you follow the rules on an F one student visa
Speaker 1: and now you're paying the out of state super high
Speaker 1: tuition with all the fees involved and everything else. So
Speaker 1: from that standpoint, I can see an unfairness argument that
Speaker 1: registers more than in some other areas.
Speaker 3: I think most people would react that way. Thanks so much, Leon.
Speaker 3: That's Leon Fresco of Holland and Night, and that's it
Speaker 3: for this edition of The Bloomberg Law Show. Remember you
Speaker 3: can always get the latest legal news on our Bloomberg
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