WEBVTT - First Prison Sentence From Capitol Riot 0:00:03.080 --> 0:00:07.880 You're listening to Bloomberg Law with June Grassoe from Bloomberg 0:00:08.000 --> 0:00:31.479 Radio Chaos at the Capital on January six. Slowly but surely, 0:00:31.480 --> 0:00:34.800 the rioters are being brought to justice. And now the 0:00:34.840 --> 0:00:39.240 first prison sentence. The man who carried a Trump flag 0:00:39.360 --> 0:00:42.880 onto the Senate floor was sentenced to eight months behind bars, 0:00:43.280 --> 0:00:47.400 far below the sentencing guidelines. Paul Hodgkins had pleaded guilty 0:00:47.440 --> 0:00:50.720 to the felony of obstructing an official proceeding joining me 0:00:50.720 --> 0:00:54.440 as former federal prosecutor Robert Mintz a partner McCarter in English. 0:00:54.840 --> 0:00:58.920 The sentencing guidelines were for fifteen to twenty one months, 0:00:59.160 --> 0:01:02.640 but the judge sentenced to him below the guidelines and 0:01:02.720 --> 0:01:05.920 to less than half the time the prosecutors had asked for. 0:01:06.200 --> 0:01:08.760 Does it seem like a lenien sentence? Well, what the 0:01:08.840 --> 0:01:11.920 judge did in this case was to more or less 0:01:12.000 --> 0:01:14.759 split the difference between what the defense was asking for 0:01:15.120 --> 0:01:19.200 and what prosecutors were asking for. Prosecutors were seeking eighteen months, 0:01:19.200 --> 0:01:21.840 which was the middle of the guideline range, and the 0:01:21.880 --> 0:01:24.440 defense lawyer was asking for a probation or house arrest. 0:01:24.520 --> 0:01:26.920 So this is an eight month sentence. There will be 0:01:27.040 --> 0:01:29.920 eight months that are served in this case because you 0:01:29.920 --> 0:01:33.120 don't get out early under the federal guidelines, and so 0:01:33.480 --> 0:01:35.399 it's a hard sentence in the sense that there will 0:01:35.440 --> 0:01:38.480 be some real jail time that's imposed here. But on 0:01:38.520 --> 0:01:41.120 the other hand, if you look at the overall conduct 0:01:41.160 --> 0:01:43.840 that was involved, some people might look at this as 0:01:43.840 --> 0:01:47.480 a lenion sentence. That's the real puzzle with these sentences. 0:01:47.760 --> 0:01:50.760 Does the judge look at simply the individual acts or 0:01:50.800 --> 0:01:52.720 does the judge look at the broader picture of the 0:01:52.800 --> 0:01:56.000 writing on the violence carried out by the larger group. 0:01:56.520 --> 0:02:00.480 Isn't it considered lenient if it's below the sentence and guidelines. Well, 0:02:00.480 --> 0:02:03.840 the sentencing guidelines are just guidelines at this point, and 0:02:03.920 --> 0:02:07.400 they are followed by judges in the majority of cases. 0:02:07.440 --> 0:02:09.880 But in the District of Columbia, for example, where this 0:02:09.960 --> 0:02:14.160 defendant was sentenced, judges sentenced below the guideline range and 0:02:14.280 --> 0:02:17.640 thirty percent of the cases. So it's not common to 0:02:17.680 --> 0:02:22.000 do it, but it's certainly not entirely unusual. Hodgkins was 0:02:22.080 --> 0:02:25.960 wearing protective eye goggles, he had rope with him and 0:02:26.080 --> 0:02:29.720 white latex gloves. Yet he said he got swept up 0:02:29.720 --> 0:02:33.240 in the march along Pennsylvania avenue. But when you come 0:02:33.280 --> 0:02:36.480 with that kind of gear, you're not just planning on 0:02:36.560 --> 0:02:39.760 going to a rally, are you. Well, that's the issue 0:02:39.800 --> 0:02:44.080 facing judges in these cases. The sentencing guidelines were set 0:02:44.080 --> 0:02:48.080 out to inject some degree of uniformy and fairness so 0:02:48.120 --> 0:02:52.200 that similarly situated defendants would be sentenced two similar terms 0:02:52.280 --> 0:02:55.880 in jail. But in this case, these are unprecedented events 0:02:56.000 --> 0:02:58.240 and the judges have to look at the acts of 0:02:58.280 --> 0:03:02.760 the individuals and way at against the larger mob mentality. 0:03:02.840 --> 0:03:05.120 And what we're seeing a lot on the defense side 0:03:05.120 --> 0:03:08.160 from a legal strategy, is to blame the moment, not 0:03:08.280 --> 0:03:11.480 the man. So they're arguing that their clients were swept 0:03:11.560 --> 0:03:14.480 up in almost a mob mentality, that this was an 0:03:14.480 --> 0:03:18.560 aberration and something that should be considered in the context 0:03:18.600 --> 0:03:21.520 of the full life of the defendant. In this case, 0:03:21.600 --> 0:03:25.680 there were some mitigating factors that the judge Wade. He 0:03:25.760 --> 0:03:28.600 looked at the seriousness of the charge and the damages 0:03:28.680 --> 0:03:31.040 that were done that day, but he also looked at 0:03:31.080 --> 0:03:34.000 the fact that this particular individual had no criminal background. 0:03:34.400 --> 0:03:37.720 This individual did not engage in violence or destroy property, 0:03:37.960 --> 0:03:40.480 and he was among the first to offer a plea 0:03:40.600 --> 0:03:43.840 of guilty so sometimes what judges are doing are trying 0:03:43.880 --> 0:03:46.520 to set the bar and send a message to the 0:03:46.560 --> 0:03:49.200 many other defendants who are out there who have not 0:03:49.360 --> 0:03:53.040 yet decided to plead guilty, that if they do plead guilty, 0:03:53.160 --> 0:03:55.600 they will get a particular kind of sentence. And so 0:03:55.680 --> 0:03:58.160 to some extent, what the judge is doing is trying 0:03:58.200 --> 0:04:01.680 to encourage other defendants out there to consider edering guilty. Please, 0:04:02.200 --> 0:04:05.000 what about the prosecutors wanting to send a message that 0:04:05.640 --> 0:04:09.840 this is unacceptable behavior. She also cited the need to 0:04:09.880 --> 0:04:13.040 deter domestic terrorism. Yes, and that was sort of an 0:04:13.040 --> 0:04:18.400 interesting paction between the prosecutors and the defense. Prosecutors were 0:04:18.440 --> 0:04:22.279 describing the actions of January six as an act of 0:04:22.320 --> 0:04:25.640 domestic terrorism, and some of the defense lawyers in this 0:04:25.680 --> 0:04:28.719 case and in other cases have pushed back on that 0:04:28.800 --> 0:04:32.200 characterization and things was simply a riot that had gone 0:04:32.240 --> 0:04:35.359 too far. The judge in this case sort of struck 0:04:35.400 --> 0:04:39.120 the middle ground. He clearly shot down any suggestion that 0:04:39.200 --> 0:04:42.359 this was an exercise of First Amendment rights. He said 0:04:42.400 --> 0:04:45.159 that this was an instance in which the chambers of 0:04:45.240 --> 0:04:47.800 Congress were empty during the most solemn act of the 0:04:47.920 --> 0:04:51.640 democracy certifying who the next president is. This was clearly 0:04:51.640 --> 0:04:54.920 not an act of First Amendment speech and would not 0:04:54.960 --> 0:04:56.920 be viewed that way by this judge or I think 0:04:56.920 --> 0:04:59.640 any other judge. So on the whole, would you say 0:04:59.680 --> 0:05:05.720 that haul Hodgkinson sentence, Well, the judge did specifically single 0:05:05.760 --> 0:05:09.040 out the symbolism of the actions that day, So, in 0:05:09.080 --> 0:05:11.760 other words, he did not simply look at the fact 0:05:11.800 --> 0:05:15.360 that this individual had entered the Senate floor and marched 0:05:15.360 --> 0:05:18.240 around with a Trump flag. The judge went on to 0:05:18.360 --> 0:05:21.760 say that this was an act of symbolism that was 0:05:21.839 --> 0:05:25.599 unmistakable that the defendant in this case, by entering the 0:05:25.640 --> 0:05:29.039 Senate floor carrying a flag for Trump rather than the 0:05:29.080 --> 0:05:33.040 American flag, was declaring his loyalty to a single individual 0:05:33.520 --> 0:05:35.760 over the nation, and he went so far as to 0:05:35.839 --> 0:05:39.000 characterize it as a threat to democracy. He then did 0:05:39.080 --> 0:05:41.640 give the defendant a sentence that was, as you say, 0:05:41.760 --> 0:05:44.560 below the guideline range, and some would consider it to 0:05:44.560 --> 0:05:48.279 be perhaps too lenient under the circumstances. What's going to 0:05:48.320 --> 0:05:51.279 be interesting going forward is to look at how this 0:05:51.360 --> 0:05:54.640 sentence has set the bar for future defendants who may 0:05:54.680 --> 0:05:58.840 be sentenced. There's essentially three classes of individuals here. There 0:05:58.839 --> 0:06:01.960 are non violent fell ones such as this individual. There 0:06:01.960 --> 0:06:04.360 are others who have put guilty to misdemeanors, and then 0:06:04.360 --> 0:06:07.680 there are those who committed violent felony acts, who have 0:06:07.760 --> 0:06:11.920 injured police officers and who have destroyed property in the 0:06:11.920 --> 0:06:15.440 course of the actions of January six. We have yet 0:06:15.480 --> 0:06:18.400 to see one of those violent felons sentenced, and it 0:06:18.400 --> 0:06:21.200 would be interesting to see how harsh those sentences will be. 0:06:21.760 --> 0:06:24.400 As you said, this will set a bar. But do 0:06:24.520 --> 0:06:27.960 other judges sentencing defendants in this case have to follow this? 0:06:28.040 --> 0:06:31.680 Do they have to say, Oh, Judge Moss only sentenced 0:06:31.800 --> 0:06:34.680 a man who wasn't violent to eight months, I can 0:06:34.800 --> 0:06:37.840 sentence this person two more than that. No, not at all. 0:06:37.880 --> 0:06:41.240 Each judge has the right to make the individual decision 0:06:41.800 --> 0:06:44.560 as to what the sentence should be for the individual defendant. 0:06:44.640 --> 0:06:47.400 No two cases are the same. No two defendants are 0:06:47.440 --> 0:06:50.640 the same. Their backgrounds are different, their conduct is different, 0:06:50.640 --> 0:06:53.279 what they were charged with is different, The time in 0:06:53.320 --> 0:06:56.000 which they decided to plead guilty might be different, the 0:06:56.040 --> 0:06:59.120 extent to which they cooperated with prosecutors might be different. 0:06:59.320 --> 0:07:02.080 So every single defendant will have a set effects and 0:07:02.080 --> 0:07:05.719 circumstances that is different for them, unique to them, and 0:07:05.800 --> 0:07:08.240 each judge will decide for him or herself what the 0:07:08.279 --> 0:07:11.720 appropriate sentence will be. I expect that we will see 0:07:11.840 --> 0:07:16.000 some disparity in sentencing among the various sederal judges who 0:07:16.080 --> 0:07:19.960 handle these cases because they are so unique. There really 0:07:20.080 --> 0:07:23.440 is no precedent for this type of conduct. That capital 0:07:23.560 --> 0:07:26.080 has not been stormed in this country for more than 0:07:26.080 --> 0:07:29.800 two hundred years, and so it's something that is not 0:07:29.960 --> 0:07:32.720 within the history of any of the judges who were 0:07:32.720 --> 0:07:34.480 sitting on the bench. And they're gonna look at these 0:07:34.480 --> 0:07:37.240 facts and circumstances, and they're gonna have to weigh the 0:07:37.320 --> 0:07:42.040 individual conduct against the symbolic impact of what the sentence 0:07:42.080 --> 0:07:44.120 will be. They're gonna have to look at what the 0:07:44.160 --> 0:07:46.640 individual did, and they're also gonna have to look at 0:07:46.720 --> 0:07:49.880 the impact that that conduct may have had on the 0:07:50.040 --> 0:07:52.880 larger group of individuals and on the country as a whole. 0:07:53.120 --> 0:07:55.680 That's gonna be a very difficult balancing test, and I 0:07:55.720 --> 0:07:58.120 think we're going to see different judges come out with 0:07:58.200 --> 0:08:02.280 different sentences under those circumstances this I expect that we 0:08:02.320 --> 0:08:06.560 will see some disparity in sentencing among the various sederal 0:08:06.640 --> 0:08:10.280 judges who handle these cases because they are so unique. 0:08:10.480 --> 0:08:13.640 There really is no precedent for this type of conduct. 0:08:13.920 --> 0:08:16.880 That capital has not been stormed in this country for 0:08:16.960 --> 0:08:20.119 more than two hundred years, and so it's something that 0:08:20.400 --> 0:08:23.600 is not within the history of any of the judges 0:08:23.600 --> 0:08:25.080 who were sitting on the bench. And they're going to 0:08:25.160 --> 0:08:27.840 look at these facts and circumstances, and they're gonna have 0:08:27.920 --> 0:08:32.440 to weigh the individual conduct against the symbolic impact of 0:08:32.480 --> 0:08:34.840 what the sentence will be. They're gonna have to look 0:08:34.840 --> 0:08:37.280 at what the individual did, and they're also gonna have 0:08:37.400 --> 0:08:40.320 to look at the impact that that conduct may have 0:08:40.440 --> 0:08:43.080 had on the larger group of individuals and on the 0:08:43.120 --> 0:08:45.160 country as a whole. That's going to be a very 0:08:45.200 --> 0:08:47.680 difficult balancing test, and I think we're going to see 0:08:47.679 --> 0:08:52.680 different judges come out with different sentences under those circumstances. Hodgkins, 0:08:53.080 --> 0:08:56.439 though he was among the first two offered to plead guilty, 0:08:56.840 --> 0:09:00.679 he didn't enter a cooperation deal with prosecutors. What does 0:09:00.720 --> 0:09:03.640 that mean? Do you get less time with you enter cooperation? 0:09:03.760 --> 0:09:05.599 Do you what does it mean? Yeah? So, if the 0:09:05.720 --> 0:09:09.760 defendant decides to cooperate with prosecutors, that means that they 0:09:09.800 --> 0:09:15.120 provide some substantial assistance in the prosecution of other individuals. So, 0:09:15.160 --> 0:09:18.600 for example, in these cases where they are talking about 0:09:18.600 --> 0:09:21.320 the riots that occurred on January six, the defendant might 0:09:21.360 --> 0:09:26.160 assist prosecutors in identifying other defendants who may have breached 0:09:26.160 --> 0:09:29.280 the capital grounds, who may have engaged in acts of violence, 0:09:29.520 --> 0:09:32.320 who may have destroyed property, and that leads to the 0:09:32.360 --> 0:09:36.120 prosecution of other individuals, and in that case, prosecutors will 0:09:36.160 --> 0:09:40.600 recommend a sentence below the guideline range to reward them 0:09:40.800 --> 0:09:43.960 for assisting them in prosecuting other individuals who are involved 0:09:43.960 --> 0:09:49.480 in criminal conduct. Now, prosecutors did not seek enhanced domestic 0:09:49.600 --> 0:09:53.320 terrorism penalties against Hodgkins. If they did that in the future, 0:09:54.040 --> 0:09:57.719 that would enhance his sentence, right. You know, there are 0:09:57.760 --> 0:10:01.800 certainly opportunities for prosecutors to large these cases in ways 0:10:01.840 --> 0:10:04.720 that will result in longer sentences. So some of what 0:10:04.800 --> 0:10:07.880 we saw in this particular sentencing was a decision by 0:10:07.960 --> 0:10:11.400 prosecutors not to charge a more serious crime than they 0:10:11.400 --> 0:10:14.160 could have under these circumstances. But that's not to say 0:10:14.200 --> 0:10:17.640 with other defendants they might not take a much harder line, 0:10:17.920 --> 0:10:21.400 particularly those who were engaged in violence with police officers 0:10:21.640 --> 0:10:24.560 and those who destroyed property on federal grounds. I think 0:10:24.559 --> 0:10:28.000 we'll see prosecutors throw the book at those individuals, and 0:10:28.040 --> 0:10:31.160 we will certainly see longer prison sentences handed down by 0:10:31.240 --> 0:10:34.480 judges in those cases. So, talking about some of the 0:10:34.520 --> 0:10:37.320 defenses that have been raised so far, a lot of 0:10:37.320 --> 0:10:39.640 the defendants to they were caught up in the chaos. 0:10:40.120 --> 0:10:43.080 Then other defendants say that they've been going through a 0:10:43.120 --> 0:10:48.199 lot the pandemic, or hardships, bad childhoods have been mentioned, 0:10:48.600 --> 0:10:52.080 They were subject to misinformation. One man's attorneys said the 0:10:52.160 --> 0:10:54.440 reason he was there is because he was a dumb 0:10:54.840 --> 0:10:58.280 blank and believed what he heard on Fox News. But 0:10:58.400 --> 0:11:01.319 then as opposed to what they there are the selfies 0:11:01.400 --> 0:11:05.480 they took bragging about their participation in the riot, and 0:11:05.520 --> 0:11:09.760 there was paramilitary equipment they carried with them. How did 0:11:09.760 --> 0:11:13.200 the judge weigh those factors? Well, you've identified what are 0:11:13.200 --> 0:11:17.000 the real tensions here? So you see defense lawyers following 0:11:17.400 --> 0:11:21.319 the well worn path of trying to make their clients 0:11:21.679 --> 0:11:24.160 humanized in front of the judge. Show them as real 0:11:24.240 --> 0:11:28.120 people struggling with typical day to day experiences. And in 0:11:28.120 --> 0:11:30.640 this case, you did have a circumstance because of the 0:11:30.640 --> 0:11:35.080 pandemic where people were suffering, There was unemployment, people were 0:11:35.080 --> 0:11:39.840 affected health wise, lots of stress that was put on individuals, 0:11:40.080 --> 0:11:43.240 and defense lawyers are trying to point to those circumstances 0:11:43.280 --> 0:11:45.880 to show that this was an aberrant act. If their 0:11:45.880 --> 0:11:48.680 clients have no criminal history, they're looking to say that 0:11:48.720 --> 0:11:50.960 these people are not a threat to commit a similar 0:11:51.000 --> 0:11:53.840 crime in the future, and the judge should be lenient 0:11:53.920 --> 0:11:57.400 in terms of their sentencing. On the other hand, prosecutors 0:11:57.679 --> 0:12:00.400 can look to exactly where you're talking about the fact 0:12:00.480 --> 0:12:05.319 that individuals showed up with combat attire, they brought walkie talkies. Uh, 0:12:05.360 --> 0:12:08.640 there was acts of premeditation. This was not a spur 0:12:08.720 --> 0:12:11.240 of the moment kind of decision where they showed up 0:12:11.520 --> 0:12:16.280 to peacefully protest. Necessarily, there's examples and some evidence that 0:12:16.320 --> 0:12:21.320 there was some planning and some uh thought given to 0:12:22.080 --> 0:12:26.160 possibly getting involved in violence based upon the attire of 0:12:26.160 --> 0:12:28.959 many of the people who showed up. So in that case, 0:12:29.160 --> 0:12:31.480 I think a judge could look at that and say, 0:12:31.520 --> 0:12:35.600 this was not an act of somebody who acted impulsively. 0:12:35.720 --> 0:12:38.800 This is something that was planned, There was thought given 0:12:38.840 --> 0:12:42.080 to this, this is something that was premeditated and therefore 0:12:42.160 --> 0:12:46.800 deserves a harsher sentence. But how much reliance would a 0:12:46.920 --> 0:12:51.120 judge place on what the defendant does between the time 0:12:51.320 --> 0:12:56.160 arrested and the time of sentencing. For example, Hodgkins volunteered 0:12:56.200 --> 0:12:59.480 at an animal shelter. There was a woman who wrote 0:12:59.520 --> 0:13:03.080 book and movie reports on Schindler's List, and the legal 0:13:03.120 --> 0:13:08.760 memoir Just Mercy. So these obvious ploys I'm a good person. 0:13:09.320 --> 0:13:11.920 How much do they weigh with a judge, Well, it 0:13:12.000 --> 0:13:16.040 really varies from judge to judge. Judges will look to 0:13:16.120 --> 0:13:19.800 see whether they believe a defendant is truly remorseful, whether 0:13:19.840 --> 0:13:23.079 they are truly contrite, and whether they really do understand 0:13:23.800 --> 0:13:27.480 the significance of their conduct. This is something that was 0:13:27.520 --> 0:13:30.640 a true aberration or something that is likely to be 0:13:30.679 --> 0:13:34.080 repeated in the future. And defense lawyers will often have 0:13:34.320 --> 0:13:38.240 their clients take certain actions, maybe do some community service 0:13:38.320 --> 0:13:41.800 or other things to show the judge, even prior to sentencing, 0:13:42.080 --> 0:13:44.920 that they have learned their lesson, that they are remorseful, 0:13:45.240 --> 0:13:48.760 and that they're looking for a lighter sentence here. So 0:13:48.960 --> 0:13:51.560 sometimes that will affect the judge. Sometimes they will be 0:13:51.600 --> 0:13:54.240 swayed by that and be convinced that this really is 0:13:54.280 --> 0:13:57.439 a good person who simply did one bad thing, as 0:13:57.440 --> 0:14:01.199 opposed to a bad person. Who mayly repeat this conduct 0:14:01.240 --> 0:14:04.439 sometime in the future. Thanks Bob. That's Robert Mints of 0:14:04.480 --> 0:14:09.680 McCarter and English. More than six hundred thousand Dreamers got 0:14:09.679 --> 0:14:13.160 a joke last Friday when a Texas judge declared the 0:14:13.240 --> 0:14:18.680 DOCTA program illegal. On Thursday, Vice President Kamala Harris met 0:14:18.720 --> 0:14:22.640 with Dreamers who came into this country as undocumented children 0:14:22.880 --> 0:14:27.160 to reassure them. I want to make clear to the 0:14:27.240 --> 0:14:30.600 Dreamers who are here and those who are watching from home, 0:14:31.520 --> 0:14:36.760 this is your home. This is your home, and we 0:14:36.880 --> 0:14:40.000 see you, and you are not alone. The judge put 0:14:40.000 --> 0:14:43.320 his order on hold as the appeals process plays out. 0:14:43.680 --> 0:14:46.200 Joining me is Leon Fresco, a partner at Holland and 0:14:46.360 --> 0:14:49.000 Night and the former head of the Justice Department's Office 0:14:49.040 --> 0:14:53.920 of Immigration Litigation. Leon why did the judge declare DOCCA illegal? 0:14:54.440 --> 0:14:59.600 He ruled that it violated the Administrative Procedure Act because 0:14:59.840 --> 0:15:06.479 the change of the immigration law or procedure for permitting 0:15:06.520 --> 0:15:11.000 people who didn't have status to a not just evade removal, 0:15:11.160 --> 0:15:17.160 but be actually obtain employment authorization and have legal status 0:15:17.240 --> 0:15:20.600 and even get in some cases what's called evans parole 0:15:20.680 --> 0:15:23.960 that allows you to travel and re enter the country. 0:15:24.400 --> 0:15:28.800 That process that's all known as data needed to be 0:15:28.840 --> 0:15:31.840 done through a procedure called notice and comment, where a 0:15:31.960 --> 0:15:37.000 proposed rule was promulgated and a comment period would be 0:15:37.040 --> 0:15:40.040 given and then only after that would a final rule 0:15:40.160 --> 0:15:43.520 be issued. And the failure to do that in twelve 0:15:43.800 --> 0:15:48.840 or since between one continues to be fatal to the 0:15:48.920 --> 0:15:52.240 DOCCER program such that it's not valid. This has been 0:15:52.280 --> 0:15:55.160 in the court several times, it's been up to the 0:15:55.200 --> 0:15:57.760 Supreme Court, but this was never brought up that it 0:15:57.760 --> 0:16:02.080 should go through the administrative c direct. Well, here's what's happened. 0:16:02.080 --> 0:16:05.360 This case has had a very tortured procedural history. So 0:16:05.440 --> 0:16:10.080 when DOCCA first came out in the Ice Union was 0:16:10.120 --> 0:16:12.960 the only group that actually sued it wasn't the State 0:16:13.000 --> 0:16:18.040 of Texas about the case related to DACA. And there 0:16:18.080 --> 0:16:21.040 in that case, that case didn't end up going anywhere 0:16:21.080 --> 0:16:23.720 because there was a belief by the courts that the 0:16:23.760 --> 0:16:28.000 Ice Union did not have standing to sue because they 0:16:28.040 --> 0:16:31.480 weren't harmed by the lack of enforcement of immigration law. 0:16:31.920 --> 0:16:34.880 And so that case when nowhere the Ice Union case. 0:16:35.000 --> 0:16:40.640 Then what happened was in when the Obama administration issued 0:16:40.680 --> 0:16:44.480 a different program called DOPA, not DOCA, which was for 0:16:44.560 --> 0:16:49.160 the parents of people who were US citizen children and 0:16:49.240 --> 0:16:52.360 lawful permanent residents children, but the parents who were here 0:16:52.400 --> 0:16:55.280 were undocumented, that they would be able to get a 0:16:55.360 --> 0:17:00.360 similar deferred action and a work permit as the data children. 0:17:00.920 --> 0:17:04.000 When that program was issued. That's when the State of 0:17:04.080 --> 0:17:07.640 Texas sued in the Southern District of Texas in front 0:17:07.680 --> 0:17:11.280 of this judge, Judge Haynan, And that process was about 0:17:11.280 --> 0:17:14.000 a year long process that ended up going to the 0:17:14.000 --> 0:17:16.920 Fifth Circuit in the Supreme Court, where the Supreme Court 0:17:16.920 --> 0:17:20.040 didn't actually hear the case, they just split four four. 0:17:20.400 --> 0:17:23.080 But that meant that the Fifth Circuit decision saying that 0:17:23.240 --> 0:17:27.200 top PA was illegal for lack of notice and comment, 0:17:27.920 --> 0:17:32.000 that that program went away. Then what happened was Trump 0:17:32.040 --> 0:17:36.400 got elected and so people said, well, let's do this 0:17:36.440 --> 0:17:39.600 for dot Com, let's get rid of DOTA, and they 0:17:39.600 --> 0:17:42.600 actually filed that case in front of Judge Haynan. But 0:17:42.680 --> 0:17:45.600 what the Trump administration said is no need to worry 0:17:45.600 --> 0:17:48.720 about that, because we are going to end the doctor 0:17:48.840 --> 0:17:52.560 program ourselves. They ended the DOCTA program that went up 0:17:52.600 --> 0:17:54.879 to the Supreme Court, and the Supreme Court said that 0:17:55.000 --> 0:17:58.960 the way that the DOCTA program was ended was improper, 0:17:59.560 --> 0:18:02.240 and then the suit went all the way back to 0:18:02.320 --> 0:18:07.359 Judge Haynan during now the Biden administration, where now finally 0:18:07.480 --> 0:18:10.479 this issue has been reckoned with, which is whether the 0:18:10.520 --> 0:18:14.639 original dot CO program suffered the same flaws as the 0:18:15.080 --> 0:18:18.880 pop program that was stricken. Is she saying that it's 0:18:18.920 --> 0:18:21.960 not legal to do it as an executive order? The 0:18:22.160 --> 0:18:25.080 enter to your question is yes. But there are two 0:18:25.080 --> 0:18:27.840 schools of thought. There's a school of thought that's held 0:18:27.880 --> 0:18:31.480 pretty much by fifty percent of the legal community that says, 0:18:31.520 --> 0:18:36.600 this is simply about prosecutorial discretion, and so any administration 0:18:36.720 --> 0:18:39.719 can decide who to prosecute and who not to, and 0:18:39.760 --> 0:18:43.360 can even set guidance for who to prosecute and not prosecute. 0:18:43.720 --> 0:18:46.960 And so that's what the Biden and the Obama administration 0:18:47.040 --> 0:18:50.320 previously had thought. And then there's the group of thought 0:18:50.440 --> 0:18:52.520 that's held by about the other fifty percent of the 0:18:52.600 --> 0:18:56.399 legal community that says, no, you can do on a 0:18:56.440 --> 0:19:02.000 case by case individual basis, all the prosecutorial discretion you want, 0:19:02.359 --> 0:19:05.840 but once you write a memo that says these people 0:19:06.000 --> 0:19:09.600 get prosecutorial discretion and these other people who are not 0:19:09.680 --> 0:19:13.840 part of this memo are not guaranteed prosecutorial discretion. That 0:19:14.160 --> 0:19:18.240 is a regulation basically, and that that regulation needs to 0:19:18.280 --> 0:19:21.840 go through the formal rulemaking process. It can't just be 0:19:21.960 --> 0:19:26.800 a memo. So why did the judge stay his decision? 0:19:27.119 --> 0:19:30.520 What he's really saying is, look, I'm staying my decision 0:19:31.000 --> 0:19:34.280 with regard to people already in this program, and I'm 0:19:34.280 --> 0:19:37.879 going to punt it to the Fifth Circuit and or 0:19:37.960 --> 0:19:42.560 the Supreme Court to decide whether my stay should be lifted. So, I, 0:19:42.840 --> 0:19:45.760 Judge Haynan, don't want to be the person that ended 0:19:45.800 --> 0:19:49.399 the DOCCA program for all of the people who are 0:19:49.440 --> 0:19:53.200 already on DACA, because I understand how much reliance there 0:19:53.280 --> 0:19:55.680 is and how many hundreds of thousands of people are 0:19:55.720 --> 0:19:59.040 in that program. So if I'm wrong, I don't want 0:19:59.080 --> 0:20:01.040 to be the person who did this. So I'm going 0:20:01.119 --> 0:20:03.040 to give you a decision on what I think the 0:20:03.160 --> 0:20:06.200 legal outcome is, and I think the legal outcome is 0:20:06.240 --> 0:20:09.280 that DOCCA is illegal. But I'm not going to implement 0:20:09.320 --> 0:20:12.240 that decision. I'm going to stay that decision and allow 0:20:12.280 --> 0:20:16.520 another court to opine on the legality and let them 0:20:16.560 --> 0:20:20.160 decide whether that's it. Now, it's time to issue the 0:20:20.280 --> 0:20:23.720 data recision, or whether we wait till the Supreme Court 0:20:23.840 --> 0:20:26.560 then issues a Docta decision, or maybe the Supreme Court 0:20:26.600 --> 0:20:29.320 says data is legal and there was no need to 0:20:29.359 --> 0:20:32.960 have created this turmoil in the program. So Haynan is 0:20:32.960 --> 0:20:37.600 a George W. Bush appointee. Vox said, he's been described 0:20:37.640 --> 0:20:41.960 as possibly the most anti immigrant judge in the country. 0:20:42.359 --> 0:20:45.919 Does he have a record on immigration? I think what 0:20:46.240 --> 0:20:51.439 where those where those statements come from, is there was 0:20:51.480 --> 0:20:55.320 a decision prior to the Dappa decision, So there's not 0:20:55.440 --> 0:20:58.439 the Dappa case and there's this Docta case. But I 0:20:58.480 --> 0:21:02.000 think where these statements come from like that in the articles, 0:21:02.240 --> 0:21:04.479 is there was a case prior to those two that 0:21:04.600 --> 0:21:09.600 was related to people who are unaccompanied miners coming into 0:21:09.680 --> 0:21:15.240 the United States. And the judge described the process under 0:21:15.320 --> 0:21:18.360 the t v p r A, the Trafficking Victims Protection Act, 0:21:18.400 --> 0:21:21.359 which is the law that was passed unanimously by Congress. 0:21:21.400 --> 0:21:25.360 Mind you, he described that process which requires the government 0:21:25.600 --> 0:21:29.159 to take in an unaccompanied minor and to find a 0:21:29.320 --> 0:21:32.960 guardian for that minor and allow the minor to stay 0:21:33.000 --> 0:21:35.720 with that guardian while their immigration case is pending, not 0:21:36.080 --> 0:21:40.879 in detention, He described that as the US government doing, 0:21:41.640 --> 0:21:44.320 you know, the final piece of the work for the smuggler. 0:21:44.440 --> 0:21:47.600 So the smuggler takes the child to the US government, 0:21:47.800 --> 0:21:51.480 and the US government finishes the smugglers work by providing 0:21:51.520 --> 0:21:54.600 the child exactly to who the smuggler wanted the child 0:21:54.640 --> 0:21:58.119 to be provided to. And so by making that statement 0:21:58.400 --> 0:22:01.680 in that decision, that to where I think sort of 0:22:01.720 --> 0:22:06.440 all of the comments about Judge Hanen were generated from 0:22:06.480 --> 0:22:09.119 because they said, well, that's just the law, so you know, 0:22:09.720 --> 0:22:13.720 the cast it in that manner, uh seemed to show 0:22:13.800 --> 0:22:17.400 that the disagreed with that law. And so then adding 0:22:17.440 --> 0:22:19.960 that to the Doctor decision, the not By decision, and 0:22:20.000 --> 0:22:24.359 now the Docka decision, this is why people levy that criticism. 0:22:24.400 --> 0:22:28.119 So the Supreme Court last year issued a ruling that 0:22:28.280 --> 0:22:32.600 upheld DOCCA, but it doesn't address this issue that would 0:22:32.640 --> 0:22:35.600 be before the court this time. Right, So the Supreme 0:22:35.600 --> 0:22:38.719 Court decision was about whether the manner in which the 0:22:38.760 --> 0:22:43.840 Trump administration revoked DOCTA, whether that manner was procedurally correct, 0:22:44.359 --> 0:22:48.879 because the Trump administration had only said that the reason 0:22:48.920 --> 0:22:52.439 it was revoking DOCCA was because it was illegal. That 0:22:52.560 --> 0:22:54.400 was it. That was the only reason that they gave 0:22:55.080 --> 0:22:58.720 and Justice Roberts had written a decision which said, well, 0:22:58.800 --> 0:23:00.639 you can't say that because you have to take a 0:23:00.640 --> 0:23:04.240 bunch of different interests into account in how you revoked 0:23:04.280 --> 0:23:06.960 the programs, such as the reliance interests of the people 0:23:07.000 --> 0:23:09.320 in the program, and so you have to go back 0:23:09.359 --> 0:23:12.120 and try to do it again. And the Trump administration 0:23:12.200 --> 0:23:14.119 was in the process of trying to do that again 0:23:14.200 --> 0:23:18.680 when obviously the election happened, and so you know, there 0:23:18.720 --> 0:23:21.120 was lower court cases working on that getting its way 0:23:21.119 --> 0:23:23.679 back to Supreme Court. So they never grappled with the 0:23:23.720 --> 0:23:28.200 actual underlying issue. Is the DOCTA program legal? And so 0:23:28.240 --> 0:23:32.480 now that's what's going to be inevitably before the Supreme 0:23:32.520 --> 0:23:35.119 Court is whether the DOCCA program is legal or not. 0:23:35.840 --> 0:23:41.080 Did three conservative justices say DOCCA was illegal? Well? Right, 0:23:41.160 --> 0:23:44.240 so you had the Justice Thomas and Justice Alito and 0:23:44.359 --> 0:23:49.280 Justice Gore said group that said yes that DACA was illegal, 0:23:49.320 --> 0:23:52.280 and they wanted to call it illegal right there. And 0:23:52.359 --> 0:23:54.359 so what you're gonna see in this case is we're 0:23:54.359 --> 0:23:58.879 gonna have to see now what the Roberts and Coney 0:23:59.040 --> 0:24:02.959 Barrett's and having a group decides to do about this. 0:24:03.000 --> 0:24:07.280