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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: I'm ready to solve the problem. I really am massive changes,

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Speaker 1: and I mean it's sincerely.

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Speaker 2: The migration crisis at the border has become one of

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Speaker 2: President Joe Biden's biggest political liabilities, and he appears ready

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Speaker 2: to deal. Biden says he's opened to massive changes in

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Speaker 2: US border policy, including to asylum laws, in order to

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Speaker 2: secure a deal that would unlock Ukraine Aid. Biden expressed

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Speaker 2: confidence the Senate could work out an emerging Bipartistan border

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Speaker 2: compromise as soon as this week, and Republican senators like

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Speaker 2: Lindsey Graham point to the Biden administration's concessions and say

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Speaker 2: it's the best deal the GOP can get.

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Speaker 3: To those who think that if President Trump wins, which

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Speaker 3: I hope he does, that we can get a better

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Speaker 3: deal you want, you've got to get sixty votes to

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Speaker 3: the United States Senate, So to my Republican friends, to

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Speaker 3: get this kind of border security without granting a pathway

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Speaker 3: to citizenship is really unheard of yet.

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Speaker 2: Even if the measure passes the Senate, it faces a

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Speaker 2: rougher time in the House, where House Speaker Mike Johnson

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Speaker 2: is facing intense pressure from ultra conservative Republicans, some who've

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Speaker 2: threatened to oust him if he makes a deal with Biden.

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Speaker 3: I told the President what I have been saying for

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Speaker 3: many months, and that is that we must have change

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Speaker 3: at the border, substantive policy change.

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Speaker 2: And there's also been intervention by former President Donald Trump

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Speaker 2: to quash any deal, leaving Biden questioning whether House Republicans

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Speaker 2: would actually support immigration reform. That have to choose whether

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Speaker 2: they want to solve a problem or keep weaponizing issue

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Speaker 2: to square political points against the President. Joining me is

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Speaker 2: Leon Fresco, the former head of the Office of Immigration

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Speaker 2: Litigation at the Justice Department and a partner at hollanden Knight.

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Speaker 2: So let's start with the negotiations. Okay, So okay, No,

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Speaker 2: I was going to say, Biden said he is seeking

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Speaker 2: massive changes to US immigration rules.

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Speaker 4: So, but it's correct, the negotiations are proceeding and they're

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Speaker 4: actually supposed to yield fruit. This week, Senator Schubert kept

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Speaker 4: the Senate in session even though the House went away

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Speaker 4: for recess, under the guys that this would be the

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Speaker 4: legislation that would actually be brought to the floor for

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Speaker 4: a vote. This week now. Having said that, no legislation

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Speaker 4: has actually been introduced or distributed to other senators for reviews,

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Speaker 4: but we do know certain things. We do know that

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Speaker 4: asylum as we currently know it, where people can go

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Speaker 4: across the border and ask for asylum, would be banned.

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Speaker 4: They would be prohibited from here on.

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Speaker 1: Now.

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Speaker 4: What would happen is that would be replaced with a

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Speaker 4: system where if you don't get specific appointments at the

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Speaker 4: ports of entry, and the negotiators are currently talking about

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Speaker 4: five thousand appointments being available per day, then you're just banned.

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Speaker 4: There's no ability to actually cross the border and get asylum.

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Speaker 4: You get immediately removed back into Mexico if you try

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Speaker 4: to do that. But plus, even for those five thousand

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Speaker 4: people who would have appointments at the ports of entry,

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Speaker 4: they would have a much higher standard to be in

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Speaker 4: order to actually be admitted into the country from these

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Speaker 4: port of entry interviews, they would actually have to show

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Speaker 4: that they have a reasonable fear of being persecuted on

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Speaker 4: the basis of their race, religion, national origin, social group,

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Speaker 4: or political opinion. And right now there's an easier standard

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Speaker 4: called credible fear, which is just a reasonable possibility of

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Speaker 4: a meritorious claim. Here, you're going to have to show

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Speaker 4: a significant likelihood that you have a meritorious claim, and

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Speaker 4: so that's going to raise the threshold, and usually at

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Speaker 4: their higher threshold like that, you're talking about moving from

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Speaker 4: about an eighty percent success rate to about a twenty

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Speaker 4: to thirty percent success rate for people who will even

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Speaker 4: make those claims along the ports of entry, So it

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Speaker 4: would be a significant change. The final question that still

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Speaker 4: hasn't been decided is what will happen to the parole

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Speaker 4: authority that President Biden currently has on their laws. And

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Speaker 4: there's two kinds of parole authority, and this is what's

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Speaker 4: kind of holding things up. There's the first kind, where

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Speaker 4: President Biden has actually asked people from around the world

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Speaker 4: to actually apply to enter legally here, so they have

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Speaker 4: one right now for Ukraine, they have one for Venezuela, Cuba, Vicaragua, Haiti.

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Speaker 4: So the Republicans want to get rid of that kind

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Speaker 4: of parole. But there's also the parole that happens when

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Speaker 4: you ask for asylum at the port of entry, which

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Speaker 4: is if you ask for asylum and you actually show

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Speaker 4: that you now have this significant likelihood, what's going to

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Speaker 4: be your status while you're waiting here to actually have

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Speaker 4: your final trial. And so the Biden administration says, well,

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Speaker 4: that has to be a parole. There's the only way

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Speaker 4: you can let someone legally in. And I think this

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Speaker 4: is where they're getting caught up as the Republicans don't

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Speaker 4: really have a good answer for what's that is somebody

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Speaker 4: who cloes legally through the board and asked for asylum

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Speaker 4: and meets the standard, how would they be allowed to

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Speaker 4: remain here? I think the Republicans want those people to

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Speaker 4: be in detention the whole time. And I think that's

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Speaker 4: the current logjam.

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Speaker 2: Is the Biden administration really opposed to closing that because

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Speaker 2: that's a significant number of people that are coming in.

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Speaker 5: Addition to everyone else.

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Speaker 2: Republican centators Lindsay Grahm and John Thune held a press

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Speaker 2: conference last week complaining that the number of immigrants paroled

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Speaker 2: into the United States has gone up dramatically under President Biden.

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Speaker 4: And so the answer is, there's discussions about allowing those

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Speaker 4: things to exist, but capping them. And I think they're

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Speaker 4: trying to determine what is an appropriate cap is at

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Speaker 4: one hundred thous and paroles like that a year. Is

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Speaker 4: it fifty thousand, is it two hundred thousand, and so

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Speaker 4: they continue to debate that number. But I do think

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Speaker 4: they're probably going to end up with some sort of

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Speaker 4: cap there, or if not a cap, then something where

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Speaker 4: the Congress has to vote on exceeding the cap something

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Speaker 4: like that. So those are the areas where they're going

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Speaker 4: to have that discussion. So I think the answer is

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Speaker 4: it's not where it's dead and they're not negotiating, but

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Speaker 4: it's just a matter of trying to reach the correct

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Speaker 4: answer there.

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Speaker 5: Tell me if this is correct.

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Speaker 2: I read that the Venezuelan migrants, unlike other migrant groups,

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Speaker 2: they don't have ties to friends or family here, so

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Speaker 2: they're arriving without resources or a sponsor.

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Speaker 4: Well, that's correct. The newest problem for almost everybody arriving

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Speaker 4: at the border now is that people arriving at the

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Speaker 4: border used to have some sort of plan for what

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Speaker 4: to do when they arrived in America, and now those individuals,

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Speaker 4: many of them arriving at the border, don't have a plan,

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Speaker 4: which is why cities are having to spend a lot

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Speaker 4: of resources on shelters and other things that it's needs

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Speaker 4: for these individuals. The deal with these paroles is those

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Speaker 4: are for people who have some sponsor or ties, and

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Speaker 4: the question is is that actually replacing illegal immigration, which

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Speaker 4: would be a good thing, or is it just extra

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Speaker 4: people that wouldn't have come, And so it's not doing anything,

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Speaker 4: it's just adding extra people. And so the Democrats believe

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Speaker 4: that those legal parole programs are actually causing illegal immigration

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Speaker 4: to go down because it's having people who would otherwise

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Speaker 4: have come illegally come legally. But the Republicans are saying, no, no, no,

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Speaker 4: The people who are coming are people without ties, and

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Speaker 4: so these extra people coming with ties are just people

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Speaker 4: who wouldn't have come but are now coming because there's

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Speaker 4: a legal pathway for this. And so that's why we're

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Speaker 4: seeing this debate.

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Speaker 2: Oklahoma Senator James Langford, who is the lead GOP negotiator,

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Speaker 2: said it will be by far the most conservative border

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Speaker 2: security bill in four decades, and Lindsey Graham said something

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Speaker 2: similar like this is as good as we're ever gonna get.

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Speaker 5: Do you agree with that?

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Speaker 4: Correct? I think if there is a desire to actually

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Speaker 4: get Democrats to actually vote for a bill that dramatically

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Speaker 4: changes the way people can have paid asylum in the

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Speaker 4: United States, this is the last and only chance for

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Speaker 4: Republicans to get it, because you have the right atmospherics

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Speaker 4: in play, where it's always that expression only Nixon can

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Speaker 4: go to China, and so you want the other side.

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Speaker 4: So you know, just like Clinton did welfare reform, or

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Speaker 4: just like President Bush, did you know, no Child Left Behind?

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Speaker 4: Sort of always it's the opposite. And here you would

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Speaker 4: want to buy an administration to actually be the one

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Speaker 4: who would curtail asylum because of its Trump. Then all

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Speaker 4: the Democrats will just oppose whatever Trump was gonna do.

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Speaker 4: And so this is your best chance to actually get

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Speaker 4: a sylum reform. And so that's why you hear Senator

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Speaker 4: like for Senator Graham saying.

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Speaker 2: However, let's say this does pass the Senate, then it

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Speaker 2: goes to the House. And already we're hearing Trump pressuring

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Speaker 2: the House Speaker not to reach a bipartisan deal. He

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Speaker 2: sat on social media last week, I do not think

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Speaker 2: we should do a border deal at all unless we

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Speaker 2: get everything needed to shut down the invasion of millions

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Speaker 2: and millions of people.

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Speaker 5: And he's been talking to the House Speaker.

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Speaker 4: Yes, I think there's a different calculation in place for

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Speaker 4: President Trump than there is with regard to the people

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Speaker 4: at the border, which is for President Trump, he's sort

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Speaker 4: of got these big votives, which is one, yes, obviously

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Speaker 4: there's a desire to secure the border, but there's also

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Speaker 4: a desire to put oneself in the best position possible

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Speaker 4: to win election. And so if the border is not fake,

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Speaker 4: President Trump would have that calculation, then it would be

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Speaker 4: the best possible situation for him to win. And so

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Speaker 4: this is the problem, and this is where you're going

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Speaker 4: to have a lot of dispute. And what I think

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Speaker 4: is very interesting is you have Governor Greg Abbit of

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Speaker 4: Texas and Senator John Cornyan, who are usually not people

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Speaker 4: who come to the final deal on immigration. They're saying, look,

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Speaker 4: as much as we'd like to give an advantage to

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Speaker 4: President Trump an election in twenty twenty four, the problem is,

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Speaker 4: how are we going to keep it so that another

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Speaker 4: three million people cross the border this year. Why wouldn't

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Speaker 4: we actually take the effort to actually close that down.

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Speaker 4: And so this is going to be quite the skirmish.

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Speaker 4: And so if it passes the Senate, I think it's

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Speaker 4: going to be very very difficult for the House to

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Speaker 4: just ignore this, because then the House and the Republicans

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Speaker 4: will start getting blamed for everything that's happening on the

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Speaker 4: border rather than President Biden. So if the Republicans really

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Speaker 4: wanted President Biden to be the ones that would be blamed,

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Speaker 4: that they would just shut this all down. But if

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Speaker 4: something passes in the Senate, no doubt, the Republicans are

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Speaker 4: going to be blamed in the House that they don't

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Speaker 4: actually at least even give a vote for what the

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Speaker 4: Senate produced.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with immigration law expert Leon Fresco, and we'll

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Speaker 2: talk about the escalating battle between Texas and the Biden

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Speaker 2: administration over the border. The Biden administration won one fight today,

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Speaker 2: as the Supreme Court said it can remove parts of

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Speaker 2: a fence along the southern border built by Texas. The

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Speaker 2: vote was five to four, with the Chief Justice John

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Speaker 2: Roberts and Justice Amy Coney Barrett voting with the liberals.

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Speaker 5: In the case, I'm.

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Speaker 2: June Grosso and you're listening to Bloomberg. A divided Supreme

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Speaker 2: Court has sided with the Biden administration, allowing US Border

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Speaker 2: Patrol agents to remove razor wire fencing put up by Texas.

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Speaker 2: Along the southern border, Texas officials installed twenty nine miles

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Speaker 2: of barriers using barbed wire in the escalating fight between

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Speaker 2: the state and the administration over illegal immigration at the border.

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Speaker 2: The sharp barriers have been a particular source of tension,

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Speaker 2: with federal agents saying they have maimed and bloodied migrants

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Speaker 2: and pose a hazard to US agents. Here's Texas Democratic

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Speaker 2: Congressman Joaquim Castro back in July.

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Speaker 6: As far as the razor wire goes, not only is

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Speaker 6: it in umade on the face of it, but it's

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Speaker 6: also placed along the water in such a way that

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Speaker 6: at times it's invisible to the people who are trying

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Speaker 6: to cross.

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Speaker 2: The Supreme Court's emergency order vacates a ruling from the

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Speaker 2: Fifth Circuit that said border patrol could only cut down

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Speaker 2: the razor wire in an emergency. It was a five

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Speaker 2: to four decision, with the Chief Justice and Justice Amy

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Speaker 2: Coney Barrett siding with the Court's liberals. I've been speaking

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Speaker 2: with immigration law expert Leon Fresco of Hollanda Knight. Are

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Speaker 2: you surprised that the Supreme Court sided with the Biden

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Speaker 2: administration here?

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Speaker 4: Well, it's not surprising from a purely legal personective, which

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Speaker 4: is that at the end of the day, it would

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Speaker 4: have been very tough to say that a stake can

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Speaker 4: actually erect a razor wire fencing barrier along the Mexico

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Speaker 4: border that the border patrol wouldn't be able to access

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Speaker 4: only in the highest of emergencies. So from that standpoint,

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Speaker 4: that is not surprising. But it's interesting that it was

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Speaker 4: a five to four decision and that if simply Justice

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Speaker 4: amy Cony Barrett had switched to the other side, then

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Speaker 4: this injunction would have remained in place, and Texas basically

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Speaker 4: could have walled off a twenty nine mile wire square

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Speaker 4: there along the Rio Grande River that the federal government

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Speaker 4: wouldn't have been able to go in. And the idea

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Speaker 4: was that Texas wanted to wire that off to deter

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Speaker 4: foreign nationals from crossing the border.

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Speaker 2: So that means that four justices thought that Texas should

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Speaker 2: have the authority to do this, or could it be

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Speaker 2: that four justices thought the government didn't make out a

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Speaker 2: strong enough case.

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Speaker 5: I mean, we don't know, because it's just an order, right.

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Speaker 4: The decision is just an order which says that the

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Speaker 4: injunction that Texas had sought in the fifth circuit to

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Speaker 4: prevent the federal government from coming in and cutting down

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Speaker 4: the wire. That injunction was vacated, and we know that

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Speaker 4: justice is Thomas, Alito, Gorsich, and Kavanaugh would have kept

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Speaker 4: that injunction in place. Now, if you're going to keep

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Speaker 4: an injunction in place, you're technically saying that you believe

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Speaker 4: that that injunction was rightfully issued. Otherwise you have some

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Speaker 4: duty to vacate that injunction. And so from that standpoint,

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Speaker 4: I do think it's fair to say that those four

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Speaker 4: justices thought that because the fence was built on private land,

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Speaker 4: that the federal government wouldn't have any authority to be

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Speaker 4: able to cut down that fire fencing. But at the

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Speaker 4: end of the day, that's very hard argument to make

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Speaker 4: when it's really controlling. I mean, if the intentive defence

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Speaker 4: is to control the border, then you have to say, Okay,

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Speaker 4: if that's the incentive defense, then that's the jurisdiction of

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Speaker 4: the Border patrol. You can't have it both ways. And

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Speaker 4: it had been a fence to deal with livestock or something,

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Speaker 4: then you could have that debate, well, can the Border

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Speaker 4: Patrol arbitrarily say they need it for the border, But

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Speaker 4: if the whole point of defense is to control the border,

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Speaker 4: then you start having this problem of well, why is

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Speaker 4: it the ultimate arbiter of that, the border patrol and.

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Speaker 5: Leon is the case continuing below.

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Speaker 4: Yes, this is the injunction phase of the case. Now

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Speaker 4: we have to have sort of the merit part of

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Speaker 4: this case, and so you got to go through it.

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Speaker 4: It's always the case gets decided before it gets decided,

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Speaker 4: and so in the first round, which is the turbo round,

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Speaker 4: the government wins. But now we have the longer briefing

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Speaker 4: where the district court has to decide who's right is

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Speaker 4: it the state of Texas or is it the federal government.

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Speaker 4: The Fifth Circuit has to decide who's right is it

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Speaker 4: the State of Texas or the federal government. And if

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Speaker 4: the federal government wins in the Fifth Circuit, I don't

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Speaker 4: think you'd see this case get to the Supreme Court.

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Speaker 4: But if the State of Texas wins in the Fifth Circuit,

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Speaker 4: then you would see this case come back to the

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Speaker 4: Supreme Court for a final decision.

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Speaker 2: And LeAnn remind me, how did the Chief Justice rule

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Speaker 2: in the Arizona case where was decided that states can't

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Speaker 2: implement their own immigration laws.

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Speaker 4: The Chief Justice ruled in favor of the federal government,

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Speaker 4: so he's been remarkably consistent there that states cannot take

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Speaker 4: immigration laws into their own hands. So there's four votes

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Speaker 4: for that. The question is who's the fifth vote in

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Speaker 4: any of these given cases, And at least for this

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Speaker 4: particular case, Justice Cony Barrett was the one who came

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Speaker 4: along with Chief Justice Roberts and said, the State of

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Speaker 4: Texas can't do this.

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Speaker 5: Does this cover the buoys too, or is it separate?

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Speaker 4: No, this does not cover the movie. So this is

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Speaker 4: a specific case where the State of tech Texas actually sued.

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Speaker 4: In this case, the State of Texas actually sued to

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Speaker 4: get an injunction to prevent the Border Patrol from cutting

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Speaker 4: the wire that the State of Texas was putting in.

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Speaker 4: In the Booiz case, the federal government sued under the

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Speaker 4: Maritime and Rivers Act to get the Booies out. So

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Speaker 4: that's a separate case which the Fifth Circuit actually just

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Speaker 4: decided to rehear on Bank also where the Fifth Circuit

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Speaker 4: panel had said that the water barriers were illegal, and

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Speaker 4: that one is now going on Bank to the Fifth

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Speaker 4: Circuit to decide whether the buoys can remain on the

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Speaker 4: Rio Grande River or whether they have to be taken out.

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Speaker 2: Is it the same principle, so we'd see the same majority.

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Speaker 4: I think at the end of the day you probably will,

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Speaker 4: because the buoys quite frankly, more than the fencing one,

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Speaker 4: they're actually closer to the border because they're on the border,

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Speaker 4: they're in the Rio grand River, so they're actually affecting

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Speaker 4: our relations with Mexico, which is a very important fact.

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Speaker 4: But secondly, they are governed by this very clear Rivers

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Speaker 4: and Maritime Act, which actually really places the jurisdiction there

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Speaker 4: on the federal government to decide what kinds of barriers

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Speaker 4: you can create in these areas, so states really can't

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Speaker 4: take matters into their own hands. So I would expect

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Speaker 4: at some point you would see these moooies be able

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Speaker 4: to be eliminated from the Rio Grande River.

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Speaker 5: And lee on.

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Speaker 2: The Biden administration asked for this emergency order earlier in

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Speaker 2: the month, so we've been waiting for it and waiting

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Speaker 2: for it. I'm wondering what was going on behind the scenes.

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Speaker 4: I definitely think that perhaps the events that happened recently

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Speaker 4: with the drowning in the river played some role here

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Speaker 4: in getting Justice Cony Barrett to come across the finish

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Speaker 4: line and join the liberal group to lift this injunction

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Speaker 4: because the Border Patrol says that they couldn't get to

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Speaker 4: the individuals, and the debate about whether the individuals whatever

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Speaker 4: wouldn't have drowned had the Border Patrol been able to

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Speaker 4: get to them. I definitely think those events really played

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Speaker 4: a role here. I can't imagine that wasn't the case,

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Speaker 4: because otherwise we might have had a decision earlier.

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Speaker 2: Yeah, and the Solicitor General did tell the Justices in

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Speaker 2: a filing that the limited exception that the Fifth Circuit

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Speaker 2: gave to Border Patrol that it could only cut down

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Speaker 2: the razor wire fencing in an emergency, posed a serious

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Speaker 2: threat to human life because it didn't give border agents

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Speaker 2: enough time to respond to medical emergencies such as the

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Speaker 2: one where a woman and her two children had drowned

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Speaker 2: on January twelfth.

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Speaker 5: So that was part of the argument.

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Speaker 2: And this is just one of several legal fights the

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Speaker 2: administration is having with Texas. The federal government is suing

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Speaker 2: Texas over a criminal law on immigration that the state

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Speaker 2: has passed. It hasn't gone into effect yet. Tell us

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Speaker 2: about that.

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Speaker 4: So then there's another law, which was called Senate Bill

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Speaker 4: foro in Texas, which is trying to overturn what was

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Speaker 4: the decision in twenty twelve in Arizona versus the United

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Speaker 4: States which said that states couldn't take immigration enforcement into

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Speaker 4: their own hands, but that was preended by federal law. Well,

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Speaker 4: Texas is saying, well, maybe that could change it. I'll

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Speaker 4: give it the new composition of the Supreme Court. And

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Speaker 4: so they passed the law that said that if they

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Speaker 4: uncover some undocumented foreign nationals crossing into Texas or recently

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Speaker 4: arrived in Texas, they could basically take that foreign national

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Speaker 4: to the border and they would then be able to say,

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Speaker 4: if you don't cross back into Mexico, we're going to

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Speaker 4: prosecute you for a misdemeanor. And if the person refused

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Speaker 4: to do that, it either re entered or something, they

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Speaker 4: could be prosecuted for a felony. And so that is

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Speaker 4: basically prosecuting people for undocumented immigration, which is currently illegal

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Speaker 4: under Arizona versus United States. And so the question is

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Speaker 4: will this Supreme Court allow Texas to do that?

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Speaker 5: As a federal judge even ruled in that case yet.

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Speaker 4: Correct, there's been no decision on any request for an

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Speaker 4: injunction yet on this.

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Speaker 2: Case, but we can sort of guess what's going to

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Speaker 2: happen there. It's in Texas, so a Texas judge and

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Speaker 2: then the Fifth Circuit.

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Speaker 4: I mean, we're going to end up with the Supreme

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Speaker 4: Court deciding one way or another on this injunction. But

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Speaker 4: until we get there with it's going to be quite

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Speaker 4: a rollercoaster.

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Speaker 2: So leon we've talked over the years about the drastic

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Speaker 2: measures that Governor Greg Abbott has taken, and he proudly

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Speaker 2: announced on January ninth that the state had sent over

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Speaker 2: one hundred thousand migrants to sanctuary cities across the United States.

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Speaker 5: And while that.

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Speaker 2: Action seems wrong on so many levels, he sort of

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Speaker 2: made his point by forcing Northern City Ease to deal

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Speaker 2: with an overwhelming number of migrants, because now we're dealing

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Speaker 2: with the problems that that Texas border communities have dealt

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Speaker 2: with for many, many years.

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Speaker 4: It was a very effective technique, especially once the people

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Speaker 4: that were being sent were people who did not have

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Speaker 4: a plan for what they were going to do in

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Speaker 4: the United States. It was one thing to send people

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Speaker 4: to other cities if they had a plan because then

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Speaker 4: the cities could simply get a boss or an uber

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Speaker 4: or something else and take them to their relatives. So

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Speaker 4: that really would have just been a mild inconvenience. But

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Speaker 4: now that there's this new group of foreign nationals that

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Speaker 4: has no plan of any kind of what they're going

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Speaker 4: to do when they arrive in the United States, it

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Speaker 4: is that group that when they get put on these

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Speaker 4: buses by the State of Texas, it really makes a

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Speaker 4: huge impact on whatever city they're arriving to. Is that

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Speaker 4: those individuals are either going to be homeless or they're

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Speaker 4: going to need somebody in the city to take care

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Speaker 4: of them, and that creates a huge use of gistical

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Speaker 4: problem for those cities.

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Speaker 2: There's been a lot of talk about how long it

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Speaker 2: takes for the migrants to get work authorizations.

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Speaker 5: Have they been speeding up that process any So there.

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Speaker 4: Is a speedier process for people once they've actually either

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Speaker 4: been given a parole or if they've been given temporary

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Speaker 4: protective status. But for the normal people who are thinking asylum,

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Speaker 4: the problem is there's a rule which is that you

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Speaker 4: have to have a pending asylum application for one hundred

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Speaker 4: and eighty days before you're permitted to get a work permit,

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Speaker 4: and so that's a satutory problem, and there is some

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Speaker 4: discussion that that would be changed as part of this

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Speaker 4: Langford Chris Murphy Senate deal, that if you did manage

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Speaker 4: to meet that higher asylum standard, and you did come

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Speaker 4: legally through the port of entry, that you would get

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Speaker 4: a work permit right there on the spot, rather than

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Speaker 4: having to apply or anything else. That would be a

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Speaker 4: dramatic change. But that's not what we have right now,

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Speaker 4: and so because of that, you have people that are

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Speaker 4: down for at least one hundred and eighty days that

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Speaker 4: are just wards of the faith. I can't do anything.

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Speaker 2: There are so many problems with the immigration system. Thanks

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Speaker 2: so much for helping us understand them.

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Speaker 5: Leon.

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Speaker 2: That's Leon Fresco, a partner at Holland and Knight. Coming

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Speaker 2: up next, allegations against Fulton County DA Fannie Willis take

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Speaker 2: a detour to divorce court. I'm June Gross. When you're

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Speaker 2: listening to Bloomberg for once, the complications in a criminal

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Speaker 2: case against Donald Trump have nothing to do with the

441
00:24:32,840 --> 00:24:38,960
Speaker 2: former president misconduct. Allegations against Fulton County District Attorney Fannie Willis,

442
00:24:39,119 --> 00:24:43,960
Speaker 2: who brought the election conspiracy prosecution against Trump and eighteen

443
00:24:44,040 --> 00:24:47,600
Speaker 2: others have taken center stage, and things seem to be

444
00:24:47,640 --> 00:24:51,760
Speaker 2: getting more sensationalized with each new motion and now extend

445
00:24:51,800 --> 00:24:55,200
Speaker 2: to the divorce proceedings of the special prosecutor in the case,

446
00:24:55,359 --> 00:24:58,919
Speaker 2: Nathan Wade. It began when Trump's co defendant, Michael Roman

447
00:24:59,000 --> 00:25:02,920
Speaker 2: filed a motion to have the District Attorney's office disqualified

448
00:25:02,920 --> 00:25:06,880
Speaker 2: from the case because of an alleged romantic relationship between

449
00:25:06,880 --> 00:25:10,199
Speaker 2: Willis and Wade. The latest was a Georgia judge in

450
00:25:10,240 --> 00:25:15,520
Speaker 2: the Wadees divorce proceedings releasing dozens of formerly sealed documents

451
00:25:15,960 --> 00:25:19,240
Speaker 2: joining me Is Bloomberg Legal reporter David Voriakiz who's been

452
00:25:19,359 --> 00:25:22,920
Speaker 2: following it all. David, to put today's hearing in context,

453
00:25:23,320 --> 00:25:28,199
Speaker 2: let's discuss the original allegations against Willis. There are a

454
00:25:28,200 --> 00:25:31,640
Speaker 2: lot of different facets to the motion by Trump's co

455
00:25:31,720 --> 00:25:33,959
Speaker 2: defendant Michael Roman.

456
00:25:34,440 --> 00:25:35,640
Speaker 5: It's not only that she.

457
00:25:35,720 --> 00:25:39,920
Speaker 2: Appointed her romantic partner to lead the investigation. So tell

458
00:25:40,000 --> 00:25:41,960
Speaker 2: us what the allegations are.

459
00:25:42,480 --> 00:25:47,480
Speaker 1: The allegations are that Fannie Willis hired Nathan Wade, who's

460
00:25:47,520 --> 00:25:52,520
Speaker 1: a private attorney in neighboring Cobb County, to oversee her

461
00:25:52,920 --> 00:25:57,280
Speaker 1: investigation which spread over two and a half years, and

462
00:25:57,720 --> 00:26:02,520
Speaker 1: that he was not for qualified for the job when

463
00:26:02,560 --> 00:26:06,159
Speaker 1: she hired him, that he didn't have the relevant experience

464
00:26:06,160 --> 00:26:10,639
Speaker 1: in investigating complex criminal matters, that Fannie Willis did not

465
00:26:10,840 --> 00:26:14,119
Speaker 1: go through the county commissioners in Fulton County as she

466
00:26:14,240 --> 00:26:19,159
Speaker 1: was supposed to do, and that he was wildly overpaid

467
00:26:19,240 --> 00:26:23,280
Speaker 1: for the work that he did, and that he then

468
00:26:24,000 --> 00:26:27,920
Speaker 1: used the money that he earned from the taxpayers to

469
00:26:27,960 --> 00:26:34,000
Speaker 1: carry on an extramarial affair that included trips, cruises and

470
00:26:34,119 --> 00:26:37,320
Speaker 1: plane trips as well. I should say that Fannie Willis

471
00:26:37,359 --> 00:26:40,680
Speaker 1: has not acknowledged that they had an affair. These are

472
00:26:40,680 --> 00:26:47,320
Speaker 1: only allegations, and she has steadfastly said that she won't

473
00:26:47,400 --> 00:26:50,560
Speaker 1: respond to this until she files a court motion on

474
00:26:50,640 --> 00:26:51,600
Speaker 1: February second.

475
00:26:52,560 --> 00:26:56,560
Speaker 2: You spoke to some attorneys in Atlanta about the allegations

476
00:26:56,600 --> 00:27:01,560
Speaker 2: that he's not qualified to be prosecutor in this huge,

477
00:27:01,680 --> 00:27:05,760
Speaker 2: complex case. One said, Megan Graut, He's not the first

478
00:27:05,800 --> 00:27:08,119
Speaker 2: person who had come to mind to handle a complex

479
00:27:08,200 --> 00:27:11,440
Speaker 2: reco case against the former president of the United States.

480
00:27:12,040 --> 00:27:14,359
Speaker 2: What kind of legal work has he done before? In

481
00:27:14,600 --> 00:27:18,160
Speaker 2: were Atlanta attorney's surprise that he was appointed to this position.

482
00:27:18,840 --> 00:27:22,240
Speaker 1: Nathan Wade had worked for about ten years as a

483
00:27:22,400 --> 00:27:27,600
Speaker 1: part time municipal judge in Marietta, Georgia. He also had

484
00:27:27,640 --> 00:27:31,480
Speaker 1: done a lot of divorce cases himself, and he had

485
00:27:31,600 --> 00:27:35,480
Speaker 1: done sort of small criminal matters, but he had not

486
00:27:35,960 --> 00:27:41,040
Speaker 1: appeared in federal court doing complex white collar cases. And

487
00:27:41,400 --> 00:27:44,439
Speaker 1: the attorneys in the Atlanta area, and there's quite a

488
00:27:44,440 --> 00:27:49,440
Speaker 1: few very talented defense attorneys, didn't really know him well

489
00:27:49,840 --> 00:27:53,920
Speaker 1: and were surprised that Fannie Willis tapped him for such

490
00:27:53,960 --> 00:27:55,920
Speaker 1: a complicated investigation.

491
00:27:56,640 --> 00:27:59,720
Speaker 2: How much was he paid compared to the two other

492
00:28:00,080 --> 00:28:03,800
Speaker 2: prosecutors that she hired prosecutors outside her office.

493
00:28:04,320 --> 00:28:06,879
Speaker 1: Nathan Wade was hired at a rate of two hundred

494
00:28:06,920 --> 00:28:09,560
Speaker 1: and fifty dollars an hour, which is the same rate

495
00:28:09,600 --> 00:28:13,359
Speaker 1: as another private attorney who was hired, Anna Cross. And

496
00:28:13,440 --> 00:28:17,199
Speaker 1: there was a third private attorney who was hired, John Floyd,

497
00:28:17,240 --> 00:28:21,320
Speaker 1: who's an expert on the Georgia Rico law, and he

498
00:28:21,400 --> 00:28:24,800
Speaker 1: received somewhere between one hundred and fifty and two hundred

499
00:28:24,880 --> 00:28:29,119
Speaker 1: dollars an hour. But in the aggregate, Nathan Wade was

500
00:28:29,200 --> 00:28:32,920
Speaker 1: paid more than six hundred and fifty thousand dollars over

501
00:28:32,960 --> 00:28:37,760
Speaker 1: two years, whereas John Floyd was paid somewhere in the

502
00:28:37,800 --> 00:28:41,800
Speaker 1: neighborhood of about seventy thousand dollars, and Anna Cross was

503
00:28:41,920 --> 00:28:46,720
Speaker 1: paid I believe fifty thousand dollars or less. His total

504
00:28:46,760 --> 00:28:51,880
Speaker 1: compensation was a good deal higher than Fannie Willis herself made.

505
00:28:52,200 --> 00:28:55,360
Speaker 1: And you know she earns the most in the office

506
00:28:55,400 --> 00:28:59,960
Speaker 1: by far. The assistant district attorneys in that office earned

507
00:29:00,120 --> 00:29:02,840
Speaker 1: somewhere in the neighborhood of one hundred to one hundred

508
00:29:02,880 --> 00:29:05,080
Speaker 1: and twenty five thousand dollars, I believe.

509
00:29:06,000 --> 00:29:10,320
Speaker 2: And is the complaint about a conflict of interest depriving

510
00:29:10,360 --> 00:29:14,120
Speaker 2: the citizens of honest services? I mean, what exactly is

511
00:29:14,120 --> 00:29:15,360
Speaker 2: the legal claim here.

512
00:29:16,160 --> 00:29:20,560
Speaker 1: Roman's attorney, Ashley Merchant, is alleging that there's a Georgia

513
00:29:20,720 --> 00:29:28,120
Speaker 1: law that requires local county commissioners to approve the hiring

514
00:29:28,320 --> 00:29:32,960
Speaker 1: of outside attorneys, and that Fannie Willis didn't do that

515
00:29:33,280 --> 00:29:36,640
Speaker 1: in this case. She's also alleging that there was an

516
00:29:36,720 --> 00:29:41,800
Speaker 1: undisclosed conflict of interest because they were involved in a

517
00:29:41,880 --> 00:29:45,880
Speaker 1: romantic relationship at the time that he was hired, so

518
00:29:45,960 --> 00:29:51,760
Speaker 1: that his judgment was essentially clouded by that relationship. And

519
00:29:51,800 --> 00:29:56,680
Speaker 1: she's also alleging that there's a possible on a services

520
00:29:56,720 --> 00:30:01,960
Speaker 1: fraud where rather than analyzing just what he makes in

521
00:30:02,000 --> 00:30:07,360
Speaker 1: his income and spends it on he's earning taxpayer money

522
00:30:07,400 --> 00:30:12,320
Speaker 1: and then spending some of that money on her and

523
00:30:12,360 --> 00:30:15,440
Speaker 1: that that could be a fraud. Now, I should say

524
00:30:15,440 --> 00:30:17,760
Speaker 1: that all of this still has to be proven, and

525
00:30:17,840 --> 00:30:21,920
Speaker 1: these are merely allegations. We haven't had fact finding discovery

526
00:30:21,920 --> 00:30:26,520
Speaker 1: on that. I should also say that the Georgia Prosecutor's

527
00:30:26,560 --> 00:30:32,000
Speaker 1: Advisory Council has said that local prosecutors have the discretion

528
00:30:32,200 --> 00:30:36,160
Speaker 1: to hire who they want. So it's not a slam

529
00:30:36,240 --> 00:30:40,160
Speaker 1: dunk case by any means. It's certainly powerful and sensational

530
00:30:40,200 --> 00:30:44,920
Speaker 1: allegations that have captured a lot of attention, and in

531
00:30:44,960 --> 00:30:48,960
Speaker 1: a way it's helping Donald Trump in his allies because

532
00:30:49,040 --> 00:30:53,440
Speaker 1: Fannie Willis is on her backfoot now having to respond

533
00:30:53,520 --> 00:30:59,400
Speaker 1: to allegations of impropriety financial misconduct that have nothing to

534
00:30:59,480 --> 00:31:04,200
Speaker 1: do with the racketeering indictment against Donald Trump and his allies.

535
00:31:04,600 --> 00:31:09,480
Speaker 2: And there have been even more headlines because of Fannie

536
00:31:09,480 --> 00:31:14,600
Speaker 2: Willis's involvement in the divorce between Wade and his wife,

537
00:31:14,960 --> 00:31:17,560
Speaker 2: and she's sort of being dragged into that. Tell us

538
00:31:17,560 --> 00:31:18,000
Speaker 2: about it.

539
00:31:19,280 --> 00:31:25,160
Speaker 1: Joycelyn Wade wants to depose Fannie Willis because she believes

540
00:31:25,160 --> 00:31:30,160
Speaker 1: that Fannie Willis has unique knowledge of whether Nathan Wade,

541
00:31:30,240 --> 00:31:36,160
Speaker 1: her husband, engaged in an adulterous relationship. Under Georgia divorce law,

542
00:31:36,840 --> 00:31:41,880
Speaker 1: that's relevant because it could go to the amount and

543
00:31:41,920 --> 00:31:45,920
Speaker 1: the nature of the financial settlement. In this case, they

544
00:31:45,960 --> 00:31:50,400
Speaker 1: have grown children, so the question is not about childcare

545
00:31:50,480 --> 00:31:56,160
Speaker 1: or visitation or custody. It's more of financial matter. On Monday,

546
00:31:56,760 --> 00:32:00,680
Speaker 1: the judge in Cobb County had a hearing on Fannie

547
00:32:00,680 --> 00:32:05,320
Speaker 1: Willis's motion to quash her subpoena, and basically the question

548
00:32:05,600 --> 00:32:09,760
Speaker 1: was whether her subpoena was relevant to the divorce proceeding.

549
00:32:10,280 --> 00:32:14,240
Speaker 1: On January eighteenth, she filed an emergency motion to block

550
00:32:14,320 --> 00:32:17,640
Speaker 1: that subpoena because she said it wasn't relevant to the

551
00:32:17,760 --> 00:32:23,360
Speaker 1: question of a marriage that had been irreconcilably broken, that

552
00:32:23,400 --> 00:32:27,040
Speaker 1: it didn't matter whatever she had to say. And then

553
00:32:27,360 --> 00:32:30,920
Speaker 1: she also proceeded to say in that filing that Joycelyn

554
00:32:31,000 --> 00:32:36,120
Speaker 1: Wade had had an affair herself in twenty seventeen which

555
00:32:36,200 --> 00:32:40,920
Speaker 1: led to the breaking of this marriage. On January nineteenth,

556
00:32:41,400 --> 00:32:46,440
Speaker 1: Joycelyn Wade's lawyer responded to say that in fact, Fawnie

557
00:32:46,480 --> 00:32:50,000
Speaker 1: Willis did have unique knowledge about the details of this

558
00:32:50,160 --> 00:32:54,600
Speaker 1: marriage that she should testify to, including intimate details about

559
00:32:54,600 --> 00:32:58,440
Speaker 1: the nature of the relationship between Joycelyn Wade and Nathan Wade,

560
00:32:58,440 --> 00:33:02,480
Speaker 1: her husband. So she also adamantly denied that she had

561
00:33:02,520 --> 00:33:07,520
Speaker 1: an affair in twenty seventeen, and she said that Fawnie

562
00:33:07,520 --> 00:33:10,960
Speaker 1: Willis should give a deposition in the case. And the

563
00:33:11,040 --> 00:33:15,080
Speaker 1: judge decided that he would defer a decision on whether

564
00:33:15,240 --> 00:33:20,000
Speaker 1: Fanni Willis's deposition was necessary to resolve the divorce case.

565
00:33:20,120 --> 00:33:24,360
Speaker 1: He said that what mattered here was the size of

566
00:33:24,400 --> 00:33:28,520
Speaker 1: the marital estate, how much Nathan Wade should pay, and

567
00:33:28,680 --> 00:33:32,760
Speaker 1: whether there should be any alimony and attorney fees, and

568
00:33:32,880 --> 00:33:35,880
Speaker 1: that first Nathan Wade should give a deposition in the

569
00:33:35,960 --> 00:33:39,200
Speaker 1: case because he has unique knowledge about how much money

570
00:33:39,240 --> 00:33:42,040
Speaker 1: he made, how he spent it, and whether he had

571
00:33:42,080 --> 00:33:43,560
Speaker 1: an affair with Fannie Willis.

572
00:33:44,240 --> 00:33:47,959
Speaker 2: So the judge released dozens of documents in the divorce case,

573
00:33:48,720 --> 00:33:52,280
Speaker 2: unseal them after a hearing today. But you'd actually seen

574
00:33:52,320 --> 00:33:53,920
Speaker 2: some of these documents before.

575
00:33:54,720 --> 00:33:58,479
Speaker 1: Those papers, which Bloomberg has gotten access to, show that

576
00:33:59,400 --> 00:34:02,440
Speaker 1: Nathan Wade and his wife, Joycelyn have had a very

577
00:34:02,600 --> 00:34:06,560
Speaker 1: contentious time in divorce court in the last two years,

578
00:34:07,160 --> 00:34:10,840
Speaker 1: and that Nathan Wade was cited for contempt by the

579
00:34:10,960 --> 00:34:14,200
Speaker 1: judge in the same week that Donald Trump was indicted

580
00:34:14,239 --> 00:34:19,560
Speaker 1: by the way, and the contempt citation was because Nathan

581
00:34:19,600 --> 00:34:23,480
Speaker 1: Wade was not being forthcoming with financial information that his

582
00:34:23,600 --> 00:34:26,759
Speaker 1: wife sought as they are trying to reach a financial

583
00:34:26,840 --> 00:34:31,440
Speaker 1: settlement to end their marriage. The papers also show that

584
00:34:31,560 --> 00:34:36,400
Speaker 1: Joycelyne Wade claims that she was in great need of

585
00:34:36,440 --> 00:34:41,600
Speaker 1: money even as he was traveling widely, and as she

586
00:34:41,800 --> 00:34:44,880
Speaker 1: claims having an affair with Fannie Willis.

587
00:34:44,800 --> 00:34:48,800
Speaker 2: And David Though Willis has not specifically affirmed or denied

588
00:34:48,840 --> 00:34:52,640
Speaker 2: the relationship, she did address it in comments at a

589
00:34:52,760 --> 00:34:53,480
Speaker 2: church service.

590
00:34:53,880 --> 00:34:56,960
Speaker 1: Fannie Willis appeared at a Black church in Atlanta and

591
00:34:57,000 --> 00:35:00,920
Speaker 1: gave a special sermon on Martin Luther King Day, and

592
00:35:01,520 --> 00:35:06,279
Speaker 1: she said that Nathan Wade, without mentioning him by name,

593
00:35:06,520 --> 00:35:10,359
Speaker 1: is a superstar prosecutor, and she also praised the other

594
00:35:10,440 --> 00:35:15,120
Speaker 1: two special prosecutors that she's hired. She did not address

595
00:35:15,200 --> 00:35:18,680
Speaker 1: the allegations that they had engaged in an affair, but

596
00:35:18,760 --> 00:35:21,400
Speaker 1: she also said that she was a flawed human being

597
00:35:21,640 --> 00:35:24,239
Speaker 1: and that she had made mistakes She said that her

598
00:35:24,280 --> 00:35:28,680
Speaker 1: critics are playing the race card and that they are

599
00:35:28,960 --> 00:35:33,279
Speaker 1: singling out Nathan Wade for criticism because he's the only

600
00:35:33,400 --> 00:35:36,840
Speaker 1: black special prosecutor that she's hired. I should say that

601
00:35:36,880 --> 00:35:39,920
Speaker 1: Fannie Willis has come under a lot of criticism for

602
00:35:40,000 --> 00:35:45,520
Speaker 1: those comments, and her critics say that questions about her

603
00:35:45,600 --> 00:35:50,000
Speaker 1: relationship with Nathan Wade and the money the county taxpayers

604
00:35:50,040 --> 00:35:53,799
Speaker 1: have spent to pay for his work have nothing to.

605
00:35:53,760 --> 00:35:58,000
Speaker 2: Do with race, and the prosecutors on this case actually

606
00:35:58,080 --> 00:36:00,600
Speaker 2: seemed to have scored several points.

607
00:36:01,080 --> 00:36:05,600
Speaker 1: Fannie Willis's office has secured four guilty please of the

608
00:36:05,680 --> 00:36:11,680
Speaker 1: nineteen defendants, and they've developed a very comprehensive, far reaching

609
00:36:11,719 --> 00:36:17,279
Speaker 1: indictment that if Trump were re elected, he would not

610
00:36:17,360 --> 00:36:21,720
Speaker 1: be able to pardon those defendants or pardon himself because

611
00:36:21,760 --> 00:36:25,960
Speaker 1: it's state charges brought under Georgia election law and other

612
00:36:26,040 --> 00:36:27,240
Speaker 1: Georgia criminal laws.

613
00:36:27,440 --> 00:36:30,160
Speaker 2: It's a long way to go. Thanks so much, David.

614
00:36:30,360 --> 00:36:33,880
Speaker 2: That's Bloomberg Legal reporter David Voriakis, and that's it for

615
00:36:33,920 --> 00:36:35,920
Speaker 2: this edition of the Bloomberg Law Podcast.

616
00:36:36,239 --> 00:36:38,440
Speaker 5: Remember you've can always get the latest legal.

617
00:36:38,200 --> 00:36:41,879
Speaker 2: News by subscribing and listening to the show on Apple podcasts,

618
00:36:41,880 --> 00:36:46,120
Speaker 2: Spotify and at Bloomberg dot Com Slash podcast, slash Law.

619
00:36:46,440 --> 00:36:49,160
Speaker 5: I'm June Grosso and this is Bloomberg