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

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Speaker 2: Several protests in New York City over the arrest by

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Speaker 2: ICE agents of Mahmoud Khalil, a former Columbia grad student

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Speaker 2: who was the lead negotiator and spokesman during protests against

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Speaker 2: Israel on campus last spring.

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Speaker 3: This is a.

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Speaker 1: Movement, an anti war movement.

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Speaker 3: We have sparked similar Gazza solidarity encampments across the nation

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Speaker 3: and even across the globe.

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Speaker 2: Secretary of State Marco Rubio revoked Khalil's green card under

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Speaker 2: a rarely used provision of the immigration law that allows

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Speaker 2: for revocation when a foreigner's presence is detrimental to US

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Speaker 2: foreign policy.

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Speaker 4: This is not about free speech. This is about people

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Speaker 4: that don't have a right to be in the United States.

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Speaker 4: To begin with, No one has a right to a student.

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Speaker 1: No one has a right to a green card.

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Speaker 2: By the way, New York federal Judge Jesse Furman has

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Speaker 2: blocked Khalil's deportation while he considers the case. Joining me

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Speaker 2: is immigration law expert Leon Fresco, a partner at Holland

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Speaker 2: and Knight. He was the head of the Office of

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Speaker 2: Immigration litigation in the Obama administration. Leon tell us about

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Speaker 2: the provision of the immigration law that the Trump administration

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Speaker 2: is using to try to deport Khalil.

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Speaker 1: So, there is a statute, which is Title eight USC.

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Speaker 1: Twelve twenty seven, which lays out an entire list. It's

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Speaker 1: basically a menu of choices that the government can use

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Speaker 1: to say why they're deporting someone. And so if you

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Speaker 1: meet any of those grounds, you could be deported based

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Speaker 1: on one of those grounds. And so the ground that

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Speaker 1: the government has chosen is the one called foreign policies.

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Speaker 1: The exact word, say, an alien whose presence or activities

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Speaker 1: in the United States the Secretary of State has reasonable

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Speaker 1: ground to believe would have potentially serious adverse foreign policy

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Speaker 1: consequences for the United States is deportable. So what Secretary

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Speaker 1: Rubio is saying is that he has the sole, unreviewable

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Speaker 1: discretion to decide that any person who is not a

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Speaker 1: citizen of the United States can be deported if he

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Speaker 1: believes that their presence in the United States would have

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Speaker 1: potentially serious adverse foreign policy consequences, and he has decided

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Speaker 1: that this Mahmoud Khalil beats that criteria because of the

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Speaker 1: conduct that he committed in the university.

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Speaker 2: So is it true that it's solely up to the

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Speaker 2: Secretary of State that there's no court review.

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Speaker 1: Well, so this is where there's a debate right now.

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Speaker 1: There's a famous case that actually the sister who's now deceased,

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Speaker 1: the sister of President Trump, Mary and Trump Berry, when

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Speaker 1: she was a district court judge in nineteen ninety six,

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Speaker 1: said that that statute was not constitutional because it was

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Speaker 1: too vague, because it did not allow for an opportunity

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Speaker 1: for the non citizen to actually be heard and be

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Speaker 1: able to make any discussion about this. But then the

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Speaker 1: Third Circuit, which at that time had Judge Alito who's

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Speaker 1: now Justice Alito on it, actually vacated the judgment because

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Speaker 1: they had to go through the ordinary immigration process, meaning

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Speaker 1: a federal judge couldn't hijack that process, which is one

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Speaker 1: of the issues that Judge Furman is going to have

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Speaker 1: to deal with. This Can he hijack this and make

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Speaker 1: this analysis now or does it have to go through

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Speaker 1: the whole immigration process first, and then you can make

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Speaker 1: the challenge at the end if you still been't ordered deported.

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Speaker 1: So the point is we don't know yet if this

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Speaker 1: law will be ruled unconstitutional or not. The problem is

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Speaker 1: there was a similar law in the nineteen sixty two

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Speaker 1: case of Heiresiatis versus Sean, which talks about this concept

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Speaker 1: of you could deport lawful permanent residents aka Green card

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Speaker 1: holders if they were not just communists, they could have

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Speaker 1: been past communists, meaning if at any time in their

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Speaker 1: life they had ever espoused communism, you could deport them.

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Speaker 1: Even if they had ten US citizen children and a

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Speaker 1: US citizen spouse, et cetera. Didn't matter. And the Court

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Speaker 1: in Heresiata said, yep, if Congress makes a ground of

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Speaker 1: deportation and it's in a statue and it's law, we're

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Speaker 1: not going to declare that unconstitutional. You change it if

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Speaker 1: you don't like it, makes the Congress change the law.

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Speaker 1: And so the question will be whether this Supreme Court

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Speaker 1: in twenty twenty five, seventy five years later, thinks that

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Speaker 1: that's true, that there's no constraints around this ground of deportations.

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Speaker 2: Before you get anywhere near the constitutional question, there's an

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Speaker 2: issue of jurisdiction that New York Judge Jesse furmanh has

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Speaker 2: to decide in this habeas corpus petition that Khalil's lawyers

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Speaker 2: have filed habeas, basically being a request that the judge

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Speaker 2: require the government to bring a person in custody before

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Speaker 2: the court. Because right now Khalil is being held in Louisiana,

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Speaker 2: more than one thousand miles away from where he was arrested.

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Speaker 1: Obviously, there's going to be a larger discussion about whether

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Speaker 1: a habeas is even the appropriate mechanism for challenging these

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Speaker 1: kinds of decisions. But first we have to figure out

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Speaker 1: what's the right court to even make any of those

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Speaker 1: decisions in that's what we're fighting about now. And so

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Speaker 1: the question is would New York ever be the right

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Speaker 1: forum given that the detention facility for the people who

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Speaker 1: are detained in New York for immigration purposes is in

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Speaker 1: New Jersey. Number one, and then also number two that

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Speaker 1: at the moment that the person filed the habeas, which

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Speaker 1: was at four in the morning or whenever they filed it,

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Speaker 1: they were already detained in New Jersey. So the human

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Speaker 1: body had actually left New York and was detained in

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Speaker 1: New Jersey. Then after that the person is transferred to Louisiana.

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Speaker 1: And so the government is saying, well, since they're in Louisiana.

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Speaker 1: That's now where the habeas has to be filed. And

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Speaker 1: so now what the court has to debate is whether

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Speaker 1: that transfer to Louisiana was done for nefarious purposes to

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Speaker 1: evade jurisdiction in New York or New Jersey, or whether

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Speaker 1: it was done for a legitimate reason like that there

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Speaker 1: was no detention space in New Jersey. And so the

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Speaker 1: court is going to have I think a tough time

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Speaker 1: saying that the case should be in the Southern District

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Speaker 1: of New York because mister Macmoud Khalil was not in

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Speaker 1: New York when the habeas was filed, and there was

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Speaker 1: nothing irregular about having him in New Jersey because that's

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Speaker 1: where the immigration detention facility is for New York City.

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Speaker 1: So I do think it's possible that he will at

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Speaker 1: least be reassigned to New Jersey.

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Speaker 2: You mentioned the issue of whether the transfer was done

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Speaker 2: for nefarious purposes. Khalil's lawyers called shipping him to Louisiana

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Speaker 2: a shell game by ice designed to take him out

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Speaker 2: of the New York Court's jurisdiction and isolate him far

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Speaker 2: from his lawyers and his family. I'll just mention that

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Speaker 2: Louisiana is in the Fifth Circuit, which is the most

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Speaker 2: conservative circuit court in the country.

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Speaker 1: Certainly, there are some strong arguments that they're making that

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Speaker 1: the court is going to have to grapple with with

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Speaker 1: regard to whether the transfer to Louisiana serve some purpose

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Speaker 1: other than evasion of jurisdiction. And that is in a

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Speaker 1: twenty ten opinion in the Supreme Court about Guantanamo and

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Speaker 1: about transfers and habeas jurisdiction. So there is pretty good

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Speaker 1: case law that discusses what courts are supposed to look

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Speaker 1: at with regard to these transfers. There's a difference certainly

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Speaker 1: between Louisiana and New Jersey with regards to access to

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Speaker 1: the detayee and closest to the family, and even the

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Speaker 1: Third Circuit versus the Fifth Circuit. So those things all matter.

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Speaker 1: But the point is it may not end up mattering

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Speaker 1: with regard to this particular judge in New York City

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Speaker 1: because it seems difficult to figure out how he has

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Speaker 1: jurisdiction in New York City when the habeas was filed

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Speaker 1: when the person was in New Jersey.

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Speaker 2: The Trump administration has said that Khalil is a threat

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Speaker 2: to national security. His lawyers say, he's just a protest

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Speaker 2: exercising his free speech rights. When does that issue get litigated.

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Speaker 1: Here's what's interesting about this. Once you take this ground

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Speaker 1: of deportability, which simply asks the question as to whether

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Speaker 1: the Secretary of State has reasonable grounds to believe that

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Speaker 1: this human being's presence in the United States can cause

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Speaker 1: serious adverse foreign policy consequences. Once that's the issue, what

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Speaker 1: the human being did is irrelevant in that sense, that

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Speaker 1: is not part of the determination. The determination if there

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Speaker 1: is going to be quote unquote a trial, which is

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Speaker 1: going to need to be a decision, by the way,

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Speaker 1: is there even a trial. The trial will just be

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Speaker 1: about whether the Secretary of State has reasonable ground to

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Speaker 1: believe that this would have foreign policy consequences. So you

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Speaker 1: would be an interesting thought experiment. Why couldn't Secretary Rubio

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Speaker 1: just get picked any country in the world, just pick

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Speaker 1: one and have them issue an affi. David say, yeah,

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Speaker 1: we would be very upset if the US kept this

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Speaker 1: person into the United States, and in that scenario, you've

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Speaker 1: met your burden significant adverse foreign policy consequences. If this

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Speaker 1: person remains in the United States, the court will have

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Speaker 1: to decide whether that's a constitutional statute, but it certainly

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Speaker 1: would have meant the factual threshold, which has nothing to

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Speaker 1: do with terrorism. In the end, the threshold in this

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Speaker 1: statute is just whether this human being's presence in the

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Speaker 1: United States would cause serious adverse foreign policy consequences for

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Speaker 1: the United State.

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Speaker 2: Faith wouldn't a court be reluctant to substitute its opinion

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Speaker 2: for the Secretary of States in a matter of foreign policy.

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Speaker 1: It seems very likely that that will be true, but

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Speaker 1: we will have to wait and see. And so I

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Speaker 1: think what the student is going to say is, Look,

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Speaker 1: the Secretary of State doesn't have any reasonable ground to

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Speaker 1: believe that my individual presence, as just one person is

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Speaker 1: going to affect US foreign policy? Why would they think that?

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Speaker 1: So that's going to be their argument, and maybe a

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Speaker 1: court is receptive to that argument.

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Speaker 2: So Rubio said, this is not about free speech? Is

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Speaker 2: he right?

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Speaker 1: The question is does the First Amendment provide a defense

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Speaker 1: to this deportation ground? So this is where the heresiatis

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Speaker 1: versus Shaughnessy case says that the First Amendment basically doesn't

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Speaker 1: apply to any deportation ground. At the end of the day,

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Speaker 1: it's not a defense to any of them, because these

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Speaker 1: issues involving non citizens are given such deference that when

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Speaker 1: the Congress actually passes the law and the President signs it,

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Speaker 1: the courts aren't going to overturn a ground of deportation.

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Speaker 1: They're just going to allow it to remain. But is

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Speaker 1: that even relevant to this ground of deportation? Because maybe

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Speaker 1: Rubio's doing it to placate that other countries so that

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Speaker 1: there aren't serious adverse foreign policy consequences, then why isn't

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Speaker 1: he within his grounds to do that? And so you

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Speaker 1: do that? Plus the jurisdictional issues, whether it's avieas and

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Speaker 1: whether it's challengeable at the beginning or whether you have

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Speaker 1: to wait till the end. Those are the players. That's

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Speaker 1: the real complication here.

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Speaker 2: So many complications in this case. Thanks so much for

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Speaker 2: explaining them to us. Leon. That's Leon Fresco of Holland

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Speaker 2: and Knight. Coming up next, the Supreme Court is taking

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Speaker 2: up a case involving a ban on conversion therapy, and

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Speaker 2: that's causing some concern. I'm June Grosso. When you're listening

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Speaker 2: to Bloomberg, your parents.

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Speaker 1: Sends you up for a program to fix you. Welcome

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Speaker 1: to the refuge. Program.

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Speaker 5: You cannot be born a home sexual This is a lie.

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Speaker 4: It's a choice.

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Speaker 1: Come fake it till you make it. A come to man.

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Speaker 6: You are not save yourself, Jared.

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Speaker 1: God will not love you the way that you are.

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Speaker 4: Is this what you love?

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Speaker 6: Who's going to strike this demon down?

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Speaker 2: The movie boy Erased is about the gay son of

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Speaker 2: ultra religious parents who sent a conversion therapy to change

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Speaker 2: his sexual identity. It's based on the memoir by Garret

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Speaker 2: Conley chronicling the abuses of that therapy. About half the

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Speaker 2: states now bar conversion therapy for minors, and all major

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Speaker 2: medical and mental health organizations have condemned the therapy as

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Speaker 2: unscientific and potentially dangerous for young people, increasing the risk

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Speaker 2: of depression, substance abuse, and suicide. And now the Supreme

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Speaker 2: Court has decided to take up a First Amendment check

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Speaker 2: challenge to Colorado's ban on conversion therapy from minors. A

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Speaker 2: licensed counselor who says she views her work as an

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Speaker 2: outgrowth of her Christian faith, claims the ban violates her

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Speaker 2: free speech rights. My guest is First Amendment law expert

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Speaker 2: Caroline Mallet Corbin, a professor at the University of Miami,

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Speaker 2: law school Caroline tell us about this case.

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Speaker 3: The Supreme Court has granted THR meaning it will hear

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Speaker 3: a case involving a law that bans what is known

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Speaker 3: as conversion therapy. It's more official designation is sexual orientation

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Speaker 3: change efforts, and this is basically an attempt to make

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Speaker 3: gay kids straight, that's their historical origins. More specifically, the

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Speaker 3: law says that licensed counselors cannot practice conversion therapy on minors.

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Speaker 3: So if you want to undergo this so called counseling

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Speaker 3: as an adult, you are allowed to, but licensed practitioners

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Speaker 3: of mental health cannot practice conversion therapy on minors. I

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Speaker 3: also note that there is an exemption for therapists engaged

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Speaker 3: in the practice of religious ministry. So the reason why

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Speaker 3: the law has banned conversion therapy is that it is unscientific, harmful,

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Speaker 3: and futile. So all the reputable medical associations have come

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Speaker 3: out against it for two reasons. One, you can't change

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Speaker 3: someone's sexual orientation, and second, studies show that it actually

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Speaker 3: hurts kids. So, for example, one study found that even

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Speaker 3: holding constant other valuables, the children who have been subjected

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Speaker 3: to this therapy or twice as likely to think about

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Speaker 3: suicide and at least twice as likely to try suicide.

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Speaker 3: So states who have a long history of regulating the

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Speaker 3: medical profession and ensuring that practices conform with standard care

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Speaker 3: decided this is not a practice we should allow in

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Speaker 3: our states, and Colorado is one of about twenty states

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Speaker 3: that therefore have forbidden this practice four licensed medical professions

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Speaker 3: as applied to kids children under eighteen.

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Speaker 2: So what does the counselor's speech claim turn on?

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Speaker 3: The legal question turns on whether you think of counseling

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Speaker 3: as conduct the practice of medicine, or you think of

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Speaker 3: counseling as pure speech. And this matters because the government

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Speaker 3: has a lot more viewway to regulate the practice of medicine,

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Speaker 3: even if it incidentally affects speech, then it does regulating speech. Generally,

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Speaker 3: the presumption is that if the government is regulating speech

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Speaker 3: because of its content or viewpoint, if it's trying to

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Speaker 3: tell people what they are allowed or not allowed to say,

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Speaker 3: that kind of content regulation is presumptively unconstitutional. Generally, we

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Speaker 3: don't want the government deciding what we're allowed to say

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Speaker 3: or what we're allowed to hear. So if this is

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Speaker 3: considered a regulation of speech, then it is problematic under

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Speaker 3: the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional.

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Speaker 3: On the other hand, if it is viewed as the

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Speaker 3: regulation of medical practice the regulation of conduct, then the

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Speaker 3: state is going to have a much easier time showing

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Speaker 3: this is just ensuring that people who are licensed by

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Speaker 3: the state are meeting standards of care in the medical practice.

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Speaker 3: And this is something the states have always done regulate

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Speaker 3: what doctors can and can't do, and including folding into

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Speaker 3: that what they can and can't say as part of

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Speaker 3: their practice of medicine.

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Speaker 2: The tense Circuit Court of Appeals, in a divided opinion

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Speaker 2: sided with Colorado, explain what their reasoning was.

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Speaker 3: Okay, here's the thing. This is not the first time

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Speaker 3: court has ever encountered the question of how should we

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Speaker 3: think about regulation of medicine even if it involves speech.

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Speaker 3: And the backdrop to this case is the Supreme Court's

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Speaker 3: ruling about abortion counseling. So this case is about mental

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Speaker 3: health counseling. There is precedence on abortion counseling. By abortion counseling,

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Speaker 3: I mean the laws in many states that require doctors

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Speaker 3: before they provide an abortion to a woman requires the

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Speaker 3: doctors to read, often a state dictated script about the

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Speaker 3: dangers and perils of abortion and about the alternatives to abortion.

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Speaker 3: So just about every state requires that abortion providers say

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Speaker 3: this script or provide this information to women before they

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Speaker 3: are allowed to have an abortion. And doctors challenge those

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Speaker 3: regulations as violating their free speech. They said, you are

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Speaker 3: compelling us to say things that aren't necessarily accurate and

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Speaker 3: certainly not what we would normally say under our normal

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Speaker 3: practice of medicine. And the Supreme Court upheld the abortion

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Speaker 3: counseling on the grounds that it was not a direct

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Speaker 3: regulation of speech, but a regulation of the medical profession

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Speaker 3: that happened to affect speech. So basically, the precedent that

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Speaker 3: the Tenth Circuit relied on was precedent the Supreme Court

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Speaker 3: had created when ruling about abortion counseling. And so the

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Speaker 3: Tenth Circuit to just said, listen, if the state telling

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Speaker 3: the doctors what they must say to women before they

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Speaker 3: have an abortion, if abortion counseling is merely the regulation

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Speaker 3: of the medical profession, then surely the regulation of a

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Speaker 3: kind of therapy in mental health counseling is also the

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Speaker 3: regulation of medicine that incidentally affects speech. That was the

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Speaker 3: argument that the Tenth Circuit made to support their claim

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Speaker 3: that this is not a direct attack on speech, it's

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Speaker 3: a regulation of medicine.

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Speaker 2: In twenty twenty three, the Court with you used to

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Speaker 2: take a challenge to a similar ban in Washington State.

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Speaker 2: That was over the dessense of three justices, Conservatives Clarence Thomas,

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Speaker 2: Samuel Alito, and Brett Cavanaugh. So that means that they've

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Speaker 2: gotten at least one other justice on their side, because

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Speaker 2: they need four votes to take a case.

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Speaker 3: Exactly right. So generally one of the major reasons that

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Speaker 3: the Supreme Court will decide to hear a case is

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Speaker 3: if there's a circuit split, and there is a circuit

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Speaker 3: split on this issue. So the Eleventh Circuit has held

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Speaker 3: that these bands violate free speech clause, and the Ninth

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Speaker 3: and tenth have held no, they are perfectly constitutional. And

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Speaker 3: there was a split even a couple of years ago.

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Speaker 3: But as you explain, the Supreme Court doesn't hear every

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Speaker 3: appeal that goes before it. They only hear an appeal

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Speaker 3: that at least four justices want to hear, And in

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Speaker 3: twenty twenty three they were not four, but this year

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Speaker 3: there are four, so that's enough to hear the case.

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Speaker 3: We don't know who the fourth is because they don't

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Speaker 3: announce who they are. I mean, we can guess that

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Speaker 3: the dissenters are three of them, but we don't know

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Speaker 3: who the fourth is. Now.

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Speaker 2: I can't give one hundred percent guarantee on this, but

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Speaker 2: it's most likely that the fourth vote is one of

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Speaker 2: the other Conservative justices. Does the fact that it's the

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Speaker 2: Conservatives that want to take this case up tell you

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Speaker 2: that they're looking to reverse the Tenth Circuit, in other words,

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Speaker 2: strike down the ban on conversion therapy.

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Speaker 3: Personally, I am always nervous when the Supreme Court grants

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Speaker 3: circ in a case involving a Conservative Christian who wants

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Speaker 3: to inflict some kind of harm on a vulnerable community

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Speaker 3: like the LGBT community, because I think the Supreme Court

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Speaker 3: is exceptionally receptive to the claims of conservative Christians, and

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Speaker 3: I think they real they don't show much care about

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Speaker 3: the consequences of the religious practices of conservative Christians and

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Speaker 3: how they harm those in the LGBT community. So I'm worried.

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Speaker 3: On the other hand, at this point, we know there

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Speaker 3: are four votes but we don't yet know if there

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Speaker 3: are five votes though that is not all that reassuring,

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Speaker 3: but at least it's not a completely foregone conclusion.

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Speaker 2: Caroline, the licensed counselor, is being represented by the Alliance

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Speaker 2: Defending Freedom, which is a conservative Christian law firm and

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Speaker 2: advocacy group that has one case is at the Supreme

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Speaker 2: Court before in Colorado involving the baker who didn't want

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Speaker 2: to bake cakes for gay weddings and the web designer

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Speaker 2: who didn't want to design websites for gay couples, even

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Speaker 2: though no one had actually asked her to design a

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Speaker 2: website for a gay couple.

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Speaker 3: Yeah, the group that's bringing this is a group that

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Speaker 3: regularly brings challenges to anti discrimination laws on behalf of

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Speaker 3: conservative Christians, and this is yet another one, and they've

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Speaker 3: had incredible success before the Supreme Court. They were also

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Speaker 3: the group that challenged California's attempt to require crisis pregnancy centers,

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Speaker 3: which often pretend to be comprehensive medical centers when they're not.

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Speaker 3: They're just anti abortion places that try and lure women

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Speaker 3: into their doors to try and prevent them from having

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Speaker 3: an abortion. Anyhow, California tried to deal with this practice

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Speaker 3: by requiring crisis pregnancy centers to let people know that

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Speaker 3: they were not, in fact a licensed medical provider, even

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Speaker 3: though they often pretended to be one, and the Supreme

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Speaker 3: Court held that violated the crisis pregnancy center's pre speech

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Speaker 3: rights as well. So there is definitely a pattern of

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Speaker 3: cases brought claiming free speech violations of regulations that are

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Speaker 3: designed to protect from harm and to protect from discrimination,

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Speaker 3: and these are getting struck down in the name of

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Speaker 3: pre speech.

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Speaker 2: The oral argument should be interesting, but we won't hear

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Speaker 2: them until the Supreme Court's next term, which starts in October.

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Speaker 2: Thanks Caroline. That's Professor Caroline Malik Corbin of the University

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Speaker 2: of Miami Law School. Coming up next on the Bloomberg

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Speaker 2: Law Show. It looks like New York City Mayor Eric

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Speaker 2: Adams is going to score a get out of jail

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Speaker 2: free card. I'm June Grosso and you're listening to Bloomberg.

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Speaker 2: New York City Mayor Eric Adams was one of four

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Speaker 2: Democratic mayors of sanctuary cities to testify before the House

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Speaker 2: Oversight Committee last week, but the criminal corruption case against

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Speaker 2: Adams took center stage as the mayor was grilled by

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Speaker 2: several Democratic lawmakers about the allegations that the Justice Department

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Speaker 2: agreed to dismiss the charges against Adams in return for

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Speaker 2: his helping the Trump administration with its efforts to deport immigrants.

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Speaker 2: California Representative Robert Garcia quized Adams.

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Speaker 4: And Mayor Adams. I also want to be very clear,

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Speaker 4: are you selling out New Yorkers to save yourself from prosecution.

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Speaker 6: There's no deal, no quick pro qual and I did

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Speaker 6: nothing wrong, and anything dealing with this case had a

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Speaker 6: deference to Judge Hoe, who's now addressing it. I'm going

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Speaker 6: to refer to his actions.

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Speaker 4: Well, mister Mayor, it appears to me at least that

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Speaker 4: you are selling New Yorkers out. It appears that you

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Speaker 4: are working with Tom Homan, who is clearly clearly focused

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Speaker 4: on family separation and deportations.

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Speaker 2: And now it appears that Adams will almost certainly score

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Speaker 2: a get out of jail free card. Paul Clement, the

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Speaker 2: former US Solicitor General appointed by Judge Dale as a

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Speaker 2: friend of the Court, has recommended the case against Adams

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Speaker 2: be dismissed permanently. Joining me is former federal prosecutor Robert Mintz,

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Speaker 2: a partner maccarter and English Bob explain why Judge Hoe

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Speaker 2: appointed Clement.

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Speaker 5: Judge Dalejo took the very unusual step of appointing Paul Clement,

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Speaker 5: who had been the US Solicitor General during the George W.

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Speaker 5: Bush administration and has argued more than one hundred cases

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Speaker 5: before the Supreme Court, to give him advice with regard

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Speaker 5: to how to handle this dismissal motion, essentially based upon

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Speaker 5: his view that he was getting a one sided argument.

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Speaker 5: In other words, both the defense lawyer and the government

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Speaker 5: in this case were seeking to have the indictment dismissed,

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Speaker 5: and the judge wanted to hear the other side of

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Speaker 5: the argument. That's why he appointed Paul Clement to give

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Speaker 5: him advice as to what issues he should be considering,

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Speaker 5: really what his options were here with regard to this motion.

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Speaker 2: Clement wrote a thirty three page brief. One important point

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Speaker 2: was that the executive branch is the one that chooses

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Speaker 2: when to prosecute and when not to prosecute.

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Speaker 5: You're exactly right that Paul Clement did not really get

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Speaker 5: into the merits of these arguments from both sides. If

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Speaker 5: you recall, the acting Deputy Attorney General had ordered this

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Speaker 5: Southern District to dismiss the case, and there were a

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Speaker 5: series of prosecutors, including the acting US Attorney at the time,

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Speaker 5: who resigned rather than follow that order, saying that the

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Speaker 5: reasons for the dismissal were improper, that it was about

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Speaker 5: politics and not about the merits of the case. But ultimately,

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Speaker 5: mister Clement concluded that the judge here doesn't really have

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Speaker 5: much in the way of options. That essentially, if the

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Speaker 5: executive branch, meaning the prosecution and the Department of Justice,

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Speaker 5: choose to dismiss the case, there's not much the judge

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Speaker 5: can do about it. He pointed out that ultimately, even

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Speaker 5: if the court were to order the case to go forward,

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Speaker 5: could simply run out the clock, in other words, do

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Speaker 5: nothing with the case until there was what's called a

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Speaker 5: speedy trial violation, and then the defense would move to

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Speaker 5: dismiss the case. So short of appointing a special prosecutor,

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Speaker 5: which is rarely done, and it's possible that it's not

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Speaker 5: even constitutional to do it in this circumstance, mister Clement

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Speaker 5: recommended to the judge that there's really nothing for him

440
00:28:22,720 --> 00:28:26,240
Speaker 5: to do here but to grant the dismissal, and that's

441
00:28:26,280 --> 00:28:29,440
Speaker 5: why he didn't get into the back and forth between

442
00:28:29,680 --> 00:28:33,439
Speaker 5: the former Southern District prosecutors and the Department of Justice

443
00:28:33,640 --> 00:28:36,800
Speaker 5: as to the motivations behind this motion to dismiss the

444
00:28:36,840 --> 00:28:38,520
Speaker 5: indictment against Mayor Adam.

445
00:28:39,080 --> 00:28:43,560
Speaker 2: Clement didn't discuss the evidence against Adams, the strength of

446
00:28:43,600 --> 00:28:48,080
Speaker 2: the charges against him, he wrote, private citizens and courts

447
00:28:48,160 --> 00:28:51,560
Speaker 2: can't force a prosecution, no matter how clearly someone has

448
00:28:51,680 --> 00:28:56,280
Speaker 2: violated a federal criminal statute. Of course, the Justice Department

449
00:28:56,360 --> 00:29:00,479
Speaker 2: didn't discuss the evidence when it first ordered the missile.

450
00:29:01,160 --> 00:29:04,840
Speaker 5: If you remember, it was made explicit by the acting

451
00:29:04,960 --> 00:29:09,400
Speaker 5: Deputy US Attorney Emo Beauvat that this directive to dismiss

452
00:29:09,440 --> 00:29:12,880
Speaker 5: the case was not done on the merits. He expressly

453
00:29:12,960 --> 00:29:15,760
Speaker 5: said that he was not looking at either the evidence

454
00:29:16,040 --> 00:29:18,800
Speaker 5: or the legal theory behind the case. Now, in a

455
00:29:18,840 --> 00:29:22,080
Speaker 5: more recent filing by the Department of Justice, they did

456
00:29:22,240 --> 00:29:25,720
Speaker 5: mention the merits of the case. So they have shifted

457
00:29:25,840 --> 00:29:29,080
Speaker 5: slightly to argue in papers they filed before the court

458
00:29:29,440 --> 00:29:34,000
Speaker 5: that the legal arguments underpinning the bribery charges against Mayor Adams,

459
00:29:34,040 --> 00:29:37,520
Speaker 5: they said, was weak. That is something that is within

460
00:29:37,600 --> 00:29:40,640
Speaker 5: the scope of the Department of Justice certainly to consider

461
00:29:40,920 --> 00:29:43,720
Speaker 5: in deciding whether or not to continue to pursue the case,

462
00:29:43,920 --> 00:29:46,920
Speaker 5: but it really wasn't the driving force, and they again

463
00:29:47,320 --> 00:29:52,040
Speaker 5: reiterated the earlier statements that the prosecution of Mayor Adams

464
00:29:52,080 --> 00:29:56,200
Speaker 5: would interfere with his ability to cooperate with this administration

465
00:29:56,520 --> 00:29:59,800
Speaker 5: moved to crack down on illegal immigration, and that really,

466
00:30:00,040 --> 00:30:02,760
Speaker 5: as the basis to see, could dismiss the indictment at

467
00:30:02,760 --> 00:30:04,720
Speaker 5: this time. There is I.

468
00:30:04,760 --> 00:30:09,080
Speaker 2: Believe, just one line in the thirty three pages where

469
00:30:09,120 --> 00:30:13,320
Speaker 2: Clement says there's evidence that suggests the decision to dismiss

470
00:30:13,320 --> 00:30:17,680
Speaker 2: the indictment was undertaken in bad faith. So that's one

471
00:30:17,720 --> 00:30:22,720
Speaker 2: line dropped there, referring to, you know, Emil Beauvey's order

472
00:30:22,760 --> 00:30:26,640
Speaker 2: to dismiss the indictment being in bad faith. Where does

473
00:30:26,680 --> 00:30:27,560
Speaker 2: the judge weigh that?

474
00:30:28,200 --> 00:30:32,320
Speaker 5: Mister Clement did make mention that the evidence quoting here

475
00:30:32,440 --> 00:30:35,520
Speaker 5: suggests the decision to dismiss the indictment was undertaken in

476
00:30:35,560 --> 00:30:39,200
Speaker 5: bad face. The Department of Justice has made the argument

477
00:30:39,320 --> 00:30:43,840
Speaker 5: that the prosecution was politically motivated. Ultimately, Paul Clement decides

478
00:30:44,040 --> 00:30:46,560
Speaker 5: that the judge does not have to weigh in, and

479
00:30:46,600 --> 00:30:50,360
Speaker 5: it's unnecessary for him to determine whether or not the

480
00:30:50,360 --> 00:30:53,800
Speaker 5: case was politically motivated from the start, or whether or

481
00:30:53,840 --> 00:30:58,000
Speaker 5: not this dismissal was motivated by some kind of improper

482
00:30:58,080 --> 00:31:03,360
Speaker 5: political means. Meant said ultimately it was unnecessary for Judge

483
00:31:03,360 --> 00:31:07,000
Speaker 5: Hoe to settle that dispute under either view. He wrote,

484
00:31:07,120 --> 00:31:11,400
Speaker 5: there was little justification for allowing a potential reindictment of

485
00:31:11,400 --> 00:31:14,680
Speaker 5: the mayor, and that's why he recommended to the judge

486
00:31:14,880 --> 00:31:18,000
Speaker 5: that he grant the motion to dismiss. But unlike what

487
00:31:18,120 --> 00:31:21,320
Speaker 5: was requested by the Department of Justice, he said that

488
00:31:21,320 --> 00:31:25,160
Speaker 5: that dismissal should be with prejudice, in other words, to

489
00:31:25,240 --> 00:31:28,160
Speaker 5: be dismissed in a way that the prosecution could never

490
00:31:28,240 --> 00:31:31,240
Speaker 5: bring the case down the road, and that would eliminate

491
00:31:31,480 --> 00:31:34,880
Speaker 5: the potential for critics of this decision to be able

492
00:31:34,920 --> 00:31:37,680
Speaker 5: to argue that the Department of Justice was trying to

493
00:31:37,680 --> 00:31:39,840
Speaker 5: have it both ways, was trying to have the case

494
00:31:39,840 --> 00:31:44,840
Speaker 5: dismissed now but leave the prospect of bringing that indictment

495
00:31:44,960 --> 00:31:47,680
Speaker 5: down the road in order to try to continue to

496
00:31:47,840 --> 00:31:52,360
Speaker 5: influence the mayor to cooperate with the Trump administration's immigration policies.

497
00:31:52,640 --> 00:31:58,200
Speaker 2: Bob Clement wrote that if the charges weren't dismissed with prejudice,

498
00:31:58,680 --> 00:32:01,640
Speaker 2: meaning they couldn't be brought aga again, they would hang

499
00:32:01,800 --> 00:32:06,120
Speaker 2: like the proverbial sort of damocles over Adams. But if

500
00:32:06,120 --> 00:32:09,080
Speaker 2: you have a public official who's been charged with corruption

501
00:32:09,440 --> 00:32:13,120
Speaker 2: and the chargers are being dropped for political reasons, why

502
00:32:13,160 --> 00:32:15,040
Speaker 2: should he be given a free pass.

503
00:32:15,400 --> 00:32:17,960
Speaker 5: I think what mister comment was getting at is that

504
00:32:18,040 --> 00:32:22,120
Speaker 5: one of the reasons that the Southern District Prosecutors objected

505
00:32:22,160 --> 00:32:25,640
Speaker 5: so strenuously to this dismissal is that they argue that

506
00:32:25,720 --> 00:32:29,400
Speaker 5: in meetings with the Defense Council there was discussions that

507
00:32:29,480 --> 00:32:32,440
Speaker 5: amounted to essentially a quid pro quo. In other words,

508
00:32:32,600 --> 00:32:36,600
Speaker 5: there were discussions about the mayor's ability to continue to

509
00:32:36,680 --> 00:32:41,040
Speaker 5: cooperate with the Trump administration in its immigration enforcement policies,

510
00:32:41,240 --> 00:32:44,080
Speaker 5: and whether or not the indictment and the trial that

511
00:32:44,120 --> 00:32:47,000
Speaker 5: would be upcoming would interfere in the ability to do that,

512
00:32:47,200 --> 00:32:50,640
Speaker 5: and in acknowledging that it would that obviously, any criminal

513
00:32:50,680 --> 00:32:53,480
Speaker 5: trial of an elected official is going to take away

514
00:32:53,520 --> 00:32:57,120
Speaker 5: their attention and their time from carrying out their public duties,

515
00:32:57,560 --> 00:33:01,280
Speaker 5: that that was a reason to dismiss them at this time.

516
00:33:01,520 --> 00:33:04,320
Speaker 5: The Southern District prosecutor said that was essentially a quid

517
00:33:04,360 --> 00:33:07,240
Speaker 5: pro quot In agreement on the part of the mayor

518
00:33:07,600 --> 00:33:11,640
Speaker 5: to support the Trump administration in exchange for a dismissal

519
00:33:11,640 --> 00:33:14,480
Speaker 5: of the criminal charges, and the Department of Justice, I

520
00:33:14,520 --> 00:33:17,280
Speaker 5: think was responding to that by saying, we're not asking

521
00:33:17,320 --> 00:33:20,600
Speaker 5: for a dismissal that is permanent. We're not asking to

522
00:33:20,680 --> 00:33:23,360
Speaker 5: bar the prosecution forever. We're just saying it should be

523
00:33:23,400 --> 00:33:27,360
Speaker 5: dismissed at this time until after the election. And that's

524
00:33:27,360 --> 00:33:30,040
Speaker 5: why the Department of Justice was asking for the dismissal

525
00:33:30,600 --> 00:33:34,040
Speaker 5: without prejudice. But mister Clement said that the quid pro

526
00:33:34,240 --> 00:33:38,320
Speaker 5: quot that was hanging over this whole dismissal was something

527
00:33:38,360 --> 00:33:42,440
Speaker 5: that could only be eliminated if the dismissal was with prejudice,

528
00:33:42,640 --> 00:33:45,160
Speaker 5: and that way, the argument that the mayor would be

529
00:33:45,200 --> 00:33:47,880
Speaker 5: taking any actions in order to curry favor with the

530
00:33:47,880 --> 00:33:51,680
Speaker 5: Trump administration would be removed because there would be no

531
00:33:51,760 --> 00:33:54,720
Speaker 5: possibility that the Department of Justice could indict him down

532
00:33:54,720 --> 00:33:57,360
Speaker 5: the road if you failed to cooperate with the Trump

533
00:33:57,440 --> 00:33:59,480
Speaker 5: administration immigration policies.

534
00:33:59,720 --> 00:34:02,080
Speaker 2: Mean talk about a get out of jail free card

535
00:34:02,200 --> 00:34:05,440
Speaker 2: for Adams because he was accused of agreeing to a

536
00:34:05,520 --> 00:34:07,920
Speaker 2: quid pro quote. Now the whole case is going to

537
00:34:07,960 --> 00:34:10,800
Speaker 2: be dropped against him. It doesn't seem like equal justice

538
00:34:10,960 --> 00:34:11,560
Speaker 2: under the law.

539
00:34:11,880 --> 00:34:13,720
Speaker 5: Now. I think a lot of people are very troubled

540
00:34:13,719 --> 00:34:18,000
Speaker 5: by this whole scenario. Ultimately, mister Clement concluded that the

541
00:34:18,120 --> 00:34:22,040
Speaker 5: judge's hands were tied, that he really had no ability

542
00:34:22,400 --> 00:34:26,319
Speaker 5: to fight the dismissal. If the Department of Justice had decided,

543
00:34:26,640 --> 00:34:30,400
Speaker 5: almost for whatever reason, to dismiss the case, the judge

544
00:34:30,480 --> 00:34:33,160
Speaker 5: had no choice but to do that, but to follow

545
00:34:33,200 --> 00:34:36,759
Speaker 5: through and to dismiss the case. And he even advised

546
00:34:36,800 --> 00:34:42,520
Speaker 5: against an extensive judicial investigation into the Department of Justices actions.

547
00:34:42,560 --> 00:34:45,239
Speaker 5: In other words, he didn't even think it was necessary

548
00:34:45,440 --> 00:34:49,200
Speaker 5: for the judge to delve into the motivations behind the

549
00:34:49,200 --> 00:34:52,680
Speaker 5: Department of Justice to seek the dismissal, or likewise, the

550
00:34:52,719 --> 00:34:57,600
Speaker 5: motivation for the former Southern District prosecutors for refusing to

551
00:34:57,680 --> 00:35:01,680
Speaker 5: follow that directive. Mister Clement wrote into his submission to

552
00:35:01,760 --> 00:35:05,600
Speaker 5: the judge, when the publicly available information is sufficient to

553
00:35:05,719 --> 00:35:10,280
Speaker 5: inform judicial decision making, there are sound reasons to avoid

554
00:35:10,520 --> 00:35:15,160
Speaker 5: further inquiries. So he basically concluded that nothing good could

555
00:35:15,160 --> 00:35:18,160
Speaker 5: come of digging into this further, and that the judge

556
00:35:18,400 --> 00:35:21,960
Speaker 5: did not have discretion here to refuse to dismiss the case,

557
00:35:22,280 --> 00:35:25,040
Speaker 5: and there was really no reason to get into this

558
00:35:25,080 --> 00:35:28,760
Speaker 5: dispute between the former Southern District prosecutors and the Department

559
00:35:28,800 --> 00:35:32,399
Speaker 5: of Justice about who was right, who was wrong, who

560
00:35:32,480 --> 00:35:36,320
Speaker 5: was insubordinate, and who was acting properly with an ethical

561
00:35:36,360 --> 00:35:39,600
Speaker 5: guidelines and who was acting based upon political motivation.

562
00:35:40,640 --> 00:35:45,000
Speaker 2: Judge Hoo doesn't have to accept Clement's recommendation, but does

563
00:35:45,040 --> 00:35:46,360
Speaker 2: it seem likely that he will.

564
00:35:46,960 --> 00:35:50,000
Speaker 5: Absolutely. Judge ho is not legally bound to accept mister

565
00:35:50,040 --> 00:35:54,360
Speaker 5: Clement's recommendation, but he did independently seek out his guidance,

566
00:35:54,719 --> 00:35:57,160
Speaker 5: and it seems likely that he's going to follow the

567
00:35:57,239 --> 00:36:00,400
Speaker 5: recommendation of mister Clement, certainly to the extent that he

568
00:36:00,480 --> 00:36:04,520
Speaker 5: ultimately dismisses the case with prejudice. And I think again

569
00:36:04,640 --> 00:36:08,480
Speaker 5: that resolves the question of the Trump administration or the

570
00:36:08,520 --> 00:36:12,360
Speaker 5: Department of Justice using this dismissal as sort of a

571
00:36:12,440 --> 00:36:16,120
Speaker 5: cudgel hanging over the mayor's head to stay to the mayor,

572
00:36:16,160 --> 00:36:19,240
Speaker 5: in so many words, if you don't follow our directive

573
00:36:19,280 --> 00:36:21,880
Speaker 5: and if you don't cooperate with the immigration policies of

574
00:36:21,920 --> 00:36:26,200
Speaker 5: his administration, there's always the possibility that this indictment comes

575
00:36:26,239 --> 00:36:28,799
Speaker 5: back again that it gets reinstated and that you're once

576
00:36:28,800 --> 00:36:32,920
Speaker 5: again facing criminal charges. By dismissing the case with prejudice,

577
00:36:33,200 --> 00:36:35,560
Speaker 5: that threat is essentially eliminated.

578
00:36:35,920 --> 00:36:39,680
Speaker 2: And it seems that Judge Hooe's decision is imminent because

579
00:36:39,680 --> 00:36:43,440
Speaker 2: he canceled a hearing that was scheduled for Friday, saying

580
00:36:43,480 --> 00:36:46,520
Speaker 2: he does not at this time believe that oral argument

581
00:36:46,640 --> 00:36:50,080
Speaker 2: is necessary. So most likely they'll be good news soon

582
00:36:50,239 --> 00:36:53,080
Speaker 2: for the mayor. Always a pleasure, Bob, thanks so much.

583
00:36:53,719 --> 00:36:57,040
Speaker 2: That's Robert Mints of McCarter and English. And that's it

584
00:36:57,120 --> 00:36:59,680
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

585
00:36:59,680 --> 00:37:01,719
Speaker 2: can own always get the latest legal news on our

586
00:37:01,719 --> 00:37:05,920
Speaker 2: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

587
00:37:06,080 --> 00:37:11,120
Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law,

588
00:37:11,520 --> 00:37:14,120
Speaker 2: and remember to tune into The Bloomberg Law Show every

589
00:37:14,160 --> 00:37:18,080
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

590
00:37:18,200 --> 00:37:19,799
Speaker 2: and you're listening to Bloomberg