Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2: Several protests in New York City over the arrest by
Speaker 2: ICE agents of Mahmoud Khalil, a former Columbia grad student
Speaker 2: who was the lead negotiator and spokesman during protests against
Speaker 2: Israel on campus last spring.
Speaker 3: This is a.
Speaker 1: Movement, an anti war movement.
Speaker 3: We have sparked similar Gazza solidarity encampments across the nation
Speaker 3: and even across the globe.
Speaker 2: Secretary of State Marco Rubio revoked Khalil's green card under
Speaker 2: a rarely used provision of the immigration law that allows
Speaker 2: for revocation when a foreigner's presence is detrimental to US
Speaker 2: foreign policy.
Speaker 4: This is not about free speech. This is about people
Speaker 4: that don't have a right to be in the United States.
Speaker 4: To begin with, No one has a right to a student.
Speaker 1: No one has a right to a green card.
Speaker 2: By the way, New York federal Judge Jesse Furman has
Speaker 2: blocked Khalil's deportation while he considers the case. Joining me
Speaker 2: is immigration law expert Leon Fresco, a partner at Holland
Speaker 2: and Knight. He was the head of the Office of
Speaker 2: Immigration litigation in the Obama administration. Leon tell us about
Speaker 2: the provision of the immigration law that the Trump administration
Speaker 2: is using to try to deport Khalil.
Speaker 1: So, there is a statute, which is Title eight USC.
Speaker 1: Twelve twenty seven, which lays out an entire list. It's
Speaker 1: basically a menu of choices that the government can use
Speaker 1: to say why they're deporting someone. And so if you
Speaker 1: meet any of those grounds, you could be deported based
Speaker 1: on one of those grounds. And so the ground that
Speaker 1: the government has chosen is the one called foreign policies.
Speaker 1: The exact word, say, an alien whose presence or activities
Speaker 1: in the United States the Secretary of State has reasonable
Speaker 1: ground to believe would have potentially serious adverse foreign policy
Speaker 1: consequences for the United States is deportable. So what Secretary
Speaker 1: Rubio is saying is that he has the sole, unreviewable
Speaker 1: discretion to decide that any person who is not a
Speaker 1: citizen of the United States can be deported if he
Speaker 1: believes that their presence in the United States would have
Speaker 1: potentially serious adverse foreign policy consequences, and he has decided
Speaker 1: that this Mahmoud Khalil beats that criteria because of the
Speaker 1: conduct that he committed in the university.
Speaker 2: So is it true that it's solely up to the
Speaker 2: Secretary of State that there's no court review.
Speaker 1: Well, so this is where there's a debate right now.
Speaker 1: There's a famous case that actually the sister who's now deceased,
Speaker 1: the sister of President Trump, Mary and Trump Berry, when
Speaker 1: she was a district court judge in nineteen ninety six,
Speaker 1: said that that statute was not constitutional because it was
Speaker 1: too vague, because it did not allow for an opportunity
Speaker 1: for the non citizen to actually be heard and be
Speaker 1: able to make any discussion about this. But then the
Speaker 1: Third Circuit, which at that time had Judge Alito who's
Speaker 1: now Justice Alito on it, actually vacated the judgment because
Speaker 1: they had to go through the ordinary immigration process, meaning
Speaker 1: a federal judge couldn't hijack that process, which is one
Speaker 1: of the issues that Judge Furman is going to have
Speaker 1: to deal with. This Can he hijack this and make
Speaker 1: this analysis now or does it have to go through
Speaker 1: the whole immigration process first, and then you can make
Speaker 1: the challenge at the end if you still been't ordered deported.
Speaker 1: So the point is we don't know yet if this
Speaker 1: law will be ruled unconstitutional or not. The problem is
Speaker 1: there was a similar law in the nineteen sixty two
Speaker 1: case of Heiresiatis versus Sean, which talks about this concept
Speaker 1: of you could deport lawful permanent residents aka Green card
Speaker 1: holders if they were not just communists, they could have
Speaker 1: been past communists, meaning if at any time in their
Speaker 1: life they had ever espoused communism, you could deport them.
Speaker 1: Even if they had ten US citizen children and a
Speaker 1: US citizen spouse, et cetera. Didn't matter. And the Court
Speaker 1: in Heresiata said, yep, if Congress makes a ground of
Speaker 1: deportation and it's in a statue and it's law, we're
Speaker 1: not going to declare that unconstitutional. You change it if
Speaker 1: you don't like it, makes the Congress change the law.
Speaker 1: And so the question will be whether this Supreme Court
Speaker 1: in twenty twenty five, seventy five years later, thinks that
Speaker 1: that's true, that there's no constraints around this ground of deportations.
Speaker 2: Before you get anywhere near the constitutional question, there's an
Speaker 2: issue of jurisdiction that New York Judge Jesse furmanh has
Speaker 2: to decide in this habeas corpus petition that Khalil's lawyers
Speaker 2: have filed habeas, basically being a request that the judge
Speaker 2: require the government to bring a person in custody before
Speaker 2: the court. Because right now Khalil is being held in Louisiana,
Speaker 2: more than one thousand miles away from where he was arrested.
Speaker 1: Obviously, there's going to be a larger discussion about whether
Speaker 1: a habeas is even the appropriate mechanism for challenging these
Speaker 1: kinds of decisions. But first we have to figure out
Speaker 1: what's the right court to even make any of those
Speaker 1: decisions in that's what we're fighting about now. And so
Speaker 1: the question is would New York ever be the right
Speaker 1: forum given that the detention facility for the people who
Speaker 1: are detained in New York for immigration purposes is in
Speaker 1: New Jersey. Number one, and then also number two that
Speaker 1: at the moment that the person filed the habeas, which
Speaker 1: was at four in the morning or whenever they filed it,
Speaker 1: they were already detained in New Jersey. So the human
Speaker 1: body had actually left New York and was detained in
Speaker 1: New Jersey. Then after that the person is transferred to Louisiana.
Speaker 1: And so the government is saying, well, since they're in Louisiana.
Speaker 1: That's now where the habeas has to be filed. And
Speaker 1: so now what the court has to debate is whether
Speaker 1: that transfer to Louisiana was done for nefarious purposes to
Speaker 1: evade jurisdiction in New York or New Jersey, or whether
Speaker 1: it was done for a legitimate reason like that there
Speaker 1: was no detention space in New Jersey. And so the
Speaker 1: court is going to have I think a tough time
Speaker 1: saying that the case should be in the Southern District
Speaker 1: of New York because mister Macmoud Khalil was not in
Speaker 1: New York when the habeas was filed, and there was
Speaker 1: nothing irregular about having him in New Jersey because that's
Speaker 1: where the immigration detention facility is for New York City.
Speaker 1: So I do think it's possible that he will at
Speaker 1: least be reassigned to New Jersey.
Speaker 2: You mentioned the issue of whether the transfer was done
Speaker 2: for nefarious purposes. Khalil's lawyers called shipping him to Louisiana
Speaker 2: a shell game by ice designed to take him out
Speaker 2: of the New York Court's jurisdiction and isolate him far
Speaker 2: from his lawyers and his family. I'll just mention that
Speaker 2: Louisiana is in the Fifth Circuit, which is the most
Speaker 2: conservative circuit court in the country.
Speaker 1: Certainly, there are some strong arguments that they're making that
Speaker 1: the court is going to have to grapple with with
Speaker 1: regard to whether the transfer to Louisiana serve some purpose
Speaker 1: other than evasion of jurisdiction. And that is in a
Speaker 1: twenty ten opinion in the Supreme Court about Guantanamo and
Speaker 1: about transfers and habeas jurisdiction. So there is pretty good
Speaker 1: case law that discusses what courts are supposed to look
Speaker 1: at with regard to these transfers. There's a difference certainly
Speaker 1: between Louisiana and New Jersey with regards to access to
Speaker 1: the detayee and closest to the family, and even the
Speaker 1: Third Circuit versus the Fifth Circuit. So those things all matter.
Speaker 1: But the point is it may not end up mattering
Speaker 1: with regard to this particular judge in New York City
Speaker 1: because it seems difficult to figure out how he has
Speaker 1: jurisdiction in New York City when the habeas was filed
Speaker 1: when the person was in New Jersey.
Speaker 2: The Trump administration has said that Khalil is a threat
Speaker 2: to national security. His lawyers say, he's just a protest
Speaker 2: exercising his free speech rights. When does that issue get litigated.
Speaker 1: Here's what's interesting about this. Once you take this ground
Speaker 1: of deportability, which simply asks the question as to whether
Speaker 1: the Secretary of State has reasonable grounds to believe that
Speaker 1: this human being's presence in the United States can cause
Speaker 1: serious adverse foreign policy consequences. Once that's the issue, what
Speaker 1: the human being did is irrelevant in that sense, that
Speaker 1: is not part of the determination. The determination if there
Speaker 1: is going to be quote unquote a trial, which is
Speaker 1: going to need to be a decision, by the way,
Speaker 1: is there even a trial. The trial will just be
Speaker 1: about whether the Secretary of State has reasonable ground to
Speaker 1: believe that this would have foreign policy consequences. So you
Speaker 1: would be an interesting thought experiment. Why couldn't Secretary Rubio
Speaker 1: just get picked any country in the world, just pick
Speaker 1: one and have them issue an affi. David say, yeah,
Speaker 1: we would be very upset if the US kept this
Speaker 1: person into the United States, and in that scenario, you've
Speaker 1: met your burden significant adverse foreign policy consequences. If this
Speaker 1: person remains in the United States, the court will have
Speaker 1: to decide whether that's a constitutional statute, but it certainly
Speaker 1: would have meant the factual threshold, which has nothing to
Speaker 1: do with terrorism. In the end, the threshold in this
Speaker 1: statute is just whether this human being's presence in the
Speaker 1: United States would cause serious adverse foreign policy consequences for
Speaker 1: the United State.
Speaker 2: Faith wouldn't a court be reluctant to substitute its opinion
Speaker 2: for the Secretary of States in a matter of foreign policy.
Speaker 1: It seems very likely that that will be true, but
Speaker 1: we will have to wait and see. And so I
Speaker 1: think what the student is going to say is, Look,
Speaker 1: the Secretary of State doesn't have any reasonable ground to
Speaker 1: believe that my individual presence, as just one person is
Speaker 1: going to affect US foreign policy? Why would they think that?
Speaker 1: So that's going to be their argument, and maybe a
Speaker 1: court is receptive to that argument.
Speaker 2: So Rubio said, this is not about free speech? Is
Speaker 2: he right?
Speaker 1: The question is does the First Amendment provide a defense
Speaker 1: to this deportation ground? So this is where the heresiatis
Speaker 1: versus Shaughnessy case says that the First Amendment basically doesn't
Speaker 1: apply to any deportation ground. At the end of the day,
Speaker 1: it's not a defense to any of them, because these
Speaker 1: issues involving non citizens are given such deference that when
Speaker 1: the Congress actually passes the law and the President signs it,
Speaker 1: the courts aren't going to overturn a ground of deportation.
Speaker 1: They're just going to allow it to remain. But is
Speaker 1: that even relevant to this ground of deportation? Because maybe
Speaker 1: Rubio's doing it to placate that other countries so that
Speaker 1: there aren't serious adverse foreign policy consequences, then why isn't
Speaker 1: he within his grounds to do that? And so you
Speaker 1: do that? Plus the jurisdictional issues, whether it's avieas and
Speaker 1: whether it's challengeable at the beginning or whether you have
Speaker 1: to wait till the end. Those are the players. That's
Speaker 1: the real complication here.
Speaker 2: So many complications in this case. Thanks so much for
Speaker 2: explaining them to us. Leon. That's Leon Fresco of Holland
Speaker 2: and Knight. Coming up next, the Supreme Court is taking
Speaker 2: up a case involving a ban on conversion therapy, and
Speaker 2: that's causing some concern. I'm June Grosso. When you're listening
Speaker 2: to Bloomberg, your parents.
Speaker 1: Sends you up for a program to fix you. Welcome
Speaker 1: to the refuge. Program.
Speaker 5: You cannot be born a home sexual This is a lie.
Speaker 4: It's a choice.
Speaker 1: Come fake it till you make it. A come to man.
Speaker 6: You are not save yourself, Jared.
Speaker 1: God will not love you the way that you are.
Speaker 4: Is this what you love?
Speaker 6: Who's going to strike this demon down?
Speaker 2: The movie boy Erased is about the gay son of
Speaker 2: ultra religious parents who sent a conversion therapy to change
Speaker 2: his sexual identity. It's based on the memoir by Garret
Speaker 2: Conley chronicling the abuses of that therapy. About half the
Speaker 2: states now bar conversion therapy for minors, and all major
Speaker 2: medical and mental health organizations have condemned the therapy as
Speaker 2: unscientific and potentially dangerous for young people, increasing the risk
Speaker 2: of depression, substance abuse, and suicide. And now the Supreme
Speaker 2: Court has decided to take up a First Amendment check
Speaker 2: challenge to Colorado's ban on conversion therapy from minors. A
Speaker 2: licensed counselor who says she views her work as an
Speaker 2: outgrowth of her Christian faith, claims the ban violates her
Speaker 2: free speech rights. My guest is First Amendment law expert
Speaker 2: Caroline Mallet Corbin, a professor at the University of Miami,
Speaker 2: law school Caroline tell us about this case.
Speaker 3: The Supreme Court has granted THR meaning it will hear
Speaker 3: a case involving a law that bans what is known
Speaker 3: as conversion therapy. It's more official designation is sexual orientation
Speaker 3: change efforts, and this is basically an attempt to make
Speaker 3: gay kids straight, that's their historical origins. More specifically, the
Speaker 3: law says that licensed counselors cannot practice conversion therapy on minors.
Speaker 3: So if you want to undergo this so called counseling
Speaker 3: as an adult, you are allowed to, but licensed practitioners
Speaker 3: of mental health cannot practice conversion therapy on minors. I
Speaker 3: also note that there is an exemption for therapists engaged
Speaker 3: in the practice of religious ministry. So the reason why
Speaker 3: the law has banned conversion therapy is that it is unscientific, harmful,
Speaker 3: and futile. So all the reputable medical associations have come
Speaker 3: out against it for two reasons. One, you can't change
Speaker 3: someone's sexual orientation, and second, studies show that it actually
Speaker 3: hurts kids. So, for example, one study found that even
Speaker 3: holding constant other valuables, the children who have been subjected
Speaker 3: to this therapy or twice as likely to think about
Speaker 3: suicide and at least twice as likely to try suicide.
Speaker 3: So states who have a long history of regulating the
Speaker 3: medical profession and ensuring that practices conform with standard care
Speaker 3: decided this is not a practice we should allow in
Speaker 3: our states, and Colorado is one of about twenty states
Speaker 3: that therefore have forbidden this practice four licensed medical professions
Speaker 3: as applied to kids children under eighteen.
Speaker 2: So what does the counselor's speech claim turn on?
Speaker 3: The legal question turns on whether you think of counseling
Speaker 3: as conduct the practice of medicine, or you think of
Speaker 3: counseling as pure speech. And this matters because the government
Speaker 3: has a lot more viewway to regulate the practice of medicine,
Speaker 3: even if it incidentally affects speech, then it does regulating speech. Generally,
Speaker 3: the presumption is that if the government is regulating speech
Speaker 3: because of its content or viewpoint, if it's trying to
Speaker 3: tell people what they are allowed or not allowed to say,
Speaker 3: that kind of content regulation is presumptively unconstitutional. Generally, we
Speaker 3: don't want the government deciding what we're allowed to say
Speaker 3: or what we're allowed to hear. So if this is
Speaker 3: considered a regulation of speech, then it is problematic under
Speaker 3: the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional.
Speaker 3: On the other hand, if it is viewed as the
Speaker 3: regulation of medical practice the regulation of conduct, then the
Speaker 3: state is going to have a much easier time showing
Speaker 3: this is just ensuring that people who are licensed by
Speaker 3: the state are meeting standards of care in the medical practice.
Speaker 3: And this is something the states have always done regulate
Speaker 3: what doctors can and can't do, and including folding into
Speaker 3: that what they can and can't say as part of
Speaker 3: their practice of medicine.
Speaker 2: The tense Circuit Court of Appeals, in a divided opinion
Speaker 2: sided with Colorado, explain what their reasoning was.
Speaker 3: Okay, here's the thing. This is not the first time
Speaker 3: court has ever encountered the question of how should we
Speaker 3: think about regulation of medicine even if it involves speech.
Speaker 3: And the backdrop to this case is the Supreme Court's
Speaker 3: ruling about abortion counseling. So this case is about mental
Speaker 3: health counseling. There is precedence on abortion counseling. By abortion counseling,
Speaker 3: I mean the laws in many states that require doctors
Speaker 3: before they provide an abortion to a woman requires the
Speaker 3: doctors to read, often a state dictated script about the
Speaker 3: dangers and perils of abortion and about the alternatives to abortion.
Speaker 3: So just about every state requires that abortion providers say
Speaker 3: this script or provide this information to women before they
Speaker 3: are allowed to have an abortion. And doctors challenge those
Speaker 3: regulations as violating their free speech. They said, you are
Speaker 3: compelling us to say things that aren't necessarily accurate and
Speaker 3: certainly not what we would normally say under our normal
Speaker 3: practice of medicine. And the Supreme Court upheld the abortion
Speaker 3: counseling on the grounds that it was not a direct
Speaker 3: regulation of speech, but a regulation of the medical profession
Speaker 3: that happened to affect speech. So basically, the precedent that
Speaker 3: the Tenth Circuit relied on was precedent the Supreme Court
Speaker 3: had created when ruling about abortion counseling. And so the
Speaker 3: Tenth Circuit to just said, listen, if the state telling
Speaker 3: the doctors what they must say to women before they
Speaker 3: have an abortion, if abortion counseling is merely the regulation
Speaker 3: of the medical profession, then surely the regulation of a
Speaker 3: kind of therapy in mental health counseling is also the
Speaker 3: regulation of medicine that incidentally affects speech. That was the
Speaker 3: argument that the Tenth Circuit made to support their claim
Speaker 3: that this is not a direct attack on speech, it's
Speaker 3: a regulation of medicine.
Speaker 2: In twenty twenty three, the Court with you used to
Speaker 2: take a challenge to a similar ban in Washington State.
Speaker 2: That was over the dessense of three justices, Conservatives Clarence Thomas,
Speaker 2: Samuel Alito, and Brett Cavanaugh. So that means that they've
Speaker 2: gotten at least one other justice on their side, because
Speaker 2: they need four votes to take a case.
Speaker 3: Exactly right. So generally one of the major reasons that
Speaker 3: the Supreme Court will decide to hear a case is
Speaker 3: if there's a circuit split, and there is a circuit
Speaker 3: split on this issue. So the Eleventh Circuit has held
Speaker 3: that these bands violate free speech clause, and the Ninth
Speaker 3: and tenth have held no, they are perfectly constitutional. And
Speaker 3: there was a split even a couple of years ago.
Speaker 3: But as you explain, the Supreme Court doesn't hear every
Speaker 3: appeal that goes before it. They only hear an appeal
Speaker 3: that at least four justices want to hear, And in
Speaker 3: twenty twenty three they were not four, but this year
Speaker 3: there are four, so that's enough to hear the case.
Speaker 3: We don't know who the fourth is because they don't
Speaker 3: announce who they are. I mean, we can guess that
Speaker 3: the dissenters are three of them, but we don't know
Speaker 3: who the fourth is. Now.
Speaker 2: I can't give one hundred percent guarantee on this, but
Speaker 2: it's most likely that the fourth vote is one of
Speaker 2: the other Conservative justices. Does the fact that it's the
Speaker 2: Conservatives that want to take this case up tell you
Speaker 2: that they're looking to reverse the Tenth Circuit, in other words,
Speaker 2: strike down the ban on conversion therapy.
Speaker 3: Personally, I am always nervous when the Supreme Court grants
Speaker 3: circ in a case involving a Conservative Christian who wants
Speaker 3: to inflict some kind of harm on a vulnerable community
Speaker 3: like the LGBT community, because I think the Supreme Court
Speaker 3: is exceptionally receptive to the claims of conservative Christians, and
Speaker 3: I think they real they don't show much care about
Speaker 3: the consequences of the religious practices of conservative Christians and
Speaker 3: how they harm those in the LGBT community. So I'm worried.
Speaker 3: On the other hand, at this point, we know there
Speaker 3: are four votes but we don't yet know if there
Speaker 3: are five votes though that is not all that reassuring,
Speaker 3: but at least it's not a completely foregone conclusion.
Speaker 2: Caroline, the licensed counselor, is being represented by the Alliance
Speaker 2: Defending Freedom, which is a conservative Christian law firm and
Speaker 2: advocacy group that has one case is at the Supreme
Speaker 2: Court before in Colorado involving the baker who didn't want
Speaker 2: to bake cakes for gay weddings and the web designer
Speaker 2: who didn't want to design websites for gay couples, even
Speaker 2: though no one had actually asked her to design a
Speaker 2: website for a gay couple.
Speaker 3: Yeah, the group that's bringing this is a group that
Speaker 3: regularly brings challenges to anti discrimination laws on behalf of
Speaker 3: conservative Christians, and this is yet another one, and they've
Speaker 3: had incredible success before the Supreme Court. They were also
Speaker 3: the group that challenged California's attempt to require crisis pregnancy centers,
Speaker 3: which often pretend to be comprehensive medical centers when they're not.
Speaker 3: They're just anti abortion places that try and lure women
Speaker 3: into their doors to try and prevent them from having
Speaker 3: an abortion. Anyhow, California tried to deal with this practice
Speaker 3: by requiring crisis pregnancy centers to let people know that
Speaker 3: they were not, in fact a licensed medical provider, even
Speaker 3: though they often pretended to be one, and the Supreme
Speaker 3: Court held that violated the crisis pregnancy center's pre speech
Speaker 3: rights as well. So there is definitely a pattern of
Speaker 3: cases brought claiming free speech violations of regulations that are
Speaker 3: designed to protect from harm and to protect from discrimination,
Speaker 3: and these are getting struck down in the name of
Speaker 3: pre speech.
Speaker 2: The oral argument should be interesting, but we won't hear
Speaker 2: them until the Supreme Court's next term, which starts in October.
Speaker 2: Thanks Caroline. That's Professor Caroline Malik Corbin of the University
Speaker 2: of Miami Law School. Coming up next on the Bloomberg
Speaker 2: Law Show. It looks like New York City Mayor Eric
Speaker 2: Adams is going to score a get out of jail
Speaker 2: free card. I'm June Grosso and you're listening to Bloomberg.
Speaker 2: New York City Mayor Eric Adams was one of four
Speaker 2: Democratic mayors of sanctuary cities to testify before the House
Speaker 2: Oversight Committee last week, but the criminal corruption case against
Speaker 2: Adams took center stage as the mayor was grilled by
Speaker 2: several Democratic lawmakers about the allegations that the Justice Department
Speaker 2: agreed to dismiss the charges against Adams in return for
Speaker 2: his helping the Trump administration with its efforts to deport immigrants.
Speaker 2: California Representative Robert Garcia quized Adams.
Speaker 4: And Mayor Adams. I also want to be very clear,
Speaker 4: are you selling out New Yorkers to save yourself from prosecution.
Speaker 6: There's no deal, no quick pro qual and I did
Speaker 6: nothing wrong, and anything dealing with this case had a
Speaker 6: deference to Judge Hoe, who's now addressing it. I'm going
Speaker 6: to refer to his actions.
Speaker 4: Well, mister Mayor, it appears to me at least that
Speaker 4: you are selling New Yorkers out. It appears that you
Speaker 4: are working with Tom Homan, who is clearly clearly focused
Speaker 4: on family separation and deportations.
Speaker 2: And now it appears that Adams will almost certainly score
Speaker 2: a get out of jail free card. Paul Clement, the
Speaker 2: former US Solicitor General appointed by Judge Dale as a
Speaker 2: friend of the Court, has recommended the case against Adams
Speaker 2: be dismissed permanently. Joining me is former federal prosecutor Robert Mintz,
Speaker 2: a partner maccarter and English Bob explain why Judge Hoe
Speaker 2: appointed Clement.
Speaker 5: Judge Dalejo took the very unusual step of appointing Paul Clement,
Speaker 5: who had been the US Solicitor General during the George W.
Speaker 5: Bush administration and has argued more than one hundred cases
Speaker 5: before the Supreme Court, to give him advice with regard
Speaker 5: to how to handle this dismissal motion, essentially based upon
Speaker 5: his view that he was getting a one sided argument.
Speaker 5: In other words, both the defense lawyer and the government
Speaker 5: in this case were seeking to have the indictment dismissed,
Speaker 5: and the judge wanted to hear the other side of
Speaker 5: the argument. That's why he appointed Paul Clement to give
Speaker 5: him advice as to what issues he should be considering,
Speaker 5: really what his options were here with regard to this motion.
Speaker 2: Clement wrote a thirty three page brief. One important point
Speaker 2: was that the executive branch is the one that chooses
Speaker 2: when to prosecute and when not to prosecute.
Speaker 5: You're exactly right that Paul Clement did not really get
Speaker 5: into the merits of these arguments from both sides. If
Speaker 5: you recall, the acting Deputy Attorney General had ordered this
Speaker 5: Southern District to dismiss the case, and there were a
Speaker 5: series of prosecutors, including the acting US Attorney at the time,
Speaker 5: who resigned rather than follow that order, saying that the
Speaker 5: reasons for the dismissal were improper, that it was about
Speaker 5: politics and not about the merits of the case. But ultimately,
Speaker 5: mister Clement concluded that the judge here doesn't really have
Speaker 5: much in the way of options. That essentially, if the
Speaker 5: executive branch, meaning the prosecution and the Department of Justice,
Speaker 5: choose to dismiss the case, there's not much the judge
Speaker 5: can do about it. He pointed out that ultimately, even
Speaker 5: if the court were to order the case to go forward,
Speaker 5: could simply run out the clock, in other words, do
Speaker 5: nothing with the case until there was what's called a
Speaker 5: speedy trial violation, and then the defense would move to
Speaker 5: dismiss the case. So short of appointing a special prosecutor,
Speaker 5: which is rarely done, and it's possible that it's not
Speaker 5: even constitutional to do it in this circumstance, mister Clement
Speaker 5: recommended to the judge that there's really nothing for him
Speaker 5: to do here but to grant the dismissal, and that's
Speaker 5: why he didn't get into the back and forth between
Speaker 5: the former Southern District prosecutors and the Department of Justice
Speaker 5: as to the motivations behind this motion to dismiss the
Speaker 5: indictment against Mayor Adam.
Speaker 2: Clement didn't discuss the evidence against Adams, the strength of
Speaker 2: the charges against him, he wrote, private citizens and courts
Speaker 2: can't force a prosecution, no matter how clearly someone has
Speaker 2: violated a federal criminal statute. Of course, the Justice Department
Speaker 2: didn't discuss the evidence when it first ordered the missile.
Speaker 5: If you remember, it was made explicit by the acting
Speaker 5: Deputy US Attorney Emo Beauvat that this directive to dismiss
Speaker 5: the case was not done on the merits. He expressly
Speaker 5: said that he was not looking at either the evidence
Speaker 5: or the legal theory behind the case. Now, in a
Speaker 5: more recent filing by the Department of Justice, they did
Speaker 5: mention the merits of the case. So they have shifted
Speaker 5: slightly to argue in papers they filed before the court
Speaker 5: that the legal arguments underpinning the bribery charges against Mayor Adams,
Speaker 5: they said, was weak. That is something that is within
Speaker 5: the scope of the Department of Justice certainly to consider
Speaker 5: in deciding whether or not to continue to pursue the case,
Speaker 5: but it really wasn't the driving force, and they again
Speaker 5: reiterated the earlier statements that the prosecution of Mayor Adams
Speaker 5: would interfere with his ability to cooperate with this administration
Speaker 5: moved to crack down on illegal immigration, and that really,
Speaker 5: as the basis to see, could dismiss the indictment at
Speaker 5: this time. There is I.
Speaker 2: Believe, just one line in the thirty three pages where
Speaker 2: Clement says there's evidence that suggests the decision to dismiss
Speaker 2: the indictment was undertaken in bad faith. So that's one
Speaker 2: line dropped there, referring to, you know, Emil Beauvey's order
Speaker 2: to dismiss the indictment being in bad faith. Where does
Speaker 2: the judge weigh that?
Speaker 5: Mister Clement did make mention that the evidence quoting here
Speaker 5: suggests the decision to dismiss the indictment was undertaken in
Speaker 5: bad face. The Department of Justice has made the argument
Speaker 5: that the prosecution was politically motivated. Ultimately, Paul Clement decides
Speaker 5: that the judge does not have to weigh in, and
Speaker 5: it's unnecessary for him to determine whether or not the
Speaker 5: case was politically motivated from the start, or whether or
Speaker 5: not this dismissal was motivated by some kind of improper
Speaker 5: political means. Meant said ultimately it was unnecessary for Judge
Speaker 5: Hoe to settle that dispute under either view. He wrote,
Speaker 5: there was little justification for allowing a potential reindictment of
Speaker 5: the mayor, and that's why he recommended to the judge
Speaker 5: that he grant the motion to dismiss. But unlike what
Speaker 5: was requested by the Department of Justice, he said that
Speaker 5: that dismissal should be with prejudice, in other words, to
Speaker 5: be dismissed in a way that the prosecution could never
Speaker 5: bring the case down the road, and that would eliminate
Speaker 5: the potential for critics of this decision to be able
Speaker 5: to argue that the Department of Justice was trying to
Speaker 5: have it both ways, was trying to have the case
Speaker 5: dismissed now but leave the prospect of bringing that indictment
Speaker 5: down the road in order to try to continue to
Speaker 5: influence the mayor to cooperate with the Trump administration's immigration policies.
Speaker 2: Bob Clement wrote that if the charges weren't dismissed with prejudice,
Speaker 2: meaning they couldn't be brought aga again, they would hang
Speaker 2: like the proverbial sort of damocles over Adams. But if
Speaker 2: you have a public official who's been charged with corruption
Speaker 2: and the chargers are being dropped for political reasons, why
Speaker 2: should he be given a free pass.
Speaker 5: I think what mister comment was getting at is that
Speaker 5: one of the reasons that the Southern District Prosecutors objected
Speaker 5: so strenuously to this dismissal is that they argue that
Speaker 5: in meetings with the Defense Council there was discussions that
Speaker 5: amounted to essentially a quid pro quo. In other words,
Speaker 5: there were discussions about the mayor's ability to continue to
Speaker 5: cooperate with the Trump administration in its immigration enforcement policies,
Speaker 5: and whether or not the indictment and the trial that
Speaker 5: would be upcoming would interfere in the ability to do that,
Speaker 5: and in acknowledging that it would that obviously, any criminal
Speaker 5: trial of an elected official is going to take away
Speaker 5: their attention and their time from carrying out their public duties,
Speaker 5: that that was a reason to dismiss them at this time.
Speaker 5: The Southern District prosecutor said that was essentially a quid
Speaker 5: pro quot In agreement on the part of the mayor
Speaker 5: to support the Trump administration in exchange for a dismissal
Speaker 5: of the criminal charges, and the Department of Justice, I
Speaker 5: think was responding to that by saying, we're not asking
Speaker 5: for a dismissal that is permanent. We're not asking to
Speaker 5: bar the prosecution forever. We're just saying it should be
Speaker 5: dismissed at this time until after the election. And that's
Speaker 5: why the Department of Justice was asking for the dismissal
Speaker 5: without prejudice. But mister Clement said that the quid pro
Speaker 5: quot that was hanging over this whole dismissal was something
Speaker 5: that could only be eliminated if the dismissal was with prejudice,
Speaker 5: and that way, the argument that the mayor would be
Speaker 5: taking any actions in order to curry favor with the
Speaker 5: Trump administration would be removed because there would be no
Speaker 5: possibility that the Department of Justice could indict him down
Speaker 5: the road if you failed to cooperate with the Trump
Speaker 5: administration immigration policies.
Speaker 2: Mean talk about a get out of jail free card
Speaker 2: for Adams because he was accused of agreeing to a
Speaker 2: quid pro quote. Now the whole case is going to
Speaker 2: be dropped against him. It doesn't seem like equal justice
Speaker 2: under the law.
Speaker 5: Now. I think a lot of people are very troubled
Speaker 5: by this whole scenario. Ultimately, mister Clement concluded that the
Speaker 5: judge's hands were tied, that he really had no ability
Speaker 5: to fight the dismissal. If the Department of Justice had decided,
Speaker 5: almost for whatever reason, to dismiss the case, the judge
Speaker 5: had no choice but to do that, but to follow
Speaker 5: through and to dismiss the case. And he even advised
Speaker 5: against an extensive judicial investigation into the Department of Justices actions.
Speaker 5: In other words, he didn't even think it was necessary
Speaker 5: for the judge to delve into the motivations behind the
Speaker 5: Department of Justice to seek the dismissal, or likewise, the
Speaker 5: motivation for the former Southern District prosecutors for refusing to
Speaker 5: follow that directive. Mister Clement wrote into his submission to
Speaker 5: the judge, when the publicly available information is sufficient to
Speaker 5: inform judicial decision making, there are sound reasons to avoid
Speaker 5: further inquiries. So he basically concluded that nothing good could
Speaker 5: come of digging into this further, and that the judge
Speaker 5: did not have discretion here to refuse to dismiss the case,
Speaker 5: and there was really no reason to get into this
Speaker 5: dispute between the former Southern District prosecutors and the Department
Speaker 5: of Justice about who was right, who was wrong, who
Speaker 5: was insubordinate, and who was acting properly with an ethical
Speaker 5: guidelines and who was acting based upon political motivation.
Speaker 2: Judge Hoo doesn't have to accept Clement's recommendation, but does
Speaker 2: it seem likely that he will.
Speaker 5: Absolutely. Judge ho is not legally bound to accept mister
Speaker 5: Clement's recommendation, but he did independently seek out his guidance,
Speaker 5: and it seems likely that he's going to follow the
Speaker 5: recommendation of mister Clement, certainly to the extent that he
Speaker 5: ultimately dismisses the case with prejudice. And I think again
Speaker 5: that resolves the question of the Trump administration or the
Speaker 5: Department of Justice using this dismissal as sort of a
Speaker 5: cudgel hanging over the mayor's head to stay to the mayor,
Speaker 5: in so many words, if you don't follow our directive
Speaker 5: and if you don't cooperate with the immigration policies of
Speaker 5: his administration, there's always the possibility that this indictment comes
Speaker 5: back again that it gets reinstated and that you're once
Speaker 5: again facing criminal charges. By dismissing the case with prejudice,
Speaker 5: that threat is essentially eliminated.
Speaker 2: And it seems that Judge Hooe's decision is imminent because
Speaker 2: he canceled a hearing that was scheduled for Friday, saying
Speaker 2: he does not at this time believe that oral argument
Speaker 2: is necessary. So most likely they'll be good news soon
Speaker 2: for the mayor. Always a pleasure, Bob, thanks so much.
Speaker 2: That's Robert Mints of McCarter and English. And that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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