1
00:00:03,120 --> 00:00:08,320
Speaker 1: You're listening to Bloomberg Law with June Grusso from Bloomberg Radio.

2
00:00:10,320 --> 00:00:14,280
Speaker 2: Today, I'm announcing actions to bar migrants who cross our

3
00:00:14,320 --> 00:00:18,000
Speaker 2: southern border unlawfully from receiving astylum.

4
00:00:18,280 --> 00:00:22,200
Speaker 3: President Joe Biden unveiled plans to head off a surgeon

5
00:00:22,320 --> 00:00:27,120
Speaker 3: border crossings this summer by executive action, his most significant

6
00:00:27,120 --> 00:00:30,880
Speaker 3: action to address the migrant crisis that has threatened his reelection.

7
00:00:31,560 --> 00:00:35,760
Speaker 3: Biden said Republicans left him no choice but to act alone.

8
00:00:36,360 --> 00:00:41,400
Speaker 3: The long anticipated presidential proclamation would bar migrants from being

9
00:00:41,440 --> 00:00:45,760
Speaker 3: granted asylum when illegal border crossings reach high levels.

10
00:00:46,440 --> 00:00:49,720
Speaker 2: To protect America as a land that welcomes immigrants, we

11
00:00:49,840 --> 00:00:53,640
Speaker 2: must first secure the border and secure it now. The

12
00:00:53,720 --> 00:00:58,760
Speaker 2: simple truth is there is a worldwide migrant crisis, and

13
00:00:58,760 --> 00:01:01,480
Speaker 2: if the United States doesn't see QR border, there's no

14
00:01:01,600 --> 00:01:03,720
Speaker 2: limit to the number of people may try to come here,

15
00:01:04,280 --> 00:01:06,680
Speaker 2: because there's no better place than the planet than the

16
00:01:06,760 --> 00:01:08,120
Speaker 2: United States of America.

17
00:01:08,319 --> 00:01:11,920
Speaker 3: The ACLU has already said it will challenge Biden's action

18
00:01:12,080 --> 00:01:15,560
Speaker 3: in court, much as it did Trump's actions on the border.

19
00:01:16,240 --> 00:01:19,160
Speaker 3: Joining me is Leon Fresco, a partner at Holland and Knight.

20
00:01:19,520 --> 00:01:22,080
Speaker 3: He was the head of the Office of Immigration Litigation

21
00:01:22,160 --> 00:01:26,720
Speaker 3: at the Justice Department during the Obama administration. Leon tell

22
00:01:26,800 --> 00:01:28,280
Speaker 3: us about this new policy.

23
00:01:29,160 --> 00:01:35,480
Speaker 1: The policy is that starting now, if anyone tries to

24
00:01:35,560 --> 00:01:39,000
Speaker 1: cross the border illegally in between the ports of injury

25
00:01:39,480 --> 00:01:42,840
Speaker 1: and ask for asylum, they will be banned from doing

26
00:01:42,880 --> 00:01:45,640
Speaker 1: it unless they were a victim of human trafficking or

27
00:01:45,680 --> 00:01:49,640
Speaker 1: had some sort of urgent medical or humanitarian issue that

28
00:01:49,800 --> 00:01:53,600
Speaker 1: was immediately evident to the border patrol officials who apprehended

29
00:01:53,600 --> 00:01:56,440
Speaker 1: the person. There is a trigger that's being put in

30
00:01:56,600 --> 00:02:00,880
Speaker 1: by executive order that's using the travel ban authority under

31
00:02:00,960 --> 00:02:04,640
Speaker 1: Section two twelve f of the Immigration Code, which President

32
00:02:04,640 --> 00:02:07,920
Speaker 1: Trump used many times during his presidency, And what they're

33
00:02:07,960 --> 00:02:11,280
Speaker 1: saying is that if there's ever a situation where more

34
00:02:11,360 --> 00:02:14,760
Speaker 1: than twenty five hundred people per day on average are

35
00:02:14,800 --> 00:02:18,480
Speaker 1: crossing over any given week, that gives them the authority

36
00:02:18,600 --> 00:02:24,080
Speaker 1: to trigger this ban procedure until such time as the

37
00:02:24,200 --> 00:02:28,000
Speaker 1: daily crossings go down to fifteen hundred people a week,

38
00:02:28,280 --> 00:02:31,720
Speaker 1: which the last time that's happened was during COVID where

39
00:02:31,720 --> 00:02:35,800
Speaker 1: nobody was traveling anywhere, and at the moment, because we

40
00:02:35,880 --> 00:02:39,240
Speaker 1: have something around thirty five hundred to four thousand crossings

41
00:02:39,280 --> 00:02:43,160
Speaker 1: per day that exceeds the twenty five hundred person threshold,

42
00:02:43,520 --> 00:02:47,120
Speaker 1: which is why at midnight on June fifth, the border

43
00:02:47,160 --> 00:02:51,560
Speaker 1: will shut down and essentially people asking for asylum who

44
00:02:51,600 --> 00:02:53,920
Speaker 1: are crossing the border will not be allowed to do

45
00:02:54,000 --> 00:02:54,840
Speaker 1: that any longer.

46
00:02:55,320 --> 00:02:59,880
Speaker 3: Are they allowed to apply for asylum at the port

47
00:03:00,120 --> 00:03:00,760
Speaker 3: of entry.

48
00:03:01,200 --> 00:03:03,640
Speaker 1: So here is how this works with regard to the

49
00:03:03,680 --> 00:03:06,960
Speaker 1: ports of entry. There are appointments on an app on

50
00:03:07,000 --> 00:03:10,440
Speaker 1: your phone called CBP one, and there are about fifteen

51
00:03:10,520 --> 00:03:13,640
Speaker 1: hundred of those appointments every day, and so if you

52
00:03:13,680 --> 00:03:16,320
Speaker 1: look at that, that you know six hundred thousand or

53
00:03:16,360 --> 00:03:20,680
Speaker 1: five hundred thousand appointments a year. And what that does

54
00:03:20,840 --> 00:03:23,200
Speaker 1: is if you want to get one of those appointments

55
00:03:23,280 --> 00:03:27,000
Speaker 1: and apply for asylum, those will still be available and

56
00:03:27,080 --> 00:03:29,440
Speaker 1: people will still be allowed to do that because that's

57
00:03:29,480 --> 00:03:33,520
Speaker 1: an orderly process and one people can use without creating

58
00:03:33,600 --> 00:03:36,600
Speaker 1: chaos on the border. As opposed to they will not

59
00:03:36,680 --> 00:03:39,720
Speaker 1: be able to take matters into their own hands and

60
00:03:39,840 --> 00:03:42,880
Speaker 1: cross in between the ports of entry and ask for asylum.

61
00:03:42,920 --> 00:03:46,880
Speaker 1: They will be, according to this executive order, returned back,

62
00:03:47,200 --> 00:03:49,400
Speaker 1: which was the same thing that was being done with

63
00:03:49,520 --> 00:03:52,840
Speaker 1: COVID under the title forty two COVID authority.

64
00:03:53,760 --> 00:03:58,400
Speaker 3: He's tapping executive powers outlined in section two twelve F

65
00:03:58,520 --> 00:04:02,040
Speaker 3: of the Immigration and National Act. And that's the same

66
00:04:02,120 --> 00:04:05,400
Speaker 3: law that former President Trump used in the Muslim ban

67
00:04:05,560 --> 00:04:10,920
Speaker 3: of twenty seventeen and the twenty eighteen suspension of entry

68
00:04:10,960 --> 00:04:14,000
Speaker 3: of migrants between the ports of entry. Explain what that

69
00:04:14,080 --> 00:04:15,600
Speaker 3: law does so.

70
00:04:15,960 --> 00:04:18,520
Speaker 1: Years where this is going to get a little complicated, June,

71
00:04:18,520 --> 00:04:21,320
Speaker 1: and I want you and your listener to try to

72
00:04:21,880 --> 00:04:23,920
Speaker 1: stay with me here because it will all make sense

73
00:04:23,960 --> 00:04:28,320
Speaker 1: in a second. The statute, all it says is that

74
00:04:28,400 --> 00:04:30,960
Speaker 1: the President, if the President thinks it's not in the

75
00:04:31,040 --> 00:04:35,400
Speaker 1: national interests of the United States, may ban the entry

76
00:04:35,520 --> 00:04:39,359
Speaker 1: of any category of non citizens that the President deans

77
00:04:39,760 --> 00:04:42,120
Speaker 1: is not in the national interests of the United States

78
00:04:42,160 --> 00:04:46,680
Speaker 1: to let them enter. So that is simple when the

79
00:04:46,760 --> 00:04:49,960
Speaker 1: foreign national is outside the United States. So suppose you're

80
00:04:49,960 --> 00:04:52,800
Speaker 1: at a US embassy in India and you're applying for

81
00:04:52,880 --> 00:04:55,880
Speaker 1: a visa. If there's a ban on Indian immigration that

82
00:04:55,960 --> 00:05:00,440
Speaker 1: the President put in onna section two twelve F, simple

83
00:05:00,480 --> 00:05:03,159
Speaker 1: no visa can be issued. Or if you're at an

84
00:05:03,200 --> 00:05:05,839
Speaker 1: airport in Canada you're trying to fly to the United

85
00:05:05,880 --> 00:05:09,719
Speaker 1: States and there's a ban on flying from Canada to

86
00:05:09,760 --> 00:05:12,560
Speaker 1: the United States because we've banned Canadian from coming in.

87
00:05:13,000 --> 00:05:16,080
Speaker 1: That's a very easy band to enact too. Where it

88
00:05:16,120 --> 00:05:22,000
Speaker 1: gets complicated is when someone has already crossed the border,

89
00:05:22,080 --> 00:05:25,600
Speaker 1: the southern border, and has already entered the United States.

90
00:05:26,160 --> 00:05:29,640
Speaker 1: Because then this is a very important word entry. This

91
00:05:29,760 --> 00:05:33,120
Speaker 1: becomes a complicated issue because when you enter the United

92
00:05:33,160 --> 00:05:37,960
Speaker 1: States illegally, that's what makes you subject to prosecution for

93
00:05:38,240 --> 00:05:41,800
Speaker 1: illegal entry. Or if you get supported and you come

94
00:05:41,839 --> 00:05:44,919
Speaker 1: back in, that's what makes you subject to prosecution for

95
00:05:45,080 --> 00:05:48,240
Speaker 1: illegal re entry. You have to have an entry. It's

96
00:05:48,279 --> 00:05:52,040
Speaker 1: an element of the crime in order to be subject

97
00:05:52,040 --> 00:05:55,960
Speaker 1: to the crime. Here's where this is problematic. Biden is

98
00:05:56,000 --> 00:06:00,599
Speaker 1: saying that this power to restrict entry all also apply

99
00:06:00,839 --> 00:06:03,719
Speaker 1: to people who've already entered. And that's what's going to

100
00:06:03,760 --> 00:06:06,040
Speaker 1: be the debate in the courts is whether that's true

101
00:06:06,120 --> 00:06:09,520
Speaker 1: or not, because there's a very strong argument that if

102
00:06:09,560 --> 00:06:12,400
Speaker 1: Congress had meant that, it would have said that. But

103
00:06:12,880 --> 00:06:16,880
Speaker 1: it's said. What Congress provided was for the expedited Removal Authority,

104
00:06:17,200 --> 00:06:20,880
Speaker 1: which is where someone can come in and the government

105
00:06:20,880 --> 00:06:25,159
Speaker 1: can deport them immediately unless they apply for asylum and

106
00:06:25,279 --> 00:06:28,360
Speaker 1: in that case, when they apply for asylum, they get

107
00:06:28,440 --> 00:06:34,479
Speaker 1: to stay. And so that's the complication here is will

108
00:06:34,520 --> 00:06:40,000
Speaker 1: the Supreme Court ultimately give leeway to the Biden administration

109
00:06:40,240 --> 00:06:44,799
Speaker 1: to say that, yes, for this purpose, an entry doesn't

110
00:06:44,880 --> 00:06:47,799
Speaker 1: count as an entry. If we taught you ten minutes

111
00:06:47,839 --> 00:06:51,320
Speaker 1: after you entered, we will pretend that you still didn't enter.

112
00:06:51,920 --> 00:06:55,240
Speaker 1: But if that's true, then does that eliminate, by the

113
00:06:55,279 --> 00:06:59,480
Speaker 1: same token, the federal government's ability to ever prosecute anyone

114
00:06:59,480 --> 00:07:03,520
Speaker 1: again for illegal entry or illegal re entry? Because that's

115
00:07:03,560 --> 00:07:06,560
Speaker 1: why we prosecute people, because we got them ten minutes

116
00:07:06,560 --> 00:07:10,840
Speaker 1: after entering. And so this is quite a very interesting

117
00:07:11,040 --> 00:07:13,440
Speaker 1: thread that I don't know how courts can thread that

118
00:07:13,560 --> 00:07:16,080
Speaker 1: needle and try to have both sides of both of

119
00:07:16,120 --> 00:07:17,120
Speaker 1: these arguments.

120
00:07:17,320 --> 00:07:21,080
Speaker 3: I knew there was some kind of a complication here

121
00:07:21,600 --> 00:07:26,360
Speaker 3: when the ACLU successfully led the charge against the Trump

122
00:07:26,360 --> 00:07:30,480
Speaker 3: administration's attempt to block asylum in twenty eighteen. Was that the.

123
00:07:30,640 --> 00:07:34,240
Speaker 4: Argument, Yes, that was the exact argument, which is that

124
00:07:34,280 --> 00:07:38,280
Speaker 4: the asylum statues specifically says it doesn't matter how you

125
00:07:38,440 --> 00:07:41,720
Speaker 4: enter legally, illegally, anything else, it doesn't matter.

126
00:07:41,840 --> 00:07:44,360
Speaker 1: You can still apply for asylum. Now that is in

127
00:07:44,440 --> 00:07:47,840
Speaker 1: conflict with another statue, which says that the government can

128
00:07:47,880 --> 00:07:53,360
Speaker 1: add regulatory reasons why you don't get asylum, and so

129
00:07:53,440 --> 00:07:55,720
Speaker 1: they can add this one. Presumably you know that the

130
00:07:55,760 --> 00:07:58,400
Speaker 1: border crossings are too high, and so this is a

131
00:07:58,400 --> 00:08:01,120
Speaker 1: regulatory reason why you don't get a asylum. But the

132
00:08:01,240 --> 00:08:05,160
Speaker 1: problem is that only operates for not giving you asylum.

133
00:08:05,200 --> 00:08:08,120
Speaker 1: There are still two other reliefs that still allow you

134
00:08:08,160 --> 00:08:10,440
Speaker 1: to stay, because the thing with the asylum is that

135
00:08:10,480 --> 00:08:13,520
Speaker 1: gives you a path to citizenship. But there's two other

136
00:08:13,720 --> 00:08:16,600
Speaker 1: kinds of relief you can apply for which still come

137
00:08:16,680 --> 00:08:21,480
Speaker 1: up to work and prevent deportation. One is withholding of removal,

138
00:08:21,920 --> 00:08:24,600
Speaker 1: which just lets you stay while whatever problem in your

139
00:08:24,640 --> 00:08:28,880
Speaker 1: country exists, but doesn't let you stay permanently. And another

140
00:08:28,920 --> 00:08:32,640
Speaker 1: one is relief under the Convention against Torture, which says,

141
00:08:33,000 --> 00:08:36,120
Speaker 1: even if you're not being persecuted, if you're going to

142
00:08:36,160 --> 00:08:39,760
Speaker 1: get tortured, we won't let you go back against tortured. So,

143
00:08:39,840 --> 00:08:42,960
Speaker 1: for instance, a lot of Russian immigrants get this kind

144
00:08:43,000 --> 00:08:45,280
Speaker 1: of relief because if they show that they're going to

145
00:08:45,280 --> 00:08:48,800
Speaker 1: be imprisoned in Russia, the prison conditions in Russia are

146
00:08:49,040 --> 00:08:52,120
Speaker 1: our tent amounts to torture, as has been documented in

147
00:08:52,160 --> 00:08:54,880
Speaker 1: the the Bounty case, the Britney Grinder case than others.

148
00:08:55,360 --> 00:08:58,920
Speaker 1: And so what ends up happening is people can apply

149
00:08:59,040 --> 00:09:01,520
Speaker 1: for those reliefs and gum up the works. And so

150
00:09:01,559 --> 00:09:03,960
Speaker 1: what Biden is trying to say is no, no, no, this

151
00:09:04,080 --> 00:09:06,760
Speaker 1: executive order means you can't apply for anything. We're trying

152
00:09:06,760 --> 00:09:09,760
Speaker 1: to do exactly what COVID did. That lets you pick

153
00:09:09,840 --> 00:09:15,280
Speaker 1: people out. And the question is will this entry be

154
00:09:15,480 --> 00:09:19,280
Speaker 1: considered a fiction or not? And if it's considered a fiction,

155
00:09:19,440 --> 00:09:22,000
Speaker 1: then maybe the Supreme Court let's Biden get away with this,

156
00:09:22,520 --> 00:09:27,440
Speaker 1: But most probably if entry is treated like the way

157
00:09:27,440 --> 00:09:31,000
Speaker 1: it's treated in plain English, then the people have already entered.

158
00:09:31,040 --> 00:09:33,400
Speaker 1: It's too late to ban them from coming in once

159
00:09:33,440 --> 00:09:34,439
Speaker 1: they've already entered.

160
00:09:35,200 --> 00:09:38,720
Speaker 3: To affirm Biden's policy, would the Supreme Court have to

161
00:09:38,800 --> 00:09:41,840
Speaker 3: reverse how it ruled with Trump's policy.

162
00:09:42,720 --> 00:09:46,840
Speaker 1: Well, no, because Trump's policy with regard to the travel

163
00:09:46,880 --> 00:09:50,400
Speaker 1: ban was about who could be given travel bans. Could

164
00:09:50,480 --> 00:09:54,200
Speaker 1: you discriminate quote unquote on the basis of religion, or

165
00:09:54,440 --> 00:09:57,240
Speaker 1: was religion of prefects or all of that, And there

166
00:09:57,280 --> 00:09:59,920
Speaker 1: the Supreme Court said, look, as long as the reason

167
00:10:00,080 --> 00:10:03,640
Speaker 1: on his face is legitimate and bonified. We're not gonna

168
00:10:03,880 --> 00:10:06,319
Speaker 1: second guess and go behind that and say what did

169
00:10:06,320 --> 00:10:10,000
Speaker 1: the president really mean, etc. Now, there was an actual

170
00:10:10,120 --> 00:10:13,240
Speaker 1: travel band that said all Muslims are banned from the

171
00:10:13,360 --> 00:10:15,560
Speaker 1: United States. Come back to us with that case. We're

172
00:10:15,559 --> 00:10:18,959
Speaker 1: not deciding that case today because this case is about

173
00:10:19,080 --> 00:10:22,960
Speaker 1: objective factors of safety insecurity, and so the president gets

174
00:10:23,000 --> 00:10:25,920
Speaker 1: broad discretion to do that. That's going to be different

175
00:10:26,480 --> 00:10:31,880
Speaker 1: than this case, which will be about whether an entry

176
00:10:32,760 --> 00:10:36,080
Speaker 1: is involved in a case where a person is already

177
00:10:36,120 --> 00:10:39,160
Speaker 1: inside the United States. So Trump was about can you

178
00:10:39,200 --> 00:10:42,400
Speaker 1: ban people outside the United States? This is now going

179
00:10:42,480 --> 00:10:45,120
Speaker 1: to be about can you pretend that someone who just

180
00:10:45,320 --> 00:10:48,880
Speaker 1: entered minutes ago didn't really enter such that you can

181
00:10:48,960 --> 00:10:51,840
Speaker 1: kick them out like if they were applying in India

182
00:10:51,880 --> 00:10:52,480
Speaker 1: for a visa.

183
00:10:53,120 --> 00:10:56,920
Speaker 3: Did the Trump case where he suspended the entry of

184
00:10:57,040 --> 00:10:59,640
Speaker 3: migrants between the ports of entry, did that go to

185
00:10:59,679 --> 00:11:00,480
Speaker 3: the court?

186
00:11:01,120 --> 00:11:03,960
Speaker 1: That did not because by the time what happened was,

187
00:11:04,320 --> 00:11:07,080
Speaker 1: first the Northern District of California struck that down and

188
00:11:07,120 --> 00:11:09,480
Speaker 1: said you can't have this kind of ban. Then the

189
00:11:09,600 --> 00:11:13,120
Speaker 1: Ninth Circuit agreed, Then COVID happened, and then by the

190
00:11:13,200 --> 00:11:15,960
Speaker 1: time this would have gotten around to any kind of

191
00:11:16,160 --> 00:11:20,160
Speaker 1: Supreme Court review the administration's change and the policy change,

192
00:11:20,160 --> 00:11:22,120
Speaker 1: and that was the end of it. So we never

193
00:11:22,200 --> 00:11:25,360
Speaker 1: got to see the actual final work. We know the

194
00:11:25,480 --> 00:11:28,600
Speaker 1: Ninth Circuit as finding president on this, So the Ninth

195
00:11:28,640 --> 00:11:33,160
Speaker 1: Circuit would actually have to go unbond and reverse itself,

196
00:11:33,200 --> 00:11:38,240
Speaker 1: which is very unlikely if they're going to overrule this

197
00:11:38,440 --> 00:11:42,200
Speaker 1: precedent on the issue of entry and asylum. So the

198
00:11:42,240 --> 00:11:44,840
Speaker 1: only hope that the Biden administration is going to have

199
00:11:45,679 --> 00:11:48,160
Speaker 1: is to go to the Supreme Court.

200
00:11:48,400 --> 00:11:51,000
Speaker 3: Stay with me Leon coming up, we're going to discuss

201
00:11:51,200 --> 00:11:54,199
Speaker 3: what happens next in the courts and why there may

202
00:11:54,240 --> 00:11:58,199
Speaker 3: be an injunction against this action before the weekend. I'm

203
00:11:58,280 --> 00:12:02,280
Speaker 3: June Grosso and you're listening to Bloomber. Today, President Joe

204
00:12:02,320 --> 00:12:07,320
Speaker 3: Biden unveiled plans to enact immediate, significant restrictions on migrants

205
00:12:07,360 --> 00:12:11,120
Speaker 3: seeking asylum at the US Mexico border as he tries

206
00:12:11,200 --> 00:12:15,240
Speaker 3: to neutralize immigration as a political liability ahead of the

207
00:12:15,240 --> 00:12:20,280
Speaker 3: November elections. But the ACLU has already said it intends

208
00:12:20,320 --> 00:12:24,120
Speaker 3: to sue to stop Biden's order, much as it argued

209
00:12:24,160 --> 00:12:28,560
Speaker 3: similar legal challenges against former President Donald Trump. I've been

210
00:12:28,559 --> 00:12:31,840
Speaker 3: talking to immigration law expert Leon Fresco, a partner at

211
00:12:31,840 --> 00:12:35,120
Speaker 3: Hollanda Knight Lee on before the break. We were discussing

212
00:12:35,200 --> 00:12:38,800
Speaker 3: the word entry and how that will be important in

213
00:12:38,840 --> 00:12:42,360
Speaker 3: the legal arguments to come. So this is going to

214
00:12:42,360 --> 00:12:46,200
Speaker 3: be a very technical argument for Biden to win. Is

215
00:12:46,240 --> 00:12:49,000
Speaker 3: it going to be the Supreme Court justices or at

216
00:12:49,080 --> 00:12:54,000
Speaker 3: least five of them saying wink, wink, nod, nod, it's okay.

217
00:12:54,160 --> 00:12:57,480
Speaker 1: Correct, He's gonna need that. And then there's a second

218
00:12:57,520 --> 00:13:00,520
Speaker 1: rinkle we haven't even talked about yet. Then going to

219
00:13:00,559 --> 00:13:05,480
Speaker 1: need the cooperation of the Mexican government to repatriate people

220
00:13:05,480 --> 00:13:08,760
Speaker 1: who are not Mexicans into Mexico, which the Mexican government

221
00:13:08,840 --> 00:13:12,280
Speaker 1: has no obligation to do. They're doing it right now

222
00:13:12,320 --> 00:13:15,320
Speaker 1: as a favor to Americans at a rate of thirty

223
00:13:15,360 --> 00:13:19,240
Speaker 1: thousand per month, But this would require much more than that.

224
00:13:19,360 --> 00:13:22,120
Speaker 1: Remember we're talking about at the moment four thousand people

225
00:13:22,160 --> 00:13:25,000
Speaker 1: per day. So we do some amateur mathematics here, we're

226
00:13:25,040 --> 00:13:27,480
Speaker 1: talking about one hundred and twenty thousand people per month.

227
00:13:28,240 --> 00:13:31,960
Speaker 1: Is the Mexican government, especially after this election, likely to

228
00:13:32,000 --> 00:13:35,240
Speaker 1: do that? So we have two big issues. Number one

229
00:13:35,240 --> 00:13:37,679
Speaker 1: that there's going to be an immediate injunction that is

230
00:13:37,920 --> 00:13:41,520
Speaker 1: a one hundred percent thirty on this Biden policy. I

231
00:13:41,559 --> 00:13:43,520
Speaker 1: mean that injunction might be issued by the end of

232
00:13:43,559 --> 00:13:47,440
Speaker 1: this week. And then the second question is after that

233
00:13:47,520 --> 00:13:50,640
Speaker 1: injunction is issued, if it ever gets listed by the

234
00:13:50,679 --> 00:13:53,960
Speaker 1: Supreme Court, Well, does the Mexican government allow you to

235
00:13:54,000 --> 00:13:55,000
Speaker 1: actually implement this?

236
00:13:55,440 --> 00:13:58,560
Speaker 3: Yeah, Biden mentioned the Mexican government in his in his

237
00:13:58,720 --> 00:14:03,520
Speaker 3: statement indicating that they will cooperate, but who knows. You

238
00:14:03,559 --> 00:14:08,959
Speaker 3: have a new president now. Administration officials said that individuals

239
00:14:09,000 --> 00:14:11,160
Speaker 3: will be removed to their country of origin in a

240
00:14:11,200 --> 00:14:15,240
Speaker 3: matter of days, if not hours. Does the Biden administration

241
00:14:15,520 --> 00:14:19,160
Speaker 3: have enough resources to quickly expel them?

242
00:14:19,520 --> 00:14:21,760
Speaker 1: So the answer to that question is going to be

243
00:14:21,840 --> 00:14:24,920
Speaker 1: it depends what country the person is from. For instance,

244
00:14:24,920 --> 00:14:28,600
Speaker 1: if they're from Venezuela, Venezuela is not accepting people who're

245
00:14:28,640 --> 00:14:32,000
Speaker 1: trying to deport, and Cuba is not really accepting people

246
00:14:32,080 --> 00:14:35,120
Speaker 1: we're trying to deport, and eighty has some very difficult

247
00:14:35,200 --> 00:14:38,200
Speaker 1: conditions right now, so it's difficult to support people in

248
00:14:38,320 --> 00:14:41,560
Speaker 1: large scale and so you start adding all of those up,

249
00:14:41,600 --> 00:14:44,360
Speaker 1: and you start getting significant chunks of people that you

250
00:14:44,400 --> 00:14:47,400
Speaker 1: cannot deport very quickly. China is another one. You can't

251
00:14:47,440 --> 00:14:49,960
Speaker 1: really deport people to China. What are you going to

252
00:14:50,000 --> 00:14:51,800
Speaker 1: be doing with all of those people who are crossing

253
00:14:51,800 --> 00:14:54,600
Speaker 1: the border. Nothing really is going to be changing there

254
00:14:54,720 --> 00:14:58,880
Speaker 1: other than unless Mexico lets you bring them back into Mexico.

255
00:14:59,280 --> 00:15:02,520
Speaker 1: But then they become Mexico's problem, and then the question is, well,

256
00:15:02,520 --> 00:15:05,320
Speaker 1: how long is Mexico willing to deal with such a

257
00:15:05,320 --> 00:15:09,800
Speaker 1: surge of people inside of Mexico. So that's the complication here.

258
00:15:10,360 --> 00:15:14,000
Speaker 1: But at the end of the day, that's where we're at.

259
00:15:13,720 --> 00:15:18,040
Speaker 3: Lea take us through what actually will happen when these

260
00:15:18,160 --> 00:15:21,320
Speaker 3: migrants are stopped. I mean, it's not just turn them

261
00:15:21,360 --> 00:15:25,160
Speaker 3: around and have them go back. They'll have to be processed.

262
00:15:24,640 --> 00:15:27,000
Speaker 1: Right, So it will depend what happens. Is if it'll

263
00:15:27,000 --> 00:15:29,880
Speaker 1: be a Mexican person, that will be very simple. The

264
00:15:29,960 --> 00:15:33,600
Speaker 1: Mexican person will come, they will be immediately banned, they

265
00:15:33,640 --> 00:15:36,640
Speaker 1: will be sent back into Mexico. That one's very simple.

266
00:15:37,080 --> 00:15:40,720
Speaker 1: Perhaps for some of the Central American migrants, that also

267
00:15:40,760 --> 00:15:46,320
Speaker 1: will happen. They will be immediately apprehended, they will be detained,

268
00:15:46,320 --> 00:15:48,760
Speaker 1: and they will be sent back into Mexico. They probably

269
00:15:48,800 --> 00:15:52,800
Speaker 1: won't be flown back to Central America, but sometimes that's

270
00:15:52,840 --> 00:15:56,280
Speaker 1: possible too, And so in those scenarios, if a flight

271
00:15:56,320 --> 00:15:59,120
Speaker 1: can be arranged and it's quick enough, they would also

272
00:15:59,200 --> 00:16:03,440
Speaker 1: be flown into Central America. For the others, this gets

273
00:16:03,520 --> 00:16:06,400
Speaker 1: more complicated because if Mexico doesn't let you bring them

274
00:16:06,440 --> 00:16:09,760
Speaker 1: into Mexico, then they will have to be detained. Because

275
00:16:09,800 --> 00:16:12,600
Speaker 1: if they're not detained, you'll never get them back. It'll

276
00:16:12,600 --> 00:16:16,400
Speaker 1: be impossible because they'll just be released for some future

277
00:16:16,400 --> 00:16:19,960
Speaker 1: immigration hearing. So you'll have to keep them detained. And

278
00:16:20,080 --> 00:16:23,840
Speaker 1: the question is do you have the sufficient detention resources

279
00:16:24,120 --> 00:16:26,800
Speaker 1: to be able to keep them detained while you're trying

280
00:16:26,800 --> 00:16:29,920
Speaker 1: to arrange for sometimes they don't have passports, and if

281
00:16:29,960 --> 00:16:32,600
Speaker 1: they don't have passports, you need their home country to

282
00:16:32,680 --> 00:16:35,640
Speaker 1: issue it in order to get them flown back or

283
00:16:35,680 --> 00:16:38,560
Speaker 1: for whatever arrangements are needed to get them to be

284
00:16:38,600 --> 00:16:41,360
Speaker 1: able to be flown back. But again, in cases where

285
00:16:41,400 --> 00:16:43,320
Speaker 1: you know you're not going to be able to deport people,

286
00:16:43,760 --> 00:16:48,560
Speaker 1: which are Chinese, Cuban, Venezuelan cases, some Haitian cases, some

287
00:16:48,680 --> 00:16:51,800
Speaker 1: Nicaraguan cases, those are going to be very tough. I

288
00:16:51,800 --> 00:16:55,480
Speaker 1: don't see what an executive order can change unless Mexico

289
00:16:55,560 --> 00:16:58,600
Speaker 1: is willing to let you remove those people into Mexico,

290
00:16:59,080 --> 00:17:02,160
Speaker 1: or as Trump starts doing, which the Bidens administration hasn't

291
00:17:02,160 --> 00:17:05,119
Speaker 1: announced yet. Trump was starting to get deals with certain

292
00:17:05,160 --> 00:17:09,320
Speaker 1: countries in Central America to actually deport people into those countries.

293
00:17:10,040 --> 00:17:15,640
Speaker 3: The initial criticism from immigration advocates and progressives is that

294
00:17:15,840 --> 00:17:18,760
Speaker 3: this is just what Trump did, But the administration has

295
00:17:18,800 --> 00:17:22,840
Speaker 3: said this is not comparable to Trump's system wide crackdowns.

296
00:17:23,200 --> 00:17:25,600
Speaker 3: What do you think It sounds a lot like it.

297
00:17:25,600 --> 00:17:28,919
Speaker 1: It is almost identical to what Trump did, with the

298
00:17:28,960 --> 00:17:32,800
Speaker 1: exception that they made some carveouts for unaccompanied children, which

299
00:17:32,840 --> 00:17:37,000
Speaker 1: is required under the Trafficking Victims Protection Act, and also

300
00:17:37,359 --> 00:17:42,200
Speaker 1: they made exceptions for people with urgent medical and humanitarian

301
00:17:42,280 --> 00:17:46,440
Speaker 1: claims and victims of human trafficking, whatever that may appear.

302
00:17:46,520 --> 00:17:48,720
Speaker 1: Because at the end of the day, all of those

303
00:17:48,760 --> 00:17:51,800
Speaker 1: screenings are going to be done very quickly by someone

304
00:17:51,800 --> 00:17:56,280
Speaker 1: who's a border patrol officer who may not necessarily that

305
00:17:56,400 --> 00:17:58,240
Speaker 1: might not be their top priority at the moment. They

306
00:17:58,280 --> 00:18:02,520
Speaker 1: may have a security agenda that they're trying to fulfill,

307
00:18:02,920 --> 00:18:06,199
Speaker 1: and so asking if someone's been human traffic may not

308
00:18:06,440 --> 00:18:09,119
Speaker 1: be at the moment's top of mind, and so what

309
00:18:09,200 --> 00:18:12,679
Speaker 1: ends up happening is in its implementation, it ends up

310
00:18:12,720 --> 00:18:15,080
Speaker 1: being almost identical to the Trump band.

311
00:18:15,960 --> 00:18:21,359
Speaker 3: The numbers of unauthorized crossings have continued to go down

312
00:18:21,400 --> 00:18:23,880
Speaker 3: in recent months from a high in December.

313
00:18:23,880 --> 00:18:26,680
Speaker 1: Correct there were days that we were at twelve thousand

314
00:18:26,720 --> 00:18:30,679
Speaker 1: people crossing per day, and now we're down to around

315
00:18:30,720 --> 00:18:34,639
Speaker 1: four thousand. And if you recall what they were talking

316
00:18:34,680 --> 00:18:38,240
Speaker 1: about the bill in Congress, they were actually talking about

317
00:18:38,240 --> 00:18:42,240
Speaker 1: five thousand crossings per day. So interestingly enough, now the

318
00:18:42,320 --> 00:18:45,359
Speaker 1: crossings are under four thousand, they're between thirty five hundred

319
00:18:45,359 --> 00:18:48,520
Speaker 1: and four thousand, and so the question is why has

320
00:18:48,560 --> 00:18:53,440
Speaker 1: the Biden administration decided that twenty five hundred is actually

321
00:18:53,480 --> 00:18:57,440
Speaker 1: the unacceptable number? Because in the legislation that was being

322
00:18:57,480 --> 00:19:01,160
Speaker 1: talked about before, it was actually sci fi, and now

323
00:19:01,160 --> 00:19:04,199
Speaker 1: we're talking about twenty five hundred. And what seems to

324
00:19:04,200 --> 00:19:07,760
Speaker 1: be happening is this number appears to be moving in

325
00:19:07,880 --> 00:19:12,359
Speaker 1: order to be able to justify an executive order, so

326
00:19:12,400 --> 00:19:14,320
Speaker 1: that what ends up happening is you can at least

327
00:19:14,320 --> 00:19:16,639
Speaker 1: implement it for now. But I do think the Night

328
00:19:16,680 --> 00:19:20,400
Speaker 1: administration understands because they have very smart lawyers that are

329
00:19:20,400 --> 00:19:23,320
Speaker 1: there that the actual sequence of events of the way

330
00:19:23,400 --> 00:19:26,159
Speaker 1: this is going to play out is they've written the

331
00:19:26,280 --> 00:19:30,280
Speaker 1: executive order. Now it's going to be implemented tonight. It

332
00:19:30,359 --> 00:19:34,159
Speaker 1: will be immediately sued. There will be an immediate injunction,

333
00:19:34,760 --> 00:19:37,840
Speaker 1: so the order goes away, and then they try to

334
00:19:37,880 --> 00:19:41,520
Speaker 1: appeal to the Ninth Circuit and the Supreme Court will

335
00:19:41,560 --> 00:19:43,960
Speaker 1: be very interesting to see if they try to take

336
00:19:44,000 --> 00:19:46,239
Speaker 1: a fast track or if they try to take a

337
00:19:46,280 --> 00:19:49,159
Speaker 1: slow track. That will be very indicative of whether this

338
00:19:49,320 --> 00:19:52,760
Speaker 1: was meant to be a political gambit or whether this

339
00:19:52,920 --> 00:19:57,000
Speaker 1: was meant to be a legitimate border operation and procedure.

340
00:19:57,480 --> 00:19:59,600
Speaker 1: If they take the slow road, then we know this

341
00:19:59,640 --> 00:20:02,520
Speaker 1: is all because nothing's gonna happen until the election. If

342
00:20:02,520 --> 00:20:05,800
Speaker 1: they take the fast road, I suppose the Supreme Court

343
00:20:05,920 --> 00:20:09,080
Speaker 1: pen within the next thirty days or so decide whether

344
00:20:09,160 --> 00:20:12,280
Speaker 1: they want to stay an injunction and allow this to

345
00:20:12,320 --> 00:20:16,400
Speaker 1: go into effect. But if that does go into effect,

346
00:20:17,000 --> 00:20:20,359
Speaker 1: then the question is going to be will you be

347
00:20:20,440 --> 00:20:23,439
Speaker 1: able to get those numbers down to the actual twenty

348
00:20:23,440 --> 00:20:26,240
Speaker 1: five hundred level that they're talking about. And we'll have

349
00:20:26,280 --> 00:20:28,480
Speaker 1: to wait and see how that ends up getting implemented.

350
00:20:28,880 --> 00:20:31,679
Speaker 3: And you seem pretty sure that this order won't to

351
00:20:31,840 --> 00:20:33,520
Speaker 3: even make it to the weekend.

352
00:20:34,359 --> 00:20:36,920
Speaker 1: Yeah, definitely, by the end of this week, this thing

353
00:20:37,000 --> 00:20:39,560
Speaker 1: is going to be enjoying just because it's binding Ninth

354
00:20:39,600 --> 00:20:41,960
Speaker 1: Circuit presidents already and we.

355
00:20:41,960 --> 00:20:43,960
Speaker 3: May be a long way away from that. But I mean,

356
00:20:44,080 --> 00:20:46,320
Speaker 3: what do you think the chances are at the Supreme Court?

357
00:20:46,480 --> 00:20:47,879
Speaker 3: It sounds like a technicality.

358
00:20:48,640 --> 00:20:51,080
Speaker 1: I think it would be very difficult. It's going to depend,

359
00:20:51,119 --> 00:20:53,960
Speaker 1: I think on how the advocates would argue this. But

360
00:20:54,040 --> 00:20:56,680
Speaker 1: the way I would argue it is this, be very

361
00:20:56,720 --> 00:21:00,159
Speaker 1: careful what you wish for by an administration or or

362
00:21:00,200 --> 00:21:03,280
Speaker 1: Trump administration or anyone else who thinks that you can

363
00:21:03,359 --> 00:21:06,840
Speaker 1: ban people on the border using this statute, Because if

364
00:21:06,880 --> 00:21:10,520
Speaker 1: what you're gonna say is we will not treat people

365
00:21:10,560 --> 00:21:14,600
Speaker 1: whose bodies are inside the United States as people who

366
00:21:14,600 --> 00:21:18,600
Speaker 1: have entered the United States, then you will have lost

367
00:21:19,359 --> 00:21:23,359
Speaker 1: your ability to prosecute people for illegal entry. That's gone.

368
00:21:23,400 --> 00:21:26,080
Speaker 1: You can't have it both ways, And so which one

369
00:21:26,119 --> 00:21:28,080
Speaker 1: do you prefer. Do you prefer to have a statute

370
00:21:28,359 --> 00:21:31,600
Speaker 1: to let you prosecute people for illegal entry or do

371
00:21:31,640 --> 00:21:36,320
Speaker 1: you prefer to have this travel band situation? And that's

372
00:21:36,359 --> 00:21:38,720
Speaker 1: what it's gonna come down to but entry either means

373
00:21:38,880 --> 00:21:41,320
Speaker 1: entry or it doesn't mean it. If you're gonna say

374
00:21:41,840 --> 00:21:43,800
Speaker 1: entry means, oh, you have to be here a certain

375
00:21:43,800 --> 00:21:46,199
Speaker 1: amount of time, well that would have had to have

376
00:21:46,240 --> 00:21:50,919
Speaker 1: been written in the executive order, and that's not written

377
00:21:50,920 --> 00:21:53,360
Speaker 1: in the executive order. So I don't know how they're

378
00:21:53,359 --> 00:21:56,680
Speaker 1: going to distinguish these two things, but I think that's

379
00:21:56,720 --> 00:21:59,840
Speaker 1: going to be where the Court gets hung up and says,

380
00:22:00,000 --> 00:22:01,720
Speaker 1: wait a second, I don't think we can do this.

381
00:22:02,600 --> 00:22:07,360
Speaker 3: Considering all that, it sounds more like Biden did this

382
00:22:07,400 --> 00:22:08,880
Speaker 3: for political reasons.

383
00:22:09,440 --> 00:22:12,760
Speaker 1: Well. I think the timing of it, obviously right after

384
00:22:12,800 --> 00:22:16,439
Speaker 1: the Mexican election, shows they were cognizant of that, and

385
00:22:16,480 --> 00:22:19,600
Speaker 1: I think they did feel they needed to have something

386
00:22:19,680 --> 00:22:23,080
Speaker 1: to speak about because they were being asked every day

387
00:22:23,720 --> 00:22:26,600
Speaker 1: in the press room, in the White House news conference

388
00:22:26,640 --> 00:22:29,480
Speaker 1: as well. I understand you keep blaming the Congress, but

389
00:22:29,560 --> 00:22:32,879
Speaker 1: what has the Biden administration done? And they said, we

390
00:22:32,920 --> 00:22:36,280
Speaker 1: can't do anything more? It's illegal, and that people say, well,

391
00:22:36,280 --> 00:22:38,960
Speaker 1: why don't you try prove it? And so they have

392
00:22:39,119 --> 00:22:42,920
Speaker 1: now succumbed to this argument and they're saying, okay, well

393
00:22:43,000 --> 00:22:45,400
Speaker 1: you claim that we haven't tried. Well, now, we've tried,

394
00:22:45,480 --> 00:22:47,960
Speaker 1: let's see what happened, and I think this is what's

395
00:22:48,000 --> 00:22:48,600
Speaker 1: happened here.

396
00:22:49,080 --> 00:22:53,240
Speaker 3: During his statement, Biden mentioned something that we've discussed before,

397
00:22:53,320 --> 00:22:57,560
Speaker 3: which is the hope that migrants will start to know

398
00:22:57,840 --> 00:23:00,600
Speaker 3: that they're going to be removed quickly and not be

399
00:23:00,680 --> 00:23:03,639
Speaker 3: able to stay in the US for years through their

400
00:23:03,640 --> 00:23:07,359
Speaker 3: immigration court process, and they perhaps just won't.

401
00:23:07,119 --> 00:23:08,520
Speaker 4: Make the trip, right.

402
00:23:08,560 --> 00:23:12,160
Speaker 1: I mean, that's the deterrent effect you're trying to instill.

403
00:23:12,880 --> 00:23:16,240
Speaker 1: And that does work, but it only works when people

404
00:23:16,240 --> 00:23:19,800
Speaker 1: are getting real time information that it's not working to

405
00:23:19,840 --> 00:23:22,760
Speaker 1: come across the border. So if there's a stream of

406
00:23:22,760 --> 00:23:26,240
Speaker 1: that kind of real time information, people will stop coming.

407
00:23:26,480 --> 00:23:30,160
Speaker 1: But the communication networks the smugglers, it's all way too

408
00:23:30,200 --> 00:23:35,040
Speaker 1: sophisticated now to simply say don't come. That doesn't work anymore.

409
00:23:35,520 --> 00:23:38,760
Speaker 1: So now the next step is can the Biden administration

410
00:23:38,880 --> 00:23:42,760
Speaker 1: actually build a resume of real time information that deters

411
00:23:42,760 --> 00:23:45,680
Speaker 1: people from coming. It's going to be difficult at the beginning,

412
00:23:45,720 --> 00:23:47,800
Speaker 1: because at the beginning this is going to be enjoyed,

413
00:23:48,320 --> 00:23:50,680
Speaker 1: So they will need the Supreme Court to help them

414
00:23:50,720 --> 00:23:53,480
Speaker 1: in order to have any hope of being implemented.

415
00:23:53,960 --> 00:23:59,399
Speaker 3: Does this rule still comply with our obligations under international treaties.

416
00:24:00,560 --> 00:24:02,400
Speaker 1: Well, this gets very complicated.

417
00:24:02,440 --> 00:24:05,000
Speaker 3: Again, complicated, yes.

418
00:24:04,720 --> 00:24:07,440
Speaker 1: Because at the end of the day. Number one, are

419
00:24:07,440 --> 00:24:10,320
Speaker 1: they going to let people who are saying they're going

420
00:24:10,400 --> 00:24:13,760
Speaker 1: to be tortured have a screening for that or are

421
00:24:13,760 --> 00:24:17,119
Speaker 1: they just going to ban people even if they are

422
00:24:17,560 --> 00:24:20,920
Speaker 1: in fear of torture. If they do ban those people,

423
00:24:20,960 --> 00:24:23,919
Speaker 1: that is indeed in violation of the Convention against Torture.

424
00:24:24,480 --> 00:24:27,800
Speaker 1: And that was happening during COVID. But that's because at

425
00:24:27,800 --> 00:24:29,639
Speaker 1: the end of the day, we had a statute that

426
00:24:30,119 --> 00:24:32,760
Speaker 1: when there's an international obligation, if you have a statute

427
00:24:32,800 --> 00:24:36,080
Speaker 1: that is intension with that, the statute actually wins in

428
00:24:36,080 --> 00:24:40,560
Speaker 1: one of those supremacy battles, and so Final forty two wins.

429
00:24:40,920 --> 00:24:44,920
Speaker 1: But here that wouldn't take into effects, and so that

430
00:24:44,960 --> 00:24:48,160
Speaker 1: would be one. And then secondly, with regard to what's

431
00:24:48,200 --> 00:24:52,000
Speaker 1: called non refuel ma, which just means you can't return

432
00:24:52,080 --> 00:24:55,879
Speaker 1: people without doing anything, without trying to actually screen them,

433
00:24:56,320 --> 00:24:58,600
Speaker 1: that's going to be another one. And so obviously the

434
00:24:58,640 --> 00:25:01,960
Speaker 1: bind administration will say say, well, we're doing this because

435
00:25:01,960 --> 00:25:04,920
Speaker 1: we have the CVP APP, we have a refugee program,

436
00:25:04,920 --> 00:25:06,959
Speaker 1: we have a bunch of other ways for people to

437
00:25:07,040 --> 00:25:10,520
Speaker 1: do it. But in the end, if you're pushing people out,

438
00:25:11,200 --> 00:25:15,000
Speaker 1: you are technically violating the rules. Now, you don't have

439
00:25:15,040 --> 00:25:18,720
Speaker 1: a duty to give people asylum, which is the past

440
00:25:18,720 --> 00:25:21,359
Speaker 1: the citizenship, but you do have a duty not to

441
00:25:21,359 --> 00:25:25,119
Speaker 1: push people out who might face persecution unless and until

442
00:25:25,160 --> 00:25:27,919
Speaker 1: you've given them due process, at least if you're going

443
00:25:27,960 --> 00:25:31,560
Speaker 1: to meet your international obligations. And so this is going

444
00:25:31,600 --> 00:25:33,560
Speaker 1: to be a very tough argument because there were no

445
00:25:33,720 --> 00:25:38,080
Speaker 1: exceptions to that based on quote unquote twenty five hundred

446
00:25:38,119 --> 00:25:41,280
Speaker 1: people coming across the border. That would be a new thing.

447
00:25:42,359 --> 00:25:46,159
Speaker 3: So many complications, which seems to be a constant in

448
00:25:46,280 --> 00:25:49,639
Speaker 3: immigration law. Thanks so much, Leon for taking us through it.

449
00:25:50,119 --> 00:25:53,719
Speaker 3: That's Leon Fresco, a partner Hollanden Knight. Coming up next.

450
00:25:54,240 --> 00:25:57,400
Speaker 3: Hunter Biden goes on trial. I'm June Grosso and you're

451
00:25:57,440 --> 00:25:58,480
Speaker 3: listening to Bloomberg.

452
00:26:01,920 --> 00:26:06,720
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

453
00:26:07,800 --> 00:26:12,560
Speaker 3: In opening statements today, federal prosecutors painted President Joe Biden's

454
00:26:12,600 --> 00:26:16,680
Speaker 3: son Hunter as deceptive and driven by addiction, a man

455
00:26:16,720 --> 00:26:20,280
Speaker 3: whose dark habits ensnared loved ones and who knew what

456
00:26:20,359 --> 00:26:22,960
Speaker 3: he was doing when he lied on federal forms to

457
00:26:23,000 --> 00:26:27,480
Speaker 3: purchase a gun in twenty eighteen. But Biden's defense attorney

458
00:26:27,560 --> 00:26:30,480
Speaker 3: said he didn't knowingly lie when he filled out the

459
00:26:30,560 --> 00:26:34,280
Speaker 3: form and checked the box saying he wasn't using drugs.

460
00:26:35,160 --> 00:26:38,080
Speaker 3: A jury of six men and six women will decide

461
00:26:38,080 --> 00:26:42,159
Speaker 3: whether Biden is guilty of three felonies stemming from the

462
00:26:42,160 --> 00:26:45,840
Speaker 3: purchase of the cult Revolver. Joining me is criminal defense

463
00:26:45,840 --> 00:26:50,040
Speaker 3: attorney Michael Huff. So, looking at the jury broadly, you

464
00:26:50,119 --> 00:26:54,720
Speaker 3: have a substitute teacher, a secret service for tiree, several

465
00:26:54,760 --> 00:26:58,560
Speaker 3: gun owners, a man whose father was killed by a gun,

466
00:26:59,119 --> 00:27:02,600
Speaker 3: and a number of jurors whose family and friends have

467
00:27:02,720 --> 00:27:05,440
Speaker 3: suffered from addiction. Does it sound like a better jury

468
00:27:05,480 --> 00:27:07,119
Speaker 3: for the defense or the prosecution.

469
00:27:07,920 --> 00:27:11,680
Speaker 5: It sounds like a fair jury and a reasonably seated jury,

470
00:27:11,760 --> 00:27:14,800
Speaker 5: to the extent that in order for one to be

471
00:27:14,880 --> 00:27:17,479
Speaker 5: judged by a jury of their peers, you have to

472
00:27:17,520 --> 00:27:21,080
Speaker 5: sort of look at other substantive issues, such as do

473
00:27:21,160 --> 00:27:24,879
Speaker 5: they have an understanding of, let's say, substance abuse, or

474
00:27:24,920 --> 00:27:28,560
Speaker 5: do they have an aversion or preference towards possession of

475
00:27:28,640 --> 00:27:31,919
Speaker 5: firearms and things of that nature. What's surprising is the

476
00:27:31,960 --> 00:27:35,840
Speaker 5: former Secret Service member. I'm a former member of law enforcement,

477
00:27:36,280 --> 00:27:40,320
Speaker 5: police officer and patrol supervisor from Houston, Texas. And as

478
00:27:40,400 --> 00:27:42,240
Speaker 5: much as I would love to serve on a jury,

479
00:27:42,280 --> 00:27:45,640
Speaker 5: I've never had the pleasure of being selected. So I'm

480
00:27:45,680 --> 00:27:48,800
Speaker 5: surprised about that selection, not so much on the others.

481
00:27:48,840 --> 00:27:51,879
Speaker 5: And I think it does give the defense. I wouldn't

482
00:27:51,920 --> 00:27:55,560
Speaker 5: say an upper hand necessarily, but I do think they'll

483
00:27:55,600 --> 00:27:58,080
Speaker 5: get a fair bite at the apple. And I would

484
00:27:58,160 --> 00:28:00,280
Speaker 5: say if I had to choose on you know who,

485
00:28:00,280 --> 00:28:03,719
Speaker 5: it benefits more. It leans towards the defense rather than

486
00:28:03,760 --> 00:28:04,480
Speaker 5: the prosecution.

487
00:28:05,080 --> 00:28:08,720
Speaker 3: So let's talk about the charges he faces three felony

488
00:28:08,840 --> 00:28:12,160
Speaker 3: charges related to a gun he purchased in twenty eighteen.

489
00:28:13,119 --> 00:28:18,800
Speaker 3: Is this overcharging to charge three felonies based on one transaction?

490
00:28:20,080 --> 00:28:25,119
Speaker 5: Not necessarily? You know the nexus of the occurrence, meaning

491
00:28:25,200 --> 00:28:28,919
Speaker 5: the factors that go into each offense just have to

492
00:28:28,960 --> 00:28:32,520
Speaker 5: be satisfied for the prima facial case, so you can have,

493
00:28:32,640 --> 00:28:37,400
Speaker 5: as we saw recently with President Trump, one interaction resulting

494
00:28:37,400 --> 00:28:40,640
Speaker 5: in thirty four So any charges right, so three, I

495
00:28:40,640 --> 00:28:44,080
Speaker 5: wouldn't say that that's overcharging. I think that there are

496
00:28:44,120 --> 00:28:48,480
Speaker 5: some issues with respect to his mental culpability. He had

497
00:28:48,520 --> 00:28:53,200
Speaker 5: to knowingly possess the firearm while understanding that he was

498
00:28:53,320 --> 00:28:56,560
Speaker 5: violating the prohibition, which means that he had to know

499
00:28:57,160 --> 00:29:00,800
Speaker 5: that misrepresenting that he was a drug use was a

500
00:29:00,880 --> 00:29:03,640
Speaker 5: violation of the prohibition, not just that he was a

501
00:29:03,720 --> 00:29:06,880
Speaker 5: drug user and possessed the weapon, but rather he knew

502
00:29:06,920 --> 00:29:08,959
Speaker 5: that he was not supposed to because he was a

503
00:29:09,040 --> 00:29:11,720
Speaker 5: drug user. And also there's the issue of whether or

504
00:29:11,800 --> 00:29:15,240
Speaker 5: not he actually considered himself to be a drug user

505
00:29:15,280 --> 00:29:17,760
Speaker 5: at the time that he completed that document. So I

506
00:29:17,760 --> 00:29:19,480
Speaker 5: went a couple steps ahead there, but.

507
00:29:19,600 --> 00:29:22,200
Speaker 3: No, it's okay, because that brings up the question if

508
00:29:22,200 --> 00:29:25,000
Speaker 3: he was a drug user, can you hold him responsible

509
00:29:25,080 --> 00:29:26,920
Speaker 3: for knowingly filling out a form?

510
00:29:27,640 --> 00:29:31,040
Speaker 5: Right, So that's where I started doing a little bit

511
00:29:31,080 --> 00:29:33,360
Speaker 5: more digging, and I came up with a case, and

512
00:29:33,360 --> 00:29:35,520
Speaker 5: that's out of the Eleventh Circuit. It went up to

513
00:29:35,560 --> 00:29:39,200
Speaker 5: the Supreme Court. So the Supreme Court last term held

514
00:29:39,520 --> 00:29:43,240
Speaker 5: that knowingly here means that you knew both that you

515
00:29:43,360 --> 00:29:47,720
Speaker 5: possessed the firearm and that your actions violated the elements

516
00:29:47,720 --> 00:29:51,640
Speaker 5: of the prohibition. So how do you prove what he

517
00:29:52,080 --> 00:29:55,200
Speaker 5: knew or didn't know beyond a reasonable doubt? And to

518
00:29:55,320 --> 00:29:58,440
Speaker 5: your point, particularly if he is a drug user. So

519
00:29:59,040 --> 00:30:02,600
Speaker 5: the construct of this law may be found to be

520
00:30:02,720 --> 00:30:05,480
Speaker 5: too ambiguous and that might be an out for the dissent.

521
00:30:06,720 --> 00:30:10,560
Speaker 3: Today, the prosecutors spent hours on Biden's drug problem, and

522
00:30:10,600 --> 00:30:13,640
Speaker 3: they used his own words to show the depth of

523
00:30:13,720 --> 00:30:18,800
Speaker 3: his addiction from his memoir from messages. How far does

524
00:30:18,840 --> 00:30:20,120
Speaker 3: that get the prosecution.

525
00:30:20,680 --> 00:30:25,120
Speaker 5: They definitely need to put facts into evidence that demonstrates

526
00:30:25,120 --> 00:30:28,000
Speaker 5: that he satisfies the element of the prima facia case.

527
00:30:28,040 --> 00:30:32,160
Speaker 5: He has to be unlawfully using a substance controlled substance

528
00:30:32,480 --> 00:30:35,920
Speaker 5: Layman's terms of drug user basically, so they definitely have

529
00:30:36,000 --> 00:30:38,640
Speaker 5: to get that into evidence. As I understand that there

530
00:30:38,640 --> 00:30:42,880
Speaker 5: are also photos of him with known drug dealers, and

531
00:30:43,240 --> 00:30:45,960
Speaker 5: I don't know whether he was actually smoking using a

532
00:30:46,000 --> 00:30:49,360
Speaker 5: controlled substance believed to be crack cocaine, or it was

533
00:30:49,440 --> 00:30:51,800
Speaker 5: in the photo. So those are things that will be

534
00:30:51,960 --> 00:30:55,120
Speaker 5: very damaging if they in fact are entered into evidence.

535
00:30:55,280 --> 00:30:58,480
Speaker 5: But nailing down the timeline is what's going to be hard.

536
00:30:58,640 --> 00:31:02,720
Speaker 5: How close to the application was his drug use and

537
00:31:02,760 --> 00:31:06,160
Speaker 5: are they able through data mining or other sources able

538
00:31:06,200 --> 00:31:09,560
Speaker 5: to nail down the date of his usage. But again

539
00:31:09,720 --> 00:31:12,280
Speaker 5: you're still going to end up back at the knowingly

540
00:31:12,880 --> 00:31:16,320
Speaker 5: violating the prohibition, and most of us aren't, you know,

541
00:31:16,440 --> 00:31:19,160
Speaker 5: most of us out in the world aren't until now

542
00:31:19,640 --> 00:31:23,280
Speaker 5: aware of the fact that there are various prohibitions on

543
00:31:23,400 --> 00:31:26,840
Speaker 5: the application right and knowing that being a drug user

544
00:31:26,880 --> 00:31:29,800
Speaker 5: and buying a gun equal to felony. That's where the

545
00:31:30,440 --> 00:31:32,800
Speaker 5: law comes into the knowingly piece. And I just don't

546
00:31:32,840 --> 00:31:35,160
Speaker 5: know that the prosecution will be able to get there at.

547
00:31:35,040 --> 00:31:38,000
Speaker 3: The end, And that was the main thrust of the

548
00:31:38,080 --> 00:31:44,160
Speaker 3: defense opening statement. Hunter Biden didn't knowingly violate these laws.

549
00:31:43,960 --> 00:31:47,200
Speaker 5: And so that's where it turns. And this does not

550
00:31:47,280 --> 00:31:50,520
Speaker 5: look like it's a strict liability crime, meaning that you know,

551
00:31:50,560 --> 00:31:53,640
Speaker 5: if you run a red light but you didn't know

552
00:31:53,720 --> 00:31:56,720
Speaker 5: that you had to only go on green, that strict liability,

553
00:31:56,760 --> 00:31:59,280
Speaker 5: no one cares. You're getting the citation and that's a

554
00:31:59,320 --> 00:32:03,000
Speaker 5: done deal. But in this they're looking at a subjective intent,

555
00:32:03,160 --> 00:32:06,240
Speaker 5: not an objective intent. Well, it may be objective subjective,

556
00:32:06,320 --> 00:32:09,320
Speaker 5: but it's not strict liability, meaning that they have to

557
00:32:09,360 --> 00:32:12,280
Speaker 5: actually show that he knowingly did though, and there's so

558
00:32:12,440 --> 00:32:16,320
Speaker 5: much room to defend him on that because it ends

559
00:32:16,320 --> 00:32:19,760
Speaker 5: with a subjective analysis. And that's why they're looking at potentially,

560
00:32:20,440 --> 00:32:23,360
Speaker 5: which I've never done in my career, put my own

561
00:32:23,400 --> 00:32:26,000
Speaker 5: client on the stand, But in this instance, I can

562
00:32:26,080 --> 00:32:27,560
Speaker 5: see why they're considering it.

563
00:32:28,160 --> 00:32:31,120
Speaker 3: His attorneys are arguing, well, you had to be a

564
00:32:31,160 --> 00:32:33,600
Speaker 3: drug user at the time you're filling out the form,

565
00:32:34,040 --> 00:32:37,320
Speaker 3: and the prosecution is saying, no, you're just a drug user.

566
00:32:37,400 --> 00:32:39,080
Speaker 3: It doesn't have to be at the very moment you're

567
00:32:39,120 --> 00:32:40,080
Speaker 3: filling out the form.

568
00:32:40,400 --> 00:32:43,800
Speaker 5: That argument's going to fail June. That would be void

569
00:32:43,880 --> 00:32:48,640
Speaker 5: for overbreadth, meaning that in that case, anyone ever, whoever

570
00:32:48,800 --> 00:32:51,080
Speaker 5: used drugs could never own a weapon. And I don't

571
00:32:51,080 --> 00:32:54,120
Speaker 5: think that that was the framer's intent when they enacted

572
00:32:54,160 --> 00:32:56,080
Speaker 5: that statue. And I think that one's going to be

573
00:32:56,120 --> 00:32:58,120
Speaker 5: a tough hurdle. I don't think they get anywhere with

574
00:32:58,200 --> 00:33:01,320
Speaker 5: that argument, and folks in their own camp, like the NRA,

575
00:33:01,640 --> 00:33:04,880
Speaker 5: would have a field day lobbying against that. I don't

576
00:33:04,880 --> 00:33:07,280
Speaker 5: think they're going to get very far down that line.

577
00:33:07,440 --> 00:33:10,840
Speaker 3: So there's going to be some difficult evidence for the defense.

578
00:33:11,880 --> 00:33:17,280
Speaker 3: In Hunter Biden's own words in texts and emails. In

579
00:33:17,320 --> 00:33:20,160
Speaker 3: one text at the time, he wrote that he was

580
00:33:20,200 --> 00:33:24,400
Speaker 3: sleeping on a car smoking crack on Fourth Street, and Rodney,

581
00:33:24,440 --> 00:33:25,320
Speaker 3: and the defense.

582
00:33:25,000 --> 00:33:28,080
Speaker 5: Will have a tough time with that one, particularly if

583
00:33:28,120 --> 00:33:33,200
Speaker 5: they're having him testify that evidence gets in and can

584
00:33:33,240 --> 00:33:35,640
Speaker 5: be considered can get in as a state of then

585
00:33:35,720 --> 00:33:40,040
Speaker 5: state of mind admission, so that one the defense will

586
00:33:40,080 --> 00:33:42,920
Speaker 5: have a very tough time getting around. Now the question

587
00:33:43,080 --> 00:33:47,640
Speaker 5: then will become does drug use after the fact satisfy

588
00:33:47,880 --> 00:33:51,040
Speaker 5: the elements of the prima facia case? I think on

589
00:33:51,120 --> 00:33:54,400
Speaker 5: count one then it gets them there, but still not

590
00:33:54,560 --> 00:33:57,719
Speaker 5: on count three if I have them correct, which is

591
00:33:57,960 --> 00:34:01,400
Speaker 5: the knowingly violating the prohibition, if at the time he

592
00:34:01,480 --> 00:34:04,760
Speaker 5: filled out the application, they don't get one of the counts. Now,

593
00:34:05,200 --> 00:34:08,440
Speaker 5: that goes back to your question did they overcharge? They've

594
00:34:08,560 --> 00:34:11,800
Speaker 5: charged him with everything that they think could be viable

595
00:34:12,200 --> 00:34:14,520
Speaker 5: in the event that they have to dismiss one or

596
00:34:14,520 --> 00:34:17,000
Speaker 5: they lose on one, rather then they still have the

597
00:34:17,040 --> 00:34:18,680
Speaker 5: other two remaining fight with.

598
00:34:19,400 --> 00:34:23,719
Speaker 3: How often do you see someone being tried over statements

599
00:34:23,760 --> 00:34:27,480
Speaker 3: that they made when purchasing a gun when it's not

600
00:34:27,600 --> 00:34:29,480
Speaker 3: in connection with any other crime.

601
00:34:29,880 --> 00:34:33,280
Speaker 5: I think there's some four hundred or five hundred central

602
00:34:33,360 --> 00:34:35,799
Speaker 5: charges a year, and only I think it was two

603
00:34:35,880 --> 00:34:39,280
Speaker 5: hundred and ninety eight of those cases approximately are picked

604
00:34:39,360 --> 00:34:42,160
Speaker 5: up for these same types of charges, you know. So

605
00:34:42,239 --> 00:34:44,440
Speaker 5: then of course it lends to the question of is

606
00:34:44,520 --> 00:34:47,680
Speaker 5: he being singled out because of who his parents are

607
00:34:48,040 --> 00:34:52,759
Speaker 5: and because of his position in the public domain, or

608
00:34:52,960 --> 00:34:59,200
Speaker 5: under similarly situated circumstances, would another individual be facing three felony.

609
00:34:59,640 --> 00:35:03,719
Speaker 3: This is going forward because the plea deal that he

610
00:35:03,800 --> 00:35:06,799
Speaker 3: had reached with prosecutors collapsed.

611
00:35:07,360 --> 00:35:07,520
Speaker 1: Right.

612
00:35:07,880 --> 00:35:10,680
Speaker 3: Does that have any effect at all on the trial?

613
00:35:11,160 --> 00:35:14,160
Speaker 5: Well, it may have effect on the trial because up

614
00:35:14,239 --> 00:35:18,839
Speaker 5: until the verdict, he can accept a plea, and so

615
00:35:19,600 --> 00:35:24,080
Speaker 5: they may re enter into negotiations. If the prosecution determines

616
00:35:24,120 --> 00:35:27,839
Speaker 5: that their evidence is not as strong and on one

617
00:35:28,000 --> 00:35:30,880
Speaker 5: or all of the counts, they may offer a plea.

618
00:35:31,360 --> 00:35:34,359
Speaker 5: If the defense feels that they don't have as much

619
00:35:34,400 --> 00:35:37,200
Speaker 5: as they need to defend him on all three counts,

620
00:35:37,560 --> 00:35:41,120
Speaker 5: they may look to negotiate again. It'll be interesting to

621
00:35:41,160 --> 00:35:44,879
Speaker 5: see how the judge handles that, because, as I understand it,

622
00:35:45,640 --> 00:35:49,839
Speaker 5: the plea was reasonable to those who evaluated that, but

623
00:35:49,880 --> 00:35:51,160
Speaker 5: the judge shot it down.

624
00:35:51,800 --> 00:35:56,120
Speaker 3: There's going to be a lot of salacious evidence drugs

625
00:35:56,160 --> 00:35:59,160
Speaker 3: and guns and affairs. Is there any way to keep

626
00:35:59,200 --> 00:36:02,040
Speaker 3: this trial from being sort of sensational?

627
00:36:02,520 --> 00:36:05,280
Speaker 5: You know? From my journey from law enforcement to lawyering,

628
00:36:05,320 --> 00:36:08,000
Speaker 5: I've seen a lot in twenty seven years, and this

629
00:36:08,080 --> 00:36:12,680
Speaker 5: has all the ingredients to cook up a salacious, sensational

630
00:36:12,719 --> 00:36:16,000
Speaker 5: life story. And you know, and you're you're in the

631
00:36:16,040 --> 00:36:19,480
Speaker 5: business in terms of journalism, you know how things get

632
00:36:19,520 --> 00:36:22,239
Speaker 5: spun and take on a life of their own. And

633
00:36:22,280 --> 00:36:26,880
Speaker 5: so we ride on the coattails of our first president

634
00:36:26,920 --> 00:36:30,560
Speaker 5: in history being convicted of thirty four felonies but still

635
00:36:30,560 --> 00:36:33,360
Speaker 5: going on to be on the ballot, to now the

636
00:36:33,400 --> 00:36:36,239
Speaker 5: first first son facing felony. So it seems to be

637
00:36:36,239 --> 00:36:38,319
Speaker 5: a parade of felony is going on, and I think

638
00:36:38,360 --> 00:36:41,200
Speaker 5: it's going to be a free for all for bere for.

639
00:36:41,239 --> 00:36:44,680
Speaker 3: Worth hearing about these trials. The average person must think

640
00:36:44,760 --> 00:36:49,120
Speaker 3: every trial is equally exciting, and we know that that

641
00:36:49,280 --> 00:36:52,440
Speaker 3: is not the case at all. Thanks so much, Michael.

642
00:36:52,680 --> 00:36:55,840
Speaker 3: That's criminal defense attorney Michael Huff and that's it for

643
00:36:55,880 --> 00:36:58,879
Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can

644
00:36:58,960 --> 00:37:01,880
Speaker 3: always get the latest lead news by subscribing and listening

645
00:37:01,920 --> 00:37:05,600
Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg

646
00:37:05,640 --> 00:37:09,719
Speaker 3: dot com Slash podcast Slash Law. I'm June Grosso and

647
00:37:09,840 --> 00:37:11,120
Speaker 3: this is Bloomberg,