WEBVTT - Is There Enough Evidence Yet to Indict Trump? 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.440 --> 0:00:12.160 The January six Committee has been laying out a case 0:00:12.240 --> 0:00:16.000 for the criminal prosecution of former President Donald Trump, with 0:00:16.120 --> 0:00:19.840 the last hear in detailing almost minute by minute, Trump's 0:00:19.880 --> 0:00:24.280 refusal to stop his supporters from storming the US capital. 0:00:24.680 --> 0:00:29.360 Republican Congressman Adam Kinzinger, a committee member, says Trump should 0:00:29.400 --> 0:00:34.600 face charges by the Justice Department despite the uncomfortable optics 0:00:34.600 --> 0:00:37.960 of indicting a former president. If there's the ability to 0:00:38.000 --> 0:00:41.520 move forward on prosecuting and you don't, you've basically set 0:00:41.560 --> 0:00:44.280 the floor for future behavior of any president. And I 0:00:44.320 --> 0:00:46.640 don't think a democracy can survive that. So I certainly 0:00:46.640 --> 0:00:49.960 hope they're moving forward. Joining me as former federal prosecutor 0:00:50.040 --> 0:00:54.040 Kevin O'Brien, a partner with Ford O'Brien Landy, Kevin, I 0:00:54.040 --> 0:00:56.600 want to look at this in two ways. Before the 0:00:56.760 --> 0:00:59.880 riot and during the riot, it's pretty clear he did 0:01:00.040 --> 0:01:02.360 nothing to stop the riot. He sat in a dining 0:01:02.440 --> 0:01:05.520 room near the Oval office and watched Fox News. He 0:01:05.600 --> 0:01:08.440 called senators to tell them they should object to the 0:01:08.440 --> 0:01:13.000 election results. He fended off please from various White House 0:01:13.520 --> 0:01:19.320 people to stop the violence. Is that enough not doing anything? Well, 0:01:19.360 --> 0:01:22.199 it's not a crime to do nothing except in very 0:01:22.319 --> 0:01:28.280 very unusual circumstances that I don't think apply here. In 0:01:28.360 --> 0:01:32.200 some places, in some situations there are good Samaritan rules 0:01:32.280 --> 0:01:36.839 that require actors to take action, and if they don't, 0:01:36.920 --> 0:01:40.960 they can be charged or sued. We're not talking about 0:01:40.959 --> 0:01:44.520 that situation here, But I think the significance of the 0:01:45.280 --> 0:01:47.319 I think it was a hundred and eighty seven minutes, 0:01:47.560 --> 0:01:50.440 wasn't it. They counted them up, in which he did nothing. 0:01:50.960 --> 0:01:54.560 The significance is it shows what his state of mind was. 0:01:55.080 --> 0:01:57.800 That's a chestnut. We hear a lot about state of mind, 0:01:58.040 --> 0:02:01.960 and I think this makes even clearer than before that 0:02:02.320 --> 0:02:06.120 Trump's state of mind was he was in favor of 0:02:06.200 --> 0:02:09.720 what was going on, if he didn't want the violence, 0:02:10.160 --> 0:02:13.240 which is a stretch. He wanted something to happen to 0:02:13.360 --> 0:02:17.120 prevent the counting of the votes so he could continue 0:02:17.120 --> 0:02:21.120 his term in office. He wanted Pence to be scared 0:02:21.160 --> 0:02:24.040 out of his mind and have to leave the capital 0:02:24.080 --> 0:02:27.239 before he could discharge his duties. He wanted the senators 0:02:28.080 --> 0:02:31.760 and the congressman to disperse so they couldn't do their jobs. 0:02:32.360 --> 0:02:36.320 He wanted something to happen to delay or prevent that 0:02:36.560 --> 0:02:42.120 constitutional function from being fulfilled. And the eight seven minutes 0:02:42.760 --> 0:02:46.880 kind of goes to that issue is seven minutes is 0:02:46.919 --> 0:02:50.600 a long time. When you're watching the proceedings on television. 0:02:50.720 --> 0:02:54.600 It's pretty eloquent testimony. And I think that's the legal 0:02:54.639 --> 0:03:00.680 significance and probably also the moral and general significance. Representative 0:03:00.720 --> 0:03:04.480 Adam Kinzinger said, the panel has proven a criminal case 0:03:04.680 --> 0:03:08.240 against Trump, but it seems to me that the evidence 0:03:08.400 --> 0:03:12.560 is less clear about whether he incided the attack on 0:03:12.600 --> 0:03:16.079 the Capitol. I mean, there are the tweets and the speech, 0:03:16.600 --> 0:03:20.000 but we also call for com at different points. It 0:03:20.040 --> 0:03:23.280 doesn't seem very strong to me. I think there's some 0:03:23.480 --> 0:03:26.800 softness there. I agree. I think this this would be 0:03:26.800 --> 0:03:31.280 a difficult aspect in any criminal case. You can keep 0:03:31.320 --> 0:03:33.880 in mind that the evidence gets pared down. A lot 0:03:33.919 --> 0:03:38.160 of the stuff we hear and read about probably isn't admissible, 0:03:38.560 --> 0:03:43.520 you know. For example, one of the commentator's favorite examples 0:03:43.920 --> 0:03:48.840 is all the demonstrators and rioters who said we went 0:03:48.880 --> 0:03:52.200 in because Trump told us to and wanted us to 0:03:52.240 --> 0:03:56.360 go in. Now, unless there's evidence of a conspiracy between 0:03:56.440 --> 0:03:59.800 Trump and the rioters and so far, we haven't seen 0:04:00.040 --> 0:04:03.640 at it's pretty clear in the absence of a conspiracy, 0:04:03.800 --> 0:04:07.760 none of those statements are admissible against Trump and a 0:04:07.800 --> 0:04:12.120 criminal trial, they just wouldn't come into evidence. So just 0:04:12.280 --> 0:04:14.640 taking that one example, you can see that the way 0:04:14.680 --> 0:04:18.040 a trial would proceed under the rules of criminal procedure 0:04:18.040 --> 0:04:22.120 and federal or even state court because there's the Georgia 0:04:22.560 --> 0:04:25.760 case going on, which is in state court, the way 0:04:25.760 --> 0:04:28.120 a trial would proceed is not the way you see 0:04:28.120 --> 0:04:32.320 it unfolding on television with the benefit of everyone's commentary. 0:04:32.600 --> 0:04:35.160 And there are a lot of examples of that stuff 0:04:35.200 --> 0:04:39.239 that wouldn't come into evidence and jury wouldn't hear about 0:04:39.440 --> 0:04:42.440 or see in a criminal trial. And that's one of 0:04:42.480 --> 0:04:45.440 the drawbacks that people have to take in mind when 0:04:45.480 --> 0:04:49.360 they consider what the Justice Department is doing and Merrick 0:04:49.400 --> 0:04:55.600 Garland is doing in weighing these potential charges. It's very difficult. 0:04:56.560 --> 0:04:59.440 There was evidence time and time again that he especially 0:04:59.440 --> 0:05:02.840 with the takes, that he didn't accept the fact that 0:05:02.920 --> 0:05:07.880 the election was over. That was no surprise because it's 0:05:07.880 --> 0:05:11.120 still going on to this day. Apparently a week and 0:05:11.120 --> 0:05:13.279 a half before the hearing, he called the speaker of 0:05:13.320 --> 0:05:17.760 the Wisconsin legislature to demand he retroactively take the states 0:05:17.800 --> 0:05:21.400 electors away from Joe Biden. Right. I think again, it's 0:05:21.520 --> 0:05:26.800 used to show a motive for doing wrong on January six, 0:05:27.160 --> 0:05:30.279 and immediately before and immediately after. But you're right, in 0:05:30.320 --> 0:05:33.359 a way, it proves too much because he's still of 0:05:33.520 --> 0:05:36.039 that state of mind. It's hard to argue that the 0:05:36.080 --> 0:05:40.160 criminal scheme is continuing to the president and not. Of course, 0:05:40.200 --> 0:05:43.720 he's not in a position to influence anything now once 0:05:43.760 --> 0:05:46.920 he stood down from office, which he had to do finally, 0:05:47.040 --> 0:05:49.960 and he lost that ability. And that's why January six 0:05:50.160 --> 0:05:52.760 was so important to him, because that was really the 0:05:52.880 --> 0:05:55.880 last opportunity to try to throw a wrench in the 0:05:55.960 --> 0:06:00.760 gears and prevent the succession that put O Biden in 0:06:00.880 --> 0:06:03.960 the White House. But you're right, his state of mind, 0:06:04.080 --> 0:06:07.479 for what it's worth, has not changed. Still there and 0:06:07.600 --> 0:06:11.400 seems to be almost a permanent feature of his mental makeup, 0:06:11.440 --> 0:06:15.120 probably will be forever. He's never going, I would hazard 0:06:15.200 --> 0:06:17.880 to predict, he's never going to admit that there was 0:06:17.960 --> 0:06:22.880 no fraud, the election was legitimate. I've heard conflicting opinions 0:06:22.920 --> 0:06:27.080 from former federal prosecutors. One is that it's taking the 0:06:27.160 --> 0:06:30.440 Justice Department too long to indict Trump or to decide 0:06:30.440 --> 0:06:33.400 whether or not to indict him. That the January six 0:06:33.400 --> 0:06:37.599 committee is obviously out in front of the Justice Department. 0:06:38.080 --> 0:06:41.000 The other is that it takes time to build a case, 0:06:41.600 --> 0:06:46.440 a precedent setting case against a former president. Which side 0:06:46.480 --> 0:06:49.120 do you want? I think both those things can be true. 0:06:51.480 --> 0:06:55.880 That's not fair, even if they started from day one whenever, 0:06:55.920 --> 0:06:58.800 that is I guess when they started building cases against 0:06:58.880 --> 0:07:02.520 these lesser pete. Building a case against the president does 0:07:02.600 --> 0:07:05.080 take a lot of time, and they have to take 0:07:05.080 --> 0:07:10.880 into account this enormous range of actors in the Justice Department, 0:07:11.400 --> 0:07:16.160 in the White House, in the demonstrators, the people that 0:07:16.240 --> 0:07:21.000 attended the speech, in Trump's inner circle. All these people 0:07:21.200 --> 0:07:26.840 have roles to play in the scheme as it's apparently unfolded. 0:07:27.560 --> 0:07:31.440 And we're not talking about people who are unsophisticated. These 0:07:31.480 --> 0:07:35.560 people know how to find good lawyers. There are funds 0:07:35.600 --> 0:07:39.440 being created by various right wing groups that would enable 0:07:39.480 --> 0:07:44.480 them to hire good ones, approaching these people, negotiating with them, 0:07:44.520 --> 0:07:46.880 getting them to see the light and to tell the truth. 0:07:47.200 --> 0:07:50.320 And we're talking about dozens of people. Again, it takes time, 0:07:50.600 --> 0:07:54.800 and the theory of the case also is subtle, because 0:07:54.800 --> 0:07:57.360 as you said, you know, he wasn't out there with 0:07:57.520 --> 0:08:02.640 a Confederate flag bang down the door of the Capitol 0:08:02.680 --> 0:08:06.600 Building as usual. He's so good at this. He he 0:08:06.720 --> 0:08:12.600 works by indirection. He makes little hints, he drops little lines, 0:08:12.760 --> 0:08:16.000 little nuggets that his followers take, you know, as a 0:08:16.080 --> 0:08:19.800 signal to go forward and storm the Capitol building. But 0:08:19.840 --> 0:08:23.080 he doesn't say that outright. Many people have said, beginning 0:08:23.080 --> 0:08:25.840 with Michael Cohen, he's like a mafia dot. He doesn't 0:08:25.840 --> 0:08:28.280 have to say it. He knows his followers would do 0:08:28.360 --> 0:08:32.080 just about anything, the famous line about standing in Fifth Avenue, 0:08:32.720 --> 0:08:35.880 and so he just he just does the minimum necessary 0:08:35.920 --> 0:08:39.840 to motivate them. And then later when the stuff hits 0:08:39.880 --> 0:08:44.400 the fan, he has plausible deniability. Oh I never meant 0:08:45.000 --> 0:08:48.280 dot dot dot, And that's what he's doing now. So 0:08:48.400 --> 0:08:52.080 that to take into account all these subtle e's, and 0:08:52.160 --> 0:08:55.439 there are, as we've been discussing, weaknesses in the case 0:08:55.600 --> 0:08:59.040 that need to be addressed, if not overcome. There is 0:08:59.080 --> 0:09:03.800 no core conspiracy involving the riot itself, as far as 0:09:03.840 --> 0:09:07.920 I can see, clearly fomented it. He clearly wanted it 0:09:07.960 --> 0:09:11.400 to happen. But there's no evidence that he conspired with 0:09:11.440 --> 0:09:13.920 any of the planners or leaders of the riot to 0:09:14.000 --> 0:09:17.120 go into the Capitol building that day. Of course, you 0:09:17.120 --> 0:09:19.800 can argue he didn't have to. He had other means 0:09:19.840 --> 0:09:23.360 at his disposal. And that's where the the subtlety of 0:09:23.400 --> 0:09:27.040 the guy comes into play makes it very difficult. People 0:09:27.080 --> 0:09:32.320 keep pointing to conspiracy to obstruct an official proceeding as 0:09:32.360 --> 0:09:35.960 being the easiest to charge, were the most likely. You 0:09:36.000 --> 0:09:39.360 think there isn't any evidence of conspiracy. No, I think 0:09:39.360 --> 0:09:41.800 there is. I think you know, you've got to define 0:09:41.960 --> 0:09:46.000 what conspiracy you're talking about. I think it's pretty clear 0:09:46.040 --> 0:09:49.640 there was a conspiracy within the White House with Eastman 0:09:50.080 --> 0:09:54.079 and all these so called legal intellectuals that he surrounded 0:09:54.160 --> 0:09:58.600 himself with, Clark in the Justice Department. All these people 0:09:58.640 --> 0:10:01.800 came up with these crazy theory areas that are blatantly 0:10:01.840 --> 0:10:07.560 illegal and unconstitutional to satisfy and serve him, and then 0:10:07.600 --> 0:10:11.080 they tried to enact them. That's a conspiracy. That was 0:10:11.120 --> 0:10:14.520 a plan that was hatched and steps were taken towards it, 0:10:15.160 --> 0:10:18.440 and that's the definition of a conspiracy. Conspiracy doesn't have 0:10:18.559 --> 0:10:22.800 to succeed legally to be charged with conspiracy. You just 0:10:22.880 --> 0:10:26.520 have to agree to an unlawful end and then take 0:10:26.720 --> 0:10:30.880 some steps towards that end. But that's not the conspiracy 0:10:30.920 --> 0:10:35.120 that excites people. I mean, it's a conspiracy on paper. 0:10:35.200 --> 0:10:38.800 It may technically be a crime, and as I think 0:10:38.800 --> 0:10:41.600 I've said before, it it's not one that has a 0:10:41.640 --> 0:10:44.680 great deal of jury appealed because it's it's a bunch 0:10:44.800 --> 0:10:48.560 of half cocked intellectuals sitting around, Gee, what can we 0:10:48.600 --> 0:10:51.880 do to keep this guy in power? Not that exciting. 0:10:51.960 --> 0:10:56.040 It maybe a crime technically. The bigger conspiracy is the 0:10:56.040 --> 0:10:59.440 one that involves against storming the capital. When you reach 0:10:59.559 --> 0:11:05.400 the point where you're taking steps under a conspiracy theory, 0:11:05.480 --> 0:11:09.480 under an agreement. Again, if Trump had taken steps based 0:11:09.520 --> 0:11:12.200 on an agreement with Proud Boys and those folks to 0:11:12.360 --> 0:11:16.040 get together, get all excited and worked up over the speech, 0:11:16.720 --> 0:11:19.800 get their troops in formation, and then storm the Capitol 0:11:20.000 --> 0:11:24.760 and and go to routs, abc D, Nancy Pelosi's office, 0:11:24.840 --> 0:11:27.599 and so on and so forth. Now that's a conspiracy 0:11:27.720 --> 0:11:33.000 worth getting excited about. Also patently illegal, and more importantly, 0:11:34.120 --> 0:11:38.200 is dangerous to the country and the constitution, a very 0:11:38.320 --> 0:11:42.800 very serious crime that would be a great centerpiece for 0:11:42.840 --> 0:11:47.600 a criminal case. But unfortunately, again there is no evidence 0:11:47.640 --> 0:11:51.200 so far that Trump ever agreed with the leaders of 0:11:51.320 --> 0:11:56.600 Proud Boys, or Roger Stone or any of those intermediaries 0:11:56.600 --> 0:12:00.640 he had working for him, never agree ead with any 0:12:00.679 --> 0:12:04.120 of those folks to do that. Again, he stood back, 0:12:04.320 --> 0:12:09.319 He made oblique references. He incited them with phrases it's 0:12:09.360 --> 0:12:12.840 going to be wild, you know, stand back and stand by. 0:12:13.200 --> 0:12:17.560 Those are signaled to the cognizanti in these groups which 0:12:17.600 --> 0:12:20.880 are hanging on his every word. But there's no agreement 0:12:21.160 --> 0:12:24.400 based on those kinds of statements that you could prove 0:12:24.960 --> 0:12:28.960 to actually lead an insurrection and take over the Capitol building. 0:12:29.600 --> 0:12:32.560 So the way I would summarize it, there is a 0:12:32.640 --> 0:12:37.640 legal case which is rather dry and rather I wouldn't 0:12:37.679 --> 0:12:41.439 say it's not worthy of consideration because it's plainly contemplates 0:12:41.440 --> 0:12:44.880 the illegal action. But it was an idea that was 0:12:45.720 --> 0:12:50.440 you know, tried on for size and ultimately not carried out. 0:12:51.160 --> 0:12:55.400 And that that's criminal because again, a conspiracy doesn't require 0:12:56.280 --> 0:12:59.080 many more than a few steps. But not a very 0:12:59.160 --> 0:13:03.480 interesting case for a jury, and one that you can 0:13:03.800 --> 0:13:08.280 genuinely doubt should be the subject of a prosecution involving 0:13:08.280 --> 0:13:11.960 a former president. I think that's troubling Garland. On the 0:13:12.000 --> 0:13:17.800 other hand, you've got this outrageous riot which caused loss 0:13:17.800 --> 0:13:20.720 of life and very nearly shut down the government and 0:13:20.880 --> 0:13:24.960 overthrew our constitutional processes. But there you don't have a 0:13:25.000 --> 0:13:27.720 link to Trump. You don't have Trump as a member 0:13:27.960 --> 0:13:33.560 of that conspiracy. It involves other people so far, so 0:13:33.840 --> 0:13:36.080 you know, pick your poison. So I think these are 0:13:36.080 --> 0:13:38.960 the kinds of questions that may be troubling the attorney channel. 0:13:39.040 --> 0:13:41.600 He's got a lot on his plate and these are very, 0:13:41.679 --> 0:13:46.080 very difficult questions. Do you think that in order to 0:13:46.240 --> 0:13:49.160 pursue a case, in order to prosecute the a G 0:13:49.360 --> 0:13:52.800 would want a witness from the inner circle to flip 0:13:52.800 --> 0:13:55.440 a witness from the inner circle. And then the question 0:13:55.559 --> 0:14:00.160 is is their attorney client privilege? Is their executive privilege? No, 0:14:00.320 --> 0:14:02.640 I don't think any of those privilege claims hold water. 0:14:02.679 --> 0:14:07.560 And right now these claims have some traction because the 0:14:07.679 --> 0:14:11.680 January six Committee really doesn't have the power to force 0:14:11.760 --> 0:14:15.679 people to testify in the face of an assertion of privileges. 0:14:15.880 --> 0:14:19.000 They do, but it takes forever and their time is limited. 0:14:19.000 --> 0:14:21.360 They've got to move forward. Have these hearings right, or 0:14:21.360 --> 0:14:24.480 report they don't have time to dawdle with these individual 0:14:24.640 --> 0:14:28.760 assertions of privilege. The Justice Department, though, could you know, 0:14:28.840 --> 0:14:33.160 there's something called the crime fraud exception, which states, and 0:14:33.240 --> 0:14:39.080 it's well established that even attorney client communications in furtherance 0:14:39.160 --> 0:14:44.720 of a crime or a fraud are not protected because 0:14:44.840 --> 0:14:50.280 essentially you're trying to cloak criminal statements and criminal conversations 0:14:50.320 --> 0:14:52.840 and furtherance of a crime, and that shouldn't be allowed. 0:14:53.360 --> 0:14:56.520 But that requires a showing. You have to go into court, 0:14:56.720 --> 0:15:00.240 someone asserts the privilege, you move to compel comply ends 0:15:00.280 --> 0:15:02.720 with the subpoena, and you try to tell the judge 0:15:03.000 --> 0:15:07.040 the reason why the subpoena should be enforced notwithstanding the 0:15:07.080 --> 0:15:11.240 claims of privilege, is we believe these communications were in 0:15:11.360 --> 0:15:14.760 further into a crime. See the following. You've got to 0:15:14.760 --> 0:15:18.840 cite transcripts and documents. You have to have evidence, and 0:15:18.880 --> 0:15:22.800 they have the manpower and the expertise and the powers 0:15:22.880 --> 0:15:27.040 under the law to enforce decisions of that kind. So far, 0:15:27.040 --> 0:15:28.600 by the way, I'm not aware of any case in 0:15:28.600 --> 0:15:31.640 which they've done that, which sort of tells you that 0:15:32.040 --> 0:15:35.240 they're probably not as far along as one would like. 0:15:35.640 --> 0:15:38.440 I mean, these are These are again high level decisions. 0:15:38.560 --> 0:15:43.200 They require a good deal of legal sophistication. You've got 0:15:43.200 --> 0:15:47.240 to pick your battles carefully. I mean, someone like Roger Stone, 0:15:47.440 --> 0:15:52.200 for example, or General Flynn or Mark Meadows could be 0:15:53.000 --> 0:15:57.480 vulnerable in these terms under the crime of fraud exception, 0:15:57.600 --> 0:16:01.280 and undoubtedly these people Meadows. It's pretty obvious from the 0:16:01.520 --> 0:16:05.760 hearing so far. These people obviously have important evidence against 0:16:05.760 --> 0:16:08.880 Trump and could provide that link that we've been talking 0:16:08.920 --> 0:16:13.320 about with the violent conspirators trying to attack the capital. 0:16:13.560 --> 0:16:15.840 But you'd have to go into court with a careful 0:16:15.880 --> 0:16:19.120 plan and write the briefs and persuaded judge, and then 0:16:19.120 --> 0:16:21.760 there's an appeal. You get the idea. So far, that 0:16:21.760 --> 0:16:24.560 work hasn't been done, and that's a little troubling to 0:16:24.640 --> 0:16:27.360 people who think the Justice Department should be on the 0:16:27.440 --> 0:16:30.240 verge of indicting after all this period of time. It 0:16:30.240 --> 0:16:32.720 doesn't look that way, but it would. It would have 0:16:32.800 --> 0:16:34.600 to be done to have the kind of case that 0:16:34.680 --> 0:16:39.360 you're talking about June, where you have inside testimony linking 0:16:39.400 --> 0:16:43.280 the president to some of these outrageous actions at the 0:16:43.360 --> 0:16:47.640 Capitol that day. Trump is obviously going to run for 0:16:47.720 --> 0:16:51.120 president again. He's the current front runner for the Republican nomination, 0:16:51.720 --> 0:16:56.800 Will that in any way insulate him from prosecution if 0:16:56.800 --> 0:16:59.400 he runs for office. No, it shouldn't. It has no, 0:17:00.400 --> 0:17:03.040 it has no legal bearing. You know, there is a 0:17:03.120 --> 0:17:06.960 sort of policy of the Justice Department that you've probably 0:17:07.000 --> 0:17:11.520 read about in prior contexts that says you shouldn't conduct 0:17:11.520 --> 0:17:16.199 a political prosecution close to election season. But this has 0:17:16.240 --> 0:17:21.159 been brewing since the last election, Right, it's time to 0:17:21.200 --> 0:17:24.200 bring this to ahead. Those policies are really just rules 0:17:24.280 --> 0:17:27.080 of thumb there for internal guidance. They don't have the 0:17:27.119 --> 0:17:31.440 force of law. Someone marked Meadows, for example, couldn't go 0:17:31.480 --> 0:17:33.800 to court and say, hey, you can't indict me because 0:17:33.800 --> 0:17:36.479 it's too close to an election season. It's not how 0:17:36.520 --> 0:17:40.280 it works. It's just a policy he meant to guide 0:17:41.080 --> 0:17:44.640 practice within the Justice Department, and and in certain cases 0:17:44.720 --> 0:17:50.280 that policy can be um overturned or not followed, and 0:17:50.320 --> 0:17:52.600 that would probably be the case is here. No, there's 0:17:52.640 --> 0:17:56.399 no legal impediment at all to proceeding with a case 0:17:56.440 --> 0:18:01.240 against a former and would be press in the United States. 0:18:01.760 --> 0:18:04.000 Thanks so much for being on the show, Kevin. That's 0:18:04.040 --> 0:18:08.879 former federal prosecutor Kevin O'Brien. Partner with Ford O'Brien Landy. 0:18:10.480 --> 0:18:14.439 Immigrants are increasingly turning to the courts for solutions because 0:18:14.440 --> 0:18:18.080 of protracted weight times for benefits like work permits and 0:18:18.119 --> 0:18:23.440 travel authorization. The number of immigration related lawsuits over administrative 0:18:23.480 --> 0:18:27.240 delays filed as rits of men dames has spiked in 0:18:27.280 --> 0:18:30.680 the past two years. Plaintiffs are projected to file more 0:18:30.720 --> 0:18:33.720 than six thousand, two hundred such cases by the end 0:18:33.720 --> 0:18:38.160 of this year, according to the Transactional Records Access Clearinghouse. 0:18:38.520 --> 0:18:41.919 Joining me is immigration law expert Leon Fresco, a partner 0:18:41.920 --> 0:18:45.320 at Hollanden Night Leon what are some of the complaints 0:18:45.359 --> 0:18:48.920 being raised in these lawsuits? The lasses that are being 0:18:48.960 --> 0:18:51.920 filed are based on a number of factors. Yes, they 0:18:51.960 --> 0:18:55.560 are being filed mostly because of delays in the agency, 0:18:55.640 --> 0:18:57.920 and mostly because of the delays and the issue with 0:18:58.040 --> 0:19:02.040 the green card applications. But really they're being filed because 0:19:02.040 --> 0:19:05.639 there's delays all over the system. There's delays and the 0:19:05.680 --> 0:19:09.240 issuances of work permits, there's delays in the issuances of 0:19:09.320 --> 0:19:13.680 travel permits, there's delays in the issuances emotions to reopen, 0:19:14.040 --> 0:19:17.080 there's delays in the issuances of green cards. There's delays 0:19:17.119 --> 0:19:20.200 in the issuances of visas abroad by the state's department, 0:19:20.440 --> 0:19:23.000 and so all of this is leading to a record 0:19:23.040 --> 0:19:27.200 amount of litigation. Plus there's also people doing for review 0:19:27.320 --> 0:19:32.080 of denials of cases because the adjudicatory framework is still 0:19:32.080 --> 0:19:34.840 pretty much the one put in place by the Trump administration, 0:19:34.880 --> 0:19:38.399 where the scrutiny being requested in any given case is 0:19:38.480 --> 0:19:41.399 much much higher than it has previously been under the 0:19:41.400 --> 0:19:45.720 Obama administration. That scrutiny hasn't changed under the Biden administration, 0:19:45.800 --> 0:19:47.960 and so there are still many cases that are being 0:19:48.000 --> 0:19:51.239 denied that shouldn't have been denied, and so all of 0:19:51.240 --> 0:19:54.399 that is leading to this record number of litigation that 0:19:54.520 --> 0:19:57.480 you're seeing in the federal court. I don't ever remember 0:19:57.480 --> 0:20:00.240 a time when people weren't complaining about the delay is 0:20:00.480 --> 0:20:05.480 in processing, you know, immigration related requests. Is this much 0:20:05.520 --> 0:20:09.000 worse than it was? And if so, why I would 0:20:09.000 --> 0:20:11.359 say that the answer to that question is yes, it 0:20:11.520 --> 0:20:15.840 is materially worse than it was. And it's basically a 0:20:16.000 --> 0:20:18.199 case of you don't know what you have until you 0:20:18.240 --> 0:20:21.280 don't have it. So people, it is correct j to say, 0:20:21.320 --> 0:20:24.280 have always complained that the immigration system is too slow 0:20:25.040 --> 0:20:29.399 but they were complaining back then on a state of 0:20:29.440 --> 0:20:32.640 affairs where for a work permit it took three months 0:20:33.160 --> 0:20:36.160 and for a green card it took a year. Now 0:20:36.240 --> 0:20:38.920 we have for a work permit it takes nine months 0:20:38.960 --> 0:20:41.879 and for a green card it takes up to three years. 0:20:42.000 --> 0:20:46.560 And so because of that delay, that is materially worse. 0:20:46.640 --> 0:20:49.199 And the problem is we're now a year and a 0:20:49.200 --> 0:20:53.280 half into the Biden administration, so it's hard to say, oh, well, 0:20:53.320 --> 0:20:56.840 we've been felt this terrible hands. Yes, that may be true, 0:20:57.400 --> 0:20:59.720 but a year and a half end at this point, 0:21:00.160 --> 0:21:03.040 one would have hoped that the delays we're starting to 0:21:03.119 --> 0:21:06.480 peek on a downward scale, and we're not really seeing that. 0:21:07.240 --> 0:21:12.120 The American Immigration Lawyers Association has encouraged members to bring 0:21:12.200 --> 0:21:16.879 man dam as actions when their clients encounter excessive delays. 0:21:17.480 --> 0:21:21.320 Doesn't that cause more delays by having another action and 0:21:21.400 --> 0:21:25.280 having to have government attorneys fight that. Well. The problem 0:21:25.440 --> 0:21:30.040 is if every single person who has an application files 0:21:30.160 --> 0:21:33.760 also a man Damous application, then you're just recreating the 0:21:33.840 --> 0:21:37.240 same line again. So there's no doubt about that. But 0:21:38.000 --> 0:21:41.600 the idea is that by filing the man Damous litigation, 0:21:41.720 --> 0:21:46.600 what you're essentially doing is you are saying, hey, remember me, 0:21:46.880 --> 0:21:51.520 I exist, And when that happens, then the immigration authorities 0:21:51.560 --> 0:21:55.200 get around the deciding your case because otherwise they didn't 0:21:55.200 --> 0:21:58.520 remember necessarily that you existed. So if the delay is 0:21:58.560 --> 0:22:01.960 truly long, it is not a bad strategy to file 0:22:02.000 --> 0:22:06.000 a mandamus kate. But if everybody files a man davious case, 0:22:06.080 --> 0:22:08.840 then you do have the same problem of sort of 0:22:08.840 --> 0:22:13.960 a tragedy of the common situation where everybody recreates the 0:22:14.000 --> 0:22:17.440 same backlog, and now you have even worse backlog because 0:22:17.480 --> 0:22:19.960 the agency is not only dealing with the backlog but 0:22:20.080 --> 0:22:22.719 all of the lawsuits. But we're not seeing it at 0:22:22.760 --> 0:22:26.720 that level obviously, because we're seeing something along the order 0:22:26.760 --> 0:22:29.960 of six or seven thousand man Damous cases as opposed 0:22:30.000 --> 0:22:33.399 to millions of applications that are in the backlog. So 0:22:33.800 --> 0:22:37.760 it's not really a problem that would actually exist that 0:22:37.880 --> 0:22:40.760 everybody in the backlog would be filing a man Damous case. 0:22:41.480 --> 0:22:43.760 Do you get a more favorable outcome if you file 0:22:43.800 --> 0:22:47.399 a mandamus case? So this is an interesting question. A 0:22:47.440 --> 0:22:49.879 lot of people, when you discussed this, are very afraid 0:22:49.960 --> 0:22:52.720 to sue the government because they think that the government 0:22:52.840 --> 0:22:56.520 will retaliate against them and say, well, if you suit me, 0:22:56.560 --> 0:22:58.879 I'm going to just deny your case because I'm upset. 0:22:59.280 --> 0:23:02.200 But that actually it doesn't happen in practice and practice, 0:23:02.680 --> 0:23:05.119 what will happen is if you truly have a case 0:23:05.200 --> 0:23:09.040 that's delayed and you file a mandamus case, the government 0:23:09.080 --> 0:23:11.080 will usually try to work with you to each of 0:23:11.200 --> 0:23:16.160 you a decision, and that decision, I would say, undred 0:23:16.240 --> 0:23:20.360 times is the exact decisions that would have been issued anyway. 0:23:20.400 --> 0:23:23.440 I'm not personally known of a case of retaliation that's 0:23:23.480 --> 0:23:26.920 happened because of amenda damous case, and so I wouldn't 0:23:26.960 --> 0:23:31.000 fear filing it because of a fear of retaliation. So 0:23:31.080 --> 0:23:35.359 has the agency taken some actions to resolve these backlogs, Well, 0:23:35.520 --> 0:23:38.480 they have done as many things as they can figure 0:23:38.520 --> 0:23:40.760 out to do at the moment. And so what they've 0:23:40.800 --> 0:23:44.360 done is for work permit renewals, they've tried to make 0:23:44.400 --> 0:23:48.520 those longer so that people have to do less renewals 0:23:48.520 --> 0:23:51.280 than the future. And that's a good thing, but that 0:23:51.400 --> 0:23:53.800 sort of needs to cycle through the system. So they 0:23:53.800 --> 0:23:57.120 have to grant all of these applications with longer renewal 0:23:57.359 --> 0:24:00.160 before they can reach the benefit of having that at 0:24:00.280 --> 0:24:03.480 so that's the first problem. They fan it in some 0:24:03.640 --> 0:24:07.199 of these green card marriage cases that are take up 0:24:07.200 --> 0:24:10.520 a lot of their ties to extend the period of 0:24:10.560 --> 0:24:14.240 time whereby someone has a green card while they're waiting 0:24:14.400 --> 0:24:18.080 for their final permanent green cards to be issued. So 0:24:18.119 --> 0:24:21.520 they're doing things on the margins to lessen their case. 0:24:21.880 --> 0:24:25.720 But the problem is as an agency, they're also dealing 0:24:25.800 --> 0:24:30.399 with record numbers of asylum cases and record numbers of 0:24:30.840 --> 0:24:34.080 cases where people are trying to fill gaps in the 0:24:34.119 --> 0:24:37.720 fact that they can't find American workers. And so really 0:24:37.760 --> 0:24:40.960 what's happening is they're not getting anywhere because even if 0:24:41.000 --> 0:24:45.359 they can trim down a number of cases, they're still 0:24:45.440 --> 0:24:49.280 having to get excess cases from all kinds of other sources, 0:24:49.359 --> 0:24:52.560 and so they're not really making a dent in their 0:24:52.600 --> 0:24:56.240 overall workload. That was interesting. So why do green card 0:24:56.600 --> 0:25:00.760 marriage cases take up so much time? Well, because in 0:25:00.760 --> 0:25:04.199 the marriage context, it's not like a normal green card application. 0:25:04.320 --> 0:25:07.320 When you marry a US citizen, there's a two year 0:25:07.440 --> 0:25:11.399 conditional green card you get first, and then you have 0:25:11.480 --> 0:25:13.720 to come back after two years and prove you see, 0:25:13.760 --> 0:25:16.280 this wasn't a fraudulent marriage. We're still in a real 0:25:16.320 --> 0:25:19.719 marriage and only then you get your permanent green card, 0:25:20.119 --> 0:25:22.920