Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: The January six Committee has been laying out a case
Speaker 1: for the criminal prosecution of former President Donald Trump, with
Speaker 1: the last hear in detailing almost minute by minute, Trump's
Speaker 1: refusal to stop his supporters from storming the US capital.
Speaker 1: Republican Congressman Adam Kinzinger, a committee member, says Trump should
Speaker 1: face charges by the Justice Department despite the uncomfortable optics
Speaker 1: of indicting a former president. If there's the ability to
Speaker 1: move forward on prosecuting and you don't, you've basically set
Speaker 1: the floor for future behavior of any president. And I
Speaker 1: don't think a democracy can survive that. So I certainly
Speaker 1: hope they're moving forward. Joining me as former federal prosecutor
Speaker 1: Kevin O'Brien, a partner with Ford O'Brien Landy, Kevin, I
Speaker 1: want to look at this in two ways. Before the
Speaker 1: riot and during the riot, it's pretty clear he did
Speaker 1: nothing to stop the riot. He sat in a dining
Speaker 1: room near the Oval office and watched Fox News. He
Speaker 1: called senators to tell them they should object to the
Speaker 1: election results. He fended off please from various White House
Speaker 1: people to stop the violence. Is that enough not doing anything? Well,
Speaker 1: it's not a crime to do nothing except in very
Speaker 1: very unusual circumstances that I don't think apply here. In
Speaker 1: some places, in some situations there are good Samaritan rules
Speaker 1: that require actors to take action, and if they don't,
Speaker 1: they can be charged or sued. We're not talking about
Speaker 1: that situation here, But I think the significance of the
Speaker 1: I think it was a hundred and eighty seven minutes,
Speaker 1: wasn't it. They counted them up, in which he did nothing.
Speaker 1: The significance is it shows what his state of mind was.
Speaker 1: That's a chestnut. We hear a lot about state of mind,
Speaker 1: and I think this makes even clearer than before that
Speaker 1: Trump's state of mind was he was in favor of
Speaker 1: what was going on, if he didn't want the violence,
Speaker 1: which is a stretch. He wanted something to happen to
Speaker 1: prevent the counting of the votes so he could continue
Speaker 1: his term in office. He wanted Pence to be scared
Speaker 1: out of his mind and have to leave the capital
Speaker 1: before he could discharge his duties. He wanted the senators
Speaker 1: and the congressman to disperse so they couldn't do their jobs.
Speaker 1: He wanted something to happen to delay or prevent that
Speaker 1: constitutional function from being fulfilled. And the eight seven minutes
Speaker 1: kind of goes to that issue is seven minutes is
Speaker 1: a long time. When you're watching the proceedings on television.
Speaker 1: It's pretty eloquent testimony. And I think that's the legal
Speaker 1: significance and probably also the moral and general significance. Representative
Speaker 1: Adam Kinzinger said, the panel has proven a criminal case
Speaker 1: against Trump, but it seems to me that the evidence
Speaker 1: is less clear about whether he incided the attack on
Speaker 1: the Capitol. I mean, there are the tweets and the speech,
Speaker 1: but we also call for com at different points. It
Speaker 1: doesn't seem very strong to me. I think there's some
Speaker 1: softness there. I agree. I think this this would be
Speaker 1: a difficult aspect in any criminal case. You can keep
Speaker 1: in mind that the evidence gets pared down. A lot
Speaker 1: of the stuff we hear and read about probably isn't admissible,
Speaker 1: you know. For example, one of the commentator's favorite examples
Speaker 1: is all the demonstrators and rioters who said we went
Speaker 1: in because Trump told us to and wanted us to
Speaker 1: go in. Now, unless there's evidence of a conspiracy between
Speaker 1: Trump and the rioters and so far, we haven't seen
Speaker 1: at it's pretty clear in the absence of a conspiracy,
Speaker 1: none of those statements are admissible against Trump and a
Speaker 1: criminal trial, they just wouldn't come into evidence. So just
Speaker 1: taking that one example, you can see that the way
Speaker 1: a trial would proceed under the rules of criminal procedure
Speaker 1: and federal or even state court because there's the Georgia
Speaker 1: case going on, which is in state court, the way
Speaker 1: a trial would proceed is not the way you see
Speaker 1: it unfolding on television with the benefit of everyone's commentary.
Speaker 1: And there are a lot of examples of that stuff
Speaker 1: that wouldn't come into evidence and jury wouldn't hear about
Speaker 1: or see in a criminal trial. And that's one of
Speaker 1: the drawbacks that people have to take in mind when
Speaker 1: they consider what the Justice Department is doing and Merrick
Speaker 1: Garland is doing in weighing these potential charges. It's very difficult.
Speaker 1: There was evidence time and time again that he especially
Speaker 1: with the takes, that he didn't accept the fact that
Speaker 1: the election was over. That was no surprise because it's
Speaker 1: still going on to this day. Apparently a week and
Speaker 1: a half before the hearing, he called the speaker of
Speaker 1: the Wisconsin legislature to demand he retroactively take the states
Speaker 1: electors away from Joe Biden. Right. I think again, it's
Speaker 1: used to show a motive for doing wrong on January six,
Speaker 1: and immediately before and immediately after. But you're right, in
Speaker 1: a way, it proves too much because he's still of
Speaker 1: that state of mind. It's hard to argue that the
Speaker 1: criminal scheme is continuing to the president and not. Of course,
Speaker 1: he's not in a position to influence anything now once
Speaker 1: he stood down from office, which he had to do finally,
Speaker 1: and he lost that ability. And that's why January six
Speaker 1: was so important to him, because that was really the
Speaker 1: last opportunity to try to throw a wrench in the
Speaker 1: gears and prevent the succession that put O Biden in
Speaker 1: the White House. But you're right, his state of mind,
Speaker 1: for what it's worth, has not changed. Still there and
Speaker 1: seems to be almost a permanent feature of his mental makeup,
Speaker 1: probably will be forever. He's never going, I would hazard
Speaker 1: to predict, he's never going to admit that there was
Speaker 1: no fraud, the election was legitimate. I've heard conflicting opinions
Speaker 1: from former federal prosecutors. One is that it's taking the
Speaker 1: Justice Department too long to indict Trump or to decide
Speaker 1: whether or not to indict him. That the January six
Speaker 1: committee is obviously out in front of the Justice Department.
Speaker 1: The other is that it takes time to build a case,
Speaker 1: a precedent setting case against a former president. Which side
Speaker 1: do you want? I think both those things can be true.
Speaker 1: That's not fair, even if they started from day one whenever,
Speaker 1: that is I guess when they started building cases against
Speaker 1: these lesser pete. Building a case against the president does
Speaker 1: take a lot of time, and they have to take
Speaker 1: into account this enormous range of actors in the Justice Department,
Speaker 1: in the White House, in the demonstrators, the people that
Speaker 1: attended the speech, in Trump's inner circle. All these people
Speaker 1: have roles to play in the scheme as it's apparently unfolded.
Speaker 1: And we're not talking about people who are unsophisticated. These
Speaker 1: people know how to find good lawyers. There are funds
Speaker 1: being created by various right wing groups that would enable
Speaker 1: them to hire good ones, approaching these people, negotiating with them,
Speaker 1: getting them to see the light and to tell the truth.
Speaker 1: And we're talking about dozens of people. Again, it takes time,
Speaker 1: and the theory of the case also is subtle, because
Speaker 1: as you said, you know, he wasn't out there with
Speaker 1: a Confederate flag bang down the door of the Capitol
Speaker 1: Building as usual. He's so good at this. He he
Speaker 1: works by indirection. He makes little hints, he drops little lines,
Speaker 1: little nuggets that his followers take, you know, as a
Speaker 1: signal to go forward and storm the Capitol building. But
Speaker 1: he doesn't say that outright. Many people have said, beginning
Speaker 1: with Michael Cohen, he's like a mafia dot. He doesn't
Speaker 1: have to say it. He knows his followers would do
Speaker 1: just about anything, the famous line about standing in Fifth Avenue,
Speaker 1: and so he just he just does the minimum necessary
Speaker 1: to motivate them. And then later when the stuff hits
Speaker 1: the fan, he has plausible deniability. Oh I never meant
Speaker 1: dot dot dot, And that's what he's doing now. So
Speaker 1: that to take into account all these subtle e's, and
Speaker 1: there are, as we've been discussing, weaknesses in the case
Speaker 1: that need to be addressed, if not overcome. There is
Speaker 1: no core conspiracy involving the riot itself, as far as
Speaker 1: I can see, clearly fomented it. He clearly wanted it
Speaker 1: to happen. But there's no evidence that he conspired with
Speaker 1: any of the planners or leaders of the riot to
Speaker 1: go into the Capitol building that day. Of course, you
Speaker 1: can argue he didn't have to. He had other means
Speaker 1: at his disposal. And that's where the the subtlety of
Speaker 1: the guy comes into play makes it very difficult. People
Speaker 1: keep pointing to conspiracy to obstruct an official proceeding as
Speaker 1: being the easiest to charge, were the most likely. You
Speaker 1: think there isn't any evidence of conspiracy. No, I think
Speaker 1: there is. I think you know, you've got to define
Speaker 1: what conspiracy you're talking about. I think it's pretty clear
Speaker 1: there was a conspiracy within the White House with Eastman
Speaker 1: and all these so called legal intellectuals that he surrounded
Speaker 1: himself with, Clark in the Justice Department. All these people
Speaker 1: came up with these crazy theory areas that are blatantly
Speaker 1: illegal and unconstitutional to satisfy and serve him, and then
Speaker 1: they tried to enact them. That's a conspiracy. That was
Speaker 1: a plan that was hatched and steps were taken towards it,
Speaker 1: and that's the definition of a conspiracy. Conspiracy doesn't have
Speaker 1: to succeed legally to be charged with conspiracy. You just
Speaker 1: have to agree to an unlawful end and then take
Speaker 1: some steps towards that end. But that's not the conspiracy
Speaker 1: that excites people. I mean, it's a conspiracy on paper.
Speaker 1: It may technically be a crime, and as I think
Speaker 1: I've said before, it it's not one that has a
Speaker 1: great deal of jury appealed because it's it's a bunch
Speaker 1: of half cocked intellectuals sitting around, Gee, what can we
Speaker 1: do to keep this guy in power? Not that exciting.
Speaker 1: It maybe a crime technically. The bigger conspiracy is the
Speaker 1: one that involves against storming the capital. When you reach
Speaker 1: the point where you're taking steps under a conspiracy theory,
Speaker 1: under an agreement. Again, if Trump had taken steps based
Speaker 1: on an agreement with Proud Boys and those folks to
Speaker 1: get together, get all excited and worked up over the speech,
Speaker 1: get their troops in formation, and then storm the Capitol
Speaker 1: and and go to routs, abc D, Nancy Pelosi's office,
Speaker 1: and so on and so forth. Now that's a conspiracy
Speaker 1: worth getting excited about. Also patently illegal, and more importantly,
Speaker 1: is dangerous to the country and the constitution, a very
Speaker 1: very serious crime that would be a great centerpiece for
Speaker 1: a criminal case. But unfortunately, again there is no evidence
Speaker 1: so far that Trump ever agreed with the leaders of
Speaker 1: Proud Boys, or Roger Stone or any of those intermediaries
Speaker 1: he had working for him, never agree ead with any
Speaker 1: of those folks to do that. Again, he stood back,
Speaker 1: He made oblique references. He incited them with phrases it's
Speaker 1: going to be wild, you know, stand back and stand by.
Speaker 1: Those are signaled to the cognizanti in these groups which
Speaker 1: are hanging on his every word. But there's no agreement
Speaker 1: based on those kinds of statements that you could prove
Speaker 1: to actually lead an insurrection and take over the Capitol building.
Speaker 1: So the way I would summarize it, there is a
Speaker 1: legal case which is rather dry and rather I wouldn't
Speaker 1: say it's not worthy of consideration because it's plainly contemplates
Speaker 1: the illegal action. But it was an idea that was
Speaker 1: you know, tried on for size and ultimately not carried out.
Speaker 1: And that that's criminal because again, a conspiracy doesn't require
Speaker 1: many more than a few steps. But not a very
Speaker 1: interesting case for a jury, and one that you can
Speaker 1: genuinely doubt should be the subject of a prosecution involving
Speaker 1: a former president. I think that's troubling Garland. On the
Speaker 1: other hand, you've got this outrageous riot which caused loss
Speaker 1: of life and very nearly shut down the government and
Speaker 1: overthrew our constitutional processes. But there you don't have a
Speaker 1: link to Trump. You don't have Trump as a member
Speaker 1: of that conspiracy. It involves other people so far, so
Speaker 1: you know, pick your poison. So I think these are
Speaker 1: the kinds of questions that may be troubling the attorney channel.
Speaker 1: He's got a lot on his plate and these are very,
Speaker 1: very difficult questions. Do you think that in order to
Speaker 1: pursue a case, in order to prosecute the a G
Speaker 1: would want a witness from the inner circle to flip
Speaker 1: a witness from the inner circle. And then the question
Speaker 1: is is their attorney client privilege? Is their executive privilege? No,
Speaker 1: I don't think any of those privilege claims hold water.
Speaker 1: And right now these claims have some traction because the
Speaker 1: January six Committee really doesn't have the power to force
Speaker 1: people to testify in the face of an assertion of privileges.
Speaker 1: They do, but it takes forever and their time is limited.
Speaker 1: They've got to move forward. Have these hearings right, or
Speaker 1: report they don't have time to dawdle with these individual
Speaker 1: assertions of privilege. The Justice Department, though, could you know,
Speaker 1: there's something called the crime fraud exception, which states, and
Speaker 1: it's well established that even attorney client communications in furtherance
Speaker 1: of a crime or a fraud are not protected because
Speaker 1: essentially you're trying to cloak criminal statements and criminal conversations
Speaker 1: and furtherance of a crime, and that shouldn't be allowed.
Speaker 1: But that requires a showing. You have to go into court,
Speaker 1: someone asserts the privilege, you move to compel comply ends
Speaker 1: with the subpoena, and you try to tell the judge
Speaker 1: the reason why the subpoena should be enforced notwithstanding the
Speaker 1: claims of privilege, is we believe these communications were in
Speaker 1: further into a crime. See the following. You've got to
Speaker 1: cite transcripts and documents. You have to have evidence, and
Speaker 1: they have the manpower and the expertise and the powers
Speaker 1: under the law to enforce decisions of that kind. So far,
Speaker 1: by the way, I'm not aware of any case in
Speaker 1: which they've done that, which sort of tells you that
Speaker 1: they're probably not as far along as one would like.
Speaker 1: I mean, these are These are again high level decisions.
Speaker 1: They require a good deal of legal sophistication. You've got
Speaker 1: to pick your battles carefully. I mean, someone like Roger Stone,
Speaker 1: for example, or General Flynn or Mark Meadows could be
Speaker 1: vulnerable in these terms under the crime of fraud exception,
Speaker 1: and undoubtedly these people Meadows. It's pretty obvious from the
Speaker 1: hearing so far. These people obviously have important evidence against
Speaker 1: Trump and could provide that link that we've been talking
Speaker 1: about with the violent conspirators trying to attack the capital.
Speaker 1: But you'd have to go into court with a careful
Speaker 1: plan and write the briefs and persuaded judge, and then
Speaker 1: there's an appeal. You get the idea. So far, that
Speaker 1: work hasn't been done, and that's a little troubling to
Speaker 1: people who think the Justice Department should be on the
Speaker 1: verge of indicting after all this period of time. It
Speaker 1: doesn't look that way, but it would. It would have
Speaker 1: to be done to have the kind of case that
Speaker 1: you're talking about June, where you have inside testimony linking
Speaker 1: the president to some of these outrageous actions at the
Speaker 1: Capitol that day. Trump is obviously going to run for
Speaker 1: president again. He's the current front runner for the Republican nomination,
Speaker 1: Will that in any way insulate him from prosecution if
Speaker 1: he runs for office. No, it shouldn't. It has no,
Speaker 1: it has no legal bearing. You know, there is a
Speaker 1: sort of policy of the Justice Department that you've probably
Speaker 1: read about in prior contexts that says you shouldn't conduct
Speaker 1: a political prosecution close to election season. But this has
Speaker 1: been brewing since the last election, Right, it's time to
Speaker 1: bring this to ahead. Those policies are really just rules
Speaker 1: of thumb there for internal guidance. They don't have the
Speaker 1: force of law. Someone marked Meadows, for example, couldn't go
Speaker 1: to court and say, hey, you can't indict me because
Speaker 1: it's too close to an election season. It's not how
Speaker 1: it works. It's just a policy he meant to guide
Speaker 1: practice within the Justice Department, and and in certain cases
Speaker 1: that policy can be um overturned or not followed, and
Speaker 1: that would probably be the case is here. No, there's
Speaker 1: no legal impediment at all to proceeding with a case
Speaker 1: against a former and would be press in the United States.
Speaker 1: Thanks so much for being on the show, Kevin. That's
Speaker 1: former federal prosecutor Kevin O'Brien. Partner with Ford O'Brien Landy.
Speaker 1: Immigrants are increasingly turning to the courts for solutions because
Speaker 1: of protracted weight times for benefits like work permits and
Speaker 1: travel authorization. The number of immigration related lawsuits over administrative
Speaker 1: delays filed as rits of men dames has spiked in
Speaker 1: the past two years. Plaintiffs are projected to file more
Speaker 1: than six thousand, two hundred such cases by the end
Speaker 1: of this year, according to the Transactional Records Access Clearinghouse.
Speaker 1: Joining me is immigration law expert Leon Fresco, a partner
Speaker 1: at Hollanden Night Leon what are some of the complaints
Speaker 1: being raised in these lawsuits? The lasses that are being
Speaker 1: filed are based on a number of factors. Yes, they
Speaker 1: are being filed mostly because of delays in the agency,
Speaker 1: and mostly because of the delays and the issue with
Speaker 1: the green card applications. But really they're being filed because
Speaker 1: there's delays all over the system. There's delays and the
Speaker 1: issuances of work permits, there's delays in the issuances of
Speaker 1: travel permits, there's delays in the issuances emotions to reopen,
Speaker 1: there's delays in the issuances of green cards. There's delays
Speaker 1: in the issuances of visas abroad by the state's department,
Speaker 1: and so all of this is leading to a record
Speaker 1: amount of litigation. Plus there's also people doing for review
Speaker 1: of denials of cases because the adjudicatory framework is still
Speaker 1: pretty much the one put in place by the Trump administration,
Speaker 1: where the scrutiny being requested in any given case is
Speaker 1: much much higher than it has previously been under the
Speaker 1: Obama administration. That scrutiny hasn't changed under the Biden administration,
Speaker 1: and so there are still many cases that are being
Speaker 1: denied that shouldn't have been denied, and so all of
Speaker 1: that is leading to this record number of litigation that
Speaker 1: you're seeing in the federal court. I don't ever remember
Speaker 1: a time when people weren't complaining about the delay is
Speaker 1: in processing, you know, immigration related requests. Is this much
Speaker 1: worse than it was? And if so, why I would
Speaker 1: say that the answer to that question is yes, it
Speaker 1: is materially worse than it was. And it's basically a
Speaker 1: case of you don't know what you have until you
Speaker 1: don't have it. So people, it is correct j to say,
Speaker 1: have always complained that the immigration system is too slow
Speaker 1: but they were complaining back then on a state of
Speaker 1: affairs where for a work permit it took three months
Speaker 1: and for a green card it took a year. Now
Speaker 1: we have for a work permit it takes nine months
Speaker 1: and for a green card it takes up to three years.
Speaker 1: And so because of that delay, that is materially worse.
Speaker 1: And the problem is we're now a year and a
Speaker 1: half into the Biden administration, so it's hard to say, oh, well,
Speaker 1: we've been felt this terrible hands. Yes, that may be true,
Speaker 1: but a year and a half end at this point,
Speaker 1: one would have hoped that the delays we're starting to
Speaker 1: peek on a downward scale, and we're not really seeing that.
Speaker 1: The American Immigration Lawyers Association has encouraged members to bring
Speaker 1: man dam as actions when their clients encounter excessive delays.
Speaker 1: Doesn't that cause more delays by having another action and
Speaker 1: having to have government attorneys fight that. Well. The problem
Speaker 1: is if every single person who has an application files
Speaker 1: also a man Damous application, then you're just recreating the
Speaker 1: same line again. So there's no doubt about that. But
Speaker 1: the idea is that by filing the man Damous litigation,
Speaker 1: what you're essentially doing is you are saying, hey, remember me,
Speaker 1: I exist, And when that happens, then the immigration authorities
Speaker 1: get around the deciding your case because otherwise they didn't
Speaker 1: remember necessarily that you existed. So if the delay is
Speaker 1: truly long, it is not a bad strategy to file
Speaker 1: a mandamus kate. But if everybody files a man davious case,
Speaker 1: then you do have the same problem of sort of
Speaker 1: a tragedy of the common situation where everybody recreates the
Speaker 1: same backlog, and now you have even worse backlog because
Speaker 1: the agency is not only dealing with the backlog but
Speaker 1: all of the lawsuits. But we're not seeing it at
Speaker 1: that level obviously, because we're seeing something along the order
Speaker 1: of six or seven thousand man Damous cases as opposed
Speaker 1: to millions of applications that are in the backlog. So
Speaker 1: it's not really a problem that would actually exist that
Speaker 1: everybody in the backlog would be filing a man Damous case.
Speaker 1: Do you get a more favorable outcome if you file
Speaker 1: a mandamus case? So this is an interesting question. A
Speaker 1: lot of people, when you discussed this, are very afraid
Speaker 1: to sue the government because they think that the government
Speaker 1: will retaliate against them and say, well, if you suit me,
Speaker 1: I'm going to just deny your case because I'm upset.
Speaker 1: But that actually it doesn't happen in practice and practice,
Speaker 1: what will happen is if you truly have a case
Speaker 1: that's delayed and you file a mandamus case, the government
Speaker 1: will usually try to work with you to each of
Speaker 1: you a decision, and that decision, I would say, undred
Speaker 1: times is the exact decisions that would have been issued anyway.
Speaker 1: I'm not personally known of a case of retaliation that's
Speaker 1: happened because of amenda damous case, and so I wouldn't
Speaker 1: fear filing it because of a fear of retaliation. So
Speaker 1: has the agency taken some actions to resolve these backlogs, Well,
Speaker 1: they have done as many things as they can figure
Speaker 1: out to do at the moment. And so what they've
Speaker 1: done is for work permit renewals, they've tried to make
Speaker 1: those longer so that people have to do less renewals
Speaker 1: than the future. And that's a good thing, but that
Speaker 1: sort of needs to cycle through the system. So they
Speaker 1: have to grant all of these applications with longer renewal
Speaker 1: before they can reach the benefit of having that at
Speaker 1: so that's the first problem. They fan it in some
Speaker 1: of these green card marriage cases that are take up
Speaker 1: a lot of their ties to extend the period of
Speaker 1: time whereby someone has a green card while they're waiting
Speaker 1: for their final permanent green cards to be issued. So
Speaker 1: they're doing things on the margins to lessen their case.
Speaker 1: But the problem is as an agency, they're also dealing
Speaker 1: with record numbers of asylum cases and record numbers of
Speaker 1: cases where people are trying to fill gaps in the
Speaker 1: fact that they can't find American workers. And so really
Speaker 1: what's happening is they're not getting anywhere because even if
Speaker 1: they can trim down a number of cases, they're still
Speaker 1: having to get excess cases from all kinds of other sources,
Speaker 1: and so they're not really making a dent in their
Speaker 1: overall workload. That was interesting. So why do green card
Speaker 1: marriage cases take up so much time? Well, because in
Speaker 1: the marriage context, it's not like a normal green card application.
Speaker 1: When you marry a US citizen, there's a two year
Speaker 1: conditional green card you get first, and then you have
Speaker 1: to come back after two years and prove you see,
Speaker 1: this wasn't a fraudulent marriage. We're still in a real
Speaker 1: marriage and only then you get your permanent green card,
Speaker 1: and so you've got to basically recreate the process why
Speaker 1: and typically that green card was only good when you
Speaker 1: filed that recreation process for a year extensive and so
Speaker 1: that created work because if the agency didn't grant the
Speaker 1: new green card within a year, then you'd have to
Speaker 1: file for another one, etcetera. So now they've extended the
Speaker 1: period that they have to decide that by extending how good,
Speaker 1: how valid the green card is while they're waiting, but
Speaker 1: they actually haven't gotten to the next step of adjudicating
Speaker 1: the second stepani past Or. In fact, it's the slowest
Speaker 1: it's ever been. But this is an example there trying
Speaker 1: to build in these cases where they don't there will
Speaker 1: be renewals necessary. They're trying to build it so that
Speaker 1: they don't need to do renewals because they said the
Speaker 1: validity of the first benefits that you get, whatever that is,
Speaker 1: whether it's a Greek Card or a work permit. So
Speaker 1: I want to turn to a couple of other immigration
Speaker 1: related issues. The DOCTA case before the Federal Appeals Court
Speaker 1: in New Orleans. What is the issue there? It's in
Speaker 1: a very strange posture right now, because the real debate
Speaker 1: that was sucking up sort of all of the energy
Speaker 1: and the oral argument had to do with standing, and
Speaker 1: that is that originally the State of Texas, when it
Speaker 1: was challenging all of these DOCTA and DAPPA laws, had
Speaker 1: said that the problem was that they had to give
Speaker 1: drivers licenses to people who had deferred action and that
Speaker 1: that ended up costing the money. But they didn't end
Speaker 1: up pursuing this argument. This is not the argument they
Speaker 1: used are standing now now they use arguments related to
Speaker 1: sort of economic population analysis, but basically just saying that literally,
Speaker 1: the more human beings they have in Texas, the more
Speaker 1: it caused Texas. And because of the sort of debulous
Speaker 1: economic analysis, it leads it up some more of a
Speaker 1: debate about whether that's true, whether that actually is a
Speaker 1: concrete and specific harm that gives state effectives standing to sue.
Speaker 1: And so there were debates between the State of Texas
Speaker 1: and the Department of Justice and the intervening parties who
Speaker 1: were the states who are kind of the more liberal
Speaker 1: states and also mild that the Immigrants Rights Organization. All
Speaker 1: of these folks got to speak in the oral argument,
Speaker 1: and we're all making arguments regarding this issue of whether
Speaker 1: Texas had actually shown concrete heart. There was also another
Speaker 1: discussion in the argument about whether even if the government
Speaker 1: could differ someone's deportation, well, could they do the next
Speaker 1: step and give them a work permit? And here the
Speaker 1: Department of Justice was actually not so strongly willing to
Speaker 1: defend the second concept that a work permit was permissible
Speaker 1: to give the people who previously didn't have any immigration status.
Speaker 1: And so I wonder where that's going to lead in
Speaker 1: terms of a future argument in the Supreme Court. But
Speaker 1: for now, what everybody's just looking at is whether the
Speaker 1: case will be remanded great trial on the issue of standing,
Speaker 1: or whether the case will be allowed to proceed to
Speaker 1: the Supreme Court. So it's going to the Supreme Court
Speaker 1: any which way. Eventually it will, but there may need
Speaker 1: to be a trial about whether the jury actually thinks
Speaker 1: to stay. The Texas is armed by having sort of
Speaker 1: an increased population of Baku people in the state, because
Speaker 1: one could say, hey, you know, depending on how you
Speaker 1: do this economic analysis, more people has always led some
Speaker 1: more d DP. That's just a a rule. People equals
Speaker 1: higher GDP, it may not equal higher per capitative DDP,
Speaker 1: But the question is, okay, so the government's going to
Speaker 1: get certain revenue increases by having more DDP, but it's
Speaker 1: not going to be offset by certain expenses that they have,
Speaker 1: and it's unclear whether Texas actually met its burden here.
Speaker 1: The next immigration issue is in Texas, where there seems
Speaker 1: to be an escalation with Texas Governor Greg Abbott. He's
Speaker 1: authorizing state officials and National guardsmen to arrest migrants who
Speaker 1: enter the US unlawfully and transport them to federal ports
Speaker 1: of entry along the border with Mexico. Is he allowed
Speaker 1: to do that? Well, the first step is what's the
Speaker 1: actually doing, So that's the first step that needs to
Speaker 1: be determined. He's obviously not allowed to pay a human
Speaker 1: body and move it into the country of Mexico. And
Speaker 1: I don't think the State of Texas is claiming that
Speaker 1: they're doing that. They're just claiming that they're basically pushing
Speaker 1: the person back to the point A of entry so
Speaker 1: that it makes them harder for them to get the
Speaker 1: point B of wherever they were trying to go when
Speaker 1: they entered into America visa v. Point a. So the
Speaker 1: goal is just the sort of sifle the ability for
Speaker 1: people to make it to wherever they're trying to make
Speaker 1: it suit to sort of adds to the costs an
Speaker 1: inconvenient um doing this so that people might be deterred
Speaker 1: from coming into the United States, I don't know how
Speaker 1: effective that's going to be. But then the second issue
Speaker 1: that gets analyzed is when any government entity, federal, state,
Speaker 1: or local, is taking custody of a human body against
Speaker 1: that person's will and doing something to it, whether it's
Speaker 1: putting it on a bus or whether it's detaining that
Speaker 1: person or whatever it's doing, the question is what authority
Speaker 1: is that acting under in order to do that, And
Speaker 1: so you'd have to show that the person is breaking
Speaker 1: some laws that allowing the State of Texas to do this,
Speaker 1: And I don't know what law the State of Texas
Speaker 1: is going to say is being broken, especially in cases
Speaker 1: where the person has already been processed by the border patrols,
Speaker 1: as opposed to a case where maybe Texas caught the
Speaker 1: person but they never made it to the attention of
Speaker 1: the border patrol. So along those lines, I don't see
Speaker 1: how there's a case that Texas can make that they
Speaker 1: have lawful authority to detain a human being and put
Speaker 1: them on a bus against their will and take them
Speaker 1: to a location they don't want to be taken to.
Speaker 1: I mean, you have to have do process to challenge
Speaker 1: some detention like that, and so there I just see
Speaker 1: that failing for that preason. Would it be the Biden
Speaker 1: administration who Susana? Would it be you know, the A
Speaker 1: C l U or something, right, it could be anybody.
Speaker 1: It could be the Biden administration doing it as a
Speaker 1: matter of preempsion that what Texas is doing is pre
Speaker 1: empted by federal immigration law. Or it could be any
Speaker 1: organizations doing on behalf of the people who are the
Speaker 1: immigrants going through this process, or it could be a
Speaker 1: group of immigrants who have had the sunt of them
Speaker 1: potentially suing for injunctive relief or for money damages, even
Speaker 1: depending on if they were armed in some way by
Speaker 1: the tension and relocations of the board of Entry. So
Speaker 1: US officials on the southern border have processed migrants over
Speaker 1: one and a half million times so far this year,
Speaker 1: and they're on track to surpass the record one point
Speaker 1: seven million migrants. When they say they've processed them, does
Speaker 1: that mean that they're processed into the country or you
Speaker 1: know some of them are deported. What does that mean?
Speaker 1: What that number from one point seven millions is apprehending?
Speaker 1: What that means a person has tried set for the
Speaker 1: United States in one way or another. Our border patrol
Speaker 1: has encountered that human being, and it's made a decision
Speaker 1: after that human being. It doesn't mean that the decision
Speaker 1: that's been made has been to allow that human being
Speaker 1: to proceed into the United States. In fact, a large
Speaker 1: number of these individuals were expelled back into Mexico under
Speaker 1: Title forty two, and then they tried again, and then
Speaker 1: they weren't spelled again, and then they tried the third side,
Speaker 1: and then they were spelled again. So those numbers may
Speaker 1: not represent or in fact do not represent unique numbers.
Speaker 1: They're not exactly one point seven million different individuals who
Speaker 1: have had encounters with the border patrol. But it's in
Speaker 1: fact one point seven millions total encounters of which some
Speaker 1: number has been allowed to enter, especially in cases like
Speaker 1: Venezuelans at Cubans, where Mexico has not accepted those people
Speaker 1: back into Mexico, and those people can't be the poor
Speaker 1: it back into Venezuela or Cuba because those countries are
Speaker 1: simply not accepting American deport datas, and so it's a
Speaker 1: lot of those cases, those individuals have been able to
Speaker 1: enter the United States, but in a lot of other cases,
Speaker 1: people have been pushed back into Mexico of their Title
Speaker 1: forty two and Title forty two. What's the status of
Speaker 1: Title forty two right now? I mean, there wasn't an
Speaker 1: order that the Biden administration had to keep using Title
Speaker 1: forty two. Where does that stand, right? I mean that
Speaker 1: Title forty two cases moving its way very slowly through
Speaker 1: the court, and the administration is still using Title forty two,
Speaker 1: but it's basically using it to expel almost exclusively Mexican
Speaker 1: nationals back into Mexico, which still are the largest percentage,
Speaker 1: you know, of any specific country. They're not a majority,
Speaker 1: but they're the largest percentage of any specific country coming in.
Speaker 1: And then they're about expelling about half of the sent
Speaker 1: American migrants who are being encountered in the border. But
Speaker 1: if if people from any country other than Mexico or
Speaker 1: the Central American country, we're seeing about twelve percent of
Speaker 1: those individuals being expelled un their Title forty two. Thanks Leon,
Speaker 1: that's Leon Fresco of Hollandon Knight. I'm June Grasso and
Speaker 1: you're listening to Bloomberg