1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,840 --> 00:00:12,960 Speaker 2: Has it ever happened that a sitting president sued his 3 00:00:13,119 --> 00:00:16,919 Speaker 2: own government for ten billion dollars and then directed the 4 00:00:16,960 --> 00:00:19,920 Speaker 2: settlement of the case and the establishment of a payout fund? 5 00:00:20,280 --> 00:00:22,119 Speaker 3: Not that I'm aware, But there's a lot of things 6 00:00:22,120 --> 00:00:23,200 Speaker 3: that President Trump's the first of. 7 00:00:23,480 --> 00:00:28,040 Speaker 4: Under questioning by Democratic Senator Chris Coons, this week, acting 8 00:00:28,080 --> 00:00:31,880 Speaker 4: Attorney General Todd Blanche had to admit it was another 9 00:00:32,200 --> 00:00:37,080 Speaker 4: unprecedented action by President Trump and the Justice Department, the 10 00:00:37,159 --> 00:00:40,760 Speaker 4: creation of a one point eight billion dollar fund to 11 00:00:40,800 --> 00:00:45,080 Speaker 4: pay victims of so called government weaponization as part of 12 00:00:45,120 --> 00:00:48,800 Speaker 4: a settlement to en Trump's thirty billion dollar lawsuit against 13 00:00:48,880 --> 00:00:53,199 Speaker 4: the IRS, a settlement that was not approved by a judge, 14 00:00:53,560 --> 00:00:57,959 Speaker 4: And in response to questions from Democratic Senator Chris Van Holland, 15 00:00:58,360 --> 00:01:02,240 Speaker 4: Blanche wouldn't rule out that rioters who attacked police at 16 00:01:02,240 --> 00:01:06,000 Speaker 4: the Capitol on January sixth of twenty twenty one could 17 00:01:06,080 --> 00:01:07,720 Speaker 4: receive payouts from the fund. 18 00:01:08,080 --> 00:01:12,320 Speaker 3: Well, individuals who assaulted Capitol Hill police officers be eligible 19 00:01:12,360 --> 00:01:12,640 Speaker 3: for this. 20 00:01:12,640 --> 00:01:16,959 Speaker 1: Fund well, as it makes plain. Just let me know 21 00:01:17,040 --> 00:01:21,080 Speaker 1: if they're eligible for the funds. As was made plained yesterday. 22 00:01:21,400 --> 00:01:24,440 Speaker 1: Anybody in this country is eligible to apply. 23 00:01:25,120 --> 00:01:27,200 Speaker 4: That was the piece of the deal that seemed to 24 00:01:27,240 --> 00:01:32,440 Speaker 4: ignite resistance from several Senate Republicans like Tom Tillis. 25 00:01:31,959 --> 00:01:35,360 Speaker 2: And I think it's irresponsible since the signal, hey, go 26 00:01:35,400 --> 00:01:38,280 Speaker 2: breach the capital, destroy the building, assault police officers. 27 00:01:38,360 --> 00:01:40,480 Speaker 1: You may even get compensated for someday. 28 00:01:40,600 --> 00:01:45,160 Speaker 4: That's absurd, and so Senate Republicans abandoned plans to pass 29 00:01:45,200 --> 00:01:50,080 Speaker 4: a partisan seventy two billion dollar immigration enforcement package before 30 00:01:50,240 --> 00:01:54,160 Speaker 4: leaving Washington for a week long Memorial Day break. My 31 00:01:54,240 --> 00:01:58,480 Speaker 4: guest is constitutional law professor David Souper of Georgetown Law. 32 00:01:58,800 --> 00:02:01,600 Speaker 5: David, starting with the lawsuit, let alone the settlement. 33 00:02:01,720 --> 00:02:04,680 Speaker 4: Have you ever seen a lawsuit like this, a sitting 34 00:02:04,760 --> 00:02:08,440 Speaker 4: president suing part of his government for monetary damages. 35 00:02:09,000 --> 00:02:13,440 Speaker 6: No, there hasn't, and there have been some pretty compelling 36 00:02:13,520 --> 00:02:16,600 Speaker 6: cases where you might imagine that happening. You can imagine 37 00:02:16,639 --> 00:02:20,680 Speaker 6: President Reagan suing for the Secret Service failure to protect 38 00:02:20,760 --> 00:02:24,640 Speaker 6: him from John Hinckley. You could imagine some president suing 39 00:02:24,680 --> 00:02:27,520 Speaker 6: for terrible medical care that they receive the estate of 40 00:02:27,560 --> 00:02:34,160 Speaker 6: President Garfield. Perhaps, but this is an example of norms collapsing. 41 00:02:34,639 --> 00:02:39,840 Speaker 6: Every president previously, even ones who allowed much more independence 42 00:02:39,840 --> 00:02:44,000 Speaker 6: of the Justice Department than President Trump does, understood that 43 00:02:44,040 --> 00:02:48,440 Speaker 6: it would be grossly inappropriate for them to sue a 44 00:02:48,639 --> 00:02:50,399 Speaker 6: Justice department that reported to them. 45 00:02:50,600 --> 00:02:54,560 Speaker 4: So basically, the same person is controlling both sides of 46 00:02:54,600 --> 00:02:58,640 Speaker 4: the lawsuit. The plaintiff and the defendant are Donald Trump. 47 00:02:59,040 --> 00:03:03,760 Speaker 6: Yes, this is textbook example of collusive litigation, when there's 48 00:03:03,800 --> 00:03:08,640 Speaker 6: no adversity, when no claims a fact or law are 49 00:03:08,760 --> 00:03:12,960 Speaker 6: checked by anybody with a contrary interest, where they're all 50 00:03:13,000 --> 00:03:17,960 Speaker 6: agreeing together. It's a settlement agreement between Donald Trump's private 51 00:03:18,040 --> 00:03:22,080 Speaker 6: lawyers and Donald Trump's Justice Department lawyers. And the Supreme 52 00:03:22,120 --> 00:03:25,120 Speaker 6: Court has said that you cannot invoke the power of 53 00:03:25,160 --> 00:03:28,040 Speaker 6: the federal courts on a collusive case. The federal courts 54 00:03:28,080 --> 00:03:33,160 Speaker 6: are only there to resolve genuinely adverse controversies, which this 55 00:03:33,320 --> 00:03:33,600 Speaker 6: is not. 56 00:03:34,320 --> 00:03:37,200 Speaker 4: And this was settled before they were scheduled to go 57 00:03:37,320 --> 00:03:41,360 Speaker 4: to court to explain to a judge how their lawsuit 58 00:03:41,640 --> 00:03:44,200 Speaker 4: presented a case or controversy. 59 00:03:44,640 --> 00:03:47,280 Speaker 6: Yeah, they're really trying to have it both ways. They 60 00:03:47,360 --> 00:03:50,840 Speaker 6: settled it in a big hurry to avoid having to 61 00:03:51,000 --> 00:03:55,040 Speaker 6: explain to the courts why this could be a case 62 00:03:55,200 --> 00:03:58,640 Speaker 6: because they can't, so they make the case go away 63 00:03:58,760 --> 00:04:01,960 Speaker 6: before the judge can dismiss it for lack of jurisdiction. 64 00:04:02,240 --> 00:04:05,000 Speaker 6: But they use the fact that this case was here 65 00:04:05,080 --> 00:04:10,680 Speaker 6: as a justification for this settlement, which provides a slush 66 00:04:10,720 --> 00:04:13,720 Speaker 6: fund for whomever President Trump wants to serve. 67 00:04:14,000 --> 00:04:18,719 Speaker 4: The Justice Department has already been approving seven figure payouts 68 00:04:19,000 --> 00:04:22,960 Speaker 4: from the judgment fund for some Trump allies who claim 69 00:04:23,120 --> 00:04:27,800 Speaker 4: they were wrongfully investigated or prosecuted during the Biden administration. 70 00:04:28,240 --> 00:04:31,919 Speaker 4: For example, one point two five million to former Trump 71 00:04:32,080 --> 00:04:36,240 Speaker 4: National security advisor Michael Flynn. So that's already going on. 72 00:04:36,440 --> 00:04:38,039 Speaker 4: How is this fund different? 73 00:04:38,680 --> 00:04:44,239 Speaker 6: This is different because it isn't paying damages. I would 74 00:04:44,240 --> 00:04:47,760 Speaker 6: be terribly offended if President Trump ordered the fund to 75 00:04:47,880 --> 00:04:51,640 Speaker 6: pay him some large sum of money. That would be 76 00:04:51,920 --> 00:04:55,520 Speaker 6: another example of abuse of the fund inclusive litigation. But 77 00:04:55,560 --> 00:04:59,440 Speaker 6: this goes much farther. This is basically taking away the 78 00:04:59,560 --> 00:05:03,200 Speaker 6: power the purse from Congress. It is creating a whole 79 00:05:03,240 --> 00:05:08,360 Speaker 6: new program that Congress never authorized, that Congress never appropriated 80 00:05:08,360 --> 00:05:13,800 Speaker 6: a dime for, and creating it entirely within the executive 81 00:05:13,839 --> 00:05:15,960 Speaker 6: branch to spend tax dollars. 82 00:05:16,400 --> 00:05:18,560 Speaker 4: They're saying that there is going to be a committee, 83 00:05:18,720 --> 00:05:22,080 Speaker 4: but the president can fire anyone he wants on the committee. 84 00:05:22,160 --> 00:05:24,320 Speaker 4: I mean, are there any safeguards in place? 85 00:05:25,040 --> 00:05:27,839 Speaker 6: Absolutely none. This is at one hundred percent slush fund. 86 00:05:28,000 --> 00:05:32,800 Speaker 6: The President or the Attorney General will appoint, without Senate confirmation, 87 00:05:33,120 --> 00:05:36,400 Speaker 6: all five members of this committee. If any of them 88 00:05:36,440 --> 00:05:39,320 Speaker 6: do anything the President doesn't like, he can fire them 89 00:05:39,320 --> 00:05:43,160 Speaker 6: and replace them with whomever he wants. So the committee 90 00:05:43,200 --> 00:05:47,760 Speaker 6: is completely subservient to the president on both a macrell 91 00:05:47,839 --> 00:05:52,000 Speaker 6: and a micro level. So this is allowing the president 92 00:05:52,120 --> 00:05:57,359 Speaker 6: to distribute one point seven seven six billion dollars to 93 00:05:57,800 --> 00:06:01,440 Speaker 6: whomever he wants based on whatever they want. These are 94 00:06:01,480 --> 00:06:06,200 Speaker 6: people who have no evidence that they were innocent, have 95 00:06:06,320 --> 00:06:10,239 Speaker 6: no evidence of prosecutorial misconduct. None of that's required here. 96 00:06:10,480 --> 00:06:12,960 Speaker 6: We're simply paying them because they are on Team Trump. 97 00:06:13,200 --> 00:06:17,880 Speaker 4: Tell us the reasons why you think this settlement is unlawful. 98 00:06:18,279 --> 00:06:21,720 Speaker 6: Article one of our Constitutions says that no money shall 99 00:06:21,760 --> 00:06:26,320 Speaker 6: be drawn from the Treasury except where Congress has enacted 100 00:06:26,360 --> 00:06:30,279 Speaker 6: and appropriation, and the Anti Deficiency Act, which goes back 101 00:06:30,880 --> 00:06:34,239 Speaker 6: over one hundred years, gives teeth to that and makes 102 00:06:34,279 --> 00:06:37,600 Speaker 6: it a federal crime with two years in prison if 103 00:06:37,680 --> 00:06:43,280 Speaker 6: you distribute federal funds without a valid appropriation. This is 104 00:06:44,000 --> 00:06:47,760 Speaker 6: an attempt to circumvent that. They're claiming they can use 105 00:06:47,800 --> 00:06:52,400 Speaker 6: the Judgment Fund, which is an appropriation, but it's four 106 00:06:52,680 --> 00:06:57,000 Speaker 6: settlements arrived at in accordance with law, and one provision 107 00:06:57,080 --> 00:07:00,360 Speaker 6: of federal law says you cannot obtain the juri station 108 00:07:00,480 --> 00:07:04,159 Speaker 6: of the federal courts collusively. Another provision of federal law 109 00:07:04,360 --> 00:07:07,640 Speaker 6: says that federal lawyers have to follow the same ethical 110 00:07:07,760 --> 00:07:12,960 Speaker 6: rules that apply in their states, and those rules prohibit 111 00:07:13,080 --> 00:07:16,920 Speaker 6: collusive litigation. So the very fact that this case is 112 00:07:16,960 --> 00:07:20,600 Speaker 6: Donald Trump versus Donald Trump means that it is not 113 00:07:20,800 --> 00:07:23,520 Speaker 6: eligible to be settled under the Judgment Fund. 114 00:07:23,960 --> 00:07:29,240 Speaker 4: On Wednesday, two Capital Police officers, Harry Dunn and Daniel Hodges, 115 00:07:29,560 --> 00:07:33,360 Speaker 4: who responded to the riots on January sixth, suit to 116 00:07:33,440 --> 00:07:36,840 Speaker 4: block the creation of this fund. Although Doune admits that 117 00:07:36,880 --> 00:07:37,960 Speaker 4: it will be challenging. 118 00:07:38,480 --> 00:07:41,960 Speaker 7: They are potentially going to be paying insurrectionists or people 119 00:07:41,960 --> 00:07:46,040 Speaker 7: who have participated in insurrection, which is clearly a violation 120 00:07:46,160 --> 00:07:50,080 Speaker 7: to the Constitution. So we do understand that it might 121 00:07:50,120 --> 00:07:52,520 Speaker 7: be an uphill fight, but we do believe there's validity 122 00:07:52,840 --> 00:07:53,160 Speaker 7: in it. 123 00:07:53,480 --> 00:07:56,680 Speaker 4: Their first challenge will be proving that they have standing 124 00:07:56,800 --> 00:08:00,240 Speaker 4: to bring the lawsuit explain the standing issues. 125 00:08:00,720 --> 00:08:04,160 Speaker 6: I don't think there's a serious question that the fund 126 00:08:04,280 --> 00:08:08,000 Speaker 6: is illegal, but the Supreme Court has said just because 127 00:08:08,000 --> 00:08:11,360 Speaker 6: something is illegal or even unconstitutional, you don't get to 128 00:08:11,400 --> 00:08:15,360 Speaker 6: go into court to challenge it. The Supreme Court requires 129 00:08:15,760 --> 00:08:18,679 Speaker 6: what they call injury. In fact, you have to show 130 00:08:19,320 --> 00:08:22,520 Speaker 6: that you are harmed in a way other than a 131 00:08:22,600 --> 00:08:27,760 Speaker 6: person who cares about the Constitution. And the police officers 132 00:08:27,840 --> 00:08:31,280 Speaker 6: are saying that this money is being made available to 133 00:08:31,360 --> 00:08:36,600 Speaker 6: the people who assaulted them before and who are actively 134 00:08:36,800 --> 00:08:42,080 Speaker 6: threatening them, and who could well assault them again in 135 00:08:42,200 --> 00:08:45,920 Speaker 6: the same way, and so that this is encouraging and 136 00:08:46,520 --> 00:08:51,680 Speaker 6: arguably even subsidizing violent behavior against them, which gives them 137 00:08:51,720 --> 00:08:52,960 Speaker 6: standing to challenge it. 138 00:08:53,559 --> 00:08:57,040 Speaker 4: That sounds really speculative. Do you think the suit will 139 00:08:57,040 --> 00:08:59,640 Speaker 4: get past a motion to dismiss I. 140 00:08:59,559 --> 00:09:03,200 Speaker 6: Think the Supreme Court has been cutting way back on 141 00:09:03,440 --> 00:09:08,479 Speaker 6: standing and it's hard for me to see them deviating 142 00:09:08,559 --> 00:09:11,839 Speaker 6: from that course in a case that would embarrass the president. 143 00:09:12,440 --> 00:09:15,440 Speaker 6: But I think this is better than a lot of 144 00:09:16,280 --> 00:09:22,680 Speaker 6: far fetched standing cases because they're not saying something bad 145 00:09:22,800 --> 00:09:25,000 Speaker 6: happened to us in the past, and so we want 146 00:09:25,080 --> 00:09:30,079 Speaker 6: to litigate the future. They're saying that both the beneficiaries 147 00:09:30,120 --> 00:09:33,520 Speaker 6: of these funds and the administration that's handing them out 148 00:09:33,920 --> 00:09:37,680 Speaker 6: are saying that the assault on the police officers was okay. 149 00:09:38,160 --> 00:09:41,320 Speaker 6: These people have been pardon The President has repeatedly said 150 00:09:41,360 --> 00:09:45,280 Speaker 6: they were treated very badly for being prosecuted in this manner. 151 00:09:45,559 --> 00:09:49,360 Speaker 6: And so I think the police officers can make an 152 00:09:49,520 --> 00:09:53,480 Speaker 6: argument of an ongoing abuse better than most people do. 153 00:09:54,040 --> 00:09:57,560 Speaker 4: And it looks like the lawsuits will keep coming. On 154 00:09:57,679 --> 00:10:02,000 Speaker 4: Friday at January sixth, prosecutor who was fired by former 155 00:10:02,160 --> 00:10:05,400 Speaker 4: Attorney General Pam Bondi and a law professor who was 156 00:10:05,440 --> 00:10:09,440 Speaker 4: acquitted in a federal criminal case brought by this Justice 157 00:10:09,480 --> 00:10:13,000 Speaker 4: Department also sued to block the fund. How about a 158 00:10:13,040 --> 00:10:14,280 Speaker 4: suit by taxpayers? 159 00:10:15,000 --> 00:10:20,319 Speaker 6: The Supreme Court could entertain a lawsuit that this is unconstitutional. 160 00:10:20,600 --> 00:10:23,480 Speaker 6: The Supreme Court held many years ago that the only 161 00:10:23,559 --> 00:10:27,920 Speaker 6: way to enforce the establishment clause that prohibits government from 162 00:10:27,920 --> 00:10:32,600 Speaker 6: funding religion is to allow individual taxpayers to sue that 163 00:10:32,640 --> 00:10:36,320 Speaker 6: their moneys are being inappropriately spent. They could say absolutely 164 00:10:36,360 --> 00:10:39,840 Speaker 6: the same thing about the appropriation's clause. But given how 165 00:10:39,880 --> 00:10:43,000 Speaker 6: cooperative this Supreme Court has been with the President, I 166 00:10:43,160 --> 00:10:44,640 Speaker 6: don't see that very likely. 167 00:10:44,960 --> 00:10:48,560 Speaker 4: Many say that Todd blanche is trying his best to 168 00:10:48,559 --> 00:10:52,440 Speaker 4: be the attorney general that Trump wants. He indicted former 169 00:10:52,559 --> 00:10:56,200 Speaker 4: FBI director James Comy and the Southern Poverty Law Center 170 00:10:56,280 --> 00:11:00,400 Speaker 4: on flimsy charges. This week alone. He indicted former Cuban 171 00:11:00,480 --> 00:11:04,120 Speaker 4: President Raoul Castro in what appears to be a show indictment. 172 00:11:04,360 --> 00:11:06,920 Speaker 4: And then you have this unprecedented fund. 173 00:11:07,720 --> 00:11:12,000 Speaker 6: They have been for some time taking advantage of the 174 00:11:12,440 --> 00:11:16,200 Speaker 6: Supreme Court's restrictions on access to federal court to do 175 00:11:16,320 --> 00:11:19,520 Speaker 6: things that are not legally defensible, but where they won't 176 00:11:19,559 --> 00:11:22,600 Speaker 6: be forced to defend themselves in court because the Supreme 177 00:11:22,640 --> 00:11:27,560 Speaker 6: Court disallows the challenges. So the notion of doing something 178 00:11:27,600 --> 00:11:32,760 Speaker 6: that's unlawful but unlitigable is actually old news for these people. 179 00:11:33,440 --> 00:11:37,280 Speaker 6: They didn't put together something that's legal here. They actually 180 00:11:37,320 --> 00:11:41,800 Speaker 6: misdrafted the papers. So this isn't really eligible for payment 181 00:11:41,880 --> 00:11:45,600 Speaker 6: from the judgment fund because the amount that is specified 182 00:11:45,840 --> 00:11:48,880 Speaker 6: in the press release is not in the settlement papers. 183 00:11:49,120 --> 00:11:52,200 Speaker 6: So you can't say that they have to draw one 184 00:11:52,240 --> 00:11:56,720 Speaker 6: point seven seven to six billion from the judgment fund 185 00:11:56,720 --> 00:11:59,679 Speaker 6: to settle the case, because on the terms they settle 186 00:11:59,720 --> 00:12:03,360 Speaker 6: it for or one dollar would suffice everything above. That 187 00:12:03,679 --> 00:12:07,359 Speaker 6: is Todd Blanche giving a gift to his boss, probably 188 00:12:07,400 --> 00:12:09,920 Speaker 6: in the hopes of getting the word acting knocked off 189 00:12:09,960 --> 00:12:10,560 Speaker 6: of his title. 190 00:12:10,920 --> 00:12:14,000 Speaker 4: Oh, he's a pleasure, Thanks David. That's Professor David super 191 00:12:14,040 --> 00:12:18,520 Speaker 4: of Georgetown Law. You're listening to Bloomberg. It was a 192 00:12:18,559 --> 00:12:22,000 Speaker 4: critical motion on the evidence that the prosecution will be 193 00:12:22,040 --> 00:12:25,680 Speaker 4: able to use at Luigi Mangioni's trial for the killing 194 00:12:25,679 --> 00:12:28,520 Speaker 4: of United Healthcare CEO Brian Thompson. 195 00:12:29,040 --> 00:12:32,080 Speaker 8: So as to the map issues, I find that the 196 00:12:32,120 --> 00:12:37,520 Speaker 8: search of the backpack at the McDonald's was improper warrantless search, 197 00:12:38,840 --> 00:12:42,040 Speaker 8: that the backpack was not within the mediate control or 198 00:12:42,160 --> 00:12:46,280 Speaker 8: gravable area of the defendant, and further, the people failed 199 00:12:46,320 --> 00:12:51,680 Speaker 8: to demonstrate exeggen circumstances. Therefore, those items found in the 200 00:12:51,720 --> 00:12:55,160 Speaker 8: backpack during the search at the McDonald's will be suppressed. 201 00:12:56,000 --> 00:13:00,000 Speaker 4: The defense one in part when Judge Gregory Caro excluded 202 00:13:00,200 --> 00:13:03,520 Speaker 4: from evidence the items police found when they were searching 203 00:13:03,559 --> 00:13:08,800 Speaker 4: Mangioni's backpack before arresting him at a McDonald's in Altoona, Pennsylvania. 204 00:13:09,160 --> 00:13:13,360 Speaker 4: A loaded handgun, magazine, a cell phone, a passport, a wallet, 205 00:13:13,360 --> 00:13:18,320 Speaker 4: and a computer. Chip, but there was a big However, however. 206 00:13:18,240 --> 00:13:21,360 Speaker 8: The people have established that the subsequent search of the 207 00:13:21,400 --> 00:13:25,840 Speaker 8: backpack at the station was a valid inventory search, and 208 00:13:25,920 --> 00:13:29,600 Speaker 8: therefore the items recovered at the station. 209 00:13:29,480 --> 00:13:33,120 Speaker 4: Will not be suppressed, and those items that can be 210 00:13:33,240 --> 00:13:38,640 Speaker 4: introduced into evidence are crucial to the prosecution's case, including 211 00:13:38,679 --> 00:13:42,720 Speaker 4: the alleged murder weapon, a nine millimeter handgun, and a 212 00:13:42,800 --> 00:13:47,840 Speaker 4: notebook that describes wanting to quote whack. A health insurance executive. 213 00:13:48,320 --> 00:13:52,200 Speaker 4: Joining me is former federal prosecutor Robert Mintz, a PARTNERM Carter. 214 00:13:52,280 --> 00:13:56,559 Speaker 4: In English, Bob, give us the background for this motion. Bob, 215 00:13:56,600 --> 00:13:58,280 Speaker 4: give us the background here. 216 00:13:58,520 --> 00:14:01,760 Speaker 3: To set the stage here, Police police responded to a 217 00:14:01,920 --> 00:14:06,480 Speaker 3: McDonald's in Altuna, Pennsylvania, after receiving a call about a 218 00:14:06,480 --> 00:14:12,320 Speaker 3: suspicious person who looked like the alleged shooter of United 219 00:14:12,320 --> 00:14:16,800 Speaker 3: Healthcare CEO Brian Thompson. Local police showed up and began 220 00:14:17,000 --> 00:14:20,960 Speaker 3: questioning mister Mangioni and later searched his backpack. 221 00:14:21,520 --> 00:14:22,440 Speaker 1: The focus of. 222 00:14:22,360 --> 00:14:26,680 Speaker 3: The hearing was whether or not the evidence discovered by 223 00:14:27,120 --> 00:14:30,600 Speaker 3: local police in the search of the backpack would be 224 00:14:30,600 --> 00:14:31,960 Speaker 3: admissible at trial. 225 00:14:32,320 --> 00:14:35,960 Speaker 4: And the defense claimed that the police needed a warrant 226 00:14:36,040 --> 00:14:37,080 Speaker 4: before they could search. 227 00:14:37,600 --> 00:14:40,480 Speaker 3: Yeah, So this is really interesting because it was a 228 00:14:40,520 --> 00:14:45,080 Speaker 3: critical hearing for the defense. Should the defense succeed here 229 00:14:45,360 --> 00:14:48,240 Speaker 3: and should the court have ruled that the evidence that 230 00:14:48,440 --> 00:14:52,720 Speaker 3: was later found in Luigi Mangiono's backpack would be excluded 231 00:14:52,760 --> 00:14:55,560 Speaker 3: a trial, it would have been a huge setback for prosecutors. 232 00:14:55,760 --> 00:14:59,280 Speaker 3: There was an enormous amount at stake here for both sides. 233 00:14:59,440 --> 00:15:03,560 Speaker 3: The defense argued in a days long hearing last December 234 00:15:03,880 --> 00:15:06,760 Speaker 3: that the evidence in the backpack should be thrown out 235 00:15:06,800 --> 00:15:10,560 Speaker 3: because police searched the backpack without a warrant. They said 236 00:15:10,560 --> 00:15:14,080 Speaker 3: that basically police did not follow proper protocol, that he 237 00:15:14,200 --> 00:15:16,320 Speaker 3: posed no threat to them at the time, and that 238 00:15:16,360 --> 00:15:19,160 Speaker 3: there was no basis to search the backpack. And the 239 00:15:19,240 --> 00:15:22,120 Speaker 3: fact is that a warrant was not obtained for the 240 00:15:22,120 --> 00:15:26,240 Speaker 3: search of that backpack until seven hours after mister Mangioni was. 241 00:15:26,240 --> 00:15:28,960 Speaker 5: In custody and tell us about the judge's ruling. 242 00:15:29,440 --> 00:15:33,200 Speaker 3: So the judge ultimately issued a mixed ruling which was 243 00:15:33,360 --> 00:15:38,080 Speaker 3: largely a victory for prosecutors but also gave some small 244 00:15:38,160 --> 00:15:42,360 Speaker 3: victory to the defense. The judge ruled that prosecutors could 245 00:15:42,480 --> 00:15:45,800 Speaker 3: use certain evidence that was seized at an. 246 00:15:45,640 --> 00:15:48,000 Speaker 1: Inventory search later at. 247 00:15:47,840 --> 00:15:51,280 Speaker 3: The police station, but could not allow evidence that they 248 00:15:51,400 --> 00:15:55,480 Speaker 3: seized during a search at the McDonald's. Basically, the judge 249 00:15:55,520 --> 00:15:59,200 Speaker 3: decided that the search at the McDonald's that was conducted 250 00:15:59,240 --> 00:16:02,720 Speaker 3: while they were sing mister Mangoni was an illegal, improper 251 00:16:03,120 --> 00:16:08,160 Speaker 3: warrantless search. The prosecution tried to argue that local police 252 00:16:08,160 --> 00:16:12,200 Speaker 3: searched the backpack at the McDonald's for public safety reasons, 253 00:16:12,320 --> 00:16:14,840 Speaker 3: but the judge did not accept that, saying that the 254 00:16:14,880 --> 00:16:18,800 Speaker 3: backpack had been moved out of mister Mangoni's reach and 255 00:16:18,920 --> 00:16:23,400 Speaker 3: no longer posed any public health or safety issue. 256 00:16:22,760 --> 00:16:25,560 Speaker 1: And therefore that search was not permitted. 257 00:16:25,880 --> 00:16:29,280 Speaker 3: There was a subsequent search after mister Mangoni was arrested 258 00:16:29,280 --> 00:16:32,560 Speaker 3: and brought to the police station. That was an inventory search, 259 00:16:32,640 --> 00:16:35,320 Speaker 3: in other words, a search that was done in connection 260 00:16:35,960 --> 00:16:39,400 Speaker 3: with going through the belongings of somebody who was then 261 00:16:39,560 --> 00:16:43,840 Speaker 3: under arrest. An items seized during that inventory search, the 262 00:16:43,960 --> 00:16:47,160 Speaker 3: judge said, would be permitted to be used by prosecutors 263 00:16:47,280 --> 00:16:47,920 Speaker 3: at the trial. 264 00:16:48,600 --> 00:16:51,160 Speaker 4: Why did it take police seven hours to get a 265 00:16:51,240 --> 00:16:54,320 Speaker 4: search warrant? They'd arrested him and concluded that he was 266 00:16:54,360 --> 00:16:59,120 Speaker 4: the suspect wanted in the shooting at the McDonald's well. 267 00:16:59,000 --> 00:17:02,120 Speaker 3: Once they arrested him, and they certainly could have obtained 268 00:17:02,160 --> 00:17:06,320 Speaker 3: a warrant based upon evidence that they had. Mister Mangoni 269 00:17:06,400 --> 00:17:09,560 Speaker 3: had presented a false identification and there was other evidence 270 00:17:09,720 --> 00:17:12,840 Speaker 3: that tied him to the crime, and prosecutors could have 271 00:17:12,880 --> 00:17:17,800 Speaker 3: gotten a warrant, but waited and instead local police searched 272 00:17:18,080 --> 00:17:21,399 Speaker 3: the backpack in connection with his inventory and the judge 273 00:17:21,440 --> 00:17:24,000 Speaker 3: allowed it in. That would have been a major blow 274 00:17:24,320 --> 00:17:28,399 Speaker 3: to the prosecution if that evidence was excluded, but in 275 00:17:28,440 --> 00:17:32,600 Speaker 3: this case, the judge excluded, for example, a loaded magazine, 276 00:17:32,880 --> 00:17:36,520 Speaker 3: a passport, a wallet, a cell phone, and a computer chip. 277 00:17:36,600 --> 00:17:39,800 Speaker 3: All of those items were taken from mister Mangoni's backpack 278 00:17:40,200 --> 00:17:43,760 Speaker 3: at the McDonald's. But the big victory here for prosecutors 279 00:17:44,119 --> 00:17:47,119 Speaker 3: was at the subsequent search back at the police station. 280 00:17:47,880 --> 00:17:52,280 Speaker 3: They found a gun allegedly the weapon used to shoot 281 00:17:52,400 --> 00:17:56,520 Speaker 3: the victim here, and also a notebook that contained, according 282 00:17:56,520 --> 00:18:00,440 Speaker 3: to prosecutors, mister Mangon's manifesto. This is where he has 283 00:18:00,480 --> 00:18:04,399 Speaker 3: writings where he goes on about national health care and 284 00:18:04,480 --> 00:18:08,240 Speaker 3: about how insurance companies are doing damage to people by 285 00:18:08,280 --> 00:18:12,120 Speaker 3: delaying and denying them coverage. This is really the critical 286 00:18:12,119 --> 00:18:15,119 Speaker 3: piece of evidence because it goes to his intent, it 287 00:18:15,160 --> 00:18:17,520 Speaker 3: goes to a state of mind. And there's no question 288 00:18:17,600 --> 00:18:21,800 Speaker 3: the prosecutors will be relying largely on that notebook and 289 00:18:22,080 --> 00:18:25,160 Speaker 3: on what they will allege is the murder weapon itself 290 00:18:25,200 --> 00:18:26,439 Speaker 3: when this case goes to trial. 291 00:18:26,760 --> 00:18:29,000 Speaker 4: Why do you think the federal judge, who look at 292 00:18:29,040 --> 00:18:31,880 Speaker 4: the same circumstances, decide to let everything in. 293 00:18:32,200 --> 00:18:33,119 Speaker 1: Yeah, that's a good question. 294 00:18:33,359 --> 00:18:36,040 Speaker 3: The federal judge allowed everything in. As you said, there 295 00:18:36,160 --> 00:18:38,919 Speaker 3: was nothing that was suppressed by the federal judge in 296 00:18:38,960 --> 00:18:41,720 Speaker 3: the second trial. But the State Cork judge here, I 297 00:18:41,760 --> 00:18:46,120 Speaker 3: think was somewhat troubled by what went on at the McDonald's, 298 00:18:46,119 --> 00:18:48,200 Speaker 3: and I think here, when you look at the decision 299 00:18:48,280 --> 00:18:51,320 Speaker 3: by the State Cork judge, he put great weight on 300 00:18:51,400 --> 00:18:55,200 Speaker 3: the fact that the police officers began to search through 301 00:18:55,200 --> 00:18:58,640 Speaker 3: the backpack and when they found the gun magazine, they 302 00:18:58,680 --> 00:19:02,480 Speaker 3: immediately stopped. We also found the notebook, but allegedly did 303 00:19:02,480 --> 00:19:04,720 Speaker 3: not look in to see what the writings were. But 304 00:19:04,800 --> 00:19:07,520 Speaker 3: they stopped searching at that point, and the court seemed 305 00:19:07,560 --> 00:19:10,000 Speaker 3: to give certain way to the fact that they held 306 00:19:10,040 --> 00:19:12,840 Speaker 3: off searching at that point and then did not continue 307 00:19:12,880 --> 00:19:16,080 Speaker 3: to search until mister Mangoni was in custody back at 308 00:19:16,080 --> 00:19:18,879 Speaker 3: the police station, and then the search was done in 309 00:19:18,960 --> 00:19:22,800 Speaker 3: an inventory search, not at a search incident to arrest 310 00:19:22,960 --> 00:19:24,040 Speaker 3: at the McDonald's. 311 00:19:24,240 --> 00:19:29,000 Speaker 4: So defense attorneys often, I don't know always, but very 312 00:19:29,040 --> 00:19:32,360 Speaker 4: often make motions to have evidence suppressed. Have you ever 313 00:19:32,400 --> 00:19:34,960 Speaker 4: seen a case where the judge was, I don't know, 314 00:19:35,040 --> 00:19:38,639 Speaker 4: gutsy enough to throw out all the evidence from a 315 00:19:38,720 --> 00:19:39,520 Speaker 4: tainted search. 316 00:19:39,920 --> 00:19:40,320 Speaker 5: I mean, it. 317 00:19:40,280 --> 00:19:43,040 Speaker 4: Seems like these are just uphill battles, no matter what 318 00:19:43,160 --> 00:19:43,880 Speaker 4: the facts are. 319 00:19:44,480 --> 00:19:45,720 Speaker 1: Well, they are uphill battles. 320 00:19:45,760 --> 00:19:48,119 Speaker 3: And you're absolutely right that this is the type of 321 00:19:48,160 --> 00:19:50,120 Speaker 3: motion that is made. 322 00:19:50,240 --> 00:19:51,639 Speaker 1: In every criminal case. 323 00:19:51,720 --> 00:19:54,480 Speaker 3: Whenever there is a search, whether it's done by search 324 00:19:54,520 --> 00:19:57,680 Speaker 3: warrant or a search incident to arrest, and evidence is 325 00:19:57,720 --> 00:19:58,720 Speaker 3: obtained as. 326 00:19:58,560 --> 00:20:00,679 Speaker 1: A result of that search that critical to. 327 00:20:00,680 --> 00:20:03,600 Speaker 3: The prosecution, the first thing defense lawyers are going to 328 00:20:03,640 --> 00:20:06,800 Speaker 3: do is to try to suppress that evidence, because if 329 00:20:06,840 --> 00:20:10,399 Speaker 3: that evidence doesn't come in at trial in certain cases, 330 00:20:10,440 --> 00:20:13,639 Speaker 3: it can be very difficult for prosecutors to make their case. 331 00:20:14,119 --> 00:20:17,719 Speaker 3: This case, given all the notoriety and the publicity surrounding it, 332 00:20:18,000 --> 00:20:21,480 Speaker 3: put enormous weight on the court in making a decision, 333 00:20:21,920 --> 00:20:24,960 Speaker 3: because a judge would he put in a difficult circumstance 334 00:20:25,240 --> 00:20:27,960 Speaker 3: if they rule to suppress key evidence in a case 335 00:20:28,040 --> 00:20:30,199 Speaker 3: like this where there's so much publicity. But in this 336 00:20:30,359 --> 00:20:33,560 Speaker 3: case the stake where judge certainly spent a long time. 337 00:20:33,600 --> 00:20:36,439 Speaker 3: There was extensive hearing, there were days of testimony. They 338 00:20:36,520 --> 00:20:40,520 Speaker 3: judged that through hours and hours of bodycam video footage 339 00:20:40,600 --> 00:20:44,040 Speaker 3: and her testimony from many law enforcement officers on the 340 00:20:44,080 --> 00:20:46,400 Speaker 3: scene at the time of the arrest. So they judge 341 00:20:46,440 --> 00:20:48,919 Speaker 3: spent a considerable amount of time considering this, and then 342 00:20:48,960 --> 00:20:52,120 Speaker 3: it took him months to finally render a decision on this. 343 00:20:52,600 --> 00:20:54,720 Speaker 1: But at the end of the day, while he gave. 344 00:20:54,680 --> 00:20:58,160 Speaker 3: Some small victory to the defense, he did largely rule 345 00:20:58,160 --> 00:20:59,400 Speaker 3: in favor of the prosecution. 346 00:20:59,800 --> 00:21:01,800 Speaker 1: And if you're the prosecutor. 347 00:21:01,359 --> 00:21:03,840 Speaker 3: And you have the alleged murder weapon and you have 348 00:21:03,960 --> 00:21:07,520 Speaker 3: the NOPA containing the alleged manifesto, you're feeling pretty good 349 00:21:07,560 --> 00:21:09,800 Speaker 3: about your chances of conviction at the end of a trial. 350 00:21:10,160 --> 00:21:13,920 Speaker 4: Let's talk about the statements Mangioni made to police at 351 00:21:13,960 --> 00:21:18,359 Speaker 4: the McDonald's that the defense wanted suppressed, and Judge Carol 352 00:21:18,480 --> 00:21:22,520 Speaker 4: also pars those down to the minute, using the officer's 353 00:21:22,560 --> 00:21:24,320 Speaker 4: bodycam footage. 354 00:21:23,760 --> 00:21:28,720 Speaker 8: As Miranda warnings were not given until some seconds after. 355 00:21:28,520 --> 00:21:30,240 Speaker 9: Nine forty eight in the morning. 356 00:21:30,560 --> 00:21:35,480 Speaker 8: Those statements made shortly before that in response to improper 357 00:21:35,600 --> 00:21:40,840 Speaker 8: custodial questions that were not merely a request for pedigree 358 00:21:40,880 --> 00:21:43,000 Speaker 8: information will be suppressed. 359 00:21:43,760 --> 00:21:45,320 Speaker 5: Explain his decision, Bob. 360 00:21:45,440 --> 00:21:50,840 Speaker 3: After hearing extensive testimony from law enforcement about the circumstances 361 00:21:50,880 --> 00:21:54,000 Speaker 3: surrounding the arrest and the context in which those statements 362 00:21:54,080 --> 00:21:56,520 Speaker 3: were made. In other words, were they made before or 363 00:21:56,600 --> 00:22:00,320 Speaker 3: after the witness was given as Miranda warnings before after 364 00:22:00,320 --> 00:22:03,679 Speaker 3: the witness was in custody, and the court ultimately decided 365 00:22:03,760 --> 00:22:07,440 Speaker 3: that statements made by mister Mangioni at the McDonald's before 366 00:22:07,520 --> 00:22:11,119 Speaker 3: he was actually in custody were going to be allowed. 367 00:22:11,359 --> 00:22:14,679 Speaker 3: But he did find that once he decided to no 368 00:22:14,800 --> 00:22:18,560 Speaker 3: longer talk with law enforcement, that law enforcement should have 369 00:22:18,560 --> 00:22:21,919 Speaker 3: stopped questioning him, and statements he made in response to 370 00:22:21,960 --> 00:22:23,080 Speaker 3: that questioning. 371 00:22:22,720 --> 00:22:24,919 Speaker 1: After he was in custody will not be primitted at 372 00:22:24,960 --> 00:22:25,320 Speaker 1: the trial. 373 00:22:25,600 --> 00:22:28,600 Speaker 4: Some of the statements that will be suppressed include an 374 00:22:28,600 --> 00:22:32,520 Speaker 4: officer asking Mangioni why he had lied about his name 375 00:22:32,600 --> 00:22:35,280 Speaker 4: and whether he had a fake ID. The defense so 376 00:22:35,400 --> 00:22:39,560 Speaker 4: far has focused, at least in court on the suppression 377 00:22:39,600 --> 00:22:42,639 Speaker 4: of evidence. We don't know what kind of defense they'll 378 00:22:42,680 --> 00:22:46,480 Speaker 4: mount at trial, but do you think that dury nullification 379 00:22:46,680 --> 00:22:47,600 Speaker 4: will be part of it. 380 00:22:48,040 --> 00:22:51,320 Speaker 3: Well, there's a huge difference between being a prosecutor and 381 00:22:51,359 --> 00:22:54,960 Speaker 3: being a defense lawyer. Prosecutors have the burden of proof. 382 00:22:55,160 --> 00:22:57,879 Speaker 3: It's beyond a reasonable doubt. It's the highest standard in 383 00:22:57,960 --> 00:23:01,040 Speaker 3: our legal system, and so there our job is to 384 00:23:01,080 --> 00:23:05,320 Speaker 3: present overwhelming evidence that the defendant is guilty. The defense, 385 00:23:05,359 --> 00:23:08,040 Speaker 3: on the other hand, doesn't have to present anything. They 386 00:23:08,040 --> 00:23:10,879 Speaker 3: don't have to present any witnesses. They have no burden 387 00:23:10,880 --> 00:23:14,920 Speaker 3: of proof whatsoever. And so what they will typically do 388 00:23:14,960 --> 00:23:18,760 Speaker 3: is not necessarily present a counter narrative, in other words, 389 00:23:18,880 --> 00:23:22,119 Speaker 3: a different version of events, but they will try to 390 00:23:22,160 --> 00:23:24,840 Speaker 3: poke holes in the government's case. And so what they'll 391 00:23:24,840 --> 00:23:27,280 Speaker 3: do is they'll see the way the case goes into trial, 392 00:23:27,320 --> 00:23:30,400 Speaker 3: They'll cross examine the government's witnesses, and if they can 393 00:23:30,480 --> 00:23:33,840 Speaker 3: find any area where the government may have a weakness, 394 00:23:33,880 --> 00:23:37,119 Speaker 3: they try to exploit that and ultimately argue to the 395 00:23:37,200 --> 00:23:40,200 Speaker 3: jury that there's reasonable doubt here that the government has 396 00:23:40,240 --> 00:23:43,080 Speaker 3: not met its burden. So I suspect what will happen 397 00:23:43,119 --> 00:23:46,719 Speaker 3: here is that the defense will be largely based on 398 00:23:47,160 --> 00:23:50,239 Speaker 3: the government's not meeting its burden of proof. But at 399 00:23:50,280 --> 00:23:53,320 Speaker 3: the same time, I think we can certainly expect the 400 00:23:53,480 --> 00:23:57,640 Speaker 3: undercurrents of a jury nullification argument, and that is basically 401 00:23:57,880 --> 00:24:02,119 Speaker 3: arguing to jurors that even if the defendant committed the crime, 402 00:24:02,480 --> 00:24:05,960 Speaker 3: you shouldn't convict him for some other reason. It's not 403 00:24:06,200 --> 00:24:10,680 Speaker 3: a legal defense, it's more of an emotional reaction by jurors. 404 00:24:11,000 --> 00:24:14,439 Speaker 3: And this case has already generated a ground spoil of 405 00:24:14,560 --> 00:24:18,800 Speaker 3: support for Luigi Mangioni, which is surprising because of the 406 00:24:18,840 --> 00:24:22,840 Speaker 3: position he allegedly took with regard to healthcare in this country, 407 00:24:23,000 --> 00:24:26,920 Speaker 3: and specifically with regard to health insurers. So I think 408 00:24:26,960 --> 00:24:29,480 Speaker 3: you can expect to see the defense play that card 409 00:24:29,680 --> 00:24:32,399 Speaker 3: and play that up at trial in the hopes that 410 00:24:32,480 --> 00:24:36,480 Speaker 3: at least one member of the jury may be sympathetic 411 00:24:36,520 --> 00:24:39,040 Speaker 3: to him and to his cause and to be willing 412 00:24:39,359 --> 00:24:43,159 Speaker 3: to overlook some of the evidence that prosecutors have at trial, 413 00:24:43,359 --> 00:24:45,919 Speaker 3: and if they can get even one juror to agree 414 00:24:45,920 --> 00:24:48,800 Speaker 3: with them, lay will at least get a mistrial and 415 00:24:48,920 --> 00:24:51,439 Speaker 3: prosecutors will have to try the case all over again. 416 00:24:51,560 --> 00:24:54,840 Speaker 4: His trial is set to begin on September eighth, thanks 417 00:24:54,840 --> 00:24:58,960 Speaker 4: so much, Bob, that's Robert Mens of McCarter and English. 418 00:25:00,320 --> 00:25:05,560 Speaker 4: For decades, ICE refrained from making civil arrests at immigration courthouses, 419 00:25:06,080 --> 00:25:09,160 Speaker 4: but that changed in May of twenty twenty five, when 420 00:25:09,200 --> 00:25:12,719 Speaker 4: ICE issued a new policy that allowed agents to arrest 421 00:25:12,800 --> 00:25:16,840 Speaker 4: non citizens as they were appearing for scheduled hearings. The 422 00:25:16,880 --> 00:25:21,240 Speaker 4: policy led to protests and some ugly scenes at immigration 423 00:25:21,440 --> 00:25:24,840 Speaker 4: courts in Manhattan, like the handcuffing and arrest of New 424 00:25:24,920 --> 00:25:28,440 Speaker 4: York City comptroll Or Brad Lander in the hallway outside 425 00:25:28,440 --> 00:25:31,560 Speaker 4: a courtroom as he was trying to escort a migrant 426 00:25:31,560 --> 00:25:34,600 Speaker 4: whose case had just been dismissed last November. 427 00:25:40,320 --> 00:25:44,600 Speaker 10: Arrest citizens, Sir, you don't have the authority to arrest 428 00:25:44,640 --> 00:25:47,600 Speaker 10: whos citizens. 429 00:25:47,800 --> 00:25:50,800 Speaker 9: You don't have standing right here in the hallway. I 430 00:25:50,840 --> 00:25:52,200 Speaker 9: asked to see that. You never learn. 431 00:25:52,520 --> 00:25:56,400 Speaker 4: Lander was later released and all charges against him were dropped. 432 00:25:56,720 --> 00:25:59,919 Speaker 4: That scene will not be revisited in New York City 433 00:26:00,359 --> 00:26:02,880 Speaker 4: now that a federal judge has ruled that the three 434 00:26:02,960 --> 00:26:07,800 Speaker 4: immigration courthouses in Manhattan are off limits to ICE officers 435 00:26:07,840 --> 00:26:11,040 Speaker 4: making arrests. My guest is Leon Fresco, a partner at 436 00:26:11,040 --> 00:26:13,600 Speaker 4: Holland and Knight and the former head of the Office 437 00:26:13,600 --> 00:26:17,800 Speaker 4: of Immigration Litigation in the Obama administration, Leon tell Us 438 00:26:17,800 --> 00:26:22,399 Speaker 4: about Judge Costell's order temporary order pending the outcome of 439 00:26:22,480 --> 00:26:28,000 Speaker 4: litigation that challenges ICE's policy of making arrests at immigration courts. 440 00:26:28,400 --> 00:26:31,240 Speaker 10: So, the current state of affairs in New York City is, 441 00:26:31,280 --> 00:26:34,920 Speaker 10: if you go to one of the immigration court houses 442 00:26:34,960 --> 00:26:38,639 Speaker 10: in New York City, ICE is not allowed to arrest 443 00:26:38,720 --> 00:26:42,399 Speaker 10: you unless you either have serious offenses in terms of 444 00:26:42,440 --> 00:26:46,080 Speaker 10: a criminal history, or you have a final order of removal, 445 00:26:46,560 --> 00:26:50,080 Speaker 10: or you're a national security or public safety risk. 446 00:26:50,640 --> 00:26:52,720 Speaker 9: And so this all comes from. 447 00:26:52,520 --> 00:26:56,480 Speaker 10: The idea that people were being deterred from going into 448 00:26:56,600 --> 00:27:00,600 Speaker 10: Immigration court to have their immigration hearings because they were 449 00:27:00,640 --> 00:27:03,840 Speaker 10: worried that ICE was going to arrest them when they 450 00:27:03,840 --> 00:27:04,840 Speaker 10: were to show up at. 451 00:27:04,720 --> 00:27:05,760 Speaker 9: The immigration court. 452 00:27:06,000 --> 00:27:09,879 Speaker 10: Because that was actually happening during the time period where 453 00:27:10,200 --> 00:27:13,360 Speaker 10: there was the arrest quota three thousand people a day. 454 00:27:14,240 --> 00:27:17,200 Speaker 10: Arresting three thousand people a day is not so easy, 455 00:27:17,640 --> 00:27:19,880 Speaker 10: and so a lot of the places where people were 456 00:27:19,880 --> 00:27:23,720 Speaker 10: getting arrested were the places where they were most likely 457 00:27:23,760 --> 00:27:27,560 Speaker 10: to be, which were at ICE check ins and immigration court. 458 00:27:27,640 --> 00:27:29,520 Speaker 9: So you knew people were going there. 459 00:27:29,560 --> 00:27:31,919 Speaker 10: But the point was you didn't want to deter people 460 00:27:31,920 --> 00:27:35,119 Speaker 10: from going there because those were the key points of 461 00:27:35,280 --> 00:27:37,760 Speaker 10: the throughput of the immigration system. 462 00:27:38,160 --> 00:27:43,439 Speaker 4: But previously, in September, Judge Castell had refused to stop 463 00:27:43,480 --> 00:27:45,160 Speaker 4: ICE arrests at courthouses. 464 00:27:45,880 --> 00:27:50,960 Speaker 10: So this judge had originally not wanted to enjoin ICE 465 00:27:51,359 --> 00:27:55,960 Speaker 10: from arresting people in immigration court because the government had 466 00:27:56,000 --> 00:28:00,760 Speaker 10: made the argument previously that there was an ICE guidance 467 00:28:00,840 --> 00:28:04,560 Speaker 10: that was issued on May twenty seven, twenty twenty five, 468 00:28:04,960 --> 00:28:07,560 Speaker 10: that actually allowed them to do this, so that they 469 00:28:07,560 --> 00:28:11,640 Speaker 10: had considered the matter, they had reviewed it, they investigated it, 470 00:28:11,880 --> 00:28:14,800 Speaker 10: and they said yes, so according to this memo, we can. 471 00:28:14,760 --> 00:28:16,760 Speaker 9: Arrest people at immigration court. 472 00:28:17,200 --> 00:28:19,119 Speaker 10: And so the judge said, well, look, you had a 473 00:28:19,119 --> 00:28:22,119 Speaker 10: policy basis for conducting these arrests. I'm not going to 474 00:28:22,200 --> 00:28:25,840 Speaker 10: enjoin them. But then just recently the Department of Justice 475 00:28:26,359 --> 00:28:30,639 Speaker 10: actually went back to the court and said to the court, 476 00:28:31,160 --> 00:28:33,439 Speaker 10: sorry about that. You remember when we told you that 477 00:28:33,480 --> 00:28:36,840 Speaker 10: we had a memo that considered the need to go 478 00:28:37,000 --> 00:28:40,440 Speaker 10: to immigration courts and have arrest just kidding, We didn't 479 00:28:40,440 --> 00:28:43,880 Speaker 10: actually have a memo like that. It didn't actually apply 480 00:28:44,000 --> 00:28:47,920 Speaker 10: to immigration courts until We're sorry. And so because there 481 00:28:48,000 --> 00:28:50,520 Speaker 10: was no memo that actually considered this issue. 482 00:28:51,040 --> 00:28:52,360 Speaker 9: Then the judge said, well, then. 483 00:28:52,280 --> 00:28:57,440 Speaker 10: You clearly didn't use your obligations under the Administrative Procedure 484 00:28:57,480 --> 00:28:59,320 Speaker 10: Act to actually consider this. 485 00:28:59,560 --> 00:29:02,000 Speaker 9: I'm not I'll let you do this while the case 486 00:29:02,080 --> 00:29:02,600 Speaker 9: is pending. 487 00:29:02,840 --> 00:29:06,360 Speaker 10: I think the judge probably more frustrated about how this 488 00:29:06,560 --> 00:29:10,480 Speaker 10: was done rather than the state of actual law. But 489 00:29:10,720 --> 00:29:12,840 Speaker 10: because of the sort of I don't know whether you 490 00:29:12,840 --> 00:29:14,760 Speaker 10: want to call it omission or whatever you want to 491 00:29:14,760 --> 00:29:18,280 Speaker 10: call it, the judge said, no more arrest and immigration 492 00:29:18,440 --> 00:29:20,800 Speaker 10: courts in New York while this case is pending. 493 00:29:21,000 --> 00:29:24,120 Speaker 4: Yeah, I mean that was a startling admission by the 494 00:29:24,240 --> 00:29:27,920 Speaker 4: US Attorney's office, and basically they blamed it on Ice. 495 00:29:28,120 --> 00:29:31,040 Speaker 4: So the judge said that a revision in his order 496 00:29:31,160 --> 00:29:34,560 Speaker 4: was needed to correct a clear error and prevent a 497 00:29:34,720 --> 00:29:39,200 Speaker 4: manifest injustice. Was it a legal error by Ice that 498 00:29:39,360 --> 00:29:40,720 Speaker 4: caused that to happen? 499 00:29:41,160 --> 00:29:44,040 Speaker 10: I don't know exactly, but I actually have a theory, June, 500 00:29:44,080 --> 00:29:46,959 Speaker 10: because I was involved in this for many years at 501 00:29:47,000 --> 00:29:48,600 Speaker 10: the Department of Justice, and so. 502 00:29:48,600 --> 00:29:49,640 Speaker 9: Here's what happens. 503 00:29:49,960 --> 00:29:54,480 Speaker 10: Ice coordinates extremely well with the Department of Justice. When 504 00:29:54,560 --> 00:29:58,440 Speaker 10: the cases are pretty much in any district outside of 505 00:29:58,520 --> 00:30:02,479 Speaker 10: New York City, because those are all handled by the 506 00:30:02,520 --> 00:30:05,960 Speaker 10: Department of Justice Civil Division, opposite of immigration litigation where 507 00:30:06,000 --> 00:30:08,680 Speaker 10: I was dead, and so everything could be coordinated. But 508 00:30:09,160 --> 00:30:12,320 Speaker 10: in New York, it's a joke called the Sovereign District 509 00:30:12,360 --> 00:30:15,440 Speaker 10: of New York that you don't tell the US attorneys 510 00:30:15,440 --> 00:30:18,360 Speaker 10: there what to do. They don't listen to anything going 511 00:30:18,400 --> 00:30:22,120 Speaker 10: on in Washington. They do their own thing. So as 512 00:30:22,160 --> 00:30:26,640 Speaker 10: a result of that, they have to correspond with ICE. 513 00:30:26,760 --> 00:30:29,360 Speaker 10: And it's not clear who if I start corresponding with 514 00:30:29,400 --> 00:30:33,040 Speaker 10: a New York person, some random person in DC who's 515 00:30:33,080 --> 00:30:35,840 Speaker 10: not in the know, And so many times you would 516 00:30:35,880 --> 00:30:38,240 Speaker 10: see I would call this one of the achilles heels 517 00:30:38,680 --> 00:30:44,040 Speaker 10: or weaknesses of the entire litigation platform of the Department 518 00:30:44,080 --> 00:30:47,480 Speaker 10: of Justice is if you suit in New York, you'd 519 00:30:47,520 --> 00:30:51,520 Speaker 10: have a completely different strategy, case approach. Whatever you're doing 520 00:30:51,520 --> 00:30:53,880 Speaker 10: in New York doesn't apply anywhere else, And so you 521 00:30:53,920 --> 00:30:57,720 Speaker 10: almost have these two random, completely different things going on. 522 00:30:58,200 --> 00:31:01,160 Speaker 10: And so it's very easy, and that's any for the 523 00:31:01,280 --> 00:31:04,360 Speaker 10: US Attorney's Office in New York to not actually know 524 00:31:04,440 --> 00:31:06,800 Speaker 10: anything about what's going on in ICE and just be 525 00:31:06,880 --> 00:31:09,560 Speaker 10: told by some ICE New York person. Oh yeah, this 526 00:31:09,640 --> 00:31:13,720 Speaker 10: memo covers Immigration Court. That's not a surprising scenario. 527 00:31:13,760 --> 00:31:16,000 Speaker 4: When I hear it, the judge was surprised. 528 00:31:16,920 --> 00:31:20,320 Speaker 10: Yes, well, the judge, your viewers are getting inside knowledge 529 00:31:20,360 --> 00:31:23,719 Speaker 10: here in terms of very few people understand this disconnect 530 00:31:24,040 --> 00:31:24,800 Speaker 10: that goes on. 531 00:31:24,800 --> 00:31:26,760 Speaker 9: Between New York and the rest of the country. 532 00:31:26,920 --> 00:31:29,520 Speaker 10: So the judge is not going to understand why the 533 00:31:29,560 --> 00:31:32,880 Speaker 10: Department of Justice written large, because that's all the judge 534 00:31:32,880 --> 00:31:35,800 Speaker 10: knows is this is the Department of Justice doesn't have 535 00:31:35,880 --> 00:31:39,040 Speaker 10: the correct information. Since this is the government, so the 536 00:31:39,080 --> 00:31:43,360 Speaker 10: government quote unquote should have the correct information. But as 537 00:31:43,360 --> 00:31:45,720 Speaker 10: we all know, there's not one government. There's a lot 538 00:31:45,720 --> 00:31:48,040 Speaker 10: of people in the government, and depending on who you 539 00:31:48,120 --> 00:31:50,920 Speaker 10: talk to in the government, you might hear something that's 540 00:31:50,960 --> 00:31:55,120 Speaker 10: not correct. And so while this shouldn't happen and it's 541 00:31:55,160 --> 00:31:59,120 Speaker 10: not something trivial, it's something I'm not surprised to hear 542 00:31:59,200 --> 00:32:02,400 Speaker 10: has occurred, because that's the kind of thing that unless 543 00:32:02,440 --> 00:32:05,320 Speaker 10: and until one day the US Attorney's Office in New 544 00:32:05,400 --> 00:32:09,320 Speaker 10: York actually wants to let their immigration cases get handled 545 00:32:09,680 --> 00:32:13,680 Speaker 10: by the National Civil Division so that all the immigration 546 00:32:13,840 --> 00:32:17,880 Speaker 10: cases are handled harmoniously, you're going to get potential situations 547 00:32:17,960 --> 00:32:18,160 Speaker 10: like this. 548 00:32:18,600 --> 00:32:22,280 Speaker 4: So the judge handed down the decision on Monday. On Tuesday, 549 00:32:22,960 --> 00:32:26,360 Speaker 4: ICE violated the order. They arrested a twenty one year 550 00:32:26,400 --> 00:32:29,480 Speaker 4: old Honduran at twenty six Federal Plaza, which is one 551 00:32:29,480 --> 00:32:33,360 Speaker 4: of the three immigration courthouses in Manhattan that the judge 552 00:32:33,360 --> 00:32:37,160 Speaker 4: had ruled were off limits for arrests, and according to 553 00:32:37,400 --> 00:32:39,800 Speaker 4: The New York Times, a man who worked with the 554 00:32:39,960 --> 00:32:43,760 Speaker 4: Immigration Assistance Program tried to hand the ICE officers a 555 00:32:43,800 --> 00:32:47,200 Speaker 4: copy of the decision and they refused to take it, 556 00:32:47,520 --> 00:32:51,040 Speaker 4: and one told him that the agency didn't care. Is 557 00:32:51,040 --> 00:32:53,520 Speaker 4: that just a blatant violation of a court order? 558 00:32:53,960 --> 00:32:58,480 Speaker 10: Again, I don't want to give excuses. I just want 559 00:32:58,480 --> 00:33:00,760 Speaker 10: to say sort of how these things work. So a 560 00:33:00,880 --> 00:33:03,959 Speaker 10: judge issues an order on a Monday, and on a 561 00:33:04,000 --> 00:33:09,000 Speaker 10: Tuesday there's an arrest. It's not like ICE is some 562 00:33:09,200 --> 00:33:14,120 Speaker 10: integrated artificial intelligence system where every human being is plugged 563 00:33:14,120 --> 00:33:19,520 Speaker 10: in and suddenly knows all of America's case law instantaneously 564 00:33:19,600 --> 00:33:22,840 Speaker 10: when that case law is introduced. So what happens is 565 00:33:23,480 --> 00:33:29,400 Speaker 10: ICE clearly isn't implementing this memo with sufficient rapidity. And 566 00:33:29,480 --> 00:33:33,040 Speaker 10: you had an officer who probably on Monday already knew 567 00:33:33,320 --> 00:33:36,760 Speaker 10: I'm going to arrest this individual because you know, they 568 00:33:36,760 --> 00:33:38,560 Speaker 10: say that they're a dangerous gang member. 569 00:33:38,600 --> 00:33:39,960 Speaker 9: Who knows if this is. 570 00:33:39,920 --> 00:33:42,400 Speaker 10: True or not, I don't know, But if they really 571 00:33:42,400 --> 00:33:44,720 Speaker 10: think they have a dangerous gang member in their sights, 572 00:33:44,760 --> 00:33:47,280 Speaker 10: all the better for them to arrest this person to 573 00:33:47,360 --> 00:33:50,880 Speaker 10: make sure that they're not walking around. But it turns 574 00:33:50,880 --> 00:33:53,840 Speaker 10: out that they don't know the court order. Then people 575 00:33:53,880 --> 00:33:56,880 Speaker 10: tell them the court order. The problem from the perspective 576 00:33:56,920 --> 00:33:59,800 Speaker 10: of the government is just people randomly handing and I 577 00:33:59,840 --> 00:34:02,960 Speaker 10: say a court order. That ICE agent isn't an attorney. 578 00:34:03,240 --> 00:34:05,800 Speaker 10: What they know about the law is sort of within 579 00:34:05,920 --> 00:34:10,680 Speaker 10: their training materials, and so it's very complicated because they're 580 00:34:10,719 --> 00:34:12,719 Speaker 10: not just going to read a court order and know 581 00:34:12,840 --> 00:34:15,759 Speaker 10: the significance of what that court order is, what it's 582 00:34:15,800 --> 00:34:18,120 Speaker 10: telling them to do. So you ended up with this 583 00:34:18,360 --> 00:34:23,040 Speaker 10: very unfortunate situation, and probably there will be content hearings 584 00:34:23,200 --> 00:34:26,120 Speaker 10: about it, but just another set of facts of I 585 00:34:26,200 --> 00:34:28,920 Speaker 10: get how it led to this. It shouldn't have led 586 00:34:28,960 --> 00:34:32,000 Speaker 10: to this. There's no excuse for it. It's a violation 587 00:34:32,160 --> 00:34:36,080 Speaker 10: of the court order. But you can understand how these 588 00:34:36,080 --> 00:34:39,839 Speaker 10: ICE agents who are not attorneys, are given very specific 589 00:34:39,880 --> 00:34:44,520 Speaker 10: guidance you can only do XYZ. They continue to operate 590 00:34:44,600 --> 00:34:48,680 Speaker 10: as they've been operating, and nothing will deter them from 591 00:34:48,760 --> 00:34:51,520 Speaker 10: their orders until the same person who gave them their 592 00:34:51,520 --> 00:34:53,680 Speaker 10: prior order gives them a new order. 593 00:34:53,880 --> 00:34:57,040 Speaker 4: And I should note that in their petition the lawyers 594 00:34:57,040 --> 00:34:59,719 Speaker 4: for the man who was arrested said he'd never been 595 00:34:59,719 --> 00:35:02,880 Speaker 4: conc of a crime. Let's turn out to the underlying 596 00:35:02,960 --> 00:35:06,719 Speaker 4: case before Judge Castell, which is a lawsuit by two 597 00:35:06,840 --> 00:35:12,960 Speaker 4: New York based nonprofits challenging the Trump administration guidance that 598 00:35:13,120 --> 00:35:17,239 Speaker 4: broadens the circumstances in which civil immigration arrests can be 599 00:35:17,360 --> 00:35:21,000 Speaker 4: made in or near a courthouse and rolls back Biden 600 00:35:21,160 --> 00:35:25,920 Speaker 4: error guidance restricting courthouse arrests, and the judge is found 601 00:35:25,920 --> 00:35:29,160 Speaker 4: that there's a substantial likelihood of showing that the arrest 602 00:35:29,280 --> 00:35:33,359 Speaker 4: policy is arbitrary and capricious. What's your take on how 603 00:35:33,400 --> 00:35:35,319 Speaker 4: successful this challenge will be. 604 00:35:36,200 --> 00:35:37,919 Speaker 9: Well, I think it's going to be tough. 605 00:35:38,000 --> 00:35:40,960 Speaker 10: These lawsuits have been filed all around the country and 606 00:35:41,040 --> 00:35:44,560 Speaker 10: nobody's been able to get an injunction that is of 607 00:35:44,600 --> 00:35:48,640 Speaker 10: any significant ump to it that has really stopped this. 608 00:35:48,960 --> 00:35:51,320 Speaker 9: Now. I do think in this case in New York. 609 00:35:51,560 --> 00:35:55,719 Speaker 10: It may be that given where this administration is right 610 00:35:55,800 --> 00:35:58,760 Speaker 10: now where it's not trying to ruffle any more feathers 611 00:35:58,800 --> 00:36:01,400 Speaker 10: between now and the election, and then is sort of 612 00:36:01,440 --> 00:36:05,640 Speaker 10: gearing up for a post election immigration enforcement round up 613 00:36:06,200 --> 00:36:08,480 Speaker 10: that it may not do anything for now. 614 00:36:08,760 --> 00:36:11,600 Speaker 9: I could see them just litigating this kind of in a. 615 00:36:11,600 --> 00:36:16,760 Speaker 10: Slow track, low profile for now, But I don't think 616 00:36:16,800 --> 00:36:22,840 Speaker 10: that the statutory scheme dissuades the Department of Homeland Security 617 00:36:22,920 --> 00:36:26,880 Speaker 10: legally from conducting these arrests. The problem is if people 618 00:36:26,920 --> 00:36:31,120 Speaker 10: stop showing up the immigration court, at some point, the 619 00:36:31,760 --> 00:36:35,640 Speaker 10: immigration enforcement personnel have to make a decision do they 620 00:36:35,680 --> 00:36:37,839 Speaker 10: want to start having to enforce all of these what 621 00:36:37,880 --> 00:36:41,800 Speaker 10: are called in absentia removal orders, which is, if you 622 00:36:41,800 --> 00:36:44,360 Speaker 10: don't show up the court, you're like ordered by default 623 00:36:44,560 --> 00:36:48,960 Speaker 10: to be removed, And then people will litigate these on 624 00:36:49,000 --> 00:36:52,720 Speaker 10: an individual basis, and all of that takes more time 625 00:36:52,800 --> 00:36:56,080 Speaker 10: than just getting the actual removal order in the first place. 626 00:36:56,360 --> 00:36:58,840 Speaker 10: So you almost want to try to figure out is 627 00:36:58,880 --> 00:37:02,360 Speaker 10: the juice worth the squad of these arrests. And I 628 00:37:02,400 --> 00:37:04,560 Speaker 10: don't know what they're gonna decide there, because if they're 629 00:37:04,600 --> 00:37:08,719 Speaker 10: really focused on an arrest, quota removals be damned, then 630 00:37:08,760 --> 00:37:10,960 Speaker 10: they'll keep doing the arrest because this is the way 631 00:37:11,239 --> 00:37:14,480 Speaker 10: to raise the arrest quota. But if they're really looking 632 00:37:14,520 --> 00:37:17,000 Speaker 10: at what is the way to get the highest number 633 00:37:17,040 --> 00:37:22,240 Speaker 10: of completely enforceable, unappealable removal orders, then you wouldn't start 634 00:37:22,320 --> 00:37:25,960 Speaker 10: arresting people in court because you leave yourself vulnerable to 635 00:37:26,160 --> 00:37:27,600 Speaker 10: these new process claims. 636 00:37:27,719 --> 00:37:30,799 Speaker 4: I guess we'll see what ICE and DHS decide to 637 00:37:30,840 --> 00:37:34,640 Speaker 4: do after the midterms. Thanks for joining me, Leon. That's 638 00:37:34,719 --> 00:37:37,719 Speaker 4: Leon Fresco of Honden Knight and that's it for this 639 00:37:37,880 --> 00:37:40,600 Speaker 4: edition of The Bloomberg Law Show. Remember you can always 640 00:37:40,600 --> 00:37:43,520 Speaker 4: get the latest legal news on our Bloomberg Law Podcast. 641 00:37:43,800 --> 00:37:46,839 Speaker 4: You can find them on Apple Podcasts, Spotify, and at 642 00:37:47,000 --> 00:37:52,120 Speaker 4: www dot Bloomberg dot com, slash podcast slash Law, and. 643 00:37:52,120 --> 00:37:53,920 Speaker 5: Remember to tune into The Bloomberg. 644 00:37:53,560 --> 00:37:56,959 Speaker 4: Law Show every weeknight at ten pm Wall Street Time. 645 00:37:57,560 --> 00:38:05,279 Speaker 4: I'm Jim Grosso, and you're listening to bloom