1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,480 --> 00:00:12,560 Speaker 2: The legal battle over President Donald Trump's executive order to 3 00:00:12,720 --> 00:00:18,040 Speaker 2: end birthright citizenship is far from over, despite the administration's 4 00:00:18,200 --> 00:00:22,080 Speaker 2: major victory on Friday, when the Supreme Court limited an 5 00:00:22,120 --> 00:00:27,600 Speaker 2: individual judges authority to issue nationwide injunctions. Within hours after 6 00:00:27,640 --> 00:00:32,960 Speaker 2: the ruling, lawyers representing the pregnant undocumented women challenging the 7 00:00:33,040 --> 00:00:37,920 Speaker 2: executive order filed amended complaints in Maryland and New Hampshire 8 00:00:38,200 --> 00:00:42,320 Speaker 2: seeking class action relief in response to the Supreme Court's 9 00:00:42,360 --> 00:00:46,519 Speaker 2: guidance in the opinion. Here are immigration lawyer George Escobar 10 00:00:46,960 --> 00:00:50,000 Speaker 2: and Georgetown law professor Rupa Baticheria. 11 00:00:50,600 --> 00:00:53,000 Speaker 3: We are very confident that we think we can get 12 00:00:53,320 --> 00:00:55,840 Speaker 3: relief from this recurt and that that class relief will 13 00:00:55,840 --> 00:00:57,480 Speaker 3: hold up on appeal all the way up to the 14 00:00:57,480 --> 00:01:00,880 Speaker 3: Supreme Court. Because this order is unconstitutional, and because it 15 00:01:00,920 --> 00:01:03,640 Speaker 3: is unconstitutional as to absolutely everyone that it would be 16 00:01:03,680 --> 00:01:04,160 Speaker 3: applied to. 17 00:01:05,440 --> 00:01:08,240 Speaker 4: We very much look forward to the day, as we 18 00:01:08,319 --> 00:01:11,200 Speaker 4: continue to litigate this case, when every court, including the 19 00:01:11,240 --> 00:01:14,720 Speaker 4: Supreme Court, agrees that the President cannot, by the stroke 20 00:01:14,760 --> 00:01:18,520 Speaker 4: of a pen, take away the constitutional right of birthright citizenship. 21 00:01:18,959 --> 00:01:23,160 Speaker 2: Trump's executive order will remain blocked for thirty days from 22 00:01:23,200 --> 00:01:26,560 Speaker 2: the time of the Supreme Court's opinion, giving lower courts 23 00:01:26,600 --> 00:01:29,400 Speaker 2: and the parties time to sort out the next steps. 24 00:01:30,160 --> 00:01:33,400 Speaker 2: Joining me is immigration law expert Leon Fresco, a partner 25 00:01:33,520 --> 00:01:38,080 Speaker 2: Holland and Knight. Leon. There were hearings before federal judges 26 00:01:38,200 --> 00:01:42,960 Speaker 2: in Maryland and New Hampshire today over requests for class 27 00:01:42,959 --> 00:01:46,399 Speaker 2: action relief tell us about the Supreme Court decision on 28 00:01:46,520 --> 00:01:48,360 Speaker 2: Friday that led to this. 29 00:01:48,920 --> 00:01:52,400 Speaker 1: So what the Supreme Court did was they ruled that 30 00:01:52,520 --> 00:01:55,640 Speaker 1: from now on, not just an immigration but in other context, 31 00:01:55,800 --> 00:01:59,760 Speaker 1: you couldn't get one district judge in a case where 32 00:01:59,760 --> 00:02:03,040 Speaker 1: they're just a couple of plaintifts that file the lawsuits 33 00:02:03,080 --> 00:02:06,880 Speaker 1: to issue a nationwide injunction that said, not just for 34 00:02:07,000 --> 00:02:09,720 Speaker 1: these two plaine defts, but for everyone in the country, 35 00:02:10,200 --> 00:02:15,480 Speaker 1: a particular executive order or a particular regulation is banned 36 00:02:15,880 --> 00:02:18,840 Speaker 1: from going into effect. That's what was happening previous to 37 00:02:18,880 --> 00:02:22,120 Speaker 1: this decision is there would be an executive order issued 38 00:02:22,240 --> 00:02:26,320 Speaker 1: or a regulation issued, and people would go into court, 39 00:02:26,440 --> 00:02:29,880 Speaker 1: and sometimes they go into court in various districts. They'd 40 00:02:29,919 --> 00:02:33,600 Speaker 1: go in one district here, one district there, one district there, 41 00:02:33,919 --> 00:02:36,440 Speaker 1: with the idea being that just that they could find 42 00:02:36,560 --> 00:02:40,440 Speaker 1: one judge to issue a nationwide adjunction, then they could 43 00:02:40,440 --> 00:02:42,880 Speaker 1: stop it for everybody in the nation, and there were 44 00:02:42,880 --> 00:02:46,639 Speaker 1: a lot of these nationwide injunctions being issued. The Supreme 45 00:02:46,720 --> 00:02:49,680 Speaker 1: Court ruled in a six to three decision that that 46 00:02:49,800 --> 00:02:53,440 Speaker 1: violates the Judiciary Acts and that that's not what the 47 00:02:53,440 --> 00:02:55,919 Speaker 1: courts have authority to do. They only have the authority 48 00:02:56,000 --> 00:02:59,799 Speaker 1: to issue a junctive relief in a way that makes 49 00:03:00,160 --> 00:03:04,880 Speaker 1: people in the case itself whole, but not anybody who's 50 00:03:04,919 --> 00:03:08,400 Speaker 1: not in the case itself. And so what they said 51 00:03:08,520 --> 00:03:11,280 Speaker 1: is what you can do is try to get a 52 00:03:11,360 --> 00:03:15,640 Speaker 1: class certified. Pursuants to Rule twenty three of the Federals 53 00:03:15,680 --> 00:03:18,600 Speaker 1: of a Procedure, you can get a class certified. But 54 00:03:19,040 --> 00:03:22,520 Speaker 1: what's interesting about the class certification is if you don't 55 00:03:22,560 --> 00:03:25,720 Speaker 1: get it for a nationwide class certification, then it will 56 00:03:25,720 --> 00:03:29,680 Speaker 1: only apply to the specific circuit or state, whatever it 57 00:03:29,720 --> 00:03:32,960 Speaker 1: may be. That's the topic of the class certification. But 58 00:03:33,360 --> 00:03:36,600 Speaker 1: if you do get a nationwide injunction, then what happens 59 00:03:36,680 --> 00:03:39,920 Speaker 1: is then you can't bring the case in several courts. 60 00:03:39,960 --> 00:03:44,320 Speaker 1: Once the first court issues a nationwide class certification. That's 61 00:03:44,360 --> 00:03:47,480 Speaker 1: the class for the entire nation. There can't be competing 62 00:03:47,960 --> 00:03:52,360 Speaker 1: nationwide certified classes. There can only be one. And then 63 00:03:52,480 --> 00:03:56,480 Speaker 1: that's the decision. So if they win, okay, then find 64 00:03:56,640 --> 00:03:59,880 Speaker 1: the executive orders invalidated, and that one is likely to 65 00:04:00,080 --> 00:04:03,400 Speaker 1: get to the Supreme Court. But if they lose, then 66 00:04:03,440 --> 00:04:05,560 Speaker 1: maybe that case will never go to the Supreme Court 67 00:04:05,640 --> 00:04:08,520 Speaker 1: because then everybody lost, and sure you'll go to the 68 00:04:08,560 --> 00:04:11,920 Speaker 1: Court of Appeals, they'll get a chance to make the decision, 69 00:04:12,240 --> 00:04:14,240 Speaker 1: but the Supreme Court may decide we don't want to 70 00:04:14,280 --> 00:04:18,599 Speaker 1: take that case, and so you'll never get the nationwide 71 00:04:19,320 --> 00:04:22,839 Speaker 1: decision that you might have gotten otherwise under the previous 72 00:04:22,960 --> 00:04:24,440 Speaker 1: way things were being done. 73 00:04:24,600 --> 00:04:28,040 Speaker 2: I mean. Also, it's not so easy to get a 74 00:04:28,080 --> 00:04:29,799 Speaker 2: class certified. 75 00:04:29,240 --> 00:04:33,040 Speaker 1: Is it. No, there's several problems. One timing. It takes 76 00:04:33,080 --> 00:04:35,080 Speaker 1: a lot of time to get a class certified. You 77 00:04:35,080 --> 00:04:37,920 Speaker 1: have to file emotion. You have to show that the 78 00:04:38,000 --> 00:04:41,719 Speaker 1: lawyers in the case are qualified class action lawyers. You 79 00:04:41,800 --> 00:04:44,839 Speaker 1: have to show that there's a numerosity, meaning there's a 80 00:04:44,839 --> 00:04:47,039 Speaker 1: lot of people who fit in this group. You have 81 00:04:47,120 --> 00:04:49,320 Speaker 1: to show that the group is common, that there's not 82 00:04:49,480 --> 00:04:53,159 Speaker 1: individual facts. Then at least in the immigration world. In 83 00:04:53,200 --> 00:04:55,920 Speaker 1: some of these cases, you can't even do a class 84 00:04:55,960 --> 00:04:59,240 Speaker 1: action because the court's of issued decision saying no, these 85 00:04:59,279 --> 00:05:03,080 Speaker 1: cases are fun the mentally person by person cases. So 86 00:05:03,240 --> 00:05:07,719 Speaker 1: like for instance, in indefinite detention cases or detention cases 87 00:05:07,920 --> 00:05:11,280 Speaker 1: in general, they say the individual has to challenge their 88 00:05:11,279 --> 00:05:15,080 Speaker 1: own detention. This can't be done as a class. And 89 00:05:15,160 --> 00:05:19,479 Speaker 1: so in those cases then you could even certify a 90 00:05:19,520 --> 00:05:22,359 Speaker 1: class you still couldn't do it because they're not letting 91 00:05:22,360 --> 00:05:24,760 Speaker 1: you do it for that particular issue. But in other cases, 92 00:05:24,800 --> 00:05:28,160 Speaker 1: the issue is going to be designing the cost the expense, 93 00:05:28,720 --> 00:05:32,320 Speaker 1: and then does this apply to just a specific group 94 00:05:32,400 --> 00:05:34,880 Speaker 1: of people or does it apply to the whole nation. 95 00:05:35,120 --> 00:05:38,760 Speaker 1: So all of that becomes now very challenging to determine. 96 00:05:38,960 --> 00:05:43,800 Speaker 2: So, since plaintiffs in both Maryland and New Hampshire are 97 00:05:44,240 --> 00:05:48,920 Speaker 2: seeking class action status, are the plaintiffs in a contest 98 00:05:48,920 --> 00:05:49,479 Speaker 2: of sorts. 99 00:05:50,279 --> 00:05:52,960 Speaker 1: Yeah, they're in a race to the courthouse now, and 100 00:05:53,080 --> 00:05:55,960 Speaker 1: both are trying to get the individual judges the issue 101 00:05:55,960 --> 00:05:59,080 Speaker 1: a class certification now the one benefit that they have 102 00:05:59,400 --> 00:06:02,800 Speaker 1: that people won't have moving forward. They already know that 103 00:06:02,920 --> 00:06:06,360 Speaker 1: these particular judges are inclined to say that the Birthright 104 00:06:06,440 --> 00:06:11,640 Speaker 1: Citizenship Executive Order is illegal, so from their perspective, asking 105 00:06:11,640 --> 00:06:15,560 Speaker 1: for a nationwide class certification is no risk. But moving forward, 106 00:06:16,240 --> 00:06:20,920 Speaker 1: the advocacy groups, whether they're conservative or liberals, they're going 107 00:06:20,960 --> 00:06:23,160 Speaker 1: to have to coordinate and say, is are you doing 108 00:06:23,200 --> 00:06:26,760 Speaker 1: something too risky by asking for a nation wide class 109 00:06:26,800 --> 00:06:29,279 Speaker 1: action because we don't know how this judge is going 110 00:06:29,320 --> 00:06:32,719 Speaker 1: to rule, And so that's a very interesting issue that's 111 00:06:32,720 --> 00:06:35,240 Speaker 1: going to come up moving forward here in the birthright 112 00:06:35,279 --> 00:06:39,000 Speaker 1: citizenship it's not really an issue because the judges have 113 00:06:39,120 --> 00:06:43,200 Speaker 1: already issued nationwide injunctions that are instead going to be 114 00:06:43,640 --> 00:06:46,640 Speaker 1: disbanded now as a matter of the Supreme Court, but 115 00:06:46,760 --> 00:06:49,000 Speaker 1: at least you know they're inclined to do it, So 116 00:06:49,160 --> 00:06:53,080 Speaker 1: asking for a nationwide class certification here is less risky. 117 00:06:53,760 --> 00:06:58,120 Speaker 2: Is the alternative plaintiffs going to judges in each of 118 00:06:58,160 --> 00:07:01,840 Speaker 2: the eleven circuits and trying to get an injunction that 119 00:07:01,880 --> 00:07:04,360 Speaker 2: applies to that circuit only correct. 120 00:07:04,480 --> 00:07:08,160 Speaker 1: And the problem is you would need probably a circuit 121 00:07:08,200 --> 00:07:12,320 Speaker 1: split or something to attract the Supreme Court to actually 122 00:07:12,400 --> 00:07:16,040 Speaker 1: take the case in that situation. And so that's where 123 00:07:16,080 --> 00:07:19,240 Speaker 1: this becomes a problem. Is if you had just one 124 00:07:19,440 --> 00:07:24,080 Speaker 1: circuit saying that it was unconstitutional, but the other circuit's 125 00:07:24,160 --> 00:07:27,240 Speaker 1: not or not saying anything. Who knows even when the 126 00:07:27,280 --> 00:07:31,040 Speaker 1: Supreme Court would actually be interested in taking these cases. 127 00:07:31,080 --> 00:07:34,280 Speaker 1: And that's something Justice Kavana said in his concurrent opinion 128 00:07:34,920 --> 00:07:38,360 Speaker 1: is he said, hey, we've got to still decide these 129 00:07:38,400 --> 00:07:41,200 Speaker 1: cases quickly because this lack of uniformity is going to 130 00:07:41,200 --> 00:07:44,200 Speaker 1: be a major problem if we don't decide these cases. 131 00:07:44,800 --> 00:07:46,600 Speaker 1: And so we'll see if the proof will be in 132 00:07:46,640 --> 00:07:48,680 Speaker 1: the putting of the Supreme Court does this. 133 00:07:49,040 --> 00:07:52,760 Speaker 2: And the Supreme Court gave the Trump administration thirty days 134 00:07:52,840 --> 00:07:55,120 Speaker 2: to what to say, how it's going to do the 135 00:07:55,160 --> 00:07:56,880 Speaker 2: birthright citizenship. 136 00:07:56,320 --> 00:07:59,400 Speaker 1: Ban right exactly. They now have to figure out what 137 00:07:59,440 --> 00:08:00,920 Speaker 1: they're going to do, what they're going to do in 138 00:08:01,000 --> 00:08:03,120 Speaker 1: the court. Are they going to move to this alve 139 00:08:03,160 --> 00:08:06,120 Speaker 1: these injunctions? What is their position going to be? And 140 00:08:06,520 --> 00:08:09,720 Speaker 1: from my perspective, this to me, say what you want 141 00:08:09,760 --> 00:08:14,120 Speaker 1: about the decision itself on nationwide injunctions, because it seems 142 00:08:14,120 --> 00:08:17,280 Speaker 1: to me where people stand has depended on where they sit, 143 00:08:17,760 --> 00:08:21,080 Speaker 1: and so sometimes the Democrats haven't liked them, sometimes the 144 00:08:21,160 --> 00:08:25,480 Speaker 1: Republicans haven't liked them. That's a separate issue. But to me. 145 00:08:25,920 --> 00:08:30,920 Speaker 1: Where I'm really confused by this decision is why the 146 00:08:30,960 --> 00:08:33,080 Speaker 1: Court wouldn't have just said, look, we need to do 147 00:08:33,160 --> 00:08:38,040 Speaker 1: briefing on this issue of birthright citizenship, because we can't 148 00:08:38,080 --> 00:08:43,480 Speaker 1: possibly have a situation where we are allowing a circuit 149 00:08:43,559 --> 00:08:47,840 Speaker 1: split or some other problem with birthright citizenship where some 150 00:08:47,880 --> 00:08:50,680 Speaker 1: people can get it and others cannot depending on what 151 00:08:50,800 --> 00:08:53,400 Speaker 1: state they are. They should have just decided that as 152 00:08:53,440 --> 00:08:56,200 Speaker 1: part of this and the fact that they didn't seems 153 00:08:56,320 --> 00:08:58,719 Speaker 1: to me to be one of the bigger problems with 154 00:08:58,800 --> 00:08:59,440 Speaker 1: this decision. 155 00:09:00,360 --> 00:09:03,520 Speaker 2: So now we're also waiting for the Supreme Court to 156 00:09:03,640 --> 00:09:08,559 Speaker 2: take action on Trump's attempt to send eight migrants who 157 00:09:08,559 --> 00:09:12,520 Speaker 2: are currently being held in Djibouti to South Sudan. 158 00:09:13,240 --> 00:09:17,320 Speaker 1: Right well, the Supreme Court has said that third country 159 00:09:17,400 --> 00:09:21,600 Speaker 1: deportations are now possible and that there doesn't need to 160 00:09:21,600 --> 00:09:24,960 Speaker 1: be this extra hearing where you're allowed to go in 161 00:09:25,440 --> 00:09:28,239 Speaker 1: and say, but don't send me to these other nations. 162 00:09:28,320 --> 00:09:31,080 Speaker 1: That actually is a decision that's been issued now that 163 00:09:31,240 --> 00:09:35,240 Speaker 1: was done without any guidance. So Supreme Court didn't say anything, 164 00:09:35,640 --> 00:09:38,120 Speaker 1: but they listed a stay on an order that a 165 00:09:38,200 --> 00:09:41,760 Speaker 1: district judge in Massachusetts gave where he was talking about 166 00:09:41,800 --> 00:09:44,240 Speaker 1: all the process that needs to be given if you 167 00:09:44,280 --> 00:09:46,920 Speaker 1: want to deport someone to a country that's not their 168 00:09:47,360 --> 00:09:51,240 Speaker 1: home country. And so now that doesn't exist anymore. And 169 00:09:51,280 --> 00:09:55,240 Speaker 1: so from that perspective, what happened was the District judge 170 00:09:55,240 --> 00:10:00,000 Speaker 1: has now sort of in a sense said well, because 171 00:10:00,160 --> 00:10:03,200 Speaker 1: that order wasn't very clear and just to say was listed, 172 00:10:03,720 --> 00:10:05,920 Speaker 1: I'm going to come back and still say no, there 173 00:10:05,960 --> 00:10:09,600 Speaker 1: is a process you need to give, and so I'm 174 00:10:09,600 --> 00:10:12,000 Speaker 1: not going to allow these people to be deported again. 175 00:10:12,120 --> 00:10:14,280 Speaker 1: And so now it's going to have to come back 176 00:10:14,360 --> 00:10:17,920 Speaker 1: up for the Supreme Court to actually use words and 177 00:10:18,040 --> 00:10:21,160 Speaker 1: describe exactly what they meant as opposed to just lifting 178 00:10:21,200 --> 00:10:24,800 Speaker 1: the stay. This judge is really forcing the Supreme Court 179 00:10:25,120 --> 00:10:28,480 Speaker 1: to come back and actually shut him down if they 180 00:10:28,520 --> 00:10:32,319 Speaker 1: think what he's doing is wrong by ordering, you know, 181 00:10:32,480 --> 00:10:35,040 Speaker 1: some process to be given to people who are going 182 00:10:35,080 --> 00:10:36,640 Speaker 1: to be deported to a third country. 183 00:10:36,800 --> 00:10:39,839 Speaker 2: Well, it's good at someone's doing that, because the Supreme Court, 184 00:10:39,960 --> 00:10:43,200 Speaker 2: with all these orders that we've been talking about for months, 185 00:10:43,559 --> 00:10:47,400 Speaker 2: rules something gives the bottom line but gives no guidance 186 00:10:47,440 --> 00:10:48,680 Speaker 2: to the lower courts. 187 00:10:48,720 --> 00:10:51,280 Speaker 1: Correct. This is going to be I think an inflection 188 00:10:51,440 --> 00:10:53,920 Speaker 1: point for the Supreme Court. I mean they can make 189 00:10:54,040 --> 00:10:57,920 Speaker 1: decisions obviously, of course that's their duty, They're right their obligations, 190 00:10:58,320 --> 00:11:01,120 Speaker 1: but can they make them in a way that actually 191 00:11:01,160 --> 00:11:05,559 Speaker 1: provides some guidance and some certainty in these very very 192 00:11:05,679 --> 00:11:10,760 Speaker 1: important issues that are life basically altering for people, as 193 00:11:10,760 --> 00:11:14,640 Speaker 1: opposed to just you know, listing stays and not providing 194 00:11:14,679 --> 00:11:18,000 Speaker 1: any guidance, any reason, any anything. I think this is 195 00:11:18,040 --> 00:11:19,959 Speaker 1: going to be a critical fundamental issue now. 196 00:11:20,000 --> 00:11:20,240 Speaker 2: I know. 197 00:11:20,800 --> 00:11:24,000 Speaker 1: The problem is there's many, many, many executive orders issues, 198 00:11:24,040 --> 00:11:27,640 Speaker 1: and many many lawsuits, and everybody's human and there's nine 199 00:11:27,840 --> 00:11:31,320 Speaker 1: justices and four law clerks for justices, so there's only 200 00:11:31,360 --> 00:11:34,720 Speaker 1: so many things that humanity can tackle at one given time. 201 00:11:35,240 --> 00:11:39,720 Speaker 1: But having said all of that, it really doesn't help 202 00:11:40,000 --> 00:11:43,000 Speaker 1: the situation when people have no guidance. You know, if 203 00:11:43,000 --> 00:11:45,360 Speaker 1: you get a decision that says make sure people have 204 00:11:45,440 --> 00:11:48,840 Speaker 1: a chance to file, well, what does that? You know, 205 00:11:49,240 --> 00:11:52,480 Speaker 1: those things sometimes cause more harm than good because nobody 206 00:11:52,520 --> 00:11:54,760 Speaker 1: knows what any of those things mean or how to 207 00:11:54,800 --> 00:11:58,600 Speaker 1: implement them, and everybody is litigating to get the best 208 00:11:58,640 --> 00:12:01,600 Speaker 1: results possible. No one is just going to accept those 209 00:12:01,640 --> 00:12:05,400 Speaker 1: decisions and say that it meant something less than what 210 00:12:05,520 --> 00:12:09,240 Speaker 1: the maximalist approach that each litigating side is going to 211 00:12:09,280 --> 00:12:11,560 Speaker 1: take in a particular case coming up. 212 00:12:11,880 --> 00:12:16,440 Speaker 2: Why kilmar Abrego Garcia's attorneys asked a judge to keep 213 00:12:16,520 --> 00:12:18,640 Speaker 2: him in jail. This is Bloomberg. 214 00:12:21,760 --> 00:12:25,240 Speaker 1: You were listening to Bloomberg Law with June Grosseo from 215 00:12:25,280 --> 00:12:26,320 Speaker 1: Bloomberg Radio. 216 00:12:27,920 --> 00:12:31,720 Speaker 2: The Fifth Circuit heard arguments today on the proper procedures 217 00:12:31,800 --> 00:12:36,040 Speaker 2: the Trump administration must follow to deport alleged members of 218 00:12:36,040 --> 00:12:40,760 Speaker 2: the Venezuelan street gang trend Ragua under the seventeen ninety 219 00:12:40,760 --> 00:12:44,680 Speaker 2: eight Alien Enemies Act. I've been talking to Immigration attorney 220 00:12:44,760 --> 00:12:48,080 Speaker 2: Leon Fresco. Leon, give us the background on this case. 221 00:12:48,400 --> 00:12:52,480 Speaker 1: So what happened was there were people in detention in 222 00:12:52,559 --> 00:12:56,680 Speaker 1: Texas who were being charged under the Alien Enemy's eyes, 223 00:12:57,440 --> 00:13:00,760 Speaker 1: and there was a lower court judge who said that 224 00:13:00,840 --> 00:13:03,559 Speaker 1: the Alien Enemies Acts of the procedure that was being 225 00:13:03,640 --> 00:13:07,480 Speaker 1: used there was an incorrect procedure and the government needed 226 00:13:07,559 --> 00:13:11,120 Speaker 1: to get people time pursuean to the Supreme Court's decision 227 00:13:11,160 --> 00:13:13,880 Speaker 1: saying that the government needed to get people tied to 228 00:13:14,520 --> 00:13:19,120 Speaker 1: use the habeas process properly so that they could say, Hey, 229 00:13:19,240 --> 00:13:22,439 Speaker 1: I'm not subject to this Alien Enemies Act. Either because 230 00:13:22,679 --> 00:13:27,240 Speaker 1: I'm not the right person, or because the statute doesn't 231 00:13:27,240 --> 00:13:31,000 Speaker 1: apply to me, or whatever it may be, the statue's unconstitutional, 232 00:13:31,480 --> 00:13:36,079 Speaker 1: et cetera. And so those procedures the government has been 233 00:13:36,120 --> 00:13:38,680 Speaker 1: fighting about, do we get people twenty four hours, do 234 00:13:38,760 --> 00:13:42,280 Speaker 1: we get people ten days? What is the procedure that 235 00:13:42,720 --> 00:13:47,560 Speaker 1: actually satisfies the Constitution in a particular case. And the 236 00:13:47,600 --> 00:13:50,120 Speaker 1: problem is everybody's just making this stuff up as they 237 00:13:50,160 --> 00:13:54,800 Speaker 1: go along, because the Supreme Court basically said, just get 238 00:13:54,840 --> 00:13:57,360 Speaker 1: people time to do that, so they weren't very clear 239 00:13:57,960 --> 00:14:00,640 Speaker 1: in what to do. And because they weren't very clear, 240 00:14:01,240 --> 00:14:03,680 Speaker 1: we are stuck in these situations now where the Fifth 241 00:14:03,760 --> 00:14:07,400 Speaker 1: Circuit's trying to determine what happens next in terms of 242 00:14:07,440 --> 00:14:09,080 Speaker 1: what is the proper procedures. 243 00:14:09,280 --> 00:14:12,160 Speaker 2: The most important thing is for them to determine how 244 00:14:12,240 --> 00:14:15,600 Speaker 2: much time someone gets and access to alert. 245 00:14:15,440 --> 00:14:18,920 Speaker 1: Correct from the moment that the government declares someone an 246 00:14:18,960 --> 00:14:22,040 Speaker 1: alien enemy. How much time does a person have to 247 00:14:22,120 --> 00:14:25,120 Speaker 1: file a habeas? What access do they need to be 248 00:14:25,200 --> 00:14:28,720 Speaker 1: given to a lawyer to be able to file a habeas? 249 00:14:28,800 --> 00:14:31,760 Speaker 1: You know, how long is that deportation order stayed for? 250 00:14:32,640 --> 00:14:35,520 Speaker 1: Can the person have an appeal? All of that kind 251 00:14:35,600 --> 00:14:39,200 Speaker 1: of stuff needs to be decided. The government basically wants 252 00:14:39,240 --> 00:14:43,080 Speaker 1: to get people twenty four hours, and the plaint that 253 00:14:43,280 --> 00:14:46,480 Speaker 1: side wants at least ten days to be able to 254 00:14:47,000 --> 00:14:50,080 Speaker 1: child ad these which you know, seems reasonable from the 255 00:14:50,120 --> 00:14:53,480 Speaker 1: standpoint that sometimes people get apprehended, they're in detention. It 256 00:14:53,520 --> 00:14:55,920 Speaker 1: takes several days to try to figure out where the 257 00:14:55,920 --> 00:14:59,040 Speaker 1: person even is much less to then get a lawyer 258 00:14:59,080 --> 00:15:02,600 Speaker 1: and write the adeas complaint file it in court. So 259 00:15:02,960 --> 00:15:05,680 Speaker 1: this definitely becomes a complicated issue. 260 00:15:06,080 --> 00:15:09,040 Speaker 2: Right now. Let's say you're arrested and they want to 261 00:15:09,040 --> 00:15:11,360 Speaker 2: deport you. I mean, how much notice do they have 262 00:15:11,440 --> 00:15:14,560 Speaker 2: to give you if you're a regular deportee. 263 00:15:14,880 --> 00:15:17,520 Speaker 1: Well, if you're a regular person that the government is 264 00:15:17,560 --> 00:15:20,720 Speaker 1: trying to deport, when they detain you, they have to 265 00:15:20,760 --> 00:15:23,920 Speaker 1: give you what's called a notice to appear. Then that 266 00:15:24,040 --> 00:15:28,400 Speaker 1: notice to appear puts you in a deportation proceeding. Usually 267 00:15:28,840 --> 00:15:32,080 Speaker 1: the next hearing, which is called a master calendar hearing, 268 00:15:32,680 --> 00:15:36,000 Speaker 1: which is the equivalent of like an arraignment in criminal 269 00:15:36,040 --> 00:15:38,600 Speaker 1: court where you plead guilty or not guilty. Here you 270 00:15:38,600 --> 00:15:42,080 Speaker 1: would plead, you know, the portable or non deportable is 271 00:15:42,160 --> 00:15:45,520 Speaker 1: usually in several days after that, I you're detained, and 272 00:15:45,640 --> 00:15:47,480 Speaker 1: at that point you would ask the judge, Hey, I 273 00:15:47,480 --> 00:15:49,760 Speaker 1: need time to find the lawyer, and the judge would 274 00:15:49,840 --> 00:15:51,840 Speaker 1: give you time to find the lawyer, and that could 275 00:15:51,840 --> 00:15:55,200 Speaker 1: be a couple of weeks, thirty days, et cetera, and 276 00:15:55,280 --> 00:15:58,200 Speaker 1: then you know, you'd have a new hearing. Go from 277 00:15:58,200 --> 00:16:03,040 Speaker 1: that perspective, there's much more time given. But what their 278 00:16:03,120 --> 00:16:05,280 Speaker 1: government is trying to do in these alien enemies that 279 00:16:05,440 --> 00:16:07,960 Speaker 1: cases is to skip all of that and say that 280 00:16:08,080 --> 00:16:10,600 Speaker 1: because you're an alien enemy, you don't get any of 281 00:16:10,640 --> 00:16:14,200 Speaker 1: that process. You can just be apprehended and put on 282 00:16:14,240 --> 00:16:17,320 Speaker 1: a plane to some country. And so that's the question 283 00:16:17,400 --> 00:16:20,560 Speaker 1: is is if you're trying to skip that whole process, 284 00:16:21,080 --> 00:16:23,880 Speaker 1: how long do you have to get someone to say, hey, 285 00:16:23,920 --> 00:16:26,000 Speaker 1: you got the wrong person? Why am I being put 286 00:16:26,040 --> 00:16:28,920 Speaker 1: on this plane? So that's the question is how long 287 00:16:29,000 --> 00:16:30,280 Speaker 1: do you have in that scenario. 288 00:16:30,520 --> 00:16:34,040 Speaker 2: And also I've heard other lawyers say that it's sometimes 289 00:16:34,080 --> 00:16:36,920 Speaker 2: difficult to figure out where your client is being held. 290 00:16:37,160 --> 00:16:40,600 Speaker 1: Correct. When people are apprehended, they can be placed anywhere 291 00:16:40,640 --> 00:16:43,240 Speaker 1: in the United States by ice. There is a thing 292 00:16:43,480 --> 00:16:47,600 Speaker 1: online called the detainee locator, but sometimes it takes two 293 00:16:47,680 --> 00:16:49,760 Speaker 1: or three days for the person's name to even get 294 00:16:49,840 --> 00:16:54,000 Speaker 1: uploaded to that detainee locator. So if someone's been detained, 295 00:16:54,000 --> 00:16:55,640 Speaker 1: you may not know where they are for two or 296 00:16:55,640 --> 00:16:58,200 Speaker 1: three days. And then in order to get a lawyer 297 00:16:58,400 --> 00:17:02,360 Speaker 1: to that detention facility, which is often in a remote location, 298 00:17:03,040 --> 00:17:05,560 Speaker 1: in order to sign all the paperwork needed to file 299 00:17:05,640 --> 00:17:08,520 Speaker 1: the lawsuit ends up being quite onerous. So if you 300 00:17:08,560 --> 00:17:12,040 Speaker 1: only had twenty four hours to file the havieas, how 301 00:17:12,080 --> 00:17:15,760 Speaker 1: could someone, potentially someone who doesn't even speak English, file 302 00:17:15,800 --> 00:17:19,199 Speaker 1: a federal court lawsuit within twenty four hours. That's the 303 00:17:19,320 --> 00:17:21,600 Speaker 1: question that the courts are going to have to consider here. 304 00:17:21,800 --> 00:17:25,360 Speaker 2: The Fifth Circuit is the most conservative circuit in the country, 305 00:17:25,400 --> 00:17:27,640 Speaker 2: so I take it that this is the worst circuit 306 00:17:28,000 --> 00:17:30,640 Speaker 2: to be hearing this from the viewpoint of immigrants. 307 00:17:30,640 --> 00:17:34,160 Speaker 1: Well correct, This wasn't a strategic decision by the plaintiffs. 308 00:17:34,200 --> 00:17:37,639 Speaker 1: The plaintiffs happened to be detained in Texas, and so 309 00:17:37,720 --> 00:17:40,920 Speaker 1: the last Supreme Court decision said you have to file 310 00:17:40,960 --> 00:17:43,960 Speaker 1: the habeas in the location where the person is detained, 311 00:17:44,359 --> 00:17:47,080 Speaker 1: because in that case they had had the habeases in 312 00:17:47,119 --> 00:17:52,080 Speaker 1: front of Judge Bosburg in DC and Judge Bohsburg in 313 00:17:52,200 --> 00:17:54,960 Speaker 1: DC was ruled not to have jurisdiction, so they have 314 00:17:55,119 --> 00:17:58,040 Speaker 1: to file the habeas in the Southern District of Texas. 315 00:17:58,320 --> 00:18:02,000 Speaker 1: They were actually successful in the Southern District affects US 316 00:18:02,040 --> 00:18:04,560 Speaker 1: to get that judge to say that the Alien Enemies 317 00:18:04,560 --> 00:18:08,600 Speaker 1: Act required more notice than was unconstitutional. But now the 318 00:18:08,640 --> 00:18:13,560 Speaker 1: notice issue goes to the Fifth Circuit, and now the 319 00:18:13,600 --> 00:18:15,760 Speaker 1: Fifth Circuit is going to be in a more conservative 320 00:18:15,760 --> 00:18:19,960 Speaker 1: posture than that individual district judge, and so the question 321 00:18:20,119 --> 00:18:21,240 Speaker 1: is what they're going to do there. 322 00:18:21,840 --> 00:18:25,480 Speaker 2: Let's turn to a deportation case that is widely known 323 00:18:26,160 --> 00:18:31,440 Speaker 2: Kilo Abrego Garcia, who was wrongly deported to El Salvador 324 00:18:31,680 --> 00:18:35,959 Speaker 2: and is back in the country but in jail. So 325 00:18:36,240 --> 00:18:40,400 Speaker 2: his lawyers made an unusual request on Friday to keep 326 00:18:40,480 --> 00:18:45,600 Speaker 2: him in criminal custody until July sixteenth, when a judge 327 00:18:45,600 --> 00:18:49,040 Speaker 2: has scheduled a hearing. It's not often that you see 328 00:18:49,040 --> 00:18:51,679 Speaker 2: a person's lawyer saying keep him in prison. 329 00:18:52,200 --> 00:18:55,399 Speaker 1: Well, I think the concern that Abrego Garcia has is 330 00:18:56,000 --> 00:18:59,640 Speaker 1: if he is released from criminal custody, then he will 331 00:18:59,680 --> 00:19:02,960 Speaker 1: be played an ice custody, and ISA is saying that 332 00:19:03,040 --> 00:19:07,000 Speaker 1: they now want to deport him to some other third country, 333 00:19:07,240 --> 00:19:10,040 Speaker 1: which they have the right to do, because a Brago 334 00:19:10,119 --> 00:19:13,440 Speaker 1: Garcia does have a removal order, but it's a removal 335 00:19:13,560 --> 00:19:16,440 Speaker 1: order that prevents him from being sent to al Salvador, 336 00:19:16,520 --> 00:19:20,879 Speaker 1: but not from another country. And so theoretically speaking, a 337 00:19:20,960 --> 00:19:24,639 Speaker 1: Brago Garcia can be sent to a third country. And so, 338 00:19:24,840 --> 00:19:28,280 Speaker 1: pursuing again to this Supreme Court decision at the moment, 339 00:19:28,680 --> 00:19:32,280 Speaker 1: says that there doesn't need to be these extra protections 340 00:19:32,280 --> 00:19:35,760 Speaker 1: for third country removals, that he could be sent anywhere 341 00:19:35,960 --> 00:19:39,240 Speaker 1: to any country in the world other than Alsavador. And 342 00:19:39,359 --> 00:19:43,760 Speaker 1: so he's saying, rather than being sent to any such 343 00:19:43,800 --> 00:19:47,639 Speaker 1: third country, he'd rather remain in US criminal detention to 344 00:19:47,680 --> 00:19:50,959 Speaker 1: see if he can figure out a way to ultimately 345 00:19:51,000 --> 00:19:53,480 Speaker 1: come up with some legal strategy that allows him to 346 00:19:53,520 --> 00:19:55,800 Speaker 1: remain in the United States. 347 00:19:55,920 --> 00:19:59,320 Speaker 2: Why would the government rather deport him than try him qui. 348 00:20:00,200 --> 00:20:03,239 Speaker 1: The problem is if he is in criminal court and 349 00:20:03,280 --> 00:20:06,360 Speaker 1: he's been given a bond, which means he can actually 350 00:20:06,480 --> 00:20:09,720 Speaker 1: walk around as a free man while this case is pending, 351 00:20:10,240 --> 00:20:14,120 Speaker 1: that's the nightmare scenario for the government right now. They 352 00:20:14,200 --> 00:20:18,199 Speaker 1: didn't want any scenario where he was actually walking around 353 00:20:18,240 --> 00:20:22,960 Speaker 1: in America again, and so their preferred scenario was that 354 00:20:23,040 --> 00:20:27,560 Speaker 1: he be criminally prosecuted, detained, and then serve his sentence, 355 00:20:27,600 --> 00:20:31,160 Speaker 1: and then remove But if they can't achieve that scenario 356 00:20:31,560 --> 00:20:34,840 Speaker 1: because he will be allowed to actually walk around free 357 00:20:34,880 --> 00:20:38,719 Speaker 1: for a while while this case is pending, then for them, 358 00:20:38,840 --> 00:20:41,760 Speaker 1: the better scenario is just to deport him and not 359 00:20:41,840 --> 00:20:45,840 Speaker 1: criminally prosecute him, because they just will not abide by 360 00:20:45,880 --> 00:20:49,119 Speaker 1: a scenario where he's actually free in walking around. 361 00:20:49,480 --> 00:20:53,640 Speaker 2: The Trump administration has agreed to release from prison a 362 00:20:53,680 --> 00:20:58,359 Speaker 2: three time felon who had fired shots into a Texas community. 363 00:20:58,760 --> 00:21:01,679 Speaker 2: He's been deported five times. He was going to be 364 00:21:01,680 --> 00:21:05,439 Speaker 2: deported a sixth time in exchange for his cooperation in 365 00:21:05,480 --> 00:21:10,840 Speaker 2: the prosecution of Garcia. Garcia has never been convicted of 366 00:21:10,880 --> 00:21:15,480 Speaker 2: a crime, So why release a convicted felon just to 367 00:21:15,520 --> 00:21:17,040 Speaker 2: get testimony against him. 368 00:21:17,560 --> 00:21:19,520 Speaker 1: I mean, at the end of the day, if they 369 00:21:19,560 --> 00:21:23,879 Speaker 1: don't have any other evidence that links Abrego Garcia to 370 00:21:24,119 --> 00:21:27,639 Speaker 1: human trafficking, and this is the only person that can 371 00:21:27,720 --> 00:21:30,840 Speaker 1: link into human trafficking, then they have to make a 372 00:21:30,880 --> 00:21:35,320 Speaker 1: strategic decision as to what would incentivize this person to 373 00:21:35,359 --> 00:21:38,199 Speaker 1: give this testimony. And if this was the only thing 374 00:21:38,240 --> 00:21:41,720 Speaker 1: that would incentivize this person to give this testimony. Then 375 00:21:42,080 --> 00:21:43,840 Speaker 1: they had to do it. Just like you know in 376 00:21:43,920 --> 00:21:46,679 Speaker 1: mafia cases, you do this kind of thing all the time, 377 00:21:47,000 --> 00:21:50,760 Speaker 1: where you get people with this protection or other things 378 00:21:50,800 --> 00:21:54,399 Speaker 1: in order to testify against other co conspirators. In the 379 00:21:54,440 --> 00:21:58,800 Speaker 1: immigration world, that this does happen, where people get immigration 380 00:21:58,960 --> 00:22:02,639 Speaker 1: status in exchange for their testimony. It's just a question 381 00:22:02,720 --> 00:22:07,560 Speaker 1: of whether here the harms outweigh the benefits in the 382 00:22:07,640 --> 00:22:11,520 Speaker 1: sense of whether Abrego Garcia is such a danger to 383 00:22:11,560 --> 00:22:15,640 Speaker 1: the society that it justifies releasing this other person who 384 00:22:15,680 --> 00:22:19,159 Speaker 1: is dangerous to the society. So that's the question the 385 00:22:19,200 --> 00:22:22,880 Speaker 1: government needs to answer. And we'll see. Maybe they don't 386 00:22:22,920 --> 00:22:25,240 Speaker 1: end up getting around to all of this because they 387 00:22:25,280 --> 00:22:29,680 Speaker 1: just end up deporting Abrego Garcia now to a third country. 388 00:22:30,160 --> 00:22:32,080 Speaker 1: We'll see how that happens. But if they actually have 389 00:22:32,200 --> 00:22:35,639 Speaker 1: to go through a criminal trial, then thou have to 390 00:22:35,680 --> 00:22:40,560 Speaker 1: make this decision about whether this individual is now so 391 00:22:40,640 --> 00:22:43,880 Speaker 1: important that they can justify keeping them in the country 392 00:22:44,200 --> 00:22:48,600 Speaker 1: released freely in order to put a Brago Garcia into prison. 393 00:22:49,119 --> 00:22:53,760 Speaker 2: Because I assume that the Abrego Garcia case is so 394 00:22:54,480 --> 00:22:58,280 Speaker 2: well known now across the country that the Trump administration 395 00:22:58,400 --> 00:23:02,800 Speaker 2: has a lot at stake in actually deporting him or 396 00:23:03,000 --> 00:23:03,960 Speaker 2: convicting him. 397 00:23:04,440 --> 00:23:06,960 Speaker 1: Correct, they do not want him free walking around the 398 00:23:07,080 --> 00:23:10,840 Speaker 1: United States. And so either whether it'll be by deportation 399 00:23:11,040 --> 00:23:15,240 Speaker 1: or by criminal prosecution, they want it either detained or deported. 400 00:23:15,880 --> 00:23:19,240 Speaker 1: And if this is the top scenario, then you will 401 00:23:19,280 --> 00:23:22,080 Speaker 1: have to do what you can to accomplish that scenario. 402 00:23:22,560 --> 00:23:26,280 Speaker 1: So that would include potentially giving a star witness the 403 00:23:26,320 --> 00:23:29,680 Speaker 1: incentive that is needed to be the witness, But obviously 404 00:23:29,720 --> 00:23:31,679 Speaker 1: that's something that will be able to be impeached in 405 00:23:31,760 --> 00:23:35,080 Speaker 1: a trial. If there is a trial, they'll be able 406 00:23:35,119 --> 00:23:37,560 Speaker 1: to say, hey, you know, are you just making all 407 00:23:37,560 --> 00:23:41,240 Speaker 1: of this up because you're getting this extraordinary immigration benefit 408 00:23:41,359 --> 00:23:42,200 Speaker 1: and that's what we're going. 409 00:23:42,119 --> 00:23:46,159 Speaker 2: To have to see and leon the witness, Jose Ramon 410 00:23:46,240 --> 00:23:50,399 Speaker 2: Hernandez reyes he was going to be deported a sixth time. 411 00:23:50,920 --> 00:23:54,840 Speaker 2: Do you often see people coming into the country illegally 412 00:23:55,359 --> 00:23:56,640 Speaker 2: five six times? 413 00:23:57,080 --> 00:24:00,639 Speaker 1: So it depends what the government wants to do, because 414 00:24:00,640 --> 00:24:03,760 Speaker 1: they have the authority to prosecute someone who's re entered 415 00:24:03,800 --> 00:24:06,960 Speaker 1: after being deported and putting them in prison for quite 416 00:24:07,240 --> 00:24:10,720 Speaker 1: a large amount of time, or they can just execute 417 00:24:10,720 --> 00:24:14,720 Speaker 1: the deportation order without such a prosecution. So if they 418 00:24:14,800 --> 00:24:18,240 Speaker 1: do that then yes, you can have people deported three, 419 00:24:18,359 --> 00:24:20,720 Speaker 1: four or five times, because all they have to do 420 00:24:20,840 --> 00:24:24,880 Speaker 1: is what's called reinstate the previous deportation order. They don't 421 00:24:24,920 --> 00:24:27,399 Speaker 1: have to even get a new one. It's literally a 422 00:24:27,520 --> 00:24:31,199 Speaker 1: form that gets done that allows a reinstatement of the 423 00:24:31,240 --> 00:24:34,120 Speaker 1: prior order and the person is just deported again. So 424 00:24:34,680 --> 00:24:37,639 Speaker 1: every time a deportation order is reinstated, that counts as 425 00:24:37,640 --> 00:24:42,000 Speaker 1: another order. But what is rare is you don't usually 426 00:24:42,040 --> 00:24:45,000 Speaker 1: see that within the context of the government continuing to 427 00:24:45,080 --> 00:24:47,439 Speaker 1: allow it over and over and over and over and 428 00:24:47,480 --> 00:24:51,640 Speaker 1: over again without charging the person for re entering as 429 00:24:51,680 --> 00:24:54,600 Speaker 1: a deported person. At some point they say this has 430 00:24:54,680 --> 00:24:58,160 Speaker 1: to stop, so they'll put the person in prison, and 431 00:24:58,600 --> 00:25:00,679 Speaker 1: they could be several years that you could put the 432 00:25:00,680 --> 00:25:03,639 Speaker 1: person in prison for re entering as a deported person. 433 00:25:04,200 --> 00:25:06,800 Speaker 1: And so you know, why wasn't that done earlier in 434 00:25:06,840 --> 00:25:07,600 Speaker 1: this process? 435 00:25:07,720 --> 00:25:10,960 Speaker 2: Thanks so much, Leon. There is immigration news every day 436 00:25:11,040 --> 00:25:15,680 Speaker 2: these days. That's Leon Fresco of Holland and Knight coming up. 437 00:25:15,840 --> 00:25:22,600 Speaker 2: The California governor sues Fox This is Bloomberg. California Governor 438 00:25:22,680 --> 00:25:26,480 Speaker 2: Gavin Newsom is suing Fox News over its coverage of 439 00:25:26,520 --> 00:25:30,960 Speaker 2: a conversation he had with President Donald Trump about protests 440 00:25:31,040 --> 00:25:35,880 Speaker 2: in Los Angeles. He accuses the network of deliberately misrepresenting 441 00:25:36,000 --> 00:25:40,080 Speaker 2: comments to claim that Newsom lied about the phone conversation. 442 00:25:40,840 --> 00:25:44,160 Speaker 2: Newsom is seeking seven hundred and eighty seven million dollars 443 00:25:44,200 --> 00:25:49,000 Speaker 2: in damages, citing a similar defamation lawsuit Fox News settled 444 00:25:49,040 --> 00:25:53,200 Speaker 2: with Dominion Voting Systems in twenty twenty three. Fox News 445 00:25:53,240 --> 00:25:57,640 Speaker 2: has responded that the lawsuit is a transparent publicity stunt 446 00:25:57,720 --> 00:26:01,639 Speaker 2: and frivolous, and plans to def end it vigorously and 447 00:26:01,720 --> 00:26:06,080 Speaker 2: seek its dismissal. Join me is defamation lawyer Jeff Lewis 448 00:26:07,400 --> 00:26:11,160 Speaker 2: Jeff tell us about the basics of Newsom's complaint against 449 00:26:11,240 --> 00:26:13,120 Speaker 2: Fox Well. 450 00:26:13,160 --> 00:26:16,200 Speaker 5: The gist of the lawsuit is that Fox News misrepresented 451 00:26:16,400 --> 00:26:21,080 Speaker 5: a couple of calls between Trump and Newsom preceding in 452 00:26:21,240 --> 00:26:25,200 Speaker 5: the deployment of the National Guard, and Fox News tried 453 00:26:25,200 --> 00:26:28,119 Speaker 5: to paint a picture that Newsom was lying about not 454 00:26:28,200 --> 00:26:31,560 Speaker 5: being called by President Trump. That's the gist of a lawsuit, 455 00:26:31,600 --> 00:26:35,560 Speaker 5: and Newsom is seeking millions of dollars in damages for 456 00:26:35,760 --> 00:26:36,720 Speaker 5: defamation per se. 457 00:26:37,400 --> 00:26:41,920 Speaker 2: So now he's alleging that this was deliberate on Fox's 458 00:26:42,000 --> 00:26:46,920 Speaker 2: behalf that they made deceptive video edits and false statements. 459 00:26:47,640 --> 00:26:49,720 Speaker 5: Yeah, and by the way, they have to allege that 460 00:26:49,840 --> 00:26:53,399 Speaker 5: was intentional because Newsom is a public figure, he's a 461 00:26:53,440 --> 00:26:56,720 Speaker 5: political figure, and so under New York Times versus Sullivan, 462 00:26:57,440 --> 00:26:59,600 Speaker 5: he has the burden approving not only that Fox News 463 00:26:59,600 --> 00:27:03,280 Speaker 5: said some fault, but they said so with actual malice, 464 00:27:03,280 --> 00:27:05,280 Speaker 5: meaning they knew what they were doing, they knew what 465 00:27:05,320 --> 00:27:07,080 Speaker 5: they were saying was false, and so there has to 466 00:27:07,119 --> 00:27:10,400 Speaker 5: be allegations of intentionality or this case will be dismissed. 467 00:27:11,080 --> 00:27:14,960 Speaker 2: NUSIM is seeking seven hundred and eighty seven million dollars, 468 00:27:15,520 --> 00:27:19,080 Speaker 2: and that number seems to be symbolic because it is 469 00:27:19,119 --> 00:27:22,400 Speaker 2: about the same amount that Fox News paid to Dominion 470 00:27:22,520 --> 00:27:26,760 Speaker 2: Voting Systems in twenty twenty three to settle a separate 471 00:27:26,840 --> 00:27:31,000 Speaker 2: defamation lawsuit over the network's election coverage. 472 00:27:31,400 --> 00:27:37,520 Speaker 5: The Fox News lawsuit and settlement with Dominion figures prominently 473 00:27:37,560 --> 00:27:39,920 Speaker 5: in the storytelling of this complaint. You read the first 474 00:27:39,960 --> 00:27:43,119 Speaker 5: few paragraphs, and that's part of this piece of trying 475 00:27:43,160 --> 00:27:45,840 Speaker 5: to demonstrate that Fox News hasn't learned a lesson and 476 00:27:45,840 --> 00:27:49,080 Speaker 5: it's acting intentionally to try to get past the actual 477 00:27:49,119 --> 00:27:49,920 Speaker 5: malice standard. 478 00:27:50,600 --> 00:27:55,240 Speaker 2: And in the dominion case, discovery revealed some information that 479 00:27:55,320 --> 00:27:59,520 Speaker 2: Fox would rather have kept hidden, and could that happen 480 00:27:59,560 --> 00:28:00,239 Speaker 2: again year? 481 00:28:00,320 --> 00:28:06,119 Speaker 5: In discovery, absolutely, there will be text messages, communications about 482 00:28:06,160 --> 00:28:11,320 Speaker 5: this interchange and how, for example, how Fox News vetted 483 00:28:11,520 --> 00:28:15,600 Speaker 5: this story and did anything to verify what President Trump 484 00:28:15,680 --> 00:28:18,199 Speaker 5: was saying on his social media about the timing of 485 00:28:18,280 --> 00:28:21,560 Speaker 5: these calls. So there will be discovery, and the discovery 486 00:28:21,600 --> 00:28:22,879 Speaker 5: can prove to be embarrassing. 487 00:28:23,440 --> 00:28:27,280 Speaker 2: Are there hurdles here with questions about news and commentary 488 00:28:27,440 --> 00:28:32,879 Speaker 2: and whether you're shading the truth or just making a 489 00:28:32,960 --> 00:28:35,200 Speaker 2: comment on a political figure. 490 00:28:37,040 --> 00:28:40,640 Speaker 5: Yeah, that's a great question, because in this case he 491 00:28:40,720 --> 00:28:45,200 Speaker 5: has tried to essentially allege the towort of false light, 492 00:28:45,520 --> 00:28:49,960 Speaker 5: which is related to defamation, and false light is taking facts, 493 00:28:50,240 --> 00:28:53,640 Speaker 5: taking clips and editing them suspiciously to place you in 494 00:28:53,640 --> 00:28:57,200 Speaker 5: a negative light, to suggest you're either lying or that 495 00:28:57,240 --> 00:29:00,480 Speaker 5: you aren't telling the truth. That's the just of what 496 00:29:00,640 --> 00:29:04,640 Speaker 5: Governor Newsom has alleged here. And so in a traditional 497 00:29:04,720 --> 00:29:07,920 Speaker 5: defamation case, you're looking for a false statement of fact, 498 00:29:08,200 --> 00:29:13,480 Speaker 5: something that's provably false, and here it's more about through 499 00:29:13,560 --> 00:29:17,640 Speaker 5: deceptive editing, whether or not Newsom was shown by Fox 500 00:29:17,720 --> 00:29:20,800 Speaker 5: News to not know what he's talking about or be 501 00:29:20,920 --> 00:29:24,120 Speaker 5: inaccurate in terms of his recollection of phone calls with 502 00:29:24,200 --> 00:29:24,960 Speaker 5: President Trump. 503 00:29:25,760 --> 00:29:29,280 Speaker 2: It does seem like there is evidence there was just 504 00:29:29,320 --> 00:29:32,880 Speaker 2: a sixteen minute phone call between Newsom and Trump and 505 00:29:32,880 --> 00:29:37,440 Speaker 2: that it took place either late on June sixth, California 506 00:29:37,520 --> 00:29:40,080 Speaker 2: time or early on June seventh on the. 507 00:29:40,640 --> 00:29:43,240 Speaker 5: Yeah, but let me just say this, truth is a 508 00:29:43,280 --> 00:29:46,120 Speaker 5: defense in defamation law, and you don't have to be 509 00:29:46,160 --> 00:29:48,560 Speaker 5: exactly right on all the details. There's plenty of cases 510 00:29:48,600 --> 00:29:52,400 Speaker 5: out there that say being substantially true or close enough 511 00:29:52,720 --> 00:29:55,920 Speaker 5: is good enough in the world of defamation. And so 512 00:29:56,640 --> 00:29:59,680 Speaker 5: I don't know if the gap or the inaccuracy of 513 00:29:59,760 --> 00:30:01,800 Speaker 5: saying it was a day ago as opposed to three 514 00:30:01,880 --> 00:30:04,400 Speaker 5: days ago will be enough to convince the court to 515 00:30:04,480 --> 00:30:06,800 Speaker 5: let this escape emotion to dismiss It's kind of a 516 00:30:06,800 --> 00:30:08,520 Speaker 5: weak defamation claim if you asked me. 517 00:30:09,040 --> 00:30:13,000 Speaker 2: The Chiron did read Gavin Lyde about Trump's call. 518 00:30:14,440 --> 00:30:17,920 Speaker 5: Yeah, Well, and what Fox News showed was a truth 519 00:30:18,000 --> 00:30:22,400 Speaker 5: social post by President Trump with the call log showing 520 00:30:22,440 --> 00:30:24,840 Speaker 5: that there was a phone call. And the question is 521 00:30:24,920 --> 00:30:27,640 Speaker 5: will that be enough? Will that be close enough to 522 00:30:27,680 --> 00:30:31,280 Speaker 5: the truth to allow the lawsuit to be dismissed, or 523 00:30:31,360 --> 00:30:33,960 Speaker 5: will Newsome be able to say, well, this casts me 524 00:30:34,040 --> 00:30:35,720 Speaker 5: in a false life, it makes me look like I 525 00:30:35,720 --> 00:30:37,840 Speaker 5: don't know what I'm talking about, and tell us. 526 00:30:37,720 --> 00:30:42,480 Speaker 2: About the cause of action under California's unfair competition law. 527 00:30:42,800 --> 00:30:45,000 Speaker 5: That's not going anywhere. Let me tell you, this is 528 00:30:45,040 --> 00:30:48,880 Speaker 5: a law that he's usually used to protect consumers against 529 00:30:48,920 --> 00:30:52,760 Speaker 5: false advertising and claims like that, and it's not going 530 00:30:52,760 --> 00:30:56,560 Speaker 5: anywhere because under California law, you're not entitled to damages, 531 00:30:56,560 --> 00:30:59,600 Speaker 5: you're entitled to restitutions. So if gouvernor Newsom could somehow 532 00:30:59,720 --> 00:31:02,720 Speaker 5: prove that Fox News made a buck or two or 533 00:31:02,760 --> 00:31:06,000 Speaker 5: ten bucks off of this story, tie it directly that story. 534 00:31:06,320 --> 00:31:08,440 Speaker 5: The best Governor Newsom could hope for is to get 535 00:31:08,480 --> 00:31:12,040 Speaker 5: restitution of those laws of those profits. But that's not 536 00:31:12,040 --> 00:31:13,840 Speaker 5: going to be proven here that case, that claim is 537 00:31:13,840 --> 00:31:14,680 Speaker 5: going to be dismissed. 538 00:31:15,040 --> 00:31:19,080 Speaker 2: Apparently that the lawyers offered to drop the lawsuit. If 539 00:31:19,120 --> 00:31:23,240 Speaker 2: Fox retracts the comments and apologizes. Is that a good 540 00:31:23,240 --> 00:31:24,000 Speaker 2: deal for Fox? 541 00:31:24,600 --> 00:31:27,360 Speaker 5: It is a good deal if all you care about 542 00:31:27,440 --> 00:31:30,680 Speaker 5: is paying money in terms of legal fees for defense. 543 00:31:31,240 --> 00:31:33,600 Speaker 5: It's a bad deal in terms of Fox News might 544 00:31:33,680 --> 00:31:38,200 Speaker 5: enjoy the exposure Fox News might enjoy being the antagonist 545 00:31:38,440 --> 00:31:42,280 Speaker 5: to Governor Newsom, So there are non monetary issues here. 546 00:31:43,400 --> 00:31:48,480 Speaker 2: This is sort of echoing or copying Trump's strategy of 547 00:31:49,280 --> 00:31:53,280 Speaker 2: suing the media. I mean, he has that suit alleging 548 00:31:53,280 --> 00:31:57,680 Speaker 2: that CBS network edited an interview with Kamala Harris to 549 00:31:58,120 --> 00:32:01,840 Speaker 2: favor her. And that's got to be a difficult case 550 00:32:01,880 --> 00:32:02,360 Speaker 2: to prove. 551 00:32:03,360 --> 00:32:07,200 Speaker 5: Yeah, again, because of the issues involving a public figure 552 00:32:07,480 --> 00:32:10,040 Speaker 5: having to prove actual malice and it's more of a 553 00:32:10,080 --> 00:32:13,120 Speaker 5: false light as opposed to a provably false fact, and 554 00:32:13,160 --> 00:32:15,800 Speaker 5: those are all hard things to prove, and a defamation claim. 555 00:32:16,040 --> 00:32:17,600 Speaker 5: Defamation claims are really hard to win. 556 00:32:18,080 --> 00:32:21,480 Speaker 2: Prior to Trump, have there been a lot of political 557 00:32:21,520 --> 00:32:25,600 Speaker 2: figures that suit for defamation over unfavorable coverage. 558 00:32:25,880 --> 00:32:29,000 Speaker 5: Well, in California, you see a lot of lawsuits against 559 00:32:29,040 --> 00:32:33,400 Speaker 5: political opponents things that are said during the heat of campaigns. 560 00:32:33,840 --> 00:32:36,800 Speaker 5: But usually those lawsuits are directed at your political opponent, 561 00:32:36,920 --> 00:32:40,240 Speaker 5: not the media, not the person holding the microphone. 562 00:32:40,520 --> 00:32:43,080 Speaker 2: How did those suits end up because I can imagine 563 00:32:43,080 --> 00:32:46,760 Speaker 2: almost every politician could sue the opposition. 564 00:32:46,680 --> 00:32:47,240 Speaker 1: That's right. 565 00:32:47,480 --> 00:32:50,760 Speaker 5: Well, in California, we have a very robust anti slap 566 00:32:50,880 --> 00:32:53,960 Speaker 5: law which allows defendants to quickly file emotion to get 567 00:32:53,960 --> 00:32:56,880 Speaker 5: these kinds of lawsuits dismissed, and they're quickly vetted and 568 00:32:56,960 --> 00:32:59,920 Speaker 5: either disposed of or settled. They rarely go to try. 569 00:33:00,480 --> 00:33:02,960 Speaker 5: One interesting note here, California has one of the most 570 00:33:02,960 --> 00:33:07,560 Speaker 5: powerful pro defendant anti slap laws in the nation. Governor 571 00:33:07,560 --> 00:33:11,840 Speaker 5: Newsom sued in Delaware, perhaps to avoid application of that 572 00:33:12,280 --> 00:33:14,680 Speaker 5: anti slap law and to avoid an early testing of 573 00:33:14,680 --> 00:33:15,760 Speaker 5: the evidence in this case. 574 00:33:16,160 --> 00:33:19,440 Speaker 2: Is this an uphill battle for him to survive motion 575 00:33:19,600 --> 00:33:20,280 Speaker 2: to dismiss? 576 00:33:20,960 --> 00:33:23,320 Speaker 5: It is an uphill battle both in terms of the 577 00:33:23,400 --> 00:33:26,240 Speaker 5: actual malice standard, the issue of whether or not there's 578 00:33:26,240 --> 00:33:29,720 Speaker 5: a provably false fact, you know, where's the lie, and 579 00:33:30,320 --> 00:33:32,920 Speaker 5: whether or not he could prove any damages. Now he's 580 00:33:32,960 --> 00:33:35,880 Speaker 5: alleged something called defamation per se, And if you go 581 00:33:35,920 --> 00:33:37,560 Speaker 5: on the air and you accuse someone of being a 582 00:33:37,640 --> 00:33:40,960 Speaker 5: thief or a murderer, that's defamation per se. You don't 583 00:33:40,960 --> 00:33:44,840 Speaker 5: have to prove damages. The lie here that was alleged 584 00:33:45,040 --> 00:33:48,040 Speaker 5: was some confusion over a phone call. I don't know 585 00:33:48,080 --> 00:33:50,600 Speaker 5: that that meets the legal definition of defamation per se. 586 00:33:50,720 --> 00:33:53,480 Speaker 5: So that means Governor Newsom has to prove some sort 587 00:33:53,480 --> 00:33:55,920 Speaker 5: of damages Flowing from this statement. 588 00:33:55,840 --> 00:33:59,160 Speaker 2: He claims that Fox harms his reputation and may even 589 00:33:59,240 --> 00:34:02,280 Speaker 2: cost him vote in the future. One wonder is how 590 00:34:02,320 --> 00:34:05,200 Speaker 2: many Fox viewers would actually be voting for Newsom in 591 00:34:05,280 --> 00:34:05,800 Speaker 2: any event. 592 00:34:06,760 --> 00:34:09,720 Speaker 5: Yeah, in the law, there's this requirement called approximate, cause 593 00:34:09,800 --> 00:34:12,680 Speaker 5: you got a draw a line between the harmful act 594 00:34:12,840 --> 00:34:16,439 Speaker 5: and actual damages. And in defamation per se, you don't 595 00:34:16,440 --> 00:34:18,719 Speaker 5: have to draw that line. But in this case, I 596 00:34:18,760 --> 00:34:22,400 Speaker 5: think the hard pressed to show any person who actually 597 00:34:22,560 --> 00:34:26,600 Speaker 5: saw this broadcast would not have already had an opinion 598 00:34:26,640 --> 00:34:30,680 Speaker 5: previously about Governor Newsom and that opinion somehow changed. And 599 00:34:30,719 --> 00:34:33,560 Speaker 5: by the way, Governor Newsom's turned out as an announced 600 00:34:33,560 --> 00:34:35,359 Speaker 5: that he's running for president. So I'm not sure what 601 00:34:35,520 --> 00:34:36,760 Speaker 5: vote he's talking about. 602 00:34:36,880 --> 00:34:40,760 Speaker 2: I think we know which vote. And hours after filing 603 00:34:40,800 --> 00:34:45,359 Speaker 2: the lawsuit, Newsom highlighted it in an email to supporters 604 00:34:45,400 --> 00:34:50,960 Speaker 2: that sought donations to his political action committee. Thanks so much, Jeff. 605 00:34:51,360 --> 00:34:55,360 Speaker 2: That's defamation attorney Jeff Lewis. And that's it for this 606 00:34:55,480 --> 00:34:58,200 Speaker 2: edition of The Bloomberg Law Show. Remember you can always 607 00:34:58,239 --> 00:35:01,319 Speaker 2: get the latest legal news on our blue Berg Law podcasts. 608 00:35:01,440 --> 00:35:04,480 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 609 00:35:04,640 --> 00:35:09,640 Speaker 2: www dot bloomberg dot com, slash podcast Slash Law, and 610 00:35:09,719 --> 00:35:12,799 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 611 00:35:12,880 --> 00:35:16,319 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 612 00:35:16,400 --> 00:35:17,840 Speaker 2: you're listening to Bloomberg