1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,640 --> 00:00:13,200 Speaker 1: Let me be clear, the Department does not tolerate any 3 00:00:13,240 --> 00:00:18,040 Speaker 1: mistreatment of any migrant and will not tolerate any violation 4 00:00:18,120 --> 00:00:23,200 Speaker 1: of its values, principles and ethics. Deputy of Homeland Security 5 00:00:23,320 --> 00:00:28,240 Speaker 1: Secretary Alejandro Majorcis said horse patrols have been suspended and 6 00:00:28,280 --> 00:00:32,320 Speaker 1: an investigation is underway after footage emerged of border patrol 7 00:00:32,440 --> 00:00:36,159 Speaker 1: agents using horses to block and move migrants on the 8 00:00:36,200 --> 00:00:40,080 Speaker 1: banks of the Rio Grande. A massive migrant camp sprouted 9 00:00:40,080 --> 00:00:43,080 Speaker 1: in the town of Del Rido, Texas, speaking at about 10 00:00:43,120 --> 00:00:46,640 Speaker 1: thirty thousand people, mainly Haitians, many of whom have been 11 00:00:46,640 --> 00:00:50,239 Speaker 1: in Mexico or other Latin American countries for years. The 12 00:00:50,320 --> 00:00:54,000 Speaker 1: camp has now been cleared. Some migrants have been deported, 13 00:00:54,040 --> 00:00:56,560 Speaker 1: others have been allowed to stay in the United States, 14 00:00:56,640 --> 00:01:00,320 Speaker 1: at least temporarily, to pursue their claims for asylum. However, 15 00:01:00,360 --> 00:01:04,080 Speaker 1: the controversy over the treatment of the Haitian migrants remains. 16 00:01:04,720 --> 00:01:07,920 Speaker 1: Joining me Is Leon Fresco, a partnered Hollanden Night, a 17 00:01:07,959 --> 00:01:11,720 Speaker 1: former immigration official in the Obama administration. Leon there's been 18 00:01:11,800 --> 00:01:16,440 Speaker 1: outrage over the conduct of these border patrol agents. So 19 00:01:16,640 --> 00:01:18,679 Speaker 1: it's clear that what they were doing was they were 20 00:01:18,680 --> 00:01:22,319 Speaker 1: taking the reins from the horses and using them to 21 00:01:22,520 --> 00:01:26,400 Speaker 1: try to restrain people trying to come into the country 22 00:01:26,400 --> 00:01:29,600 Speaker 1: and also to push people back into Haiti. But the 23 00:01:29,720 --> 00:01:33,560 Speaker 1: point is, regardless of what you're doing, a the opticks 24 00:01:33,560 --> 00:01:37,920 Speaker 1: of the situation are unfortunate. But all of this is 25 00:01:37,920 --> 00:01:41,000 Speaker 1: a result of a lack of planning on how to 26 00:01:41,120 --> 00:01:46,200 Speaker 1: address foreseeable surges into the southern border. And so this 27 00:01:46,240 --> 00:01:48,280 Speaker 1: is where I have a bit of frustration because I 28 00:01:48,320 --> 00:01:51,240 Speaker 1: had a lot of sympathy towards the Binden administration, but 29 00:01:51,440 --> 00:01:56,760 Speaker 1: this is now October basically, and you could have taken 30 00:01:57,160 --> 00:02:01,200 Speaker 1: the time period that existed due to the COVID crisis 31 00:02:01,240 --> 00:02:03,560 Speaker 1: and due to the fact that when you inherited the 32 00:02:03,600 --> 00:02:07,240 Speaker 1: border it was a closed border and say to the 33 00:02:07,280 --> 00:02:11,280 Speaker 1: immigration community, we need a few months to build the 34 00:02:11,360 --> 00:02:15,360 Speaker 1: plane first before we fly it. And the problem is 35 00:02:15,760 --> 00:02:18,680 Speaker 1: you haven't had that. You had them trying to hold 36 00:02:18,680 --> 00:02:22,760 Speaker 1: times to simultaneously fly the plane and build it, and 37 00:02:22,800 --> 00:02:28,160 Speaker 1: so you've never put the capacity there to have expedited processing, 38 00:02:28,639 --> 00:02:32,040 Speaker 1: to have sent adjudication of asylum, so that you would 39 00:02:32,040 --> 00:02:34,120 Speaker 1: never get to a position where you would have thousands 40 00:02:34,120 --> 00:02:38,240 Speaker 1: of people surging in any one location. Now we've heard 41 00:02:38,280 --> 00:02:42,400 Speaker 1: a million times and Secretary Majorcas said this, the immigration 42 00:02:42,480 --> 00:02:46,120 Speaker 1: system is broken. But do they have the ability to 43 00:02:46,280 --> 00:02:49,760 Speaker 1: do what you just suggested within the parameters of what 44 00:02:49,919 --> 00:02:53,440 Speaker 1: they're working with. Well, the point is you never have 45 00:02:53,600 --> 00:02:57,680 Speaker 1: the ability to do it instantaneously, but you have the 46 00:02:57,720 --> 00:03:02,720 Speaker 1: ability if you invest in a momentary pause to build 47 00:03:02,720 --> 00:03:06,560 Speaker 1: a system with your allies in the region that actually 48 00:03:06,639 --> 00:03:11,240 Speaker 1: has regional processing centers all around the region where people 49 00:03:11,280 --> 00:03:15,959 Speaker 1: can go and asked for asylum or refugee status. And 50 00:03:16,000 --> 00:03:18,840 Speaker 1: then if you try to get around them and go 51 00:03:19,080 --> 00:03:21,840 Speaker 1: to the southern border, you would tell people know there's 52 00:03:21,840 --> 00:03:25,119 Speaker 1: no entrance. That's a lot here. You're being excluded from 53 00:03:25,160 --> 00:03:27,919 Speaker 1: the country because you have to apply for asylum through 54 00:03:28,000 --> 00:03:32,239 Speaker 1: these regional processing centers in Mexico and in Central America. 55 00:03:32,360 --> 00:03:36,280 Speaker 1: There was a way to do this, and unfortunately this 56 00:03:36,360 --> 00:03:39,040 Speaker 1: time that could have been used during the COVID era 57 00:03:39,160 --> 00:03:41,800 Speaker 1: to say the people, look, we can't allow people to 58 00:03:41,840 --> 00:03:44,080 Speaker 1: come in through the southern border. During the COVID area, 59 00:03:44,680 --> 00:03:47,360 Speaker 1: we weren't allowing people to do this viasa the Europe 60 00:03:47,520 --> 00:03:50,880 Speaker 1: until November. You could have used that same time period 61 00:03:50,920 --> 00:03:55,440 Speaker 1: that we had with Europe and built a very solid 62 00:03:55,480 --> 00:03:59,360 Speaker 1: refugee system the process people abroad, and that was fair 63 00:03:59,680 --> 00:04:02,720 Speaker 1: and actually had a robust number of people that you 64 00:04:02,880 --> 00:04:05,720 Speaker 1: let in. You could have done that, but that wasn't done. 65 00:04:06,120 --> 00:04:11,520 Speaker 1: Maiorcas was asked if the administration policies are encouraging more immigration. 66 00:04:11,840 --> 00:04:14,360 Speaker 1: Is that true to a certain extent. Are some of 67 00:04:14,400 --> 00:04:19,280 Speaker 1: the migrants coming here because Biden is in office. Well, 68 00:04:19,320 --> 00:04:23,880 Speaker 1: there's always a factor here that's sensitive to what people 69 00:04:23,920 --> 00:04:26,640 Speaker 1: are hearing, and so what people are hearing sometimes can 70 00:04:26,640 --> 00:04:29,880 Speaker 1: be true, and what people are hearing can sometimes be false. 71 00:04:30,400 --> 00:04:34,400 Speaker 1: And so you can't control if smugglers are telling people 72 00:04:34,560 --> 00:04:37,920 Speaker 1: false narratives about coming to the United States. But in 73 00:04:37,960 --> 00:04:41,119 Speaker 1: this case, the narrative had some truth to it because 74 00:04:41,160 --> 00:04:45,600 Speaker 1: you had, For in the Haitian example, the temporary protective 75 00:04:45,600 --> 00:04:48,880 Speaker 1: status for Haitians in the United States was extended to 76 00:04:48,960 --> 00:04:52,240 Speaker 1: a larger group of Haitians than had already had that status, 77 00:04:52,240 --> 00:04:54,960 Speaker 1: and I agreed with doing that. The point is, if 78 00:04:54,960 --> 00:04:58,480 Speaker 1: you're going to do that, and then you have to say, well, 79 00:04:58,960 --> 00:05:02,320 Speaker 1: the foreseeable outcome of that is there's going to be 80 00:05:02,400 --> 00:05:06,120 Speaker 1: a desire from other Haitians to want to come into 81 00:05:06,120 --> 00:05:09,159 Speaker 1: the United States to see a Vaguan take advance of 82 00:05:09,200 --> 00:05:12,640 Speaker 1: both this program or maybe a later extension that would 83 00:05:12,680 --> 00:05:16,560 Speaker 1: happen for additional Asians. And so at that point, that's 84 00:05:16,640 --> 00:05:20,120 Speaker 1: where you have to say, these things don't happen in 85 00:05:20,120 --> 00:05:24,440 Speaker 1: a vacuum. We have to have a system that is compassionate, 86 00:05:24,720 --> 00:05:28,120 Speaker 1: but also it is stringent for people who don't want 87 00:05:28,160 --> 00:05:32,400 Speaker 1: to use the vehicles of compassion. And that's the place 88 00:05:32,440 --> 00:05:35,320 Speaker 1: where I think there will be an equilibrium on this. 89 00:05:35,440 --> 00:05:39,000 Speaker 1: You're starting to see it, but the equilibrium is going 90 00:05:39,040 --> 00:05:41,560 Speaker 1: to take some sing to develop. Man, what do you 91 00:05:41,600 --> 00:05:45,159 Speaker 1: think is likely to happen with the investigation into the 92 00:05:45,200 --> 00:05:49,240 Speaker 1: border agents. Well, the point is this, whenever there's any 93 00:05:49,360 --> 00:05:52,200 Speaker 1: use of force, which is essentially what this is, you 94 00:05:52,240 --> 00:05:54,640 Speaker 1: have to go through the protocols of a use and 95 00:05:54,720 --> 00:05:58,159 Speaker 1: force investigation and determine whether the use of force was 96 00:05:58,240 --> 00:06:01,719 Speaker 1: justified or not in a picular situation. And the problem 97 00:06:01,839 --> 00:06:05,560 Speaker 1: with a lot of these video footages if you don't 98 00:06:05,560 --> 00:06:08,640 Speaker 1: get the whole context of what was happening before, what 99 00:06:08,720 --> 00:06:12,880 Speaker 1: was happening after, nobody has any idea. Now, are the 100 00:06:12,960 --> 00:06:16,400 Speaker 1: videos that you saw in the sharp context that you 101 00:06:16,480 --> 00:06:19,040 Speaker 1: saw them in pleasant videos to look at. No, they 102 00:06:19,040 --> 00:06:22,920 Speaker 1: are not. But until you have all of the information 103 00:06:22,960 --> 00:06:25,200 Speaker 1: and all of the facts, it's hard to make a 104 00:06:25,240 --> 00:06:29,760 Speaker 1: determination that someone acted without cause or acted in the 105 00:06:29,760 --> 00:06:32,440 Speaker 1: wrong way because you don't know what they're trained to 106 00:06:32,480 --> 00:06:35,279 Speaker 1: do in that situation. You don't know what was happening, 107 00:06:35,279 --> 00:06:38,320 Speaker 1: you don't know what they did in the reality the 108 00:06:38,360 --> 00:06:42,200 Speaker 1: minutes before that, and so there's nothing that anybody can 109 00:06:42,279 --> 00:06:46,520 Speaker 1: say commenting on it that takes the place of an investigation. 110 00:06:46,680 --> 00:06:49,560 Speaker 1: That's what's required under the law, and so that's the 111 00:06:49,640 --> 00:06:52,360 Speaker 1: new pace that's that's necessary here. As far as the 112 00:06:52,440 --> 00:06:55,160 Speaker 1: numbers we've been given on the Haitians, about twelve thousand, 113 00:06:55,240 --> 00:06:57,800 Speaker 1: four hundred were released into the US waiting to have 114 00:06:57,880 --> 00:07:02,080 Speaker 1: their asylum cases heard by Immigrant Asian judges, five thousand 115 00:07:02,160 --> 00:07:07,960 Speaker 1: processed by DHS, three thousand in detention, eight thousand returned 116 00:07:08,000 --> 00:07:12,840 Speaker 1: to Mexico, and only about hundred were on flights to Haiti. 117 00:07:13,280 --> 00:07:16,000 Speaker 1: So my first question is what happened to the Biden 118 00:07:16,040 --> 00:07:20,800 Speaker 1: administration using Title forty two to turn the Haitians away. 119 00:07:20,920 --> 00:07:23,640 Speaker 1: Did they decide it wasn't a good idea. I think 120 00:07:23,640 --> 00:07:26,880 Speaker 1: they've been pretty consistent about the fact that they want 121 00:07:26,920 --> 00:07:31,680 Speaker 1: to use Title forty two in situations that it's single adults. 122 00:07:31,720 --> 00:07:36,120 Speaker 1: In situations where there are families or unaccompanied minors, they 123 00:07:36,120 --> 00:07:39,280 Speaker 1: are not wanting to use this title forty two authorities. 124 00:07:39,680 --> 00:07:42,960 Speaker 1: And so the reason you saw these dis joints that 125 00:07:43,040 --> 00:07:45,400 Speaker 1: outcomes is because there were some number of people in 126 00:07:45,480 --> 00:07:47,840 Speaker 1: families and they didn't want to use the title forty 127 00:07:47,880 --> 00:07:51,360 Speaker 1: two and families, and even with some single adults, you 128 00:07:51,480 --> 00:07:54,440 Speaker 1: can't use Title forty two if they have absolutely no 129 00:07:54,600 --> 00:07:59,000 Speaker 1: paperwork and Mexico isn't willing to accept them. So you 130 00:07:59,120 --> 00:08:01,960 Speaker 1: have to have some plan for once you send them 131 00:08:02,000 --> 00:08:05,280 Speaker 1: to Mexico, what's going to happen to them, because Mexico 132 00:08:05,480 --> 00:08:09,080 Speaker 1: is also a partner in the Title forty two efforts. 133 00:08:09,240 --> 00:08:11,320 Speaker 1: And so it's a lot easier to use Cital forty 134 00:08:11,320 --> 00:08:16,000 Speaker 1: two with mexict maginals or even with Central American nationals 135 00:08:16,000 --> 00:08:20,600 Speaker 1: that Mexico can have a plan for wek creating back 136 00:08:20,640 --> 00:08:23,680 Speaker 1: to their neighboring country. But with Haitians, it's a lot 137 00:08:23,720 --> 00:08:27,200 Speaker 1: more complicated to use Cital forty two because the Haitian 138 00:08:27,280 --> 00:08:31,240 Speaker 1: doesn't belong either in Mexico or Central America or the 139 00:08:31,320 --> 00:08:34,200 Speaker 1: United States or anywhere else they belong, either in Haiti 140 00:08:34,600 --> 00:08:37,160 Speaker 1: or some of them had gotten some permission to reside 141 00:08:37,440 --> 00:08:41,000 Speaker 1: in other parts of South America, and so Mexico would say, 142 00:08:41,000 --> 00:08:43,440 Speaker 1: why are you bringing these individuals here? They have no 143 00:08:43,640 --> 00:08:46,840 Speaker 1: jurisdiction to be here, and so that's why you saw 144 00:08:46,880 --> 00:08:51,000 Speaker 1: these disjointed outcome, he said. The Biden administration doesn't like 145 00:08:51,120 --> 00:08:54,480 Speaker 1: to use Title forty two to expel families, but they're 146 00:08:54,480 --> 00:08:59,400 Speaker 1: appealing a judge's order that forbids them from expelling migrant 147 00:08:59,440 --> 00:09:03,640 Speaker 1: family under Title forty two. Yes, and I think there's 148 00:09:03,640 --> 00:09:06,920 Speaker 1: two issues there. Number One, there's the issue of having 149 00:09:07,000 --> 00:09:10,160 Speaker 1: the tool in the tool box, and so they definitely 150 00:09:10,200 --> 00:09:12,559 Speaker 1: believe that they need to have the tool in the 151 00:09:12,559 --> 00:09:17,320 Speaker 1: tool box. But simultaneously, while they're in this litigation, they 152 00:09:17,400 --> 00:09:21,720 Speaker 1: don't want to have thousands of families being excluded under 153 00:09:21,760 --> 00:09:25,760 Speaker 1: Title forty two because a that weakens their litigation position 154 00:09:26,120 --> 00:09:29,199 Speaker 1: that they're only using this tool when it's absolutely needed. 155 00:09:29,800 --> 00:09:34,439 Speaker 1: But be they don't actually have a lot of desire 156 00:09:34,760 --> 00:09:39,120 Speaker 1: to use this tool for families, because there is some 157 00:09:39,280 --> 00:09:43,200 Speaker 1: sympathy for these children, especially sometimes when the children are 158 00:09:43,320 --> 00:09:46,200 Speaker 1: vulnerable ages and you're seeing them at the order and 159 00:09:46,280 --> 00:09:49,679 Speaker 1: you're seeing very sympathetic cases. It's hard to sympally just 160 00:09:50,080 --> 00:09:52,600 Speaker 1: turn those people back and say good luck to you. 161 00:09:52,600 --> 00:09:56,120 Speaker 1: You know, never come here, and whatever happens to you happen. 162 00:09:56,559 --> 00:09:59,240 Speaker 1: And so you have those factors. You have the sympathy factor, 163 00:09:59,600 --> 00:10:02,439 Speaker 1: you have fact that in the litigation you're trying to 164 00:10:02,520 --> 00:10:05,560 Speaker 1: keep the tool alive for when it's really needed. And 165 00:10:05,679 --> 00:10:08,640 Speaker 1: also though you don't want to have thousands and thousands 166 00:10:08,640 --> 00:10:10,640 Speaker 1: that in the cases, because it makes it a lot 167 00:10:10,640 --> 00:10:13,240 Speaker 1: easier for the platance to win than if you say 168 00:10:13,320 --> 00:10:17,440 Speaker 1: you're using it only for cases where it's absolutely needed. Now, 169 00:10:17,559 --> 00:10:21,120 Speaker 1: a notice to appear is typically the first step in 170 00:10:21,160 --> 00:10:25,520 Speaker 1: the deportation process, but the buying administration is handing out 171 00:10:25,679 --> 00:10:30,600 Speaker 1: notices to report. What's the difference. So we talked about 172 00:10:30,640 --> 00:10:34,440 Speaker 1: this in the past. There's been this litigation about that 173 00:10:34,559 --> 00:10:39,480 Speaker 1: your removal proceeding is totally nullified under the law. Now, 174 00:10:39,520 --> 00:10:42,280 Speaker 1: the Supreme Court has said this twice if you get 175 00:10:42,320 --> 00:10:44,960 Speaker 1: a notice to appear that doesn't have the exact time 176 00:10:45,040 --> 00:10:49,720 Speaker 1: they place and location of the hearing. And so what 177 00:10:49,800 --> 00:10:52,280 Speaker 1: happens is when you're having thousands and thousands of people 178 00:10:52,360 --> 00:10:54,839 Speaker 1: and you have no idea where the heck these folks 179 00:10:54,880 --> 00:10:58,440 Speaker 1: are going to how can you say, appear at the 180 00:10:58,559 --> 00:11:02,360 Speaker 1: U S Immigration Court in Chicago on October fourth at 181 00:11:02,520 --> 00:11:05,760 Speaker 1: at seven thirty a m. You don't know. It's it's 182 00:11:05,800 --> 00:11:09,080 Speaker 1: way too complicated. And so what they want to do 183 00:11:09,120 --> 00:11:11,960 Speaker 1: is try to get people to do an ICE check 184 00:11:12,040 --> 00:11:16,240 Speaker 1: in and only then issue the notice to appear that 185 00:11:16,360 --> 00:11:19,439 Speaker 1: has the data that's needed. Because if you issue the 186 00:11:19,559 --> 00:11:22,400 Speaker 1: data that's needs and usually the notice appear without the 187 00:11:22,480 --> 00:11:25,440 Speaker 1: data that's needed, and then the person either misses the 188 00:11:25,480 --> 00:11:28,200 Speaker 1: court date or never shows up or anything, then you 189 00:11:28,280 --> 00:11:33,240 Speaker 1: actually can't move forward with their removal because everything was void. 190 00:11:33,320 --> 00:11:36,000 Speaker 1: You never gave them the right process at the beginning. 191 00:11:36,280 --> 00:11:39,719 Speaker 1: So what they're trying to do is a range of 192 00:11:39,880 --> 00:11:42,360 Speaker 1: situation where the person doesn't show up to their ICE 193 00:11:42,440 --> 00:11:45,800 Speaker 1: check in, they can be detained and then you can 194 00:11:45,840 --> 00:11:49,240 Speaker 1: give them their notice to appear with their actual right 195 00:11:49,400 --> 00:11:52,560 Speaker 1: hearing day. And actually what you would do if you 196 00:11:52,559 --> 00:11:55,079 Speaker 1: would do it in the detention facility itself, as you 197 00:11:55,120 --> 00:11:58,280 Speaker 1: would say, here's your first hearing, and once you've given 198 00:11:58,280 --> 00:12:01,760 Speaker 1: them their first hearing from them on, you've complied with 199 00:12:01,840 --> 00:12:05,319 Speaker 1: the requirements under the law. The DHS Secretary also spoke 200 00:12:05,360 --> 00:12:09,800 Speaker 1: about the conditions for asylum, which we've talked about many times, 201 00:12:09,840 --> 00:12:12,679 Speaker 1: and it seems that when you you listen to the 202 00:12:12,720 --> 00:12:16,440 Speaker 1: stories that a lot of the Haitians are claiming asylum 203 00:12:16,559 --> 00:12:21,520 Speaker 1: for economic reasons, would economic reasons ever get you asylum? 204 00:12:21,840 --> 00:12:26,360 Speaker 1: Purely economic deprivation is not sufficient to get asylum. Now, 205 00:12:26,400 --> 00:12:29,760 Speaker 1: you can have a situation where if what you're suffering 206 00:12:29,880 --> 00:12:33,920 Speaker 1: is pure economic deprivation because of your political opinion. So 207 00:12:34,000 --> 00:12:37,760 Speaker 1: let's say they say people who supported this presidential candidate 208 00:12:38,040 --> 00:12:40,920 Speaker 1: will never be allowed to get a job or access 209 00:12:40,960 --> 00:12:44,960 Speaker 1: to banking, or access to food or anything else. Even 210 00:12:45,000 --> 00:12:48,160 Speaker 1: if you're not tortured or not placed in jail or anything, 211 00:12:48,520 --> 00:12:52,920 Speaker 1: that can be asylum. But if there's general economic deprivation 212 00:12:53,360 --> 00:12:58,360 Speaker 1: countrywide and it's not based specifically on your political opinion 213 00:12:58,520 --> 00:13:01,640 Speaker 1: or your social group, or your religions, or your race 214 00:13:01,840 --> 00:13:04,760 Speaker 1: or your national origin, then that's never going to be 215 00:13:04,800 --> 00:13:08,800 Speaker 1: sufficient to get asylum. Which is why many people who 216 00:13:08,800 --> 00:13:11,560 Speaker 1: apply for asylum don't end up qualifying, is because you 217 00:13:11,640 --> 00:13:14,520 Speaker 1: have to fit that very narrow group of people of 218 00:13:14,600 --> 00:13:18,160 Speaker 1: why they're suffering. Some people are predicting that this is 219 00:13:18,200 --> 00:13:21,240 Speaker 1: going to happen at the border again, is the Biden 220 00:13:21,240 --> 00:13:27,199 Speaker 1: administration doing anything right now to prevent this from happening again. Well, 221 00:13:27,240 --> 00:13:30,360 Speaker 1: the only thing that's happening right now under the Biden 222 00:13:30,360 --> 00:13:34,679 Speaker 1: administration is they're trying to get a new regulation out 223 00:13:35,520 --> 00:13:41,960 Speaker 1: that would make meritorious asylum claims easier to grant right 224 00:13:41,960 --> 00:13:46,360 Speaker 1: there at the border, so that the less meritorious asylum 225 00:13:46,360 --> 00:13:50,440 Speaker 1: claims are placed into a smaller pile of cases. The 226 00:13:50,600 --> 00:13:54,120 Speaker 1: problem is at the end right now, the current backlog 227 00:13:54,200 --> 00:13:57,319 Speaker 1: is in the millions, and no matter who you're placing 228 00:13:57,360 --> 00:14:00,480 Speaker 1: in this quote unquote smaller piles, and no matter who 229 00:14:00,520 --> 00:14:04,080 Speaker 1: you're prioritizing, you're seeing this already, for instance, in Boston 230 00:14:04,160 --> 00:14:09,120 Speaker 1: and in Los Angeles, these priority dockets quote unquote still 231 00:14:09,200 --> 00:14:13,960 Speaker 1: have dred people in cases for one judge, and so 232 00:14:14,080 --> 00:14:16,559 Speaker 1: that judgesn't go to get around to doing all of 233 00:14:16,600 --> 00:14:20,280 Speaker 1: those fifties hundred cases anytime soon. And so even if 234 00:14:20,320 --> 00:14:23,000 Speaker 1: you said, well, the goal was to get those done 235 00:14:23,000 --> 00:14:25,440 Speaker 1: in nine months, it's clear you're not going to get 236 00:14:25,440 --> 00:14:28,120 Speaker 1: those done in nine months. And so I just think 237 00:14:28,160 --> 00:14:31,760 Speaker 1: at some point we have to grapple with a system. 238 00:14:31,920 --> 00:14:35,280 Speaker 1: And neither side has done this, neither Trump nor Biden. 239 00:14:35,400 --> 00:14:38,880 Speaker 1: Because Trump in the end, didn't have the goal of 240 00:14:39,640 --> 00:14:44,920 Speaker 1: one thing, the meritorious cases in the United States. Their 241 00:14:45,040 --> 00:14:48,480 Speaker 1: approach was they didn't want any cases in the United States, 242 00:14:48,520 --> 00:14:53,440 Speaker 1: and the Biden administration hasn't wanted to be perceived as 243 00:14:53,560 --> 00:14:57,480 Speaker 1: overly insensitive to these cases, which is also a valid goal. 244 00:14:57,560 --> 00:14:59,720 Speaker 1: So both goals are valid depending on how you look 245 00:14:59,760 --> 00:15:01,960 Speaker 1: at it. But I just think we need to get 246 00:15:02,000 --> 00:15:05,360 Speaker 1: to an approach finally at some point where we have 247 00:15:05,440 --> 00:15:10,360 Speaker 1: regional processing centers in Mexico in Central America where people 248 00:15:10,400 --> 00:15:13,800 Speaker 1: can go and make those claims and actually have assistance 249 00:15:14,320 --> 00:15:16,520 Speaker 1: making those claims so they don't do it on their own. 250 00:15:16,560 --> 00:15:19,240 Speaker 1: They would have people from our government as that to 251 00:15:19,320 --> 00:15:23,320 Speaker 1: make these claims, and then those cases get adjudicated and 252 00:15:23,360 --> 00:15:25,960 Speaker 1: you either use that process and you get into the 253 00:15:26,040 --> 00:15:28,720 Speaker 1: United States, or if you don't use that process, you 254 00:15:28,760 --> 00:15:32,480 Speaker 1: are automatically excluded from the United States. And I think 255 00:15:32,560 --> 00:15:35,720 Speaker 1: that's the fairest thing we can do for this hemisphere, 256 00:15:36,320 --> 00:15:39,200 Speaker 1: is to give people with fair asylum claims a chance 257 00:15:39,240 --> 00:15:41,440 Speaker 1: to do it. But it doesn't have to be at 258 00:15:41,440 --> 00:15:44,480 Speaker 1: our southern border. And so this is what continues to 259 00:15:44,640 --> 00:15:49,000 Speaker 1: be the complicating practicer here. So the governor of Texas 260 00:15:49,080 --> 00:15:54,760 Speaker 1: has said that they're going to start arresting people for trespassing. 261 00:15:55,240 --> 00:15:57,520 Speaker 1: Is that the order that's being a challenge by the 262 00:15:57,520 --> 00:16:02,880 Speaker 1: Biden administration. Well, I'm first of all, that's the provision 263 00:16:02,960 --> 00:16:06,840 Speaker 1: that Jan Brewer in twelves during the Arizona and Law. 264 00:16:07,000 --> 00:16:09,800 Speaker 1: At all of those three court cases, she was trying 265 00:16:09,840 --> 00:16:12,520 Speaker 1: to do the same concept basically, which was to arrest 266 00:16:13,080 --> 00:16:16,760 Speaker 1: undocumented people for dress passing in Arizona. But yeah, Blue 267 00:16:16,840 --> 00:16:20,240 Speaker 1: being salad. It's one of many things being valid by 268 00:16:20,320 --> 00:16:25,280 Speaker 1: the by the administration. But the interesting question is they're 269 00:16:25,320 --> 00:16:28,680 Speaker 1: trying to pee up an issue that if you look 270 00:16:28,680 --> 00:16:31,960 Speaker 1: at who decided the Arizona decision, that was the six 271 00:16:32,120 --> 00:16:38,240 Speaker 1: three decisions, but the six justices who rules for the case, 272 00:16:38,840 --> 00:16:44,480 Speaker 1: the only ones who are left are Robert Prota, Major Kagan, 273 00:16:45,320 --> 00:16:49,880 Speaker 1: and and Roberts. And so you have five justices who 274 00:16:49,920 --> 00:16:53,720 Speaker 1: either ruled on behalf of Arizona or are news to 275 00:16:53,760 --> 00:16:57,000 Speaker 1: the court, which is having a Coney, Barrett and Dorsage. 276 00:16:57,080 --> 00:17:00,360 Speaker 1: And so the question is with those five justices end 277 00:17:00,440 --> 00:17:04,840 Speaker 1: up overturning the Arizona And so it's possible that with 278 00:17:05,080 --> 00:17:09,920 Speaker 1: these five justices who are not on the record or 279 00:17:10,000 --> 00:17:12,760 Speaker 1: on the record on the side of state enforcement of 280 00:17:12,800 --> 00:17:17,320 Speaker 1: immigration law, they may decide that the Arizona decision should 281 00:17:17,320 --> 00:17:22,280 Speaker 1: be overturned and that state can start doing immigration enforcements. 282 00:17:22,720 --> 00:17:26,240 Speaker 1: That would be similar to, for instance, states enforcing drug laws. 283 00:17:26,240 --> 00:17:30,679 Speaker 1: The federal government enforces drug laws and state enforced drug laws, 284 00:17:30,880 --> 00:17:33,879 Speaker 1: and so you might end up actually seeing that. And 285 00:17:33,960 --> 00:17:36,880 Speaker 1: I think that's not necessarily going to be decided this week, 286 00:17:37,280 --> 00:17:39,919 Speaker 1: but it's definitely something to be looking for during the 287 00:17:39,920 --> 00:17:43,120 Speaker 1: course of the Biden presidency. Okay, so now I want 288 00:17:43,160 --> 00:17:47,200 Speaker 1: to talk about the Biden administration released its proposed measure 289 00:17:47,480 --> 00:17:52,360 Speaker 1: to preserve and fortify DACO. Well, one of the criticisms 290 00:17:52,400 --> 00:17:55,160 Speaker 1: that has been given in this litigation about the legality 291 00:17:55,160 --> 00:17:58,480 Speaker 1: of DACCA was that DOCCA was not simply an issue 292 00:17:58,480 --> 00:18:04,160 Speaker 1: of prosecutorial disgray shion, but was actually a program. And 293 00:18:04,160 --> 00:18:06,040 Speaker 1: why it was with a program. It was a program 294 00:18:06,080 --> 00:18:08,800 Speaker 1: because it had requirements had to be under succeed, you 295 00:18:08,840 --> 00:18:13,120 Speaker 1: had to arrive priored at twelve, you had to have 296 00:18:13,600 --> 00:18:17,040 Speaker 1: not committed certain crimes. And so once you start putting 297 00:18:17,080 --> 00:18:21,760 Speaker 1: criteria on these lists of prosecutorial discretion, and it's not 298 00:18:21,960 --> 00:18:25,280 Speaker 1: just a case by case decision, but it's actually based 299 00:18:25,320 --> 00:18:28,280 Speaker 1: on criteria that that needed to be something that was 300 00:18:28,320 --> 00:18:31,440 Speaker 1: done through formal rulemaking. And so one of the things 301 00:18:31,440 --> 00:18:34,480 Speaker 1: that the court had said was that Doctor was illegal 302 00:18:34,560 --> 00:18:38,880 Speaker 1: because formal rulemaking has not been issued to actually implement 303 00:18:38,960 --> 00:18:42,400 Speaker 1: the program. And so now the Biden administration has finally, 304 00:18:42,440 --> 00:18:46,280 Speaker 1: after all of these years, decided to implement the formal 305 00:18:46,359 --> 00:18:49,720 Speaker 1: rulemaking for the program. Now that will shield it from 306 00:18:49,840 --> 00:18:53,400 Speaker 1: that attack. But then there will be the ultimate question, 307 00:18:53,520 --> 00:18:55,840 Speaker 1: which is the one that we've been at this for 308 00:18:55,920 --> 00:19:00,119 Speaker 1: ten years and nobody's ever ruled that definitively, which is 309 00:19:00,119 --> 00:19:04,520 Speaker 1: is data illegal? I mean, tim a president actually healed 310 00:19:04,920 --> 00:19:08,920 Speaker 1: a certain segment of the population from removal and then 311 00:19:09,000 --> 00:19:12,080 Speaker 1: actually allow them to work in the United States. That's 312 00:19:12,119 --> 00:19:16,320 Speaker 1: the question that hasn't been decided yet, and so that's 313 00:19:16,359 --> 00:19:19,159 Speaker 1: the question that will ultimately be set up to the 314 00:19:19,280 --> 00:19:22,160 Speaker 1: Supreme Court as a result of this regulation. So they'll 315 00:19:22,160 --> 00:19:25,359 Speaker 1: be able to get all of the procedural reasons for 316 00:19:25,440 --> 00:19:28,960 Speaker 1: invalidating Doctor out of the way, and we will now 317 00:19:29,040 --> 00:19:34,359 Speaker 1: be finally peeing up this issue of is DOCTA at 318 00:19:34,400 --> 00:19:36,679 Speaker 1: the end of the day, something a president can or 319 00:19:36,760 --> 00:19:42,000 Speaker 1: can't move. So this rule will will answer the concerns 320 00:19:42,040 --> 00:19:46,120 Speaker 1: that that Texas judge had. Yes, it will. I will 321 00:19:46,200 --> 00:19:51,240 Speaker 1: answer the procedural complaints that the Texas judge had, which 322 00:19:51,240 --> 00:19:55,720 Speaker 1: is that the proper procedures were not followed in implementing DOCTA, 323 00:19:55,840 --> 00:19:59,439 Speaker 1: that there wasn't the formal rulemaking, and then notice and comment. 324 00:20:00,040 --> 00:20:02,000 Speaker 1: People can comment on the rule and say what they 325 00:20:02,040 --> 00:20:04,800 Speaker 1: don't like, and then you issue a final rule that's 326 00:20:04,840 --> 00:20:06,800 Speaker 1: going to take care of all of that, but it 327 00:20:06,880 --> 00:20:09,199 Speaker 1: won't take care of the judge's decision that in the 328 00:20:09,320 --> 00:20:12,120 Speaker 1: end DOCCA is illegal, that the laws have not forbid 329 00:20:12,640 --> 00:20:16,200 Speaker 1: the shielding of a certain group from deportation, followed by 330 00:20:16,320 --> 00:20:19,639 Speaker 1: then not just the shielding, but the implementation of work 331 00:20:19,760 --> 00:20:23,720 Speaker 1: rights and rights to travel abroad from this group. And 332 00:20:23,760 --> 00:20:28,040 Speaker 1: so with that that will finally be the substantive legal 333 00:20:28,080 --> 00:20:31,439 Speaker 1: issue beat up to the Supreme Court is whether DOCA 334 00:20:31,640 --> 00:20:35,600 Speaker 1: is actually legal or illegal. And so that's the issue 335 00:20:35,640 --> 00:20:39,080 Speaker 1: that finally no court is grappled with. Finally the Supreme 336 00:20:39,080 --> 00:20:41,840 Speaker 1: Court wild grapple with it at some point. That's Leon 337 00:20:41,880 --> 00:20:46,320 Speaker 1: Fresco of Hondon Knight. We have a lot to talk 338 00:20:46,359 --> 00:20:51,480 Speaker 1: about today. Let's get started with Apple TV plus One 339 00:20:51,520 --> 00:20:54,840 Speaker 1: thing CEO Tim Cook did not talk about the Apple 340 00:20:54,920 --> 00:20:57,679 Speaker 1: event was the injunction that will go into effect on 341 00:20:57,720 --> 00:21:01,480 Speaker 1: December nine, requiring Apple to make most significant change to 342 00:21:01,560 --> 00:21:05,280 Speaker 1: its app store business model since launching. In the antitrust 343 00:21:05,359 --> 00:21:08,480 Speaker 1: lawsuit brought by Epic Games, the judge ruled that Apple 344 00:21:08,560 --> 00:21:12,240 Speaker 1: must give developers the option of bypassing its commission on 345 00:21:12,400 --> 00:21:15,520 Speaker 1: in app purchases, a cut that runs as high as 346 00:21:15,560 --> 00:21:18,560 Speaker 1: thirty percent and could cost the tech giant a few 347 00:21:18,600 --> 00:21:23,080 Speaker 1: billion dollars annually. Joining me is antitrust law expert Harry First, 348 00:21:23,160 --> 00:21:26,119 Speaker 1: a professor at and Why You Law School? Harry. There 349 00:21:26,200 --> 00:21:28,679 Speaker 1: was a lot of talk after the decision about the 350 00:21:28,760 --> 00:21:31,359 Speaker 1: hit to Apple, but it was Epic that filed for 351 00:21:31,400 --> 00:21:35,320 Speaker 1: an appeal first. So who won this case? It was 352 00:21:35,640 --> 00:21:39,080 Speaker 1: pretty much a loss for Epic and a lot of 353 00:21:39,160 --> 00:21:42,800 Speaker 1: gain for Apple and your right. Epic filed the appeal 354 00:21:42,960 --> 00:21:46,600 Speaker 1: because they want to go further than the judges somewhat 355 00:21:46,680 --> 00:21:51,320 Speaker 1: limited but very interesting injunction which will stop to some 356 00:21:51,400 --> 00:21:56,000 Speaker 1: degree the requirement that you can't steer people to less 357 00:21:56,040 --> 00:22:00,159 Speaker 1: expensive payment system. Did the judges ruling leave enough m 358 00:22:00,240 --> 00:22:03,360 Speaker 1: for Apple to try to keep its app store revenue 359 00:22:03,440 --> 00:22:07,119 Speaker 1: stream largely intact? For example, it could still collect a 360 00:22:07,160 --> 00:22:11,840 Speaker 1: commission of up to despite the ruling. Yeah, there's nothing 361 00:22:11,880 --> 00:22:15,640 Speaker 1: that prevents Apple from collecting whatever it can collect. And 362 00:22:15,880 --> 00:22:18,680 Speaker 1: the mechanism that Apple chose, which is to run it 363 00:22:18,720 --> 00:22:22,040 Speaker 1: through its own payment system, is smart from Apple's point 364 00:22:22,040 --> 00:22:24,280 Speaker 1: of view. As she pointed out, it makes sure that 365 00:22:24,359 --> 00:22:28,200 Speaker 1: they track all the revenue that's generated through the app store. 366 00:22:28,240 --> 00:22:32,320 Speaker 1: Everything that flows through they get, and it doesn't say 367 00:22:32,320 --> 00:22:37,960 Speaker 1: they can't charge royalties to app developers in a different way, 368 00:22:38,520 --> 00:22:42,160 Speaker 1: using different formulas. You know, any party that's trying to 369 00:22:42,320 --> 00:22:45,320 Speaker 1: do something like what Apple's doing has to figure out 370 00:22:45,720 --> 00:22:48,640 Speaker 1: a way that will allow them to make the charges 371 00:22:48,760 --> 00:22:51,960 Speaker 1: and not too many people will escape. So it's not 372 00:22:52,080 --> 00:22:55,120 Speaker 1: clear even at this point how many people will escape 373 00:22:55,440 --> 00:22:59,120 Speaker 1: or whether consumers will bother to choose, because they still 374 00:22:59,200 --> 00:23:02,080 Speaker 1: have to have the option of paying through, you know, 375 00:23:02,119 --> 00:23:05,280 Speaker 1: an in app purchase, and I don't play video games, 376 00:23:05,280 --> 00:23:07,280 Speaker 1: and my guests, as consumers in the middle of the 377 00:23:07,400 --> 00:23:10,240 Speaker 1: video game, would prefer to click, then have to do 378 00:23:10,280 --> 00:23:14,320 Speaker 1: two clicks, which seems to be an impossible burden for people. 379 00:23:14,720 --> 00:23:19,200 Speaker 1: So it may not siphon off that much revenue. Epic 380 00:23:19,280 --> 00:23:22,920 Speaker 1: will have to give some sort of incentive to gamers 381 00:23:22,960 --> 00:23:25,480 Speaker 1: to do this to, you know, make the out of 382 00:23:25,520 --> 00:23:29,639 Speaker 1: app purchase of longer life for a wand or whatever 383 00:23:29,680 --> 00:23:32,560 Speaker 1: in the world people purchase for so much money, apparently 384 00:23:33,000 --> 00:23:36,800 Speaker 1: on the video games they own, like Fortnite. So not 385 00:23:37,000 --> 00:23:39,879 Speaker 1: clear how much of a difference it will make, and 386 00:23:39,920 --> 00:23:42,320 Speaker 1: if it does start to make a revenue stream difference, 387 00:23:42,440 --> 00:23:46,480 Speaker 1: certainly Apple configure out a different approach. The judges order 388 00:23:46,560 --> 00:23:50,239 Speaker 1: doesn't say that Apple has to keep Fortnite on the 389 00:23:50,240 --> 00:23:53,679 Speaker 1: App Store, so they could say, you know, unless you 390 00:23:53,760 --> 00:23:56,920 Speaker 1: pass X number of dollars, you're out of here. And 391 00:23:57,040 --> 00:23:59,640 Speaker 1: I don't see anything in the order that she entered 392 00:23:59,800 --> 00:24:03,680 Speaker 1: at forbids that, and in the main part of federal charges. 393 00:24:04,160 --> 00:24:06,720 Speaker 1: It seems to me it's pretty clear that they could 394 00:24:06,760 --> 00:24:09,720 Speaker 1: do that. So a lot yet to be written. And 395 00:24:09,800 --> 00:24:12,040 Speaker 1: of course this is just one case. You know, there 396 00:24:12,040 --> 00:24:16,360 Speaker 1: are cases elsewhere, and it's unclear what the federal government 397 00:24:16,520 --> 00:24:18,800 Speaker 1: might do. This maybe a little bit of a roadmap 398 00:24:18,800 --> 00:24:21,520 Speaker 1: in certain ways for the federal government. And of course 399 00:24:21,560 --> 00:24:24,640 Speaker 1: there are a non US government's Koreast in the process 400 00:24:24,680 --> 00:24:28,280 Speaker 1: of passing a statute dealing with app stores in the 401 00:24:28,400 --> 00:24:32,760 Speaker 1: fourth highest revenue jurisdiction in the world, which is South Korea. 402 00:24:33,400 --> 00:24:36,280 Speaker 1: The key part was the fight to define the market 403 00:24:36,640 --> 00:24:40,639 Speaker 1: in question. The judge disagreed with both sides about the 404 00:24:40,680 --> 00:24:44,159 Speaker 1: definition of the market. Tell us what she decided and 405 00:24:44,240 --> 00:24:49,639 Speaker 1: whether that will affect any future lawsuits by the Justice Department. Well, 406 00:24:49,840 --> 00:24:52,199 Speaker 1: first of all, one thing to keep in mind, I 407 00:24:52,240 --> 00:24:54,960 Speaker 1: think in terms of how it might affect future cases, 408 00:24:55,240 --> 00:24:58,480 Speaker 1: her decision was very much fact bound. In other words, 409 00:24:58,840 --> 00:25:02,920 Speaker 1: it depended a law on the evidence presented to her 410 00:25:03,040 --> 00:25:06,560 Speaker 1: by the parties. Now, these are very good lawyers, so 411 00:25:07,119 --> 00:25:09,560 Speaker 1: they tailored the case the way they thought it would 412 00:25:09,680 --> 00:25:13,000 Speaker 1: be best. But to some extent it didn't convince in 413 00:25:13,160 --> 00:25:17,120 Speaker 1: a number of different ways. It's not clear that that's irreparable. So, 414 00:25:17,200 --> 00:25:20,480 Speaker 1: for example, a big thing was that she didn't believe 415 00:25:20,520 --> 00:25:24,560 Speaker 1: that consumers were really locked into the Apple platform. I 416 00:25:24,600 --> 00:25:28,280 Speaker 1: am not an Apple user. You may be my view 417 00:25:28,280 --> 00:25:31,560 Speaker 1: of Apple users as they're fanatically locked in. So this 418 00:25:31,640 --> 00:25:33,760 Speaker 1: may be just a failure of proof that it wasn't 419 00:25:33,840 --> 00:25:36,240 Speaker 1: quite presented. She didn't say they weren't locked in. She 420 00:25:36,280 --> 00:25:39,040 Speaker 1: said Epic didn't prove they were. Now, if they're locked 421 00:25:39,080 --> 00:25:41,640 Speaker 1: in or they can't exit, I would prefer to think 422 00:25:41,640 --> 00:25:44,520 Speaker 1: of it that way. That means that if you want 423 00:25:44,520 --> 00:25:48,959 Speaker 1: to serve roughly half of the consumers of games or 424 00:25:49,000 --> 00:25:51,640 Speaker 1: any app, you've got to be on that platform. I mean, 425 00:25:51,680 --> 00:25:53,800 Speaker 1: you just can't give up that market. And if they 426 00:25:53,840 --> 00:25:57,520 Speaker 1: won't migrate over to Android or something else, you are 427 00:25:57,720 --> 00:26:00,360 Speaker 1: a subject to the power of Apple. So I think 428 00:26:00,359 --> 00:26:03,480 Speaker 1: a future case may look at the facts differently or 429 00:26:03,520 --> 00:26:06,480 Speaker 1: try to present them a little differently. So this does 430 00:26:06,560 --> 00:26:10,160 Speaker 1: not bind all future cases, and you're right. The leadoff 431 00:26:10,240 --> 00:26:12,639 Speaker 1: question is how do we define the market. That's very 432 00:26:12,720 --> 00:26:15,160 Speaker 1: unusual for a judge to pick a market that neither 433 00:26:15,280 --> 00:26:18,280 Speaker 1: party proposed, and that she has to sort of make 434 00:26:18,359 --> 00:26:21,679 Speaker 1: up market shares, which are sort of guesses because there 435 00:26:21,680 --> 00:26:24,840 Speaker 1: really wasn't all that much evidence about this market. And 436 00:26:24,880 --> 00:26:27,760 Speaker 1: the market share has turned out to be pivotal because 437 00:26:27,800 --> 00:26:31,040 Speaker 1: they're under six and for monopoly power in the US, 438 00:26:31,160 --> 00:26:33,920 Speaker 1: you're not going to find cases where the shares under six. 439 00:26:34,720 --> 00:26:37,280 Speaker 1: So that was a big deal. It could be different 440 00:26:37,320 --> 00:26:41,320 Speaker 1: next year, you know, Apple selling more iPhones, their markets 441 00:26:41,359 --> 00:26:44,360 Speaker 1: there might be higher. They might find themselves next year 442 00:26:44,400 --> 00:26:49,440 Speaker 1: as having monopoly, and so Apple dodged the worst case 443 00:26:49,440 --> 00:26:52,880 Speaker 1: scenario that the judge might determine that it was a monopolist, 444 00:26:53,600 --> 00:26:56,600 Speaker 1: right right, that was the first part, but that wasn't 445 00:26:56,920 --> 00:27:00,359 Speaker 1: She wasn't content to stop with that. She it up. 446 00:27:00,560 --> 00:27:04,919 Speaker 1: She said, okay, let's go on, because there's a different claim. 447 00:27:04,920 --> 00:27:07,560 Speaker 1: It counts. It doesn't depend on their being a monopolis. 448 00:27:07,840 --> 00:27:10,560 Speaker 1: Different number of counts. Just you know, that's just the 449 00:27:10,840 --> 00:27:15,159 Speaker 1: agreements and restraint of trade. And then she undercut the 450 00:27:15,240 --> 00:27:18,600 Speaker 1: case completely or not. Whether the conduct was anti competitive 451 00:27:19,680 --> 00:27:22,720 Speaker 1: very fair away, although she did indicate that it did 452 00:27:22,800 --> 00:27:28,000 Speaker 1: have some adverse effects on developers, on consumers and on innovation. 453 00:27:28,320 --> 00:27:30,320 Speaker 1: You know that the app store itself, it's sort of 454 00:27:30,960 --> 00:27:35,720 Speaker 1: sat there not you know, Appleton just milking it and 455 00:27:35,800 --> 00:27:41,400 Speaker 1: not really making it better despite complaints about various um 456 00:27:41,560 --> 00:27:44,760 Speaker 1: functionalities that it didn't have. Sort of reminds me of 457 00:27:44,760 --> 00:27:47,639 Speaker 1: what Microsoft did with Internet Explorer for so many years. 458 00:27:47,880 --> 00:27:50,440 Speaker 1: They used it as a gateway and it was a 459 00:27:50,520 --> 00:27:53,760 Speaker 1: terrible program. So there's that. But in the end, she 460 00:27:53,840 --> 00:27:57,440 Speaker 1: cut down the case in every which way and very thoroughly. 461 00:27:58,400 --> 00:28:01,960 Speaker 1: So do you think that in the future, either other 462 00:28:02,600 --> 00:28:06,760 Speaker 1: plaintiffs or the government can use her decision as a 463 00:28:06,840 --> 00:28:11,200 Speaker 1: roadmap for their case. Yes, I say, you know, people do. 464 00:28:11,680 --> 00:28:17,720 Speaker 1: As a teacher, I firmly believe that people learned. So yes, 465 00:28:17,920 --> 00:28:21,159 Speaker 1: I believe it's a belief. It's not necessarily true, but 466 00:28:21,240 --> 00:28:24,520 Speaker 1: it's a belief. So UM, I think you know, any 467 00:28:24,600 --> 00:28:27,840 Speaker 1: litigant UM still concerned with the app store, and there 468 00:28:27,880 --> 00:28:33,600 Speaker 1: are both with Google and UM and with Apple. UM, 469 00:28:33,760 --> 00:28:36,560 Speaker 1: we'll look at this and say, Okay, where where did 470 00:28:36,680 --> 00:28:40,240 Speaker 1: the case not work? And how can we do better 471 00:28:40,840 --> 00:28:43,280 Speaker 1: in the next case? What sort of facts would we 472 00:28:43,360 --> 00:28:47,240 Speaker 1: need to present better, um than in a way that 473 00:28:47,240 --> 00:28:51,520 Speaker 1: would convince the next judge, you know, different judge. And again, 474 00:28:51,560 --> 00:28:55,840 Speaker 1: these were factual determinations. She said Epic didn't carry the 475 00:28:55,960 --> 00:28:59,240 Speaker 1: burden approving some of these things, not that Apple showed 476 00:28:59,240 --> 00:29:02,800 Speaker 1: it was untrue, just that the plaintiff didn't carry its burden. 477 00:29:03,240 --> 00:29:06,480 Speaker 1: So yes, I think there will be some roadmap effect. 478 00:29:07,280 --> 00:29:11,440 Speaker 1: I think that the end of the case, the California part, 479 00:29:12,280 --> 00:29:15,680 Speaker 1: actually is the most interesting and maybe isn't getting as 480 00:29:15,760 --> 00:29:19,600 Speaker 1: much attention as it should because I think that's a 481 00:29:19,720 --> 00:29:24,120 Speaker 1: roadmap for the Federal Trade Commission to use UM, not 482 00:29:24,320 --> 00:29:27,240 Speaker 1: the Sherman Act, which is a normal thing, but unfair 483 00:29:27,280 --> 00:29:31,120 Speaker 1: methods of competition under the Federal Trade Commission Act. And 484 00:29:31,280 --> 00:29:35,200 Speaker 1: that's what she finally went for Harry, will you just 485 00:29:35,240 --> 00:29:37,320 Speaker 1: go back a bit and explain what she did in 486 00:29:37,400 --> 00:29:40,360 Speaker 1: that part of the case. So what what she did was, 487 00:29:40,400 --> 00:29:45,160 Speaker 1: after she pretty much eviscerated Epics case, she said, ah hah, 488 00:29:45,520 --> 00:29:48,640 Speaker 1: but you also do have a state claim under state law. 489 00:29:49,200 --> 00:29:52,400 Speaker 1: And there were two state laws. One is California state 490 00:29:52,400 --> 00:29:55,200 Speaker 1: anti trust law. So she threw out all those claims 491 00:29:55,240 --> 00:29:58,840 Speaker 1: as well under state anti trust law called the Cartwright Act. 492 00:29:59,160 --> 00:30:04,840 Speaker 1: But there's unfair competition law in California which just prohibits 493 00:30:05,120 --> 00:30:08,480 Speaker 1: unfair methods of competition. And she said, well, this is 494 00:30:08,480 --> 00:30:12,120 Speaker 1: a little different because that's broader than the way we 495 00:30:12,160 --> 00:30:15,760 Speaker 1: look at things under normally anti trust law. Um, we're 496 00:30:15,800 --> 00:30:20,000 Speaker 1: not confined two, Um, such a high standard of proof. 497 00:30:20,080 --> 00:30:23,440 Speaker 1: We can look at what she called incipient violations, not 498 00:30:23,600 --> 00:30:27,400 Speaker 1: quite violations. And that gave her the room to say, 499 00:30:27,440 --> 00:30:31,000 Speaker 1: you know, there's really some anti competitive effects. You know, 500 00:30:31,040 --> 00:30:35,840 Speaker 1: they're charging this huge commission rate four years which they 501 00:30:35,880 --> 00:30:39,600 Speaker 1: haven't adjusted, which there are no competitive pressure to have 502 00:30:39,720 --> 00:30:45,280 Speaker 1: them adjust. They're making huge profits. I mean, Plane showed 503 00:30:45,320 --> 00:30:49,760 Speaker 1: that she accepted that idea. Uh, and consumers are being 504 00:30:49,760 --> 00:30:54,000 Speaker 1: denied information so they can make choices, so they're not 505 00:30:54,080 --> 00:30:58,880 Speaker 1: told Hey, you know you could you could buy these 506 00:30:58,880 --> 00:31:02,000 Speaker 1: things outside the and and it would be cheaper. They're 507 00:31:02,040 --> 00:31:06,400 Speaker 1: not being told that, so she said, you gotta tell them. Uh. 508 00:31:06,560 --> 00:31:12,880 Speaker 1: And that lack of information, which he found important for 509 00:31:12,960 --> 00:31:16,720 Speaker 1: market markets needs information, could be an unfair method of 510 00:31:16,720 --> 00:31:21,360 Speaker 1: competition under federal law under Section five of the Federal 511 00:31:21,400 --> 00:31:26,680 Speaker 1: Trade Commission Act. If the FTC wants to use that route, 512 00:31:26,760 --> 00:31:29,280 Speaker 1: it's not quite this is a broader gives them a 513 00:31:29,280 --> 00:31:33,040 Speaker 1: little more power. Uh. And um, I think that's an 514 00:31:33,040 --> 00:31:38,040 Speaker 1: interesting roadmap for the Commission to look at. Harry Apple 515 00:31:38,080 --> 00:31:40,640 Speaker 1: said it's still too early to determine how or when 516 00:31:40,760 --> 00:31:43,480 Speaker 1: exactly it will implement the changes, and that it needs 517 00:31:43,520 --> 00:31:46,880 Speaker 1: to have conversations with the judge. Is that normal that 518 00:31:46,960 --> 00:31:49,720 Speaker 1: you'd have conversations with a judge who already issued a 519 00:31:49,840 --> 00:31:54,440 Speaker 1: ruling about what you're going to do. Well, there's always implementation. 520 00:31:54,840 --> 00:31:59,080 Speaker 1: And um, she did issue an injunction. I don't recall 521 00:31:59,160 --> 00:32:02,440 Speaker 1: whether there's a time within which they have to implement it, 522 00:32:02,480 --> 00:32:07,480 Speaker 1: and that could be subject to negotiation. They could um 523 00:32:07,520 --> 00:32:11,640 Speaker 1: take an appeal to the Court of Appeals to have 524 00:32:11,800 --> 00:32:16,680 Speaker 1: them stay the imposition of that injunction pending you know, 525 00:32:16,800 --> 00:32:21,320 Speaker 1: full review of the case. So that's a possibility. Um, 526 00:32:21,360 --> 00:32:24,800 Speaker 1: And you know the judge also could say, you know, 527 00:32:25,040 --> 00:32:26,800 Speaker 1: show me that you can't do it, but I don't 528 00:32:26,800 --> 00:32:30,880 Speaker 1: believe it, and you just remove this restriction, So just 529 00:32:31,120 --> 00:32:34,160 Speaker 1: follow this injunction. Let's see why it's so hard. So 530 00:32:34,480 --> 00:32:36,920 Speaker 1: it's hard for me to stay whether so you know 531 00:32:37,000 --> 00:32:40,680 Speaker 1: there's still some play in the joints on this. But um, 532 00:32:40,760 --> 00:32:43,600 Speaker 1: you know, judges, when they enter injunctions you usually want 533 00:32:44,040 --> 00:32:49,960 Speaker 1: the litigants to obey, and you know, as a litigant, 534 00:32:49,960 --> 00:32:52,080 Speaker 1: you you want to abet. You don't want to be 535 00:32:52,120 --> 00:32:56,960 Speaker 1: held in contempt. Uh. So Um, if the judge isn't, 536 00:32:57,920 --> 00:32:59,880 Speaker 1: I don't know whether she's scheduled any hearing, and we 537 00:33:00,000 --> 00:33:02,880 Speaker 1: already have appeals by Epic. I assume Apple is going 538 00:33:02,920 --> 00:33:08,880 Speaker 1: to appeal as well. Um, So hard to say exactly 539 00:33:09,400 --> 00:33:12,840 Speaker 1: when this will happen or if it will happen. It's 540 00:33:13,000 --> 00:33:18,160 Speaker 1: the Court of Appeals may simply, um, stop in position 541 00:33:18,200 --> 00:33:22,320 Speaker 1: of the injunction until until the appeals are fully heard. 542 00:33:23,040 --> 00:33:27,080 Speaker 1: Do any appeals issues you know, jump out at you. Oh. 543 00:33:27,640 --> 00:33:29,520 Speaker 1: The first thing I would say is I would read 544 00:33:29,560 --> 00:33:33,120 Speaker 1: that case from epics point of view is, oh, what 545 00:33:33,200 --> 00:33:36,840 Speaker 1: are we gonna do. So it's a pretty thorough opinion. 546 00:33:37,560 --> 00:33:39,680 Speaker 1: I mean, I think, frankly, there's some legal mistakes in it, 547 00:33:39,720 --> 00:33:43,000 Speaker 1: but are they critical legal mistakes. I'm not sure. You know, 548 00:33:43,240 --> 00:33:45,560 Speaker 1: it might be picking around the edges, but that's not 549 00:33:45,640 --> 00:33:49,440 Speaker 1: what epics about. And I think they have to attack 550 00:33:49,520 --> 00:33:53,960 Speaker 1: the fundamental way the court decided the case when a 551 00:33:54,000 --> 00:33:57,240 Speaker 1: lot of it is factual, and appellate courts don't sit 552 00:33:57,360 --> 00:34:00,600 Speaker 1: to review the facts. Although they do that, they don't 553 00:34:00,600 --> 00:34:03,280 Speaker 1: say they do. So. The appelate courts are there to 554 00:34:04,000 --> 00:34:08,680 Speaker 1: review matters of law, and it may be that they're 555 00:34:08,719 --> 00:34:11,600 Speaker 1: going to have to come up with an argument for 556 00:34:11,680 --> 00:34:17,200 Speaker 1: why her choosing this market, this nonprofit market by either side, 557 00:34:17,280 --> 00:34:22,320 Speaker 1: and this particular one why that is reversible and infects 558 00:34:22,320 --> 00:34:25,320 Speaker 1: the whole rest of the case. So I think, shall 559 00:34:25,360 --> 00:34:28,279 Speaker 1: we say it's not a slam dunk reversal to say 560 00:34:28,320 --> 00:34:31,480 Speaker 1: the least. People are pointing to this decision as proof 561 00:34:31,600 --> 00:34:36,320 Speaker 1: that the antitrust laws need to be updated. Do you agree? Well? 562 00:34:36,360 --> 00:34:38,640 Speaker 1: I do think the anti trust laws that there are 563 00:34:38,800 --> 00:34:41,480 Speaker 1: have to be legislative fixes to some of this, some 564 00:34:41,680 --> 00:34:44,360 Speaker 1: having to do with putting the burden of proof in 565 00:34:44,440 --> 00:34:48,920 Speaker 1: certain cases on defendants. I'm not a d certain what 566 00:34:49,040 --> 00:34:53,439 Speaker 1: the legislative fix would be for this opinion, and the 567 00:34:53,520 --> 00:34:57,600 Speaker 1: courts are generally conservative in the law. But I don't 568 00:34:57,640 --> 00:35:00,040 Speaker 1: read this so much as a judge whose conservative of 569 00:35:00,160 --> 00:35:02,879 Speaker 1: in the law, as a judge who's not quite convinced 570 00:35:03,400 --> 00:35:06,680 Speaker 1: by the case that's put before her. So as a 571 00:35:06,760 --> 00:35:10,440 Speaker 1: general matter, these cases are not faring well at the moment, 572 00:35:10,520 --> 00:35:12,960 Speaker 1: and they're going to take a long time, and this 573 00:35:13,080 --> 00:35:16,880 Speaker 1: is an argument for legislative change, maybe more so the 574 00:35:17,440 --> 00:35:23,000 Speaker 1: f TC's case against Facebook and the coming cases against Google. 575 00:35:23,320 --> 00:35:25,759 Speaker 1: You know, there's a good argument something should be done, 576 00:35:25,960 --> 00:35:28,919 Speaker 1: particularly with regard to the large platforms. But one thing 577 00:35:28,920 --> 00:35:31,000 Speaker 1: this case reminds us is that each of these high 578 00:35:31,040 --> 00:35:35,080 Speaker 1: tech platforms is a little different. They offer somewhat different products, 579 00:35:35,120 --> 00:35:39,359 Speaker 1: they present different competition issues. They're tied together because they're 580 00:35:39,360 --> 00:35:44,080 Speaker 1: such powerful companies and they're so ubiquitous in our lives 581 00:35:44,320 --> 00:35:47,320 Speaker 1: that people are concerned about them. It's always a delight 582 00:35:47,360 --> 00:35:50,200 Speaker 1: to speak to you, Harry, Thanks so much. That's Professor 583 00:35:50,239 --> 00:35:55,960 Speaker 1: Harry First of m y U Law School. An untraventional 584 00:35:56,080 --> 00:36:00,239 Speaker 1: audit of Maricopa County, Arizona, nearly two point one in 585 00:36:00,320 --> 00:36:04,360 Speaker 1: ballots by a company with no experience and election security 586 00:36:04,560 --> 00:36:07,880 Speaker 1: found the hand count of ballots largely matched the county's 587 00:36:07,880 --> 00:36:11,960 Speaker 1: certified election results, with Biden winning an extra three hundred 588 00:36:12,000 --> 00:36:15,839 Speaker 1: sixty votes under the audit ordered by Republican States senators. 589 00:36:16,320 --> 00:36:19,760 Speaker 1: Despite the results, Trump allies pointed to the report's claims 590 00:36:19,760 --> 00:36:24,160 Speaker 1: of malfeasance and errors by election officials, which county officials 591 00:36:24,200 --> 00:36:28,439 Speaker 1: said are easily debunked by anyone familiar with election processes, 592 00:36:29,120 --> 00:36:31,480 Speaker 1: and the stop the Steel movement is going forward with 593 00:36:31,560 --> 00:36:35,479 Speaker 1: election audits in other states, even Texas, which Trump won. 594 00:36:35,800 --> 00:36:38,480 Speaker 1: Joining me is Liz Howard, senior counsel for the Brennan 595 00:36:38,560 --> 00:36:42,359 Speaker 1: Center for Justice. So letz tell us about the Maricopa 596 00:36:42,400 --> 00:36:46,000 Speaker 1: County audit. So, you know, one of the most important 597 00:36:46,040 --> 00:36:49,440 Speaker 1: things from from the report is that it provided additional 598 00:36:49,520 --> 00:36:52,640 Speaker 1: confirmation that Biden did, in fact win the election in 599 00:36:52,680 --> 00:36:57,560 Speaker 1: Maricopa County, you know. But unfortunately it also shows where 600 00:36:57,640 --> 00:37:02,960 Speaker 1: again these actors who have no experience in election administration, 601 00:37:03,600 --> 00:37:08,640 Speaker 1: simply took routine election administration practices and attempted to cast 602 00:37:08,680 --> 00:37:12,880 Speaker 1: what they don't understand as suspicious. And we've seen the 603 00:37:13,000 --> 00:37:18,040 Speaker 1: same captive characters use this playbook over and over and 604 00:37:18,239 --> 00:37:21,600 Speaker 1: over again, and really, you know, they're concerns that this 605 00:37:21,760 --> 00:37:25,400 Speaker 1: is just, you know, an effort to sabotage our election 606 00:37:25,480 --> 00:37:29,440 Speaker 1: officials in our election systems by store loosers. Trump and 607 00:37:29,520 --> 00:37:35,480 Speaker 1: his allies are using the report to say that there 608 00:37:35,520 --> 00:37:38,440 Speaker 1: were problems with the election in Arizona. What are they 609 00:37:38,560 --> 00:37:42,240 Speaker 1: using in the report? So times since one of the 610 00:37:42,400 --> 00:37:47,200 Speaker 1: um things that they're using is they have classified as 611 00:37:47,239 --> 00:37:52,320 Speaker 1: sucicius falsely that there are over two thousand Arizona voters 612 00:37:52,360 --> 00:37:56,719 Speaker 1: who share the same name and birth year. So this 613 00:37:56,880 --> 00:38:01,319 Speaker 1: is actually not suspicious, and they're full reasons that we 614 00:38:01,360 --> 00:38:04,919 Speaker 1: can explain this. So for instance, the birthday paradox, which 615 00:38:04,960 --> 00:38:08,160 Speaker 1: explains that in a group of about forty people, there's 616 00:38:08,200 --> 00:38:12,239 Speaker 1: a nine chance that who will share the same birthday, 617 00:38:12,280 --> 00:38:15,600 Speaker 1: which would just be months and day. Um. And here 618 00:38:15,640 --> 00:38:18,040 Speaker 1: they're talking about people that share the same name in 619 00:38:18,200 --> 00:38:22,759 Speaker 1: birth year. Obviously, especially when they're clustered around the same year. 620 00:38:22,920 --> 00:38:25,839 Speaker 1: You're gonna see where names, you know, rise and fall 621 00:38:25,920 --> 00:38:29,920 Speaker 1: and popularity. So for instance, Jennifer was the most popular 622 00:38:30,080 --> 00:38:34,520 Speaker 1: names for girls born in the nineteen seventies, so there 623 00:38:34,520 --> 00:38:37,600 Speaker 1: were about a hundred and sixty Jennifers born every day 624 00:38:37,680 --> 00:38:42,319 Speaker 1: in the USA between nineteen seventy and nineteen seventy nine, right, 625 00:38:42,400 --> 00:38:45,640 Speaker 1: and so facts like these mean that it's not unexpected 626 00:38:45,680 --> 00:38:48,600 Speaker 1: for there to be multiple voters in Arizona, which has 627 00:38:48,640 --> 00:38:51,880 Speaker 1: over three million voters who share the same name in 628 00:38:52,040 --> 00:38:55,480 Speaker 1: birth year. Do we know how much it cost Arizona 629 00:38:55,680 --> 00:38:58,920 Speaker 1: to do this audit? I think that they are still 630 00:38:58,920 --> 00:39:01,759 Speaker 1: working on total cost estiments. But what we know right 631 00:39:01,800 --> 00:39:06,440 Speaker 1: now is that UM the Senate costs are closing in 632 00:39:06,480 --> 00:39:09,200 Speaker 1: on half a million dollars. And one of the other 633 00:39:09,239 --> 00:39:13,400 Speaker 1: big costs that has been incurred in the Arizona partisan 634 00:39:13,480 --> 00:39:16,960 Speaker 1: review has to do with the costs required to replace 635 00:39:17,040 --> 00:39:21,920 Speaker 1: the voting equipment that was given over to the Cybern 636 00:39:21,920 --> 00:39:25,440 Speaker 1: Engine who again have no experience in election administration and 637 00:39:25,480 --> 00:39:30,600 Speaker 1: are not certified by the federal United States Election Assistance 638 00:39:30,640 --> 00:39:35,200 Speaker 1: commissioned to test voting equipment. The replacement costs for this 639 00:39:35,480 --> 00:39:38,520 Speaker 1: UM for the equipment Americopa County has been estimated at 640 00:39:38,600 --> 00:39:42,920 Speaker 1: two point eight million dollars. And those are just the 641 00:39:43,000 --> 00:39:46,160 Speaker 1: financial costs of this audit, you know, of course, that 642 00:39:46,200 --> 00:39:48,760 Speaker 1: doesn't begin to address the other costs of this audit 643 00:39:49,000 --> 00:39:51,960 Speaker 1: to the election officials who have had to spend you know, 644 00:39:52,080 --> 00:39:54,880 Speaker 1: an inordinate amount of time not only you know, just 645 00:39:55,000 --> 00:39:59,280 Speaker 1: transferring the ballots and the voting equipment um to the Senate, 646 00:39:59,360 --> 00:40:04,440 Speaker 1: but also debunking all of the false information that continues 647 00:40:04,480 --> 00:40:08,839 Speaker 1: to come out from the cyber ninjas and others associated 648 00:40:09,160 --> 00:40:12,200 Speaker 1: again with this partisan review in a Maricopa county. So, 649 00:40:12,280 --> 00:40:17,000 Speaker 1: despite that, Texas is now going to review results from 650 00:40:17,040 --> 00:40:20,879 Speaker 1: four large counties, three one by Biden. But this isn't 651 00:40:20,880 --> 00:40:24,440 Speaker 1: a state that Trump won. What is the governor saying? 652 00:40:24,480 --> 00:40:28,320 Speaker 1: Why are they doing this? So the governor's statement didn't 653 00:40:28,320 --> 00:40:32,000 Speaker 1: include any details. What he said he's going to do 654 00:40:32,360 --> 00:40:34,719 Speaker 1: or that the Secretary of State office is going to 655 00:40:34,719 --> 00:40:38,920 Speaker 1: do is a forensic audit. So first, the secretary of 656 00:40:38,960 --> 00:40:43,360 Speaker 1: State office is vacant right now, there is no Secretary 657 00:40:43,400 --> 00:40:47,239 Speaker 1: of State. Uh. Second, I am unaware of and of 658 00:40:47,320 --> 00:40:50,120 Speaker 1: what exactly a forensic goot it means. And he has 659 00:40:50,160 --> 00:40:52,960 Speaker 1: not provided any details that I'm aware of about what 660 00:40:53,080 --> 00:40:58,120 Speaker 1: exactly that means to him in Texas or for our 661 00:40:58,200 --> 00:41:03,440 Speaker 1: election officials. And then in Wisconsin, is there also an 662 00:41:03,480 --> 00:41:09,200 Speaker 1: audit in Wisconsin schedules? Yet? So again in Wisconsin, the 663 00:41:09,239 --> 00:41:13,600 Speaker 1: election results have already been audited, and the Trump campaign 664 00:41:13,760 --> 00:41:20,040 Speaker 1: already conducted a recount and multiple Wisconsin jurisdiction. The audit 665 00:41:20,200 --> 00:41:23,799 Speaker 1: conducted by election officials and the recount, which was done 666 00:41:23,840 --> 00:41:27,920 Speaker 1: in conjunction with campaign officials and led by election officials, 667 00:41:27,960 --> 00:41:33,080 Speaker 1: both provided confirmation that Biden won the election. Currently, there 668 00:41:33,400 --> 00:41:38,400 Speaker 1: is a legislator kind of established a separate entity led 669 00:41:38,400 --> 00:41:43,120 Speaker 1: by a gentleman named Gableman, that is tasked with reviewing 670 00:41:43,120 --> 00:41:46,839 Speaker 1: the election results. This process has already been marred with 671 00:41:47,160 --> 00:41:51,759 Speaker 1: concerning procedures. For instance, Gablements and out requests for information 672 00:41:51,800 --> 00:41:55,680 Speaker 1: to multiple clerks in the state of Wisconsin, and this 673 00:41:55,880 --> 00:41:58,880 Speaker 1: request was sent to the stand box and otherwise marked 674 00:41:58,920 --> 00:42:01,600 Speaker 1: as a concern in the inboxes of many of the 675 00:42:01,640 --> 00:42:05,359 Speaker 1: election officials because the email address from which it came 676 00:42:05,440 --> 00:42:08,239 Speaker 1: was a Gmail address, and the Gmail address wasn't for 677 00:42:08,600 --> 00:42:11,920 Speaker 1: Mr Gablement. You know, we have serious concerns about this, 678 00:42:12,080 --> 00:42:15,759 Speaker 1: and the process in Wisconsin is also costing Wisconsin tax 679 00:42:15,840 --> 00:42:19,960 Speaker 1: payers thousands and thousands of dollars. Liz, you were talking 680 00:42:19,960 --> 00:42:23,719 Speaker 1: about some of the election machinery having to be decommissioned 681 00:42:24,200 --> 00:42:28,800 Speaker 1: in Arizona. Explain why they have to do that. So 682 00:42:28,800 --> 00:42:33,920 Speaker 1: so far what we've seen in multiple states is right. 683 00:42:34,080 --> 00:42:37,280 Speaker 1: The equipment is handed over to these actors who again 684 00:42:37,480 --> 00:42:42,640 Speaker 1: do not are not federally certified and are not contractors 685 00:42:42,680 --> 00:42:46,920 Speaker 1: of the local election officials, subject to the various restrictions. 686 00:42:47,080 --> 00:42:52,120 Speaker 1: The Secretary of State in Arizona, after she spoke with 687 00:42:52,320 --> 00:42:57,320 Speaker 1: an in coordination with UM, the Cyber Security and Infrastructure 688 00:42:57,400 --> 00:43:01,800 Speaker 1: Security Agency at the US of Apartment of Homeland Security, 689 00:43:01,960 --> 00:43:05,239 Speaker 1: sent a letter to the Americopa County officials saying that 690 00:43:05,760 --> 00:43:08,319 Speaker 1: there was a significant concern because the voting machines have 691 00:43:08,440 --> 00:43:14,239 Speaker 1: been accessed by these people, and the voting machines were 692 00:43:14,680 --> 00:43:20,600 Speaker 1: UM decommissioned. And also you've seen in Pennsylvania where a 693 00:43:20,719 --> 00:43:24,960 Speaker 1: small county provided access to their voting machines to one 694 00:43:25,000 --> 00:43:28,319 Speaker 1: of the vendors that is also associated with the Arizona 695 00:43:28,680 --> 00:43:33,000 Speaker 1: partisan review. The Department of State's office, in conjunction with 696 00:43:33,200 --> 00:43:36,280 Speaker 1: the vendor said you may not use this equipment again. 697 00:43:36,560 --> 00:43:41,520 Speaker 1: And in Pennsylvania are they moving for more audits in Pennsylvania? 698 00:43:41,760 --> 00:43:45,640 Speaker 1: So to be clear, the election results in Pennsylvania have 699 00:43:45,719 --> 00:43:50,879 Speaker 1: already been audited twice. In Pennsylvania, there is a statutory 700 00:43:51,160 --> 00:43:54,360 Speaker 1: um what we think of as a traditional post election 701 00:43:54,440 --> 00:43:59,960 Speaker 1: tabulation audit where election officials in every jurisdiction in Pennsylvania 702 00:44:00,000 --> 00:44:04,239 Speaker 1: a review two thousand or two percent of the ballots 703 00:44:04,280 --> 00:44:09,040 Speaker 1: cast in their jurisdiction. And again, so that initial statutory 704 00:44:09,080 --> 00:44:13,799 Speaker 1: audit provided confirmation that Biden did win the election, and 705 00:44:14,239 --> 00:44:18,640 Speaker 1: UM sixty three out of the sixty seven jurisdictions in 706 00:44:18,760 --> 00:44:23,560 Speaker 1: Pennsylvania also voluntarily participated in a risk lemining audit, and 707 00:44:23,640 --> 00:44:27,720 Speaker 1: that audit again provided further evidence that Biden won the election. 708 00:44:27,840 --> 00:44:31,480 Speaker 1: So this election has already been audited multiple times. There 709 00:44:31,600 --> 00:44:34,920 Speaker 1: is really no need at all for an additional audit 710 00:44:35,040 --> 00:44:39,480 Speaker 1: at this juncture. So when initially UM, a legislator who's 711 00:44:39,480 --> 00:44:43,400 Speaker 1: been a very public stop the steal proponent, sent letters 712 00:44:43,520 --> 00:44:48,160 Speaker 1: to multiple local election officials in the state asking for 713 00:44:48,800 --> 00:44:53,600 Speaker 1: information very similar to what the subpoenas that the Arizona 714 00:44:53,800 --> 00:44:58,239 Speaker 1: legislators used when taking all of this the ballots and 715 00:44:58,360 --> 00:45:01,480 Speaker 1: the voting machines from er Copa. Any officials, the local 716 00:45:01,520 --> 00:45:04,279 Speaker 1: election officials who had seen what had happened in a 717 00:45:04,320 --> 00:45:08,000 Speaker 1: Maricopa county told that legislator that they were not going 718 00:45:08,040 --> 00:45:11,600 Speaker 1: to be responding to his requests. But we've subsequently seen 719 00:45:11,760 --> 00:45:17,360 Speaker 1: is is President Trump publicly identifying the Republican leadership in 720 00:45:18,080 --> 00:45:22,080 Speaker 1: Pennsylvania and demanding that they do something to audit the results. 721 00:45:22,560 --> 00:45:26,640 Speaker 1: So recently they sent a subpoena to the Secretary of 722 00:45:26,680 --> 00:45:31,240 Speaker 1: State asking for UM a variety of information about the election, 723 00:45:31,280 --> 00:45:34,360 Speaker 1: which would include the last four digits of the social 724 00:45:34,360 --> 00:45:39,080 Speaker 1: Security number of of some voters, which has been a 725 00:45:39,080 --> 00:45:43,200 Speaker 1: significant concern, and there is now UM litigation regarding the 726 00:45:43,960 --> 00:45:48,680 Speaker 1: regarding that subpoena. There's been so much reporting about the 727 00:45:48,800 --> 00:45:54,200 Speaker 1: number of legislatures that are changing election laws. Do you 728 00:45:54,280 --> 00:45:59,000 Speaker 1: have numbers on how many states? So generally, right like 729 00:45:59,080 --> 00:46:01,920 Speaker 1: the state legislatures are going to be the ones that 730 00:46:01,960 --> 00:46:07,520 Speaker 1: are determining state law. So law, of course doesn't UM 731 00:46:07,680 --> 00:46:12,040 Speaker 1: cover every situation. So UM, you know, local election officials 732 00:46:12,120 --> 00:46:15,040 Speaker 1: have some discretion. The amount of discretion that they have 733 00:46:15,320 --> 00:46:18,320 Speaker 1: is going to very state the state, which will depend 734 00:46:18,400 --> 00:46:22,080 Speaker 1: upon state law. So we put out the voting laws 735 00:46:22,200 --> 00:46:24,680 Speaker 1: round up periodically, and I think we just had one 736 00:46:24,719 --> 00:46:27,279 Speaker 1: that came out a couple of months ago and that 737 00:46:27,520 --> 00:46:31,960 Speaker 1: does categorize and numbers. Are most of these laws being 738 00:46:32,200 --> 00:46:38,719 Speaker 1: challenged in court. So my colleagues recently filed to in 739 00:46:38,960 --> 00:46:44,800 Speaker 1: Texas regarding UM. The bill that was just passed there, 740 00:46:45,280 --> 00:46:50,160 Speaker 1: which addresses some election administration practices. UM. And of course, uh, 741 00:46:50,480 --> 00:46:53,120 Speaker 1: you know what we just saw in Texas is the 742 00:46:53,160 --> 00:46:56,399 Speaker 1: governor just announced that the Secretary of State is going 743 00:46:56,480 --> 00:47:00,080 Speaker 1: to conduct the friends aboudit in four county. So the 744 00:47:00,160 --> 00:47:04,120 Speaker 1: states that are passing these laws, is it about more 745 00:47:04,280 --> 00:47:08,240 Speaker 1: than access to the ballot? Is it about giving county 746 00:47:08,520 --> 00:47:14,080 Speaker 1: officials control over election results at some point? So I 747 00:47:14,200 --> 00:47:17,560 Speaker 1: think there are a couple of things. So while in 748 00:47:17,719 --> 00:47:23,080 Speaker 1: multiple states we've seen some of the most concerning provisions 749 00:47:23,200 --> 00:47:26,960 Speaker 1: stripped out of the bills that were subsequently signed into law. So, 750 00:47:27,120 --> 00:47:30,440 Speaker 1: for instance, in Texas, one of the only provisions that 751 00:47:30,680 --> 00:47:34,960 Speaker 1: was struck from the voting bill that was recently passed 752 00:47:35,440 --> 00:47:41,200 Speaker 1: would have allowed the state legislature to basically overturn election results. 753 00:47:41,200 --> 00:47:43,520 Speaker 1: It would have been a manner given them the power 754 00:47:43,800 --> 00:47:48,640 Speaker 1: to certify um different election results than what the vote 755 00:47:48,680 --> 00:47:53,200 Speaker 1: counts indicated. And so while it didn't pass this year, 756 00:47:53,800 --> 00:47:56,919 Speaker 1: I have concerns that this is not the last time 757 00:47:57,000 --> 00:48:00,400 Speaker 1: that we're going to see bills like this in exists 758 00:48:00,560 --> 00:48:04,600 Speaker 1: and in other states across the country. Again, you know, 759 00:48:05,360 --> 00:48:08,359 Speaker 1: with what we're seeing across the country, I mean these 760 00:48:08,640 --> 00:48:12,640 Speaker 1: these appear to the efforts to sabotage our election officials, UM, 761 00:48:12,719 --> 00:48:15,960 Speaker 1: and to sabotage our election administration system. You know, we 762 00:48:16,239 --> 00:48:21,560 Speaker 1: we know that. UM. You know, what these UM part 763 00:48:21,600 --> 00:48:24,959 Speaker 1: of the election reviews are actually doing is costing tax 764 00:48:25,040 --> 00:48:30,040 Speaker 1: payers millions of dollars UM. And they are spurring on 765 00:48:30,960 --> 00:48:35,280 Speaker 1: UM death threats and other threats against our election officials. 766 00:48:35,840 --> 00:48:39,239 Speaker 1: And they're wasting the time of our election officials, UM, 767 00:48:39,840 --> 00:48:43,720 Speaker 1: which now in their normal calendar, they would be beginning 768 00:48:43,880 --> 00:48:48,640 Speaker 1: to plan and prepare for elections UM in which are 769 00:48:48,719 --> 00:48:52,440 Speaker 1: which are coming up. Because you know, one of the again, 770 00:48:52,560 --> 00:48:55,080 Speaker 1: one of the most concerning things about this is the 771 00:48:55,200 --> 00:49:01,560 Speaker 1: election that they are attempting to cast doubt on happened 772 00:49:01,760 --> 00:49:05,520 Speaker 1: almost a year ago. UM. Joe Biden was torn in 773 00:49:05,800 --> 00:49:09,560 Speaker 1: in January of this year, you know, nine months ago. 774 00:49:10,239 --> 00:49:13,960 Speaker 1: What they are endeavoring to do is not about increasing 775 00:49:14,040 --> 00:49:18,840 Speaker 1: voter confidence. Thanks Liz. That's Liz Howard, senior counsel for 776 00:49:18,880 --> 00:49:21,800 Speaker 1: the Brennan Center for Justice. And that's it for this 777 00:49:21,960 --> 00:49:24,720 Speaker 1: edition of the Bloomberg Law Show. Remember you can always 778 00:49:24,719 --> 00:49:27,320 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 779 00:49:27,560 --> 00:49:30,080 Speaker 1: You can find them on Apple Podcasts. Spotify and at 780 00:49:30,239 --> 00:49:35,120 Speaker 1: www dot Bloomberg dot com. Slash podcast slash Law, I'm 781 00:49:35,200 --> 00:49:37,080 Speaker 1: Jun Brosso. You're listening to Boomla