Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: The acting head of ICE, Todd Lyons, defended his agency's
Speaker 2: training standards and denounced threats against officers at a hearing
Speaker 2: before the House Homeland Security Committee today, let me.
Speaker 3: Send a message to anyone who thinks they can intimidate us,
Speaker 3: you will fail well.
Speaker 2: The shootings of Renee Good and Alex Pretty have drawn
Speaker 2: by partisan scrutiny and calls for transparency. The hearing largely
Speaker 2: played out along partisan lines. There were some heated moments,
Speaker 2: like this when New York Democrat Dan Goldman asked Lyons
Speaker 2: about US citizens being asked for proof of citizenship?
Speaker 3: Do you know what other regimes in the twentieth century
Speaker 3: century required similar proof of citizenship?
Speaker 1: Yes, sir? What so those various nefarious regimes that did that?
Speaker 3: Is Nazi one?
Speaker 1: Yes?
Speaker 3: But I is the Soviet Union life I'm asking the questions.
Speaker 3: Is the Soviet Union one?
Speaker 1: Yes, sir? But I told you.
Speaker 2: A topic that was not addressed at the hearings is
Speaker 2: one that affects every non citizen detained by ICE, the
Speaker 2: Trump Administration's mandatory detention policy. It's a reversal of every
Speaker 2: other administration's policy for the last thirty years. The Trump
Speaker 2: administration is detaining all non citizens without hearings indefinitely, even
Speaker 2: if they've lived in this country for decades and have
Speaker 2: no criminal records. And in a huge win for the administration,
Speaker 2: the ultra conservative Fifth Circuit Court of Appeals just greenlit
Speaker 2: that mandatory detention policy. My guest is Leon Fresco, a
Speaker 2: partner at hollanden Knight and the former head of the
Speaker 2: Office of Immigration Litigation in the Obama administration. Lee and
Speaker 2: I want to start with what's been happening in the
Speaker 2: lower federal courts the Trump administration. The immigration courts have
Speaker 2: largely stopped conducting bond hearings, even though three federal judges
Speaker 2: explicitly declare that non citizen detainees have a right to
Speaker 2: argue for their release, so the right to a bond hearing.
Speaker 2: But there was contrary guidance by the head immigration judge
Speaker 2: who said the immigration judges weren't bound by the federal
Speaker 2: judges orders.
Speaker 1: What happens is that there is Supreme Court precedent from
Speaker 1: a couple of years ago during the Biden administration that
Speaker 1: clarify that the only court in America that can issue
Speaker 1: injunctive relief of immigration, deportation or detention statue is the
Speaker 1: Supreme Court. And so what that has meant is that
Speaker 1: the lower courts, when they're trying to issue relief in
Speaker 1: certain cases, the only thing they can issue is what's
Speaker 1: called declaratory judgment relief. They can say, we declare that
Speaker 1: the immigration authorities are acting in an unlawful manner, and
Speaker 1: based on that declaration, we are ordering that there be
Speaker 1: a release of a particular person who we are claiming
Speaker 1: is wrongfully detained. And usually that's done in a habeas
Speaker 1: corpus matter, which is what happened is someone says, my
Speaker 1: body is wrongfully detained by the federal government, please release me. Now,
Speaker 1: what has been happening is, and we'll talk more about
Speaker 1: this when we get to the Fifth Circuit case, is
Speaker 1: that ISA has taken the position that nobody can be
Speaker 1: released from detention if they snuck across the border or
Speaker 1: the United States. It doesn't matter if it was thirty
Speaker 1: years ago, twenty years ago, or anything. If we catch you,
Speaker 1: that means you're in detention until your deportation case is over.
Speaker 1: And so from that perspective, people have been filing habeas
Speaker 1: corpus petitions trying to say that that's an improper decision
Speaker 1: and let me unt. And what has happened is that
Speaker 1: when they win, they get declaratory relief, they don't get
Speaker 1: injunctive relief. And so now the immigration courts under the
Speaker 1: Department of Justice, so Pambombi, being the Attorney General and
Speaker 1: then bringing those orders down to her designees in the
Speaker 1: Department of Justice and the Immigration courts, has said a
Speaker 1: declaratory judgment is not an injunction. It doesn't force us
Speaker 1: to do anything. It just declares that we've acted illegally,
Speaker 1: which is you know, quite a stretch. You know, usually
Speaker 1: people defer to these declarations, but here the Department of
Speaker 1: Justice is saying, we are not going to defer to
Speaker 1: these declarations that we're acting illegally. We will wait till
Speaker 1: the Supreme Court enjoins us to do anything. And so
Speaker 1: now they're ignoring the court orders, which is setting up
Speaker 1: these CROs where the district court judges are going to
Speaker 1: decide whether to have to hold the Justice Department officials
Speaker 1: and the ICE officials in contempt. And if they do,
Speaker 1: what does that mean and would people get ordered to
Speaker 1: be thrown in jail if they would, who would enforce
Speaker 1: these orders? We use these words, but these words are
Speaker 1: the definition of a constitutional crisis, which is when you
Speaker 1: have a court ordering something, and you even have a
Speaker 1: content proceeding and the administration will ignore that. Then that's
Speaker 1: when you have a constitutional crisis, because then no longer
Speaker 1: does the administration say that it will submit itself to
Speaker 1: the rule of the courts in terms of their decisions.
Speaker 1: And that's when you have potentially problematic situations.
Speaker 2: But if the Supreme Court ruled that, then is the
Speaker 2: Department of Justice in the right here?
Speaker 1: Well, the Supreme Court has it ruled about these bond issues.
Speaker 1: But if they've ruled that, which they have, that they
Speaker 1: are the only ones who can issue an injunction, then
Speaker 1: the injunction would be for policy wide challenges. For instance,
Speaker 1: you challenge a certain memo or you challenge a certain
Speaker 1: program that got put into place in the immigration world.
Speaker 1: But in these habeas cases, it's a little bit more
Speaker 1: complicated because the whole point of a habeas case is
Speaker 1: you're not getting an injunction. In a habeas you're getting
Speaker 1: an order. You're getting a rid of habeas corpus, which
Speaker 1: is done in a declaratory nature, and so to say
Speaker 1: we're not subject to habeas petitions anymore. We don't have
Speaker 1: to respect those decisions unless somebody gets all the way
Speaker 1: to the Supreme Court and the Supreme Court says release
Speaker 1: them on a habeas that's unprecedented territory.
Speaker 2: Both the Fifth and the Seventh Circuit had arguments on
Speaker 2: the same day. The Fifth Circuit made its decision within
Speaker 2: days of the arguments. I mean, how big a victory
Speaker 2: is that Fifth Circuit decision for the administration.
Speaker 1: The reason it's a big victory is because most of
Speaker 1: the detention facilities in the United States are in the
Speaker 1: Fifth Circuit Texas, Louisiana, and Mississippi. It's a big part
Speaker 1: of the detention infrastructure of the United States is actually
Speaker 1: in those locations. And so what the Fifth Circuit held
Speaker 1: is that if a person crossed the border illegally and
Speaker 1: entered the United States illegally, if and when the United
Speaker 1: States government finally apprehends them, whether it's two days later,
Speaker 1: ten days later, one year later, twenty years later, forty
Speaker 1: years later, none of that matters. What matters is that
Speaker 1: they were apprehended when they had crossed the border. Illegally,
Speaker 1: and so under the version of the statute that the
Speaker 1: Trump administration and the Fifth Circuit feel is the correct
Speaker 1: interpretation of the statute, they say that no matter when
Speaker 1: you're apprehended, if you've crossed illegally, what your intent is.
Speaker 1: Your intent is you're trying still every day of your life,
Speaker 1: to be admitted into the United States legally, that this
Speaker 1: is your goal. Because the statue uses these words seeking admission,
Speaker 1: and what it says is if you're seeking admission into
Speaker 1: the United States, then if you get apprehended, you will
Speaker 1: be detained indefinitely without bond until we decide whether you
Speaker 1: win or lose your deportation case. And so that's the definition.
Speaker 1: Previously for the last thirty years, all the administrations prior
Speaker 1: to this said that at a certain point after you
Speaker 1: cross the border, you're no longer seeking admission, you're just
Speaker 1: here in the country, and that seeking admission is only
Speaker 1: for people apprehended at or near the border right when
Speaker 1: they're trying to cross. It's not for people who've been
Speaker 1: here an extended period of time. Those people are entitled
Speaker 1: to bond. And so this is a new interpretation that's
Speaker 1: different than what has occurred in the last thirty years.
Speaker 1: And so what the Fifth Circuit has said is absolutely
Speaker 1: if someone is in detention in the Fifth Circuit and
Speaker 1: they cross the border illegally, it does not matter how
Speaker 1: long they've been in the country. They can be detained
Speaker 1: during the entire removal hearing without bond until they can
Speaker 1: finally be deported.
Speaker 2: And if the Seventh Circuit comes out with a contrary decision,
Speaker 2: it won't make that much difference because not that many
Speaker 2: people are held in detention in the territory of the
Speaker 2: Seventh Circuit.
Speaker 1: Correct. What's very interesting about this is usually the government
Speaker 1: is motivated to go to the Supreme Court whenever it's
Speaker 1: got bad law. But it would be very interesting if
Speaker 1: what will have to happen is that the Fifth Circuit
Speaker 1: petitioners that the foreign nationals will have to go to
Speaker 1: the Supreme Court and that the Supreme Court takes the case,
Speaker 1: because usually the Supreme Court only takes these cases for
Speaker 1: the most part, because the Department of Justice is asking
Speaker 1: them to take the case. Almost always, when the Department
Speaker 1: of Justice wants the Supreme Court to take a case,
Speaker 1: they take it. But the Department of Justice may say,
Speaker 1: you know what, if we lose in the Seventh Circuit
Speaker 1: or the Ninth Circuit, No big deal. We'll just put
Speaker 1: the visa overstate people in detention in those facilities and
Speaker 1: they can get a bond and it's not a big
Speaker 1: deal and whatever. But for the people we want to
Speaker 1: keep in detention as the border crossers, we will put
Speaker 1: them in detention in the Fifth Circuit, and that way
Speaker 1: they won't be able to have a habeas petition. And
Speaker 1: if the Supreme Court never takes this case, then that
Speaker 1: can't be fixed. And so from their perspective, there's a
Speaker 1: possibility they may not ask perserciary review in the Supreme Court,
Speaker 1: and that the only way it would get there would
Speaker 1: be if the foreign nationals involved actually try to appeal
Speaker 1: a fitth Circuit decision to the Supreme Court.
Speaker 2: When immigrants are released as their case is being processed,
Speaker 2: do they have better odds of fighting their removal from
Speaker 2: the country.
Speaker 1: Yeah, here's what happens. There's two sort of big dramatic
Speaker 1: complications when immigration detension is involved. One to the extent
Speaker 1: that you have family and friends and everybody else, you're
Speaker 1: separated from them, and you're separated from your source of income,
Speaker 1: which makes it harder for you to even hire a
Speaker 1: lawyer in the first place, so you may not have
Speaker 1: a lawyer because you can't afford a lawyer. But second,
Speaker 1: and even more importantly than that, so you don't have
Speaker 1: your family, you don't have any money, you can't hire
Speaker 1: a lawyer. That's bad enough theoretically, but then it gets
Speaker 1: even worse, which is, even if you have a lawyer,
Speaker 1: the lawyer now has to communicate with you, basically through
Speaker 1: ICE whatever ICE decides to allow you to be able
Speaker 1: to communicate with your lawyer. So you know, most of
Speaker 1: these detention facilities are in the middle of nowhere, they're
Speaker 1: not near any lawyers, and so very few lawyers are
Speaker 1: driving out or flying hours and hours. Usually what you're
Speaker 1: having to do is set up conferences visa the you're
Speaker 1: passing documents to the client through ICE. ICE is getting
Speaker 1: this and they're getting the documents back. So any sort
Speaker 1: of attorney client privilege is not that it's not respected,
Speaker 1: it just doesn't exist because you're passing documents through ICE.
Speaker 1: So the only way to have attorney client privilege would
Speaker 1: be for lawyers to drive many, many hours or fly
Speaker 1: and drive to these remote facilities. So all of that
Speaker 1: makes it very very hard if you're trying to prepare,
Speaker 1: let's say, an asylum application, which requires if you were
Speaker 1: if you were doing a gold standard asylum case, you'd
Speaker 1: be with your client maybe eight to sixteen hours getting
Speaker 1: their whole story, documenting it, saying where can I get
Speaker 1: this proof from? Where can I get this document from?
Speaker 1: Trying to really set forward a case, and you just
Speaker 1: don't have the ability to do any of that if
Speaker 1: your client is a detention. So it basically is like saying, fine,
Speaker 1: we're gonna let you play basketball, but you can't use
Speaker 1: your left arm or your right leg. Good luck to youse,
Speaker 1: see if you can win this match against Shaquille O'Neal
Speaker 1: or something like that. That's basically what happens if you're
Speaker 1: an immigration detention.
Speaker 2: Coming up next, I'll continue this conversation with Leon Fresco.
Speaker 2: Lawyers are struggling to find their detained clients in a
Speaker 2: game of whackam o by ice. This is Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: The federal courts have been flooded with habeas petitions from
Speaker 2: immigrants claiming their detention is illegal. According to pro Publica.
Speaker 2: The Trump administration's push for mass deportations has resulted in
Speaker 2: more than eighteen thousand habeas potis filed in federal court
Speaker 2: in the first thirteen months of Trump's second term. That's
Speaker 2: more than we're filed under the last three administrations combined.
Speaker 2: I've been talking to Immigration attorney Leon Fresco of Honda
Speaker 2: Night So, Leon, with this Fifth Circuit decision, will that
Speaker 2: flood subside tug?
Speaker 1: You're in the Fifth Circuit absolutely, because that becomes binding President,
Speaker 1: So none of those habeas petitions will work in the
Speaker 1: district courts in Texas, Mississippi, and Louisiana. If you are
Speaker 1: in other district courts around the country, the problem you
Speaker 1: have is that that Fifth Circuit decision could be cited
Speaker 1: as persuasive, and maybe the particular district judge who's listening
Speaker 1: to the case will find it persuasive, and then you'll
Speaker 1: need to go to the Circuit court and we'll have
Speaker 1: to see what happens. But the other problem that could
Speaker 1: happen is the government can try to move you and
Speaker 1: get your habeas dismissed, and then the court would have
Speaker 1: to decide whether it wants to keep the habeasts or not.
Speaker 1: So there's just too much uncertainty and procedural machinations that
Speaker 1: can occur in all of these cases, where at the
Speaker 1: end of the day, many many of these foreign nationals involved,
Speaker 1: unless they get some very committed pro bono project, are
Speaker 1: not going to have the resources to make all of
Speaker 1: these challenges.
Speaker 2: It almost sounds like game over.
Speaker 1: I mean, the only way that this detention issue will
Speaker 1: change is if the Supreme Court gets involved and says
Speaker 1: that the Fifth Circuit got it wrong. But if the
Speaker 1: Fifth Circuit decision stands, then what you will see as
Speaker 1: the entire detention infrastructure of America moved to the Fifth Circuit,
Speaker 1: and then that will be how it operates.
Speaker 2: So then is it as important that the Justice Department
Speaker 2: is overhauling the Board of Immigration Appeals and cutting off
Speaker 2: an avenue for challenging immigration court orders.
Speaker 1: Well, that absolutely is critical for all of these cases,
Speaker 1: because a removal in the United States cannot occur currently
Speaker 1: unless there's two levels of review, one before one immigration
Speaker 1: judge and two before the Board of Immigration Appeals. Then
Speaker 1: there's theoretically a third one where you can go to
Speaker 1: the Federal Court of Appeals and they can decide whether
Speaker 1: they want to review your case and issue US stay.
Speaker 1: But if they don't issue US stay while the case
Speaker 1: is under review, you can actually be deported while the
Speaker 1: case is under review, and you'd have to win and
Speaker 1: hope that you can get re reparolled back into the
Speaker 1: United States if you win your case, but in the
Speaker 1: meantime you've been deported. So it's not so easy there.
Speaker 1: The only guarantee of non non deportation is to be
Speaker 1: either before the immigration judge or before the Board of
Speaker 1: Immigration Appeals. Now here's what the Trump administration is saying,
Speaker 1: and to this extent they're mostly correct. Is they've said,
Speaker 1: if you really look at what the Board of Immigration
Speaker 1: Appeals does, in ninety percent of cases, they just issue
Speaker 1: a rubber stamp decision that says, you know, what, the
Speaker 1: immigration judge was correct, So we don't really have anything
Speaker 1: more substantive to add to this. And then people either
Speaker 1: get deported or they review it to the federal Court
Speaker 1: of Appeals that applies to them. And so what they're
Speaker 1: saying is if this process takes one year or two
Speaker 1: years or three years, as it does for many cases,
Speaker 1: in order to ultimately get a decision, that's not very
Speaker 1: substantively helpful. Why not just get rid of this altogether,
Speaker 1: and just if you lose in front of the Immigration court,
Speaker 1: go directly to the Federal Court of Appeals and not
Speaker 1: even have this if it's not adding anything to it. Now,
Speaker 1: on the other side, the advocates would say, yeah, well
Speaker 1: that's that's because you're not taking this process seriously. This
Speaker 1: is not meaningful appellate review. That doesn't mean get rid
Speaker 1: of it, that means make it meaningful appellet review. And
Speaker 1: so you really have two completely different view points here.
Speaker 1: But it has not been to be fair meaningful appellate
Speaker 1: review under either the Trump administration or the Biden administration
Speaker 1: or the other Trump administration, or the Obama administration or
Speaker 1: the Bush administration. It was never meaningful appellate review. And
Speaker 1: so you start really grappling with this issue of if
Speaker 1: you don't really have it, and all it's doing is
Speaker 1: delaying people's deportation by a year or two, then what
Speaker 1: is really going on here? And so that's going to
Speaker 1: be a debate because so now what's interesting is that
Speaker 1: the federal statutes never say that there needs to be
Speaker 1: something called the Board of Immigration Appeals. They don't say
Speaker 1: anything like that. They just say the Attorney General has
Speaker 1: to establish something, and whatever that is, that's the system.
Speaker 1: So the system that the Attorney General established had an
Speaker 1: immigration court and a Board of Immigration Appeals. So now
Speaker 1: by regulation they're trying to say, you don't need this
Speaker 1: Board of Immigration Appeals anymore unless the entire board decides
Speaker 1: on bank. We're going to listen to a case only
Speaker 1: then in those situations. So they're saying, in that situation,
Speaker 1: we'll have that, but otherwise we won't have it, and
Speaker 1: so they'll be a lawsuit. But I don't know how
Speaker 1: likely it is to be successful. Now they may not
Speaker 1: have followed the correct formalities because they're not doing notice
Speaker 1: and comment, and I don't know why. If you're doing it,
Speaker 1: I think if you're doing something this substantive, I think
Speaker 1: you'd want to dot all the i's and cross all
Speaker 1: the t's, even if it takes six months longer, because
Speaker 1: it's a very large substantive change here. But nevertheless, it
Speaker 1: might get dinged for the lack of formalities. But if
Speaker 1: it doesn't get dinged on the lack of formalities, I'm
Speaker 1: not so optimistic for the challengers that they would actually
Speaker 1: win here because there's nothing in the statute that actually
Speaker 1: requires this Board of Immigration Appeals to exist.
Speaker 2: So the chief judge of the Minnesota Courts US District,
Speaker 2: Judge Patrick Schiltz, found that ICE had violated court orders
Speaker 2: almost one hundred times in seventy four cases brought by
Speaker 2: immigrants so far this year, and many other federal judges
Speaker 2: have found that ICE is not complying with their orders,
Speaker 2: or they're being threatened by judges with contempt, and so
Speaker 2: then they comply with court orders, but they're slow walking.
Speaker 2: I mean, many federal judges are finding that ICE is
Speaker 2: not complying with court orders, or they're being threatened by
Speaker 2: judges with contempt, and so then they comply with court orders,
Speaker 2: but they're slow walking. I mean, what's going on in
Speaker 2: the courts?
Speaker 1: I think there are many different issues, and so it's
Speaker 1: not one clear issue. It's many different issues. Number One,
Speaker 1: there is the issue of the amount of litigation that's
Speaker 1: happening now because of this new policy that says that
Speaker 1: if you've crossed the border illegally, there is no bond
Speaker 1: hearing for you. So that's a change from the past.
Speaker 1: The system didn't align itself, So it's this expression of
Speaker 1: building the airplane while you're trying to fly it. There
Speaker 1: was a system in place where when you got detained
Speaker 1: by ICE, you filed for a bond hearing, and that
Speaker 1: bond hearing was done in an immigration court by an
Speaker 1: immigration judge, and the government was represented by an ICE attorney,
Speaker 1: and the foreign national either represented themselves or had an attorney. Now,
Speaker 1: if your client is detained and they're not allowed to
Speaker 1: have bond because of this new policy, then what people
Speaker 1: are doing is they're filing habeas petitions. And the habeas
Speaker 1: petition doesn't have ICE as the attorney, it has a
Speaker 1: USDJ attorney, and those attorneys are understaffed, and in fact,
Speaker 1: the USDOJ attorneys many of them are resigning, and so
Speaker 1: all of these offices are understaffed, and now they're having
Speaker 1: this surge of cases. So they have this surge of
Speaker 1: cases and they're having to deal with not the immigration courts,
Speaker 1: but the federal courts, and ICE is having to respond
Speaker 1: to all of these various court orders at the same time,
Speaker 1: it's trying to have a record number of people in detention.
Speaker 1: There's currently something like seventy three thousand foreign nationals in detention.
Speaker 1: That number normally is something like forty thousand, thirty five thousand,
Speaker 1: but now we're up to about seventy three thousand per day.
Speaker 1: And so you have the government lawyers, we have something
Speaker 1: like eighty or ninety of these cases that they're trying
Speaker 1: to handle, all at the exact same time, and the
Speaker 1: ICE agents who are dealing with the fact that these
Speaker 1: foreign nationals may have been in that location when the
Speaker 1: habeas was filed, but they might have gotten moved because
Speaker 1: they needed to move the person to a different facility,
Speaker 1: either because of real reasons or procedural imaginations. I mean,
Speaker 1: there could have been beaesels on a facility and they
Speaker 1: needed to move them, or there could have been a
Speaker 1: glut of people that were in one facility, an overpopulation,
Speaker 1: so you need it to move. And so the point
Speaker 1: is a lot of things conspire together when you don't
Speaker 1: build out this infrastructure proportionally, all at the same time,
Speaker 1: such that there's a lot of ignoring of these orders
Speaker 1: by necessity and also by choice. I'm not going to
Speaker 1: discount that there's by choice as well, but it's not
Speaker 1: all by choice. Some of it is by necessity in
Speaker 1: terms of the way they're doing it, and so it's tough,
Speaker 1: and it's tough for the courts to unwind all of that,
Speaker 1: and the judges are getting frustrated, and especially if they
Speaker 1: feel like their orders are being completely ignored. Unless the
Speaker 1: Supreme Court steps in very quickly and does something, it's
Speaker 1: going to end one of three ways. Either it will
Speaker 1: end with all of this being enjoined and restoring back
Speaker 1: to the original system where the bond situation exists again,
Speaker 1: and it goes back to the immigration court and everybody
Speaker 1: remembers the old system. That's one way. It could end
Speaker 1: with nobody getting bond of any kind if they've crossed illegally,
Speaker 1: and then that's just the law of the land. And
Speaker 1: then the problem subsides because there won't be content of
Speaker 1: court because the federal Court won't be involved in this anymore.
Speaker 1: That's the second solution, or the third solution will be
Speaker 1: the Supreme Court doesn't do anything, and we just end
Speaker 1: up with a constitutional crisis, and that would be the
Speaker 1: worst of all worlds. And so hopefully the Supreme Court
Speaker 1: will step in and bring some order into this process
Speaker 1: as soon as possible so that we don't end up
Speaker 1: with this constitutional crisis.
Speaker 2: And attorneys across the country are struggling to find their
Speaker 2: detained clients, who are often being moved to out of
Speaker 2: state facilities and bounced around by ice. An ACLU lawyer
Speaker 2: called it a game of whack a mole from the beginning.
Speaker 2: You can't find your clients. If you find them, you
Speaker 2: can't access them because there are no phones or visitation rooms.
Speaker 2: And if you do find them, it takes weeks to
Speaker 2: contact them, and sometimes they're just moved and deported.
Speaker 1: Absolutely, if you are a representative of a person, a
Speaker 1: foreign national who's in immigration detention, it's the most challenging
Speaker 1: time it's ever been to do that. And as I said,
Speaker 1: it's really for the foreign national to say that they
Speaker 1: have a process that is meaningful in the sense that
Speaker 1: when you're a criminal. Let's say, when you're a criminal
Speaker 1: and you're in detention, you're usually in detention within some
Speaker 1: reasonable space from your attorney, and a criminal defense can
Speaker 1: be planned and a criminal defense can be implemented in
Speaker 1: a court of law. Here is, if you lived in
Speaker 1: I don't know, Houston, or you lived in Atlanta, or
Speaker 1: you lived in New York, you could be detained in
Speaker 1: Kansas or in Louisiana or something and then whatever lawyer
Speaker 1: you would have procured wouldn't have done you any good
Speaker 1: because that lawyer is not going to travel to Louisiana
Speaker 1: or Mississippi or somewhere else in order to be able
Speaker 1: to reach you. And then even if they did, you
Speaker 1: might be moved the next day. And so the question
Speaker 1: of how you actually conduct the defense when you can't
Speaker 1: speak to a lawyer is very, very complicated. And this
Speaker 1: is yet another issue that is going to have to
Speaker 1: come to some resolution because people are going to start
Speaker 1: saying that they've had due process violations within these contexts,
Speaker 1: and the courts are going to have to decide what
Speaker 1: is the process that you're due in these situations.
Speaker 2: Even when ICE does release detainees, judges are finding that
Speaker 2: they're releasing them in other states without their papers or
Speaker 2: phones and with just the clothes on their back. So
Speaker 2: some judges have been issuing very detailed orders. For example,
Speaker 2: one Minnesota judge said ICE had to release a detainee
Speaker 2: one in Minnesota, two with all personal documents and belongings
Speaker 2: such as driver's license, cell phone, three without conditions such
Speaker 2: as ankle monitors or tracking devices, and four with all
Speaker 2: clothing and outer wear he was wearing at the time
Speaker 2: of detention or other proper winter attire.
Speaker 1: It is very complicated, no doubt. And this is something
Speaker 1: I remember from the very first case that I won
Speaker 1: with a client in detention, a long long time ago.
Speaker 1: I won't date myself. I remember speaking to a senior
Speaker 1: lawyer and I said, what do I do now? And
Speaker 1: they said, no, when you win a case and your
Speaker 1: client is in detention, what ICE does is they just
Speaker 1: opened the door of the facility, and so you better
Speaker 1: go get them. Because my client was in the middle
Speaker 1: of the Everglades, and so it was just a matter
Speaker 1: of that they either are going to walk from the
Speaker 1: middle of the Everglades into civilization or somebody has to
Speaker 1: go get them. This is not new. This has always
Speaker 1: been that way. That all ICE does is open the
Speaker 1: door of the detention facility and say, okay, walk out
Speaker 1: of here. And so as more and more people are detained,
Speaker 1: and they're detained at more remote locations, people are saying, well,
Speaker 1: I can't just drive to go get this person. That's
Speaker 1: not a thing anymore. Because I'm an attorney in Minneapolis
Speaker 1: and my client is in Louisiana. So what do I
Speaker 1: do now? And so this is why you're seeing some
Speaker 1: of these orders.
Speaker 2: Now you've got a trip to the Everglades out of
Speaker 2: that case, Leon, thanks so much as always. That's Leon
Speaker 2: Fresco of Holland and Night coming up next, And appeals
Speaker 2: court is weighing undoing a block on federal grant freezes.
Speaker 2: I'm June Grosso and you're listening to Bloomberg. The DC
Speaker 2: Federal Appeals Court seems skeptical that a court order blocking
Speaker 2: the Trump administration from freezing trillions of dollars in grant
Speaker 2: funds was still needed. That was after a Justice Department
Speaker 2: lawyers said the government would have quote no conceivable reason
Speaker 2: to do it again. The three judge panel heard arguments
Speaker 2: in a challenge by nonprofit organizations to the administration's pause
Speaker 2: last year on financial assistance programs, the move that prompted
Speaker 2: widespread confusion across agencies. Joining me is Bloomberg Law reporter
Speaker 2: Suzanne Monnac. Suzanne tell us about the underlying dispute.
Speaker 4: Explain what was it handy, what was.
Speaker 2: It issue here? I mean the original court order.
Speaker 5: So the DC Circuit, the Federal Appeals Court here in Washington,
Speaker 5: is considering what to do with a lower court ruling
Speaker 5: from really about a year ago that had barred the
Speaker 5: Trump administration from freezing federal assistant funds nationwide. And these
Speaker 5: Federal assistants funds were grants that would go to nonprofits
Speaker 5: or small businesses. And shortly after we saw President Donald
Speaker 5: Trump returned to office, they issued a memo that ended
Speaker 5: up sparking quite a bit of chaos and confusion to
Speaker 5: federal agencies that these funds vendoral assistance programs needed to
Speaker 5: be reviewed for alignment with other executive orders. It resulted
Speaker 5: in a pause to trillions of dollars worth of funding,
Speaker 5: really at the expense of quite a few companies or
Speaker 5: nonprofits that rely on those funds.
Speaker 2: So a lower court judge had issued a temporary injunction
Speaker 2: to stop the government from freezing the funds.
Speaker 4: That's correct.
Speaker 5: So we saw a lower court judge, which was Judge
Speaker 5: Lauren Alikhon and the DC District Court had specifically prohibited
Speaker 5: the government from implementing any quote unilateral, non individualized directives
Speaker 5: end quote with.
Speaker 4: The respective federal funds.
Speaker 5: So that really applied to a broad based freeze on
Speaker 5: federal funding as opposed to individual friezes of certain funds.
Speaker 5: And so that was really what was that issue or
Speaker 5: largely part of what was that issue during this appeals
Speaker 5: court hearing that we had last week, and what the
Speaker 5: d C Circuit is now considering is whether such a
Speaker 5: broad order has a place today.
Speaker 2: There were hearings around the country about these friezes of
Speaker 2: federal funds. How is this freeze different from some of
Speaker 2: the other ones we heard about.
Speaker 5: Of course, we saw a lot of litigation that was
Speaker 5: prompted when this funding freeze happened, largely just because there
Speaker 5: was so much confusion. I mean, the judge herself described
Speaker 5: chaos in this funding freeze. The Trump administration did seek
Speaker 5: to walk it back shortly after they issued the initial
Speaker 5: memo that caused so much confusion by issuing a Q
Speaker 5: and A that stopped to clarify that this was not
Speaker 5: intended to be a full funding freeze, but rather something
Speaker 5: for individual agencies to only freeze funds that were potentially
Speaker 5: in conflict with executive orders. So there was just confusion
Speaker 5: really about the scope initially. But yes, of course we
Speaker 5: saw a lot of litigation across spurts. This is specifically
Speaker 5: the DC case, and that one was about the funding
Speaker 5: freeze overall.
Speaker 4: As opposed to grant freeze.
Speaker 2: What was the main issue that the DC appellate judges
Speaker 2: were concerned with.
Speaker 5: The Trump administration is now on appeal seeking to have.
Speaker 4: This lower court order lifted.
Speaker 5: They're arguing that essentially it's not needed anymore, that it's relevant,
Speaker 5: and that it's causing problems at their agency. Specifically, they've said,
Speaker 5: you know, this funding freeze that we did was really
Speaker 5: specific to the fact that the new administration had just
Speaker 5: come into office. We wanted to do a full review
Speaker 5: of the money that was going out. This wouldn't apply again,
Speaker 5: like this just would never happen again. And they claimed
Speaker 5: that we saw the government lawyer or tell the court
Speaker 5: that it's led to some confusion about what the White
Speaker 5: House's Budget Office is allowed to do.
Speaker 4: Are they allowed to freeze what funds? What other funds?
Speaker 5: And so they said to the court, even if you
Speaker 5: don't choose to fully, you know, order this lower court
Speaker 5: ruling to be lifted, that perhaps you would order it
Speaker 5: to be clarified so that we could have clarity that
Speaker 5: it really only applies to a full one hundred percent
Speaker 5: funding freeze as opposed to more tailored funding pauses. That
Speaker 5: way they may be interested in doing, and the court
Speaker 5: seemed somewhat i would say, receptive to that argument that
Speaker 5: perhaps this preliminary injunction from a year ago just really
Speaker 5: doesn't apply anymore. It was, you know, in its time,
Speaker 5: and we saw the appeals court judges even say, you know,
Speaker 5: we understand why the lower court did this given the
Speaker 5: information it had before it, but now, you know, given
Speaker 5: what we're hearing from the government, it's been a year,
Speaker 5: We're not sure that it makes sense that this would
Speaker 5: still be in place. It was a temporary order after all.
Speaker 2: So if the government says we're not going to do
Speaker 2: a funding freeze like that anymore, then why do they
Speaker 2: need the lower court order to be specific about what
Speaker 2: they can and cannot freeze.
Speaker 5: That's a great question, and that was something that we
Speaker 5: really saw the attorney for the nonprofits who's with Democracy
Speaker 5: Forward Foundation press at the hearing. Well, if she's you know,
Speaker 5: she said, if the government is saying that we don't
Speaker 5: plan to freeze anything fully, then why did they care
Speaker 5: about this injunction being lifted. I think where I kind
Speaker 5: of saw the government lawyer try to make that explanation
Speaker 5: was that they were arguing it was causing confusion at
Speaker 5: the Office Management and Budget, and so just the way
Speaker 5: that the lower court order was phrased, it was seeming
Speaker 5: to be interpreted as a full funding freeze, but I
Speaker 5: guess there was some you know, confusion about whether or
Speaker 5: not it would always be interpreted that way, and so
Speaker 5: they were asking for at a minimum, more clarity from
Speaker 5: the appeals court. But that's correct, And that was really
Speaker 5: also one thing that Judge Bradley Garcia, who's one of
Speaker 5: the judges on the panel, you know, specifically raised that
Speaker 5: if we were to see the Trump administration try to
Speaker 5: freeze a specific you know, grant fund something that say
Speaker 5: didn't align with executive orders on DEI initiatives or environmental issues,
Speaker 5: that kind of thing, that it wouldn't even be covered
Speaker 5: under the current injunction because the current injunction only applies
Speaker 5: to a full federal freeze, as he interpreted it, and
Speaker 5: wouldn't apply to a more narrow function. And he said,
Speaker 5: you know, it's hard to see what maintaining this injunction
Speaker 5: would do to protect your clients, the nonprofits. So that was,
Speaker 5: you know, something that we saw discussed as well. So
Speaker 5: it was just this idea that this injunction as it
Speaker 5: was issued might have made sense at the time, it
Speaker 5: perhaps doesn't anymore. But then, of course we did see
Speaker 5: the attorney with Democracy Forward say, you know, feel that
Speaker 5: the government had not given enough assurances that this wasn't
Speaker 5: going to be repeated the government said, government's lawyer said
Speaker 5: things like, you know, there's no reason why we would
Speaker 5: do this again, but did stop somewhat short of saying specifically,
Speaker 5: I promise we will not do this again. And that's
Speaker 5: really what the nonprofits attorney wanted to hear.
Speaker 2: In order for the judges to declare this mood, do
Speaker 2: they have to believe that the Trump administration is true
Speaker 2: to its word and it's not going to initiate any
Speaker 2: of these.
Speaker 4: Freezes, not necessarily.
Speaker 5: And that's one thing that it sounds like the judges
Speaker 5: did consider was they said, you know, if we take
Speaker 5: them at their word and we you know, go ahead
Speaker 5: and order that this injunction be lifted, and then the
Speaker 5: government were to go turn around and do the exact thing,
Speaker 5: there would be a legal remedy for that. And so
Speaker 5: I think in a way they were that was part
Speaker 5: of their thinking was, you know, even if we did
Speaker 5: lift this injunction, there's still recourse for you to come
Speaker 5: back to court if the government turns around and says,
Speaker 5: never mind, we're doing exactly the thing that we did
Speaker 5: a year ago.
Speaker 4: So there would still be legal recourse there.
Speaker 5: So it almost seems that it doesn't matter, or at
Speaker 5: least in the view of the appeals court judges, you know,
Speaker 5: because there might be legal resource either way, whether the
Speaker 5: injunction were still in effect or not.
Speaker 2: So did it seem like they were leaning toward the
Speaker 2: government in the hearing.
Speaker 5: It seemed to me that my read of that panel
Speaker 5: was that they were leaning to the government at least,
Speaker 5: you know, really seemed to be receptive to the argument
Speaker 5: that this injunction. You know, this many months later, and
Speaker 5: given how much the situation has changed on the ground
Speaker 5: that perhaps this isn't the one that makes sense to
Speaker 5: have anymore. But certainly we'll see there's always a risk
Speaker 5: to trying to read the tea leaves in court.
Speaker 2: Let's turn now to the Federal Judiciary's Research Office removing
Speaker 2: part of a climate section from an updated manual on
Speaker 2: Scientific Evidence after backlash from Republican appointed attorneys general. So
Speaker 2: they've had this manual and they're just updating it.
Speaker 4: That's right.
Speaker 5: This is a manual they've issued before. This is the
Speaker 5: fourth edition. The ord though, was back in twenty eleven,
Speaker 5: so it's been a while since we've seen an update.
Speaker 5: And of course, when it comes to scientific evidence, these
Speaker 5: things move quickly, so we see topics in this fourth
Speaker 5: edition manual that include, for example, artificial intelligence. And the
Speaker 5: idea is to provide judges with a little bit more
Speaker 5: information when they're considering what evidence might be allowed to
Speaker 5: be you know, included in you know, in litigation, like
Speaker 5: just to kind of help them handle that evidence, to
Speaker 5: know what would be an expert, what are a good
Speaker 5: expert qualifications, just to give them an overview of some
Speaker 5: of the issues that might be coming before them.
Speaker 2: More than two dozen Republican appointed Attorneys General objected.
Speaker 4: To this, that's correct.
Speaker 5: They specifically objected to a section within the scientific manual
Speaker 5: that was focused on climate science, written by two professors
Speaker 5: affiliated with Columbia University who wrote, you know, eighty plus
Speaker 5: ninety plus pages about climate science, s, greenhouse gases, you know,
Speaker 5: just various concepts overview of climate science and also and
Speaker 5: really what I think the Attorney General took issue with
Speaker 5: a bit on the role of humans in climate change.
Speaker 2: So by doing this, by taking this out, then the
Speaker 2: federal judiciary is bowing to the climate deniers who think
Speaker 2: that humans don't have anything to do with climate change.
Speaker 4: It would appear that way.
Speaker 5: The Attorney's General argued that this was a disputed, you know,
Speaker 5: area of science, and that they didn't feel that the
Speaker 5: researchers had you know, done a good enough job to
Speaker 5: include you know, maybe more climate skeptics, you know, had
Speaker 5: you know, acted like a human role in climate change
Speaker 5: was you know, a given, and that they were concerned
Speaker 5: that this would sway or favor, say environmental advocates in
Speaker 5: climate related litigation where they may be seeking to hold
Speaker 5: a government, local government, or a company accountable for their
Speaker 5: environmental impact. And I think that's where they felt like
Speaker 5: this would maybe put a thumb on the scale. I think,
Speaker 5: as they said, in those types of cases. I spoke
Speaker 5: to one of the researchers, and you know, she said
Speaker 5: that her section had gone through all of the same
Speaker 5: rigorous peer review as the other chapters that were left in.
Speaker 2: And who is it that makes the final decision on.
Speaker 5: This decision came from, at least as it was publicized,
Speaker 5: the Federal Judicial Center, which is the research arm of
Speaker 5: the Federal Judiciary. So we saw really a one sentence
Speaker 5: letter from Judge Robin Rosenberg, who's the chair of the FJAC,
Speaker 5: notifying the leader of the Attorney's General Group that the
Speaker 5: section had been omitted. As she phrased it, there was
Speaker 5: not any detail about what you discussion had gone on,
Speaker 5: or you know, what considerations were taken into account. We
Speaker 5: really just have that one page letter and the FJAC
Speaker 5: decline to comment further.
Speaker 2: It seems like they folded pretty quickly. Thanks so much, Suzanne,
Speaker 2: always interesting to talk to you. That's Bloomberg Law reporter
Speaker 2: Suzanne Monyac, and that's it for this edition of the
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
Speaker 2: legal news on our Bloomberg Law podcast. You can find
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Speaker 2: into The Bloomberg Law Show every weeknight at ten pm
Speaker 2: Wall Street Time. I'm June Grosso and you're listening to
Speaker 2: Bloomberg