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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Never in my life have I had a problem that

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Speaker 2: I did not see an ended.

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Speaker 3: Two I don't see an ending to this.

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Speaker 4: New York City Mayor Eric Adams didn't mince words when

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Speaker 4: describing the crisis the city is facing because of the

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Speaker 4: more than one hundred thousand asylum seekers. The Adams administration

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Speaker 4: estimates that ten thousand asylum seekers are arriving each month

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Speaker 4: bust in from Texas and that it will cost the

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Speaker 4: city about twelve billion dollars over the next three years.

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Speaker 3: This issue will destroy New York City.

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Speaker 4: My guest is Leon Fresco, a partner at hollanden Knight.

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Speaker 4: He was the former head of the Justice Department's Office

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Speaker 4: of Immigration Litigation during the Obama administration. Leonn Adams says

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Speaker 4: the lack of support from the federal government is alarming.

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Speaker 4: He's reached out to the Biden administration. The bidy administration

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Speaker 4: has criticized what he's done, saying there's no exit strategy.

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Speaker 4: Why isn't the Biden administration stepping in to help out

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Speaker 4: in New York City?

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Speaker 3: This is a fascinating question, and this is where I

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Speaker 3: think there's been a major lack of congruent in some

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Speaker 3: things that's happened, and it's not really explainable, which is this,

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Speaker 3: Eric Adams has a problem with people arriving in New

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Speaker 3: York with no plan for what they're going to do,

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Speaker 3: and that problem isn't supposed to exist in the immigration

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Speaker 3: law in this sense. Technically, technically, there's a lot of

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Speaker 3: debate about whether you can even be led even to

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Speaker 3: the interior of the United States. Fund we can have

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Speaker 3: that debate. There's a lot of people who say, no, no, no,

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Speaker 3: you have to either be debained or made to way

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Speaker 3: to Mexico. You shouldn't be allowed in the interior. Well,

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Speaker 3: the Supreme Court I said that's permitted, so fine, people

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Speaker 3: are allowed in the interior. But there's another important points

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Speaker 3: to be made here, which is that Ice, even under

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Speaker 3: the Obama administration, used to have a policy that said,

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Speaker 3: if you don't have anywhere to go, you're going to

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Speaker 3: be a nice detention. And I don't know where that

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Speaker 3: ended up suddenly being swept under the carpet or being

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Speaker 3: eroded in the water. I don't know where that happened.

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Speaker 3: But I do think Eric Adams has an argument to make,

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Speaker 3: other than the fact that people don't like people being

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Speaker 3: placed in ice custody, that if you come to America

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Speaker 3: and you have no plan of any human being who

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Speaker 3: will care for you while you're here, a friend, a cousin,

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Speaker 3: an uncle, a grandparent, somebody who knows you, then yes,

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Speaker 3: you have to be places into ice custody. You can't

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Speaker 3: be in a hotel or on the street or something

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Speaker 3: of this nature. That's never what's supposed to happen. The

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Speaker 3: whole point of ICE releasing people from their custody was

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Speaker 3: because they had someone who is going to make sure

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Speaker 3: that these individuals would attend their court proceeding and would

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Speaker 3: move on to the next steps of their taste, not

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Speaker 3: that you would need city housing or you might sleep

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Speaker 3: on the street or something of this nature.

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Speaker 4: These migrants being shipped to New York City are here legally, right.

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Speaker 3: What happens is they come to the borders, they are

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Speaker 3: placed into expedited removal proceedings, meaning that you arived here,

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Speaker 3: why are you here? And they say, I don't have

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Speaker 3: a reason to be here other than I'm asking for asylum,

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Speaker 3: So then they get places to expedite the removal proceeding

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Speaker 3: They are then told the only way you can say

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Speaker 3: if you're asking for asylum is you have to establish

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Speaker 3: a credible fear that you will be persecuted on the

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Speaker 3: basis of your race, religion, national origin, political opinion, or

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Speaker 3: social group. They then meet this criteria, and when they

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Speaker 3: meet this criteria, they are then released from detension and

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Speaker 3: they are just put into the state of Texas, whereby

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Speaker 3: now what the new rental is. Greg Abbotson takes these

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Speaker 3: people upon relief from detension and puts them on a

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Speaker 3: bus and sends them to New York or Chicago or

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Speaker 3: Los Angeles and Philadelphia. That's the final rental. The previous

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Speaker 3: state of affairs was they just the door opens of

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Speaker 3: the detention facility and they're just sucked in Texas, and

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Speaker 3: that's what Texas said, Well, we don't want any more

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Speaker 3: of that. But now the door opens of the facility

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Speaker 3: and they are placed on a bus to some other locations.

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Speaker 3: And the point is they're supposed to attend their trial

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Speaker 3: quote unquote about whether they will win a fium or not.

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Speaker 3: But the point was, I just was never supposed to

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Speaker 3: release you from the tension if you didn't actually have

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Speaker 3: a plan of action. Of where you would say if

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Speaker 3: you were released from detension, and for some reason that

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Speaker 3: appears to have changed, and that I think is creating

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Speaker 3: a consequence that's completely different than anything we've seen before,

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Speaker 3: because the bear minimum of what used to happen with

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Speaker 3: migration into the United States if people have some sort

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Speaker 3: of plan of who they would stay with when they

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Speaker 3: arrived here. And it appears that for whatever reason, that

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Speaker 3: has broken down. And I do think to the extent

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Speaker 3: of a message is spend, don't come here unless you

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Speaker 3: have some plan, because otherwise you'll be placed in nice destension.

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Speaker 3: I do think that's a youthful Venturer's.

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Speaker 4: Defensive in your view, What has Adams done wrong?

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Speaker 3: Well, there's a couple of things. Number One, you have

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Speaker 3: to figure out when people are arriving in your city logistically,

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Speaker 3: person of all, and there are some cities. LA County's

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Speaker 3: doing this in an amazing passion. They're really handling this

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Speaker 3: with ease. When you compare this to New York. You

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Speaker 3: first have to figure out is there some place that

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Speaker 3: you can go to? And if you can go to

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Speaker 3: that location, it's much cheaper, even if it's an uber

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Speaker 3: ride of one hundred dollars put them in an uber

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Speaker 3: for one hundred dollars and send them there. Then have

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Speaker 3: them in a shelter or a hotel. That part logistically

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Speaker 3: has not been handled very well. So that's the first

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Speaker 3: that is identifying are there places people can be sent

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Speaker 3: to immediately send them there. I understand that that's the

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Speaker 3: drain on the city's resources, but it's a larger drain

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Speaker 3: to have shelters at hotels and things of the nagers.

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Speaker 3: That's number one. Then number two, if people are coming

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Speaker 3: to New York and they have no plan of any

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Speaker 3: kind of where they want to go, so that there's

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Speaker 3: nowhere you can transport them to, then that's where what

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Speaker 3: New York has to do is starts to work with

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Speaker 3: ICE in that situation. Because the problem is there's a

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Speaker 3: government statue, it's not even a regulations, the statutes that

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Speaker 3: says if you apply for asylum, you cannot work for

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Speaker 3: one hundred and eighty days. Your case has to be

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Speaker 3: tending for at least one hundred and eighty days before

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Speaker 3: you can work. And so for those one hundred and

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Speaker 3: eighty days, are you really going to be seeing people

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Speaker 3: in hotels? The whole point of this one hundred and

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Speaker 3: eighty day asylum rule was to prevent what was called

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Speaker 3: a magnet where people would come to the US to work.

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Speaker 3: But imagine if the magnet now is not only you

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Speaker 3: can't work, but you're in a hotel for one hundred

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Speaker 3: and eighty days. Well, that's the reverse effect of the

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Speaker 3: whole purpose of not letting people work in the first place. Now,

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Speaker 3: the problem Adams has is by the administration cannot change

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Speaker 3: a statue, and so they're stuck. Everybody's stuck here. Nobody

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Speaker 3: can work when they first come to the United States.

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Speaker 3: And so this is why the solution needs to be

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Speaker 3: one much more year towards sending the message to people

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Speaker 3: that it will not be tolerated. That people simply come

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Speaker 3: here and expect to stay in a hotel. That's not

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Speaker 3: going to be something that's tolerated. People will have to

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Speaker 3: be an immigration detention unless they have a sponsor that's

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Speaker 3: willing to take care of it.

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Speaker 4: They tried sending leaflets to Texas basically you're not welcome

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Speaker 4: in New York City.

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Speaker 1: That didn't work. Apparently, what should he do?

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Speaker 4: Right?

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Speaker 3: He needs students, coordinate with a Department of Homeland Security

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Speaker 3: and get them to be much more active in Texas

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Speaker 3: to say to people, do you have a plan and

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Speaker 3: a sponsor for remaining in the United States, And if

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Speaker 3: they say no, then instead of putting them outside of

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Speaker 3: the facility where Texas can then place them on a

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Speaker 3: bus and take them to New York, those people get

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Speaker 3: placed into ice attention until they can get a work permit,

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Speaker 3: and then with the work permit they can be released

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Speaker 3: and they can work and pay for themselves. But there

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Speaker 3: should not be a scenario where people get to be

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Speaker 3: released from immigration custody in Texas unless they have a

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Speaker 3: US sponsor that's willing to take them. And I think

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Speaker 3: that's the policy thing that Eric Adams probably needs to

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Speaker 3: advocate for now. Whether he does that publicly where he

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Speaker 3: would get criticism from the immigration advocates or privately doesn't matter.

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Speaker 3: But I think that's the only thing that will bring

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Speaker 3: temporary release to New York. I don't think billions of

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Speaker 3: dollars to New York is fixing anything in terms of

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Speaker 3: the larger situation, because I think you have to come

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Speaker 3: back this new issue. This is not a long existing phenomenon.

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Speaker 3: This is a relatively new issue of people coming to

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Speaker 3: the United States with absolutely nobody that they know of

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Speaker 3: any kind saying that they expect to be housed in

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Speaker 3: some hotel or facility. That's something completely new, and so

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Speaker 3: the government needs to address this so that this doesn't

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Speaker 3: become a long standing phenomena.

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Speaker 1: Is this helping Texas sending all these people up here?

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Speaker 3: From Texas's perspective, this is getting everybody an equal skin

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Speaker 3: in the game, so that pressure gets placed on the

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Speaker 3: Body administration to adopt the remain in Mexico policy that

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Speaker 3: Trump has. That's essentially the endgame for Texas is if

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Speaker 3: you can then get Eric Odams of set In, the

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Speaker 3: mayor of Los Angeles and the mayor of Philadelphia at

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Speaker 3: the mayor of Chicago, and they all drew a bider

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Speaker 3: and say we give up, do something, and then Biden

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Speaker 3: has to do remain in Mexico. Then, from Texas's perspective, okay,

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Speaker 3: that's a big please, but is not going to happen.

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Speaker 3: I don't know, but certainly to the extense, that's the

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Speaker 3: solution that the cities are offering is give us billions

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Speaker 3: of dollars to put people in hotels. I don't know

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Speaker 3: that that's the best solution. I think you have to

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Speaker 3: put more onus on people coming here to the United

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Speaker 3: States to find their own housing solutions, and if they're

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Speaker 3: unwilling or unable to find their own housing solutions. That

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Speaker 3: was the entire reason the concept of immigration's attention was created.

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Speaker 4: Len I want to turn down to DOCA. For the

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Speaker 4: second time, a Texas federal judge has declared DOCA illegal.

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Speaker 4: It's a blow to the Biden administration, which issued regulations

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Speaker 4: to codify DACA in an effort to preserve the legality

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Speaker 4: of the program, which the young immigrants known as Dreamers

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Speaker 4: from deportation, but Texas and eight other Republican led states

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Speaker 4: continued to challenge DOCA in court. The issue will likely

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Speaker 4: be decided by the Supreme Court, the third time the

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Speaker 4: program's fate will be before the Court.

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Speaker 1: Seems like we've.

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Speaker 4: Been hearing about DOCA and court rulings for years and

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Speaker 4: years since it was first launched. Why so many hearings,

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Speaker 4: Why no resolution?

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Speaker 3: Well, this case has gone through several stages, and so

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Speaker 3: what happened and this might actually be something that the

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Speaker 3: Supreme Court touches upon even when it ends up finally

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Speaker 3: reviewing DACA is that for many years, the DOCCA program

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Speaker 3: itself was actually not challenged by the State of Texas.

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Speaker 3: The State of Texas only got involved in challenging things

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Speaker 3: when there was a second program at the very end

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Speaker 3: of the Obama administration called da FAV which would have

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Speaker 3: given legal stitus to the parents of undocta ment to children,

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Speaker 3: and that would have been about a four million person

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Speaker 3: legal status program. That's when the State of Texas gets

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Speaker 3: involved and they end up in joining the program. The

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Speaker 3: Obama administration ends, that's the end of it, and then

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Speaker 3: the question happens, well, what about dot CO, And this

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Speaker 3: is where Jeff Session and the Trump administration tries to

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Speaker 3: get the State of Texas to SEO to actually eliminate

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Speaker 3: doc CO, because the State of Texas actually wasn't interested

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Speaker 3: in eliminating DOCA because of the sympathetic nature of the

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Speaker 3: population and a lot of the problems that DOCTA faults.

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Speaker 3: But nevertheless, Attorney General Jet Sessions that's design convinces the

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Speaker 3: State of Texas to su and the Attorney General Jet

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Speaker 3: Sessions also tries to eliminate DACA on his own. The

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Speaker 3: Supreme Court says that the way he did it was illegal,

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Speaker 3: so it gets kicked back to the Department of Homeland Security.

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Speaker 3: In the meantime, this lawsuit then restarts because they were

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Speaker 3: waiting for the report to do their decision on what

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Speaker 3: Jeff Sessions had done. And this lawsuit restarts. But the

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Speaker 3: Trump administration then ends, which brings in the body of

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Speaker 3: the Administration, which brings in a new DOCTA rule. And

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Speaker 3: so now we're finally in September fourteen, twenty twenty three,

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Speaker 3: at the culmination of all of this, where we're now

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Speaker 3: at a direct shot to the Supreme Court about the

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Speaker 3: final choices nobody has ever analyzed, which is it DOCA

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Speaker 3: legal tell us.

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Speaker 4: About these Homeland Security Department regulations that the Buying administration

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Speaker 4: issued last year.

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Speaker 3: Sure, so here's the issue. So when DOCA was announced

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Speaker 3: originally in twenty twelve, it was done by a memo.

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Speaker 3: It was not a big long government regulation where there's

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Speaker 3: a notice of proposed rulemaking, there are sixty days of comment,

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Speaker 3: there's a lot of analysis. It wasn't done that way.

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Speaker 3: It was done as a memo, and that memo nobody

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Speaker 3: bothered it for many years. But then the Obama administration

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Speaker 3: did something called DAPA, which is what I just talked about,

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Speaker 3: and they did that by a memo also, and so

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Speaker 3: in the state of Texas food they said, hey, you

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Speaker 3: didn't do this by notice in comment rulemaking, and the

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Speaker 3: courts agreed, and that was the main reason that the

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Speaker 3: DAPPA program failed. So the idea was, well, if DAPPA

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Speaker 3: and DACA are essentially the same programs, just yeared toward

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Speaker 3: different people, then this needed to also be done by

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Speaker 3: a rule which had notice in comment rulemaking. And so

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Speaker 3: the Biden administration fixes this argument. So now there is

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Speaker 3: no more of an argument that DOACA is illegal because

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Speaker 3: there was no regulation with notice in comment rulemaking, because

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Speaker 3: in fact, there was a regulation issued by the Biden

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Speaker 3: administration on October thirty first, twenty twenty two, with notice

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Speaker 3: and comment and all the official rulemaking. But the question

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Speaker 3: then became for the court, well is that regulation doing

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Speaker 3: something but legal? And years where the Court comes down

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Speaker 3: and says, no, this regulation is not doing something that's legal,

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Speaker 3: because you cannot create a program for people who don't

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Speaker 3: have status and give them status, especially authorizations at work.

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Speaker 3: And so that's the issue that's left to be decided

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Speaker 3: by the Supreme Court.

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Speaker 4: The judge said the creation adoption of the final rule

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Speaker 4: took no steps to avoid any of the substantive pitfalls

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Speaker 4: that have been pointed out, perhaps because DHS did not

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Speaker 4: want to or perhaps because it was not possible to

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Speaker 4: do so and retain the DOCA program as currently constituted.

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Speaker 1: Do you think that either of those is true?

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Speaker 3: Well, I think it actually is true in the sense

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Speaker 3: that there are two parts to the backup program. The

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Speaker 3: first part is having a set of criteria for people

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Speaker 3: who cannot be deported, and that part is very important,

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Speaker 3: but it's not the only part, and it's not a

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Speaker 3: program that people would be happy with if that was

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Speaker 3: all that was led. So there's a second step to

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Speaker 3: the program, which is saying, once we've designated this group

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Speaker 3: that cannot be deported, this group also can work while

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Speaker 3: they're here legally in the United States. And so this

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Speaker 3: is the part that jo Jaanen really takes with saying, look,

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Speaker 3: you never get around the thing that these people can't work,

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Speaker 3: and so the fact that they can work is the

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Speaker 3: main problem I had with the program, and this is

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Speaker 3: what doesn't get fixed in the regulation. Nor is it

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Speaker 3: fair to say that DASS would want a program where

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Speaker 3: those pumps cannot work, because the whole sort of brilliance

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Speaker 3: of the doctor program visa VI that people in it

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Speaker 3: is that they can live a normal life. They have

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Speaker 3: this work permit. This work permit allows them to get

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Speaker 3: a driver's life, It allows them to get a Social

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Speaker 3: Security number, It allows them to get a bank account,

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Speaker 3: allows them to go to school, it allows them to work.

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Speaker 3: And so if you took away that and just said

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Speaker 3: this is a program of non deportation, it seems us

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Speaker 3: to be DACA as the docas young people know it

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Speaker 3: and experience it.

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Speaker 4: It. We've talked before about the executive branch and immigration.

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Speaker 4: Isn't this an executive branch function?

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Speaker 3: So that's what the court is going to have to decide.

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Speaker 3: They're going to have to decide to do components of it.

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Speaker 3: The first component, can you pick a group not to deport?

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Speaker 3: The Supreme Court has basically already decided this issue last

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Speaker 3: year in a case called Biden versus Texas about the

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Speaker 3: prosecutorial discretion guideline, where the Court said the State of

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Speaker 3: Texas doesn't have standing to look at these prosecutorial discretion guidelines.

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Speaker 3: And so that first part of DACA looks very very safe.

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Speaker 3: The second part about whether the people who are subjective

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Speaker 3: to non prosecution can then be given the ability to

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Speaker 3: work in the United States. That's really what the Court

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Speaker 3: is going to be looking at here, And so that's

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Speaker 3: just going to come down to one of two statues,

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Speaker 3: picking which one do you like. Do you like the

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Speaker 3: statue that says that if someone is undocumented, there's no

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Speaker 3: choice that the administration has other than encountering them and

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Speaker 3: removing them from the United States, Or do you like

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Speaker 3: the statutes that says that the Secretary of Homeland Security

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Speaker 3: has regulatory authorities for anyone work in the United States,

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Speaker 3: which would presumably include these young people. So that's the

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Speaker 3: choice the Supreme Court's going to have to make, is

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Speaker 3: which of those statues actually makes more sense in this

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Speaker 3: fact pattern. Can the Secretary of Homeland Security take a

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Speaker 3: slice of undocumented people and actually just out of thin

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Speaker 3: air or in this case of regulation, but nevertheless thin

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Speaker 3: air makes them legal enough so to seek they can

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Speaker 3: work in the United States.

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Speaker 1: Is the Supreme Court likely to take this case?

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Speaker 3: They don't have to take the case, but then that

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Speaker 3: would leave a nationwide injunction on new DOCA cases that

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Speaker 3: will be in place. Now what's fascinating is if they

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Speaker 3: then don't end up taking the case at all, then

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Speaker 3: that nationwide injunction expands to ending the program entirely, so

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Speaker 3: they can't be crafty and just say, well, we can

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Speaker 3: not take the case, and then only new cases won't

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Speaker 3: get taken. The way Judge Haynen's injunction is written is

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Speaker 3: until the Supreme Court does something, we will allow all

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Speaker 3: the people in the existing program to remain and keep

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Speaker 3: renewing their status, but we won't let any new people in.

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Speaker 3: But if the Supreme Court doesn't do anything, then the

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Speaker 3: nationwide injunction becomes permanent and doesn't allow anybody to even

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Speaker 3: renew their status. So whenever somebody's status expires, that's it

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Speaker 3: can't be renewed, and the DACA program ends gradually over

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Speaker 3: a course of years.

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Speaker 4: That Supreme Court case last year involving Texas that you

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Speaker 4: were talking about was kind of a surprise coming from

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Speaker 4: this Supreme Court. Do you have any inkling about the

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Speaker 4: Justice's feelings toward DACA.

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Speaker 3: Well, I mean, at the end of the day, we

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Speaker 3: know that there are three justices that are not going

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Speaker 3: to be on board in any way, shape or forb

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Speaker 3: with the program continuing, which is Alito, Thomas, and Gorss.

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Speaker 3: We know that from the prior cases. What we don't

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Speaker 3: know is Amy, Tony Barrett, and Tavanaughkavanaugh was trying to

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Speaker 3: read some compromise in the prior daca's decision, and by

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Speaker 3: the way, Roberts contains his mind also, so we don't know.

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Speaker 3: I mean, Roberts was pro keeping DACA the last time

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Speaker 3: around when the Trump administration tries to eliminate it. But

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Speaker 3: the real swing boat is going to be Tony Bears.

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Speaker 3: She has not opigned yet on where she is in DAKA,

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Speaker 3: and so maybe she will be sympathetic towards this group

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Speaker 3: and want to keep it in place. Some compromise will

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Speaker 3: be reached. What I'm hoping for where they miraculously say, hey,

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Speaker 3: look why did Texas state six years to file a

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Speaker 3: lawsuit on this, so many reliance interests came in place.

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Speaker 3: They don't get the right to food anymore, which is

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Speaker 3: what happened, And I would love for that to be

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Speaker 3: the decision here, because Texas originally didn't care about DACA

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Speaker 3: for so long and only came in when Jeff Sessions

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Speaker 3: forced them food. So to me, from that perspective, that

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Speaker 3: would be a wonderful way to end this. But it's

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Speaker 3: hard to know. Where she will ultimately come out.

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Speaker 1: Do the States even have standing to challenge.

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Speaker 3: DOC that's going to be enough. That's going to be

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Speaker 3: another question, because they don't have standing to challenge the

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Speaker 3: first part of DOCA, which is the prosecutorial decision not

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Speaker 3: to support a certain category that's already been decided. What

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Speaker 3: Ben Hainan says in this case, and he's correct, is

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Speaker 3: that in that decision by the Supreme Court, they specifically

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Speaker 3: exented programs that look like DOC not for saying that

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Speaker 3: there is standing, just for saying we don't know if

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Speaker 3: they're standing, get back to us on this. So that's

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Speaker 3: where we are right now. And then they literally use

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Speaker 3: the words, you know, we do not opign on whether

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Speaker 3: we have standing on a case where there's not just

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Speaker 3: proscutorial discression but prosecutorial discression plus the provision of benefits,

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Speaker 3: which is what happens here. And so that's not a

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Speaker 3: yes or no that they check with us later. And

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Speaker 3: so J Jayne says, well, that check with us later

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Speaker 3: means that there is standing and so we'll see, we'll

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Speaker 3: see if the Supreme Court agrees with.

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Speaker 4: That or I mean, should Congress be the one to

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Speaker 4: provide permanent protections to DACA recipients.

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Speaker 3: Well, for sure, that's the only way to actually provide

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Speaker 3: a country legal status that can't be taken away and

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Speaker 3: brought back and taken away and brought back. Absolutely, is

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Speaker 3: that going to happen anytime in the near future. Not,

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Speaker 3: Given what we're seeing on the border, and given what

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Speaker 3: that means for how Republicans ammigrates an issue, I find

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Speaker 3: it very unlikely.

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Speaker 4: So the next step is the Supreme Court. Thanks Leon,

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Speaker 4: that's Leon Fresco of Holland and Knight.

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Speaker 5: Republicans have uncovered serious and credible allegations into President Biden's conduct.

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Speaker 5: Taken together, these allegations paint a picture of a culture

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Speaker 5: of corruption. Now here's what we.

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Speaker 4: Know so far.

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Speaker 5: Through our investigations, we have found that President Biden did

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Speaker 5: lie to the American people about his own knowledge of

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Speaker 5: his family's foreign business dealings.

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Speaker 4: House Speaker Kevin McCarthy opened a formal impeachment inquiry into

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Speaker 4: President Biden for what the Republican leader called a culture

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Speaker 4: of corruption, saying there were serious and credible allegations against Biden.

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Speaker 4: The formal inquiry will focus on his son, Hunter Biden's

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Speaker 4: over these business affairs and whether the President was involved

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Speaker 4: in the dealings or benefited from them, and potentially other topics.

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Speaker 4: According to a House official familiar with the plans, the

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Speaker 4: impeachment announcement quickly stirred praise from Republican hardliners and scorn

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Speaker 4: from Democrats. The process begins with an investigation by three

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Speaker 4: House committees as Republicans seek to amass evidence for an

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Speaker 4: impeachment vote by the full chamber. If the House votes

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Speaker 4: to impeach Biden, the case moves to a trial of

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Speaker 4: the President and the Democratic led Senate. If House Republicans succeed,

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Speaker 4: Biden would be the fourth impeached US President Trump. His

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Speaker 4: predecessor was impeached twice by the House, but not convicted

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Speaker 4: in the Senate. My guest is constitutional law professor Susan

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Speaker 4: low Block of Georgetown Law School. Trump was impeached twice.

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Speaker 4: Some House Republicans have been pushing for an impeachment of

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Speaker 4: Biden since they assumed their House majority in January. Is

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Speaker 4: this what the Framer envisioned for impeachment?

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Speaker 2: No, I don't think so. Impeachment should be a scarcely used,

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Speaker 2: drastic remedy for really bad behavior. I testified when the

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Speaker 2: House was considering impeaching Clinton in the nineties. The House

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Speaker 2: had no idea what an impeachment was because it hadn't happened.

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Speaker 2: Impeaching and president hadn't happened in more than one hundred years.

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Speaker 2: So they had this group of nineteen con law professors

437
00:25:28,119 --> 00:25:31,280
Speaker 2: come testify and try and educate them about impeachment. And

438
00:25:31,640 --> 00:25:34,840
Speaker 2: I was one of them, and we literally conducted a

439
00:25:35,040 --> 00:25:38,440
Speaker 2: constitutional law class to try and teach them what it

440
00:25:38,640 --> 00:25:42,280
Speaker 2: is and why it should be only used rarely. And

441
00:25:42,400 --> 00:25:44,200
Speaker 2: I think we all said, you know, it should be

442
00:25:44,440 --> 00:25:47,800
Speaker 2: very rare, should not be used often. But if you

443
00:25:47,920 --> 00:25:52,040
Speaker 2: start impeaching Clinton, now, they're going to open a Pandora's box.

444
00:25:52,359 --> 00:25:55,400
Speaker 2: And I think that's exactly what happened. It did unleash

445
00:25:55,960 --> 00:26:00,680
Speaker 2: this weapon that is now too readily used, being used

446
00:26:00,920 --> 00:26:02,880
Speaker 2: indiscriminately and much too often.

447
00:26:03,280 --> 00:26:06,399
Speaker 4: Going back to Trump, do you even think that he

448
00:26:06,480 --> 00:26:08,080
Speaker 4: should have been impeached twice?

449
00:26:08,840 --> 00:26:12,920
Speaker 2: I think the first impeachment was probably overkill. I think

450
00:26:12,960 --> 00:26:15,440
Speaker 2: the impeachment for January sixth is warranted.

451
00:26:16,359 --> 00:26:18,879
Speaker 4: So in the months that the House has been investigating

452
00:26:18,920 --> 00:26:23,200
Speaker 4: the Biden family business dealings, it has not found concrete

453
00:26:23,280 --> 00:26:28,639
Speaker 4: evidence that the President directly financially benefited from his son's

454
00:26:28,800 --> 00:26:34,480
Speaker 4: business dealings. Should an impeachment inquiries go forward without solid evidence?

455
00:26:35,200 --> 00:26:38,680
Speaker 2: I don't believe so. I think impeachment is just as

456
00:26:38,760 --> 00:26:42,720
Speaker 2: I said, a really drastic remedy, especially when you're talking

457
00:26:42,720 --> 00:26:46,680
Speaker 2: about impeaching the president. The threat of removing a president

458
00:26:47,119 --> 00:26:52,439
Speaker 2: is a very serious threat and should be used very cautiously,

459
00:26:53,320 --> 00:26:57,000
Speaker 2: and I think we have been using it a little

460
00:26:57,080 --> 00:26:58,159
Speaker 2: too indiscriminately.

461
00:26:58,840 --> 00:27:02,760
Speaker 4: They're investigating him for acts that were allegedly done while

462
00:27:02,840 --> 00:27:06,080
Speaker 4: he was vice president. Does that make any difference about,

463
00:27:06,160 --> 00:27:07,880
Speaker 4: you know, impeaching him as president.

464
00:27:08,480 --> 00:27:12,800
Speaker 2: Well, it's unusual, but I wouldn't suggest that there should

465
00:27:12,840 --> 00:27:16,440
Speaker 2: be a barrier if he did something as vice president

466
00:27:16,560 --> 00:27:21,200
Speaker 2: that warrant's impeachment. I do think it's relevant today, even

467
00:27:21,240 --> 00:27:24,760
Speaker 2: though he's now president. I just don't think that what

468
00:27:24,920 --> 00:27:26,359
Speaker 2: he did Warren's impeachment.

469
00:27:26,960 --> 00:27:32,280
Speaker 4: House Speaker McCarthy unilaterally directed House committees to open an

470
00:27:32,280 --> 00:27:37,040
Speaker 4: impeachment inquiry after vowing that an inquiry would be launched

471
00:27:37,160 --> 00:27:40,159
Speaker 4: only with a full House vote, and he blamed his

472
00:27:40,280 --> 00:27:44,199
Speaker 4: flip flop on Nancy Pelosi changing the rules, which she denied.

473
00:27:44,600 --> 00:27:46,719
Speaker 1: Is this unusual? The way he's doing it should there

474
00:27:46,760 --> 00:27:47,840
Speaker 1: be a full House vote.

475
00:27:48,359 --> 00:27:51,280
Speaker 2: I would say yes, yes, it's unusual, and yes there

476
00:27:51,320 --> 00:27:55,159
Speaker 2: should be a full House vote. It's a really serious step,

477
00:27:55,440 --> 00:27:58,280
Speaker 2: and we shouldn't lose sight of the fact that impeaching

478
00:27:58,359 --> 00:28:02,760
Speaker 2: a president and potentially removing him for her undoes the

479
00:28:02,880 --> 00:28:07,359
Speaker 2: national election. And it should really only be considered for

480
00:28:08,240 --> 00:28:12,280
Speaker 2: high crimes and misdemeanors and not for little things.

481
00:28:13,040 --> 00:28:17,800
Speaker 4: Let's just suppose that it was found that he benefited

482
00:28:17,960 --> 00:28:21,520
Speaker 4: from Hunter Biden's business deals. In your opinion, would that

483
00:28:21,720 --> 00:28:23,600
Speaker 4: be a high crime and misdemeanor?

484
00:28:23,960 --> 00:28:26,119
Speaker 2: I think I'd have to know more to answer that.

485
00:28:26,520 --> 00:28:29,240
Speaker 2: I think I'd have to know sort of what his

486
00:28:29,440 --> 00:28:30,200
Speaker 2: involvement was.

487
00:28:31,119 --> 00:28:35,480
Speaker 4: Now, McCarthy said, impeachment proceedings would give House Republicans quote

488
00:28:35,760 --> 00:28:38,600
Speaker 4: the full power to gather all the facts and answers

489
00:28:38,640 --> 00:28:41,680
Speaker 4: for the American public. Does it give them any more

490
00:28:41,840 --> 00:28:45,440
Speaker 4: power to get documents or testimony from the White House?

491
00:28:45,920 --> 00:28:49,120
Speaker 2: I am not sure. I think whether it legally does

492
00:28:49,240 --> 00:28:50,840
Speaker 2: or not, I don't know, But I think as a

493
00:28:50,920 --> 00:28:54,720
Speaker 2: matter of sort of political pressure, it probably gives a

494
00:28:55,160 --> 00:28:59,080
Speaker 2: little more weight and it might open up some potential

495
00:28:59,680 --> 00:29:02,360
Speaker 2: other remedies Congress could use. So I think it does

496
00:29:02,480 --> 00:29:04,840
Speaker 2: add some weight to their requests.

497
00:29:05,240 --> 00:29:09,200
Speaker 4: Former President Trump has been in contact with House Republicans

498
00:29:09,400 --> 00:29:13,120
Speaker 4: on the impeachment and suggested in a new interview that

499
00:29:13,680 --> 00:29:17,160
Speaker 4: if the Democrats hadn't impeached him during his time in office,

500
00:29:17,480 --> 00:29:20,880
Speaker 4: then the House Republicans might not have launched an impeachment

501
00:29:21,000 --> 00:29:26,480
Speaker 4: inquiry into President Biden. Should anyone be involved besides the

502
00:29:27,320 --> 00:29:29,520
Speaker 4: House members, I.

503
00:29:29,640 --> 00:29:33,800
Speaker 2: Think that we have lost sight of how drastic a

504
00:29:33,920 --> 00:29:38,600
Speaker 2: remedy impeachment is, and it should be very scarce. I

505
00:29:38,760 --> 00:29:41,800
Speaker 2: do think that Trump should stay out of it. I'm

506
00:29:41,840 --> 00:29:44,400
Speaker 2: not sure what his role in that he hasn't a

507
00:29:44,560 --> 00:29:47,400
Speaker 2: role in this, but I do think that the impeachment

508
00:29:47,480 --> 00:29:51,640
Speaker 2: remedy is being utilized injudiciously, if there is such a word.

509
00:29:52,640 --> 00:29:56,040
Speaker 4: But nearly two thirds of respondents in a CNN poll

510
00:29:56,160 --> 00:29:59,600
Speaker 4: last week said they believe the President had some involvement

511
00:29:59,600 --> 00:30:04,080
Speaker 4: in Hunt Biden's business dealings. So if they are able

512
00:30:04,200 --> 00:30:08,200
Speaker 4: to get enough Republicans to vote simple majority, I guess

513
00:30:08,320 --> 00:30:11,720
Speaker 4: for impeachment, then the Senate has to have a trial.

514
00:30:11,560 --> 00:30:14,120
Speaker 2: Right, Yes, so you need two thirds of the Senate,

515
00:30:14,240 --> 00:30:14,680
Speaker 2: and in our.

516
00:30:14,720 --> 00:30:17,160
Speaker 4: History there's never been two thirds of the Senate voting

517
00:30:17,240 --> 00:30:19,400
Speaker 4: for impeaching a president for convicting.

518
00:30:19,680 --> 00:30:23,040
Speaker 2: The House impeaches and the Senate tries and either it

519
00:30:23,160 --> 00:30:25,880
Speaker 2: has a conviction or doesn't, And you're right, there's never

520
00:30:25,960 --> 00:30:26,600
Speaker 2: been a conviction.

521
00:30:27,280 --> 00:30:32,080
Speaker 4: The Biden administration has been preparing for this in some sense.

522
00:30:32,640 --> 00:30:36,000
Speaker 4: Now they're fundraising off it. I'm wondering if you know

523
00:30:36,160 --> 00:30:39,280
Speaker 4: what their response should be. Is it just let the

524
00:30:39,360 --> 00:30:42,160
Speaker 4: House do what they want until we see if there's

525
00:30:42,200 --> 00:30:44,640
Speaker 4: going to be a trial, or are there some ways

526
00:30:44,720 --> 00:30:46,480
Speaker 4: for them to counter this.

527
00:30:47,640 --> 00:30:50,440
Speaker 2: The only way I can think of that the Biden

528
00:30:50,480 --> 00:30:55,720
Speaker 2: administration can counter this is to generate public opinion opposing

529
00:30:55,800 --> 00:30:59,680
Speaker 2: it and try and convince the House that it's going

530
00:30:59,720 --> 00:31:03,240
Speaker 2: down the wrong path. But there's no legal remedy, no

531
00:31:03,400 --> 00:31:07,600
Speaker 2: judicial remedy. It's just to convince the House that they're

532
00:31:07,640 --> 00:31:08,440
Speaker 2: making a mistake.

533
00:31:09,240 --> 00:31:10,200
Speaker 1: The way this has been.

534
00:31:10,120 --> 00:31:15,080
Speaker 4: Done, does it seem purely political for Kevin McCarthy, you know,

535
00:31:15,240 --> 00:31:18,680
Speaker 4: he's been pressured by some members on the far right

536
00:31:19,040 --> 00:31:22,200
Speaker 4: and threatened with being voted out as speaker. Is it

537
00:31:22,280 --> 00:31:24,640
Speaker 4: a political process more than anything else?

538
00:31:25,280 --> 00:31:27,720
Speaker 2: It is a political process, and it's designed to be.

539
00:31:28,120 --> 00:31:30,920
Speaker 2: I mean, it's not a judicial proceeding. It is in

540
00:31:31,080 --> 00:31:33,880
Speaker 2: the House and the Senate. So it is supposed to

541
00:31:33,920 --> 00:31:38,520
Speaker 2: be a political remedy, but it should be a remedy

542
00:31:38,600 --> 00:31:42,920
Speaker 2: of last resort, especially the standard's very high high crimes

543
00:31:42,960 --> 00:31:46,880
Speaker 2: and misdemeanors. You don't want to take out a nationally

544
00:31:47,200 --> 00:31:52,040
Speaker 2: elected president out of office for trivial reasons. And we

545
00:31:52,240 --> 00:31:57,120
Speaker 2: have cheapened the idea of impeachment. It should be very rare,

546
00:31:57,520 --> 00:31:59,880
Speaker 2: and it's gotten to be less rare.

547
00:32:00,520 --> 00:32:03,480
Speaker 4: I'm sure Chief Justice John Roberts would not be happy

548
00:32:03,560 --> 00:32:07,320
Speaker 4: with having to preside over a third impeachment trial.

549
00:32:07,840 --> 00:32:08,880
Speaker 2: I am sure that's right.

550
00:32:09,360 --> 00:32:11,520
Speaker 4: Thanks so much for being on the show, Sue. That's

551
00:32:11,560 --> 00:32:15,320
Speaker 4: Professor Susan Lowblock of Georgetown Law School. And that's it

552
00:32:15,440 --> 00:32:18,000
Speaker 4: for this edition of the Bloomberg Law Show. Remember you

553
00:32:18,040 --> 00:32:20,480
Speaker 4: can always get the latest legal news on our Bloomberg

554
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Speaker 4: Law Podcast. You can find them on Apple Podcasts, Spotify,

555
00:32:24,400 --> 00:32:29,400
Speaker 4: and at www dot Bloomberg dot com, slash podcast Slash.

556
00:32:29,200 --> 00:32:31,800
Speaker 1: Law, and remember to tune into The Bloomberg.

557
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Speaker 4: Law Show every weeknight at ten pm Wall Street Time.

558
00:32:35,440 --> 00:32:38,080
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