Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Never in my life have I had a problem that
Speaker 2: I did not see an ended.
Speaker 3: Two I don't see an ending to this.
Speaker 4: New York City Mayor Eric Adams didn't mince words when
Speaker 4: describing the crisis the city is facing because of the
Speaker 4: more than one hundred thousand asylum seekers. The Adams administration
Speaker 4: estimates that ten thousand asylum seekers are arriving each month
Speaker 4: bust in from Texas and that it will cost the
Speaker 4: city about twelve billion dollars over the next three years.
Speaker 3: This issue will destroy New York City.
Speaker 4: My guest is Leon Fresco, a partner at hollanden Knight.
Speaker 4: He was the former head of the Justice Department's Office
Speaker 4: of Immigration Litigation during the Obama administration. Leonn Adams says
Speaker 4: the lack of support from the federal government is alarming.
Speaker 4: He's reached out to the Biden administration. The bidy administration
Speaker 4: has criticized what he's done, saying there's no exit strategy.
Speaker 4: Why isn't the Biden administration stepping in to help out
Speaker 4: in New York City?
Speaker 3: This is a fascinating question, and this is where I
Speaker 3: think there's been a major lack of congruent in some
Speaker 3: things that's happened, and it's not really explainable, which is this,
Speaker 3: Eric Adams has a problem with people arriving in New
Speaker 3: York with no plan for what they're going to do,
Speaker 3: and that problem isn't supposed to exist in the immigration
Speaker 3: law in this sense. Technically, technically, there's a lot of
Speaker 3: debate about whether you can even be led even to
Speaker 3: the interior of the United States. Fund we can have
Speaker 3: that debate. There's a lot of people who say, no, no, no,
Speaker 3: you have to either be debained or made to way
Speaker 3: to Mexico. You shouldn't be allowed in the interior. Well,
Speaker 3: the Supreme Court I said that's permitted, so fine, people
Speaker 3: are allowed in the interior. But there's another important points
Speaker 3: to be made here, which is that Ice, even under
Speaker 3: the Obama administration, used to have a policy that said,
Speaker 3: if you don't have anywhere to go, you're going to
Speaker 3: be a nice detention. And I don't know where that
Speaker 3: ended up suddenly being swept under the carpet or being
Speaker 3: eroded in the water. I don't know where that happened.
Speaker 3: But I do think Eric Adams has an argument to make,
Speaker 3: other than the fact that people don't like people being
Speaker 3: placed in ice custody, that if you come to America
Speaker 3: and you have no plan of any human being who
Speaker 3: will care for you while you're here, a friend, a cousin,
Speaker 3: an uncle, a grandparent, somebody who knows you, then yes,
Speaker 3: you have to be places into ice custody. You can't
Speaker 3: be in a hotel or on the street or something
Speaker 3: of this nature. That's never what's supposed to happen. The
Speaker 3: whole point of ICE releasing people from their custody was
Speaker 3: because they had someone who is going to make sure
Speaker 3: that these individuals would attend their court proceeding and would
Speaker 3: move on to the next steps of their taste, not
Speaker 3: that you would need city housing or you might sleep
Speaker 3: on the street or something of this nature.
Speaker 4: These migrants being shipped to New York City are here legally, right.
Speaker 3: What happens is they come to the borders, they are
Speaker 3: placed into expedited removal proceedings, meaning that you arived here,
Speaker 3: why are you here? And they say, I don't have
Speaker 3: a reason to be here other than I'm asking for asylum,
Speaker 3: So then they get places to expedite the removal proceeding
Speaker 3: They are then told the only way you can say
Speaker 3: if you're asking for asylum is you have to establish
Speaker 3: a credible fear that you will be persecuted on the
Speaker 3: basis of your race, religion, national origin, political opinion, or
Speaker 3: social group. They then meet this criteria, and when they
Speaker 3: meet this criteria, they are then released from detension and
Speaker 3: they are just put into the state of Texas, whereby
Speaker 3: now what the new rental is. Greg Abbotson takes these
Speaker 3: people upon relief from detension and puts them on a
Speaker 3: bus and sends them to New York or Chicago or
Speaker 3: Los Angeles and Philadelphia. That's the final rental. The previous
Speaker 3: state of affairs was they just the door opens of
Speaker 3: the detention facility and they're just sucked in Texas, and
Speaker 3: that's what Texas said, Well, we don't want any more
Speaker 3: of that. But now the door opens of the facility
Speaker 3: and they are placed on a bus to some other locations.
Speaker 3: And the point is they're supposed to attend their trial
Speaker 3: quote unquote about whether they will win a fium or not.
Speaker 3: But the point was, I just was never supposed to
Speaker 3: release you from the tension if you didn't actually have
Speaker 3: a plan of action. Of where you would say if
Speaker 3: you were released from detension, and for some reason that
Speaker 3: appears to have changed, and that I think is creating
Speaker 3: a consequence that's completely different than anything we've seen before,
Speaker 3: because the bear minimum of what used to happen with
Speaker 3: migration into the United States if people have some sort
Speaker 3: of plan of who they would stay with when they
Speaker 3: arrived here. And it appears that for whatever reason, that
Speaker 3: has broken down. And I do think to the extent
Speaker 3: of a message is spend, don't come here unless you
Speaker 3: have some plan, because otherwise you'll be placed in nice destension.
Speaker 3: I do think that's a youthful Venturer's.
Speaker 4: Defensive in your view, What has Adams done wrong?
Speaker 3: Well, there's a couple of things. Number One, you have
Speaker 3: to figure out when people are arriving in your city logistically,
Speaker 3: person of all, and there are some cities. LA County's
Speaker 3: doing this in an amazing passion. They're really handling this
Speaker 3: with ease. When you compare this to New York. You
Speaker 3: first have to figure out is there some place that
Speaker 3: you can go to? And if you can go to
Speaker 3: that location, it's much cheaper, even if it's an uber
Speaker 3: ride of one hundred dollars put them in an uber
Speaker 3: for one hundred dollars and send them there. Then have
Speaker 3: them in a shelter or a hotel. That part logistically
Speaker 3: has not been handled very well. So that's the first
Speaker 3: that is identifying are there places people can be sent
Speaker 3: to immediately send them there. I understand that that's the
Speaker 3: drain on the city's resources, but it's a larger drain
Speaker 3: to have shelters at hotels and things of the nagers.
Speaker 3: That's number one. Then number two, if people are coming
Speaker 3: to New York and they have no plan of any
Speaker 3: kind of where they want to go, so that there's
Speaker 3: nowhere you can transport them to, then that's where what
Speaker 3: New York has to do is starts to work with
Speaker 3: ICE in that situation. Because the problem is there's a
Speaker 3: government statue, it's not even a regulations, the statutes that
Speaker 3: says if you apply for asylum, you cannot work for
Speaker 3: one hundred and eighty days. Your case has to be
Speaker 3: tending for at least one hundred and eighty days before
Speaker 3: you can work. And so for those one hundred and
Speaker 3: eighty days, are you really going to be seeing people
Speaker 3: in hotels? The whole point of this one hundred and
Speaker 3: eighty day asylum rule was to prevent what was called
Speaker 3: a magnet where people would come to the US to work.
Speaker 3: But imagine if the magnet now is not only you
Speaker 3: can't work, but you're in a hotel for one hundred
Speaker 3: and eighty days. Well, that's the reverse effect of the
Speaker 3: whole purpose of not letting people work in the first place. Now,
Speaker 3: the problem Adams has is by the administration cannot change
Speaker 3: a statue, and so they're stuck. Everybody's stuck here. Nobody
Speaker 3: can work when they first come to the United States.
Speaker 3: And so this is why the solution needs to be
Speaker 3: one much more year towards sending the message to people
Speaker 3: that it will not be tolerated. That people simply come
Speaker 3: here and expect to stay in a hotel. That's not
Speaker 3: going to be something that's tolerated. People will have to
Speaker 3: be an immigration detention unless they have a sponsor that's
Speaker 3: willing to take care of it.
Speaker 4: They tried sending leaflets to Texas basically you're not welcome
Speaker 4: in New York City.
Speaker 1: That didn't work. Apparently, what should he do?
Speaker 4: Right?
Speaker 3: He needs students, coordinate with a Department of Homeland Security
Speaker 3: and get them to be much more active in Texas
Speaker 3: to say to people, do you have a plan and
Speaker 3: a sponsor for remaining in the United States, And if
Speaker 3: they say no, then instead of putting them outside of
Speaker 3: the facility where Texas can then place them on a
Speaker 3: bus and take them to New York, those people get
Speaker 3: placed into ice attention until they can get a work permit,
Speaker 3: and then with the work permit they can be released
Speaker 3: and they can work and pay for themselves. But there
Speaker 3: should not be a scenario where people get to be
Speaker 3: released from immigration custody in Texas unless they have a
Speaker 3: US sponsor that's willing to take them. And I think
Speaker 3: that's the policy thing that Eric Adams probably needs to
Speaker 3: advocate for now. Whether he does that publicly where he
Speaker 3: would get criticism from the immigration advocates or privately doesn't matter.
Speaker 3: But I think that's the only thing that will bring
Speaker 3: temporary release to New York. I don't think billions of
Speaker 3: dollars to New York is fixing anything in terms of
Speaker 3: the larger situation, because I think you have to come
Speaker 3: back this new issue. This is not a long existing phenomenon.
Speaker 3: This is a relatively new issue of people coming to
Speaker 3: the United States with absolutely nobody that they know of
Speaker 3: any kind saying that they expect to be housed in
Speaker 3: some hotel or facility. That's something completely new, and so
Speaker 3: the government needs to address this so that this doesn't
Speaker 3: become a long standing phenomena.
Speaker 1: Is this helping Texas sending all these people up here?
Speaker 3: From Texas's perspective, this is getting everybody an equal skin
Speaker 3: in the game, so that pressure gets placed on the
Speaker 3: Body administration to adopt the remain in Mexico policy that
Speaker 3: Trump has. That's essentially the endgame for Texas is if
Speaker 3: you can then get Eric Odams of set In, the
Speaker 3: mayor of Los Angeles and the mayor of Philadelphia at
Speaker 3: the mayor of Chicago, and they all drew a bider
Speaker 3: and say we give up, do something, and then Biden
Speaker 3: has to do remain in Mexico. Then, from Texas's perspective, okay,
Speaker 3: that's a big please, but is not going to happen.
Speaker 3: I don't know, but certainly to the extense, that's the
Speaker 3: solution that the cities are offering is give us billions
Speaker 3: of dollars to put people in hotels. I don't know
Speaker 3: that that's the best solution. I think you have to
Speaker 3: put more onus on people coming here to the United
Speaker 3: States to find their own housing solutions, and if they're
Speaker 3: unwilling or unable to find their own housing solutions. That
Speaker 3: was the entire reason the concept of immigration's attention was created.
Speaker 4: Len I want to turn down to DOCA. For the
Speaker 4: second time, a Texas federal judge has declared DOCA illegal.
Speaker 4: It's a blow to the Biden administration, which issued regulations
Speaker 4: to codify DACA in an effort to preserve the legality
Speaker 4: of the program, which the young immigrants known as Dreamers
Speaker 4: from deportation, but Texas and eight other Republican led states
Speaker 4: continued to challenge DOCA in court. The issue will likely
Speaker 4: be decided by the Supreme Court, the third time the
Speaker 4: program's fate will be before the Court.
Speaker 1: Seems like we've.
Speaker 4: Been hearing about DOCA and court rulings for years and
Speaker 4: years since it was first launched. Why so many hearings,
Speaker 4: Why no resolution?
Speaker 3: Well, this case has gone through several stages, and so
Speaker 3: what happened and this might actually be something that the
Speaker 3: Supreme Court touches upon even when it ends up finally
Speaker 3: reviewing DACA is that for many years, the DOCCA program
Speaker 3: itself was actually not challenged by the State of Texas.
Speaker 3: The State of Texas only got involved in challenging things
Speaker 3: when there was a second program at the very end
Speaker 3: of the Obama administration called da FAV which would have
Speaker 3: given legal stitus to the parents of undocta ment to children,
Speaker 3: and that would have been about a four million person
Speaker 3: legal status program. That's when the State of Texas gets
Speaker 3: involved and they end up in joining the program. The
Speaker 3: Obama administration ends, that's the end of it, and then
Speaker 3: the question happens, well, what about dot CO, And this
Speaker 3: is where Jeff Session and the Trump administration tries to
Speaker 3: get the State of Texas to SEO to actually eliminate
Speaker 3: doc CO, because the State of Texas actually wasn't interested
Speaker 3: in eliminating DOCA because of the sympathetic nature of the
Speaker 3: population and a lot of the problems that DOCTA faults.
Speaker 3: But nevertheless, Attorney General Jet Sessions that's design convinces the
Speaker 3: State of Texas to su and the Attorney General Jet
Speaker 3: Sessions also tries to eliminate DACA on his own. The
Speaker 3: Supreme Court says that the way he did it was illegal,
Speaker 3: so it gets kicked back to the Department of Homeland Security.
Speaker 3: In the meantime, this lawsuit then restarts because they were
Speaker 3: waiting for the report to do their decision on what
Speaker 3: Jeff Sessions had done. And this lawsuit restarts. But the
Speaker 3: Trump administration then ends, which brings in the body of
Speaker 3: the Administration, which brings in a new DOCTA rule. And
Speaker 3: so now we're finally in September fourteen, twenty twenty three,
Speaker 3: at the culmination of all of this, where we're now
Speaker 3: at a direct shot to the Supreme Court about the
Speaker 3: final choices nobody has ever analyzed, which is it DOCA
Speaker 3: legal tell us.
Speaker 4: About these Homeland Security Department regulations that the Buying administration
Speaker 4: issued last year.
Speaker 3: Sure, so here's the issue. So when DOCA was announced
Speaker 3: originally in twenty twelve, it was done by a memo.
Speaker 3: It was not a big long government regulation where there's
Speaker 3: a notice of proposed rulemaking, there are sixty days of comment,
Speaker 3: there's a lot of analysis. It wasn't done that way.
Speaker 3: It was done as a memo, and that memo nobody
Speaker 3: bothered it for many years. But then the Obama administration
Speaker 3: did something called DAPA, which is what I just talked about,
Speaker 3: and they did that by a memo also, and so
Speaker 3: in the state of Texas food they said, hey, you
Speaker 3: didn't do this by notice in comment rulemaking, and the
Speaker 3: courts agreed, and that was the main reason that the
Speaker 3: DAPPA program failed. So the idea was, well, if DAPPA
Speaker 3: and DACA are essentially the same programs, just yeared toward
Speaker 3: different people, then this needed to also be done by
Speaker 3: a rule which had notice in comment rulemaking. And so
Speaker 3: the Biden administration fixes this argument. So now there is
Speaker 3: no more of an argument that DOACA is illegal because
Speaker 3: there was no regulation with notice in comment rulemaking, because
Speaker 3: in fact, there was a regulation issued by the Biden
Speaker 3: administration on October thirty first, twenty twenty two, with notice
Speaker 3: and comment and all the official rulemaking. But the question
Speaker 3: then became for the court, well is that regulation doing
Speaker 3: something but legal? And years where the Court comes down
Speaker 3: and says, no, this regulation is not doing something that's legal,
Speaker 3: because you cannot create a program for people who don't
Speaker 3: have status and give them status, especially authorizations at work.
Speaker 3: And so that's the issue that's left to be decided
Speaker 3: by the Supreme Court.
Speaker 4: The judge said the creation adoption of the final rule
Speaker 4: took no steps to avoid any of the substantive pitfalls
Speaker 4: that have been pointed out, perhaps because DHS did not
Speaker 4: want to or perhaps because it was not possible to
Speaker 4: do so and retain the DOCA program as currently constituted.
Speaker 1: Do you think that either of those is true?
Speaker 3: Well, I think it actually is true in the sense
Speaker 3: that there are two parts to the backup program. The
Speaker 3: first part is having a set of criteria for people
Speaker 3: who cannot be deported, and that part is very important,
Speaker 3: but it's not the only part, and it's not a
Speaker 3: program that people would be happy with if that was
Speaker 3: all that was led. So there's a second step to
Speaker 3: the program, which is saying, once we've designated this group
Speaker 3: that cannot be deported, this group also can work while
Speaker 3: they're here legally in the United States. And so this
Speaker 3: is the part that jo Jaanen really takes with saying, look,
Speaker 3: you never get around the thing that these people can't work,
Speaker 3: and so the fact that they can work is the
Speaker 3: main problem I had with the program, and this is
Speaker 3: what doesn't get fixed in the regulation. Nor is it
Speaker 3: fair to say that DASS would want a program where
Speaker 3: those pumps cannot work, because the whole sort of brilliance
Speaker 3: of the doctor program visa VI that people in it
Speaker 3: is that they can live a normal life. They have
Speaker 3: this work permit. This work permit allows them to get
Speaker 3: a driver's life, It allows them to get a Social
Speaker 3: Security number, It allows them to get a bank account,
Speaker 3: allows them to go to school, it allows them to work.
Speaker 3: And so if you took away that and just said
Speaker 3: this is a program of non deportation, it seems us
Speaker 3: to be DACA as the docas young people know it
Speaker 3: and experience it.
Speaker 4: It. We've talked before about the executive branch and immigration.
Speaker 4: Isn't this an executive branch function?
Speaker 3: So that's what the court is going to have to decide.
Speaker 3: They're going to have to decide to do components of it.
Speaker 3: The first component, can you pick a group not to deport?
Speaker 3: The Supreme Court has basically already decided this issue last
Speaker 3: year in a case called Biden versus Texas about the
Speaker 3: prosecutorial discretion guideline, where the Court said the State of
Speaker 3: Texas doesn't have standing to look at these prosecutorial discretion guidelines.
Speaker 3: And so that first part of DACA looks very very safe.
Speaker 3: The second part about whether the people who are subjective
Speaker 3: to non prosecution can then be given the ability to
Speaker 3: work in the United States. That's really what the Court
Speaker 3: is going to be looking at here, And so that's
Speaker 3: just going to come down to one of two statues,
Speaker 3: picking which one do you like. Do you like the
Speaker 3: statue that says that if someone is undocumented, there's no
Speaker 3: choice that the administration has other than encountering them and
Speaker 3: removing them from the United States, Or do you like
Speaker 3: the statutes that says that the Secretary of Homeland Security
Speaker 3: has regulatory authorities for anyone work in the United States,
Speaker 3: which would presumably include these young people. So that's the
Speaker 3: choice the Supreme Court's going to have to make, is
Speaker 3: which of those statues actually makes more sense in this
Speaker 3: fact pattern. Can the Secretary of Homeland Security take a
Speaker 3: slice of undocumented people and actually just out of thin
Speaker 3: air or in this case of regulation, but nevertheless thin
Speaker 3: air makes them legal enough so to seek they can
Speaker 3: work in the United States.
Speaker 1: Is the Supreme Court likely to take this case?
Speaker 3: They don't have to take the case, but then that
Speaker 3: would leave a nationwide injunction on new DOCA cases that
Speaker 3: will be in place. Now what's fascinating is if they
Speaker 3: then don't end up taking the case at all, then
Speaker 3: that nationwide injunction expands to ending the program entirely, so
Speaker 3: they can't be crafty and just say, well, we can
Speaker 3: not take the case, and then only new cases won't
Speaker 3: get taken. The way Judge Haynen's injunction is written is
Speaker 3: until the Supreme Court does something, we will allow all
Speaker 3: the people in the existing program to remain and keep
Speaker 3: renewing their status, but we won't let any new people in.
Speaker 3: But if the Supreme Court doesn't do anything, then the
Speaker 3: nationwide injunction becomes permanent and doesn't allow anybody to even
Speaker 3: renew their status. So whenever somebody's status expires, that's it
Speaker 3: can't be renewed, and the DACA program ends gradually over
Speaker 3: a course of years.
Speaker 4: That Supreme Court case last year involving Texas that you
Speaker 4: were talking about was kind of a surprise coming from
Speaker 4: this Supreme Court. Do you have any inkling about the
Speaker 4: Justice's feelings toward DACA.
Speaker 3: Well, I mean, at the end of the day, we
Speaker 3: know that there are three justices that are not going
Speaker 3: to be on board in any way, shape or forb
Speaker 3: with the program continuing, which is Alito, Thomas, and Gorss.
Speaker 3: We know that from the prior cases. What we don't
Speaker 3: know is Amy, Tony Barrett, and Tavanaughkavanaugh was trying to
Speaker 3: read some compromise in the prior daca's decision, and by
Speaker 3: the way, Roberts contains his mind also, so we don't know.
Speaker 3: I mean, Roberts was pro keeping DACA the last time
Speaker 3: around when the Trump administration tries to eliminate it. But
Speaker 3: the real swing boat is going to be Tony Bears.
Speaker 3: She has not opigned yet on where she is in DAKA,
Speaker 3: and so maybe she will be sympathetic towards this group
Speaker 3: and want to keep it in place. Some compromise will
Speaker 3: be reached. What I'm hoping for where they miraculously say, hey,
Speaker 3: look why did Texas state six years to file a
Speaker 3: lawsuit on this, so many reliance interests came in place.
Speaker 3: They don't get the right to food anymore, which is
Speaker 3: what happened, And I would love for that to be
Speaker 3: the decision here, because Texas originally didn't care about DACA
Speaker 3: for so long and only came in when Jeff Sessions
Speaker 3: forced them food. So to me, from that perspective, that
Speaker 3: would be a wonderful way to end this. But it's
Speaker 3: hard to know. Where she will ultimately come out.
Speaker 1: Do the States even have standing to challenge.
Speaker 3: DOC that's going to be enough. That's going to be
Speaker 3: another question, because they don't have standing to challenge the
Speaker 3: first part of DOCA, which is the prosecutorial decision not
Speaker 3: to support a certain category that's already been decided. What
Speaker 3: Ben Hainan says in this case, and he's correct, is
Speaker 3: that in that decision by the Supreme Court, they specifically
Speaker 3: exented programs that look like DOC not for saying that
Speaker 3: there is standing, just for saying we don't know if
Speaker 3: they're standing, get back to us on this. So that's
Speaker 3: where we are right now. And then they literally use
Speaker 3: the words, you know, we do not opign on whether
Speaker 3: we have standing on a case where there's not just
Speaker 3: proscutorial discression but prosecutorial discression plus the provision of benefits,
Speaker 3: which is what happens here. And so that's not a
Speaker 3: yes or no that they check with us later. And
Speaker 3: so J Jayne says, well, that check with us later
Speaker 3: means that there is standing and so we'll see, we'll
Speaker 3: see if the Supreme Court agrees with.
Speaker 4: That or I mean, should Congress be the one to
Speaker 4: provide permanent protections to DACA recipients.
Speaker 3: Well, for sure, that's the only way to actually provide
Speaker 3: a country legal status that can't be taken away and
Speaker 3: brought back and taken away and brought back. Absolutely, is
Speaker 3: that going to happen anytime in the near future. Not,
Speaker 3: Given what we're seeing on the border, and given what
Speaker 3: that means for how Republicans ammigrates an issue, I find
Speaker 3: it very unlikely.
Speaker 4: So the next step is the Supreme Court. Thanks Leon,
Speaker 4: that's Leon Fresco of Holland and Knight.
Speaker 5: Republicans have uncovered serious and credible allegations into President Biden's conduct.
Speaker 5: Taken together, these allegations paint a picture of a culture
Speaker 5: of corruption. Now here's what we.
Speaker 4: Know so far.
Speaker 5: Through our investigations, we have found that President Biden did
Speaker 5: lie to the American people about his own knowledge of
Speaker 5: his family's foreign business dealings.
Speaker 4: House Speaker Kevin McCarthy opened a formal impeachment inquiry into
Speaker 4: President Biden for what the Republican leader called a culture
Speaker 4: of corruption, saying there were serious and credible allegations against Biden.
Speaker 4: The formal inquiry will focus on his son, Hunter Biden's
Speaker 4: over these business affairs and whether the President was involved
Speaker 4: in the dealings or benefited from them, and potentially other topics.
Speaker 4: According to a House official familiar with the plans, the
Speaker 4: impeachment announcement quickly stirred praise from Republican hardliners and scorn
Speaker 4: from Democrats. The process begins with an investigation by three
Speaker 4: House committees as Republicans seek to amass evidence for an
Speaker 4: impeachment vote by the full chamber. If the House votes
Speaker 4: to impeach Biden, the case moves to a trial of
Speaker 4: the President and the Democratic led Senate. If House Republicans succeed,
Speaker 4: Biden would be the fourth impeached US President Trump. His
Speaker 4: predecessor was impeached twice by the House, but not convicted
Speaker 4: in the Senate. My guest is constitutional law professor Susan
Speaker 4: low Block of Georgetown Law School. Trump was impeached twice.
Speaker 4: Some House Republicans have been pushing for an impeachment of
Speaker 4: Biden since they assumed their House majority in January. Is
Speaker 4: this what the Framer envisioned for impeachment?
Speaker 2: No, I don't think so. Impeachment should be a scarcely used,
Speaker 2: drastic remedy for really bad behavior. I testified when the
Speaker 2: House was considering impeaching Clinton in the nineties. The House
Speaker 2: had no idea what an impeachment was because it hadn't happened.
Speaker 2: Impeaching and president hadn't happened in more than one hundred years.
Speaker 2: So they had this group of nineteen con law professors
Speaker 2: come testify and try and educate them about impeachment. And
Speaker 2: I was one of them, and we literally conducted a
Speaker 2: constitutional law class to try and teach them what it
Speaker 2: is and why it should be only used rarely. And
Speaker 2: I think we all said, you know, it should be
Speaker 2: very rare, should not be used often. But if you
Speaker 2: start impeaching Clinton, now, they're going to open a Pandora's box.
Speaker 2: And I think that's exactly what happened. It did unleash
Speaker 2: this weapon that is now too readily used, being used
Speaker 2: indiscriminately and much too often.
Speaker 4: Going back to Trump, do you even think that he
Speaker 4: should have been impeached twice?
Speaker 2: I think the first impeachment was probably overkill. I think
Speaker 2: the impeachment for January sixth is warranted.
Speaker 4: So in the months that the House has been investigating
Speaker 4: the Biden family business dealings, it has not found concrete
Speaker 4: evidence that the President directly financially benefited from his son's
Speaker 4: business dealings. Should an impeachment inquiries go forward without solid evidence?
Speaker 2: I don't believe so. I think impeachment is just as
Speaker 2: I said, a really drastic remedy, especially when you're talking
Speaker 2: about impeaching the president. The threat of removing a president
Speaker 2: is a very serious threat and should be used very cautiously,
Speaker 2: and I think we have been using it a little
Speaker 2: too indiscriminately.
Speaker 4: They're investigating him for acts that were allegedly done while
Speaker 4: he was vice president. Does that make any difference about,
Speaker 4: you know, impeaching him as president.
Speaker 2: Well, it's unusual, but I wouldn't suggest that there should
Speaker 2: be a barrier if he did something as vice president
Speaker 2: that warrant's impeachment. I do think it's relevant today, even
Speaker 2: though he's now president. I just don't think that what
Speaker 2: he did Warren's impeachment.
Speaker 4: House Speaker McCarthy unilaterally directed House committees to open an
Speaker 4: impeachment inquiry after vowing that an inquiry would be launched
Speaker 4: only with a full House vote, and he blamed his
Speaker 4: flip flop on Nancy Pelosi changing the rules, which she denied.
Speaker 1: Is this unusual? The way he's doing it should there
Speaker 1: be a full House vote.
Speaker 2: I would say yes, yes, it's unusual, and yes there
Speaker 2: should be a full House vote. It's a really serious step,
Speaker 2: and we shouldn't lose sight of the fact that impeaching
Speaker 2: a president and potentially removing him for her undoes the
Speaker 2: national election. And it should really only be considered for
Speaker 2: high crimes and misdemeanors and not for little things.
Speaker 4: Let's just suppose that it was found that he benefited
Speaker 4: from Hunter Biden's business deals. In your opinion, would that
Speaker 4: be a high crime and misdemeanor?
Speaker 2: I think I'd have to know more to answer that.
Speaker 2: I think I'd have to know sort of what his
Speaker 2: involvement was.
Speaker 4: Now, McCarthy said, impeachment proceedings would give House Republicans quote
Speaker 4: the full power to gather all the facts and answers
Speaker 4: for the American public. Does it give them any more
Speaker 4: power to get documents or testimony from the White House?
Speaker 2: I am not sure. I think whether it legally does
Speaker 2: or not, I don't know, But I think as a
Speaker 2: matter of sort of political pressure, it probably gives a
Speaker 2: little more weight and it might open up some potential
Speaker 2: other remedies Congress could use. So I think it does
Speaker 2: add some weight to their requests.
Speaker 4: Former President Trump has been in contact with House Republicans
Speaker 4: on the impeachment and suggested in a new interview that
Speaker 4: if the Democrats hadn't impeached him during his time in office,
Speaker 4: then the House Republicans might not have launched an impeachment
Speaker 4: inquiry into President Biden. Should anyone be involved besides the
Speaker 4: House members, I.
Speaker 2: Think that we have lost sight of how drastic a
Speaker 2: remedy impeachment is, and it should be very scarce. I
Speaker 2: do think that Trump should stay out of it. I'm
Speaker 2: not sure what his role in that he hasn't a
Speaker 2: role in this, but I do think that the impeachment
Speaker 2: remedy is being utilized injudiciously, if there is such a word.
Speaker 4: But nearly two thirds of respondents in a CNN poll
Speaker 4: last week said they believe the President had some involvement
Speaker 4: in Hunt Biden's business dealings. So if they are able
Speaker 4: to get enough Republicans to vote simple majority, I guess
Speaker 4: for impeachment, then the Senate has to have a trial.
Speaker 2: Right, Yes, so you need two thirds of the Senate,
Speaker 2: and in our.
Speaker 4: History there's never been two thirds of the Senate voting
Speaker 4: for impeaching a president for convicting.
Speaker 2: The House impeaches and the Senate tries and either it
Speaker 2: has a conviction or doesn't, And you're right, there's never
Speaker 2: been a conviction.
Speaker 4: The Biden administration has been preparing for this in some sense.
Speaker 4: Now they're fundraising off it. I'm wondering if you know
Speaker 4: what their response should be. Is it just let the
Speaker 4: House do what they want until we see if there's
Speaker 4: going to be a trial, or are there some ways
Speaker 4: for them to counter this.
Speaker 2: The only way I can think of that the Biden
Speaker 2: administration can counter this is to generate public opinion opposing
Speaker 2: it and try and convince the House that it's going
Speaker 2: down the wrong path. But there's no legal remedy, no
Speaker 2: judicial remedy. It's just to convince the House that they're
Speaker 2: making a mistake.
Speaker 1: The way this has been.
Speaker 4: Done, does it seem purely political for Kevin McCarthy, you know,
Speaker 4: he's been pressured by some members on the far right
Speaker 4: and threatened with being voted out as speaker. Is it
Speaker 4: a political process more than anything else?
Speaker 2: It is a political process, and it's designed to be.
Speaker 2: I mean, it's not a judicial proceeding. It is in
Speaker 2: the House and the Senate. So it is supposed to
Speaker 2: be a political remedy, but it should be a remedy
Speaker 2: of last resort, especially the standard's very high high crimes
Speaker 2: and misdemeanors. You don't want to take out a nationally
Speaker 2: elected president out of office for trivial reasons. And we
Speaker 2: have cheapened the idea of impeachment. It should be very rare,
Speaker 2: and it's gotten to be less rare.
Speaker 4: I'm sure Chief Justice John Roberts would not be happy
Speaker 4: with having to preside over a third impeachment trial.
Speaker 2: I am sure that's right.
Speaker 4: Thanks so much for being on the show, Sue. That's
Speaker 4: Professor Susan Lowblock of Georgetown Law School. And that's it
Speaker 4: for this edition of the Bloomberg Law Show. Remember you
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