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Geofence Warrants & Can Trump Fire Powell? · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: President Trump has taken unprecedented steps to fire board members
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Speaker 2: at agencies created by Congress to be independent of the
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Speaker 2: White House. He's fired members of the Federal Trade Commission,
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Speaker 2: the Equal Employment Opportunity Commission, the National Labor Relations Board,
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Speaker 2: and the Merit Systems Protection Board, all without cause as
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Speaker 2: required by relevant statutes. All these firings are being challenged
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Speaker 2: in DC federal courts. Some are at the trial court level,
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Speaker 2: others are at the appellate level, and still others at
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Speaker 2: the Supreme Court. Joining me is Bloomberg Intelligence senior litigation
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Speaker 2: analyst Elliott Stein. Elliott, isn't the same issue that's coming
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Speaker 2: up over and over again in these cases involving firings.
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Speaker 3: Yeah, exactly. You know, basically whether Humphy's Executor, which is
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Speaker 3: the Supreme Court decision from nineteen thirty five which upheld
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Speaker 3: four cause removal restrictions, still applies, because all these government
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Speaker 3: statutes for all these agencies where the commissioners are being
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Speaker 3: fired have the same or similar four cause removal restrictions.
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Speaker 3: And so the question is whether you know the Trump
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Speaker 3: administration is arguing that those restrictions are unconstitutional because they
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Speaker 3: impinge on the president's authority to run the executive branch.
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Speaker 2: And these cases are all in the DC.
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Speaker 3: Circuit, right exactly. Some of them are still at the
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Speaker 3: trial court level, so d DC, but yes, they're all
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Speaker 3: under the umbrella of the DC Circuit, and some have
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Speaker 3: already started reaching the Supreme Court.
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Speaker 2: So tell us about the hearing yesterday over the firing
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Speaker 2: of the FTC commissioners.
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Speaker 3: Yesterday's hearing was at the trial court level. It was
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Speaker 3: before Judge Ali Khan, and you know, it was similar
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Speaker 3: to what we've seen in other cases involving commissioners from
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Speaker 3: other agencies for example ANLRB, the National Labor Relations Board
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Speaker 3: and the MSPB, the Merit Systems Protection Board. And essentially,
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Speaker 3: the Trump administration is arguing that the four cause removal
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Speaker 3: restrictions that are in the governing statutes are unconstitutional and
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Speaker 3: the president should be able to fire these commissioners at
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Speaker 3: will because they're part of the executive branch and under
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Speaker 3: Article to the president has authority to control the executive branch.
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Speaker 3: The commissioners obviously take the opposite view and say, well,
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Speaker 3: you know, we have a Supreme Court decision from nineteen
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Speaker 3: thirty five Humphrey's Executor, which upheld four cause removal restrictions,
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Speaker 3: and that decision is still good law. The Supreme Court
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Speaker 3: hasn't overruled it, even though it revisited and interpreted that
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Speaker 3: decision in recent cases involving single director agencies like the
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Speaker 3: CFPB and the FAHFA.
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Speaker 2: One of these cases actually reached an on bank panel
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Speaker 2: of the DC Circuit, which means the three judge panel
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Speaker 2: ruled in the case and then it was appealed to
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Speaker 2: the full DC Circuit.
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Speaker 3: Essentially two of the cases, but they've sort of been consolidated.
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Speaker 3: Those are the cases involving the NRB and the MSPB,
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Speaker 3: the Merit Systems Protection Board. In that case, the trial
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Speaker 3: court Judge Howell said that the four cause removal restrictions
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Speaker 3: are fined their constitutional under Humphrey's Executor and as a result,
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Speaker 3: the termination of the commissioners from those agencies was improper,
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Speaker 3: and so she directed the agencies to reinstate the commissioners
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Speaker 3: their trump administration then went to the DC Circuit, which
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Speaker 3: in the first instance went to a three judge panel,
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Speaker 3: and the panel, which was comprised of two judges appointed
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Speaker 3: by Republicans and won by a Democrat, essentially said that
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Speaker 3: the trial court's ruling was unlikely to succeed on the merits,
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Speaker 3: and as a result, they put a hold on the
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Speaker 3: trial court's injunction that would have reinstated the commissioners. Commit
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Speaker 3: missioners then went to the full DC Circuit and requested
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Speaker 3: an ND bound review of that panel decision, and and
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Speaker 3: Bank Court essentially came out the other way from the
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Speaker 3: panel and said that the child Court's injunction to reinstate
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Speaker 3: the commissioners was fine because the commissioners were likely to
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Speaker 3: succeed on the merits. What's interesting is that you know,
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Speaker 3: these rulings are coming out completely along ideological lines. So
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Speaker 3: you know, I mentioned the three judge panel where you
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Speaker 3: had two judges appointed by Republicans ruling in favor of
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Speaker 3: the Trump administration and one judge appointed by a Democrat
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Speaker 3: ruling in favor of the commissioners. You had a similar
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Speaker 3: alignment at the en Bank level where you had seven
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Speaker 3: judges appointed by Democrats ruling in favor of the commissioners
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Speaker 3: and four judges appointed by Republicans ruling in favor of
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Speaker 3: the Trump administration.
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Speaker 2: How are the judges appointed by Republicans get over Humphrey's executor,
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Speaker 2: which is still good law.
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Speaker 3: Right, So they say the more recent Supreme Court decisions
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Speaker 3: concerning four cause removal restrictions sale a law which concerned
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Speaker 3: the CFPV director and Collins, which concerned the FHFA director,
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Speaker 3: really narrowed the holding of Humphrey's executor, and that the
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Speaker 3: more recent decisions essentially held that four cause removal restrictions
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Speaker 3: are improper for agencies that wield executive power, and that
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Speaker 3: in Humphreys, the FTC at that time didn't really wield
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Speaker 3: executive power because there was more like a quasi legislative
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Speaker 3: or quasi judicial agency. It basically acted as a legislative
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Speaker 3: aid and didn't quite have the full gamut of powers
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Speaker 3: that it has now. And as a result, you know,
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Speaker 3: these agencies where commissioners are being fired, wield executive power.
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Speaker 3: And you know two of the hallmarks of executive power
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Speaker 3: or rule making authority and enforcement authority, and most of
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Speaker 3: these agencies have authority, and as a result, they wield
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Speaker 3: executive power and they fall under the President's authority.
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Speaker 2: So that was the only one that went up to
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Speaker 2: the full DC circuit.
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Speaker 3: Yes, that's right. Most of these other ones are still
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Speaker 3: at the trial court level, including the FDC one that
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Speaker 3: was heard yesterday.
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Speaker 2: There was a May sixteenth appellate court.
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Speaker 3: Argument, right, So on May sixteenth, the NLRB and MSPB
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Speaker 3: cases were argued before the DC Circuit panel on the merits. Right.
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Speaker 3: We already discussed how the preliminary issue or sort of
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Speaker 3: the emergency issue regarding the injunction to reinstate them went up,
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Speaker 3: but those were just emergency issues here, and on May
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Speaker 3: sixteenth concerned the full merits of the trial court's ruling
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Speaker 3: to reinstate the commissioners. And how did that go, you know,
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Speaker 3: similar to how all these cases are going where you know,
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Speaker 3: you do see this alignment where that panel had again
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Speaker 3: two judges, Judge Walker and Judge Katsas, who were appointed
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Speaker 3: by President Trump, and then Judge Pan who was appointed
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Speaker 3: by President Biden. And you know, Judge Pan was very
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Speaker 3: critical or skeptical of the Trump administration's position. So I
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Speaker 3: expect her to rule in favor of the commissioners, but
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Speaker 3: you know, so likely be in the dissent. There are
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Speaker 3: two other judges. Judge Walker has taken a very expansive
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Speaker 3: view of executive authority. He wrote one of the opinions
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Speaker 3: when this case reached the DC Circuit panel previously, and
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Speaker 3: he took a very expansive view of executive authority. So
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Speaker 3: he's very likely to rule for President Trump, and then
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Speaker 3: the other judge, Katsis, I think will also rule for
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Speaker 3: President Trump. He was sort of trying to figure out
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Speaker 3: just how far the Trump administration's argument could go. You know,
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Speaker 3: he's trying to figure out sort of like what the
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Speaker 3: outer bounds would be. But at the end of the day,
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Speaker 3: I do expect that the Trump administration will win reversal
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Speaker 3: at the panel level, after which, of course the Commissioners
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Speaker 3: will then ask her and Bank review again. I expect
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Speaker 3: they'll win there, and then we'll probably be onto the
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Speaker 3: Supreme Court for ruling on the merits eventually.
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Speaker 2: Do you need a scorecard? It's you're here to figure
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Speaker 2: out which cases are aware and which judges heard them.
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Speaker 2: So now tell us about the case that reached the
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Speaker 2: Supreme Court and Chief Justice Roberts handed down an order.
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Speaker 3: So in the NRB and MSCB cases, you know, we
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Speaker 3: already talked about how it went to the on the
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Speaker 3: emergency issue of whether the commissioners could be reinstated and
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Speaker 3: went to the DC Circuit panel and bank. The Trump
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Speaker 3: administration lost at the end bank level, so they asked
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Speaker 3: the Supreme Court to put a stay on the ruling
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Speaker 3: that would have reinstated the commissioners, and the Supreme Court
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Speaker 3: put an administrative stay on the injunction that would have
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Speaker 3: reinstated the commissioners, you know, to give them more time
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Speaker 3: to actually rule on the issue. But they haven't done
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Speaker 3: anything subsequent to that, so, you know, I think it
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Speaker 3: seems like they're leaning. The Supreme Court is leaning towards
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Speaker 3: letting the case play out at the lower court level,
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Speaker 3: because in addition to requesting a stay of the injunction,
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Speaker 3: the Trump administration also asked the Supreme Court to actually
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Speaker 3: grant cert sort of you know, at a very early
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Speaker 3: stage in the litigation, before it even went all the
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Speaker 3: way through the DC Circuit on the merits. And the
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Speaker 3: Supreme Court hasn't ruled on that request either.
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Speaker 2: The Trump administration seems to be doing that a lot,
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Speaker 2: pushing the envelope for it.
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Speaker 3: Yeah, you know what we call the shadow dock here, right,
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Speaker 3: you know, they're entitled to do it. Other parties do it.
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Speaker 2: Too, although no other president has gone to the Supreme
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Speaker 2: Court on an emergency basis. This often in this short
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Speaker 2: period of time, I think so far there are nineteen
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Speaker 2: emergency petitions from the Trump administration at the Supreme Court,
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Speaker 2: and that includes one file just today the administration asked
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Speaker 2: the court to stop a judge's order that would force
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Speaker 2: it to answer questions from a watchdog group and turnover
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Speaker 2: documents about Elon Musk's Department of Government efficiency. So they're
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Speaker 2: not slowing down with the petitions.
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Speaker 3: Well, I mean, part of that is because a lot
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Speaker 3: of these cases do go through the DC's circuit, which
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Speaker 3: leans towards judges who have been appointed by Democrats, so
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Speaker 3: as a result of Trump administration and loses more cases there,
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Speaker 3: and then they go to the Supreme Court hoping for
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Speaker 3: a win.
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Speaker 2: I mean, let's talk about how this affects perhaps the
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Speaker 2: Federal Reserve Board, right and your own power. So, first
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Speaker 2: of all, the Federal Reserve Act, is it the same
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Speaker 2: kind of language as in these other.
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Speaker 3: Yes, it's similar. I mean, all these statutes sort of
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Speaker 3: have variations of the same theme, which is some sort
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Speaker 3: of four cause removal restriction. And sometimes it's defined, sometimes
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Speaker 3: it's not defined what four causes. When it's not defined.
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Speaker 3: It's generally assumed to mean some sort of neglect, inefficiency,
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Speaker 3: or malfeasance. The Federal Reserve Act does have four cause
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Speaker 3: removal restriction language in order to remove you know, Federal
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Speaker 3: Reserve Board governors. It doesn't have any such language to
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Speaker 3: sort of demote the or any of the vice chairs,
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Speaker 3: but to completely remove them from the board. It does
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Speaker 3: have that language.
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Speaker 2: There have been, you know, arguments at the Supreme Court
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Speaker 2: where during the oral argument some of the justices singled
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Speaker 2: out the Feds being different. But what's your take on
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Speaker 2: whether the cases that we've been talking about indicate that
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Speaker 2: the court will rule that the president can fire the
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Speaker 2: Federal Reserve chair.
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Speaker 3: Yeah. It's interesting because the issue does come up in
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Speaker 3: all these cases that we've already discussed, and you know
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Speaker 3: that the commissioners who were fired, and some of the
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Speaker 3: judges who are skeptical to the Trump administration's view say well,
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Speaker 3: you know, if you can fire these commissioners, there's nothing
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Speaker 3: to stop you from firing Federal Reserve Board governors. And
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Speaker 3: then it's interesting because then the Trump administration comes back
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Speaker 3: and says, well, you know, we haven't taken a position
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Speaker 3: on the Federal Reserve Board that's not before this court.
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Speaker 3: There may be arguments that Federal Reserve Board governors could
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Speaker 3: raise that are different than the ones before these other cases.
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Speaker 3: So it's sort of interesting to see how the Trump
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Speaker 3: administration tries to sidestep that argument. But at the end
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Speaker 3: of the day, I think the commissioners are right and
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Speaker 3: the judges that are skeptical to the Trump administration are
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Speaker 3: right because the Fed, you know, it has rule making authority,
12:17
Speaker 3: it can bring enforcement actions. It does a lot of
12:21
Speaker 3: things on the regulatory side of its responsibilities that would
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Speaker 3: fall under executive authority. Right. It also obviously has monetary
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Speaker 3: policy responsibilities, and those are even the Trump administration has
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Speaker 3: carved those out from falling under the president's authority. But
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Speaker 3: given its other powers, including rulemaking and enforcement action authority,
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Speaker 3: I think, in order to be consistent with trumpet administration's arguments,
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Speaker 3: which I do believe will prevail in these other cases,
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Speaker 3: that the President would be able under the law to
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Speaker 3: fire Federal Reserve Board governors. But I also say, you know,
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Speaker 3: the markets are more likely to dissuade the president from
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Speaker 3: doing that than the courts.
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Speaker 2: Are, and the Supreme Court justices. Is it just the
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Speaker 2: to Clarence Thomas and Neil Gorsich who said that they
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Speaker 2: would overrule Humphrey's executor.
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Speaker 3: Yeah, they are the only two that has explicitly said that.
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Speaker 3: And they did say that. I forget if it was
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Speaker 3: in Sale a Law or in Collins. I think it
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Speaker 3: was in Sale They said they would explicitly overrule Humphries.
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Speaker 3: But you know the rest of the Conservative justices, they've
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Speaker 3: interpreted Humphries to be a very narrow exception to the
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Speaker 3: general rule that the president can fire anyone in the
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Speaker 3: exec dipperience.
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Speaker 2: And are we still waiting to see if the Supreme
13:39
Speaker 2: Court rules on reinstatement of the NLRB and MSBT.
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Speaker 3: Yeah, technically those requests are still pending. But you know,
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Speaker 3: given that the DC Circuit panel just last Friday on
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Speaker 3: the sixteenth, heard those cases on the merits, it would
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Speaker 3: be odd I think for the Supreme Court to take
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Speaker 3: up the case now. I think they'll wait for the
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Speaker 3: DC Circuit to rule.
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Speaker 2: Well, the Supreme Court has lots of other emergency applications
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Speaker 2: to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior
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Speaker 2: litigation analyst Elliott Stein. Geofence warrants are relatively New Google
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Speaker 2: received its first in twenty sixteen, but the use of
14:23
Speaker 2: such warrants has proliferated, as have court cases challenging them.
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Speaker 2: Unlike a warrant authorizing surveillance of a known suspect, geo
14:33
Speaker 2: fencing is used to identify would be suspects. Google has
14:37
Speaker 2: been the primary recipient of these warrants due to its
14:41
Speaker 2: extensive location history database. Federal courts have split on whether
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Speaker 2: these geofence warrants are constitutional, but now New Jersey State
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Speaker 2: Court has ruled that police use of geofence warrants does
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Speaker 2: not violate constitutional privacy protections and is not an impermissible
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Speaker 2: general warrant. Joining me is Alex Ebert Bloomberg Law correspondent,
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Speaker 2: So Alex tell us what a geofence warrant is.
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Speaker 1: A geofence warrant is a broad warrant that allows police
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Speaker 1: to find out who may have been in a certain
15:16
Speaker 1: location at a given time. So imagine you're the police
15:20
Speaker 1: and you're looking for people, let's say at the Capitol
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Speaker 1: riot on January sixth, and you want to find out, hey,
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Speaker 1: whose cell phones might have been present around the Capitol
15:31
Speaker 1: when things started going down. Or let's say there was
15:34
Speaker 1: another event where we have a ride after there's a
15:37
Speaker 1: police shooting. Hypothetically police officers could find out who was
15:40
Speaker 1: in the vicinity of building when it got broken into.
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Speaker 1: That's the sort of information that police officers can be
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Speaker 1: looking for.
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Speaker 2: So what is the question when using a geofence warrant?
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Speaker 2: Is it privacy concerns? What are the constitutional concerns?
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Speaker 1: That's right? So this all boils down to privacy, And
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Speaker 1: there's two sort of big questions that courts are grappling with.
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Speaker 1: One is this a general warrant that would violate the
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Speaker 1: Fourth Amendment protections we have against the police invading our privacy?
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Speaker 1: And two would this be considered the stuff that we
16:14
Speaker 1: don't really have an entitlement to protect because it's held
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Speaker 1: by third parties. This is an issue that courts have
16:20
Speaker 1: grappled with for decades and it gets only more complex
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Speaker 1: as more of our data is being given to third parties.
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Speaker 2: Tell us what happened in this case? What you know
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Speaker 2: the facts of the case.
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Speaker 1: Sure, So this case involves a Milltown robbery. Basically, what
16:36
Speaker 1: happens is someone came into a convenience store gas station
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Speaker 1: late at night and the clerk who got assaulted hurt
16:43
Speaker 1: someone talking on the phone. That was really all the
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Speaker 1: police had to go off of in this case. And
16:49
Speaker 1: so because they knew there was a phone conversation going on,
16:53
Speaker 1: they went to Google and said, hey, was there anyone
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Speaker 1: in this particular area. Usually it's a couple of blocks
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Speaker 1: that is making a phone call or accessing their phone
17:03
Speaker 1: at this given time period. They went to Google and
17:06
Speaker 1: Google found only one identifiable person that was there, and
17:10
Speaker 1: from there the police officers were able to request from
17:13
Speaker 1: Google demand that they provide the identification of that Googled
17:19
Speaker 1: user and.
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Speaker 2: So explain what the court found here.
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Speaker 1: Sure, So the New Jersey Court of Appeals was extremely divided,
17:26
Speaker 1: as other courts have been in recent times on this issue.
17:30
Speaker 1: The majority found that this is okay. That there's a
17:35
Speaker 1: process through which the police here are requesting information from Google,
17:39
Speaker 1: and they're narrowing it down based on the location and
17:43
Speaker 1: the time period that they're seeking pings on people's cell phones.
17:47
Speaker 1: And from there it's fine, it's articulable suspicion. We've got
17:51
Speaker 1: the probable cause necessary to get this information in a warrant.
17:56
Speaker 1: But the descent here is saying, no way, what we're
17:59
Speaker 1: asking for here is to hoover up all this information,
18:03
Speaker 1: and you're able to tap into whomever might be in
18:06
Speaker 1: this location at a given time, whether or not they
18:09
Speaker 1: might be related to this crime or not.
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Speaker 2: This New Jersey case is a case in state court,
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Speaker 2: but the federal courts are split on this. The Fourth Circuit,
18:19
Speaker 2: sitting on Bank couldn't produce a majority opinion explaining why
18:25
Speaker 2: they allowed the geofence warrant, so it issued eight separate concurrences.
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Speaker 1: It is such a mess, Joon. So we have that
18:35
Speaker 1: court going that direction, and then we have the Fifth Circuit,
18:38
Speaker 1: what we would consider to be extremely conservative, going to
18:41
Speaker 1: complete other routes. So we have this circuit split where
18:45
Speaker 1: we have a court that says this isn't the search
18:47
Speaker 1: at all, this is information held by third parties. The
18:50
Speaker 1: defendants aren't entitled to protection over right. Then we've got
18:53
Speaker 1: the Fifth Circuit saying this isn't just a search, this
18:56
Speaker 1: is an unconstitutional general warrant. You know the thing that
19:00
Speaker 1: you know we created the Fourth Amendment to stop. We
19:03
Speaker 1: don't want the British officers coming in and ransacking our
19:06
Speaker 1: houses just generally looking for stuff, and that's what you're
19:10
Speaker 1: trying to do here with these general warrants of disinformation
19:13
Speaker 1: at Google users and just pulling it back. We're talking
19:16
Speaker 1: about hundreds of millions of devices in the United States.
19:20
Speaker 1: You know, hundreds of millions of people have access to
19:23
Speaker 1: just Google's accounts. And so if you're looking at the
19:26
Speaker 1: split here, it's the difference between can we get at
19:29
Speaker 1: that private information that's held by these service providers, by
19:34
Speaker 1: these apps, or is that just too much data? Do
19:38
Speaker 1: we have an updated sense of privacy that is being
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Speaker 1: invaded here?
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Speaker 2: Do you have any idea how many of these GEO
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Speaker 2: warrants are issued in a year.
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Speaker 1: I haven't been able to find information how mean it is. However,
19:51
Speaker 1: when I've spoken with attorneys off the record, they've told
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Speaker 1: me that it's increasing again and again and again because
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Speaker 1: it's becoming more valuable in for We also have other
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Speaker 1: courts considering this issue right now. Just last month, the
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Speaker 1: Texas Criminal Court of Appeals, which is their highest level
20:09
Speaker 1: of criminal courts, they allowed the geofense warrants, and the
20:13
Speaker 1: Minnesota Supreme Court is considering right now a case on
20:17
Speaker 1: the constitutionality of geofense warrants. So this is bubbling up
20:20
Speaker 1: across the country.
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Speaker 2: Could this be appealed to the New Jersey Supreme Court.
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Speaker 1: Indeed, so because this is a divided decision in the
20:29
Speaker 1: Court of Appeals, New Jersey Supreme Court will automatically grant
20:34
Speaker 1: review if the loser wants it. That is a certainty here.
20:38
Speaker 1: This is going to be a huge case and you're
20:40
Speaker 1: going to see you know, amakis briefs from all over
20:43
Speaker 1: the country pour in on this thing because there's so
20:46
Speaker 1: few of these decisions that are either bubbling up or
20:49
Speaker 1: at that highest court level. And in particular, New Jersey
20:53
Speaker 1: is extremely strong in Fourth Amendment terms, and it has
20:56
Speaker 1: interpreted both the national the federal Fourth amend and its
21:00
Speaker 1: own privacy protections broadly for criminal defendants.
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Speaker 2: Google is implementing changes to encryption. Explain what they're trying
21:08
Speaker 2: to do, that's right.
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Speaker 1: Yeah, So it's been over a year now since Google
21:12
Speaker 1: has announced that it's going to be implementing changes to
21:14
Speaker 1: encryption that would prevent somewhat you know, some of these
21:19
Speaker 1: broader geofense warrants we're talking about. Instead of Google storing
21:24
Speaker 1: this information, it will be stored on a local device,
21:27
Speaker 1: or it will be you know, encrypted in such a
21:30
Speaker 1: way that giving Google can't read it, and so it
21:32
Speaker 1: can't turn over account information to police officers. But that's
21:37
Speaker 1: not necessarily going to stop, either for Google or for
21:40
Speaker 1: other apps. If you think about it, there's other warrants
21:44
Speaker 1: that you know, could function well beyond this. Right, So,
21:47
Speaker 1: if you're taking an Uber somewhere, why can't the police say, hey, Uber,
21:51
Speaker 1: give me all of the rides that you know came
21:53
Speaker 1: into this block, right or this series of blocks within
21:57
Speaker 1: the you know, three hours the night April twenty fives,
22:01
Speaker 1: or Facebook or Apple you know, were there any location
22:04
Speaker 1: tags or people that bought things, you know, using Apple
22:07
Speaker 1: Pay or whatever within certain radius around here. It's not
22:11
Speaker 1: just Google that you know, defendants might have to worry about.
22:14
Speaker 1: And beyond that, you could even think of ways where
22:17
Speaker 1: you can get at this sort of information without really
22:20
Speaker 1: looking at you know, pinging from someone's location through geolocation.
22:24
Speaker 1: What if you could go to Google and say, hey,
22:27
Speaker 1: give me anyone that's searched for, you know, the victim's
22:31
Speaker 1: house or areas around there in a certain time period.
22:35
Speaker 1: So you can think of creative ways where the police
22:38
Speaker 1: could really use an expansive access to these geofence warrants
22:42
Speaker 1: to look for information, you know, even outside of what
22:45
Speaker 1: Google is trying to prohibit.
22:47
Speaker 2: Has the Supreme Court taken up any case that's similar
22:50
Speaker 2: to these geo warrants?
22:52
Speaker 1: Not exactly on point tune. So over the course of
22:55
Speaker 1: my lifetime, the Supreme Court has gone from a more
22:58
Speaker 1: favorable access to third party data to a less favorable
23:02
Speaker 1: access to third party data framework and stamp. And in
23:06
Speaker 1: twenty eighteen, we had a Carpenter case, which is about
23:10
Speaker 1: the pinging of cell phone towers, right and there the
23:13
Speaker 1: Supreme Court made sort of a great ruling for defendants that, hey,
23:18
Speaker 1: police have to get a warrant to get access to this.
23:21
Speaker 1: You can't just hoover in this information. But there's nothing
23:24
Speaker 1: that's on this level that involves this kind of technology
23:29
Speaker 1: and this kind of.
23:29
Speaker 2: Warrant, And how's the privacy bar taking this case?
23:34
Speaker 1: Privacy rights attorneys are really up in arms about this
23:37
Speaker 1: because of the huge implications here, and you know, for
23:40
Speaker 1: the creative ways that it could be used. You know,
23:43
Speaker 1: oftentimes these sort of maneuvers aren't really discovered until you know,
23:47
Speaker 1: months or years after. You know, police are looking for
23:50
Speaker 1: this information, but at the same time police officers say, hey,
23:53
Speaker 1: we didn't have anything on this guy. You know that
23:57
Speaker 1: committed this robbery. You know, there's no CCTV. There's nothing
24:00
Speaker 1: really that would have given us this lead. And so
24:03
Speaker 1: on one hand you have this extremely powerful tool for
24:07
Speaker 1: police officers, and then the other you have this really scary,
24:11
Speaker 1: sort of invasive ability to look into what we're doing
24:15
Speaker 1: on our phones.
24:16
Speaker 2: I'm sure we're going to hear more about these warrants.
24:18
Speaker 2: Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
24:22
Speaker 2: coming up. A Democratic member of Congress charged with felony assault.
24:27
Speaker 2: This is Bloomberg. New Jersey Congresswoman la Monica McIver appeared
24:33
Speaker 2: in court today to face felony charges accusing her of
24:37
Speaker 2: assaulting US immigration officers as she tried to prevent Newark's
24:41
Speaker 2: mayor from being arrested outside a detention facility on May ninth.
24:46
Speaker 2: Macgiver said the charges against her are purely political. They
24:51
Speaker 2: mischaracterize and distort her actions, and are meant to criminalize
24:55
Speaker 2: and deter legislative oversight. It is rare for the Department
24:59
Speaker 2: of Justice to charge a sitting member of Congress criminally
25:03
Speaker 2: for things other than campaign finance violations or corruption. House
25:08
Speaker 2: Minority Leader Hakim Jeffries said it crosses the line.
25:12
Speaker 4: We're not going to be intimidated by their tactics to
25:18
Speaker 4: try to force principled opposition from not standing up to
25:22
Speaker 4: their extremism.
25:23
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
25:27
Speaker 2: at Holland and Knight. Leon. This arrest relates to that
25:31
Speaker 2: scrum outside the private detention facility, and both sides are
25:36
Speaker 2: pointing to video to illustrate their cases.
25:40
Speaker 5: The federal government's position is interestingly enough that the original
25:46
Speaker 5: person that they had arrested, the Newark mayor Ros Barakai,
25:49
Speaker 5: it turns out in the end, was not amenable to
25:52
Speaker 5: addrespassing prosecution, so those charges were actually dropped, but that
25:57
Speaker 5: this representative McIver is liable for the impeding of an
26:03
Speaker 5: arrest which would have been an arrest that theoretically was
26:07
Speaker 5: not prosecutable, which was the arrest of ros Baraka. So
26:10
Speaker 5: that actually adds a little bit of a complication to
26:13
Speaker 5: this case because if they're saying that she was impeding
26:16
Speaker 5: the arrest of someone that theoretically shouldn't have been arrested
26:20
Speaker 5: because this person is not actually being prosecuted, now hard
26:23
Speaker 5: to say what was being impeded there, but there's that argument,
26:27
Speaker 5: and then there's the second one about whether this representative
26:31
Speaker 5: was actually pushing and shoving and grabbing Homeland Security Investigation agents.
26:37
Speaker 5: I've seen the video. Look, if you take this unwanted
26:41
Speaker 5: touching language broadly, you know, all of us commit battery
26:45
Speaker 5: and assault every day, you know, if you're in a
26:48
Speaker 5: sub way or if you're at a football game or something,
26:51
Speaker 5: who knows. So that's the problem with these statues of
26:55
Speaker 5: unwanted touching is the government has great discretion over who
26:59
Speaker 5: it can prosecutor who it cannot. And what the Representative
27:03
Speaker 5: McIver is going to say is that at the end
27:07
Speaker 5: of the day, that this is a person trying to
27:10
Speaker 5: have congressional oversight. There's a statute that literally says this
27:13
Speaker 5: person is able to go into a facility without meaning
27:18
Speaker 5: to get prior clear in that access is being blockaded.
27:22
Speaker 5: And so this person is trying to do what they
27:25
Speaker 5: can to get access to the facility and is being
27:28
Speaker 5: impeded by the government, and so it will be up
27:30
Speaker 5: for the courts to decide. I do think if this
27:34
Speaker 5: is a criminal case happening in New Jersey that if
27:38
Speaker 5: it doesn't get dismissed by a judge, it's very unlikely
27:41
Speaker 5: that a jury will vote to convict the representative in
27:45
Speaker 5: this set of facts. I don't see how it's possible
27:48
Speaker 5: you could get jurors to unanimously agree to convict in
27:51
Speaker 5: this scenario. I don't see basically any chance of that.
27:54
Speaker 5: But nevertheless, if this prosecution continues, that's probably where we
27:58
Speaker 5: would end up as a try and I'm sure either
28:01
Speaker 5: a mistrial or even potentially an acquittal, because I don't
28:05
Speaker 5: think the jury's going to take too kindly to this
28:07
Speaker 5: kind of prosecution.
28:09
Speaker 2: You have armed ICE agents and they're claiming that this
28:12
Speaker 2: woman jostled them, and she's screaming he just assaulted me.
28:16
Speaker 2: It just seems like the facts are, to put it kindly,
28:20
Speaker 2: the facts are not clear. So why make a federal
28:24
Speaker 2: case out of this?
28:25
Speaker 5: I think the argument would be that they want the
28:27
Speaker 5: congress people in the future to call ICE and arrange
28:31
Speaker 5: these tours and have a more orderly process than just
28:35
Speaker 5: showing up with cameras saying you know, we're against what's
28:40
Speaker 5: going on in this facility, and then dramatically ordering one's
28:43
Speaker 5: way into the facility. So they're trying to deter that.
28:48
Speaker 5: But I don't think it's very likely that if this
28:51
Speaker 5: case ends up going to trial. Look, it's possible to
28:53
Speaker 5: end up going to trial because, as I said, this
28:56
Speaker 5: assault and battery elements to this are very very broad,
29:00
Speaker 5: and any of us could be convicted for them at
29:03
Speaker 5: basically any time in terms of just an unwonted touching.
29:07
Speaker 5: So then the question is what do you do after that?
29:11
Speaker 5: And I think that's the question is are you actually
29:15
Speaker 5: doing something that's a criminal act that allows you to
29:18
Speaker 5: actually go to jail. Just in the history of New
29:22
Speaker 5: Jersey and a lot of the trials they've had, it
29:24
Speaker 5: seems unlikely that there would be able to be a
29:27
Speaker 5: conviction in this case.
29:29
Speaker 2: She likened the charges to the indictment of the Wisconsin
29:32
Speaker 2: judge who was accused of helping an undocumented immigrant elude
29:36
Speaker 2: federal agencies. Is this more about the Trump administration proving
29:41
Speaker 2: a point?
29:42
Speaker 5: I don't know if it's about them proving a point.
29:44
Speaker 5: I'm just saying I think the desired effect is to
29:49
Speaker 5: get people to coordinate their visits with ICE. But you know,
29:53
Speaker 5: I leave it for your listeners to decide whether this
29:56
Speaker 5: is the method that's the most productive for that purpose.
30:00
Speaker 2: Turned to another immigration issue, A Massachusetts judge has found
30:04
Speaker 2: that the Trump administration violated an order he issued last
30:09
Speaker 2: month that barred officials from deporting people to countries other
30:14
Speaker 2: than their own home country without first giving them enough
30:18
Speaker 2: time to object. Why is the administration even sending migrants
30:23
Speaker 2: to South Sudan?
30:25
Speaker 5: Well, I think there was previously a dispute with South
30:28
Speaker 5: Sudan about work for the US government to take back
30:32
Speaker 5: people to be deported to South Sudan. And it looks
30:36
Speaker 5: like this dispute has been resolved in a way where
30:39
Speaker 5: South Sudan is now agreeing to take other people rather
30:44
Speaker 5: than South Sudanese people back for deportations. And so to
30:49
Speaker 5: the extent that the Trump administration has people that it
30:52
Speaker 5: can't afford to other nations, it appears that it's going
30:56
Speaker 5: to be trying to do that. And what did your
31:00
Speaker 5: thing with regard to that? Is also that the Trump administration,
31:03
Speaker 5: unlike many other countries whose temporary protective status it has
31:07
Speaker 5: taken away, it actually renewed for six more months the
31:11
Speaker 5: temporary protective status for South Sudan. So it does seem
31:15
Speaker 5: like there's some coalescing of some arrangement there. But now,
31:19
Speaker 5: of course we have an injunction and a tumultuous federal
31:24
Speaker 5: court situation with regard to sending these individuals from other
31:27
Speaker 5: countries to South Sudan.
31:30
Speaker 2: I have a practical question. If we're talking about eight
31:34
Speaker 2: to twelve migrants, rather than possibly flouting a court order,
31:39
Speaker 2: why not just keep them in detention. It's not a
31:42
Speaker 2: station number.
31:43
Speaker 5: I mean, this is a very interesting question. And the
31:47
Speaker 5: pattern in practice previously was to make sure that if
31:51
Speaker 5: there was any litigation around a specific issue, that you
31:55
Speaker 5: would not have that deportation until all the litigation was done.
31:59
Speaker 5: But I think that the Trump administration is feeling very
32:02
Speaker 5: frustrated with the amount of litigation, the amount of timing,
32:07
Speaker 5: and they're just trying to take any window that's conceivably
32:11
Speaker 5: possible that they can argue that a deportation was proper
32:15
Speaker 5: so that they could then execute that deportation and then
32:18
Speaker 5: go back to the courts and say, sorry, we don't
32:20
Speaker 5: know what to do now that that deportation has happened.
32:23
Speaker 2: Why are they struggling with these cases that are distinct
32:27
Speaker 2: in different ways. If there are so many migrants that
32:31
Speaker 2: they say have to be deported, I.
32:33
Speaker 5: Think the issue is they're trying to create solutions to
32:37
Speaker 5: a lot of different problems that have been long running
32:40
Speaker 5: in the immigration system. So there's always been this large
32:44
Speaker 5: group of people that just can't be deported because their
32:47
Speaker 5: countries won't accept them. And so they're trying to send
32:51
Speaker 5: these messages even if they can't accomplish a deportation. They're
32:55
Speaker 5: trying to send the message to people who would otherwise
32:58
Speaker 5: not be fearful of remains here because they don't think
33:02
Speaker 5: they can be deported, to say, the last thing you
33:04
Speaker 5: want is for us to come get you and then
33:07
Speaker 5: send you to South Sudan or to El Salvador, or
33:11
Speaker 5: to Rwanda or someplace like that. And I think so
33:15
Speaker 5: a lot of this is to create an effect of
33:17
Speaker 5: deterrent rather than just accomplish the twelve removal. So I
33:20
Speaker 5: think that's what's really going on here, Lee.
33:23
Speaker 2: And as you know, the Supreme Court has said that
33:25
Speaker 2: the government has to give undocumented migrants due process and
33:30
Speaker 2: the ability to file habeas corpus petitions. And yesterday on
33:35
Speaker 2: Capitol Hill, Homeland Security Secretary Christy Nome was asked to
33:40
Speaker 2: explain what habeas corpus was by Democratic Senator Maggie Hassen
33:46
Speaker 2: of New Hampshire.
33:48
Speaker 6: So Secretary Nome, what is habeas corpus? Well, habeas corpus
33:52
Speaker 6: is a constitutional right that the president has to be
33:55
Speaker 6: able to remove people from this country to.
33:58
Speaker 3: Spend their right.
33:59
Speaker 6: Let me stop man, spend the hebeas corpus. Excuse me,
34:02
Speaker 6: that's that's incorrect. President, excuse me. Habeas corpus is the
34:07
Speaker 6: legal principle that requires that the government provide a public
34:12
Speaker 6: reason for detaining and imprisoning people.
34:15
Speaker 2: So how will the Department be able to follow the
34:17
Speaker 2: Supreme Court's orders if its top official thinks habeas corpus
34:22
Speaker 2: is the right of the president rather than the right
34:25
Speaker 2: of those imprisoned or detained.
34:27
Speaker 5: I mean, it is a complicated situation. But for your listeners,
34:32
Speaker 5: because we've certainly talked about habeas corpus in the past,
34:35
Speaker 5: and so I do think it's useful for everybody to
34:38
Speaker 5: be clear that corpus means body in Latin. And so
34:42
Speaker 5: the point is, whenever you feel that your body is
34:45
Speaker 5: being unnecessarily restrained or detained and formed by the government,
34:50
Speaker 5: the traditional remedy for that is to file a habeas corpus,
34:54
Speaker 5: saying take custody over this body and tell the government
34:58
Speaker 5: to not unlawfully either detain or restrain it in some manner.
35:03
Speaker 5: And that's what an abeas corpus is. So when you
35:06
Speaker 5: hear that term, that's what it is. It's the ability
35:08
Speaker 5: of any person in the United States who feels that
35:12
Speaker 5: the government is unjustly doing something with detainment or restrainment
35:17
Speaker 5: of their body to be able to go to a
35:19
Speaker 5: court and say, you the government are acting unlawfully in
35:23
Speaker 5: doing this. And so people are doing that now for
35:26
Speaker 5: the purposes of trying to avoid removal under these various
35:30
Speaker 5: new ways that the government is trying to accomplish removal,
35:34
Speaker 5: such as the Alien Enemies Act or the Foreign Policy Act,
35:39
Speaker 5: where the government is saying that people are here in
35:41
Speaker 5: violation of US foreign policy interests. And so if the
35:45
Speaker 5: Supreme Court has said, look, we know that there's normal
35:47
Speaker 5: immigration laws, but you can't use that for these. You
35:50
Speaker 5: got to go use a abeas corpus in order to
35:54
Speaker 5: challenge this. That's what the Supreme Court has said. And
35:57
Speaker 5: so now people are doing that, and so we're this
36:00
Speaker 5: debate is is will the Trump administration actually do what's
36:03
Speaker 5: called suspension of habeas corpus, which is the only way
36:07
Speaker 5: it can do that under the laws that claims that
36:10
Speaker 5: the United States is under an invasion, which is the
36:13
Speaker 5: same reason it's citing the Alien Enemies Act. And so
36:17
Speaker 5: those cases are currently not going well for the government,
36:21
Speaker 5: and so will it be able to suspend habeas corpus
36:25
Speaker 5: at this time? And so that's what the debate is about.
36:28
Speaker 2: And the federal judge in Massachusetts has said that the
36:32
Speaker 2: Trump administration unquestionably violated the court order with this possible
36:37
Speaker 2: deportation flight to South Sudan. So we'll see where that goes.
36:42
Speaker 5: That's where it gets complicated because the courts have so
36:45
Speaker 5: far not said you have to bring someone back. Now,
36:49
Speaker 5: it's a little bit different when someone's not in detention
36:52
Speaker 5: like they are in El Salvador. So if the people
36:54
Speaker 5: sent to South Sudan are not going to be placed
36:57
Speaker 5: in a detention facility, well, and there's no theoretical problem
37:02
Speaker 5: for the United States to quote unquote facilitate their entrance back,
37:07
Speaker 5: because now it's just a matter of being given a
37:09
Speaker 5: document that allows you to re enter the United States
37:13
Speaker 5: and perhaps a playing ride, though that would be potentially
37:16
Speaker 5: a subject of litigation. But the Al Savador cases troubled
37:21
Speaker 5: because of the fact that they're in detention, so that
37:23
Speaker 5: you would need al Savador to actually agree to levels
37:27
Speaker 5: individuals out of detention. But in South today, and it's
37:30
Speaker 5: not clear that these individuals will be in detention there,
37:34
Speaker 5: and so in past cases people have been allowed to
37:38
Speaker 5: re enter. The government has actually flown the people back
37:41
Speaker 5: into the country, and we'll see if that's what happens here.
37:45
Speaker 2: I'm sure everyone will understand habeas corpus by the time
37:49
Speaker 2: we're through with all these cases. Thanks so much, Leon.
37:53
Speaker 2: That's Leon Fresco, a partner at Holland and Knight. And
37:57
Speaker 2: that's it for this edition of The Bloomberg Law Show.
37:59
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38:02
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38:18
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